City of Hagerstown v. Long Meadow Shopping Center

• Decision Date: 15 February 1972
• Docket Number: No. 163,163
• Citation: 264 Md. 481,287 A.2d 242
• Parties: The CITY OF HAGERSTOWN et al. v. LONG MEADOW SHOPPING CENTER et al.
• Court: Maryland Court of Appeals

Page 481

264 Md. 481

287 A.2d 242

The CITY OF HAGERSTOWN et al. v. LONG MEADOW SHOPPING CENTER et al.

No. 163.

Court of Appeals of Maryland.

Feb. 15, 1972.

Kenneth J. Mackley and Robert E. Kuczynski, Hagerstown (Edward Oswald, Jr., Hagerstown, on the brief), for appellants.

David W. Byron and John H. Urner, Hagerstown (Byron, Moylan & Urner, Hagerstown, on the brief), for appellees.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and SMITH, JJ.

FINAN, Judge.

The Long Meadow Shopping Center (Center), the subject of the controversy in this appeal, lies partially within and partially without the city limits of Hagerstown, Maryland, and is owned by one of the appellees in this case, a partnership doing business under the name of the Center and herein referred to as 'Long Meadow.' This appeal arises from the refusal of the Hagerstown Board of Zoning Appeals (Board) to grant Long Meadow and their general contractor, Callas Contractors, Inc., the other appellee, a building permit to construct a movie theater on that portion of the Center which is divided by the city limits' line separating Hagerstown from the remainder of Washington County. The portion of the Center within Hagerstown is located on land shown on the comprehensive zoning map of the City as CSC (Community Shopping Center). Washington County has no zoning ordinance. The Board denied the permit, finding that the proposed use was not permitted in a CSC district, but on appeal the Circuit Court for Washington County (Rutledge, J.) reversed the Board, holding that the City was estopped to deny the issuance of the permit The City of Hagerstown and five intervening local residents who live within two blocks of the Center have taken this appeal from the order of the court authorizing the appellees to proceed with the construction of the theater.

Before discussing the set of facts which give rise to the present appeal it will be helpful toward an understanding of the issues now before us to review the history of past litigation affecting Long Meadow.

On September 17, 1956, Long Meadow first made application for a building permit to construct the Center, and on the same day the City Building Inspector issued it. On September 25, 1956, however, a local resident filed an appeal to the Board protesting the issuance of the permit and after a public hearing the Board revoked the permit. At that time the Hagerstown Zoning Ordinance contained the following provisions:

'Sec. 24.10 ¹ Community Shopping Center Districts-Generally

Community shopping center districts shall be designated as such on the zone district map. They shall be distributed geographically so that each major section or quadrant of the city may have the facilities which they are intended to provide. These districts are intended to provide ordinary retail shopping facilities for adjacent and nearby residential neighborhoods, where there may be purchased many small articles, various merchandise and services which meet the average or daily needs of those who dwell in such neighborhoods; * * *

6. Plans and such specifications as may be required for a project in any community shopping center district shall be submitted to the inspector of buildings and the city engineer for their inspection * * *. If such project is found by such officials to comply with the requirements of this article * * * the same shall be approved and a permit * * * issued * * *. If the proposal does not comply with the regulations of this section, the officials shall disapprove * * *.' (Emphasis supplied)

In denying the permit the Board advanced the following reason for its action:

'* * * That Section 9 of the City Zoning Ordinance (then, Section 24.10 of The Code of The City of Hagerstown) * * * bearing the title, 'community shopping center districts' states * * * that such districts as contemplated by said ordinance are intended to provide ordinary retail shopping facilities for adjacent and nearby residential neighborhoods where may be purchased many small articles, various merchandise and services which meet the average or ordinary daily needs of those who dwell in such neighborhoods. That this Board finds as a fact that the shopping center for which said building permit was issued contemplates providing extraordinary retail shopping facilities, not only for adjacent and nearby residential neighborhoods, but for a wide area extending far beyond such adjacent and nearby residential neighborhoods.' (Emphasis supplied)

Long Meadow subsequently appealed the Board's decision to the Circuit Court for Washington County where the Board was affirmed. At this point, instead of prosecuting its appeal further, Long Meadow chose to seek redress through the legislative branch of the City government, and succeeded in obtaining from the City Council an amendment to Section 24.10 of the Zoning Ordinance, whereby, it was amended to read:

'Sec. 24.10, Shopping Center Districts.

'* * * These districts (shopping center districts) are intended to provide various shopping facilities, where may be purchased various articles, merchandise and services required by those who reside in the neighborhood and elsewhere in the City of Hagerstown and surrounding trade area.' (Emphasis supplied)

It is interesting and significant to note that while the City Council amended the title of Section 24.10 (now Section 68-10) by deleting the word 'Community,' and amended the definition of a 'Community Shopping Center,' as originally provided in the Zoning Ordinance, the Zoning Map itself was in no way changed and while it may be argued that the ordinance as amended allows for facilities ofttimes found in a 'Regional Shopping Center,' there was no amendment of the classification of 'CSC' (Community Shopping Center) on the legend of the Zoning Map. In this regard it should also be noted that there was no amendment to Subsection 6 of Section 24.10 (now Section 68-10) which continues to refer to 'any community shopping center district.' Elsewhere in the zoning ordinance shopping centers are continually referred to as 'community shopping center districts.' (See Section 68-5 titled 'Districts Established; Map, * * * D. * * *') The best that may be said for the torturned construction of the amendment advocated by Long Meadow which would have us construe the amendment as creating a new classification, namely that of a 'Regional Shopping Center,' for which it alleges a theater would not be a prohibited use, is that, in our opinion, the amendment only sets forth the policy as to permissible and nonpermissible uses within the type of shopping center described in the ordinance which certainly is applicable to Long Meadow.

With the above amendment, the way was now paved for the desired permit which Long Meadow acquired and construction was begun in 1956. The Center opened with a variety of stores including a large department store, two supermarkets, a bank, two dress shops, two shoe stores, a candy store, an automobile supply store, a jewelry store and a gasoline service station. There was no theater mentioned in the original plans which were approved by the Building Inspector in 1956.

At this juncture were should note that Section 24.12, now Section 68-12, remains the same. This section entitled 'Prohibited Uses in Shopping Center Districts,' provides:

'A. In all community shopping center districts, land and buildings shall not be used * * * for any one of the following specified uses:

(3) Retail Business Uses

(4) Service Uses

(a) Except insofar as Items (3) and

(4) may be parts of the entire community shopping center project, integrated with other uses to make up the whole project and shown on the plans referred to in § 68-10.'

Thus, although Retail Business Uses may be defined as including a theater and are allowed in a community shopping center where they are included in the original plan, yet, under the ordinance they are a prohibited use in the center if they are not in the original plan of the community shopping center as approved by the Building Inspector. In another way it may be stated, that Retail Business Uses and Service Uses are permitted in a community shopping center district if they are contained in the original plan and initially approved by the City. (See Sections 68-13 and 68-15 of the Code of the City of Hagerstown (1966 ed.).)

We now pass through an interval of fourteen years which, at least from the record, appears to be quiescent insofar as litigation affecting Long Meadow is concerned. However, in 1969, Long Meadow experienced growing pains which culminated in its desire to demolish an existing store in the Center and construct a twin movie theater. Callas Contractors, Inc., negotiated for the contract to perform the work and endeavored to obtain from the City Building Inspector, Mr. Gerald Shank, the required building permit. Mr. Shank testified in the court below that he informed Mr. Michael Callas, the president of the construction company, that since the greater portion of the proposed structure would lie outside of the City limits, the City would require no building permit, and it would suffice if a permit were obtained from the Washington County Tax Assessor's Office. Mr. Shank further testified that this policy was dictated to him by the Mayor and City Council of Hagerstown and that it was passed along by him to his successor in office, Mr. Thurston A. Keltner. The record additionally reveals that Long Meadow's mortgagee desired assurance of the fact that the theater would not violate any local zoning ordinances, and that for this purpose Mr. Keltner drafted and delivered to Mr. Callas a letter which stated that no permit would be required by the City.

On March 2, 1969, Callas obtained a permit from the Washington County Tax Assessor and shortly thereafter employed an architect to prepare construction drawings. ² Permits for electric, water and sewer connection and a license to operate a motion picture theater were...