Board of County Com'rs of Calvert County v. Pritchard

• Decision Date: 01 September 1987
• Docket Number: No. 114,114
• Citation: 540 A.2d 1139,312 Md. 522
• Parties: BOARD OF COUNTY COMMISSIONERS OF CALVERT COUNTY, Md. et al. v. Denzil PRITCHARD et ux. ,
• Court: Maryland Court of Appeals

Page 522

312 Md. 522

540 A.2d 1139

BOARD OF COUNTY COMMISSIONERS OF CALVERT COUNTY, Md. et al. v. Denzil PRITCHARD et ux.

No. 114, Sept. Term, 1987.

Court of Appeals of Maryland.

May 9, 1988.

Mary M. Krug and Allen S. Handen (Handen and Singerman, on brief), Prince Frederick, for appellant.

Gary A. Goldstein (Charles E. Haller, on brief), Baltimore, for appellee.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

RODOWSKY, Judge.

In this case owners whose land was downzoned before they acquired any vested rights in the prior zoning classification argue that the downzoning violates procedural due process. The argument succeeded in the Court of Special Appeals but, as hereinafter explained, does not succeed here.

Respondents, Denzil and Elizabeth Pritchard (the Pritchards), own a tract of 21.569 acres in the northeast quadrant of the intersection of Maryland Route 4 and Brickhouse Road in the Third District of Calvert County (the Site). On May 8, 1984, a comprehensive rezoning of Calvert County was adopted, effective May 9, 1984, at which time new countywide zoning maps and the text of a new Calvert County Zoning Ordinance (Ord.) became legally operative. See Ord. §§ 1-2, 2-1 and 7-8. Under the 1984 rezoning the Site was classified rural commercial, a district "created to provide a zoning classification for existing commercial enterprises located outside Town Centers and Marine Commercial Districts at the time of the 1984 Comprehensive Rezoning." Ord. § 3-1.05. ¹ Commercial retail uses are permitted uses in the rural commercial zone. Ord. § 3-2.03.

On May 8, 1984, the Site was undeveloped. ² With respect to undeveloped property zoned rural commercial on the date of adoption of the comprehensive rezoning Ord. § 7-4.02 B provides:

Undeveloped Rural Commercial properties outside Town Centers as identified on the Zoning Maps will be allowed to retain commercial zoning for a period of two years from the adoption of this Ordinance. At that time, those properties with an approved site plan will have an additional two years to complete substantial construction of their buildings. Those properties without an approved site plan shall be automatically zoned consistent with the zoning in the area after the first two year period. Those properties with approved site plans which have not completed substantial construction of their principal buildings within the additional two year period referred to above, shall be automatically zoned consistent with the zoning in the area. Only those portions of properties which can demonstrate substantial construction of their principal buildings within the additional two year period shall retain commercial zoning. Any residue shall be zoned consistent with the zoning in the area.

On August 2, 1985, a contract purchaser from the Pritchards, Compson Development Company (Compson), caused to be submitted to the Calvert County Planning Commission (the Commission) a preliminary subdivision plan which proposed a shopping center on the Site. The Commission granted preliminary approval of the plan at its regular meeting on October 16, 1985, subject to conditions. One of the conditions permitted access only to Brickhouse Road. The Commission's secretary notified Compson of the preliminary approval and of the specific conditions by letter dated November 1, 1985. There was no appeal from this action of the Commission. ³

On May 7, 1986, when two years from the effective date of the 1984 ordinance had nearly expired, the Pritchards, acting in their own names, submitted for review plans under which the Site would be utilized as a shopping center. The plans were identical to those for the shopping center previously proposed by Compson. At a regular meeting held on May 21, 1986, the Commission unanimously disapproved those plans because the property "was rezoned from Rural Commercial to Rural on 5/8/86" so that the site plan was "not consistent with the proper zoning." ⁴

The Pritchards appealed to the circuit court which affirmed the Commission. That court reasoned that once the two-year period under Ord. § 7-4.02 B expired the property was no longer in a district which permitted the shopping center use proposed on the site plan.

The Pritchards appealed to the Court of Special Appeals which reversed in an unreported opinion. The court recognized that the intent of § 7-4.02 B was to adopt a "use it or lose it" rationale but thought that the procedural steps were unclear, saying:

The language used in § 7-4.02 B is ambiguous in that it does not specifically address or define the effect on the automatic rezoning provision of the timely submission of a site plan application; it does not answer the question whether the automatic rezoning will occur immediately upon the expiration of the period notwithstanding that prior to that time an application for site plan approval had been filed.

The court considered Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) to be a relevant precedent. That decision held that due process required a hearing on a claim under an Illinois antidiscrimination statute which provided a statutory entitlement to certain remedies. In the case at hand the Court of Special Appeals, although conceding "that no property rights exist in zoning absent vested rights," said

that such rights may be bestowed upon a property owner in the zoning ordinance itself and, once bestowed, constitutionally may not be removed without appropriate procedural safeguards. This is precisely the situation sub judice. By virtue of § 7-4.02 B, [the Pritchards] were given an entitlement, for a two-year grace period, in the rural-commercial zoning of their property. That entitlement could be continued and, in fact, was guaranteed upon their obtaining of an approved site plan. That entitlement may not be extinguished without adequate and appropriate safeguards. [Citations omitted.]

The court then concluded that the entitlement could not automatically be terminated without a hearing, particularly when the Pritchards faced the "impossible" burden of being required "to speculate" when an application must be filed so as to allow sufficient time for the Commission to act.

We granted Calvert County's petition for certiorari. ⁵

I

The Pritchards present here, as they did in the intermediate appellate court, a ground of decision which does not require deciding whether their due process rights were violated by the Commission. They submit that, as a matter of statutory construction, one complies with § 7-4.02 B by submitting a site plan in "approvable" form within two years from May 8, 1984, without regard to when the plan is approved. The text simply does not permit that interpretation. After providing that undeveloped rural commercial properties outside town centers "will be allowed to retain commercial zoning for a period of two years from" May 8, 1984, the ordinance reads that "[a]t that time, those properties with an approved site plan will have an additional two years to complete substantial construction of their buildings." The phrase, "[a]t that time," refers to the time when the two years expire. A site plan which meets the condition is one which is "approved" at that time. The last day of the two-year period is the last day by which the condition must be satisfied, not the beginning of a period of site plan review during which rural commercial zoning continues.

In addition, the argument that "approvable" should be, in effect, substituted for "approved" is of no ultimate benefit to the Pritchards unless "approvable" is taken to mean "approvable" in some form into which the site plan might evolve from the form in which it was submitted on the day before the end of the two-year period. This is because the site plan actually submitted by the Pritchards was identical to a plan previously submitted by Compson which the Commission would not unconditionally approve. It is not the purpose of the two-year provision in the ordinance to mark the beginning of a period of negotiation over the features of the project.

When § 7-4.02 B is viewed in the light of prior Maryland downzoning cases, it is clear that the two-year provision is a matter of legislative grace. "[I]n order to obtain a vested zoning status, there must be construction on the ground[.]" Washington Suburban Sanitary Comm'n v. TKU Assocs., 281 Md. 1, 23, 376 A.2d 505, 516 (1977). Thus, we have sustained zoning amendments which prevented or substantially altered a project when, prior to construction but in anticipation of the continuation of the prior zoning, an owner: expended $1,500,000 and dedicated $800,000 worth of land in planning a 900,340 square foot retail and office complex, id.; expended nearly $260,000 on plans for a refinery and obtained a building permit, Steuart Petroleum Co. v. Board of County Comm'rs, 276 Md. 435, 347 A.2d 854 (1975); expended $1 million in planning an apartment development and obtained a building permit for 420 units, County Council for Montgomery Co. v. District Land Corp., 274 Md. 691, 337 A.2d 712 (1975); and obtained from a board of appeals, pursuant to an adjudication by this Court, a special exception for a concrete batching plant followed by preliminary approval of a site plan, Rockville Fuel & Feed Co. v. City of Gaithersburg, 266 Md. 117, 291 A.2d 672 (1972). See also Richmond Corp. v. Board of County Comm'rs, 254 Md. 244, 255 A.2d 398 (1969); Marathon Bldrs., Inc. v. Montgomery County Planning Bd. of the Maryland-National Capital Park & Planning Comm'n, 246 Md. 187, 227 A.2d 755 (1967); Bogley v. Barber, 194 Md. 632, 72 A.2d 17 (1950); Mayor & City Council of Baltimore v. Shapiro, 187 Md. 623, 51 A.2d 273 (1947). Under the principle established by these cases the County Commissioners of Calvert County could have placed the Site in a...