Swarthmore Co. v. Kaestner

Barnes, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Baltimore County (Haile, J.), filed December 17, 1969, enjoining the appellants, The Swarthmore Company (Swarthmore) and Cities Service Oil Company (Citgo), from using a one and one-half acre lot with improvements located on the northwest corner of Goucher Boulevard and Putty Hill Road in the Ninth Election District of Baltimore County (Subject Property) as an automotive service station. The principal questions raised by the appellants, Swarthmore and Citgo, are whether the lower court (1) erred in rejecting the appellants’ Motion for Summary Judgment and deciding instead that the undisputed facts revealed that the County Council of Baltimore County (County Council) had no right to place the subject property in a Commercial, Supporting Area (C.S.A.) District, and (2) erred in its findings in favor of the appellees, Albert C. Kaestner, Jr., et al. (Kaest ⁵²⁰ ner), plaintiffs below, after a trial on issues raised by the pleadings of Swarthmore and Citgo with regard to laches, estoppel, and the standing of the plaintiffs. We are of the opinion that the lower court was in error in refusing to grant the appellants’ Motion for Summary Judgment and we need not reach the second question in regard to the correctness of the lower court’s findings upon the issues at the trial.

The subject property, as we have observed, consists of one and one-half acres of land, located on the northwest corner of Goucher Boulevard and Putty Hill Road in the Ninth Election District of Baltimore County. Directly across Goucher Boulevard, on the northeast corner of that intersection, is the Eudowood Plaza Shopping Center premises. In January 1956, at the time of the adoption of the comprehensive zoning map for part of the Ninth Election District of Baltimore County, substantially all of the then proposed Eudowood Plaza premises, including what is now the bed of Goucher Boulevard between the Eudowood Plaza and the subject property, was classified as a Business Local (B-L) zone. The subject property itself was left in a Residential (R-10) zone.

In 1967 Swarthmore sought both to have the subject property reclassified to a B-L zone and to obtain a special exception for its use as a filling station. However, at the hearing before the County Board of Zoning Appeals on September 6, 1967, Swarthmore withdrew its application for the special exception since the County Council had enacted Bill No. 40. Bill No. 40 provided that an automotive-service station be “permitted as of right” on a location which is zoned B-L and which is located in an overlying C.S.A. District. Clearly, Swarthmore had decided that it would pursue a C.S.A. designation for the subject property once it obtained the B-L zoning.

While Swarthmore was seeking to have the subject property zoned B-L, the Baltimore County Planning Board was preparing maps of proposed zoning districts, as authorized by Bill No. 40, for submission to the County ⁵²¹ Council. On July 11, 1967, the Planning Board held a public hearing on its published preliminary maps; and on September 13, 1967, the Planning Board approved comprehensive zoning District Maps for submission to the County Council. Both the preliminary and finally approved District Maps by the Planning Board showed the subject property as zoned residential and not districted. The District Maps approved by the Planning Board were submitted to the County Council in October 1967; and on November 8,1967, the County Council held its own public hearing on these maps.

At that time, the subject property still appeared on the maps as residential and not districted, and there was no discussion of the subject property at the November public hearing. On April 1, 1968, Bill No. 23, an ordinance to implement the districting maps recommended by the Planning Board, was introduced in the County Council. Only two days after Bill No. 23 had been introduced in the County Council, the County Board of Zoning Appeals, by order dated April 3, 1968, granted the reclassification of the subject property to a B-L zone as petitioned by Swarthmore. Among the protestants to the petition for rezoning before the Board of Zoning Appeals were all of the plaintiffs below in the present case (Albert C. Kaestner, Jr., et ah), and the same parties filed a timely appeal from the April 3 order of the Board of Zoning Appeals to the Circuit Court for Baltimore County on May 2, 1968.

It was while the appeal of the subject property’s B-L zoning was being taken to the circuit court that the actions of the County Council giving rise to the dispute now before this Court took place. Following the introduction of Bill No. 23 on April 1 and the order of the Board of Zoning Appeals on April 3, the County Council placed the subject property in a C.S.A. District on the maps under consideration. This change from the “undistricted” recommendation of the Planning Board, as originally incorporated in Bill No. 23, was apparently based upon the action of the Board of Zoning Appeals in rezoning the ⁵²² subject property to B-L, a field examination of the subject property by the County Councilman for the District, and the Commercial, Community Core (C.C.C.) District in which Eudowood Plaza was located on the recommended maps of the Planning Board. Thus amended, Bill No. 23 was passed by the unanimous vote of the County Council on May 9, 1968, and was approved and enacted on May 15,1968.

After Bill.No. 23 had been enacted and had taken effect, the Circuit Court for Baltimore County, on December 9, 1968, affirmed the April 3 order of the Board of Zoning Appeals which rezoned the subject property B-L. From the circuit court decision there was no further appeal entered to this Court. The B-L zoning and the C.S.A. districting of the subject property having been apparently determined with finality, Swarthmore and Citgo then formally proposed to locate an automotive-service station on the property, “permitted as of right” by Bill No. 40. Their construction proposal was approved by the appropriate county officials and a permit was duly issued on April 18, 1969. It was after this permit was issued and construction of the station had commenced, that Albert C. Kaestner, Jr., et al., filed their Bill of Complaint for an Injunction in the case now before this Court.

The Bill, filed May 28, 1969, in the Circuit Court for Baltimore County, alleged in essence (1) that the County Council’s designation of the subject property as a C.S.A. District “under the Zoning Regulations, as amended by Bill No. 40, was premature, inasmuch as plaintiffs’ appeal [from the' Board of Zoning Appeals’ order of April 3, 1968, reclassifying the subject property B-L] was pending in the Circuit Court for Baltimore County, and there was no final reclassification to B-L of the subject property to permit its designation as a C.S.A. District,” and (2) that the districting of the subject property as a C.S.A. District violates “Section 259.2 E of the Zoning Regulations in that the subject property is not contiguous to a C.C.C. District.” The specific relief prayed for in the Bill ⁵²³ was that Swarthmore and Citgo be enjoined from constructing the station on the subject property and that their construction permits be rescinded by the County. In October 1969 Swarthmore and Citgo each filed a Motion for Summary Judgment, pursuant to Maryland Rule 610, on the ground that there was no genuine dispute between the parties in regard to any material fact and that each of the defendants was entitled to judgment in its favor as a matter of law. After considering the argument on the motion, pleadings, admissions of fact, deposition, and affidavits, the lower court filed its decision denying the motion on November 6, 1969. In that decision, Judge Haile determined that there was no dispute in regard to the facts on the issue of whether that portion of the District Map (enacted by Bill No. 23) applicable to the subject property was invalid.

The lower court concluded that the C.S.A. District designation was premature and invalid because, in its opinion, “when the C.S.A. District designation was superimposed on the filling station site, the B-L zoning of the site did not have the force and effect of law, because of the presence of the appeal.” The lower court’s opinion was the result of its construction of Section 22-27 of the Baltimore County Code, 1968, which reads: “Any reclassification when granted by the county board of appeals shall, in the absence of an appeal therefrom, have the force and effect of law.” The lower court was also of the opinion that Bill No. 23 did not have “the notice and hearings required by the Charter”, although the question was not specifically raised by the pleadings and was not one of the issues raised upon the consideration of the Motion for Summary Judgment. As we have already indicated, it is our opinion that the lower court (1) misconstrued Section 22-27 so far as it applies to the present case, and (2) if the issue was properly raised at all, it was in error in concluding that Bill ⁵²⁴ No. 23 did not have the required notice and hearings. It should have granted the Motion for Summary Judgment filed by the appellants in the lower court. We do not find it necessary to decide the correctness of the lower court’s findings upon the issues at the trial below.

(1) As George E. Gavrelis, Director of Planning in the Office of Planning and Zoning of Baltimore County pointed out in his testimony in the lower court, Bill No. 40, permitting the super-imposition of a new district upon existing Euclidian districts already established, for automotive service stations on land zoned for commercial or manufacturing use, is unique, being the first legislation of this character in the United States. It rather combines the concept of the “floating zone” with the more familiar type of “Euclidian” zoning but, instead of having the determination of compliance with the established strict criteria for approval of a “floating zone” application for an individual parcel of land by an administrative body, the legislative body, itself, by adopting a comprehensive zoning map, determines the compatibility of automotive service stations on existing Euclidian zones for commercial and industrial uses by super-imposing the C.S.A. zone upon those existing Euclidian zones. It is, as it were, a “floating zone” which is anchored to legislatively determined suitable areas by the imposition of a special type of Euclidian zone upon the existing Euclidian zones. The concept has the desirable characteristics of being a “comprehensive rezoning” as it relates to one particular use necessary but special in character.

It is most certainly an ingenious development in the law of zoning and planning, but, in our opinion, is well within the zoning and planning powers granted to Baltimore County as well as within the spirit and purposes of that grant of powers. Indeed, the general validity of Bill No. 40 is not challenged in the present case. The appellees contend that its imposition upon the subject property by Bill No. 23, adopted pursuant to Bill No. 40, in which the subject property ⁵²⁵ appears as one of the properties on the 210 zoning maps approved in Bill No. 23, is illegal and improper or that Bill No. 23 is, for other reasons, invalid. The language of Section 22-27, although not representing a sophisticated expression of the legislative intent, nevertheless does, when carefully analyzed with reference to its legislative history, disclose that intent.

The language, in our opinion, means that when a reclassification is granted by the county board of appeals it has the force and effect of law, but that this status of the board’s action is subject to the ultimate determination by the courts on appeal. The parenthetical clause “in the absence of an appeal therefrom” was intended to indicate that the board’s action was subject to the ultimate result on appeal ; it was not intended to provide that pending an appeal, the board’s action was completely ineffective. The lower court has, in effect, recast the language in the negative, i.e., that if an appeal is taken the action of the board shall not have any effect pending such an appeal. This, however, is not what Section 22-27 states and is not what it was intended to provide.

As we have already stated, the parenthetical clause was intended to indicate that the status of the board’s action which has the force and effect of law is subject to the ultimate action of the courts on appeal, not that during the period of the appeal, the board’s action is suspended and ineffective. If, however, it be thought that the language of Section 22-27 was ambiguous, a consideration of the established maxims of construction in such a situation, leads to the same construction we have already indicated is the correct construction. First of all, in the event of ambiguity, we are to construe legislation so that it will be valid and within the grant of powers to the legislative body enacting the legislation. As Judge Horney, for the Court, in Groh v. County Commissioners of Washington County, 245 Md. 441, 445-446 , 226 A. 2d 264, 267 (1967) stated, quoting with approval from McQuillin, “Municipal Corporations” (3rdEd.), §20:41: ⁵²⁶ “ ‘Ordinances are to be construed in the light of, and in harmony with, applicable provisions of charter, state law, constitution and public policy.

A particular ordinance is to be construed with reference to the grant of power, in charter or statute, to enact it. Moreover, an ordinance enacted pursuant to a statute should be construed by reading it with the statute, and if the language of both are in substance alike the presumption is indulged that the ordinance was designed to follow the statute.’ ” In Section 602 of the Baltimore County Charter, entitled Powers and functions of the county board of appeals, in subsection (a) it is provided: “In all cases, the order of the county board of