Kirsch v. Prince George's County

• Decision Date: 01 September 1991
• Docket Number: No. 1653,1653
• Citation: Kirsch v. Prince George's County, 610 A.2d 343, 92 Md.App. 719 (Md. App. 1991)
• Parties: Donald KIRSCH, et al. v. PRINCE GEORGE'S COUNTY, Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 719

92 Md.App. 719

610 A.2d 343

Donald KIRSCH, et al. v. PRINCE GEORGE'S COUNTY, Maryland.

No. 1653, Sept. Term, 1991.

Court of Special Appeals of Maryland.

July 8, 1992.

Reconsideration Denied Sept. 1, 1992.

Andrew E. Greenwald (Jay P. Holland and Joseph, Greenwald & Laake, P.A., on the brief), Greenbelt, for appellants.

Sean D. Wallace, Associate County Atty. (Michael P. Whalen, County Atty., Michael O. Connaughton, Deputy County Atty., J. Michael Dougherty, Jr. and Crystal R. Dixon, Associate County Attys., on the brief), Upper Marlboro, for appellee.

Argued before MOYLAN, ROSALYN B. BELL and DAVIS, JJ.

MOYLAN, Judge.

The appellants, Donald P. Kirsch, Martha Kaye Dunn, Stephanie Stockman and Daniel Cones, appeal an Order of Judge Larnzell Martin in the Circuit Court for Prince George's County granting the Motion for Summary Judgment by the appellee, Prince George's County. The appellants essentially raise two contentions:

1) That the Prince George's County Zoning Ordinance CB-152-1989 violates the Prince George's County Human Relations Act; and

2) That the Ordinance deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights.

On November 28, 1989, the County Council of Prince George's County, sitting as the District Council ("District Council"), enacted Zoning Ordinance Bill Number CB-152-1989 entitled "Zoning Bill--An Ordinance Concerning Mini Dormitories" ("Mini-Dorm Ordinance"). The Zoning Bill's title describes the Mini-Dorm Ordinance as being:

"FOR the purpose of defining a mini-dormitory; establishing criteria for regulating this use; allowing it as a permitted use or by Special Exception in certain zones, subject to certain criteria; prohibiting the Board of Appeals from granting certain variances for mini-dormitories; prohibiting the Planning Board from approving departures from the required number of parking spaces for mini-dormitories; and requiring all existing uses to be in conformance with these regulations by July 1, 1991."

The objectives of the Mini-Dorm Ordinance were to be accomplished by amendment of §§ 27-107.1, 27-229(b), 27-441(b)(6), 27-515(b)(7), 27-547(b)(7), 27-568 and 27-588(c) of the Zoning Ordinance of Prince George's County ("Zoning Ordinance") and the addition of new §§ 27-249.1, 27-374.1, 27-445.7, 27-532.2, and 27-548.1.2 thereto.

Section 27-107.1(150.1) of the Zoning Ordinance defines "mini-dormitory" as:

"[A]n off-campus residence located in a building that is, or was originally constructed as a one-family, two family, or three-family dwelling which houses at least three (3), but not more than five (5) individuals, all or part of whom are unrelated to one another by blood, adoption or marriage and who are registered full-time or part-time students at an institution of higher learning."

The Mini-Dorm Ordinance amends § 27-441(b)(6) of the Zoning Ordinance, by adding the mini-dormitory as a permitted use in all residential zones provided the use complies with the requirements of § 27-445.7 of the Zoning Ordinance. A mini-dormitory that does not satisfy the requirements of § 27-445.7 is permissible within the affected residential zones only by special exception.

The amended Zoning Ordinance imposes the following requirements on the construction of mini-dormitories and their environs:

"(a) A mini-dormitory permitted (P) in the Table of Uses shall be subject to the following:

(1) The property shall be maintained in accordance with all applicable provisions of the County Code;

(2) Rooms used for sleeping purposes shall have not less than seventy (70) square feet per resident;

(3) All parking spaces shall be provided on-site, in accordance with Part 11;

(4) Parking spaces provided solely for, and on the same lot with, the mini-dormitory may be located one behind the other (the front space may be used as access to the rear space) (5) The number of driveway entrances authorized shall not exceed one (1) driveway entrance per lot or per street on which the subject lot has frontage (i.e., a corner lot), unless such driveway entrances were in existence on November 28, 1989;

(6) The uses shall not alter the single-family residential character or appearance of the premises;

(7) The maximum percentage of lot coverage for a mini-dormitory shall be the same as that for the dwelling type that was originally constructed on the lot; and

(8) The maximum percentage of lot coverage may only be increased by the District Council in the form of a variance granted in connection with the approval of a Special Exception."

Section 27-249.1 of the Zoning Ordinance provides for the certification of existing uses as nonconforming and permits amortization through July 1, 1991.

As provided by § 27-249.1((b) of the Zoning Ordinance, the purpose of the Mini-Dorm Ordinance is to:

"[P]revent or control the detrimental effects upon neighboring properties, such as illegal parking and saturation of available parking by residents of mini-dormitories, litter, and noise."

The appellants in the instant case are persons who are or might be affected by the Mini-Dorm Ordinance if it becomes effective. Donald P. Kirsch owns a house located at 4805 Rittenhouse Street, Riverdale, from which he has derived rental income. Martha Kaye Dunn is employed in the business of property management. She is the owner of seven houses located in Prince George's County. The appellants Stephanie Stockman and Daniel Cones are students at the University of Maryland, College Park Campus. They reside off-campus and rent living space that would be affected by the Mini-Dorm Ordinance.

The appellee, Prince George's County ("County"), is a political subdivision of the State organized under Article XI-A, Constitution of Maryland, with divers powers expressed throughout the Annotated Code. Article 28, § 8-101 of the Code provides that with respect to zoning matters, the County Council is designated the District Council. That Section sets out the powers with which the District Council is invested:

"(b) Grant of zoning power.--(1) Each district council, respectively, in accordance with the conditions and procedures specified in this article, may by ordinance adopt and amend the text of the zoning ordinance and may by resolution or ordinance adopt and amend the map or maps accompanying the zoning ordinance text to regulate, in the portion of the regional district lying within its county, (i) the location, height, bulk, and size of buildings, other structures, and units therein, building lines, minimum frontages, depths and areas of lots, and percentages of lots which may be occupied; (ii) the size of lots, yards, courts, and other open spaces; (iii) the erection of temporary stands and structures; (iv) the density and distribution of population; (v) the location and uses of buildings and structures and units therein for trade, industry, residence, recreation, agriculture, public activities, and other purposes; and (vi) the uses of land, including surface, subsurface, and air rights therein, for building, trade, industry, residence, recreation, agriculture, forestry, or other purposes."

Seeking to enjoin the County from enforcing the Mini-Dorm Ordinance, the appellants filed a Motion for Interlocutory Injunction in the Circuit Court for Prince George's County on February 14, 1991. The appellants' motion was granted. The appellants also filed a Motion for Summary Judgment in the Prince George's County Circuit Court on February 14. The County filed its own Motion for Summary Judgment in that court on March 28. Judge Martin granted the County's Motion. By Order dated August 1, 1991, Judge Martin ruled that the Mini-Dorm Ordinance was constitutional and did not infringe upon the appellants' rights. This appeal followed.

The appellants contend that the Mini-Dorm Ordinance violates the Prince George's County Human Relations Act. Secondarily, they argue that the Ordinance contravenes the Equal Protection Clause of the Fourteenth Amendment. We address the appellants' second argument first, as it is dispositive of both contentions.

It is beyond cavil that "[w]hen a local legislative body enacts a zoning ordinance, pursuant to powers granted by the Legislature," there is a strong presumption of validity, and " 'strong evidence' of error is required to overcome the presumption." Cardon Investments v. Town of New Market, 55 Md.App. 573, 579, 466 A.2d 504 (1983), aff'd 302 Md. 77, 485 A.2d 678 (1984); Howard County, Md. v. Dorsey, 292 Md. 351, 355, 438 A.2d 1339 (1982). See Mayor and Aldermen of City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 394, 396 A.2d 1080 (1979) (where legislative body has 'enacted zoning ordinance under powers granted by Legislature, presumption of validity attaches to act as exercise of police power'). Moreover, in reviewing zoning or rezoning by the County Council acting in its legislative capacity, "the function of this Court is a narrow one." Bishop v. Board of County Com'rs of Prince George's County, 230 Md. 494, 501, 187 A.2d 851 (1963). Unless the action is "arbitrary, capricious, unreasonable, discriminatory or beyond statutory or constitutional limitations, the courts cannot set it aside." Id. (emphasis added). The burden is upon the party challenging the validity of the zoning ordinance to demonstrate its invalidity. The appellants have failed to meet that burden.

A municipality or county may, for a legitimate zoning purpose, "distinguish among occupants making the same use of single-family dwellings." Y.W.C.A. of Summit, N.J. v. Bd. of Adj., Summit, 141 N.J.Super. 315, 358 A.2d 211 (N.J.Super. A.D., 1976), aff'g 134 N.J.Super. 384, 341 A.2d 356 (N.J.Super.L., 1975). Accord City of White Plains v. Ferraioli, 34 N.Y.2d 300, 357 N.Y.S.2d 449, 313 N.E.2d 756 (1974); Township of Ewing v. King, 131 N.J.Super. 29, 328 A.2d 242 (1974), rev'd on other grounds, 69 N.J. 67...