Mr. Lucky, LLC v. Calvert County Planning Commission, 031319 MDSCA, 2192-2017

Docket Nº:2192-2017
Opinion Judge:BERGER, J.
Party Name:MR. LUCKY, LLC, ET AL. v. CALVERT COUNTY PLANNING COMMISSION, ET AL.
Judge Panel:Kehoe, Berger, Reed, JJ.
Case Date:March 13, 2019
Court:Court of Special Appeals of Maryland
 
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MR. LUCKY, LLC, ET AL.

v.

CALVERT COUNTY PLANNING COMMISSION, ET AL.

No. 2192-2017

Court of Special Appeals of Maryland

March 13, 2019

Circuit Court for Calvert County No. C-04-CV-17-000001

Kehoe, Berger, Reed, JJ.

OPINION [*]

BERGER, J.

This case arises out of an eight-year zoning dispute between appellants, Mr. Lucky, LLC and PT Tiki, Inc. (collectively referred to as "Mr. Lucky") and appellees, the Board of County Commissioners of Calvert County and the Calvert County Planning Commission (collectively referred to as the "County"). On June 11, 2014, this Court, in an unreported opinion, resolved the zoning controversy in Mr. Lucky's favor.1 On June 9, 2017, Mr. Lucky filed suit in the Circuit Court for Calvert County, alleging that the County used its land use authority in an arbitrary and capricious manner. As amended in August 2017, Mr. Lucky alleged a violation of its substantive due process rights under Article 24 of the Maryland Declaration of Rights. Thereafter, the County filed a motion to dismiss, arguing that Mr. Lucky's claim was barred by the statute of limitations.

After the circuit court granted the County's motion to dismiss, Mr. Lucky filed this appeal. On appeal, Mr. Lucky poses four questions, which we consolidate and rephrase as follows2:

Whether the circuit court erred in granting the County's motion to dismiss.

For the reasons explained herein, we affirm.

FACTS AND PROCEEDINGS

This dispute concerns an open-air tavern in Solomons, Maryland known as the "Tiki Bar." The Tiki Bar is a seasonal operation, open to patrons between the months of April and October. Primarily known for its annual grand-openings, the Tiki Bar draws thousands of visitors from Maryland and other states. We draw from our previous opinion to outline the relevant history of the Tiki Bar property. The Tiki Bar property developed, or one might better say evolved, as follows. The motel opened in 1960, long before there was a Tiki Bar. (Before the motel was built, a hotel was located at the same site.) The restaurant opened in 1966. At that time, and long before, this part of Solomons was devoted largely to the fishing and marine trades. It was frequented mainly by fisherman and was home to marine-oriented businesses, such as a yacht sales office.

The Tiki Bar came into existence soon after September 14, 1979, as an outdoor open air tavern. Bunky Hipple, then-owner of the Tiki Bar property, obtained a permit to remodel the porch, patio, and two walls of the northernmost section of the motel (then called the "Solomons Motel"), adjacent to Charles Street. The remodeled area became the 800-square-foot Tiki Bar. On November 24, 1980, a permit was issued for the addition of 10 seats to the Tiki Bar. As a result of that change, the Tiki Bar had 30 seats and the restaurant seated 80. The driveway entrance to the paved area was to be kept at 25 feet wide.

The Tiki Bar was again expanded under a permit obtained on December 2, 1982. That expansion allowed for an extended roof overhang, partly made of thatch. It appears from the application that by then the maximum seating at the Tiki Bar had been raised to 40. The expansion resulted in a 576-square-foot addition to the Tiki Bar.

Calvert County adopted a comprehensive zoning ordinance in 1967 ("the CCZO"). (From 1964 until 1967, the county had a temporary zoning law.) In 1986, the CCZO was amended to create the Solomons Town Center Zoning Ordinance ("SZO"). Before the SZO, the Tiki Bar property had been located in the C3 - Marine Commercial district of the CCZO. The newly enacted SZO prohibited (and still prohibits) outdoor taverns in the B area of Solomons, in which the Tiki Bar is located.

In early 1986, Robert Garner, who with his wife owned the Tiki Bar property, applied for and received a permit to convert a garage behind the motel into office space. The application reveals that by then the Tiki Bar was 1, 338 square feet, the motel consisted of 11 regular units and one efficiency unit, there was a 1, 800 square foot storage structure on the Tiki Bar property, and the restaurant was 1, 144 square feet.

By early 1989, Solomons Cove had purchased the Tiki Bar property. On February 6, 1989, Solomons Cove submitted to the Calvert County Department of Planning and Zoning a site plan application seeking to convert storage space attached to the rear of the restaurant into two office areas totaling 952 square feet ("1989 site plan").

A plat attached to the 1989 site plan application shows the Tiki Bar and its office and storage area, and the one-story motel (12 rooms) on the eastern side of the property; and the one-story restaurant (then known as The Castaways) and four small buildings on the western side of the property. The paved area between the eastern and western facing buildings is drawn to show 24 designated parking spaces for the motel, seven designated parking spaces for the four small buildings, and two additional handicap parking spaces on each side. However, the site plan also designates the large grassy and partly paved area comprising the southern part of the Tiki Bar property as an "open area for general parking." (The designation is handwritten on the plat.) The restaurant, small buildings, and motel building shown on the plat submitted with the 1989 site plan application do not meet the 50-foot setback requirement of the SZO.

On March 3, 1989, a building permit application for the changes requested by Solomons Cove was received and approved.

By early 2006, ownership of the Tiki Bar property had changed hands to Mr. Lucky, which was in the process of being purchased by P.T. The motel on the property had closed in 2005. At that time, Mr. Lucky made changes to the property without seeking prior approval. In the paved area between the western and eastern facing buildings, Mr. Lucky erected two thatch-covered kiosk bars. It spread sand over the paved area in some locations and erected Tiki statues and potted palm trees in the paved area. It also placed a few tables and chairs there. In addition, Mr. Lucky changed the access route to the Tiki Bar property so that vehicles no longer would enter the paved area from Charles Street. Instead, vehicular access to the Tiki Bar property was by means of a driveway off Charles Street that traversed property owned by Harbor Island Marina, Inc. ("Harbor Island"). Harbor Island's property is adjacent to and immediately east of the Tiki Bar property, behind the former motel building. The driveway ends at the large grassy and partially paved area in the southern part of the Tiki Bar property that the 1989 site plan designates for parking. Thus, the new driveway access to the property, accomplished by means of a lease, started at Charles Street and ended at the parking area on the south side of the Tiki Bar property, bypassing the paved area between the buildings on the property.

These changes, made unilaterally, resulted in the issuance of stop work orders and violation notices. Ultimately, a consent injunction was entered by the Circuit Court for Calvert County prohibiting any additional changes to the property, requiring the kiosk bars to...

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