Von Lusch v. Board of County Com'rs of Queen Anne's County

• Citation: 330 A.2d 738,24 Md.App. 383
• Decision Date: 22 January 1975
• Docket Number: No. 463,463
• Parties: Richard von LUSCH et ux. v. BOARD OF COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY et al.
• Court: Court of Special Appeals of Maryland

Page 383

24 Md.App. 383

330 A.2d 738

Richard von LUSCH et ux. v. BOARD OF COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY et al.

No. 463.

Court of Special Appeals of Maryland.

Jan. 22, 1975.

Herbert W. Reichelt, Mount Rainier, with whom was James F. Vance, Camp Springs, on the brief, for appellant.

James E. Thompson, Jr., Robert R. Price, Jr., Centreville, and Franklin Goldstein, Baltimore, with whom was Vachel A. Downes, Jr., Centreville, on the brief, for appellee.

Argued before MOYLAN, POWERS, GILBERT and MASON, JJ.

GILBERT, Judge.

This case makes its second appearance in the Appellate Courts. The first time that it was present, the Court of Appeals, speaking through Judge Barnes, reversed the Queen Anne's County Circuit Court's approval of a zoning text amendment adopted by the Board of County Commissioners of Queen Anne's County (Board). See von Lusch v. Bd. of Co. Commrs., 268 Md. 445, 302 A.2d 4 (1973). The Court, in reversing, found it unnecessary to dicide three of the then five issues posed to it by von Lusch. The decision of the Court of Appeals turned on the Board's passing of an ordinance in which both commercial and private, non-commercial, airports were classified as conditional uses notwithstanding the fact that the County Planning Commission had recommended a non-conforming use status for airports, and the public notice required by Md.Ann.Code art. 66B, § 4.04 had referred to non-conforming use. ¹ See Rasnake v. Bd. of County Comm'rs, 268 Md. 295, 300 A.2d 651 (1973).

Following the reversal by the Court of Appeals, the Board once again embarked on a course designed to amend the ordinance so as to accomplish the result it seemingly desired. This time the Planning Commission recommended that airports, commercial and private, non-commercial, be classified as a conditional use and the public notice concerning the proposed amendment to the Zoning Ordinance so stated. Von Lusch was not mollified by the Board's compliance with the holding of the Court of Appeals inasmuch as he desired that the use of the Bay Bridge Airport, owned by Kent Island Limited Partnership, should be 'grounded'. Mr. von Lusch ² regarded the proposed amendment as 'another crude, biased, unethical attempt to pull . . . (Bay Bridge Airport's) chestnuts out of the fire.' The Board, after making findings of fact, adopted the proposed amendment to the ordinance. In so doing the Board stated:

'We have had the testimony of Mr. and Mrs. von Lusch . . . and Mr. Stevenson ³ typed by the reporter and we have read and reread the testimony. It is quite obvious that with the exception of Mr. Stevenson there is no objection to the proposed Ordinance except for that portion thereof which 'blankets in', by virtue of what might be termed a 'grandfather's clause', the Bay Bridge Airport. Obviously, if there is to be a 'grandfather's clause' it must apply to all airports and the Commissioners cannot pick and choose among them. The existing airports have given us considerable concern but this is not the first time that we have faced a similar problem. Because our Comprehensive Ordinance did not adequately treat the relatively new craze of camping and camping trailer parks, this subject was studied by the Planning Commission, a recommendation made, hearing held, and new Ordinance adopted. At that time (because some existing trailer camps were principal permitted uses, some conditional uses, some accessory uses, etc.) the Planning Commission recommended and the County Commissioners adopted an Ordinance which 'blanketed in' all camping facilities regardless of their prior status as conditional uses and made all future application, in whatever district in the county, a conditional use to be heard by the Board of Appeals. We feel that the same situation prevails here and that we should be consistent.'

Von Lusch appealed to the Circuit Court for Queen Anne's County, and thereafter filed a suggestion for removal. Md. Rule 542. The matter was removed to the Circuit Court for Cecil County where Judge H. Kenneth Mackey affirmed the Board's adoption of the amendment to the Queen Anne's County Comprehensive Zoning Ordinance, thus setting the stage for this appeal.

Von Lusch assigns seven reasons for this appeal. We shall discuss each of the contentions.

I.

'The ordinance adopted is ultra vires and void for failure to accord with the statutory zoning purposes.'

The appellants in their brief set forth with only slight modification to bring their argument to date, where applicable, the same contention they made in, but which was not considered by, the Court of Appeals in von Lusch primus. The thrust of appellants' argument is that while the amendment to the ordinance is directed, ostensibly toward all commercial and private, non-commercial airports, landing fields and air strips within the county it, in reality, is concerned solely with validating what von Lusch deems to be an existent invalid operation of Bay Bridge Airport. Appellants perceive some devious purpose on the part of the Board in adopting the amendment. The appellants seem to agree, however, that the aim of the ordinance is correct, but argue that the inclusion of Bay Bridge Airport within the scope of the ordinance is wrong.

The County Planning Administration testified before the Board that 'aviation, airfields or railroads' simply were not mentioned in the 'Master Plan' and when referred to in the Comprehensive Zoning Ordinance of 1964, the references thereto were 'vague'. The present 'Airport amendment' was recommended by the Planning Commission '(i)n order to correct prior omissions, vaguenesses and inadequacy regarding Airports, air fields, and landing strips' in the comprehensive zoning ordinance. There are, according to the Planning Administration, three airfields in Queen Anne's County. The number of private landing strips was niot stated.

The amendment assailed in this Court provides:

'BE IT ORDAINED, that Article 17 of the Comprehensive Zoning Ordinance be amended by adding new Sections 17.14, 17.141 and 17.142 to read as follows:

17.14-Airports

In any district an airport, airfield, landing strip, seaplane base or any similarly designed area for the landing or taking off of aircraft, either as a principal use or accessory use, shall be a conditional use and subject to approval of the Board of Appeals, provided that:

a. The area shall be sufficient to meet with Maryland State Aviation Commission and applicable Federal requirements for the class of airport proposed.

b. No application for a commercial airport shall be considered, unless it is accompanied by a plan, drawn to scale, showing the proposed location of the airport, boundary lines, dimensions, names of owners of abutting properties, proposed layout of runways, landing strips or areas, taxi strips, aprons, roads, parking areas, hangars, buildings and other structures and facilities; the location and height of all buildings, structures, trees and overhead wires falling within the airport approach zones and less than five hundred (500) feet distant from the boundary lines of the airport. Other pertinent data such as topography and the grading plan, drainage, water and sewage, etc. may be required if deemed necessary by the Board of Appeals.

c. No application for a private, non-commercial airport shall be considered unless it is accompanied by a plan showing the proposed location of the airport, boundary lines, dimensions, names of owners of abutting properties, proposed layouts of runways, landing strips of areas, taxi strips, aprons, roads, parking areas, hangars, buildings and other structures and facilities; the location and height of all buildings, structures, trees and overhead wires falling within the airport approach zones and less than two hundred (200) feet distant from the boundary lines of the airport.

17.141

Every existing airport, airfield, landing strip, seaplane base or any similarly designed areas for the landing and taking off of aircraft whether the same be private, commercial or non-commercial existing as of the date of enactment of this amendment shall be deemed a conditional use as of that date but the same shall not be extended or enlarged by complying with the procedures set forth in Section 17.14. Provided further, however, that any existing commercial airport shall comply with that portion of Section 17.14 which requires a plan drawn to scale; said plan to be provided to both the Board of Appeals and the Planning Commission within six (6) months of the date of enactment of this amendment.

17.142

The enactment of Section 17.14, 17.141 and this Section shall supersede all other regulations regarding airports, airfields, landing strips, and the like set forth in this Ordinance whether as an accessory or principal use.'

The law of this State is well settled that the same presumption of correctness attaches to a comprehensive zoning amendment as attaches to a comprehensive zoning plan and the 'change-mistake rule' is not applicable thereto. Scull v. Coleman, 251 Md. 6, 246 A.2d 223 (1968); Roberts v. Grant, 20 Md.App. 247, 315 A.2d 103 (1974), cert. denied, Court of Appeals, May 17, 1974.

There was substantial evidence before the Board to the effect that the original comprehensive zoning plan, with respect to airports, airfields and landing strips, was vague and inadequate. In the light of such evidence we cannot say that the Board, in amending the original comprehensive zoning ordinance, acted in a 'clearly arbitrary, unreasonable and discriminatory (manner).' Cassel v. City of Baltimore, 195 Md. 348, 73 A.2d 486 (1950). Even though the appellants presented testimony to refute the desirability of the Bay Bridge Airport, the evidence, considered as a whole, was fairly debatable. Under such circumstances the Courts are not free to substitute their judgment for that of the zoning authorities. Scull v. Coleman, supra; Bosley v. Hospital, 246 Md. 197, 227 A.2d 746 (1967); Missouri Realty, Inc. v....