Joy v. Anne Arundel County

• Decision Date: 04 November 1982
• Docket Number: No. 86,86
• Citation: 52 Md.App. 653,451 A.2d 1237
• Parties: Joseph F. JOY, Jr. v. ANNE ARUNDEL COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

Page 653

52 Md.App. 653

451 A.2d 1237

Joseph F. JOY, Jr. v. ANNE ARUNDEL COUNTY, Maryland.

No. 86.

Court of Special Appeals of Maryland.

Nov. 4, 1982.

Stephen J. Kleeman, with whom was Irwin M. Sussman, P.A., Baltimore, on the brief, for appellant.

Robert M. Pollock, Asst. County Sol. for Anne Arundel County, with whom was Steven P. Resnick, County Sol., for Anne Arundel County on the brief, for appellee.

Argued before GILBERT, C.J., and MOYLAN and ADKINS, JJ.

ADKINS, Judge.

When the Circuit Court for Anne Arundel County found that Joseph F. Joy, Jr., and his co-defendants in an action brought by the county had not obtained a certificate of use required by the County Code, it granted summary judgment for the county and enjoined Joy and his colleagues from using certain property in the county. The injunction prohibited the defendants from bringing materials onto the property, directed them to remove materials from the property, and required them "to restore the property to its original topography". Joy appealed from this judgment, raising numerous issues. Three are dispositive of the appeal. We view them as:

1. May a court, at the suit of a political subdivision, enjoin the use of property solely because a required certificate of use has not been obtained by the property owner?

2. Was the court precluded from granting summary judgment on the county's second motion, when the county's first motion, denied by the court, failed to raise or support with an affidavit the fact of Joy's lack of a certificate of use?

3. Was the injunction issued in this case vague and overbroad? ¹

Facts

In 1963 Joy commenced operations in Anne Arundel County on leased property from Charles A. Hamlen. Joy used the property, which he now owns, and which since 1976 has been located in a W-2 Light Industrial District, for a business variously characterized as, among other things, a junkyard, a resource reclamation facility, and a hazardous waste facility.

Over the years, specifically since 1976, the county on several occasions complained that the use was in violation of applicable zoning regulations. After some prodding from county authorities, the Hamlens attempted to obtain non-conforming use status for the property but this was denied by the County Board of Appeals in January 1980. Joy's use of the property continued, and after further violation notices were issued, the county sued Joy and others on April 21, 1980. The Bill of Complaint alleged, inter alia, that Joy's operation was in violation of the uses permitted in a W-2 District. Additionally, the bill alleged that Joy and the other defendants had never obtained a zoning certificate of use. The prayer was for injunctive relief prohibiting use of the property in violation of the zoning regulations. The bill was supported by, among other things, documents showing that the State Water Resources Administration had ordered Joy to cease and desist from storing certain hazardous wastes on the property. The Circuit Court (Turk, J.) issued an ex parte injunction on April 21, 1980, after finding that storage of hazardous wastes on the property, without State or County approval, constituted "immediate, substantial, and possible irreparable injury to the citizens of Anne Arundel County."

On July 30, 1980, after the hearing on the ex parte injunction, the county moved for summary judgment with respect to its request for a permanent injunction. The thrust of this motion was that the activities being conducted by Joy violated the W-2 District regulations, but no mention was made of Joy's lack of a certificate of use. Because there was considerable factual dispute as to what was actually occurring on the property, and particularly as to whether hazardous wastes were present, the court denied the motion on December 30, 1980. In the interim, on October 31, the court (Goudy, J.) had granted an interlocutory injunction directing the defendants to refrain from bringing or storing dangerous or hazardous wastes on the property, and requiring them to remove such substances.

After the denial of the first motion for summary judgment, there was considerable discovery and other procedural activity. Eventually, on August 4, 1981, the county again moved for summary judgment. The county again argued that Joy's activities, however characterized, violated the W-2 District regulations. In addition, the county pointed out that Joy had failed to apply for or obtain the "zoning certificate of use" required by §§ 13-300.1 and 13-300.3 of the County Code.

While this motion for summary judgment was pending Joy applied for a zoning certificate of use. The certificate was denied in November. In December 1981, the chancellor granted the county's motion for summary judgment and issued the permanent injunction which is the subject of this appeal.

Lack of Zoning Certificate of Use as Basis for Summary Judgment and Injunction

In his order of December 10, 1981, the chancellor found that there were disputed issues of fact as to the nature of Joy's use of the property. He also found, obviously correctly that there was no dispute as to the fact that Joy had not obtained a zoning certificate of use. Because of that lack, he granted the county's motion and issued the permanent injunction.

Section 13-300.1 of the Anne Arundel County Code provides:

Every structure and parcel of land in Anne Arundel County shall be subject to the provisions of this subtitle [Zoning Regulations], and shall not be used, designed, constructed or altered ... in any other manner. The provisions of this subtitle are minimum requirements, and shall be in addition to (and not in lieu of) any other legal requirements.

Section 13-300.3, in pertinent part, provides:

No land shall be used for purposes other than a single family residential dwelling until such use is authorized by the issuance of a certificate of use.

Joy did not have a certificate of use. He does not contend that he was using the property "for purposes of a single family dwelling". Thus, his use was not authorized "by the issuance of a certificate of use."

While Joy argues that the certificate of use, for which a fee of $10 is required, is an unimportant and generally routine procedure in the scheme of zoning enforcement in Anne Arundel County, we do not see it that way.

Zoning laws are an exercise of the police power of government for the protection of public health, safety, morals, and general welfare, Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). An important tool to help assure that these protections are afforded through the enforcement of zoning laws is the building or occupancy permit, to which the certificate of use is clearly kin. A sensible plan of regulation may well include provisions whereby the appropriate authorities are given the opportunity to determine, before a particular use of property is started, whether the proposed use is in fact consistent with the regulations designed to protect the public see 3 Anderson, American Law of Zoning § 13.03 (2d ed. 1977). A county need not await actual use of land, and possible public detriment, before it moves to enforce zoning regulations. Indeed, this case is illustrative of the benefits that should accrue from a pre-use determination of the legality of a proposed use. Had Joy applied early on for the certificate, all the issues raised but not decided in this lengthy and acrimonious litigation, with respect to what activities are permitted in a W-2 District, would have been decided before any substantial expenditures by Joy and before any possible harm to the public.

The Court of Appeals long ago recognized the importance of obtaining a required permit prior to use of land. In Patapsco Elec. Co. v. Baltimore City, 110 Md. 306, 72 A. 1039 (1909) a statute required approval "before erecting poles or stringing wires upon any of the avenues of travel" within Baltimore. Patapsco Electric Company installed poles and wires without obtaining the requisite permission. The court held that the statutory provision made "the obtaining of consent or permission of the city a condition precedent to" doing business, id., at 312, 72 A. at 1042. It affirmed the issuance of an injunction directing Patapsco to remove the offending poles and wires.

Similarly, in Adams v. Commissioners of Trappe, 204 Md. 165, 102 A.2d 830 (1954) a town ordinance prohibited the construction of any gasoline pump or other structure in the town of Trappe without a permit from the commissioners. Adams, although denied a permit, erected a gasoline pump and placed a tank beneath a public street. While the Court of Appeals, in affirming an injunction requiring the removal of the pump and tank, discussed at some length the law of nuisance, it also stressed that Adams had defied the public authorities by acting without the required permit.

More directly in point is another case which arose in Anne Arundel County, Laque v. State, 207 Md. 242, 113 A.2d 893 (1955). This case, cited by Joy, actually supports the county's position. Laque, who operated a junkyard, was unsuccessful in efforts to obtain a certificate of occupancy based on a prior non-conforming use. When Laque continued to operate the junkyard, a criminal prosecution was commenced, and Laque was convicted. The basis of the prosecution and conviction was that Laque was operating the junkyard without the requisite certificate.

In affirming the conviction, the Court of Appeals held that Laque could not, in the criminal case, relitigate the propriety of the denial of the certificate. It said "[t]he situation is simply that the appellant does not have a 'certificate of occupancy' authorizing the use of the property as a junkyard", id., at 252, 113 A.2d at 897. This was a sufficient basis for sustaining the conviction.

Harris Used Car Co. v. Anne Arundel County, 257 Md. 412, 263 A.2d 520 (1970), also cited by Joy, is not to the contrary. In that case, the issue of...