Steel v. Cape Corp.

• Decision Date: 01 September 1995
• Docket Number: No. 1541,1541
• Citation: 111 Md.App. 1,1996 WL 436012,677 A.2d 634
• Parties: Robin S. STEEL et al. v. CAPE CORPORATION. ,
• Court: Court of Special Appeals of Maryland

Page 1

111 Md.App. 1

677 A.2d 634

Robin S. STEEL et al. v. CAPE CORPORATION.

No. 1541, Sept. Term, 1995.

Court of Special Appeals of Maryland.

June 4, 1996.

Richard A. DeTar (Miles & Stockbridge, P.A., on the brief), Easton, for Appellants.

Harry C. Blumenthal (Sager A. Williams, Jr. and Blumenthal & Delavan, P.A., on the brief), Annapolis, for Appellee.

Argued before BLOOM and CATHELL, JJ., and JAMES S. GETTY, J. (retired), Specially Assigned.

CATHELL, Judge.

Robin S. Steel and other owners of property in Cape St. Claire appeal from a judgment of the Circuit Court for Anne Arundel County (Williams, J., presiding) that reversed the decision of the Anne Arundel County Board of Appeals (the Board), remanded the matter to the Board, and ordered the Board to grant a request to rezone the subject property owned by Cape Corporation, appellee, from OS (Open Space) ¹ to R5 (Residential).

Appellants pose two issues for our consideration:

1. Whether the Board of Appeals'[s] finding that the OS zoning within the Cape Corporation's Lot constitutes a mistake left the Board with no discretion and required it to grant the Cape Corporation's rezoning application without regard to issues concerning public health, safety and welfare such as the inadequacy of public schools, etc.[ ]

2. Even assuming that the Board of Appeals correctly exercised its discretion in denying the Cape Corporation's rezoning application based upon circumstances relating to the public welfare, must its decision be reversed because the decision results in an unconstitutional taking of the Cape Corporation's property[.]

Initially, we note that it is apparent that neither appellee nor the trial court (and certainly not appellants or the Board) took the position that, once a zoning mistake was found, ² the Board lacked discretion regarding whether it had to grant the rezoning based purely upon that mistake. From our reading of the entire record, all parties and determinative entities recognized that the finding of mistake merely opened the door to a consideration of rezoning--i.e., that the finding of mistake did not mandate rezoning. See White v. Spring, 109 Md.App. 692, 675 A.2d 1023 (1996). Consequently, we do not perceive that a resolution of appellants' first issue is necessary for our resolution of the case. Moreover, the trial judge, perceiving no issue in respect to the allegations of mistake and the Board's discretion to rezone, explicitly limited his ruling to the second issue. ³

The Relevant Facts

From our review of the proceedings before the hearing examiner, the Board, and the trial court, we perceive that the site in question was first rezoned from CR (Cottage Residential), permitting up to 7.2 residential units per acre, to OS (Open Space), apparently permitting no residential units, about 1971. ⁴ At that time, the Cape St. Claire Improvement Association's lease for the subject property had just expired. In the 1971 Anne Arundel County Comprehensive Rezoning, the Association, nevertheless, asserted that it had an ownership interest therein and, unknown to the property's owner, appellee here, requested that the property be rezoned to OS. Thereafter, still unknown to appellee, the County, apparently believing the Association to be the owner of the subject property, rezoned it as requested. It was not until 1978 that appellee learned that its property had been downzoned at the request of an entity improperly asserting an ownership interest in the property. ⁵ Appellee was allegedly informed that the property would be rezoned R5, effectively curing the 1973 mistake, in a 1987 comprehensive rezoning, but this was not done.

In the 1990s (perhaps beginning in the late 1980s), appellee entered into negotiations, and, ultimately, litigation, in respect to verifying its ownership of the subject property. The dispute was resolved in appellee's favor in 1993, when this Court rendered an opinion affirming appellee's ownership of the property. Appellee then initiated the rezoning request that resulted in the circuit court decision now on appeal. We have capsulized the early history of the property in order to demonstrate how it was inappropriately downzoned initially to an open space classification. As we shall indicate, an OS (Open Space) classification was obviously intended for public property or private property whose owners seek to preserve their property's open space characteristics.

Article 28 of the Anne Arundel County Code (1967) ⁶ specifies:

§ 6-204. Land included.

Open Space Districts shall include:

(1) lands in the natural drainage system, including wetlands, marshlands, swamplands, and lands in the floodplain;

(2) private and public land used or proposed to be used for passive or active subdivision recreation, community recreation, or regional recreation; and

(3) lands designated as structural open space in the General Development Plan or detail plan of open space.

§ 6-205. Permitted uses.

(a) The following uses are permitted as permitted uses in Open Space Districts subject to the approval, where applicable,

of the State Department of Natural Resources, the Soil Conservation Service, the Department of Public Works, the Department of Utilities, the Health Department, and the Department of Recreation and Parks:

(1) alcoholic beverage uses as ancillary to permitted uses in accordance with the provisions of § 10-118 of this article;

(2) conservation uses, practices, and structures for the maintenance of the natural environment;

(3) existing residential uses;

(4) farming or nurseries, including truck gardening, grazing of livestock, and other similar activities if:

(i) the use does not change the stability of the land; and

(ii) with the exception of grazing, the use is not located in the natural drainage system;[ ⁷

(5) nonresidential structures, including barns, stables, and kennels, for the sheltering, breeding, boarding, hiring, or selling of an animal and for storage of crops raised on the premises, provided that the use is not permitted in the natural drainage system;

(6) nonprofit camps, including dormitories, cabins, and structures for administrative, maintenance, and custodial activities of the camp, if the structures are not located in the natural drainage system;

(7) public beaches;

(8) rights-of-way or easements to provide for access to inaccessible areas;[ ⁸ (9) structures for administrative and custodial uses of the principal use of the site, if:

(i) building coverage, including parking, does not exceed 20% of the site; and

(ii) the structures are not located in the natural drainage system;

(10) temporary structures for boating, swimming, fishing, hunting, golf courses, ice skating, nature study, picnic areas, play areas, stables, and stands for the sale of products raised on the premises;

(11) permanent structures on land for hunting, golf courses, ice skating, nature study, picnic areas, play areas, and stables, if the structures are not located in the natural drainage system;

(11A) piers and ramps; and

(12) other recreational and conservation structures consistent with the objectives of an Open Space District in conjunction with the uses listed in this section.

(b) In an Open Space District, a recreational pier is permitted as a conditional use subject to the conditions of § 2-204(b)(3B) of this article.

§ 6-206. Special exceptions.

In an Open Space District, public utilities and public utility uses are permitted as special exceptions.

§ 6-207. Setback requirements.

A use or structure other than a pier, conservation use, passive recreational use, or beach in an Open Space District may not be located:

(1) less than 50 feet from any lot line; or

(2) less than 75 feet from any street right-of-way.

Section 6-202(a) states that the purpose of OS zoning is to preserve open spaces for recreational purposes, to protect persons and property from flooding and water pollution, and "to protect the County against costs if development ... is not compatible with the natural environment." The purpose section of the statute provides further that "OS-Open Space Districts are intended to guide, define, and protect development, communities, land uses, and environmental study areas through proper location of open space areas." Art. 28, § 6-202(b).

It is clear that OS zoning was not intended, nor does it encompass any viable residential uses in the district, unless they were grandfathered, i.e., already existing. In the present case, we have found no indication in the record that residential structures are currently on the site.

The trial judge described the uses permitted in OS zones:

The permitted uses of an OS-open space district are general recreational uses which preserve and protect the natural environment. See Anne Arundel County Code [Art. 28,] § 6-202, 6-205. Permitted uses on Appellant's 3.12 acre parcel would include: conservation uses and structures for the maintenance of the natural environment; farming or nurseries; nonresidential structures, including barns, stables, and kennels; nonprofit camps; temporary structures for boating, swimming, fishing, hunting, golf courses, ice skating, nature study, picnic areas, play areas, etc.; and other recreational and conservation structures. [Art. 28,] § 6-205.

The parties do not challenge that description. Moreover, there was evidence that OS zones were intended to be imposed upon either publicly controlled property or private property, at the request of the owners of that property.

Gary T. Westholm, an expert in planning, land use, and appraisal, testified before the Board that OS zoning was intended for governmentally or community-owned land. The Board of Appeals noted that, according to Mr. Westholm,

this property does not meet the definition for land in OS; this is private, not public land. The property does not comply with OS zoning which is for recreational uses, to handle flooding, and to protect the county against cost.

In its...