Town of Sykesville v. West Shore Communications, Inc.

MOYLAN, Judge. This appeal requires us to examine in some depth the law of vested rights in the context of zoning. For a right to proceed with construction under existing zoning to vest, three conditions must be satisfied: 1) there must be the actual physical commencement of some significant and visible construction; 2) the commencement must be undertaken in good faith, to wit, with the intention to continue with the construction and to carry it through to completion; and 3) the commencement of construction must be pursuant to a validly issued building permit. The Town of Sykesville (“the Town”), the County Commissioners of Carroll County, and Kathleen Blanco-Losada (“Blanco-Losada”) have appealed the affirmance of two decisions of the Carroll County Board of Zoning Appeals (B.Z.A.) by the Circuit Court of Carroll County.

The decisions of the B.Z.A. concerned a two hundred (200) foot communications tower (“the Tower”) sought to be built by one of the appellees, West Shore Communications, Inc. (“West Shore”), near Hollenberry Road in Sykesville for the use of its fellow appellee, Cellular one. The first appeal to the B.Z.A. was filed by the ³⁰⁶ Town and by Blanco-Losada, a neighbor of West Shore’s property, protesting the approval of the Site Plan for the Tower by the Carroll County Planning Commission (“Planning Commission.”) That administrative appeal was heard by the B.Z.A. on October 26, 1994, at which time the Board orally denied the appeal. The B.Z.A. issued its written decision memorializing that denial of the appeal on November 22, 1994. The second administrative appeal to the B.Z.A. was filed by West Shore and its chief operating officer, the appellee Mark Sapperstein, seeking reversal of the decision of . the Carroll County Office of Inspections & Permits on October 31,1994 to issue a stop work order on the construction of the Tower and the concurrent revocation of the appellees’ building permit and zoning certificate.

Both of those actions were taken immediately after the Carroll County Commissioners had enacted an ordinance that had the arguable effect of invalidating West Shore’s Site Plan for the Tower. The B.Z.A. reversed those actions, of the Office of Inspection and Permits on the ground that West Shore had acquired vested rights in its zoning certificate by engaging in substantial construction of the Tower prior to the revocation of its permits. Both of those decisions of the B.Z.A. were appealed by the protestants of the project to the Circuit Court for Carroll County, which heard argument on the merits in a consolidated proceeding on April 21, 1995. The circuit court affirmed the B.Z.A.’s decision on the building permit revocation on the same substantive ground relied on by the B.Z.A., namely that West Shore had already acquired vested rights.

The circuit court did not address the arguments presented by the Town and Blanco-Losada with respect to their appeal of the ultimate Site Plan approval by the B.Z.A. There are in this case so many administrative actions by so many administrative agents and agencies, so many overlapping chronologies, and so many minor themes intertwined with the major themes that there is a real danger that the wheat will get lost in the chaff. As the appellants, especially, seek to replay every petty grievance that they feel they have ³⁰⁷ suffered over the long course of this litigation, there is the attendant danger that we will be lured into concerning ourselves with issues that are, in the present appellate posture of the case, none of our business or with issues that once may have been of grave concern to the parties but that no longer matter. Before we can begin to focus clearly on what must be decided, we must clear away a lot of debris. Let us first, however, set the factual picture.

The Factual Background In October, 1993, West Shore applied to the B.Z.A. for a conditional use permit and a building permit to construct the Tower. When the B.Z.A. conducted hearings regarding the request in January and February, 1994, the Town of Sykes-ville appeared in opposition to the request, as did neighboring property owners, who presented a petition with 600 to 700 signatures in opposition to the Tower. Nevertheless, the B.Z.A. approved the conditional use in a written decision dated March 31, 1994, subject to the requirement that West Shore obtain approval of its site development plan (“Site Plan”) for the Tower from the Planning Commission. Under then-existing law, the Planning Commission was authorized by Section 4.11 of the Carroll County Zoning Ordinance to approve site plans for free-standing towers.

That section of the zoning ordinance conferred on the Planning Commission the discretion to require “a reasonable fall area,” but it did not require the Planning Commission to do so. As a limitation on the exercise of that discretion, it provided that the “fall area may be as much as 100% of the tower height based upon reasonable safety considerations.” (Emphasis supplied). Implicitly, the Planning Commission did not even possess the discretion to require a fall area in excess of Í00% of the height of the Tower. In any event, this option was simply a discretionary one that the Planning Commission might impose.

In the face of the substantial opposition to this and other communications towers, the County Commissioners had draft ³⁰⁸ ed an ordinance on June 15, 1994, that would have, among other requirements, specifically mandated that such towers contain “a minimum setback of a distance equaling the height of the tower.” The new ordinance would have removed the discretion theretofore enjoyed by the Planning Commission to insist upon or to dispense "with a “fall area” based on 100% of the tower height. The draft ordinance would have applied to “any pending applications for which the Zoning Administrator has not issued a certificate” at the time of enactment of the ordinance. Until the enactment of that ordinance on October 31, 1994, however, such a “fall area” requirement was nothing more than a legislative possibility that might or might not ever come to pass. What we must not lose sight of is the fact that the merits of granting a conditional use for the erection of the Tower to West Shore were determined by the B.Z.A. on February 10, 1994, following lengthy hearings on January 27 and February 7.

The eleven-page opinion of the B.Z.A., granting the conditional use, was filed on March 31. That opinion made detailed and elaborate findings of fact, discussed all applicable law, and fully spelled out the reasoning behind the unanimous decision of the B.Z.A. That granting of the conditional use set in motion the routine administrative follow-up procedures, the first of which was to obtain the approval of the Site Plan by the Planning Commission. On August 16, 1994, the proposed West Shore Site Plan came before the Planning Commission for consideration. All five Planning Commissioners were present, including its chairman, Louis J. Pecoraro.

As a practice, the chairman would vote only in the event of a tie. The Planning Commission’s alternate member, David Duree, was also present and available to replace a member unable to act on a measure. The Planning Commission’s staff noted that the 200-foot fall radius surrounding the tower penetrated the land of two off-site property owners, one of whom was the appellant Blanco-Losada. The developers stated that they were attempting to get permission of entry should the Tower fall onto those properties.

The staff report recommended that ápproval of ³⁰⁹ the Site Plan be contingent on obtaining those permissions of entry. The appellee Sapperstein, West Shore’s chief operating officer, testified, however, that the off-site property owners were not cooperating in granting those approvals. He therefore requested that the Planning Commission, in its discretion, not impose a “fall area” requirement equal to 100% of the height of the proposed Tower. Ms. Blanco-Losada pointed out to the Planning Commission that such a 100% fall area requirement would be required according to the proposed legislation then under consideration by the County Commission.

The Planning Commission nevertheless moved for a vote on the motion that the Site Plan be approved, provided “[tjhat no building permit or zoning certificate be issued until the Bureau of Development Review has received all agencies’ approvals in writing and the site plan is finally approved.” That motion was approved by a vote of 2-1, thereby not imposing a requirement of a fall zone equal to 100% of the height of the Tower. Planning Commissioner Zeno Fisher abstained from the vote because of a perceived conflict of interest on his part. According to subsequent testimony before the B.Z.A. by alternate member Duree, prior practice would have allowed him to vote in place of a member with a conflict. Prior to the beginning of the session, however, the other members of the Commission had decided that Duree should not vote on any measures, presumably because all five voting members were present.

Duree previously had indicated his opposition to the Tower; thus, had he voted in place of Fisher, it might be surmised that the Planning Commission would have been deadlocked, two to two. The Commission chairman, moreover, testified before the B.Z.A. that he would have voted against the motion in the event of a tie. 1 When ³¹⁰ Duree subsequently moved for reconsideration of the Site Plan at the September and October, 1994 Planning Commission meetings, however, his motion died for a lack of a second, notwithstanding the entitlement of Mr. Pecoraro or the other dissenting member in the August vote to have provided such a second. Ms. Losada-Blanco and the Town of Sykesville appealed the August approval of this Site Plan to the B.Z.A. (the “Site Plan Appeal”).

The B.Z.A. heard a full day of oral arguments on the Site Plan Appeal on October 26. At the conclusion of those hearings, the Board members declined, at the,, end of a long and fatiguing day, to engage in public deliberation or debate with each other over their votes but summarily indicated that they were denying the appeal. The Board issued its written decision on the Site Plan Appeal on November 22. That denial by the B.Z.A. of the Site Plan Appeal was one of the actions appealed to the circuit court and now to us.

In the interim, the County Commissioners had on October 18, 1994 conducted a public hearing on the proposed new ordinance, the effect of which, if and when it passed, would have been-to invalidate the Site Plan for the Tower because of ³¹¹ its lack of a fall zone the radius of which would be equal to the height of the Tower. Without demeaning in the slightest the legitimate entitlement of each party to this appeal to “use the clock” to its maximum tactical advantage, at that point a race was on between the construction process and the legislative process. It was to the clear advantage of the appellees to “rev up” the construction process so as to get their shovels significantly into the ground before the likely enactment of the new ordinance could preclude them from doing so. By the same token, it was to the clear advantage of the appellants to “bog down” the construction process so that the likely new ordinance could intervene before any significant amount of dirt had been turned.

As we chart the progress of that race, attention focuses on the five-day period between Wednesday, October 26 and Monday, October 31, 1994. It was on Wednesday, October 26 that the B.Z.A. announced its oral decision to deny the appeal that had been brought to it by the protestants from the issuance by the Planning Commission of its approval of the Site Plan for the Tower. From the vantage point of the appellees, that was the moment when the road opened up for them to proceed to obtain a building permit and a zoning certificate and to commence construction. On Thursday, October 27, the day following the B.Z.A.’s oral denial of the Site Plan Appeal, the appellee Sapperstein met with the County Commissioners and urged them, if they passed the new ordinance, not to apply its terms to the building of the Tower, the processing of plans and necessary documentation for which was already afoot.

The appellees, however, were not content to let everything ride on whether the County Commissioners acceded to Sapperstein’s request in that regard. Knowing that the County Commissioners planned to meet publicly at 4 P.M. on Friday, October 28, and that the proposed new ordinance was on the agenda for that meeting, West Shore sprang into immediate action. At 3:45 P.M., fifteen minutes before the meeting of the Commission was to convene, West Shore procured its building permit and its zoning certificate from the County Zoning Office. The ³¹² appellee Sapperstein attended the 4 P.M. meeting of the County Commissioners, presenting his newly-obtained zoning certificate to them and' again urging that any changes caused by the proposed ordinance not apply to the building of the Tower.

For whatever reason, the County Commissioners did not take action on the proposed new ordinance on the afternoon of Friday, October 28. They deferred action at least until the following Monday morning. What that did, of course, was to give the appellees a golden window of opportunity to change the status quo over the course of the intervening weekend. Providing transportation via airplane from the Eastern Shore for a contractor and part of his crew so that work could begin, West Shore excavated the foundation for its tower over the weekend of October 29 and 30.

By Monday morning, significant excavation and stockpiling of materials was already underway. The County Commissioners were at the Hollenberry Road site on Monday morning. Apparently chagrined at the unanticipated extent of the change in the lay of the land and with several protesting, picketing neighborhood residents looking on, the Commissioners adopted the proposed law as Ordinance No. 122, making it immediately effective. The legislative forum where the vote was taken was right there on the ground.

While prior versions of these amendments to the zoning ordinance had only applied its provisions to projects that had yet obtained a zoning permit, the version passed on Hollenberry Road purported to make the new provisions applicable to any tower site which had not yet obtained a use and occupancy permit. Carroll County Code Official Ralph E. Green, who was poised on the scene as the County Commissioners took their vote on-site, immediately issued a “stop work order” to halt further construction of the Tower. ■ Green subsequently wrote a letter to West Shore, dated November 3, stating that the stop work order had been imposed due to the requirements of ³¹³ Ordinance No. 122 and that the previously issued building permit was, therefore, revoked. West Shore, in its turn, appealed those actions to the B.Z.A. On December 29, 1994, the B.Z.A. held a hearing on West Shore’s appeal. On February 8, 1995, the B.Z.A. issued its written decision upholding West Shore’s challenge.

The B.Z.A. found that West Shore had acquired vested rights in the zoning certificate by engaging in substantial construction of the Tower in good faith under a validly issued building permit prior to the actions of the County on October 31, 1994. The appellants filed a timely appeal of that decision (the “West Shore appeal”) and moved to have the circuit court consider it in a consolidated proceeding with the Site Plan Appeal. The circuit court affirmed both decisions of the B.Z.A. in a Memorandum Opinion and Order dated July 6, 1995. This appeal to us has followed.

The Issues Despite the tangled administrative background, the issues that are literally before us for decision are mercifully more limited. The appellants have actually consolidated three legitimate contentions into an omnibus contention. As they phrase it: DID THE CIRCUIT COURT ERR IN HOLDING THAT WEST SHORE HAD ACQUIRED VESTED RIGHTS? Thus phrased, the omnibus contention is not literally accurate.

It was not, of course, for the circuit court to hold anything on the ultimate merits of the vesting. The question, rather, is whether the circuit court properly affirmed the decision of the Carroll County Board of Zoning Appeals when it ruled that West Shore had acquired vested rights. The circuit court was called upon simply to exercise a more modest appellate monitoring of the administrative decision of the Board of Zoning Appeals. In that regard, we now look not at the decision of the circuit court but rather through the filter of the circuit court directly to the decision of the Board of Zoning Appeals ³¹⁴ itself, in precisely the same way that the circuit court looked at it.

As we examine that decision of the B.Z.A., in the second or “West Shore appeal,” as it ruled that West Shore’s interest in going forward with construction had vested, there are three aspects to that decision that call for analysis. With a modest reordering of them, we can use the three subcontentions of the appellants just as they framed them: 1) Did the circuit court err in its reliance on the commencement of substantial construction as the primary and pivotal factor in deciding that West Shore had acquired vested rights? 2) Did the circuit court err in its legal conclusion that good faith reliance is not required as an element or a condition in establishing vested rights? 3) Did the circuit court err in its legal conclusion that the building permit was validly issued? The appellants appealed to the circuit court in this case two separate decisions of the Board of Zoning Appeals: the resolutions by the B.Z.A. of 1) the earlier Site Plan Appeal and 2) the subsequent West Shore appeal. In the circuit court, Judge Luke K. Burns, Jr. affirmed both of those decisions of the B.Z.A. The appeal to us from that affirmance by Judge Burns could have placed before us the merits of both of those administrative actions by the B.Z.A. In the last analysis, however, we now need only concern ourselves directly with the second of those decisions, the B.Z.A.’s resolution of the West Shore appeal.

That was the decision that dealt with the only ultimately critical issue in the case, that of whether West Shore’s right to go forward with construction had vested as of the morning of October 31, 1994. The propriety of the earlier decision by the B.Z.A., its resolution of the Site Plan Appeal, is of concern to us only indirectly and to the limited extent to which it may have had some impact on the vesting issue. Thus, we are not directly concerned with whether Mr. Fisher had an ethical problem when the Planning Commission ³¹⁵ voted to approve the Site Plan. We have no idea what his purported problem was and, therefore, have no idea whether his perceived problem was really a problem at all.

It does not matter, however, because the whole issue is of no direct concern to us. Mercifully, we have no direct concern with the Byzantine subtleties between abstaining and recusing oneself in response to an ethical dilemma, an exotic problem which, to our knowledge, has not been remotely alluded to in the Maryland case law. We are not directly concerned with the voting procedures employed by the Planning Commission. We are not directly concerned with the substance of its decision not to require a fall zone equal to 100% of the height of the Tower.

We are not directly concerned with how the B.Z.A. entertained and then disposed of the appeal from the Planning Commission. We are only concerned with any of these matters to the limited extent to which they affect the question of whether West Shore’s right to continue construction had vested prior to the enactment of the new county ordinance enacted on October 31,1994. The Vesting of Rights Generally The first reasonably full general statement we find about vested rights in the context of zoning law is that of Judge Barnes in Richmond Corp. v. Bd. of County Comm’rs, 254 Md. 244, 255-56 , 255 A.2d 398, 404 (1969): In Maryland it is established that in order to obtain a “vested right” in the existing zoning use which will be constitutionally protected against a subsequent change in the zoning ordinance prohibiting or limiting that use, the owner must (1) obtain a permit or occupancy certificate where required by the applicable ordinance and (2) must proceed under that permit or certificate to exercise it on the land involved so that the neighborhood may be advised that the land is being devoted to that use. The Richmond case, however, was not one involving a vested right to proceed with construction.

In that more particularized context, the description by Judge Liss in Prince ³¹⁶ George’s County v. Equitable Trust Co., 44 Md.App. 272, 278 , 408 A.2d 737, 741 (1979), is more to the point: That [vested rights] doctrine, which has a constitutional foundation, rests upon the legal theory that when a property owner obtains a lawful building permit, commences to build in good faith, and completes substantial construction on the property, his right to complete and use that structure cannot be affected by any subsequent change of the applicable building or zoning regulations. Ross v. Montgomery County, 252 Md. 497 , 250 A.2d 635 (1969) was a case in which the issue was whether construction had timely begun under a building permit that initially was validly issued but which arguably had lapsed prior to the commencement of the construction. In discussing vested rights in that context, Judge Finan, 252 Md. at 506 , 250 A.2d at 640 , quoted with approval from Rathkopf, The Law of Zoning and Planning: The Maryland cases appear to follow the prevailing principle of law governing such cases, a concise statement of which is to be found in Rathkopf, The Law of Zoning and Planning, (3d Ed.) Vol. 2, Ch. 57-6 § 3: “ * * * The majority rule, which can be synthesized from the multitudinous decisions in this area, may be stated as follows: A landowner will be held to have acquired a vested right to continue the construction of a building or structure and to initiate and continue a use despite a restriction contained in an ordinance where, prior to the effective date of the ordinance, in reliance upon a permit theretofore validly issued, he has, in good faith, made a substantial change of position in relation to the land, made substantial expenditures, or has incurred substantial obligations.* * *.” See also McQuillin, Municipal Corporations, (3d Ed.) Vol. 8, p. 272. From these statements, we can distill the principle that before a “landowner will be held to have acquired a vested ³¹⁷ right to continue the construction of a ... structure,” two, or possibly three, requirements must be satisfied: 1) There must have been a validly issued permit 1 authorizing the commencement of construction. 2) There must have been, as will be more fully discussed, some commencement of construction that is more than pro forma.

Whether the reference to proceeding “in good faith” establishes yet a third and independent requirement or is simply an adverbial modifier to commencing construction is problematic. Because the parties in this case have treated it as a distinct requirement, however, we shall also, for the sake of convenience, so treat it in this opinion. There is indeed some advantage to severing the adverb from the verb for analytic purposes. The commencement of construction is an objective phenomenon that can be observed on the ground, measured, and quantified.

The “good faith” element is mental and subjective. An overwhelming percentage of the case law that has considered this problem of vested rights has focused on the first requirement, the question of what is an adequate commencement of construction to trigger vesting. We shall begin our analysis with the consideration of that requirement. Vesting Requirement No. 1: The Commencement of Significant Construction The seminal opinion on what constitutes an adequate commencement of construction to trigger vesting is that of Judge Rodowsky in Prince George’s County v. Sunrise Dev.

Ltd. Partnership, 330 Md. 297 , 623 A.2d 1296 (1993). In that case, as in this, the developer obtained the approval of its site plan—on September 28, 1989. In that case, as in this, the developer obtained a building permit (for at least part of the job)—on December 20. In that case, as in this, the developer had certain work performed at the construction site on the day the building permit was issued.

In that case, as in this, the county council was considering over a period of many months ³¹⁸ a general rezoning, under which the construction project in issue would not have been permitted. In that case, as in this, the county council subsequently imposed a restriction (the downzoning of the property) that would, but for vesting, have aborted the project—on May 1, 1990. In that case, as in this, a county official issued an immediate stop work order—on May 4. In that case, as in this, the developer petitioned the board of appeals to set aside the stop work order.

In that case, by way of contrast with this, the board of appeals declined to set aside the stop work order. In that case, as in this, the ultimate issue was whether the developer’s right to continue construction had vested prior to the legislative change in the zoning requirements. The only vesting requirement that was at issue in the Sunrise case was that of whether significant construction had commenced to trigger the vesting. Judge Rodowsky’s synthesis of preexisting law bearing on this subject pointed out that the “Maryland law of vested rights is formed by the confluence of at least three streams of cases.” 330 Md. at 310 , 623 A.2d at 1302 .

He pointed out that although the three streams of cases might originally have been “analyzed as dealing with distinct problems,” they had by “cross citation by this Court over the years [been] merged ... into one body of authority.” Id. One of those lines of cases looked to the commencement of construction to determine “priority between mechanic’s lien claimant and a mortgagee.” Id. A single line of cases examined the commencement of construction in the context of a “statute that confers the right or privilege in issue [but] contains a time limit within which construction must begin.” 330 Md. at 311 , 623 A.2d at 1303 . The “third stream of cases involves the issue of vested rights per se.” 330 Md. at 312 , 623 A.2d at 1303 .

As Judge Rodowsky pointed out, the three lines or streams have now merged into a single body of law in terms of measuring the commencement of significant construction. A leading definition of commencement of construction, relied on by Sunrise, 330 Md. at 307 , 623 A.2d at 1301 , was that articulated by Judge Horney for the Court of Appeals in Rupp ³¹⁹ v. Earl H. Cline & Sons, 230 Md. 573, 578 , 188 A.2d 146, 149 (1963): These cases make it clear that before there can be the commencement of a building ... there must be (i) a manifest commencement of some work or labor on the ground which every one can readily see and recognize as the commencement of a building and (ii) the work done must have been begun with the intention and purpose then formed to continue the work until the completion of the building. If either of these elements is missing then there has been no “commencement of the building.” [Emphasis in original]. A second well recognized definition was that articulated by Judge Davidson in O’Donnell v. Bassler, 289 Md. 501, 508 , 425 A.2d 1003, 1007 (1981): Generally, in order to obtain a vested right in an existing zoning use that will be protected against a subsequent change in a zoning ordinance prohibiting that use, the owner must initially obtain a valid permit.

Additionally, in reliance upon the valid permit, the owner must make a substantial beginning in construction and in committing the land to the permitted use before the change in the zoning ordinance has occurred. [Citations omitted]. The Sunrise opinion, 330 Md. at 313 , 623 A.2d at 1304 , also relied on the characterization of the principle enunciated by Judge Barnes in Rockville Fuel v. Gaithersburg, 266 Md. 117, 127 , 291 A.2d 672 (1972): Such a “vested right” could only result when a lawful permit was obtained and the owner, in good faith, has proceeded with such construction under it as will advise the public that the owner has made a substantial beginning to construct the building and commit the use of the land to the permission granted. From the analysis of all of the authorities, Sunrise distilled its own statement of the critical criterion as to when construction is significant enough to trigger vesting: ³²⁰ If the public could have seen that construction had started before the zoning change, the public can appreciate that the new law is not being violated. But, if construction, recognizable by the public as such, had not commenced before the change of law, later construction for a use that is no longer permitted is subject to the current zoning, and is in violation of it, so that the public will expect the new law to be enforced.

Paraphrasing a portion of the opinion of the circuit court in this case, we hold that, in order for rights to be vested before a change in the law, the work done must be recognizable, on inspection of the property by a reasonable member of the public, as the commencement of construction of a building for a use permitted under the then current zoning. 330 Md. at 314 , 623 A.2d at 1304 . In the Sunrise case itself, it was held that the minimal construction undertaken there was not enough to create a vested right that could stand against the subsequent legislative downzoning. In Sunrise, a budding permit was issued on December 20, 1989. On that same day, a cement “footing” was poured.

Two days later, some snow fencing was erected. At that point, all construction-related activity stopped. Nothing further had been done as of May 1, 1990, when the county council downzoned the property. The Court of Appeals, 330 Md. at 314 , 623 A.2d at 1304-05 , described the very minimal and inadequate nature of the construction: Here, the pouring of a single 2’ by 2’ footing in the center of a nearly ten acre wooded site is the only construction to which Sunrise can point for its vested rights argument.

The evidence is that building inspectors, who knew that the footing had been poured and who were on the property looking for the footing, could not see where it was. They were able to locate it only by use of the site plan. A member of the public is not required to be equipped with the column footing version of the site plan to observe if this construction had started. From the standpoint of a member of the general public who is either viewing the property from its boundaries or is consensually on the property, the ³²¹ footing is not so clearly the commencement of construction as to render the Board’s finding to the contrary arbitrary, capricious or without substantial evidence on the entire record.

By contrast with the situation in Sunrise, the construction that had been completed in this case by the morning of October 31, 1994 was no mere “token” construction but was extensive. It was, moreover, readily apparent and visible to any interested neighbors or other observers. Before rendering its ruling that West Shore’s right to continue with construction had vested prior to the enactment of the new ordinance on the morning of October 31, the Board of Zoning Appeals made extensive findings of fact with respect to both the extent of the construction and its visibility: By the time the ordinance was adopted, the site had been graded; an excavation for the tower base had been dug; and two layers of rebar steel had been installed. The first layer sat on bricks on the ground; the second layer was suspended from a wooden frame.

The Board finds that the status of the project is fairly described in the field notes made by the County Building Inspector, Jim G. Brown, contained in Protestants’ Exhibit 2, which read as follows: “3/Status of job: A 26’ x 26’ excavation approx. 4’ deep with two mats of # 7 rebar on 12” centers wire tied has been installed. A system of wood girders made out of triple 2 x 12’s span across the excavation to suspend' the top rebar mat. The lower rebar mat is setting on top of support brick. At this time no concrete has been placed.

See attached photo’s. 10-31-94 Jim G. Brown.” The work is depicted in exhibits introduced through West Shore (Exhibits 13-27). Anchor bolts had been brought to the site but not yet placed. The work, particularly the wooden frame superimposed over the steel, was visible from the closest road, Hollenberry Road, approximately 95’ from the tower site. All the exhibits depict the wooden timbers rising up above the ³²² ground, causing the construction site to'be clearly visible for a considerable distance.

In the context in which the work was being performed, the work clearly indicated that a tower was being erected. The testimony was that the tower proposal was well known in the community. It was hotly resisted by some residents and by the Town of Sykesville. As a matter of fact, at the very time the erection was occurring on Monday morning, there was a group of protesters on Hollenberry Road protesting the erection of the tower.

It seems to the Board that there could be no better proof that the erection of the tower was known in the neighborhood than that the erection was being protested by certain members of the public. In short, the fact that work was underway for the erection of the tower was known to the surrounding community because the construction was clearly visible. The appellants offered no contradictory evidence on the subject of the physical construction or its visibility and no ■significant countervailing argument. The extensive construction here bore no resemblance to the mere “token” involved in Sunrise, and this case, therefore, is obviously not controlled by the result reached there.

Judge Burns, in his Memorandum Opinion, recited in detail the specific fact findings of the B.Z.A. In that regard, he concluded that “all of these facts were found by the B.Z.A. and the Court further finds that they are supported by the record and are fairly debatable.” We hold that he was correct in so finding. Vesting Requirement No. 2: The Construction Shall Have Commenced in “Good Faith” For vesting purposes, it is not enough that substantial and visible construction shall have physically commenced. It is also required that there shall have been “good faith” commencement. In examining the quality of “good faith” as an autonomous phenomenon of its own, we are essentially writing on a clean slate.

For analytic purposes, we need to ³²³ isolate the mental element that attends the physical commencement of construction. We then have to see how the presence or absence of that required mental element has been pivotal in various cases in several of the doctrinal tributaries that have come together to form present-day “vested rights” law. To be more precise, of course, what we are being called upon to examine, as a psychic phenomenon, is actually “bad faith.” That is the thing that the party charging it must prove; good faith, on the other hand, need be nothing more than the absence of proof of bad faith. What then, in this context, is meant by bad faith?

Like successive apparitions before Ebenezer Scrooge, three possibilities loom. Bad faith may manifest itself as the false start, sometimes having the effect of leading the observer into believing that the construction game is actually afoot when it is not. The essence of the bad faith, however, is the deliberate false start itself and not the effect that it may have on the observer. That is the most likely manifestation and the one that seems to be implicit in the skimpy case law we have on the subject.

Bad faith, on the other hand, might theoretically manifest itself as the hyperactive opportunism of an entrepreneur driven, like Casca, to “seize the current as it serves.” That is the “carpe diem” vision of bad faith strongly urged on us by the appellants. Bad faith might finally take on a more Freudian or guilt-ridden shape, whereby West Shore should, according to the appellants at least, be haunted periodically in the sleepless mid-watches of the night by the restless ghost of Zeno Fisher’s ethical dilemma as the roll is called at the Planning Commission. That is the sub-theme of bad faith being urged on us by the appellants. It behooves us to confront these apparitions one by one.

A. A Deliberately False Start Is Bad Faith The notion of a “good faith commencement of construction” self-evidently has two elements: 1) the physical fact of the construction that has actually begun and 2) the mental element involving the purpose or motive of such construction. In Prince George’s County v. Sunrise, supra, Judge Rodow ³²⁴ sky explained how our present law on this aspect of vesting has been “formed by the confluence of at least three streams of cases.” 330 Md. at 310 , 623 A.2d at 1302 . “The earliest of the line of cases involved priority between a mechanic’s lien claimant and a mortgagee.” Id. In tracing that stream of cases back to the wellspring, we soon discover the venerable lineage of the bifurcated nature of the “good faith commencement of construction.” Kelly v. Rosenstock, 45 Md. 389 (1876), seems to have been the first case where the two elements came together in a combined analysis. In Kelly , the Court of Appeals traced its first articulation of the physical element to Brooks v. Lester, 36 Md. 65, 70 (1872), in which the Court explained that “the commencement of the building” means “some of the work and labor on the ground, the effects of which are apparent, easily seen by everybody, such as beginning to dig the foundation, or work of like description, which everyone can readily see and recognize as the commencement of a building.” The Court of Appeals in Kelly then looked to its earlier decision of Jean v. Wilson, 38 Md. 288 (1873) as its first articulation of the mental element.

In Jean v. Wilson, adequate physical work had been done to satisfy that aspect of the commencement of construction requirement. Notwithstanding that fact, the Court of Appeals found that the physical work did not constitute the commencement of the building because of the absence of the mental element. The Court reasoned, 38 Md. at 296 -97: In the Pennsylvania cases, above cited, it appears that the work, which was to be the commencement of the buildings, had been done with the intention and purpose, then formed, to continue the work to the completion of the buildings. Where work is done with the design to go on and construct a building, there can be no question that it must be regarded as the commencement of the building ...

In the case before us the proof shows that the work done was not done with any design or purpose of constructing a building at that time, but was done solely with the intention and for the purpose of grading the lot and removing the water there ³²⁵ from, so that it might be in a condition to lease or to build upon at some future time. That this was the intention and purpose of the owners is conclusively shown by the fact, that when this object was accomplished, work was immediately stopped and the workmen paid off and discharged. How can it be held, with either reason or justice, that a building has been commenced in the face of the uncontradicted proof in the case, that the owners had no intention to erect any building, but merely to grade and remove the water from the lot, and when it is apparent that, when these objects were attained, nothing more was ever done upon the premises until the spring of 1870. [Emphasis in original]. In Rupp v. Earl H. Cline & Sons, 230 Md. 573 , 188 A.2d 146 (1963), the issue before the Court of Appeals was the same as the issue now before us: “The principal question is what constitutes the commencement of a building ...” 230 Md. at 577 , 188 A.2d at 148 .

The Rupp Court traced the development of the controlling law from Brooks v. Lester and Jean v. Wilson through Kelly v. Rosenstock. It then gave its own distillation of that law: These cases make it clear that before there can be the commencement of a building ... there must be (i) a manifest commencement of some work or labor on the ground which every one can readily see and recognize as the commence of a building and (ii) the work done must have been begun with the intention and purpose then formed to continue the work until the completion of the building. If either of these elements is missing then there has been no “commencement of the building ...” [Emphasis in original]. 230 Md. at 578 , 188 A.2d at 149 . See also Frank J. Klein & Sons v. Laudeman, 270 Md. 152, 157 , 311 A.2d 780 (1973); Prince George’s County v. Sunrise Dev.

Ltd. Partnership, 330 Md. 297 , 623 A.2d 1296 (1993). Another of the originally distinct streams of cases entering into what Sunrise referred to as the ultimate “confluence” consists of those cases “in which the statute that confers the ³²⁶ right or privilege in issue contains a time limit within which construction must begin.” Prince George’s County v. Sunrise, 330 Md. at 311 , 623 A.2d 1296 . That stream of cases also focused on the good faith commencement of construction and, in the words of Sunrise, 330 Md. at 310 , 623 A.2d 1296 , “cross citation by this Court over the years has merged them into one body of authority.” . From that stream of case law emerges the contrast between Ross v. Montgomery County, 252 Md. 497 , 250 A.2d 635 (1969) and Pemberton v. Montgomery County, 275 Md. 363 , 340 A.2d 240 (1975), which illustrates vividly the kind of false start that distinguishes a mere commencement of construction from a good faith commencement of construction.

The application of the physical part of the two-pronged analysis of “good faith commencement” yielded the same result in Ross and Pemberton . In Ross, • however, the commencement was not a “good faith” commencement, whereas in Pemberton it was. Ross provides a classic example of the type of “false start” that negates good faith in the commencement of construction. The critical date, on which a six-month building permit was due to expire, was April 28, 1967.

Anticipating that deadline, the developers on April 11 called a county building inspector to the job site and, with him present, “they poured one footing for the building. Appellants contend that this foundation work was done in order to make it clear that construction had begun in order to retain their building permit which would have been six months old on April 28,1967.” 252 Md. at 500 , 250 A.2d 635 . On April 12, however, “the day following ... the pouring of the initial footing, appellants suspended construction of the foundation and filled in the excavation. Nothing more has ever been done under the building permit.” Id.

After an evidentiary hearing, the trial judge concluded that the ostensible commencement of work had not been in good faith. Judge Finan, for the Court of Appeals, characterized the trial judge’s finding: ³²⁷ The lower court was of the opinion that the appellants were not financially in a position to begin construction under the building permit within six months after its issuance and that they did not in good faith commence work under the permit. The work done on April 11, 1967, was held to be merely “window dressing” for the benefit of the County’s building inspector ... 252 Md. at 501 , 250 A.2d at 637 (Emphasis supplied). In affirming that decision by the trial judge, the Court of Appeals explicitly used the phrase “good faith”: We think the chancellor’s finding that the appellants did not, in good faith, begin actual construction under the building permit within a period of six months after its issuance was correct and should, not be disturbed. 252 Md. at 502 , 250 A.2d at 638 (Emphasis supplied).

In Pemberton , it was even later in the process that construction commenced. The developer, Exxon, had until August 20, 1969 to commence work. It did not commence work until August 19, one day before the deadline. The protestants in that case charged that such an eleventh-hour effort “was not a bona fide attempt to begin construction.” 275 Md. at 367 , 340 A.2d at 243 .

Judge Digges’ opinion for the Court of Appeals pointed out that the physical or objective aspect of the two-pronged commencement test yielded the same affirmative result in Pemberton that it had in Ross . The critical difference in the two results turned, rather, on the second prong of the test, inquiring into whether the construction had been undertaken in good faith: The instant case is comparable to the Ross case, but only to the limited extent that the same type of work was performed, i.e., excavation and construction of footings; after that similarity the two cases part company, especially in regard to the all important continuation-of-effort element set out in Rupp. 275 Md. at 371 , 340 A.2d at 245 (Emphasis supplied). In Pemberton , the County Board of Appeals had found, as a matter of fact, that Exxon had commenced its construction in ³²⁸ good faith. The essence of good faith in such a context was that the construction not have been a false start or what Ross characterized as “window dressing,” but that it have been a bona fide intention of continuing with the construction thus begun and carrying through until the project was completed.

The “intention to go forward” is the critical element. In reciting the evidence that supported the finding of the Board of Appeals, Judge Digges’ opinion stressed the existence of that purpose as the pivotal element of good faith: Indeed, it cannot earnestly be argued that Exxon was without funds to proceed with work on the station, and the evidence, furthermore, clearly shows that Exxon consistently worked on the project and finished it on 9 June 1971, at a total cost in excess of $230,000. The Board specifically found that: “the subsequent satisfactory completion of the project indicated that it [ (Exxon) ] did indeed intend to go forward with construction which it began on August 19, 1969.” 275 Md. at 371-72 , 340 A.2d at 245 (Emphasis supplied). In affirming the decision of the Board, the Court of Appeals held that, it was “based on evidence that is at least ‘fairly debatable.’ ” The Court of Appeals specifically made reference to the subsequent completion of the project as strong evidence of an intent to complete the project.

It referred to “evidence of a clear manifestation of the consistent intent by Exxon to continue (which intent is concretized in that the construction was followed through to completion).” 275 Md. at 372 , 340 A.2d at 245 . Indeed, as Judge Liss in Prince George’s County v. Equitable Trust Co., supra, sets out the three necessary conditions for invoking successfully the vested rights doctrine, it is clear that the qualifying adverbial phrase “in good faith” modifies the verbal phrase “commences to build” and nothing else. We shall quote from that statement of the doctrine verbatim, but lay it out schematically in the interest of better clarity: ³²⁹ That doctrine ... rests upon the legal theory that when a property owner [1] obtains a lawful building permit, [2] commences to build in good faith, and [B] completes substantial construction on the property, his right to complete and use that structure canned be affected by any subsequent change of the applicable building or zoning regulations. 44 Md.App. at 278 , 408 A.2d at 741 (Emphasis supplied). What the appellants have done in argument and in brief, at times with perplexing (if not, indeed, subconscious) subtlety, is gently to nudge the modifier “good faith” or “in good faith” away from the second requirement, dealing with the commencement of construction, and to attach it to the first requirement, dealing with the obtaining of a valid permit.

If that little linguistic misdirection is overlooked at the threshold, it is all too easy to go charging off down irrelevant tangents. As the appellants’ efforts here ominously illustrate, if once the phrase “good faith” is cut loose from its moorings in the case law that gave it birth and allowed to float free, the phrase can glibly be used to refer to anything that might not pass muster in Sunday School class. In the best of all worlds, of course, everything should be done in good faith—from getting up in the morning to going to bed at night—but that is not the concern of the vested rights doctrine. As a legal term of art concerned with the vesting of rights, “good faith” has a more austerely limited meaning.

One of our primary missions in this opinion is to pin down the modifier. We hold that in this context the adjectival phrases “good faith” and “in good faith” modify the noun phrase “commencement of construction” and nothing else. They are not concerned with the morals, the ethics, or even the legality of the entire development process but focus only with whether the act of commencing construction is undertaken with the intention of continuing and finishing the job. ³³⁰ In coming up somehow with the notion of “good faith reliance” rather than the more apposite “good faith commencement of construction,” it appears that the appellants, advertently or inadvertently, have borrowed phraseology from the related but clearly distinct law of zoning estoppel. See Offen v. County Council, 96 Md.App. 526 , 625 A.2d 424 (1993), rev’d on other grounds, County Council v. Offen, 334 Md. 499 , 639 A.2d 1070 (1994); Belay v. Sycamore, 105 Md.App. 701 , 661 A.2d 182 (1995), cert. granted, sub nom., Sycamore Realty v. People’s Counsel, 341 Md. 30 , 668 A.2d 422 (1995).

The differences between vested-rights law and zoning-estoppel law are significant. With respect to those differences, Relay v. Sycamore, 105 Md.App. at 724-25 , 661 A.2d 182 , quoted with approval David G. Heeter, Zoning Estoppel: Application of the Principles of Equitable Estoppel and Vested Rights to Zoning Disputes, 1971 Urban L. Ann. 63, 64-66: The defense of estoppel is derived from equity, but the defense of vested rights reflects principles of common and constitutional law. Similarly, their elements are different. Estoppel focuses upon whether it would be inequitable to allow the government to repudiate its prior conduct; vested rights upon whether the owner acquired real property rights which cannot be taken away by governmental regulation.

The use of the borrowed phrase is inappropriate for two reasons. In the first place, the conduct that it is used to measure with respect to zoning estoppel is not an element in the very different world of vested rights. In the second place, the phrase comes from general zoning estoppel law and not from the more “narrow version of zoning estoppel” recognized in Maryland. In Relay v. Sycamore, 105 Md.App. at 727 , 661 A.2d 182 , Judge Davis commented on the difference between the general law and the Maryland version thereof when it comes to the subject of “good faith reliance”: Under the black-letter definition of zoning estoppel, the