United Parcel Service, Inc. v. People's Counsel for Baltimore County

• Citation: 650 A.2d 226,336 Md. 569
• Decision Date: 01 September 1992
• Docket Number: No. 140,140
• Parties: UNITED PARCEL SERVICE, INC. et al. and Baltimore County, Maryland v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, Maryland et al. ,
• Court: Court of Appeals of Maryland

Page 569

336 Md. 569

650 A.2d 226

UNITED PARCEL SERVICE, INC. et al. and Baltimore County, Maryland v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, Maryland et al.

No. 140, Sept. Term, 1992.

Court of Appeals of Maryland.

Dec. 6, 1994.

Henry R. Lord (Cynthia J. Morris, Piper & Marbury, Baltimore, on brief), Jack L.B. Gohn (Whiteford, Taylor &amp Preston, Baltimore, H. Emslie Parks, County Atty., Michael J. Moran, Associate County Atty., Towson, on brief), for petitioner.

Peter M. Zimmerman, Deputy People's Counsel (Phyllis Cole Friedman, People's Counsel for Baltimore County, J. Carroll Holzer, Maher, Demilio & Lee, on brief), Towson, for respondent.

Judson P. Garrett, Jr., Anne Arundel County, Neal M. Janey and Burton H. Levin, Baltimore, Barbara M. Cook and Paul T. Johnson, Ellicott City, Joyce R. Stern and Karen Federman Henry, Rockville, Michael P. Whalen and J. Michael Dougherty, Jr., Upper Marlboro, J. Joseph Curran, Jr., Atty. Gen., Andrew H. Baida and Norman E. Parker, Jr., Asst. Attys. Gen., Baltimore, for amici curiae.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, ^* CHASANOW, KARWACKI and BELL, JJ.

ELDRIDGE, Judge.

This case involves procedural issues relating to the exercise of jurisdiction by a county board of appeals.

I.

The controversy originated with United Parcel Service's, and its subsidiary Verbal Corporation's, ¹ desire to establish a parcel distribution facility in the Loveton Industrial Park at 14402 York Road, in Baltimore County. The Loveton Industrial Park has been zoned Manufacturing Light (ML) since 1973. UPS had targeted Loveton Industrial Park as an appropriate site for a distribution center as early as 1985, prior to acquiring the property.

In furtherance of its plans to acquire land and construct a facility at the Loveton site, UPS approached the Baltimore County Zoning Commissioner to obtain an informal determination whether its plans for the site conformed with the County's zoning laws. At a meeting on June 14, 1985, the Commissioner orally advised UPS that its proposed use at the Loveton site was permitted as of right under the applicable zoning classification. On July 8, 1985, UPS sent a letter to the Commissioner, seeking confirmation of his view. The letter was returned to UPS with the addition of a marginal note, dated July 10, 1985, in which the Commissioner wrote: "The aforementioned use of this property zoned ML is one that is permitted as of right & is OK." Subsequently, UPS purchased a 36-acre parcel within Loveton Industrial Park.

In order to construct a building in Baltimore County, one first must obtain a building permit from the Office of the Building Engineer, which is part of the Department of Permits and Licenses. Baltimore County Code (BCC) §§ 7-1, 7-36(a) (1988). ² Upon the filing of an application for a building permit, the Building Engineer provides the Zoning Commissioner with a copy of the application for his approval before a permit may issue. Baltimore County Zoning Regulations § 500.1. The Commissioner determines whether the application is in proper form and whether the proposed use "complies in all respects with the regulations then in effect with respect to zoning." Ibid. If the Commissioner approves the application, and all other requirements are met, the Building Engineer may then issue a building permit. If the application is denied, the applicant may petition the County Board of Appeals for review of the denial. BCC § 7-36(a)(3, 4).

On July 3, 1986, UPS applied to the Building Engineer for a building permit. Its application was approved by the Zoning Commissioner's office on August 18, 1986. After several other approvals were forthcoming, the Baltimore County Building Engineer issued the building permit on October 28, 1986.

After commencement of construction, Mr. Paul Hupfer, a local citizen, wrote a letter, dated January 11, 1987, to the Director of the Office of Planning and Zoning for Baltimore County. The letter referred to the construction of "a large warehouse style building in the Loveton Industrial Park which will be ... used ... by UPS," described what Mr. Hupfer believed would be the manner in which the building would be used, and asserted that the proposed use was not a permitted use. Mr. Hupfer stated that the facility fell within the category of "Trucking Terminal, Class I," which was permitted in the ML zone only by special exception. Mr. Hupfer pointed out that his search of the records disclosed no filing for a special exception for this facility. He "request[ed] that this letter be considered a formal recorded objection."

The Zoning Commissioner responded with a letter dated January 19, 1987. The Commissioner's letter stated in part as follows:

"The property in question is zoned ML, which permits warehousing as of right. After review of the UPS proposal, it was determined that the proposed use was and is in fact a warehouse, rather than a trucking facility as you suggest. Although obviously large trucks will be utilizing the facility, loading and unloading, the purpose of the site is to warehouse packages until such time as they are loaded for delivery.... I have determined that the use more closely resembles that of a warehouse than as a trucking facility.... [T]hus the building permit was issued.

* * * * * *

"In fact, your description of what would transpire at the site underscores the warehousing aspect of the proposed use. Transfer of the packages to other locations for final distribution is but one characteristic of a warehousing operation. I am more convinced than ever that the UPS is a warehouse operation and does not require a special exception."

Mr. Hupfer, joined by the Sparks-Glencoe Community Association, the Sparks-Quaker Bottom Community Association, and the Alexander Crossing Homeowners Association, Inc., in a letter to the Zoning Commissioner dated February 8, 1987, requested that the "letter decision dated January 19, 1987 ... be set for an appeal hearing before the County Board of Appeals of Baltimore County." Specifically, he stated that the matter to be decided was whether the UPS building permit "should be revoked for failure of UPS to apply for a Special Exception.... The ... issue is my total disagreement with your interpretation that the facility being constructed by UPS is a warehouse."

UPS contested the Board of Appeals' authority to entertain an appeal, arguing that any appeal should have been taken within 30 days from the issuance of the building permit. On April 29, 1987, the Board held a hearing, and on May 20, 1987, it decided that it had the authority to entertain the appeal. The Board rejected the argument by Mr. Hupfer and the associations that the Zoning Commissioner's January 19, 1987, letter to Mr. Hupfer was an appealable decision; in the Board's view, the Zoning Commissioner in 1987 simply confirmed his earlier decision. Nevertheless, the Board held that Mr. Hupfer and the associations could appeal from the "decision by Commissioner Jablon [that] was made no later than July 10, 1985, when his written interpretation of the proposed use was communicated to UPS."

Moreover, without conducting an evidentiary hearing, the Board decided that the appeal from the 1985 "decision" was not subject to a timeliness objection, even though the Baltimore County Code required that appeals from decisions of the Zoning Commissioner be taken within 30 days. The Board reasoned that the "discovery rule," as applied to the running of the general statute of limitations in Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 464 A.2d 1020 (1983), was applicable under the circumstances. The Board stated: "Although the appeal to this Board from ... [the Zoning Commissioner's] decision was well beyond the thirty-day period ..., we still believe it to be timely. It is clear that the appellants herein first discovered Zoning Commissioner Jablon's determination upon receipt of his letter of January 19, 1987. Further, their efforts to ascertain the Commissioner's position were, in our view, diligent." Thus, the Board held that the 30-day period for an appeal did not begin to run until receipt of the January 19, 1987, letter, when Mr. Hupfer and the various associations "reasonably discovered" the harm. The appeal to the Board was deemed to be timely because it was instituted within 30 days of January 19th.

UPS, joined by Baltimore County, then sought judicial review of this determination in the Circuit Court for Baltimore County. The circuit court dismissed the action, agreeing with Mr. Hupfer, the associations, and the People's Counsel for Baltimore County, that the Board's interlocutory decision was not immediately reviewable. ³ The Court of Special Appeals, in an unreported opinion, affirmed, and this Court denied a petition for a writ of certiorari, Verbal Corp. v. Hupfer, 313 Md. 31, 542 A.2d 858 (1988).

The merits of the case were then heard by the Board of Appeals. In a 2-1 decision, the Board held that the use determination was properly made and that no special exception was necessary. It alternatively held that UPS's use of the property was permitted under the "equitable doctrine of estoppel."

The protestants then brought in the Circuit Court for Baltimore County an action for judicial review. They challenged the Board's rulings on the merits; they also argued that the Zoning Commissioner's January 19, 1987, letter was an appealable decision and furnished the basis for the Board's authority to decide the case. In addition, UPS filed an action for judicial review, seeking review of the Board's decision that it had authority to entertain the appeal. The circuit court rejected UPS's contention that the Board of Appeals lacked authority to entertain the appeal. Moreover, the circuit court reversed the Board's decision on the merits, holding that the proposed facility was, as a matter of law, a trucking terminal. The court also held that the doctrine of equitable estoppel could not...