County Com'rs of Carroll County v. Zent

• Decision Date: 04 April 1991
• Docket Number: No. 950,950
• Parties: COUNTY COMMISSIONERS OF CARROLL COUNTY, Maryland v. Maurice R. ZENT. Sept. Term 1990.
• Court: Court of Special Appeals of Maryland

Page 745

86 Md.App. 745

587 A.2d 1205

COUNTY COMMISSIONERS OF CARROLL COUNTY, Maryland v. Maurice R. ZENT.

No. 950 Sept. Term 1990.

Court of Special Appeals of Maryland.

April 4, 1991.

Laurell E. Taylor, Asst. County Atty. (Charles W. Thompson, Jr., County Atty., on the brief), Westminster, for appellant.

William B. Dulany (David K, Bowersox and Dulany, Parker & Scott, on the brief), Westminster, for appellee.

Argued before MOYLAN, BLOOM and CATHELL, JJ.

CATHELL, Judge.

The underlying cause of this dispute is the inevitable conflict that results during the transition of a rural community to a suburban community. Circumstances which are accepted as natural and normal incidents of a rural society by those who are nurtured by an agrarian environment do not always match the expectations of bucolic life anticipated by suburbanites as they move out to the countryside. While new residents may well expect, and accept, vistas of fields of waving grain, pastural scenes of dairy cattle on the hillside and the rustic ambiance of the pond and wetlands area in the meadows, they sometimes belatedly discover that the plow precedes the grain, manure accompanies the cattle, mosquitoes infest the ponds, and the products of the fields and animal husbandry must go to market. Since the advent of zoning, the conflicts between rural reality and suburban expectations have been refereed by zoning administrators who, all too often, have found themselves in the unenviable position of reconciling the irreconcilable.

The zoning law has attempted to serve as a mechanism for the resolution of these conflicts and to provide for an orderly process that recognizes the inevitable transition, while at the same time preserving and permitting the continuation of long-standing practices and customs. The relevant body of law governing this transition is the law of nonconforming, primary, accessory, and incidental uses. When the principles of this body of law are properly understood and applied by zoning administrators and ultimately by trial courts, the transition process is successfully managed. In this case, the trial judge clearly understood the process and correctly applied the law.

The Facts

The dispute arises from the use of a 2.022 acre parcel of land in Carroll County, Maryland, which was zoned " 'A' Agricultural District." Since 1923, a bulk milk delivery, distribution and trucking business has been operating from the site serving the farming community.

Milk, unlike some agricultural products, is produced (harvested) every day. It is picked up by truckers who serve individual farms and collect their milk for transport to the dairies where it is processed. There is no respite from collection, because the cows take none from their production, and the product is perishable. In modern times this truck collection and delivery system is almost as important as the cow. ¹

With the advent of zoning in Carroll County in 1965, the appellee's milk trucking and distribution business became a nonconforming use. As such, it was then, and is now, a lawful use. The business involves the operation of between 30 and 35 trucks per day from its site, all of which must be mechanically serviced on a regular basis. As new trucks are purchased, old trucks are retired. In order to facilitate maintenance, the decommissioned vehicles are stored on the site as a source of parts for the operable trucks. This cannibalization and repair program occurs incrementally, and results in the storage of parts as well as vehicles. To the casual passerby, perhaps to neighboring residents in search of rustic scenes to match their expectations, and occasionally to some zoning administrators, these vehicles and parts, or some of them, appear to be junk. ²

The Carroll County ordinance attempts to regulate junkyards. In 1988, the zoning office, and ultimately the Board of Zoning Appeals ("Board"), declared that the site was not a nonconforming junkyard because it had not registered and thus had not been "certified" as one under the ordinance. In essence, the zoning authorities were attempting to order the cessation or reduction of use of the outside portions of the property. There was no evidence which indicated that, at the time in question, greater use was being made of the property for storage, etc., than had previously been made. ³

The Board upheld the administrator's decision. Appellee appealed the Board's decision to the circuit court, where it was heard by Judge Burns. In a short but well-reasoned memorandum opinion, he cut to the heart of the matter and reversed the Board. The County Commissioners of Carroll County appealed to this Court.

Judge Burns stated, in part:

As all parties know this family-owned business has a long history in Carroll County and it is undisputed that it is a lawful non-conforming use within this zone. Prior to 1987/1988 Appellant's storage of these vehicles in question, incidental to the business, was not seen as a "junkyard" under the Zoning Ordinance. We cannot condone changing the standard now and considering this incidental use of the otherwise valid business (non-conforming use) a "junkyard" when there is no substantial evidence to support said determination. Therefore, the Board's decision is not "fairly debatable" and cannot be affirmed.

We are persuaded by the case law cited by Appellant's counsel, specifically Atkins v. Zoning Board of Adjustment, 281 S.E.2d 756, (N.Car.1981). Additionally, we note that this has always been an incidental part of this business. That such storage now becomes a violation creating a "junkyard," is a new interpretation by the County....

Because we agree with the trial judge, we will not address estoppel, nor discuss Permanent Financial Corp. v. Montgomery Co., 308 Md. 239, 518 A.2d 123 (1986), cited by the parties. The Zoning Administrator's apparent strategy was to redefine the nonconforming milk distribution business as a junkyard, and then to terminate it, when in fact he had no administrative power to terminate the milk distribution business nor any proper incidental use of that business. Judge Burns saw beyond the junkyard label and correctly identified Zent's truck maintenance operation as a use incidental to the primary use authorized by the legal nonconforming use possessed by Zent.

The appellant raises two questions:

I. Whether the circuit court erred in applying the doctrine of equitable estoppel, where the evidence failed to establish that county officials ever approved the alleged zoning violation or caused the alleged violator to change his position in reliance upon the purported approval.

II. Whether substantial evidence supports the conclusion that appellee's practice of retaining inoperable, obsolete trucks and other items constitutes a junkyard.

For reasons which will become apparent, we shall not address the first question. Appellant's second question ignores the trial court's finding. We will address it only inferentially as we directly confront the real issues stated in appellee's brief:

I. Did the circuit court correctly determine that the incidental storage of material on appellee's site in connection with appellee's admittedly lawful non-conforming use was not a "junkyard"?

II. Is the incidental storage of material on appellee's property no more than an accessory use to the lawful non-conforming trucking business and not a principal "junkyard" use subject to the enforcement sought by appellants?

The Law

The Court of Appeals, in discussing zoning ordinances generally, has said:

Such ordinances are in derogation of the common law right to so use private property as to realize its highest utility, and while they should be liberally construed to accomplish their plain purpose and intent, they should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language.

Landay v. Bd. of Zoning Appeals, 173 Md. 460, 466, 196 A. 293 (1938) (citation omitted, emphasis added). See also Aspen Hill Venture v. Mont. Co., 265 Md. 303, 313-14, 289 A.2d 303 (1972); Canada's Tavern, Inc. v. Glen Echo, 260 Md. 206, 218, 271 A.2d 664 (1970); Gino's of Md., Inc. v. Mayor of Baltimore City, 250 Md. 621, 642, 244 A.2d 218 (1968); Norwood Heights Improvement Ass'n v. Baltimore, 191 Md. 155, 163, 60 A.2d 192 (1948) (Henderson, J., dissenting). We said in Lone v. Montgomery Co., 85 Md.App. 477, 494-95, 584 A.2d 142 (1990), "Zoning is an exercise of the police power and, to be valid, must be in the general public interest for promotion of health, safety or general welfare of the community. It is an exercise of the police power which takes away, for public good, some rights of individuals to use their property as they please while giving them rights to restrict injurious uses of others' property." (Citations omitted.)

In Lone, we discussed the concept of nonconforming uses:

An owner of land may establish a "lawful nonconforming use" if the evidence conclusively establishes that before and at the time of the adoption of the original zoning ordinance, he was using substantially all of his tract of land in a then-lawful manner for a use which by a later legislative action became nonpermitted. Board of Zoning Appeals of Howard County v. Meyer, 207 Md. 389 (1955).

Id. 85 Md.App. at 496, 584 A.2d 142. See also McKemy v. Baltimore Co., 39 Md.App. 257, 385 A.2d 96 (1978), for a discussion of scope.

In the case sub judice, the County has attempted to eliminate an incidental and accessory use, which is inherently attached to a nonconforming use, by the ploy of administrative redefinition. ⁴ It has not reduced the nonconforming use by statute or other proper regulation. The trial judge discerned this and, in an appropriate exercise of his discretion, corrected it.

The Standards of Review

We discussed the standards for judicial review of zoning decisions in Neuman v. Mayor of Baltimore, 23 Md.App. 13, 325 A.2d 146 (1974), where we reverse...