Skipjack Cove Marina, Inc. v. County Commissioners

Barnes, J., delivered the opinion of the Court. The appellant, Skipjack Cove Marina, Inc. (Skipjack or applicant) has appealed from an order of the Circuit Court for Cecil County (Rollins, J.) affirming an order of the Board of Zoning Appeals of Cecil County (the Board) declining to remove certain restrictions and conditions previously imposed by the Board upon Skipjack’s predecessors in title, James H. Parcher (president of Skipjack and a part, owner of Skipjack) and Jean Walton Parcher, his wife (the Parchers), pursuant to the granting of a special exception to operate a marina on a 24.66 acre tract of land on the north side of the Sassafras River in Fredericktown in the First Election District of Cecil County (the subject property), in a Shoreline Residential Recreational Zone. We have concluded that the trial court’s action was correct and will affirm its order. The Parchers purchased the subject property on August 30, 1963 and on October 30, 1963 made application to the Board to operate a marina and to locate the following improvements, among others: 1.

A “T” dock extending approximately 303 feet south from the shore, with a leg of the “T” extending westerly, parallel to the shoreline, for approximately 364 feet. 2. Refueling facilities. ⁴⁴³ 3. Storage and parking facilities. 4. Ramp and lift facilities.

All of the proposed improvements, as well as the location of the subj ect property and the neighboring properties were shown on applicant’s Exhibit #3 filed in the proceedings. The subject property is bounded on the north and west by the lands of the Kennett Company, Inc., on the north and east by the lands of Harry Rudnick & Sons, on the east and south by the lands of the Duffy’s Creek Marina and Robert Green, and the Sassafras River. The subject property was served by two rights-of-way, one of which was 50 feet wide across the Rudnick lands to Maryland Route 213. In the Eredericktown area and within a mile of the subject property there were five other marina-type facilities, all established prior to the Cecil County Zoning Ordinance.

Three of the five marina-type facilities, the Sassafras Boat Company, the Granary and Duffy’s Creek Marina are on the Cecil County side of the Sassafras River. Although, as indicated, the proposed marina of the Parchers abuts the Duffy’s Creek Marina property on the south, it is approximately 1500 feet distant from it as measured along the shore line, the two properties being separated by the nine acre Green property which is roughly triangular in shape with the long leg of the triangle fronting on the river. Applicant’s Exhibit #3, to which reference has already been made, showed various areas on it designated by letters. The important areas thus marked, for the purposes of this appeal were— “A”, the area on which the existing house (and owner’s residence) was located. “B”, a wooded area lying to the north of Area “A” and marked: “Wooded area reserved for owners residential use.” Although the areas have never been surveyed and precisely calculated in regard to acreage, it is estimated that the Areas “A” and “B”, together, contain approximately four acres. “M” is a triangular area north of Area “A” designated as “orchard and area for residential use,” there being a cottage already located in Area “M”.

This area lies between what was then the H. Dalton Wood property (later purchased by the ⁴⁴⁴ Kennett Company and Samuel duPont) on the northwest and the Rudnick property on the east. “N” is a wooded park area lying generally to the east of the cleared area for dry storage and parking, to the north of the Green and Duffy properties and to the south of the Rudnick property. It is estimated that Areas “M” and “N”, together, contain approximately ten acres. There was substantial evidence before the Board at the hearing on the Parcher application indicating' a need for additional marina facilities and the Board concluded that it was authorized under the Cecil County Zoning Ordinance to grant the Parchers a special exception to operate the type of marina for which application was made, subject, however, to the following rather unusual conditions, as conditions precedent to the granting of the special exception: 1. The Parchers would execute and record among the Land Records of Cecil County an option agreement for the benefit of the owners of the Green property, their heirs, successors and assigns, to enable them to utilize in common with the Parchers, at any time within the next 20 years, the 50 foot right-of-way to be constructed by the Parchers, for the purpose of the operation of a marina only, on the Green property (a) upon payment to the Parchers of one-half of the initial cost of the Parchers’ right-of-way, plus one-half of all maintenance thereon dating from the date of the acceptance of the option, and (b) such option must include an additional grant of a 50 foot strip from the right-of-way above mentioned to the Green property as shown on applicant’s Exhibit #3 in order to allow users of the Green property free and uninhibited ingress and egress to Maryland Route 213, the construction and maintenance of such additional right-of-way, however, to be borne entirely by the owners of the Green property; 1 and, ⁴⁴⁵ 2.

The forested areas indicated on applicant’s Exhibit #3 as “A”, “B”, “M” and “N” be preserved “as they now exist” except that Areas “A” and “B” may be utilized for appropriate residential areas by the owners and Area “N” to the north of the projected 50 foot right-of-way may be utilized as a park area, provided the trees thereon are allowed to remain and only the underbrush be cleared. The Kennett Company and John P. Green, trustee, filed an appeal from this decision of the Board, but the Parchers did not appeal. By agreement between the Kennett Company, Green, trustee, and the Parchers, the appeal was dismissed. It was conceded at the argument that an option agreement in accordance with Condition No. 1, supra, was executed by the Parchers and was duly recorded among the Land Records of Cecil County.

We now turn to the relevant provisions of the Zoning Ordinance of Cecil County in force at the time of the granting of the Parcher special exception, which, unfortunately, are not models of clarity. Section 5 of the Zoning Ordinance, Subsection 4, contains the provisions in regard to the Shoreline Recreational-Residential Zone. It provides in relevant part, as follows: “This zone contains recreational uses peculiarly suited to shorelines, as well as residential uses. The zone is meant to provide primarily for uses of recreational character, including some commercial recreation and seasonal dwellings.

Permanent dwellings are permitted as a secondary use. a. The following uses are permitted: (4) public, private, and commercial bathing beaches, bath houses, boat landings and wharves, marinas, fishing equipment and bait stores, and similar uses offering only goods and services commonly used for water-recreational purposes, except such structures and uses shall not be located nearer than one hundred (100) feet to any existing summer home, cabin or residence; b. The following uses are permitted as special ex ⁴⁴⁶ ceptions after approval by the Board of Appeals, which must determine the following conditions to be fulfilled: a) such commercial uses are grouped as much as possible in definite centers; b) existing development is protected from undue encroachment and harmful effects from such uses by such safeguards as the Board of Appeals may provide, * * *. c) a definite need for such uses in the location proposed is shown to exist. (5) business catering to marine activities such as commercial boat docks, boat service areas, marine equipment stores, boat storage and construction yards, bait and tackle shops, retail fish and shellfish sales; * * (Emphasis supplied.) Section 9, in regard to the powers and duties of the Board, provides, in part: “The Board of Appeals shall have the following powers and duties: 2.

Special Bxceptions: Conditions Governing Applications: Procedures — "To hear and decide only such special exceptions as the Board of Appeals is specifically authorized to pass on by the terms of this ordinance; to decide such questions as are involved in determining whether special exceptions should be granted and to grant special exceptions with such conditions and safeguards as are appropriate under this ordinance, or to deny special exceptions when not in harmony with the purpose and intent of this ordinance. * * * “In granting any special exception, the Board of Appeals may prescribe appropriate conditions and safeguards in conformity with this ordinance. Violation of such conditions and safeguards when made a part of the terms under which the special exception is granted, shall be deemed a violation of this ordinance and pun ⁴⁴⁷ ishable under Section 16 of this ordinance. * * *." (Emphasis supplied.) In Section 18, containing definitions, a special exception is defined as follows: “A special exception is a use that would not be appropriate generally or without restriction throughout the zone, but which, if controlled as to number, area, location, or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity, or general welfare. Such uses may be permitted in such zone as special exceptions, if specific provisions for such special exceptions is made in this zoning ordinance.” (Emphasis supplied.) It can readily be seen that in view of the provision of Section 5, Subsection 4. a. (4) which permits marinas and the provision of Subsection 4. b.

(5) requiring the granting of a special exception for businesses catering to marine activities such as commercial boat docks, boat service areas, marine equipment stores and boat storage, confusion may well arise in regard to an application for a use generally referred to as a “marina” but which contains the uses referred to in Subsection 4. b. (5). The Parchers raised the point in their application that the use for which application was made was a “marina” permitted under Subsection 4. a. (4), but the Board, after considering the matter, concluded that the application required a special exception under the language of Subsection 4. b.

(5), stating in its opinion, filed January 3, 1964: • “While the Board is not inclined, at this point, to comment upon what uses may be encompassed as a matter of right under 4, a, (4), suffice it to say that in the Board’s opinion the facts of the present case are such as to remove it completely from consideration thereunder. Consequently, the case is brought squarely within the provisions of Paragraph b, Subsection 4 of Section 5 governing special exceptions in Shoreline ⁴⁴⁸ Recreational Residential zone, and it will be considered under the provisions of this Section.” Subsequent to the granting of the special exception to the Parchers, subject to the conditions mentioned, the subject property was transferred to the appellant corporation, Skipjack, of which Mr. Parcher is president and a part owner, as above indicated. On July 7, 1967, Skipjack filed an application which would modify the conditions required by the Board to the granting of the special exception in 1964 so that Skipjack could be permitted to locate a swimming pool of the Olympic size, which would accommodate approximately 300 memberships, and club house in Area “B”, a putting green and tennis court in Area “N” and a storage space for cradles and other marina paraphernalia in Area “M”. Skipjack contended that certain changes had occurred since the granting of the special exception in 1964 which justified the modification of the original conditions and the granting of permission to erect and operate the new proposed improvements.

The Planning Commission for Cecil County approved the granting of Skipjack’s application. The Board, after hearing testimony and argument on the Skipjack application filed an opinion on September 19, 1967 denying the application. The Board found from the evidence that certain changes had occurred since the granting of the special exception in 1964 as follows: 1. A substantial revision of the applicant’s southeastern property line bordering the Green property. 2.

A revision of the applicant’s westerly property line. 3. A revision of access right-of-ways as called for in the Board’s original opinion and with no right-of-way through the duPont property. 4. The use of a previous residence on the adjoining property as a some-time office. The Board, however, was of the opinion that the Skipjack application should be denied, stating in its opinion: “The Board felt at the time of the granting of the initial special exception that these conditions were appropriate, and necessary, for the protection of the sur ⁴⁴⁹ rounding area and the community should the special exception be granted.

Without these conditions, the special exception would not have been granted, and the Board does not feel that the applicant has at this time submitted sufficient evidence to justify * * * a modification of the initial conditions.” The