Shpak v. Mytych

Marbury, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Anne Arundel County enjoining the appellants from using their property lying along Ridge Road in the 5th Election District of that county for the operation of a junk or salvage yard. The decree was based on a finding by the court that no non-conforming use existed on December 2, 1947, the effective date of the first zoning ordinance in the county. The questions presented on this appeal are: (1) did the lower court have jurisdiction to determine the existence of a legal non-conforming use, and (2) if it did have jurisdiction, did the court err in its decision.

The facts basically are not in dispute. In March 1947, Grover Foley purchased a twenty-two acre tract of land on Ridge Road (hereafter referred to as parcel No. 1). In April of that year, he occupied this parcel, bringing with him several old cars, which were placed on the land with other old vehicles already ⁴¹⁶ there, apparently stored by others prior to his purchase. During that year, he acquired other old cars.

He used parts from them in repairing automobiles on the property. He also sold or traded some of these vehicles. They were scattered over the entire parcel. He used an old building on the property for a garage and living quarters.

In March 1948 he bought an adjoining one-half acre lot (hereafter referred to as parcel No. 2). Some time between 1950 and 1952, Foley constructed a brick and masonry garage on parcel No. 2 and moved his business operation to that lot. Prior to this, in 1949, he had gotten a certificate of occupancy for his commercial use of parcel No. 1 from the county. This certificate was issued to allow Foley the use of the land for occupancy as an automobile repair garage.

The original zoning ordinance for Anne Arundel County, adopted on December 2, 1947, 1 classified this area as agricultural. A subsequent ordinance adopted in July 1952 maintained the same classification. Foley continued his business operations until July 1959, still using parcel No. 1 for the storage of old cars. In July he transferred both parcels to the appellants.

The sale was conditioned upon the appellants getting the necessary permits authorizing the use of the property for a junk or salvage yard. A certificate of occupancy was issued authorizing the use of the property for an auto salvage yard on July 2, 1959. This was an official recognition of a non-conforming use. In the meantime, several adjacent property owners, including the appellees herein, objected to the use of the property as an auto salvage yard.

They were informed by the zoning inspector that their remedy was by way of appeal to the Board of Appeals. Through their attorney they obtained the necessary forms on which to file such an appeal and notified the zoning inspector of their intention to do so, but did not file ⁴¹⁷ the appeal. This was in October 1959. In April 1961 the appellees filed a bill of complaint seeking to enjoin the alleged violation of the zoning ordinance created by the location of the auto salvage yard in the agriculturally zoned area and to abate the alleged nuisance resulting therefrom.

The appellants demurred to the bill of complaint on the basis that the Board of Zoning Appeals had not been made a party and that the appellees had not exhausted their administrative remedies. The court below over-ruled the demurrer and appellants filed an answer. The question concerning a nuisance is not before us, the trial court having found there was no evidence to support this claim, and there was no cross-appeal. The zoning ordinance of Anne Arundel County in effect in 1959 provided that if a non-conforming use was desired in an agriculturally zoned area, a certificate of occupancy must be obtained from the duly authorized official responsible for the issuance of such certificate.

Pursuant to Code (1957), Article 66B, § 22, a board of appeals had been established in Anne Arundel County to hear complaints with reference to zoning. Section 22 (g) of that article provides that the board had the power: “(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this subtitle or of any ordinance adopted pursuant thereto.” Section 22 (d) provides that appeals to the board of appeals