Town of Sykesville v. West Shore Communications, Inc.

Decision Date01 September 1995
Docket NumberNo. 1452,1452
CourtCourt of Special Appeals of Maryland

Cynthia K. Hitt, Dennis J. Hoover and Siskind, Grady, Rosen & Hoover, P.A., on the brief, Baltimore, for appellant, Sykesville.

Judith S. Stainbrook and Bourexis & Stainbrook, on the brief, Westminster, for appellant, Losada.

George A. Lahey and Beth Evans, on the brief, Westminster, for appellant, County Com'rs.

Clark R. Shaffer, Westminster, for appellees.

Argued before MOYLAN, BISHOP, and HARRELL, JJ.

MOYLAN, Judge.

This appeal requires us to examine in some depth the law of vested rights in the context of zoning. For a right to proceed with construction under existing zoning to vest, three conditions must be satisfied: 1) there must be the actual physical commencement of some significant and visible construction; 2) the commencement must be undertaken in good faith, to wit, with the intention to continue with the construction and to carry it through to completion; and 3) the commencement of construction must be pursuant to a validly issued building permit.

The Town of Sykesville ("the Town"), the County Commissioners of Carroll County, and Kathleen Blanco-Losada ("Blanco-Losada") have appealed the affirmance of two decisions of the Carroll County Board of Zoning Appeals (B.Z.A.) by the Circuit Court of Carroll County. The decisions of the B.Z.A. concerned a two hundred (200) foot communications tower ("the Tower") sought to be built by one of the appellees, West Shore Communications, Inc. ("West Shore"), near Hollenberry Road in Sykesville for the use of its fellow appellee, Cellular one. The first appeal to the B.Z.A. was filed by the Town and by Blanco-Losada, a neighbor of West Shore's property, protesting the approval of the Site Plan for the Tower by the Carroll County Planning Commission ("Planning Commission.") That administrative appeal was heard by the B.Z.A. on October 26, 1994, at which time the Board orally denied the appeal. The B.Z.A. issued its written decision memorializing that denial of the appeal on November 22, 1994.

The second administrative appeal to the B.Z.A. was filed by West Shore and its chief operating officer, the appellee Mark Sapperstein, seeking reversal of the decision of the Carroll County Office of Inspections & Permits on October 31, 1994 to issue a stop work order on the construction of the Tower and the concurrent revocation of the appellees' building permit and zoning certificate. Both of those actions were taken immediately after the Carroll County Commissioners had enacted an ordinance that had the arguable effect of invalidating West Shore's Site Plan for the Tower. The B.Z.A. reversed those actions of the Office of Inspection and Permits on the ground that West Shore had acquired vested rights in its zoning certificate by engaging in substantial construction of the Tower prior to the revocation of its permits.

Both of those decisions of the B.Z.A. were appealed by the protestants of the project to the Circuit Court for Carroll County, which heard argument on the merits in a consolidated proceeding on April 21, 1995. The circuit court affirmed the B.Z.A.'s decision on the building permit revocation on the same substantive ground relied on by the B.Z.A., namely that West Shore had already acquired vested rights. The circuit court did not address the arguments presented by the Town and Blanco-Losada with respect to their appeal of the ultimate Site Plan approval by the B.Z.A.

There are in this case so many administrative actions by so many administrative agents and agencies, so many overlapping chronologies, and so many minor themes intertwined with the major themes that there is a real danger that the wheat will get lost in the chaff. As the appellants, especially, seek to replay every petty grievance that they feel they have suffered over the long course of this litigation, there is the attendant danger that we will be lured into concerning ourselves with issues that are, in the present appellate posture of the case, none of our business or with issues that once may have been of grave concern to the parties but that no longer matter. Before we can begin to focus clearly on what must be decided, we must clear away a lot of debris. Let us first, however, set the factual picture.

The Factual Background

In October, 1993, West Shore applied to the B.Z.A. for a conditional use permit and a building permit to construct the Tower. When the B.Z.A. conducted hearings regarding the request in January and February, 1994, the Town of Sykesville appeared in opposition to the request, as did neighboring property owners, who presented a petition with 600 to 700 signatures in opposition to the Tower. Nevertheless, the B.Z.A. approved the conditional use in a written decision dated March 31, 1994, subject to the requirement that West Shore obtain approval of its site development plan ("Site Plan") for the Tower from the Planning Commission.

Under then-existing law, the Planning Commission was authorized by Section 4.11 of the Carroll County Zoning Ordinance to approve site plans for free-standing towers. That section of the zoning ordinance conferred on the Planning Commission the discretion to require "a reasonable fall area," but it did not require the Planning Commission to do so. As a limitation on the exercise of that discretion, it provided that the "fall area may be as much as 100% of the tower height based upon reasonable safety considerations." (Emphasis supplied). Implicitly, the Planning Commission did not even possess the discretion to require a fall area in excess of 100% of the height of the Tower. In any event, this option was simply a discretionary one that the Planning Commission might impose.

In the face of the substantial opposition to this and other communications towers, the County Commissioners had drafted an ordinance on June 15, 1994, that would have, among other requirements, specifically mandated that such towers contain "a minimum setback of a distance equaling the height of the tower." The new ordinance would have removed the discretion theretofore enjoyed by the Planning Commission to insist upon or to dispense with a "fall area" based on 100% of the tower height. The draft ordinance would have applied to "any pending applications for which the Zoning Administrator has not issued a certificate" at the time of enactment of the ordinance. Until the enactment of that ordinance on October 31, 1994, however, such a "fall area" requirement was nothing more than a legislative possibility that might or might not ever come to pass.

What we must not lose sight of is the fact that the merits of granting a conditional use for the erection of the Tower to West Shore were determined by the B.Z.A. on February 10, 1994, following lengthy hearings on January 27 and February 7. The eleven-page opinion of the B.Z.A., granting the conditional use, was filed on March 31. That opinion made detailed and elaborate findings of fact, discussed all applicable law, and fully spelled out the reasoning behind the unanimous decision of the B.Z.A. That granting of the conditional use set in motion the routine administrative follow-up procedures, the first of which was to obtain the approval of the Site Plan by the Planning Commission.

On August 16, 1994, the proposed West Shore Site Plan came before the Planning Commission for consideration. All five Planning Commissioners were present, including its chairman, Louis J. Pecoraro. As a practice, the chairman would vote only in the event of a tie. The Planning Commission's alternate member, David Duree, was also present and available to replace a member unable to act on a measure. The Planning Commission's staff noted that the 200-foot fall radius surrounding the tower penetrated the land of two off-site property owners, one of whom was the appellant Blanco-Losada. The developers stated that they were attempting to get permission of entry should the Tower fall onto those properties. The staff report recommended that approval of the Site Plan be contingent on obtaining those permissions of entry.

The appellee Sapperstein, West Shore's chief operating officer, testified, however, that the off-site property owners were not cooperating in granting those approvals. He therefore requested that the Planning Commission, in its discretion, not impose a "fall area" requirement equal to 100% of the height of the proposed Tower. Ms. Blanco-Losada pointed out to the Planning Commission that such a 100% fall area requirement would be required according to the proposed legislation then under consideration by the County Commission. The Planning Commission nevertheless moved for a vote on the motion that the Site Plan be approved, provided "[t]hat no building permit or zoning certificate be issued until the Bureau of Development Review has received all agencies' approvals in writing and the site plan is finally approved."

That motion was approved by a vote of 2-1, thereby not imposing a requirement of a fall zone equal to 100% of the height of the Tower. Planning Commissioner Zeno Fisher abstained from the vote because of a perceived conflict of interest on his part. According to subsequent testimony before the B.Z.A. by alternate member Duree, prior practice would have allowed him to vote in place of a member with a conflict. Prior to the beginning of the session, however, the other members of the Commission had decided that Duree should not vote on any measures, presumably because all five voting members were present. Duree previously had indicated his opposition to the Tower; thus, had he voted in place of Fisher, it might be surmised that the Planning Commission would have been deadlocked, two to two. The Commission chairman, moreover, testified before the B.Z.A. that he would have voted against the motion in the event of a tie. 1 W...

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