County Council of Prince George's County v. E. L. Gardner, Inc.
Decision Date | 02 April 1982 |
Docket Number | No. 11,11 |
Citation | 293 Md. 259,443 A.2d 114 |
Parties | COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland v. E. L. GARDNER, INC. |
Court | Maryland Court of Appeals |
Steven M. Gilbert, Associate County Atty., Upper Marlboro (Robert B. Ostrom, County Atty. and Michael O. Connaughton, Deputy County Atty., on the brief), for appellant.
Paul B. Rodbell, Riverdale (William V. Meyers and Meyers & Billingsley, P. A., Riverdale, on the brief), for appellee.
Argued before MURPHY, C. J., and SMITH, DIGGES, * ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
This case presents a question concerning nonconforming uses. More particularly, it involves the question whether, under the applicable provisions of the Prince George's County Code (1979), Subtitle 27.Zoning, the owner of a nonconforming surface mining sand and gravel operation can obtain a special exception to operate a sand and gravel wet-processing facility at the same location. The relevant provisions of the Prince George's County Code are as follows.
Section 27-101 provides in pertinent part:
Section 27-107(a) provides:
"(a) Any nonconforming building, structure, or use, as defined in Section 27-101, may be continued repaired, or maintained without enlargement or extension, unless otherwise provided by this Subtitle." (Emphasis added.)
Section 27-107(e) provides in pertinent part:
"(e) No nonconforming use may be changed to any use other than that provided by ... permits under which the nonconforming use operated at the time the nonconforming use was established." (Emphasis added.)
Section 27-108(a) provides in pertinent part:
"(a) A nonconforming building, structure, or use may only be enlarged or extended if such enlargement or extension shall conform to the provisions of this Subtitle for the zone in which it is located and a special exception has been approved by the District Council, as provided in Division 36 (Special Exceptions) of this Subtitle." (Emphasis added.)
Section 27-482(a) provides in pertinent part:
"(a) Any nonconforming building, structure, or use as defined in Section 27-101, may be continued, subject to the regulations of Section 27-107, and may be structurally expanded or extended, subject to the provisions of Division 36 (Special Exceptions) of this Subtitle." (Emphasis added.)
Section 27-553 provides in pertinent part:
The respondent, E. L. Gardner, Inc. (owner), owns approximately 450 acres of land (subject property) located in Prince George's County. The subject property was originally zoned R-R (rural-residential, 15,000 square foot minimum lot size) by the comprehensive zoning map adopted 2 December 1966. It was reclassified to the O-S zone (open space, single-family residential, 5 acre minimum lot size) by the comprehensive zoning map adopted 12 July 1977. Neither a sand, gravel or clay pit, nor a wet-processing facility is a permitted use in the O-S zone. Both, however, are special exception uses in that zone. § 27-537(a)(1) and § 27-538.1(a). 1 Before the subject property was zoned, it was used for the mining of sand and gravel. This use has been established as a legal nonconforming use by the issuance of a use and occupancy permit. § 27-108(b). 2 In 1977, an application was filed, pursuant to § 27-538.1, for a special exception for the wet processing of sand and gravel.
The technical staff of the Maryland-National Capital Park and Planning Commission and the Prince George's County Planning Board recommended approval, with conditions, as did the Zoning Hearing Examiner. Thereafter, the County Council sitting as the District Council for Prince George's County (Council) rejected those recommendations and entered an order denying the requested special exception. In its written findings and conclusions, the Council, among other things, said:
.
The owner appealed to the Circuit Court for Prince George's County which reversed the action of the Council. In its opinion the trial court said:
The Council appealed to the Court of Special Appeals which affirmed the judgment of the trial court. Prince George's County v. E. L. Gardner, Inc., 47 Md.App. 471, 424 A.2d 392 (1981). In its opinion, that Court said:
E. L. Gardner, Inc., 47 Md.App. at 477-78, 480, 424 A.2d at 395-97.
The Council filed a petition for a writ of certiorari that we granted. We shall reverse the judgment of the Court of Special Appeals.
One of the basic tenets of zoning is that some uses of land are incompatible with others, and that more efficient employment of land resources is achieved if such incompatible uses are separated. An admixture of incompatible land uses is avoided by dividing the community into use districts, each restricted to industrial, commercial or residential occupation.
As a practical matter, however, homogeneous land use has not been achieved. Major movement of population from rural to urban areas had begun half a century before the first comprehensive zoning ordinance was enacted in the United States. As a result, land to be zoned was not always vacant. Indeed, frequently it was occupied by landowners who had developed their land unfettered by any significant degree of governmental control. Thus, use districts, designed to be homogeneous, unavoidably include land devoted to uses proscribed by the zoning regulations. Such nonconforming uses pose a formidable threat to the success of zoning. They limit...
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