People's Counsel for Baltimore County v. Maryland Marine Mfg. Co., Inc.

• Decision Date: 01 September 1988
• Citation: 560 A.2d 32,316 Md. 491
• Parties: PEOPLE'S COUNSEL FOR BALTIMORE COUNTY v. MARYLAND MARINE MANUFACTURING CO., INC. 89,
• Court: Maryland Court of Appeals

Page 491

316 Md. 491

560 A.2d 32

PEOPLE'S COUNSEL FOR BALTIMORE COUNTY v. MARYLAND MARINE MANUFACTURING CO., INC.

89, Sept. Term, 1988.

Court of Appeals of Maryland.

July 6, 1989.

Peter Max Zimmerman, Deputy People's Counsel (Phyllis Cole Friedman, People's Counsel for Baltimore County, both on brief), Towson, for appellant.

John O. Hennegan (Romadka, Gontrum & Hennegan, both on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

MURPHY, Chief Judge.

This case involves the right of riparian owners to construct improvements from their land into the tidal waters of the State, and the zoning power of counties in relation to these improvements. Specifically, the question presented is whether current Baltimore County Zoning Regulations (BCZR) are applicable to a riparian owner's proposed construction of a "floating" restaurant on a pier extending 125 feet from the shoreline into the water in front of the owner's property. ¹

I.

Maryland Marine Manufacturing Company, Inc. (Maryland Marine) owns a parcel of land bordering on the east side of Frog Mortar Creek in Baltimore County, a tributary of the Middle River which flows into the Chesapeake Bay. It currently operates a marina on the property under a special exception to the existing D.R. 5.5. (Density Residential--5.5 dwelling units per acre) zoning. In 1984, .64 acres of the property was rezoned from D.R. 5.5 to B.L. (Business Local). This classification covers a number of permitted uses, including restaurants.

On January 16, 1987, Maryland Marine petitioned the Zoning Commissioner for a determination of the legality of its proposed plan to build a restaurant on top of piers and pilings over the tidal waters of Frog Mortar Creek. The question before the Zoning Commissioner was whether

"zoning lines on land extend and comprehend tide water rivers, lakes and running streams or land under water and improvements proposed or erected thereon and apply to riparian owners; further to determine whether or not the Baltimore County Zoning Regulations apply to riparian rights and to improvements erected on tidal waters or land under water."

Maryland Marine argued that § 417 of the BCZR provides for the extension of existing zoning lines on land into tidal water rivers, lakes and running streams. It pointed out that § 417, entitled "Waterfront Construction," provides in § 417.1 that

"[all] waterfront construction, such as piers, wharves, docks, bulkheads, or other work extended into navigable waters beyond mean low tide ... shall be governed by these regulations as well as the Baltimore County Code...."

Maryland Marine also referred to § 417.3 which provides:

"For the purpose of defining boundaries within which waterfront construction may take place, divisional lines shall be established in accordance with the following rules:

(a) With straight shore lines: If the shoreline is straight, the divisional lines are to be extended from the intersection of the property line and the shoreline into the water perpendicular to the shoreline, or where the property lines are parallel and it is practical to do so, the proper boundary line shall be extended in a straight line into the water.

(b) With irregular shorelines: Where the shoreline is not straight, draw a baseline between the two corners of each lot at mean low water line. Then draw a line from the corner of each proprietor's property into the water at right angles with the base line. If by reason of the curvature of the shore, the lines, when projected into the water, diverge from each other, the area excluded by both lines shall be equally divided between the two adjoining proprietors."

It was Maryland Marine's contention that the existing B.L. zoning of its .64 acres extended into the waters of Frog Mortar Creek, thereby allowing construction of its proposed restaurant as a permitted use.

The Zoning Commissioner, relying upon Harbor Island Marina v. Calvert Co., 286 Md. 303, 407 A.2d 738 (1979), held that "Baltimore County has the authority to reasonably regulate the exercise of a riparian right to erect an improvement upon tidal land attached to shore land through zoning." He concluded that zoning on land must extend into the water, for it was not the intent of the Baltimore County Council "to permit random development off shore as otherwise would not be allowed on dry land without being subject to regulations or laws." The Commissioner ordered that "those uses permitted on dry land located in [a] particular zone are permitted on tide water rivers, lakes, running streams, or land under water within lines extended from the zoning boundary lines of the dry land to which the 'wet' land is attached, from and after the date of this Order...." The Commissioner's order was made contingent upon compliance with the Chesapeake Bay Critical Area legislation, Maryland Code (1988 Cum.Supp.), §§ 8-1801 et seq. of the National Resources Article, Title 14, subtitle 15 of the Code of Maryland Regulations (COMAR), and Bill Nos. 35-88 and 32-88 of the County Council of Baltimore County, Maryland (Development Regulations in the Chesapeake Bay Critical Area).

An appeal was taken to the Baltimore County Board of Appeals by the People's Counsel for Baltimore County. The Board stated that § 417 of the BCZR anticipates construction of improvements beyond the shoreline of tidal waters, and that the proposed restaurant was in compliance with that section. The Board held, however, that "no zoning is needed for the land beneath the water" as long as all other requirements (e.g. Baltimore County building regulations, permission from the United States Army Corps of Engineers, state and local Critical Area Regulations) were satisfied. It did not matter, according to the Board, whether "zoning lines on land extend [into] and comprehend ... land under water and improvements proposed or erected thereon."

On appeal to the Circuit Court for Baltimore County, People's Counsel argued that a zone must be placed upon land under water before development of a primary or non-water-dependent use is allowed. She argued that "because Baltimore County has not exercised its right to zone waterways, ... the direct effect thereof is that a use cannot be built into those unzoned waterways." The court (Turnbull, J.) affirmed the Board's order, declining to "substitute its judgment for that of an administrative agency." Citing Harbor Island, supra, it held that "the Counties have the power to regulate and restrict use of land including land under water." It noted that the proposed restaurant would be "surrounded by a pre-existing marina and [would extend] no further into the water way than the existing structures."

People's Counsel appealed. We granted certiorari before decision by the Court of Special Appeals to consider the significant issue raised in the case.

II.

As we have frequently indicated, the order of an administrative agency must be upheld on judicial review if it is not based on an error of law, and if the agency's conclusions reasonably may be based upon the facts proven. Ad + Soil, Inc. v. County Comm'rs, 307 Md. 307, 338-39, 513 A.2d 893 (1986). But a reviewing court is under no constraints in reversing an administrative decision which is premised solely upon an erroneous conclusion of law. See, e.g., Ramsay, Scarlett & Co. v. Comptroller, 302 Md. 825, 835, 490 A.2d 1296 (1985); Harford County v. McDonough, 74 Md.App. 119, 122, 536 A.2d 724 (1988). The issues with which we are concerned in this case present purely legal questions, such as the proper interpretation of § 417 of the BCZR, the scope of a charter county's zoning power, and the extent of the riparian owner's right to construct improvements into the water.

People's Counsel argues before us that a specific zone must be placed on land under water before a non-water-dependent use may be developed. She contends that Baltimore County has not zoned the land under water at the boundary of Maryland Marine's property, and therefore the proposed restaurant cannot be constructed. Maryland Marine asserts that the proposed site is zoned B.L. Section 417 of the BCZR, it contends, "sets the guidelines for determining the types of improvements that may be constructed into the water" and also "provides the means for extending zoning lines on shore into tidal water." People's Counsel disagrees; she maintains that § 417.1 does not determine what types of improvements can be made, but rather lists general types of waterfront construction for illustrative purposes. People's Counsel also contends that § 417.3 does not extend zoning lines, but simply draws divisional lines to determine where waterfront construction may take place.

Considering the plain language of §§ 417.1 and 417.3, along with the illustrations in official Appendix J of the BCZR, we think it clear that the purpose of these sections is to determine divisional lines for waterfront construction as between two adjoining riparian property owners. Quite simply, these sections determine where waterfront structures may be placed, and do not purport to determine what kinds of waterfront structures may be built. Section 417.3 plainly states that it is "[f]or the purpose of defining boundaries within which waterfront construction may take place." It also discusses divisional and property lines, not zoning lines. Plainly, § 417.1 and § 417.3 were not enacted to regulate the kinds of riparian improvements which may be constructed. It is equally clear that § 417.3 does not extend or even address the placement of zoning boundary lines.

Both parties agree, in light of Harbor Island, supra, that Baltimore County has the power to zone land under water. Although Harbor Island involved a non-chartered county and its zoning authority under Maryland Code (1957, 1978 Repl.Vol.), Art. 66B, § 4.01, the parties agree that there is nothing in the zoning authority granted to...