Smith v. Miller

Singi,uy, J., delivered the opinion of the Court. When the Harford County land use map and zoning ordinance (the Ordinance) became effective on 5 December 1957, the appellee, Charles D. Miller, was operating a sawmill on land owned by Blue Ridge Flooring Company on Hughes Road in the county’s fifth election district. As a consequence, the sawmill site was zoned M-2 (general industrial district). In 1966, Blue Ridge Flooring determined to expand its operations, and gave Miller notice to move.

Miller purchased a 33 acre tract of farmland on Smith Road, about 1% miles from the Blue Ridge Flooring site and on 14 March 1966 filed with the county’s zoning inspector applications to erect a 30 ft. by 88 ft. building on the tract which he had purchased to house the sawmill and other machinery, to build a maintenance shop, to convert the first floor of an existing farm house into office space and to use the second floor as a watchman’s apartment. The applications were disapproved on 14 March 1966, because the tract was zoned A-l (agricultural district). On 16 March 1966 Miller requested that the applications be referred to the county’s Board of Appeals (the Board) for consideration as applications for a conditional use under Ordinance § 7.025. 1 None of the appellants were present at the hearing on 29 April 1966, but 3 days later, the appellant Smith wrote to the Board stating that he and the appellant Clare opposed the applications. On 9 May 1966, the Board directed that a permit for the sawmill and accessory uses be issued to Miller under § 7.025, conditioning the granting of the permit, however, upon an undertaking by Miller that: (1) none of his operations be closer than 300 ft. to Smith Road; (2) a separation of 200 ft. be observed “from any lot in an ‘R’ District or a lot occupied by a dwelling, school, church, etc.”; and (3) “the operation remain substantially in accord with the plans and proposal presented to the Board * * ³⁹² On 8 June 1966, Smith and his wife, Clare and 3 other property owners and their wives, residents of the area, appealed from the Board’s decision to the Circuit Court for Harford County.

At the hearing, the appellees stipulated that one or more of the appellants had the standing required to maintain the appeal. The lower court considered the case on the record made before the Board and on 7 March 1967, affirmed the action of the Board. The present appeal was taken from this order. The appellees urge us to affirm the lower court (and the Board’s issuance of the permit) on the grounds that the action of the Board was neither arbitrary nor capricious, citing City of Baltimore v. Sapero, 230 Md. 291 , 186 A. 2d 884 (1962) ; Bosley v. Hospital, 246 Md. 197 , 227 A. 2d 746 (1967) and that the question before the Board was fairly debatable, citing Agneslane, Inc. v. Lucas, 247 Md. 612 , 233 A. 2d 757 (1967).

We take a very different view, however. Kenyon v. Board, 235 Md. 388 , 201 A. 2d 838 (1964) was an appeal from the same Board and involved the interpretation of the same ordinance. In Kenyon , the property owner attempted to extend a non-conforming use by seeking a permit to add 62% of floor area to his place of business. The Ordinance, § 20.462 authorizes the Board to permit an extension of such use not in excess of 25% of existing floor area.

Faced with this limitation, the Board authorized the extension on the theory that it was a variance allowed by Ordinance § 20.47. We reversed the lower court and the Board, holding that the Board had acted beyond its power, and that the Board’s action, in a legal sense, was arbitrary and capricious. In the case before us, the Board chose to follow the Kenyon route. The Ordinance, § 15.012, includes among uses permitted in an M-2 district, a “Sawmill, the manufacture of excelsior, wood fiber or sawdust products,” subject, however, to the proviso that it must not be located less than 300 feet from an R District (residential) or less than 100 feet from any other district except an M-l District (light industrial).

The structure of the Ordinance is the familiar one: the M-2 District, the least restrictive of the ten districts classified by the Act, is the first ³⁹³ district in which a sawmill is a permitted use. 2 A sawmill is specifically prohibited in an industrial park district, § 15.611, and prohibited by implication in an M-l District (light industrial), where uses first permitted in M-2 are excluded by § 14.0113. In an effort to help Mr. Miller relocate his mill, the Board found what it regarded as a solution. § 7.02 of the Ordinance contains a long list of conditional uses, which may be permitted by the Board in an agricultural district by granting a special exception under §§ 4.11 and 20.451 upon a finding by the Board that the use meets specified conditions. Typical of the conditional uses possible in an A-l District, are sand and gravel pits; contagious disease hospitals; tourist camps, inns, swimming pools, fishing resorts; gun clubs; water tanks; penal institutions ; airports; commercial hog and fur farms; garbage disposal; and, in § 7.025, the “Processing of dairy products and farm products, riding stables, kennels * * The