Board of County Com'rs of Washington County v. H. Manny Holtz, Inc.

• Decision Date: 01 September 1985
• Docket Number: No. 450,450
• Citation: 65 Md.App. 574,501 A.2d 489
• Parties: BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY, Maryland v. H. MANNY HOLTZ, INC. ,
• Court: Court of Special Appeals of Maryland

Page 574

65 Md.App. 574

501 A.2d 489

BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY, Maryland v. H. MANNY HOLTZ, INC.

No. 450, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Dec. 13, 1985.

William McC. Schildt and David K. Poole, Jr., Hagerstown, for appellant.

John H. Urner (Urner, McGrory, Nairn, Barton & Schaefer on the brief), Hagerstown, for appellee.

Argued before WEANT, BISHOP and ROSALYN B. BELL, JJ.

ROSALYN B. BELL, Judge.

The Board of County Commissioners of Washington County rezoned a tract of land but conditioned the rezoning by limiting the uses that could be made of that land. The circuit court of that county ruled that the Board could not impose such limitations. We agree.

H. Manny Holtz, Inc., applied to the Board of County Commissioners to reclassify a tract of land from Residential-Urban to Business-Local. Holtz posited that a rezoning was appropriate, citing several business uses, which it characterized as non-conforming uses, and an increase in vehicular traffic in the area. The company requested the rezoning so that it could operate a convenience store on the property.

The Commissioners received evidence relating to changes in the neighborhood. Two owners of tracts located near the Holtz parcel opposed the rezoning. During the hearing, the Commissioners suggested the possibility of some form of conditional zoning limiting the permitted uses of the property. All five Commissioners voted to rezone on the basis of a change in the neighborhood. A three person majority of the five Commissioners rezoned the property as Business-Local and imposed conditions that limited the uses of the property to four of the eight uses authorized under the zoning ordinance, none of which would allow for a convenience store as Holtz desired. ¹ The remaining two Commissioners voted against the rezoning explaining that they would have approved the rezoning without the conditions. The record is silent as to whether any of the three Commissioners who voted to impose the conditions would have allowed a rezoning without conditions.

Holtz appealed to the Circuit Court for Washington County. The court found that the rezoning was proper, but that the conditions imposed were not because the Board had not provided an opportunity for interested parties to comment on the conditional use rezoning. Accordingly, the court affirmed the rezoning of the property to Business-Local but removed the conditions.

The Commissioners appealed to this Court. Board of County Comm'rs. v. H. Manny Holtz, Inc., 60 Md.App. 133, 481 A.2d 513 (1984). In this Court's opinion, we observed that the trial court did not rule upon the contention that the Board had no substantive authority to impose the limiting conditions. We ordered the case remanded and directed the court to rule on this "pivotal substantive issue and then reconsider its disposition of the case in light thereof." Id. at 147, 481 A.2d 513. We set the basis for this inquiry:

"Md.Code Ann. art. 66B, § 4.01(b) authorizes the Board, upon the rezoning of any land, to 'impose such additional restrictions, conditions, or limitations as may be deemed appropriate to preserve, improve, or protect the general character and design of the lands and improvements being zoned or rezoned, or of the surrounding or adjacent lands and improvements.' That authority is repeated in § 27.4 of the county zoning ordinance. It must, however, be read in conjunction with other sections of art. 66B, including § 4.02, which permits the Board to divide the county into distinct zoning districts and within such districts to 'regulate and restrict the erection, construction, reconstruction, alteration, repair or use of buildings, structures or land' but requires that '[a]ll such regulations shall be uniform for each class or kind of development throughout each district....'

"If § 4.01(b), properly construed, authorizes the Board, substantively, to impose the type of use restrictions set forth in its Resolution--i.e., to limit Holtz to only four of the [eight] categories of use permitted in the business, local zone--then there can be little question but that the court erred in excising those restrictions by judicial surgery. If authorized in the first instance, the question of whether and under what circumstances the restrictions should be imposed is a quasi-legislative matter for the Board, not the court, to determine. Having found only a procedural deficiency, the proper course would have been to remand the case so that the Board could conduct a new hearing on the need for and advisability of the particular restrictions and make a proper and documented decision with respect to them.

"On the other hand, if Holtz is correct in its assertion that the Board lacked the substantive authority to impose use restrictions as a condition to the reclassification--if § 4.01, properly construed, does not permit conditions of that type--the ultimate judgment of the court would be correct. Under that circumstance, given the Board's concession as to the change in the neighborhood, there would be nothing to remand."

Id. at 145-46, 481 A.2d 513.

On remand, the circuit court concluded that the Commissioners did not have the authority to impose use restrictions as a condition to the reclassification. It affirmed the rezoning absent the conditions. The Commissioners disagree with that ruling and appeal on these issues:

"1. Did the Board of County Commissioners of Washington County have the substantive authority to impose use restrictions as a condition to the reclassification of Appellee's land?

"2. If the Board of County Commissioners of Washington County did not have such substantive authority, did the Circuit Court err in affirming in part and reversing in part the legislative decision of the Board to rezone?"

AUTHORITY TO IMPOSE USE RESTRICTIONS

-Conditional Zoning-

Conditional zoning is a zoning reclassification subject to conditions not generally applicable to land similarly zoned. "[W]hen an area of land is rezoned from one classification to another, and such change is not outright but subject to some type of conditions, then we are confronted with a conditional zoning problem." Miller, The Current Status of Conditional Zoning, Institute on Planning, Zoning, & Eminent Domain 122 (1974).

-Article 66B § 4.01(a), (b)-

Appellant contends that Md.Code Ann., Art. 66B § 4.01(b) (1957, 1983 Repl.Vol.) contains an express grant of conditional zoning power. ² It argues that § 4.01(b) was not a part of the original statutory scheme of zoning authority enacted by the General Assembly but was added to Art. 66B in 1970. Appellant continues that this section was derived from earlier statutes that had granted conditional zoning power to individual counties, and those earlier statutes were repealed in the same statute that enacted Section 4.01(b). Appellant concludes, therefore, that "[t]he repeal of the authority of several counties individually to impose conditions simultaneously with the enactment of § 4.01(b), which applies to all non-charter counties, strongly supports the contention that § 4.01(b) was intended to authorize conditional zoning."

Art. 66B § 4.01, supra, grants to local legislative bodies the general authority to (re)zone land:

"(a) For the purpose of promoting health, safety, morals, or the general welfare of the community the legislative body of counties and municipal corporations are hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, off-street parking, the size of yards, courts and other open spaces, the density of population and the location and use of buildings signs, structures and land for trade, industry, residence or other purposes."

In construing this and other sections of the zoning article, we are mindful of a cardinal rule of statutory construction which requires that a statute be construed according to the plain and ordinary import of its language. Insurance Comm'r. v. Metropolitan Life Insurance Co., 296 Md. 334, 339, 463 A.2d 793 (1983). In conferring the power to zone to the counties, § 4.01(a) ostensibly grants to them the power to promote the welfare of the community by restricting the height, size and number of stories of buildings and other open spaces. Subsection (a) also expressly permits the regulation of and restriction on the use of land to promote the general welfare. Thus, this subsection allows for two kinds of restrictions--physical limitations and use restrictions.

Section 4.01(b) was enacted after 4.01(a) had been in operation for several years. This later section grants the specific authority to impose additional "restrictions, conditions or limitations." It provides:

"The local legislative body of a county or municipal corporation, upon the zoning or rezoning of any land or lands pursuant to the provisions of this article, may impose such additional restrictions, conditions, or limitations as may be deemed appropriate to preserve, improve, or protect the general character and design of the lands and improvements being zoned or rezoned, or of the surrounding or adjacent lands and improvements, and may, upon the zoning or rezoning of any land or lands, retain or reserve the power and authority to approve or disapprove the design of buildings, construction, landscaping, or other improvements, alterations, and changes made or to be made on the subject land or lands to assure conformity with the intent and purpose of this article and of the jurisdiction's zoning ordinance. The powers provided in subsection (b) of this section shall be applicable only if the local legislative body adopts an ordinance which shall include enforcement procedures and requirements for adequate notice of public hearings and conditions sought to be imposed." (emphasis supplied).

Section 4.01(b) permits local legislative bodies to impose "additional restrictions,...