Montgomery County v. Mossburg, 292

• Decision Date: 08 May 1962
• Docket Number: No. 292,292
• Citation: 180 A.2d 851,228 Md. 555
• Parties: , 99 A.L.R.2d 222 MONTGOMERY COUNTY, Maryland, et al. v. William H. MOSSBURG.
• Court: Maryland Court of Appeals

Page 555

228 Md. 555

180 A.2d 851, 99 A.L.R.2d 222

MONTGOMERY COUNTY, Maryland, et al. v. William H. MOSSBURG.

No. 292.

Court of Appeals of Maryland.

May 8, 1962.

Richard J. Sincoff, Asst. County Atty., Rockville (Alfred H. Carter, County Atty., Montgomery County, Rockville, on the brief), for appellants.

Alger Y. Barbee and Harper M. Smith, Rockville, for appellee.

Before HENDERSON, HAMMOND, PRESCOTT, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

Mossburg, the appellee, operates a restaurant, with a light wine and beer license, as a non-conforming use on a lot in Montgomery County zoned residential. He owns adjacent ground, also zoned residential, on which he desires to build additional kitchen facilities and dining room space as an extension of the existing building so that he may serve up to fifty more patrons at a time.

In 1959 he petitioned the County Council of Montgomery County to rezone the adjacent residentially zoned land commercial so that he could enlarge the restaurant establishment, and was turned down. In 1960 he applied to the Montgomery County Board of Appeals for a special exception to accomplish the same result. At the hearing, the Board received complaints from protesting neighbors that the appearance of the restaurant building was unsightly and unattractive, mainly because there were no trees or landscaping around it, and that beer cans and bottles littered the grounds. The most vigorous complaints to the Board in the form of testimony, which was uncontradicted, were that much drinking of beer went on from 6:00 p. m. to 12:00 midnight and that the present operation of the place generated considerable noise as a result of patrons acting boisterously on the parking lot, drinking beer there, firing guns, spinning tires, gunning automobile engines and blowing horns. There was testimony that both the County and State police have been called repeatedly to clear the lot in the hours from midnight on until early morning.

The Board found that all setback and parking space requirements in relation to the extension would be met, and determined to grant the special exception, subject to the conditions that appropriate landscaping, shrubbery and trees be provided, that there be no bands or other live performances, that the property be kept free of litter, that no additional signs be erected, that the place be closed no later than eleven p. m. every night, that the parking lot be cleared by eleven-fifteen p. m. and that a chain then be placed across each entrance to the lot.

Mossburg, in a petition for reconsideration to the Board, contended that the conditions as to closing at eleven o'clock and as to clearing and barring access to the parking lot were unreasonable and unduly burdensome, and that the imposition of these conditions predetermined the inability of the Montgomery County Department of Licenses and Inspections, Department of Health, and Police Department to enforce the responsibilities the public entrusted to them, respectively. He claimed further that to close by eleven and clear the premises by eleven-fifteen would result in extreme financial hardship and possible failure and that he 'would be obliged to refuse the right granted with attendant restrictions and continue operation under the present lawful non-conforming use in the original facilities and under the present existing mode of operation.'

The Board granted the petition for reconsideration, but adhered to its original views, and Mossburg appealed to the Circuit Court for Montgomery County. There he contended that the conditions complained of were unreasonable, arbitrary and capricious; and that the requirement of closing at eleven imposed a limitation on an alcoholic beverage license granted by Montgomery County under the authority of Code (1957), Art. 2B, which permitted the sale of light wine and beer until midnight, and that the condition imposed 'unlawfully tends to infringe upon and abrogate the right under said license.' He prayed the granting of the special exception without the conditions complained of. Judge Pugh granted the relief prayed, apparently on the theory the Board of Appeals acted illegally in restricting the use of an alcoholic beverage license. We think he was in error in so doing.

It has long been held and is firmly established that it is not only proper but desirable to attach to the grant of a special exception conditions which do not violate or go beyond the law and are appropriate and reasonable. Oursler v. Bd. of Zoning Appeals, 204 Md. 397, 104 A.2d 568; Baylis v. City of Baltimore, 219 Md. 164, 168, 148 A.2d 429; 2 Metzenbaum, Law of Zoning (2d ed.), Ch. IX-m; 1 Rathkopf, The Law of Zoning and Planning (3d ed.), Ch. 49; 1 Yokley, Zoning Law and Practice (2d ed.), Sec. 144; 2 Southwestern Legal Foundation, Institute on Planning and Zoning, pp. 93-94.

Section 104.27 of the Montgomery County Code (1960) authorizes the granting of a special exception if the Board finds that the proposed use is compatible with the general development plan for the neighborhood and 'will not affect adversely the health and safety of residents and workers in the area and will not be detrimental to the use or development of adjacent properties or the general neighborhood.'

Section 104.28(a) of the County Code provides: 'The board may, and is hereby empowered to, add to the specific provisions enumerated herein others that it may deem necessary to protect adjacent properties, the general neighborhood, and the residents and workers therein.'

In addition, Section 104.29(aa-1) says, in part, that in a residential zone a special exception may be granted for 'a tea house or restaurant and buildings accessory thereto upon a finding by the board that said use will not constitute a nuisance because of traffic, noise or number of patrons who visit such tea house or restaurant * * *.'

In the present case the special exception would permit...