Jahnigen v. Staley, 531

• Decision Date: 09 January 1967
• Docket Number: No. 531,531
• Parties: William JAHNIGEN et ux. v. William W. STALEY et al.
• Court: Maryland Court of Appeals

Page 130

245 Md. 130

225 A.2d 277

William JAHNIGEN et ux. v. William W. STALEY et al.

No. 531.

Court of Appeals of Maryland.

Jan. 9, 1967.

Jerome F. Connell, Glen Burnie (Biener & Connell, Glen Burnie, on the brief), for appellants.

Nicholas Goldsborough, Annapolis, for appellees.

Before HAMMOND, C. J., and MARBURY, OPPENHEIMER, BARNES and FINAN, JJ.

MURBURY, Judge.

This is an appeal from a decree of the Circuit Court for Anne Arundel County, Judge Sachse presiding, which restricted appellants' (William Jahnigen and wife) non-conforming use of their property, fronting on Broad Creek for approximately 263 feet, to the rental of seven rowboats and to the rental of space for the dockage or wet storage of boats at a wharf not exceeding ninety feet of over-all length and six feet in width together with a twenty-four foot long and six foot wide 'T' at the end of the wharf. It was also decreed that the launching facility constructed by appellants was an unlawful expansion of a non-conforming use and that they had no right to maintain dry storage or to repair boats, other than the seven rowboats, on their property.

Appellants acquired the waterfront property, approximately four acres in the Third Election District of Anne Arundel County, by deed dated December 14, 1962, from Stanley H. Kirchenbauer and wife, who acquired their title in 1945. In the years prior to February 15, 1949, when the comprehensive zoning ordinance for the Third Election District of Anne Arundel County became effective, placing the property in an agricultural classification, the Kirchenbauers constructed (in 1946) a ninety foot long pier with a twenty-four foot T and rented up to seven rowboats and approximately ten slips. The zoning ordinance restricted any non-conforming use to those uses in effect prior to the date of its adoption. On July 6, 1951, they were issued a non-conforming use certificate on which was stated, 'Hiring of Rowboats.' During 1951, they rented out sixteen rowboats and ten slips. In 1952, they increased the slip rental to twenty, but cut down on the renting of rowboats. In that year the Kirchenbauers also built a 104 foot pier, without first securing a permit, parallel to and about thirty-two feet from the shoreline. This pier was connected to the left side of the ninety foot pier about thirty-two feet from the shore. They built a garage in 1953 and a stable in 1954. They provided no toilet facilities except for those in their home, which they would allow others to use on occasions. Between 1947 and 1952 people would pull their boats upon the property in the winter until about April or May, at various places and at various times. Mr. Kirchenbauer occasionally put his own boats in the garage for repairs, but he did little boat repair work for others. He had no facilities for the launching of boats, and when he did launch them it would not always be at the same place. This was an occasional operation, a dozen times in about fifteen years, and this operation required men to snake the boats down the hillside to the water.

In 1962 the Kirchenbauers purchased a twenty-five foot strip of land from a neighbor on the north side of the property, and appellants purchased the entire property from the Kirchenbauers in late 1962. In the advertisement of the property for sale, twenty-five boat slips and nine rowboats were mentioned. In May of 1963, William Jahnigen requested and received a permit to repair ice damage to the existing ninety foot pier with the T. When he applied for the permit, he misrepresented the ninety foot original pier as having been 130 feet, claiming that the original pier was 130 feet, the last forty feet of which he said was damaged by ice and had to be replaced, but the forty feet of pier never existed. In August of that year, the Jahnigens petitioned the Board of County Commissioners of Anne Arundel County to rezone 1.5 acres of their property from its agricultural use to heavy commercial use, primarily for the purpose of allowing sales of gasoline in connection with the operation of the marina that was already in existence on the property. On August 8, 1963, the Board of County Commissioners granted the petition, and later that month appellants requested and were granted a permit to extend the pier and to construct a travel lift ramp for the launching of boats, and gas pumps. In the construction under the permit of August 1963, appellants built two toilets and other improvements, and the pier they actually built bore no relation in appearance, size or direction to the one for which they received the permit. As the result of the rezoning, some of the appellees filed a bill of complaint in the Circuit Court for Anne Arundel County to set aside the rezoning. The bill of complaint also sought an injunction to limit the non-conforming use and to restrict the property in such a way that the Jahnigens could only use it for the hiring of rowboats.

For the purpose of clarity, the court below devided the case into two parts. The first part concerned the question of whether the rezoning was valid, and the second part dealt with the extent of the existing non-conforming use. In the trial of the first part, the court below found the rezoning to be null and void. The appellants have not appealed from this finding. Prior to the hearing of the second part of the case on the merits, the appellants filed a motion raising preliminary objection to the right of the appellees to bring such an action. The motion was overruled and the court found in favor of the complainants after the trial on the merits. The appellants contend that the chancellor erred in overruling their motion and in imposing certain restrictions on the non-conforming use of the property.

A party has standing to contest a rezoning decision by appeal to the courts if the decision affects his specific interest or property right in a way different from that suffered by the public generally. Alvey v. Hedin, 243 Md. 334, 221 A.2d 62; DuBay v. Crane, 240 Md. 180, 213 A.2d 487.

It is evident from the record that the protestants are within the class as defined above 'because their closeness to the marina property, their special problems with lights and noise as well as with the refuse emanating from the operation of the marina, make the effect of this commercialization on them different from its effect upon members of the public generally.' Alvey v. Hedin, supra, 243 Md. at page 339, 221 A.2d at page 64.

Mr. Edmund Birk, one of the protestants who owns the property adjacent to the Jahnigen property on the south side, testified that the cruisers which were moored at the Jahnigen property pumped their bilges and deteriorated his waterfront property, and that he would not swim in the creek due to the fact that the boats had toilet facilities.

Mr. Otis B. French, another protestant whose property is located 125 feet at the water line from the Jahnigen property, testified that due to the increased facilities and activities, the value of his property deteriorated considerably and that peace and quiet had departed. He testified that he was reluctant to swim in the creek because of the increased summer boat traffic which came very close to the front of his property and because of the increased junk and debris in the water, including beer cans, bottles, spoiled food and other refuse.

Mr. William Staley testified that the increased facilities had devalued his property which is about 300 yards southwest from the appellants' property, directly across the water. He testified that he had been unable to sell his property, even though it had been on the market for ten months, because of the fact that the marina was operating...