Powell v. Calvert County
| Decision Date | 09 March 2001 |
| Docket Number | No. 1125,1125 |
| Citation | 137 Md. App. 425,768 A.2d 750 |
| Parties | Larry POWELL et al. v. CALVERT COUNTY, Maryland. |
| Court | Court of Special Appeals of Maryland |
Paul B. Rodbell (Meyers, Rodbell & Rosenbaum, P.A., on the brief), Riverdale, for appellants.
Jack G. Upton (Davis & Upton, on the brief), Prince Frederick, for appellee.
Argued before HOLLANDER, JAMES R. EYLER, and THEODORE G. BLOOM, (Ret., specially assigned), JJ. JAMES R. EYLER, Judge.
The principal question presented in this appeal requires us to consider and apply the doctrine of vested rights in a zoning context. On March 19, 1997, the Board of Appeals for Calvert County (the Board) granted James W. Graner a special exception for the storage of construction materials. As a result of an earlier petition for judicial review, this Court, in an opinion filed on April 23, 1999, vacated the Board's approval and remanded the case to the Board for further proceedings on the ground that the reasons given by the Board were insufficient to permit appellate review. On remand, without receiving additional evidence or argument, the Board amended its opinion in response to this Court's mandate and granted the special exception. The case is now before us as a result of a second petition for judicial review. We hold that the evidence and reasons given by the Board in its amended opinion are, as explained herein, legally sufficient to support the Board's decision. We further hold that, because the applicant had acquired vested rights, the Board did not err in refusing to apply an intervening amendment to the zoning ordinance that would have prohibited the special exception.
James W. Graner owns approximately 14 acres of land zoned RUR (Rural District) in Calvert County. The acreage in question was part of a larger tract that was developed as a residential subdivision in the late 1980's. Mr. Graner operates an excavating business on the property, the business having been acquired from his grandfather in 1981. The business utilizes approximately 3 acres out of the total of 14 acres.
In 1984, Mr. Graner was issued a home occupation permit under the Calvert County Zoning Ordinance, which permitted him to locate the office for his business on the premises. In 1986, Mr. Graner was issued a special exception which permitted him to park excavating equipment on the premises. Sometime thereafter, Mr. Graner began storing construction materials.
Calvert County sought injunctive relief based on several alleged zoning violations, including storing construction materials. The Circuit Court for Calvert County, in an opinion dated January 23, 1996, found that Mr. Graner was in violation of zoning restrictions and ordered, in pertinent part, that he cease outside storage of construction materials and that he apply for a special exception if he wanted to continue to store such materials on the property.
On January 2, 1997, Mr. Graner applied for a special exception to permit the outside storage of construction materials. On March 19, 1997, the Board of Appeals granted the special exception. On petition for judicial review, the Circuit Court for Calvert County, on November 17, 1997, affirmed the Board's decision.
On appeal to this Court, the question was whether the evidence was legally sufficient to sustain the Board's action. In an unreported opinion, we reversed and remanded the case to the circuit court with instructions to vacate the Board's decision and to remand the case to the Board for further proceedings consistent with our opinion. Powell v. Calvert County, No. 212, September Term, 1998 (filed April 23, 1999). In doing so, applying the standard of judicial review of an administrative decision, we observed that the Board had made a visit to the site but included no information in the record relating to that visit. It was unclear whether the Board relied on information obtained in that site visit. Accordingly, because the record was deficient in that the Board may have relied on matters not contained in the record, we remanded the matter for further proceedings.
In the interim, on December 5, 1998, the County Commissioners for Calvert County amended the zoning ordinance to prohibit the outdoor storage of materials in connection with a commercial or industrial use on RUR zoned property. On September 2, 1999, the Board, without receiving additional evidence or argument, amended its earlier opinion and approved the special exception.
Larry Powell and Susan M. Mulvaney, owners of homes in the nearby subdivision, appellants, filed a petition for judicial review in the Circuit Court for Calvert County, raising three issues. In addressing those issues, the circuit court (1) held that the Board had not erred in refusing to apply the intervening amendment to the zoning ordinance, (2) held that there was substantial evidence in the record to support the Board's decision, and (3) remanded the case to the Board to conduct further proceedings with respect to the question whether Mr. Graner's home occupation permit was still valid. Appellants appealed to this Court, identifying Calvert County as appellee.
The questions before us are the same as those before the circuit court. As stated by appellants, they are:
I. Was the Board of Appeals statutorily prohibited by a change in the law from approving the special exception application at the September 2, 1999 hearing?
II. Is the approval of the subject special exception contingent on the continued validity of the Home Occupation Permit and its associated 1986 special exception?
III. Did the applicant meet his burden of proof that his use satisfies the prescribed standards and requirements of the Calvert County Zoning Ordinance for the requested special exception?
Upon review of an agency's decision, our role "is essentially to repeat the task for the circuit court ... to be certain that the circuit court did not err in its review." Red Roof Inns v. People's Counsel for Baltimore County, 96 Md.App. 219, 224, 624 A.2d 1281 (1993) (quoting Art Wood Enters. v. Wiseburg Community Ass'n, 88 Md.App. 723, 728, 596 A.2d 712 (1991)) (in turn quoting Mortimer v. Howard Research & Dev. Corp., 83 Md.App. 432, 442, 575 A.2d 750 (1990)). Thus, our scope of review is narrow. Eastern Outdoor Adver. Co. v. Mayor & City Council of Baltimore, 128 Md.App. 494, 515, 739 A.2d 854 (1999),cert. denied, 358 Md. 163, 747 A.2d 644 (2000).
739 A.2d 854 (citing Mossburg v. Montgomery County, 107 Md.App. 1, 30, 666 A.2d 1253 (1995)).
Appellants contend that, at the time of the September 2, 1999 hearing, the Board was not legally permitted to approve the special exception because the intervening amendment to the zoning ordinance was applicable and prohibited the use in question. Appellants argue, relying primarily on O'Donnell v. Bassler, 289 Md. 501, 425 A.2d 1003 (1981), that the doctrine of vested rights is not applicable because the special exception that was in place prior to the amendment was invalidated by judicial review. Consequently, appellants argue that, in the eyes of the law, there was no valid special exception until it was reissued on September 2, 1999, after the amendment. We disagree.
The threshold inquiry, before getting to vested rights, is whether the amendment in question, as a matter of statutory construction, applies to the issuance of the special exception in question. We reviewed the relevant principles in Holland v. Woodhaven Bldg. & Dev., 113 Md.App. 274, 687 A.2d 699 (1996), and we quote from that opinion:
The rules governing retroactivity that we address in this case are rules of statutory construction.4 Such rules are easy to state but difficult to apply. A number of Maryland cases can be cited for the general proposition that a statute is presumed to operate prospectively from its effective date absent a clear expression of legislative intent that the statute is to be applied retroactively. Arundel Corp. v. County Comm'rs of Carroll County, 323 Md. 504, 510, 594 A.2d 95 (1991); Mason v. State, 309 Md. 215, 219, 522 A.2d 1344 (1987); WSSC v. Riverdale Heights Volunteer Fire Co., 308 Md. 556, 560-60, 520 A.2d 1319 (1987) and cases discussed therein. Despite the presumption of prospectivity, a number of other cases support the proposition that when a legislative change in law affects only procedural matters, rather than substantive rights, it applies to all actions, whether accrued, pending, or future, unless a contrary intention is expressed. Roth v....
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