Marek v. Baltimore County Bd. of Appeals

• Decision Date: 19 December 1958
• Docket Number: No. 26,26
• Citation: Marek v. Baltimore County Bd. of Appeals, 146 A.2d 875, 218 Md. 351 (Md. 1958)
• Parties: Charles B. MAREK et al. v. BALTIMORE COUNTY BOARD OF APPEALS et al.
• Court: Maryland Court of Appeals

Page 351

218 Md. 351

146 A.2d 875

Charles B. MAREK et al. v.BALTIMORE COUNTY BOARD OF APPEALS et al.

No. 26.

Court of Appeals of Maryland.

Dec. 19, 1958.

Fletcher Krause, Baltimore (Leonard A. Vadala, Baltimore, on the brief), for appellants.

W. Lee Thomas, Baltimore (Kenneth C. Proctor, Proctor, Royston & Mueller, Towson, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY, and W. LAIRD HENRY, Jr., (Specially assigned) JJ.

W.LAIRD HENRY, Jr., Judge(Specially Assigned).

This is an appeal from an order of the Circuit Court for Baltimore County affirming the action of the Board of Zoning Appeals of Baltimore County(the Board) granting a use permit for off-street parking at a public beach being operated as a non-conforming use in an R. 6, or Residential, one and two family zone.

W. Ralph Peddy and Rollin Peddy, his wife (the Peddys or the proponents), in 1948 became the owners of a tract of land containing about 2 acres known as and called 'Miami Beach' fronting approximately 300 feet on Chesapeake Bay and with a depth of approximately 300 feet.This land is situated in the 15th Election District of Baltimore County, near the community of Bowley's Quarters and has for many years prior to its purchase by the Peddys been operated commercially as a public bathing beach and they have continued that operation.In 1945, when the initial zoning in Baltimore County became operative, this property was classified as an R.6 Residential Zone and its continued operation has been conducted as a non-conforming use.

In June 1956 the Peddys applied to the Deputy Zoning Commissioner of Baltimore County for permission to use the area, which is the subject of this appeal, for off-street parking facilities under the provisions of Section 409.4a of the Zoning Ordinance as it was then worded and received such permission from the Commissioner.Upon appeal to the Board by Charles B. Marek, and others (the protestants), in the area and after a hearing by that Board, the decision of the Commissioner was reversed and the permission for the off-street parking privilege was withdrawn.

At the time of the hearing by the Board (now known as the Baltimore County Board of Appeals) it must have thought that Section 409.4 of the Zoning Regulations provided that 'land in any residential zone may be used for parking areas * * * provided that:

'a.The land so used immediately adjoins or is directly across an alley or street from the business or industrial zone for which such off-street parking space is required * * *.'

The opinion of the Board was rendered December 13, 1956, and must have been based on the provision of § 409.4a, supra, because in its opinion, denying the permit sought, the Board said in part:

'We think the regulations should be held to mean exactly what they say i. e. land in a residential zone may be used for parking when adjoining a 'business or industrial zone."

'The petitioners' beach property is not in a business or industrial zone, but in a residence zone and we conclude that the Use Permit granted by the Zoning Commissioner was in error and should be revoked and refused.'

Actually at the time of this action, and apparently without the knowledge of the Board, the said sub-section'a' had, on November 21, 1956, been amended to read as follows:

'a.The land so used must adjoin or be across an alley or street from the business or industry involved.'

The effect of this amendment was to change the requirement that the land to be used be adjoining or across the street or alley from a business or industrial zone, which the land in question here is and was not, to the requirement that it adjoin or be across a street or alley from the business or industry involved, which the land in this case was and is, thus bringing the land in question within the scope of the regulations.

In the next sequence of events the Peddys again, that is, on May 17, 1957, filed a petition with the Zoning Commissioner for an off-street parking permit on the same land, covering an area of approximately the same size as the original tract.After a hearing, the Commissioner on June 19, 1957, denied the permit.Upon an appeal and subsequent hearing before the Board, the permit was granted on July 23, 1957.This was followed by an appeal to the Circuit Court for Baltimore County, which court, on January 21, 1958, affirmed the decision of the Board.

In addition to the two applications by the Peddys above mentioned, they did further, on January 31, 1957, file a petition with the Zoning Commissioner for a reclassification of their property from R.6(residential) to B.L. (business local).On May 9, 1957, the Board affirmed an order of the Zoning Commissioner denying the re-classification and an appeal was taken to the Circuit Court for Baltimore County, which is still pending.

Four questions are raised by the protestants.

First, it is argued that the petition which is now before us for a permit for off-street parking, is in legal effect a petition for a special exception brought within 18 months from the date of the final order in the case just above mentioned which was a petition for re-classification of the same property and under the provisions of Section 500.12 of the Baltimore County Zoning Regulations, should be dismissed.Tyrie v. BaltimoreCounty, 1957, 215 Md. 135, 137 A.2d 156.

Section 500.12, supra, provides as follows:

'No new petition for reclassification or Special Exception shall be entertained by the Zoning Commissioner in any cases which has been considered and acted upon by him until the expiration of 18 months from the date of his final Order thereon.Where an appeal is taken from any decision of the Zoning Commissioner to the Board of Zoning Appeals, the Zoning Commissioner shall not entertain any new petitions for reclassification or Special Exception until the expiration of 18 months from the date of the final order of said Board of Zoning Appeals.'

This then brings us to the question as to whether or not the petition filed in this case is a petition for a special exception from the use that can be made of land lying in a zone classified as R.6 Residential.We must conclude that this petition is not a request for a special exception.It is quite true that the zoning ordinance does provide that under certain circumstances and for certain purposes which are enumerated at length a different use may be made of the land than that which the zoning ordinance contemplates.Section 270 sets out this Schedule of Special Exceptions in detail and Sections 502and502.1 set forth the principles and conditions which shall govern the Zoning Commissioner and the Board.

Off-street parking is not mentioned among the many things which may be the subject of a special exception and the power to determine what situations shall be considered in that category is a legislative function, resting in this instance with the County Council of Baltimore County, and is not an administrative function of the Zoning Commissioner.The function of the Zoning Commissioner is limited to a determination under the existing factual situation if a special exception, one among those listed in the ordinance, is appropriate in any particular case.

In this case the application was made and the use for off-street parking was granted under the provisions of Section 409.4, supra,----

'Business or Industrial Parking in Residence Zones--Upon application the Zoning Commissioner may issue a use permit for the use of land in a residential zone for parking areas subject to the following conditions.If granted, such use permit shall be conditioned as follows, in lieu of the provisions of Section 409.2(c).'

There follow eight conditions which must be observed as a condition precedent to the granting of the permissive use, the first of which is sub-section'a' amended, as above noted.

There is nothing in this provision to suggest a special exception to the use permissible in the zoning area for the land in question but it is a provision for off-street parking on land in the restricted zone in aid of better use of land which it adjoins and which in this case is a non-conforming use.It does not and can not and is not intended to increase, expand or in any way enlarge the size or area of the non-conforming use though its effect...