von Lusch v. Board of Com'rs of Queen Anne's County, 207

Decision Date28 March 1973
Docket NumberNo. 207,207
Citation268 Md. 445,302 A.2d 4
PartiesRichard von LUSCH v. BOARD OF COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY et al.
CourtMaryland Court of Appeals

James F. Vance, Camp Springs, for appellant.

Franklin Goldstein, Baltimore, and James E. Thompson, Jr., Centreville (Vachel A. Downes, Jr., Centreville, on the brief), for appellees.

Argued before MURPHY, C. J., and BARNES, SINGLEY, DIGGES and LEVINE, JJ.

BARNES, Judge.

This appeal involves the validity of a text amendment to the Zoning Ordinance of Queen Anne's County on June 22, 1971, adding to Article 17 new Sections 17.14, 17.141 and 17.142 in regard to airports, airfields and landing strips in Queen Anne's County. The Circuit Court for Queen Anne's County (Turner, J.), in a written opinion filed July 28, 1972, declared the action of the County Commissioners of Queen Anne's County (County Commissioners) in adopting the amendment valid and denied the petition of appeal of Richard von Lusch, who perfected a timely appeal to us from Judge Turner's order.

The Bay Bridge Airport, owned by Kent Island Limited Partnership, is located on the south side of United States Route 50/301 approximately one-half mile east of the Chesapeake Bay Bridge near Stevensville, Queen Anne's County. It was zoned R-4 in the Comprehensive Zoning Ordinance adopted by the County Commissioners in April 1964. Later, in September 1966, the property was rezoned to the M-1 (Industrial Park) zone. The permitted uses in this zone, by Article 15 of the zoning Ordinance, were light manufacturing uses as well as the usual agricultural uses, but did not include an airport use. Article 15.30 permitted accessory buildings and uses 'customarily incident to any permitted use.' Section 15.502 provided as follows:

'No use shall be permitted to be established or maintained which by reason of its nature or manner of operation is or may become hazardous, objectionable, or offensive, by reason of explosion, fire, odor, dust, smoke, cinders, gas, fumes, noise, vibration, radiation, refuse matter, or water-carried waste.'

Article 19.4 of the Zoning Ordinance in regard to violations provided that the County Commissioners, their attorney, the Zoning Administrator 'or any adjacent or neighboring property owner who would be specifically damaged' by a violation in addition to other remedies provided by law 'may institute injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent, restrain, correct or abate' the unlawful act or use.

In approximately 1962, the appellant von Lusch purchased his home and business property-'Old Schoolhowse Antiques'-immediately north across Route 50/301 from the Bay Bridge Airport. His testimony in the hearing before the County Commissioners in connection with the proposed text amendment indicated that the noise and dangers from the operation of the airport concerned him greatly and caused him to have heart attacks, loss of hearing, severe nervousness, tension and other substantial damages. Other persons in the neighborhood of the airport indicated that they too had been substantially disturbed and endangered by the operation of the airport.

Mr. von Lusch in June of 1971 filed a bill of complaint in the Circuit Court for Queen Anne's County, in Equity, to enjoin the alleged illegal commercial airport operations of the Bay Bridge Airport; Kent Island Limited Partnership, the owner of Bay Bridge Airport, intervened in this suit as a party defendant. Before this suit was tried on its merits, however, the County Commissioners proceeded with a text amendment to the Zoning Ordinance, the passage of which rendered the equity suit moot. Mr. von Lusch filed his order for appeal and his petition for appeal to the circuit court in regular course to challenge the validity of the text amendment.

The text amendment was originally prepared by the Planning Commission of Queen Anne's County at the request of the County Commissioners on March 17, 1971, for a proposed amendment in regard to airports. The Planning Commission submitted its recommended amendments to the County Commissioners on May 18, 1971. The proposed amendments as prepared by the Planning Commission were as follows:

'17.14-Airfields

'In any district an airport, airfield, landing strip, seaplane base or any similarly designed area for the landing or taking off of aircraft, either as a principal use or accessory use, shall be a Conditional Use, and subject to approval of the Board of Appeals, provided that:

'(a) The area shall be sufficient to meet the Civil Aeronautics Administration requirements for the class of airport proposed.

'(b) No application shall be considered, unless it is accompanied by a plan, drawn to scale, showing the proposed locations of the airport; boundary lines; dimensions; names of owners of abutting properties; proposed layout of runways, landing strips or areas, taxi strips, aprons, roads, parking areas, hangars, buildings and other structures and facilities; a sound-contour map; the location and height of all buildings, structures, trees and overhead wires falling within the airport approach zones and less than five hundred (500) feet distant from the boundary line of the airport; other pertinent data such as topography and grading plan, drainage, water and sewage, etc.

'17.141

'Every existing airport, airfield, landing strip, seaplane base or any similarly designed area for the landing and taking off of aircraft as of the date of enactment of this amendment shall be deemed a non-conforming use as of that date and shall not be extended or enlarged except by complying with the procedure of Section 17.14.

'The enactment of Sections 17.14, 17.141 and this section shall supersede all other regulations regarding airfields, airports, landing strips and the like set forth in this Ordinance, whether as an accessory or principal use.' (Emphasis supplied)

The County Commissioners gave notice of a hearing by publishing the entire text of the amendments recommended by the Planning Commission, as above set forth, preceded by the following:

'NOTICE OF HEARING

'The County Commissioners of Queen Anne's County hereby give notice that a public hearing will be held in its office in the Court House, Centreville, Maryland on Tuesday, June 15, 1971 at 1:30 o'clock P.M. upon the recommendation of the Queen Anne's County Planning Commission to amend the text of the Comprehensive Zoning Ordinance for Queen Anne's County, as follows:'.

This notice of hearing was published for three successive weeks prior to June 15, 1971, in both The Bay Times, a weekly newspaper published at Stevensville, and the Record-Observer, a weekly newspaper published in Centreville.

The hearing on June 15 was quite well attended. Testimony was taken from 21 property owners and interested parties in addition to statements of counsel for the County Commissioners, for the Planning Commission and for Kent Island Limited Partnership, the owner of the Bay Bridge Airport.

On June 22, 1971, the County Commissioners rendered a decision in the case The decision, after reviewing the prior proceedings and testimony taken at the June 15 hearing, stated:

'The County Commissioners find that the testimony of those opposed to airports and in particular the Bay Bridge Airport is not impressive.

'The County Commissioners find as a fact that the question of airports was not given adequate consideration at the time of the adoption of the Comprehensive Zoning Ordinance in 1964. It is further evident that there is some confusion in the use of the terms airport, landing strip, etc. in the present Comprehensive Zoning Ordinance. The County Commissioners further find that the question of the location, size and other questions involving airports, landing strips, etc. is best left to the sound discretion of the Board of Appeals for consideration on a case by case basis. The County Commissioners further find that the proposed amendment with certain modifications as hereinafter more fully set forth is compatible with the comprehensive Plan for Queen Anne's County.

'For the reasons stated, it was moved by Mr. Ashley, seconded by Mr. Grollman, and unanimously resolved that the following amendment to the Comprehensive Zoning Ordinance for Queen Anne's County be adopted.

'BE IT ORDAINED, that Article 17 of the Comprehensive Zoning Ordinance be amended by adding new sections 17.14, 17.141 and 17.142 to read as follows:

'17.14-Airports

'In any district an airport, airfield, landing strip, seaplane base or any similarly designed area for the landing or taking off of aircraft, either as a principal use or accessory use, shall be a conditional use and subject to approval of the Board of Appeals, provided that:

'a. The area shall be sufficient to meet the Maryland State Aviation Commission and applicable Federal requirements for the class of airport proposed.

'b. No application for a commercial airport shall be considered, unless it is accompanied by a plan, drawn to scale, showing the proposed location of the airport, boundary lines, dimensions, names of owners of abutting properties, proposed layout of runways, landing strips or areas, taxi strips, aprons, roads, parking areas, hangars, buildings and other structures and facilities; the location and height of all buildings, structures, trees and overhead wires falling within the airport approach zones and less than five hundred (500) feet distant from the boundary line of the airport. Other pertinent data such as topograph and grading plan, drainage, water and sewage, etc. may be required if deemed necessary by the Board of Appeals.

'c. No application for a private, non-commercial, airport shall be considered unless it is accompanied by a plan showing the proposed location of the airport, boundary lines, dimensions, names of owners of abutting properties, proposed layout of runways, landing strips or areas, taxi strips, aprons, roads, parking areas, hangars, buildings and...

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10 cases
  • Von Lusch v. C & P TEL. CO.
    • United States
    • U.S. District Court — District of Maryland
    • 20 Septiembre 1978
    ...and by telephone calls to their offices, and a zoning challenge in the state courts. See Von Lusch v. Board of County Commissioners of Queen Anne's County, 268 Md. 445, 302 A.2d 4 (1973); Von Lusch v. Board of County Commissioners of Queen Anne's County, 24 Md.App. 383, 330 A.2d 738 (1975).......
  • von Lusch v. State
    • United States
    • Court of Special Appeals of Maryland
    • 15 Abril 1976
    ...We shall treat the motion as a motion for judgment of acquittal for purposes of this appeal. 3 See von Lusch v. Bd. of County Commissioners, 268 Md. 445, 302 A.2d 4 (1973) and von Lusch v. Bd. of County Commissioners, 24 Md.App. 383, 330 A.2d 738 (1975), cert. denied by Court of Appeals, Ma......
  • Edwards v. Allen, No. M2004-01944-COA-R3-CV (TN 11/28/2005)
    • United States
    • Tennessee Supreme Court
    • 28 Noviembre 2005
    ...in this case. There is a striking parallel between the holding of the Court of Appeals of Maryland in von Lusch v. Bd. of County Comm'rs of Queen Anne's County, 302 A.2d 4 (Md.1973) and the holding the Supreme Court of Tennessee in Westland West Cmty. Ass'n v. Knox County, 948 S.W.2d 281 Th......
  • von Lusch v. State
    • United States
    • Court of Special Appeals of Maryland
    • 9 Junio 1978
    ...zoning dispute which brought the appellant and Mr. Grollman to loggerheads is fully recounted in von Lusch v. Board of County Commissioners of Queen Anne's County, 268 Md. 445, 302 A.2d 4, and von Lusch v. Board of County Commissioners of Queen Anne's County, 24 Md.App. 383, 330 A.2d 738. T......
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