Sizemore v. Town of Chesapeake Beach

⁶³⁶ LEAHY, J. Appellants Joyce Sizemore and her daughter Stephanie Sizemore, possessed of the hope and optimism common to those with an entrepreneurial spirit, applied for a zoning permit in April 2000 to construct the “Beef & Reef Restaurant” on their property in the Town of Chesapeake Beach in Calvert County, Maryland. Unfortunately, the Sizemores lacked sufficient resources to fully fund their aspirations for the Beef & Reef. On October 2, 2003, Joyce Sizemore received her final zoning permit for the restaurant. At the time, the property was zoned for Commercial High-Density (“C-HD”) use, which permitted restaurants of the type proposed by the Sizemores.

In February 2004, however, Appellee Town of Chesapeake Beach completed a comprehensive rezoning, pursuant to which the Sizemore property was downzoned from C-HD to Residential-Village (“R-V”). Notwithstanding the rezoning, the Sizemores continued in fits and starts with construction of the restaurant under their existing zoning permit. After construction languished for months and then years—and after numerous written warnings—on January 12, 2009, the town zoning administrator revoked the Sizemores’ 2003 zoning permit pursuant to the Town Code of Chesapeake Beach (“Town Code”) § 290-27(E) (2004), 1 for failure to substantially complete or satisfactorily proceed with construction. On February 13, 2009, the Sizemores appealed the decision of the zoning administrator to the Town of Chesapeake Beach Board of Zoning Appeals (the “Board”), and, following an adverse decision there and in the Calvert County Circuit Court on their petition for judicial review, the Sizemores abandoned their subsequent appeal to this Court. 2 Eight months after abandoning their appeal of the 2009 decision to ⁶³⁷ this Court, the Sizemores filed a new permit application for the Beef & Reef on October 3, 2012, which was denied because the R-V zone did not permit restaurants or other commercial establishments.

The Sizemores’ primary contention in challenging that decision before the Board, was that because of the work they had started, they had a vested right to continue construction of a restaurant on their property. After a full hearing, the Board upheld the zoning administrator’s decision to deny the zoning permit in a Resolution issued on December 13, 2013. On petition for judicial review, the Circuit Court for Calvert County affirmed the Resolution of the Board. The Sizemores present the following questions, which we have reordered: 1) Did the Board err by concluding the Sizemores abandoned their vested right because they were unable to keep the previously issued zoning permit in effect? 2) Did the Board err by not ordering the issuance of a new zoning permit because the Sizemores have a vested right to complete construction and open the restaurant? 3) Did the Board err by deciding the Sizemores “waived” the ability to assert a vested right as the basis for a new zoning permit—needed to finish construction of the restaurant the Sizemores began under a previously issued zoning permit—because the Sizemores did not assert a vested right during the 2009 appeal that challenged cancellation of the previously issued zoning permit? 4) Did the Board err by declining to reconsider its prior decision to uphold cancellation of the previously issued zoning permit when State law, in effect at the time of the Board’s 2009 decision, tolled the expiration of zoning permits (and other land use approvals) because of the financial crisis and recession that began in 2007-2008?[ 3 ] ⁶³⁸ We hold that a vested right to proceed with construction under an existing zoning use may be abandoned pursuant to a statutory provision that establishes reasonable prerequisites for abandonment, or where there is ample evidence of an intent to abandon or relinquish the vested zoning right.

Because the Town Code of Chesapeake Beach § 290-27(E)(2) applies to all permits, and places reasonable restrictions on the life of a zoning permit, the Sizemores’ failure to comply with § 290-27(E)(2) correctly resulted in the expiration of their permit and the abandonment of any vested right in that permit. It follows that, in 2009, by challenging the determination that the zoning administrator was empowered to revoke the zoning permit under § 290-27(E)(2) for failure to substantially complete or satisfactorily proceed with construction, the Size-mores were challenging the Town’s ability to extinguish their vested rights in the C-HD zoning under which construction of their restaurant was permitted. Therefore, we hold the Board did not err in its determination that whether the Sizemores had vested rights in the C-HD zoning was a matter that was “disposed of’ in 2009. Finally, we hold that the Board correctly declined to reconsider its 2009 decision after that decision had been appealed to both the circuit court and this Court and where the “Tolling Bill,” 2009 Md. Laws, ch. 334 (SB 958) (codified at Maryland Code (1984, 2009 Repl.

Vol.), State Government Article (“SG”) §§ 11-201 & -202), abrogated June 30, 2010, was no longer in effect. We affirm the judgments of the Circuit Court for Calvert County sustaining the Resolution of the Board. ⁶³⁹ BACKGROUND In 1998, Joyce Sizemore purchased a home on a .43 acre lot, located at 8731 C Street in Chesapeake Beach, MD, 20732 (the “Property”) for $157,000.00. In April 2000, she filed her first application for a zoning permit to construct a “2 story Takeout Restaurant & Storage w/ Parking Area” on the Property (the “Project”). At the time of the original permit application, the property was zoned for C-HD use.

The restaurant and accompanying twenty-car parking lot proposed in the June 2, 2000, site plan for the “Beef & Reef’ was a permitted use in the C-HD overlay zone. The first zoning permit for the Beef & Reef restaurant was approved on January 18, 2001, and was issued as permit No. 4308. However, that permit was contingent on the outcome of a pending appeal brought by Bernard Gibson, one of the Sizemores’ neighbors. The appeal was ultimately decided in the Sizemores’ favor and, on April 12, 2001, permit No. 4308 was replaced with zoning permit No. 4364.

After receiving the April 2001 zoning permit, the Sizemores began obtaining the other required permits for construction of Beef & Reef. On April 17, 2001, the Sizemores received their public water/sewer permit, No. 14272. In November of 2001, the Sizemores received permits for building and grading, No. 15259 and No. 15394, respectively. However, there is no evidence in the record that any construction occurred on the property prior to October 2003.

The 2003 Zoning Permit For reasons that are not entirely clear from the record, on October 2, 2003, zoning permit No. 5077 replaced the two prior zoning permits. According to inspection reports, the footings for the building were constructed on October 15, 2003. The circuit court found, in its August 29, 2014, Findings and Order of Court, that, by February 2004, the building’s foundation had been laid. On February 19, 2004, the Town downzoned the Sizemores’ property from C-HD to R-V. The R-V zone does not permit restaurants or other commercial establishments, such as the ⁶⁴⁰ proposed Beef & Reef Restaurant. 4 Additionally, the Town adopted a new provision, Town Code § 290-27(E), 5 in the zoning ordinance, which states in pertinent part: E. Expiration of zoning permit.

(2) If the work described in any zoning permit has not been substantially completed within two years of the date of issuance, unless work is satisfactorily proceeding thereon, said permit shall expire and be cancelled by the Administrator, and written notice thereof shall be given to the persons affected, together with notice that further work as described in the cancelled permit shall not proceed unless and until a new zoning permit has been obtained. In September 2004, the Sizemores received permits for plumbing, gas, and electrical work. The record indicates that, by the end of September 2004, the electric slab and plumbing ground rough had been installed and inspected by the county. 6 In late October 2004, the slab and ceiling close-in were in ⁶⁴¹ spected. An additional “rough” inspection of the Property was completed on November 1, 2004.

From that point, however, the record is unclear as to what, if any, work continued at the site. On March 23, 2006, the town zoning administrator wrote to Appellant Joyce Sizemore, advising her that the construction was not proceeding in a timely manner as required and that the zoning permit would expire in October 2006, unless construction resumed. On September 22, 2006, the zoning administrator sent the Sizemores a second warning, stating that the zoning administrator had not observed any work on the property over the summer and that “if work resumes before Friday, October 6th, you will have satisfied the Calvert County Building Code and our Zoning Ordinance.” However, the zoning administrator also strongly cautioned the Sizemores, stating that, “if the October deadline passes with no restarting of the work on the project, your Zoning Permit will expire and the proposed use will no longer be permitted under the current Zoning.” (Emphasis added). No action was taken to revoke the Sizemores’ zoning permit in 2006 because, as reflected in the Zoning Administrator Staff Report in case No. 2009-1 before the Board, right after the warning letters were sent, “there was noticeable activity on the site, including the sealing and painting of the building exterior.” The Sizemores then received confirmation from the Calvert County Division of Inspections & Permits on October 30, 2006, that their building permit would remain in effect until October 1, 2007, or “as long as there is continuous and reasonable progress being made on your project.” Notably, this letter also cautioned the Sizemores: [A] permit under which work has begun and stopped for any reason shall become null and void one year after the work has stopped.

Work will be considered stopped when the builder fails to prosecute the work so as to ensure completion within a reasonable period of time considering the type of construction involved. If one year from [ ]now we feel that work has not continued to progress you will receive written notice from this office and you may be required to ⁶⁴² re-apply for and obtain a new permit to complete the required work. If this is not accomplished within 90 days of receipt of notification you may be required to remove or demolish the building or structure within 180 days from the date of the written notice. Subsequent inspection reports show that the plumbing and gas appliances were installed in December 2006.

The record does not reveal any construction activities for another year- and-a-half until the next inspection report was issued on March 5, 2008, for inspection of the insulation on the Project. Then, more than a half-year went by until on October 28, 2008, after finding that work had not satisfactorily proceeded, the zoning administrator again wrote to the Sizemores asking them to provide the “developer’s ‘case’ as to why the permit should not be revoked.” According to the Zoning Administrator Staff Report, the only response the Sizemores provided was the letter from State Highway Administration (“SHA”) regarding SHA’s intention to construct the “depressed curb and sidewalk at the proposed entrance location, as a part of the SHA’s Streetscape Program.” Finding that there had been neither satisfactory progress nor substantial completion of the site plan during the preceding five years, the zoning administrator sent the Sizemores notice by certified mail, on January 12, 2009, that he was revoking Permit No. 5077. 7 On February 13, 2009, the Sizemores filed an appeal with the Board of Zoning Appeals, asking the Board to reinstate the permit and to allow work to continue. After hearings on April 7 and May 19, 2009, the Board issued its opinion in a Resolution dated July 28, 2009, upholding the zoning administrator’s revocation of the 2003 zoning permit (No. 5077). Written and oral testimony before the Board evidenced that there had been little activity on the site for five years, many ⁶⁴³ “integral components” of the construction remained incomplete, and that there was no evidence that the Sizemores could have secured or had secured financing to complete the Project.

The Board also considered written and oral testimony from several property owners in the vicinity of the Project. A letter from Bernard Gibson, dated March 31, 2009, indicated that the last time Mr. Gibson saw construction activity on the Project site was in October 2004. A letter from Patricia Gibson stated that no detectable progress had been made on the Project in four years. Mr. and Mrs. Alvin Mayo also testified that, to their knowledge, no substantial construction activity had occurred on the Project since February 2006.

The Board found that, based on the evidence presented, the Sizemores failed to comply with Town Code § 290-27(E) by “satisfactorily proceeding” with construction. The Board’s Resolution dated July 28, 2009, stated: While some work on the Project has been completed, the Board agrees with the statement made by the Zoning Administrator in his January 12, 2009 letter to [the Size-mores] that a substantial amount of work has yet to be completed. Contrary to the provisions of Section [290-27] of the Zoning Ordinance, the work under the permit had not been completed within two years of the date of its issuance nor can the Board agree with [the Sizemores] that a satisfactory progress toward completion of the work is being made. Consequently, the Board is without authority to [reverse the decision of the Zoning Administrator].

(Emphasis added). On August 28, 2009, the Sizemores petitioned for judicial review in the Circuit Court for Calvert County. They filed a memorandum with the circuit court on May 20, 2010, and argued that the zoning permit should not have been revoked because, among other reasons, any lack of progress on the Project was due, in part, to the harassment by the Town in helping neighbors to fight the Sizemores both in and out of court. The Sizemores argued, also for the first time, that the amendment to the Town’s zoning ordinance should have had a ⁶⁴⁴ grandfathering provision, and, that under the Tolling Bill, 2009 Md. Laws, ch. 334 (SB 958), their permit should have been tolled until June 30, 2010.

Governor O’Malley approved the Tolling Bill on May 7, 2009, and its effects were made retroactive to January 1, 2008. 2009 Md. Laws, ch. 334 (SB 958). According to the preamble of the bill, the purpose of the Tolling Bill was to toll certain permits issued by the State, or any county or municipality, until June 30, 2010, for the reason that “[tjhere exists a state of national recession, which has drastically affected various segments of the Maryland economy, but none as severely as the State’s banking, real estate, and construction sectors.” Id. The Sizemores averred that they learned of the Tolling Bill from a county employee after the Board upheld the zoning administrator’s revocation of the 2003 permit (No. 5077). The Sizemores argued before the circuit court that the Tolling Bill should have applied to their permit, which was still active on January 1, 2008, the date to which the Tolling Bill retroactively applied.

They maintained that their zoning permit could not have been revoked prior to June 30, 2010, and that the Town was required to give them additional time to complete the Project. In response to the August 28, 2009, petition for judicial review, Appellees filed a motion to dismiss arguing that the Sizemores failed to file a memorandum of law as required by Maryland Rule 7-207(a). The circuit court held a hearing on July 15, 2010, and, on August 11, 2010, granted the Town’s motion to dismiss. The Sizemores then sought review of the Board’s 2009 decision in this Court.

That appeal was received and docketed in this Court on February 25, 2011. But, on October 5, 2011, the Sizemores filed a line requesting that their appeal be dismissed. The 2012 Zoning Permit Application On July 20, 2012, Appellant Stephanie Sizemore wrote to the zoning administrator, asking him to reinstate the 2003 zoning permit, arguing again that it was protected by the ⁶⁴⁵ Tolling Bill. When that effort proved unfruitful, at some point in 2012, Appellant Stephanie Sizemore again obtained legal representation, and the Sizemores’ new counsel, Sager A. Williams, Jr., sent a letter to the zoning administrator dated September 24, 2012, asserting that, “on behalf of [his] client, Ms. Joyce E. Sizemore ...,” he was applying for “a new Zoning Permit for the Café building and business, which Ms. Sizemore is submitting under the provisions of § 290-27 of the Town’s zoning ordinance.” The letter also asserted: Under the common law and the Town’s zoning ordinance ... revocation of the [2003] Zoning Permit had no effect on [the Sizemores’] previously acquired vested right.

Under the common law, [the Sizemores’] vested right remains in effect either until [they] abandon[ ] the right—which [they] ha[ve] never done—or until the Town pays [them] just compensation for the right—which the Town has never done. On October 3, 2012, the Sizemores applied for a new zoning permit for the “Beef & Reef Restaurant.” In a letter from the zoning administrator, dated February 11, 2013, the Size-mores were notified that their application for a new zoning permit had been denied because “the property at 8731 C Street is zoned Residential Village (RV)” and that a restaurant is not a permitted use in the RV zone. The Sizemores filed an appeal with the Board on March 11, 2013, arguing that the zoning administrator’s February 2013 decision was arbitrary and capricious because the Sizemores had a vested right to continue construction of the restaurant that did not terminate upon cancellation of the 2003 zoning permit. The Sizemores further argued that they did not abandon their vested right because they never had the requisite intent to abandon.

The Sizemores asserted that the Tolling Bill prevented them from losing their vested rights and provided an overriding public policy justification for the Board to recognize such vested rights. In response, the Town argued that the Sizemores had waived both the Tolling Bill and the vested rights arguments ⁶⁴⁶ by not raising them before the Board in 2009. On May 7, 2013, and August 20, 2013, the Board held hearings on the appeal. In the interim between hearing dates, on May 24, 2013, the Sizemores filed a motion to reconsider requesting that the Board consider the application of the Tolling Bill to the 2009 decision.

In an oral vote taken at the August 20, 2013, hearing, the Board affirmed the zoning administrator’s denial of a new permit. In its written opinion, dated December 13, 2013, the Board determined that the tolling law to which the Sizemores referred was approved by the Governor on May 7, 2009, prior to the close of the hearing in Case No. 2009-1 and should have been presented to the Board in that case. Accordingly, because it was not presented then, the Board concluded that the issue had been waived. Regarding the vested rights issue, the Board stated: [T]he Appellant cannot do indirectly what she cannot do directly; that is, she cannot initiate a new request in hopes of reviving any rights she had or may have had under the prior case. * * * The issue of vested rights is an issue that involves the Town and the Appellant regarding the Permit and the Appellant’s ability to proceed with construction under the permit; the same parties and the same subject matter before the [Board] in Case No. 2009-1.

The matter was disposed of by the [Board] in 2009. Accordingly, the [Board] finds that it need not make a determination with respect to this issue at this time. The Board explained why the Town was justified in treating the Sizemores’ failure to make progress on the construction as an abandonment: Appellant’s failure to comply with the [Town Code] amounts to a lack of intent to complete the project, which could be interpreted as an abandonment of the project. ⁶⁴⁷ Appellant would have the [Board] find that obtaining vested rights gives one the ability to leave a building partially constructed indefinitely and that the person not be required to comply with Town Code requirements. The [Board] is not persuaded to support such a conclusion.

Additionally, because the property was downzoned to an R-V zone, the Board found that the zoning administrator correctly denied the Sizemores a new zoning permit for the Beef & Reef. On January 13, 2014, the Sizemores filed the underlying petition for judicial review of the Board’s 2013 decision in the Circuit Court for Calvert County. After a hearing on August 14, 2014, the circuit court issued its opinion on September, 2, 2014, upholding the Board’s decision to deny the Sizemores a new permit and declining to re-open their 2009 opinion. The Sizemores noticed the instant appeal on September, 29, 2014. 8 STANDARD OF REVIEW When an appellate court reviews a decision of an administrative agency, that court must look past the circuit court’s decision to review the agency’s decision.

Halid v. City of Gaithersburg, 180 Md.App. 238, 248 , 949 A.2d 85 (2008) (citing Anderson v. General Cas. Ins. Co., 402 Md. 236, 244 , 935 A.2d 746 (2007)). This Court must primarily “determine whether the agency’s decision is in accordance with the law or whether it is arbitrary, illegal, and capricious.” Md. Dept. of the Env’t v. Ives, 136 Md.App. 581, 585 , 766 A.2d 657 (2001) (quoting Gigeous v. Eastern Correctional Institution, 132 Md.App. 487, 494 , 752 A.2d 1238 (2000)). “In other words, ‘[w]e apply a limited standard of review and will not disturb an administrative decision on appeal if substantial evidence supports factual findings and no error of law exists.’ ” Long Green Valley Ass’n v. Prigel Family Creamery, 206 Md.App. 264, 274 , 47 A.3d 1087 (2012) (quoting Tabassi v. Carroll County ⁶⁴⁸ Dep’t of Soc.

Servs., 182 Md.App. 80, 86 , 957 A.2d 620 (2008) (citation omitted)). DISCUSSION I. Vested Rights A. Establishing a Vested Right In Prince George’s County, Maryland v. Sunrise Development Ltd. Partnership, the Court of Appeals held that rights to continue construction after a change in the zoning law vest when (1) the work done is recognizable by a “reasonable member of the public,” and (2) construction commenced pursuant to a building permit for a use then permitted under the zoning law. 330 Md. 297 , 314, 623 A.2d 1296 (1993). Stated another way, vested rights are acquired when (1) there is actual physical commencement of some “significant and visible construction,” (2) the construction was commenced in “good faith,” with the intention to complete the construction, and (3) the construction was commenced “pursuant to a validly issued building permit.” Town of Sykesville v. West Shore Communications, Inc., 110 Md.App. 300, 305 , 677 A.2d 102 (1996). Once acquired, a vested right in the permit protects the permit holder from changes to the zoning ordinance that would otherwise disallow the use being constructed.

See id. at 328 , 677 A.2d 102 (stating that once an owner obtains a vested right, their “right to complete and use th[e] structure cannot be affected by any subsequent change of the applicable building or zoning regulations.” (quoting Prince George’s Cnty. v. Equitable Trust Co., 44 Md.App. 272, 278 , 408 A.2d 737 (1979))). In the present matter, the Sizemores had a valid building permit when they began construction in October 2003. Per inspection reports included in the record, the footings of the restaurant were completed in October 15, 2003, before the zoning ordinance changed in February 2004. The record on appeal is unclear as to the extent of any additional construe ⁶⁴⁹ tion completed by February 2004; however, the August 29, 2014, Findings and Order of the circuit court relates that, by February 2004, the building’s foundation had been laid.

The operative determination, however, is whether or not a “reasonable member of the public” could recognize that work was done. Sunrise Dev’p Ltd., 330 Md. at 314, 623 A.2d 1296 . Here the record is clear that neighbors knew of the construction and, in fact, appealed the initial zoning permit in 2001, and in 2009, testified before the Board about interim construction activities. The parties do not dispute or even discuss whether the Sizemores possessed “good faith” in commencing construction on the Beef & Reef, and there is no evidence in the record to suggest that the construction was begun with the intent to leave the building incomplete.

The correspondence contained in the record proves the Town permitted—actually encouraged—the Sizemores to complete construction of the restaurant after 2004. The Board presumed that the Town took these measures because the Sizemores had a vested right in their zoning permit. Therefore, and because there is not sufficient evidence in the record to demonstrate otherwise, we also presume that the Sizemores had a vested right to continue construction of their restaurant under the 2003 zoning permit after their property was downzoned in 2004. 9 ⁶⁵⁰ B. Abandonment of Vested Rights The Sizemores argue that they did not abandon their vested right to construct a restaurant on their property. They maintain that vested rights in a zoning permit should be treated like rights under a nonconforming use permit, and that the abandonment standard for nonconforming use—in the absence of a statute—requires a finding of intent by the party to abandon the property right. 10 The Sizemores contend that the Board did not find that the Sizemores intended to abandon their vested right and that the failure to comply with Town Code § 290-27(E)(2) alone does not support a finding of the intent to abandon.

Appellees disagree and challenge the proposition that nonconforming use precepts should provide the criteria for abandonment of vested rights. Appellees argue that, if the Size-mores had acquired a vested right in continuing construction of the restaurant, it was a “right to proceed under the zoning permit in accordance with the terms of the Town’s Zoning Ordinance.” Because the Sizemores failed to comply with § 290-27(E)(2) of the Town Code by failing to substantially complete construction or satisfactorily proceed for the two years prior to 2009, Appellees argue that the permit and any vested rights that may have existed were properly revoked by the Board’s 2009 decision. ⁶⁵¹ We can find no case in Maryland that addresses whether and how a vested right to continue construction following a downzoning, pursuant to a valid zoning or building permit, may be abandoned. We do find utility in the analogy to nonconforming uses—unfortunately, not to the Sizemores’ advantage. Maryland courts have long held that nonconforming uses can be abandoned through a finding of (1) “an intention to abandon or relinquish”; and (2) “some overt act, or some failure to act, which carries the implication that the owner neither claims nor retains any interest in the subject-matter of the abandonment.” Landay v. Board of Zoning Appeals, 173 Md. 460, 469-70 , 196 A. 293 (1938) (citing 1 C.J.S. Abandonment, 8).

Alternatively, where there is a statute that establishes how a nonconforming use may be abandoned, the element of intent of the possessor of the nonconforming use is ehminated as an element of consideration, and the statute prevails. Canada’s Tavern, Inc. v. Town of Glen Echo, 260 Md. 206, 210-11 , 271 A.2d 664 (1970) (citations omitted). Other jurisdictions have drawn from their similar nonconforming use abandonment standards and held that a vested right to continue construction can be abandoned. For example, in New York, vested rights to complete the construction of a structure are obtained where (1) substantial construction has been undertaken, and (2) substantial expenditures are made prior to the effective date of the ordinance.

Putnam Armonk, Inc. v. Town of Southeast, 52 A.D.2d 10, 14 , 382 N.Y.S.2d 538 (N.Y.App.Div.1976). The Supreme Court, Appellate Division of New York has treated such a vested right as equivalent to a “right to a nonconforming use,” which -will not be disturbed where enforcement would cause “serious loss” to the owner. Id. at 15 , 382 N.Y.S.2d 538 . In Putnam Armonk, Inc., the New York court concluded that one of the ways such a vested right could be lost is by abandonment and stated: [Abandonment ... depends upon the concurrence of two factors, namely an intention to abandon and some overt act, or some failure to act, carrying the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment (see City of Binghamton v. ⁶⁵² Gartell, 275 App.Div. 457 , 460, 90 N.Y.S.2d 556 , 559 [ (1949) ]; Ann. 18 A.L.R.2d 725 , s.4, pp. 730-731).

Id.; see also R.C. Enterprises v. Town of Patterson, 42 A.D.3d 542, 544 , 840 N.Y.S.2d 116 (N.Y.App.Div.2007) (finding that the petitioner did not have vested rights to develop, and stating, “In any event, the petitioner abandoned its plan to develop Parcel 2 as demonstrated by its failure to act over a period of decades.”); Schoonmaker Homes—John Steinberg, Inc. v. Village of Maybrook, 178 A.D.2d 722, 725-26 , 576 N.Y.S.2d 954 (N.Y.App.Div.1991) (evaluating the petitioner’s vested rights to construct its garden apartment units in accordance with a prior zoning ordinance, and stating, “[l]astly, an owner who has acquired vested rights may be divested of such rights where there is abandonment, recoupment or an overriding benefit to the public to be derived from the enforcement of the amended zoning ordinance.”); 202 Developers, Inc. v. Town of Haverstraw, 175 A.D.2d 473, 474 , 572 N.Y.S.2d 517 (N.Y.App.Div.1991) (finding that the [developer] abandoned its vested rights, and concluding that the zoning ordinance was “not unconstitutional as applied to plaintiffs property.”). Oregon courts have also treated vested rights to develop property and nonconforming uses similarly when addressing abandonment, even where vested rights to construction under prior zoning law are granted by statute. See Fountain Village Dev. Co. v. Multnomah County, 176 Or.App. 213 , 31 P.3d 458, 462 (2001).

The court in Fountain Village Development Co. stated: Nothing in Oregon’s case law or statutes precludes subjecting vested rights to develop property to the same limitations that apply to nonconforming uses generally—and, indeed, as addressed below, not to do so would yield incongruous results.... Just as the regulation of existing nonconforming uses is a matter within a county’s authorized land use purview, so too is the regulation of vested rights to develop—which are, in effect, inchoate nonconforming uses. Id. Accordingly, the Oregon court held that a vested right to develop property or an unfinished use property right was not ⁶⁵³ immune to discontinuance or abandonment under the regulations controlling nonconforming uses.

Id. at 463. We agree with our sister states that a vested right to continue construction under an existing zoning or building permit is sufficiently analogous to a nonconforming use to warrant similar treatment. Indeed, the policy arguments that support allowing a nonconforming use to be abandoned apply with equal force to vested rights to continue construction where there has been a zoning change. In Trip Associates, Inc. v. Mayor & City Council of Baltimore, the Court of Appeals stated that “[a] valid and lawful nonconforming use is established if a property owner can demonstrate that, before and at the time of the adoption of a new zoning ordinance, the property was being used in a then-lawful manner for a use that, by later legislation, became non-permitted.” 392 Md. 563, 573 , 898 A.2d 449 (2006) (citing Chayt v. Board of Zoning Appeals of Baltimore City, 177 Md. 426, 434 , 9 A.2d 747 (1939)).

In that case, the Court of Appeals reiterated that “ ‘[t]he earnest aim and ultimate purpose of zoning was and is to reduce nonconformance to conformance as speedily as possible with due regard to the legitimate interests of all concerned.’ ” Id. at 574 , 898 A.2d 449 (quoting Grant v. Mayor and City Council of Baltimore, 212 Md. 301, 307 , 129 A.2d 363 (1957)). The courts of Maryland have recognized that a property owner may “obtain a vested right in an existing zoning use that will be protected against a subsequent change in a zoning ordinance prohibiting that use.” Sunrise Dev., Ltd., 330 Md. at 307, 623 A.2d 1296 (quoting O'Donnell v. Bassler, 289 Md. 501, 508 , 425 A.2d 1003 (1981) (citations omitted)). A vested right to continue construction under a zoning permit presupposes a change in zoning and, thus, renders the permitted use analogous to a nonconforming use under the new zoning (or as the Court of Appeals of Oregon characterized it, an