Sizemore v. Town of Chesapeake Beach

• Decision Date: 25 November 2015
• Docket Number: No. 1607, Sept. Term, 2014.,1607, Sept. Term, 2014.
• Citation: 126 A.3d 225,225 Md.App. 631
• Parties: Joyce E. SIZEMORE, et al. v. TOWN OF CHESAPEAKE BEACH, Maryland, et al.
• Court: Court of Special Appeals of Maryland

225 Md.App. 631

126 A.3d 225

Joyce E. SIZEMORE, et al.

v.TOWN OF CHESAPEAKE BEACH, Maryland, et al.

No. 1607, Sept. Term, 2014.

Court of Special Appeals of Maryland.

Nov. 25, 2015.

Sager A. Williams, Jr., Annapolis, MD, for appellant.

Elissa D. Levan (Funk & Bolton, PA, on the brief), Baltimore, MD, for appellee.

Panel: NAZARIAN, LEAHY and ALAN M. WILNER (Retired, Specially Assigned), JJ.

LEAHY, J.

Appellants Joyce Sizemore and her daughter Stephanie Sizemore, possessed of the hope and optimism common to those with an entrepreneurial spirit, applied for a zoning permit in April 2000 to construct the "Beef & Reef Restaurant" on their property in the Town of Chesapeake Beach in Calvert County, Maryland. Unfortunately, the Sizemores lacked sufficient resources to fully fund their aspirations for the Beef & Reef.

On October 2, 2003, Joyce Sizemore received her final zoning permit for the restaurant. At the time, the property was zoned for Commercial High–Density ("C–HD") use, which permitted restaurants of the type proposed by the Sizemores. In February 2004, however, Appellee Town of Chesapeake Beach completed a comprehensive rezoning, pursuant to which the Sizemore property was downzoned from C–HD to Residential–Village ("R–V"). Notwithstanding the rezoning, the Sizemores continued in fits and starts with construction of the restaurant under their existing zoning permit. After construction languished for months and then years—and after numerous written warnings—on January 12, 2009, the town zoning administrator revoked the Sizemores' 2003 zoning permit pursuant to the Town Code of Chesapeake Beach ("Town Code") § 290–27(E) (2004),¹ for failure to substantially complete or satisfactorily proceed with construction.

On February 13, 2009, the Sizemores appealed the decision of the zoning administrator to the Town of Chesapeake Beach Board of Zoning Appeals (the "Board"), and, following an adverse decision there and in the Calvert County Circuit Court on their petition for judicial review, the Sizemores abandoned their subsequent appeal to this Court.² Eight months after abandoning their appeal of the 2009 decision to this Court, the Sizemores filed a new permit application for the Beef & Reef on October 3, 2012, which was denied because the R–V zone did not permit restaurants or other commercial establishments. The Sizemores' primary contention in challenging that decision before the Board, was that because of the work they had started, they had a vested right to continue construction of a restaurant on their property. After a full hearing, the Board upheld the zoning administrator's decision to deny the zoning permit in a Resolution issued on December 13, 2013. On petition for judicial review, the Circuit Court for Calvert County affirmed the Resolution of the Board.

The Sizemores present the following questions, which we have reordered:

1) Did the Board err by concluding the Sizemores abandoned their vested right because they were unable to keep the previously issued zoning permit in effect?

2) Did the Board err by not ordering the issuance of a new zoning permit because the Sizemores have a vested right to complete construction and open the restaurant?

3) Did the Board err by deciding the Sizemores "waived" the ability to assert a vested right as the basis for a new zoning permit—needed to finish construction of the restaurant the Sizemores began under a previously issued zoning permit—because the Sizemores did not assert a vested right during the 2009 appeal that challenged cancellation of the previously issued zoning permit?

4) Did the Board err by declining to reconsider its prior decision to uphold cancellation of the previously issued zoning permit when State law, in effect at the time of the Board's 2009 decision, tolled the expiration of zoning permits (and other land use approvals) because of the financial crisis and recession that began in 2007–2008? ^[3]

We hold that a vested right to proceed with construction under an existing zoning use may be abandoned pursuant to a statutory provision that establishes reasonable prerequisites for abandonment, or where there is ample evidence of an intent to abandon or relinquish the vested zoning right. Because the Town Code of Chesapeake Beach § 290–27(E)(2) applies to all permits, and places reasonable restrictions on the life of a zoning permit, the Sizemores' failure to comply with § 290–27(E)(2) correctly resulted in the expiration of their permit and the abandonment of any vested right in that permit.

It follows that, in 2009, by challenging the determination that the zoning administrator was empowered to revoke the zoning permit under § 290–27(E)(2) for failure to substantially complete or satisfactorily proceed with construction, the Sizemores were challenging the Town's ability to extinguish their vested rights in the C–HD zoning under which construction of their restaurant was permitted. Therefore, we hold the Board did not err in its determination that whether the Sizemores had vested rights in the C–HD zoning was a matter that was "disposed of" in 2009.

Finally, we hold that the Board correctly declined to reconsider its 2009 decision after that decision had been appealed to both the circuit court and this Court and where the "Tolling Bill," 2009 Md. Laws, ch. 334 (SB 958) (codified at Maryland Code (1984, 2009 Repl. Vol.), State Government Article ("SG") §§ 11–201 & –202), abrogated June 30, 2010, was no longer in effect.

We affirm the judgments of the Circuit Court for Calvert County sustaining the Resolution of the Board.

BACKGROUND

In 1998, Joyce Sizemore purchased a home on a .43 acre lot, located at 8731 C Street in Chesapeake Beach, MD, 20732 (the "Property") for $157,000.00. In April 2000, she filed her first application for a zoning permit to construct a "2 story Takeout Restaurant & Storage w/ Parking Area" on the Property (the "Project"). At the time of the original permit application, the property was zoned for C–HD use. The restaurant and accompanying twenty-car parking lot proposed in the June 2, 2000, site plan for the "Beef & Reef" was a permitted use in the C–HD overlay zone.

The first zoning permit for the Beef & Reef restaurant was approved on January 18, 2001, and was issued as permit No. 4308. However, that permit was contingent on the outcome of a pending appeal brought by Bernard Gibson, one of the Sizemores' neighbors. The appeal was ultimately decided in the Sizemores' favor and, on April 12, 2001, permit No. 4308 was replaced with zoning permit No. 4364. After receiving the April 2001 zoning permit, the Sizemores began obtaining the other required permits for construction of Beef & Reef. On April 17, 2001, the Sizemores received their public water/sewer permit, No. 14272. In November of 2001, the Sizemores received permits for building and grading, No. 15259 and No. 15394, respectively. However, there is no evidence in the record that any construction occurred on the property prior to October 2003.

The 2003 Zoning Permit

For reasons that are not entirely clear from the record, on October 2, 2003, zoning permit No. 5077 replaced the two prior zoning permits. According to inspection reports, the footings for the building were constructed on October 15, 2003. The circuit court found, in its August 29, 2014, Findings and Order of Court, that, by February 2004, the building's foundation had been laid.

On February 19, 2004, the Town downzoned the Sizemores' property from C–HD to R–V. The R–V zone does not permit restaurants or other commercial establishments, such as the proposed Beef & Reef Restaurant.⁴ Additionally, the Town adopted a new provision, Town Code § 290–27(E),⁵ in the zoning ordinance, which states in pertinent part:

E. Expiration of zoning permit.

* * *

(2) If the work described in any zoning permit has not been substantially completed within two years of the date of issuance, unless work is satisfactorily proceeding thereon, said permit shall expire and be cancelled by the Administrator, and written notice thereof shall be given to the persons affected, together with notice that further work as described in the cancelled permit shall not proceed unless and until a new zoning permit has been obtained.

In September 2004, the Sizemores received permits for plumbing, gas, and electrical work. The record indicates that, by the end of September 2004, the electric slab and plumbing ground rough had been installed and inspected by the county.⁶ In late October 2004, the slab and ceiling close-in were inspected.

An additional "rough" inspection of the Property was completed on November 1, 2004. From that point, however, the record is unclear as to what, if any, work continued at the site.

On March 23, 2006, the town zoning administrator wrote to Appellant Joyce Sizemore, advising her that the construction was not proceeding in a timely manner as required and that the zoning permit would expire in October 2006, unless construction resumed. On September 22, 2006, the zoning administrator sent the Sizemores a second warning, stating that the zoning administrator had not observed any work on the property over the summer and that "if work resumes before Friday, October 6th, you will have satisfied the Calvert County Building Code and our Zoning Ordinance." However, the zoning administrator also strongly cautioned the Sizemores, stating that, "if the October deadline passes with no re-starting of the work on the project, your Zoning Permit will expire and the proposed use will no longer be permitted under the current Zoning. " (Emphasis added).

No action was taken to revoke the Sizemores' zoning permit in 2006 because, as reflected in the Zoning Administrator Staff Report in case No. 2009–1 before the Board, right after the warning letters were sent, "there was noticeable activity on the site, including the sealing and painting of the building exterior." The Sizemores then received confirmation from the Calvert County Division of Inspections & Permits on ...