Sizemore v. Town of Chesapeake Beach , 225 Md. App. 631 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1607
September Term, 2014
JOYCE E. SIZEMORE, et al.
v.
TOWN OF CHESAPEAKE BEACH,
MARYLAND, et al.
Nazarian,
Leahy,
Wilner, Alan M.
(Retired, Specially Assigned)
JJ.
Opinion by Leahy, J.
Filed: November 25, 2015
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
1
Adopted as Zoning Ordinance 7-204 on February 19, 2004.
1
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
2
The Sizemores’ appeal to this Court was dismissed on December 21, 2011, upon
the Sizemores’ failure to file briefs and record extracts, and following their written request
to dismiss the case.
2
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.
3
We note that the Sizemores’ first, second, and third questions are exceedingly
entangled such that we depart from our normal order of review. While it is generally
standard practice to address a waiver issue prior to proceeding to the merits, the necessary
predicate to that determination is whether vested rights were at issue in the 2009 hearing.
We are thus required to first examine (1) whether the Sizemores had obtained a vested right
in their zoning permit, (2) whether vested rights can be abandoned, and (3) whether failure
to comply with Town Code of Chesapeake Beach § 290-27(E)(2)—the zoning ordinance
at issue in the 2009 hearing—resulted in the abandonment of the Sizemores’ vested rights,
thereby placing vested rights at issue in the 2009 hearing.
3
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.
4
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:
4
Town Code § 290-9(E) defines the purpose of R-V:
E. R-V Residential Village District. The R-V District is intended to provide
pleasant and safe residential uses that are compatible with residential
character, and to encourage and facilitate redevelopment and infill that is
compatible in use, scale, and impact with residential use and the existing
pattern of buildings, streets and blocks.
Per the Town Code, Table 1, Land Use Classifications, restaurants of any kind are not
permitted in R-V zones.
5
The Town Code previously contained § 904, a more narrow provision that stated:
Life of a Permit: Any erection, construction, reconstruction, alteration or
moving of a building or other structure, including a sign authorized by a
zoning permit shall be commenced, and any change in use of a building or
5
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
land authorized by a zoning permit shall be undertaken within one (1) year
after the date of issuance of the permit. If not, the permit shall be considered
null and void.
Town Code § 904 (adopted May 26, 1972).
6
The building inspection report for the plumbing ground rough dated September
29, 2004, states “No test on system, pipes covered, no plans on site, need plumber to meet
on site,” followed by a hand written “Ok.” This document shows that the plumbing existed
and was installed by that date, even though the inspection reports show that these items
were not inspected until October 13, 2004, and November 1, 2004.
6
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 October 30,
2006, that their building permit would remain in effect until October 1, 2007, or “as long
as there is continuous and reasonable progress being made on your project.” Notably, this
letter also cautioned the Sizemores:
[A] permit under which work has begun and stopped for any reason shall
become null and void one year after the work has stopped. Work will be
considered stopped when the builder fails to prosecute the work so as to
ensure completion within a reasonable period of time considering the type of
construction involved. If one year from []now we feel that work has not
continued to progress you will receive written notice from this office and you
may be required to re-apply for and obtain a new permit to complete the
required work. If this is not accomplished within 90 days of receipt of
7
notification you may be required to remove or demolish the building or
structure within 180 days from the date of the written notice.
Subsequent inspection reports show that the plumbing and gas appliances were
installed in December 2006. The record does not reveal any construction activities for
another year-and-a-half until the next inspection report was issued on March 5, 2008, for
inspection of the insulation on the Project. Then, more than a half-year went by until on
October 28, 2008, after finding that work had not satisfactorily proceeded, the zoning
administrator again wrote to the Sizemores asking them to provide the “developer’s ‘case’
as to why the permit should not be revoked.” According to the Zoning Administrator Staff
Report, the only response the Sizemores provided was the letter from State Highway
Administration (“SHA”) regarding SHA’s intention to construct the “depressed curb and
sidewalk at the proposed entrance location, as a part of the SHA’s Streetscape Program.”
Finding that there had been neither satisfactory progress nor substantial completion of the
site plan during the preceding five years, the zoning administrator sent the Sizemores notice
by certified mail, on January 12, 2009, that he was revoking Permit No. 5077.7
On February 13, 2009, the Sizemores filed an appeal with the Board of Zoning
Appeals, asking the Board to reinstate the permit and to allow work to continue. After
hearings on April 7 and May 19, 2009, the Board issued its opinion in a Resolution dated
7
The parties failed to include this letter in the record, but it is referenced by the
Board of Zoning Appeals in their 2013 opinion, in the memorandum staff report sent from
the zoning administrator to the Board of Appeals on April 23, 2013, in the Board of Appeals
Zoning Administrator Staff Report, and in a letter from Appellant to Bruce Wahl, the
Mayor of Chesapeake Beach, dated September 12, 2011.
8
July 28, 2009, upholding the zoning administrator’s revocation of the 2003 zoning permit
(No. 5077). Written and oral testimony before the Board evidenced that there had been
little activity on the site for five years, many “integral components” of the construction
remained incomplete, and that there was no evidence that the Sizemores could have secured
or had secured financing to complete the Project. The Board also considered written and
oral testimony from several property owners in the vicinity of the Project. A letter from
Bernard Gibson, dated March 31, 2009, indicated that the last time Mr. Gibson saw
construction activity on the Project site was in October 2004. A letter from Patricia Gibson
stated that no detectable progress had been made on the Project in four years. Mr. and Mrs.
Alvin Mayo also testified that, to their knowledge, no substantial construction activity had
occurred on the Project since February 2006.
The Board found that, based on the evidence presented, the Sizemores failed to
comply with Town Code § 290-27(E) by “satisfactorily proceeding” with construction.
The Board’s Resolution dated July 28, 2009, stated:
While some work on the Project has been completed, the Board agrees with
the statement made by the Zoning Administrator in his January 12, 2009
letter to [the Sizemores] that a substantial amount of work has yet to be
completed. Contrary to the provisions of Section [290-27] of the Zoning
Ordinance, the work under the permit had not been completed within two
years of the date of its issuance nor can the Board agree with [the Sizemores]
that a satisfactory progress toward completion of the work is being made.
Consequently, the Board is without authority to [reverse the decision of the
Zoning Administrator].
(Emphasis added).
On August 28, 2009, the Sizemores petitioned for judicial review in the Circuit
Court for Calvert County. They filed a memorandum with the circuit court on May 20,
9
2010, and argued that the zoning permit should not have been revoked because, among
other reasons, any lack of progress on the Project was due, in part, to the harassment by the
Town in helping neighbors to fight the Sizemores both in and out of court. The Sizemores
argued, also for the first time, that the amendment to the Town’s zoning ordinance should
have had a grandfathering provision, and, that under the Tolling Bill, 2009 Md. Laws, ch.
334 (SB 958), their permit should have been tolled until June 30, 2010.
Governor O’Malley approved the Tolling Bill on May 7, 2009, and its effects were
made retroactive to January 1, 2008. 2009 Md. Laws, ch. 334 (SB 958). According to the
preamble of the bill, the purpose of the Tolling Bill was to toll certain permits issued by
the State, or any county or municipality, until June 30, 2010, for the reason that “[t]here
exists a state of national recession, which has drastically affected various segments of the
Maryland economy, but none as severely as the State’s banking, real estate, and
construction sectors.” Id. The Sizemores averred that they learned of the Tolling Bill from
a county employee after the Board upheld the zoning administrator’s revocation of the
2003 permit (No. 5077). The Sizemores argued before the circuit court that the Tolling
Bill should have applied to their permit, which was still active on January 1, 2008, the date
to which the Tolling Bill retroactively applied. They maintained that their zoning permit
could not have been revoked prior to June 30, 2010, and that the Town was required to
give them additional time to complete the Project.
In response to the August 28, 2009, petition for judicial review, Appellees filed a
motion to dismiss arguing that the Sizemores failed to file a memorandum of law as
10
required by Maryland Rule 7-207(a). The circuit court held a hearing on July 15, 2010,
and, on August 11, 2010, granted the Town’s motion to dismiss.
The Sizemores then sought review of the Board’s 2009 decision in this Court. That
appeal was received and docketed in this Court on February 25, 2011. But, on October 5,
2011, the Sizemores filed a line requesting that their appeal be dismissed.
The 2012 Zoning Permit Application
On July 20, 2012, Appellant Stephanie Sizemore wrote to the zoning administrator,
asking him to reinstate the 2003 zoning permit, arguing again that it was protected by the
Tolling Bill. When that effort proved unfruitful, at some point in 2012, Appellant
Stephanie Sizemore again obtained legal representation, and the Sizemores’ new counsel,
Sager A. Williams, Jr., sent a letter to the zoning administrator dated September 24, 2012,
asserting that, “on behalf of [his] client, Ms. Joyce E. Sizemore . . . ,” he was applying for
“a new Zoning Permit for the Café building and business, which Ms. Sizemore is
submitting under the provisions of § 290-27 of the Town’s zoning ordinance.” The letter
also asserted:
Under the common law and the Town’s zoning ordinance . . . revocation of
the [2003] Zoning Permit had no effect on [the Sizemores’] previously
acquired vested right. Under the common law, [the Sizemores’] vested right
remains in effect either until [they] abandon[] the right—which [they] ha[ve]
never done—or until the Town pays [them] just compensation for the right—
which the Town has never done.
On October 3, 2012, the Sizemores applied for a new zoning permit for the “Beef
& Reef Restaurant.” In a letter from the zoning administrator, dated February 11, 2013,
the Sizemores were notified that their application for a new zoning permit had been denied
11
because “the property at 8731 C Street is zoned Residential Village (RV)” and that a
restaurant is not a permitted use in the RV zone.
The Sizemores filed an appeal with the Board on March 11, 2013, arguing that the
zoning administrator’s February 2013 decision was arbitrary and capricious because the
Sizemores had a vested right to continue construction of the restaurant that did not
terminate upon cancellation of the 2003 zoning permit. The Sizemores further argued that
they did not abandon their vested right because they never had the requisite intent to
abandon. The Sizemores asserted that the Tolling Bill prevented them from losing their
vested rights and provided an overriding public policy justification for the Board to
recognize such vested rights.
In response, the Town argued that the Sizemores had waived both the Tolling Bill
and the vested rights arguments by not raising them before the Board in 2009. On May 7,
2013, and August 20, 2013, the Board held hearings on the appeal. In the interim between
hearing dates, on May 24, 2013, the Sizemores filed a motion to reconsider requesting that
the Board consider the application of the Tolling Bill to the 2009 decision.
In an oral vote taken at the August 20, 2013, hearing, the Board affirmed the zoning
administrator’s denial of a new permit. In its written opinion, dated December 13, 2013,
the Board determined that the tolling law to which the Sizemores referred was approved
by the Governor on May 7, 2009, prior to the close of the hearing in Case No. 2009-1 and
should have been presented to the Board in that case. Accordingly, because it was not
presented then, the Board concluded that the issue had been waived. Regarding the vested
rights issue, the Board stated:
12
[T]he Appellant cannot do indirectly what she cannot do directly; that is, she
cannot initiate a new request in hopes of reviving any rights she had or may
have had under the prior case.
***
The issue of vested rights is an issue that involves the Town and the
Appellant regarding the Permit and the Appellant’s ability to proceed with
construction under the permit; the same parties and the same subject matter
before the [Board] in Case No. 2009-1. The matter was disposed of by the
[Board] in 2009. Accordingly, the [Board] finds that it need not make a
determination with respect to this issue at this time.
The Board explained why the Town was justified in treating the Sizemores’ failure to make
progress on the construction as an abandonment:
Appellant’s failure to comply with the [Town Code] amounts to a lack of
intent to complete the project, which could be interpreted as an abandonment
of the project.
***
Appellant would have the [Board] find that obtaining vested rights gives one
the ability to leave a building partially constructed indefinitely and that the
person not be required to comply with Town Code requirements. The [Board]
is not persuaded to support such a conclusion.
Additionally, because the property was downzoned to an R-V zone, the Board found that
the zoning administrator correctly denied the Sizemores a new zoning permit for the Beef
& Reef.
On January 13, 2014, the Sizemores filed the underlying petition for judicial review
of the Board’s 2013 decision in the Circuit Court for Calvert County. After a hearing on
August 14, 2014, the circuit court issued its opinion on September, 2, 2014, upholding the
13
Board’s decision to deny the Sizemores a new permit and declining to re-open their 2009
opinion. The Sizemores noticed the instant appeal on September, 29, 2014.8
STANDARD OF REVIEW
When an appellate court reviews a decision of an administrative agency, that court
must look past the circuit court’s decision to review the agency’s decision. Halici v. City
of Gaithersburg, 180 Md. App. 238, 248 (2008) (citing Anderson v. General Cas. Ins.
Co., 402 Md. 236, 244 (2007)). This Court must primarily “determine whether the
agency’s decision is in accordance with the law or whether it is arbitrary, illegal, and
capricious.” Md. Dep’t of the Env’t v. Ives, 136 Md. App. 581, 585 (2001) (quoting
Gigeous v. Eastern Correctional Institution, 132 Md. App. 487, 494 (2000)). “In other
words, ‘[w]e apply a limited standard of review and will not disturb an administrative
decision on appeal if substantial evidence supports factual findings and no error of law
exists.’” Long Green Valley Ass’n v. Prigel Family Creamery, 206 Md. App. 264, 274
(2012) (quoting Tabassi v. Carroll County Dep’t of Soc. Servs., 182 Md. App. 80, 86
(2008) (citation omitted)).
8
Appellees in the present matter are the Town of Chesapeake Beach, Bruce A.
Wahl, Mayor, and Christopher Jubiak, Planning and Zoning Administrator.
14
DISCUSSION
I.
Vested Rights
A. Establishing a Vested Right
In Prince George’s County, Maryland v. Sunrise Development Ltd. Partnership, the
Court of Appeals held that rights to continue construction after a change in the zoning law
vest when (1) the work done is recognizable by a “reasonable member of the public,” and
(2) construction commenced pursuant to a building permit for a use then permitted under
the zoning law. 330 Md. 297, 314 (1993). Stated another way, vested rights are acquired
when (1) there is actual physical commencement of some “significant and visible
construction,” (2) the construction was commenced in “good faith,” with the intention to
complete the construction, and (3) the construction was commenced “pursuant to a validly
issued building permit.” Town of Sykesville v. West Shore Communications, Inc. 110 Md.
App. 300, 305 (1996). Once acquired, a vested right in the permit protects the permit
holder from changes to the zoning ordinance that would otherwise disallow the use being
constructed. See id.at 328 (stating that once an owner obtains a vested right, their “right to
complete and use th[e] structure cannot be affected by any subsequent change of the
applicable building or zoning regulations.” (quoting Prince George’s Cnty. v. Equitable
Trust Co., 44 Md. App. 272, 278 (1979))).
In the present matter, the Sizemores had a valid building permit when they began
construction in October 2003. Per inspection reports included in the record, the footings
of the restaurant were completed in October 15, 2003, before the zoning ordinance changed
15
in February 2004. The record on appeal is unclear as to the extent of any additional
construction completed by February 2004; however, the August 29, 2014, Findings and
Order of the circuit court relates that, by February 2004, the building’s foundation had been
laid. The operative determination, however, is whether or not a “reasonable member of the
public” could recognize that work was done. Sunrise Dev’p Ltd., 330 Md. at 314. Here
the record is clear that neighbors knew of the construction and, in fact, appealed the initial
zoning permit in 2001, and in 2009, testified before the Board about interim construction
activities. The parties do not dispute or even discuss whether the Sizemores possessed
“good faith” in commencing construction on the Beef & Reef, and there is no evidence in
the record to suggest that the construction was begun with the intent to leave the building
incomplete. The correspondence contained in the record proves the Town permitted—
actually encouraged—the Sizemores to complete construction of the restaurant after 2004.
The Board presumed that the Town took these measures because the Sizemores had a
vested right in their zoning permit. Therefore, and because there is not sufficient evidence
in the record to demonstrate otherwise, we also presume that the Sizemores had a vested
right to continue construction of their restaurant under the 2003 zoning permit after their
property was downzoned in 2004.9
9
The Sizemores stress in their reply brief that a vested right is obtained from a
building permit, not a zoning permit. They argue that their building permit remained valid
after their zoning permit was revoked, and therefore, they have not lost their vested right.
We disagree for two reasons. First, we conclude that, under the legal construct of the
ordinances and statutes applicable in this case, a zoning permit is a necessary pre-requisite
to obtaining and retaining a valid building permit. Thus, when the zoning permit expires,
construction can no longer proceed, rendering the building permit ineffective. See Town
of Chesapeake Beach, Zoning Permit Application Process, http://www.chesapeake-
16
B. Abandonment of Vested Rights
The Sizemores argue that they did not abandon their vested right to construct a
restaurant on their property. They maintain that vested rights in a zoning permit should be
treated like rights under a nonconforming use permit, and that the abandonment standard
for nonconforming use—in the absence of a statute—requires a finding of intent by the
party to abandon the property right.10 The Sizemores contend that the Board did not find
that the Sizemores intended to abandon their vested right and that the failure to comply
with Town Code § 290-27(E)(2) alone does not support a finding of the intent to abandon.
Appellees disagree and challenge the proposition that nonconforming use precepts
should provide the criteria for abandonment of vested rights. Appellees argue that, if the
Sizemores had acquired a vested right in continuing construction of the restaurant, it was a
beach.md.us/forms_zoningpermit.htm (last visited October 5, 2015); see also Calvert
County Code, Building Construction- Permits- Requirements for issuance, § 105.4.1
(amended December 17, 2013). Second, the Sizemores failed to demonstrate to the Board
(nor is there anything in the record on appeal) that their building permit did not expire, per
the letter from the Calvert County Division of Inspections and Permits, after there was no
longer “continuous and reasonable progress being made on [the Project].”
10
Per the Town Code, § 290-28(A), a nonconforming use is “a use of a building or
lot that does not conform to a use regulation prescribed by this chapter for the district in
which it is located, but which was in existence at the effective date of this chapter, and was
lawful at the time it was established.” To qualify as a nonconforming use, the use must
exist at the time of the enactment of the zoning ordinance, or the date the zoning ordinance
became effective. A valid and lawful nonconforming use is established if a property owner
can demonstrate that before, and at the time of, the adoption of a new zoning ordinance,
the property was being used in a then-lawful manner for a use that, by later legislation,
became non-permitted. Trip Associates, Inc. v. Mayor & City Council of Baltimore, 392
Md. 563, 573 (2006) (citations omitted). The Sizemores do not argue that they have a
nonconforming use, because Beef & Reef has never been “in existence” as a functioning
restaurant.
17
“right to proceed under the zoning permit in accordance with the terms of the Town’s
Zoning Ordinance.” Because the Sizemores failed to comply with § 290-27(E)(2) of the
Town Code by failing to substantially complete construction or satisfactorily proceed for
the two years prior to 2009, Appellees argue that the permit and any vested rights that may
have existed were properly revoked by the Board’s 2009 decision.
We can find no case in Maryland that addresses whether and how a vested right to
continue construction following a downzoning, pursuant to a valid zoning or building
permit, may be abandoned. We do find utility in the analogy to nonconforming uses—
unfortunately, not to the Sizemores’ advantage. Maryland courts have long held that
nonconforming uses can be abandoned through a finding of (1) “an intention to abandon
or relinquish”; and (2) “some overt act, or some failure to act, which carries the implication
that the owner neither claims nor retains any interest in the subject-matter of the
abandonment.” Landay v. Board of Zoning Appeals, 173 Md. 460, 469-70 (1938) (citing
1 C.J.S. Abandonment, 8). Alternatively, where there is a statute that establishes how a
nonconforming use may be abandoned, the element of intent of the possessor of the
nonconforming use is eliminated as an element of consideration, and the statute prevails.
Canada’s Tavern, Inc. v. Town of Glen Echo, 260 Md. 206, 210-11 (1970) (citations
omitted).
Other jurisdictions have drawn from their similar nonconforming use abandonment
standards and held that a vested right to continue construction can be abandoned. For
example, in New York, vested rights to complete the construction of a structure are
obtained where (1) substantial construction has been undertaken, and (2) substantial
18
expenditures are made prior to the effective date of the ordinance. Putnam Armonk, Inc.
v. Town of Southeast, 52 A.D.2d 10, 14 (N.Y. App. Div., 1976). The Supreme Court,
Appellate Division of New York has treated such a vested right as equivalent to a “right to
a nonconforming use,” which will not be disturbed where enforcement would cause
“serious loss” to the owner. Id. at 15. In Putnam Armonk, Inc., the New York court
concluded that one of the ways such a vested right could be lost is by abandonment and
stated:
[A]bandonment . . . depends upon the concurrence of two factors, namely an
intention to abandon and some overt act, or some failure to act, carrying the
implication that the owner neither claims nor retains any interest in the
subject matter of the abandonment (see City of Binghamton v. Gartell, 275
App. Div. 457, 460, 90 N.Y.S.2d 556, 559; Ann. 18 A.L.R.2d 725, s 4, pp.
730-731).
Id.; see also R.C. Enterprises v. Town of Patterson, 42 A.D. 3d 542, 544 (N.Y. App. Div.,
2007) (finding that the petitioner did not have vested rights to develop, and stating, “In any
event, the petitioner abandoned its plan to develop Parcel 2 as demonstrated by its failure
to act over a period of decades.”); Schoonmaker Homes—John Steinberg, Inc. v. Village of
Maybrook, 178 A.D.2d 722, 725-26 (N.Y. App. Div., 1991) (evaluating the petitioner’s
vested rights to construct its garden apartment units in accordance with a prior zoning
ordinance, and stating, “[l]astly, an owner who has acquired vested rights may be divested
of such rights where there is abandonment, recoupment or an overriding benefit to the
public to be derived from the enforcement of the amended zoning ordinance.”); 202
Developers, Inc. v. Town of Haverstraw, 175 A.D. 2d 473, 474 (N.Y. App. Div., 1991)
19
(finding that the [developer] abandoned its vested rights, and concluding that the zoning
ordinance was “not unconstitutional as applied to plaintiff’s property.”).
Oregon courts have also treated vested rights to develop property and
nonconforming uses similarly when addressing abandonment, even where vested rights to
construction under prior zoning law are granted by statute. See Fountain Village Dev. Co.
v. Multnomah County, 31 P.3d 458, 462 (Or. Ct. App., 2001). The court in Fountain
Village Development Co. stated:
Nothing in Oregon’s case law or statutes precludes subjecting vested rights
to develop property to the same limitations that apply to nonconforming uses
generally-and, indeed, as addressed below, not to do so would yield
incongruous results. . . . Just as the regulation of existing nonconforming
uses is a matter within a county’s authorized land use purview, so too is the
regulation of vested rights to develop-which are, in effect, inchoate
nonconforming uses.
Id. Accordingly, the Oregon court held that a vested right to develop property or an
unfinished use property right was not immune to discontinuance or abandonment under the
regulations controlling nonconforming uses. Id. at 463.
We agree with our sister states that a vested right to continue construction under an
existing zoning or building permit is sufficiently analogous to a nonconforming use to
warrant similar treatment. Indeed, the policy arguments that support allowing a
nonconforming use to be abandoned apply with equal force to vested rights to continue
construction where there has been a zoning change.
In Trip Associates, Inc. v. Mayor & City Council of Baltimore, the Court of Appeals
stated that “[a] valid and lawful nonconforming use is established if a property owner can
20
demonstrate that, before and at the time of the adoption of a new zoning ordinance, the
property was being used in a then-lawful manner for a use that, by later legislation, became
non-permitted.” 392 Md. 563, 573 (2006) (citing Chayt v. Board of Zoning Appeals of
Baltimore City, 177 Md. 426, 434 (1939)). In that case, the Court of Appeals reiterated
that “‘[t]he earnest aim and ultimate purpose of zoning was and is to reduce
nonconformance to conformance as speedily as possible with due regard to the legitimate
interests of all concerned.’” Id. at 574 (quoting Grant v. Mayor and City Council of
Baltimore, 212 Md. 301, 307 (1957)).
The courts of Maryland have recognized that a property owner may “obtain a vested
right in an existing zoning use that will be protected against a subsequent change in a
zoning ordinance prohibiting that use.” Sunrise Dev. Ltd., 330 Md. at 307 (quoting
O’Donnell v. Bassler, 289 Md. 501, 508 (1981) (citations omitted)). A vested right to
continue construction under a zoning permit presupposes a change in zoning and, thus,
renders the permitted use analogous to a nonconforming use under the new zoning (or as
the Court of Appeals of Oregon characterized it, an “inchoate nonconforming use[]”).
Fountain Village Development Co., 31 P.3d at 462. Where our case law instructs that a
nonconforming use is disfavored, see, e.g., Trip Associates, Inc., 392 Md. at 573, an
abandoned construction site that does not comport with current zoning ordinances would
be similarly disfavored. Cf. Grant, 212 Md. at 308 (“Indeed, there is a general agreement
that the fundamental problem facing zoning is the inability to eliminate the nonconforming
use.”).
21
Moreover, nothing in Maryland’s statutes or case law precludes the deduction that
vested rights can be abandoned. Ross v. Montgomery County, was a case in which the
Court of Appeals considered whether construction of a hotel had timely begun under a
building permit that was validly issued, but which lapsed according to the provisions of the
Montgomery County Code prior to commencement of the construction. 252 Md. 497, 502
(1969). The Court found that the property owners, who had not begun good faith
construction, had not acquired a vested right. In that case, the appellants contended that,
through their expenditures on planning their project, they had acquired vested rights
connected with their building permit that entitled them to continue construction despite the
law invalidating their building permit for failure to proceed with construction. Id. at 501.
The Court ultimately determined that, despite those expenditures in anticipation of
construction, “there was nothing spent in good faith on construction” and the appellants
had not acquired vested rights in either the hotel zoning classification or under the building
permit. Id. at 504. Although the Court noted that “this [wa]s not a situation where a valid
and subsisting permit has been revoked by operation of an ordinance which effected a
rezoning repugnant to the use for which the permit had been issued,” the Court also stated
that “the permit . . . expired for want of performance, and with that expiration any vested
right, which may have existed, became forfeit.” Id. at 507. Thus, the Court of Appeals has
recognized, in dicta, that a vested right in a permit may expire for want of performance.
Accordingly, 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
22
abandon or relinquish the vested zoning right. Evidence of an intent to abandon must
include some overt act or failure to act indicating that “the owner neither claims nor retains
any interest in the subject-matter” of the vested zoning permit. Cf. Canada’s Tavern, Inc.,
supra, 260 Md. 206, 210; Landay, supra, 173 Md. at 469-70.
Whether a zoning statute that permits the abandonment or termination of a vested
right is reasonable will depend on the circumstances. In Amereihn v. Kotras, the Court of
Appeals made clear that where a property is utilized for a permitted use and, thereafter, a
“zoning regulation would have the effect of confiscating such property and destroying a
vested right therein of the owner,” the vested right in the nonconforming use is entitled to
constitutional protection. 194 Md. 591, 601 (1950).11 Indeed, the Court of Appeals has
recognized that “[e]very zoning ordinance impairs some vested rights because it affects
property owned at its effective date.” Grant, 212 Md. at 314. Nonetheless, “zoning in
general is a valid exercise of the police power of the State, and . . . a comprehensive zoning
ordinance is constitutional.” Colati v. Jirout, 186 Md. 652, 657 (1946). Further, the Court
11
In the present case, unlike the property owner in Amereihn v. Kotras, 194 Md.
591 (1950), the Sizemores had not completed the construction and put the property to use
for a permitted use in the prior zoning. However, this Court has recognized that the vested
rights doctrine has a constitutional foundation. Town of Sykesville v. W. Shore Commc'ns,
Inc., 110 Md. App. 300, 316 (1996) (citing Richmond Corp. v. Bd. of County Comm'rs, 254
Md. 244, 255-56 (1969); Prince George's Cnty. v. Equitable Trust Co., 44 Md.App. 272,
278 (1979)).
23
in Grant recognized the need for the exercise of the police power in zoning for “the
protection of the ‘public safety and welfare’ . . . against disease, fire, traffic or lawlessness,
[and] it may properly extend ‘to the maintenance of conditions under which people may
live and work in reasonable comfort and without unnecessary impairment of their physical
and mental vigor.’” 212 Md. at 314 (quoting Jack Lewis, Inc., v. Mayor and City Council
of Baltimore, 164 Md. 146, 153 (1933)).
In Grant v. Mayor & City Council of Baltimore, in the context of the amortization
of a nonconforming use, the Court observed that where “an ordinance that restricts future
uses [or] . . . requires existing uses to stop after a reasonable time . . . constitutionality
depends on overall reasonableness, on the importance of the public gain in relation to the
private loss.” 212 Md. at 315. In that case, the Court held that an amortization period of
five years to remove nonconforming billboards was valid, and that a five-year period was
not an arbitrary time period. 212 Md. at 316, 129 A.2d at 370. Citing to Grant, the Court
of Appeals in Trip Associates, Inc., stated that “[a] nonconforming use may be reduced to
conformance or eliminated in two ways: by ‘amortization,’ that is, requiring its termination
over a reasonable period of time, and by ‘abandonment,’ i.e. non-use for a specific of time.”
392 Md. at 575. The Court therein concluded that “[s]o long as it provides for a reasonable
relationship between the amortization and the nature of the nonconforming use, an
ordinance prescribing such amortization is not unconstitutional.” Id. at 575-76 (citing
Gough v. Board of Zoning Appeals for Calvert County, 21 Md. App. 697, 704-705 (1974)).
Additionally, “[t]he constitutionality of zoning ordinances ‘amortizing’ non-conforming
uses by compelling their termination after a reasonable and appropriate specified time is
24
firmly established in Maryland.” Gough, 21 Md. App. 697, 704-05 (1974) (citations
omitted).
Where “the earnest aim” of zoning is to achieve “conformance as speedily as
possible with due regard to the legitimate interests of all concerned” and in the interest of
public welfare, Grant, 212 Md. at 307, local ordinances or regulations that impact or
terminate a once-permitted use may be upheld so long as they do not represent an arbitrary
or unreasonable exercise of governmental power. See, e.g., Colati, 186 Md. at 655(concluding that a Baltimore City Zoning Ordinance prohibiting the expansion of a non-
conforming use was not an arbitrary or unreasonable exercise of governmental power).12
Certainly, the reasonableness of a given statute will depend on the relevant circumstances.
12
The instant case, involving a vested right to continue construction and the
application of Town Code § 290-27, is notably different from those cases that address the
constitutionality of a statute abrogating vested rights retroactively. For example, in both
Muskin v. State Department of Assessments & Taxation, 422 Md. 544 (2011), and State v.
Goldberg, 437 Md. 191 (2014), the vested rights at issue were those relating to ground rent
leases, and the statutes abrogating those rights were found to have had retroactive
application. Specifically, Muskin addressed the “contractual right to receive ground rent
payments and the reversionary interest to re-enter the property in the event of a default,”
422 Md. at 559-60, and Goldberg addressed a ground lease holder’s right to pursue
ejectment as a remedy, 437 Md. at 198. The Court of Appeals relied on its decision in Dua
v. Comcast Cable of Maryland, Inc., 370 Md. 604, 622 (2002), establishing that the
Constitution of Maryland generally prohibits legislation that retroactively abrogates vested
rights. Muskin, 422 Md. at 556-57, Goldberg 437 Md. 205. In Goldberg, the Court held
the statute retrospectively impermissibly impaired the right to re-entry in the event of
default. 437 Md. at 207. In Muskin, the Court found that the extinguishment and transfer
provisions cut off all remedies and impermissibly divested the contractual vested rights of
ground rent owners. 422 Md. at 563.
Here, in the context of vested rights in a prior zoning, where the applicable body of
law has developed around preventing the automatic abrogation of a vested right upon re-
zoning (the very protection sought in prohibiting retroactive application generally), the
25
As applied, such a statute must allow reasonable and appropriate time for the completion
of a construction project, taking into account the nature of the project and the prior zoning.
Cf. Trip Associates, Inc., 392 Md. at 575-76; Gough, 392 Md. at 575. The reasonableness
of the statute (balancing the public gain and the private loss), see Grant, 212 Md. at 315,
also depends on whether the applicable zoning framework affords the permit holder notice
of revocation that allows an opportunity to respond. Cf. John Deere Const. & Forestry Co.
v. Reliable Tractor, Inc., 406 Md. 139, 147-48 (2008) (in determining whether a statute
was applied retroactively, the Court of Appeals adopted the analysis from Landgraf v. USI
Film Products, 511 U.S. 244, 270 (1994), which involved a “process of judgment
concerning the nature and extent of the change in the law and the degree of connection
between the operation of the new rule and a relevant past event[,]” and determined that the
“factors to be considered are ‘fair notice, reasonable reliance, and settled expectations.’”).
C. The Sizemores Abandoned Their Vested Right in the 2003 Zoning Permit
The Sizemores argue that they obtained a vested right to continue construction under
the 2003 zoning permit in 2004 when the zoning change took effect, and that their vested
right survived the revocation of that permit under § 290-27(E)(2). The Sizemores assert
retroactivity analysis of Muskin and Goldberg is not applicable. Indeed, the statute at issue
in this case was not applied retroactively to abrogate the Sizemores’ vested right. Rather,
the Sizemores were able to continue construction under their vested right for a period of
years despite the comprehensive rezoning. It was their subsequent abandonment of the
project pursuant to § 290-27(E)(2)—and not retroactive application of the zoning
ordinance—that extinguished their zoning permit and rights thereunder.
26
that their vested right cannot be abandoned without a finding that they intentionally
abandoned their property right, as was required in Landay for abandonment of a
nonconforming use. Because the Sizemores claim that they never stopped pursuing
financing to complete construction, they argue they never demonstrated intent to abandon
their vested right. Therefore, the Sizemores assert that their vested right to construct a
restaurant on their property requires the Town to issue a new permit per their October 3,
2012, permit application, even though their proposed use has not been a permissible use
under the existing R-V zoning since 2004.
Appellees argue that the Sizemores lost any vested right they may have had to
continue construction when they failed to comply with Town Code § 290-27(E)(2).
Appellees assert that the requirement to “substantially proceed” with construction is the
standard to avoid revocation of any vested right in a zoning permit provided under the
zoning ordinance.
Certainly, the key principle that a vested right generally protects the permit holder
from changes to the zoning ordinance, see Town of Sykesville, 110 Md. App. at 328, was
applied in the present case. When the Sizemores’ property was downzoned in 2004 from
commercial to residential, the Sizemores did not lose their right to continue constructing
their restaurant. As the Board recognized in its resolution:
[T]he Town provided the Appellant ample opportunity after the 2004
rezoning of the Property to comply with the provisions of the Town Code.
In fact, the Town worked with the Appellant for well over four years before
it revoked the [2003] Permit, giving her notice every step of the way that she
had to comply with the requirements or the permit would be revoked.
Appellant failed to comply with the requests as set forth in the Town’s
notices.
27
Indeed, it was the Sizemores’ subsequent failure to comply with the reasonable
requirements of § 290-27(E)(2) that was fatal to both the 2003 zoning permit and any
vested right in that permit.
As discussed, supra, a vested right in a zoning permit may be abandoned where the
zoning ordinance (or statute) itself reasonably establishes the circumstances that amount to
abandonment and the permit holder’s failure to act indicates that they no longer retain an
interest in the subject-matter of the zoning permit. Certainly, municipalities have the power
to regulate zoning and property rights when those regulations are established for the health,
safety, and welfare of the public. See Carney v. City of Baltimore, 201 Md. 130, 134-35
(1952). Here, Town Code § 290-27(E) provides:
E. Expiration of zoning permit.
(1) If the work described in any zoning permit has not begun within one year
from the date of issuance thereof, said permit shall expire, it shall be
cancelled by the Administrator, and written notice thereof shall be given
to the persons affected.
(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.
(Emphasis added). By its language, § 290-27(E)(2) applies to all permits, whether or not
a vested right exists to support the permit. Failure to comply with the statute results in
expiration and cancellation of any zoning permit. It is reasonable because even those
projects that require more than two years to complete, are able to proceed without a cutoff
28
date, so long as work is proceeding on the project. We observe that on its face, the notice
provision of the statute may not survive scrutiny if followed; however, in this case, the
Town gave the Sizemores ample time and repeated notice that their zoning permit would
expire if they failed to make progress on their construction activities. Indeed, the
Sizemores were given two years and ten months from the date of their first warning, along
with an opportunity to make “the developer’s case” why their zoning permit should not be
revoked. The Sizemores responded to their last warning with nothing more than a copy
of a letter from the State Highway Administration about its intention to build a depressed
curb and sidewalk as part of the SHA Streetscape Program.
The Board found that, by January 12, 2009, there had been neither satisfactory
progress nor substantial completion of the site plan during the preceding five years, in
violation of the Town’s zoning ordinance § 290-27(E). The Board stated:
The [Board of Appeals] concludes that Appellant’s failure to comply with
the Code amounts to a lack of intent to complete the project, which could be
interpreted as an abandonment of the project.
The Board acknowledged that Maryland has not issued an opinion on abandonment of
vested rights, but refused to hold that “obtaining vested rights gives one the ability to leave
a building partially constructed indefinitely and that the person not be required to comply
with the Town Code requirements.”
We cannot agree with the Sizemores’ contention that § 290-27(E)(2) had no force
against their vested right. The logical extension of their position is that a vested zoning
right to continue construction exists in perpetuity and is immune from the applicable zoning
regulations. We know of no case, in Maryland or beyond, that supports this proposition.
29
We agree with the Board that to so hold would allow someone who obtains a vested right
early in construction to leave that construction incomplete indefinitely. In our view, it is
for precisely this reason that local zoning ordinances such as Town Code § 290-27(E)(2),
place reasonable restrictions on the life of a zoning permit. We agree with the Board’s
finding that the Sizemores’ failure to comply with the Town Code § 290-27(E)(2) correctly
resulted in the expiration of their permit and the abandonment of both their zoning permit
and their vested right in that permit. As a result, now that the Property is zoned residential,
the Sizemores have no basis to support a new zoning permit for their restaurant, and the
Board did not err in upholding the denial of the 2012 permit application.
II.
Failure to Assert a Vested Right in 2009
Next, the Sizemores argue that the Board erred in finding that they waived their
vested rights argument by not raising it before the Board in the 2009 hearing when the 2003
zoning permit was revoked. The Sizemores contend that the existence of such vested rights
“had no legal relevance” to the 2009 hearing or the Board’s decision to cancel their zoning
permit. Appellees counter that the issue of vested rights “could not have been irrelevant to
whether the Town properly cancelled the Sizemores’ previous permit” because “[t]he
existence of an irrevocable vested right was a defense to the cancellation of the 2003
permit.” Appellees posit that the Board’s 2009 decision was “conclusive on the question,”
and therefore the Sizemores’ claim of vested rights is barred by the doctrine of res judicata.
Alternatively, Appellees argue that the Sizemores waived their right to assert the existence
of a vested right by failing to raise the issue with the Board in the 2009 appeal.
30
Whether a claim is so related to a prior litigation as to deem that claim barred by res
judicata is a question of law when determined solely from the inspection of the record. See
Corkran, Hill & Co. v. Fruman, 144 Md. 257, 257 (1923) (stating that, where the evidence
on the issue of res judicata is not contradicted, a court may properly decide the question as
a matter of law). The Court of Appeals has stated:
The doctrine of res judicata, or claim preclusion, prevents parties from re-
litigating issues that have already been decided by the courts. The doctrine is
applicable if the following requirements are met: “[1] if there is a final
judgment [on the merits] in a previous litigation [and 2] where the parties,
the subject matter and causes of action are identical or substantially identical
as to issues actually litigated and as to those which could have or should
have been raised in the previous litigation.”
Boland v. Boland, 423 Md. 296, 362-63 (2011) (emphasis added) (citation omitted).
Generally, “the doctrine of res judicata has been held not to be applicable where the
earlier decision was made not by a court of record, but by a board of zoning appeals, an
administrative agency.” Whittle v. Bd. of Zoning Appeals of Baltimore Cnty., 211 Md. 36,
44 (1956) (citing Knox v. Mayor & City Council of Baltimore, 180 Md. 88 (1941)). In
1967, the Court of Appeals, in Gaywood Community Association v. Metropolitan Transit
Authority, stated that “[w]hile the action of an administrative agency . . . may resemble res
judicata, it is not . . . the same as the final decision of a proceeding on its merits by a court
of competent jurisdiction.” 246 Md. 93, 100 (1967). However, the Maryland courts have
since retreated from this position, acknowledging that “‘innumerable controversies are
decided today, by boards of legislative creation, of a character that traditionally fell within
the scope of judicial inquiry.’” Bd. of Cnty. Comm’rs of Cecil Cnty. v. Racine, 24 Md.
31App. 435, 446, 451 (1975) (quoting Hecht v. Crook, 184 Md. 271, 277 (1945) and citing
Davis, Administrative Law, § 18.03, 556 (1958)). Thus, although “the legal doctrine giving
binding effect to decisions by zoning boards should not be fully equated with the doctrine
of res judicata,” this Court has concluded that “[i]t is quite plain . . . that at least some of
the principles of the doctrine of res judicata are applicable to decisions by zoning boards.”
Racine, 24 Md. App. at 450, 447. The Court of Appeals has also recognized that, under
certain circumstances, such as where an administrative agency is performing a quasi-
judicial function, the principles of res judicata are applicable. Cicala v. Disability Review
Bd. For Prince George’s Cnty., 288 Md. 254, 264, 267 (1980) (citing White v. Prince
George’s Cnty., 282 Md. 641, 658 (1978)) (applying the principles of res judicata to a case
involving two administrative hearings, but holding that res judicata did not apply because
the issues in the two administrative hearings were not identical). Accordingly, the
principles of res judicata apply to the present matter involving two decisions of the same
administrative body regarding the application of the same facts and law.
In keeping with the above precedent, the Board in 2012 determined that the
Sizemores’ claim of vested rights should have been raised in the previous litigation and
that its 2009 decision had preclusive effect. The Board stated:
The issue of vested rights is an issue that involves the Town and the
Appellant regarding the Permit and [the Sizemores’] ability to proceed with
construction under the Permit; the same parties and the same subject matter
before the BOA in Case No. 2009-1. The matter was disposed of by the BOA
in 2009.
32
As stated above, the record is clear that the parties in the 2009 hearing are the same
as in the 2013 hearing. The subject matter of the 2009 hearing concerned the validity of
zoning permit No. 5077 to continue construction of the “Beef & Reef” on the Property in
light of the fact that the Sizemores had failed to comply with zoning ordinances by
“satisfactorily proceeding” with the construction. The fact that the Town permitted the
Sizemores to continue with construction under the permit following the 2004 rezoning
means the Town recognized their vested rights under the 2003 permit. Thus, the
Sizemores’ vested right was a necessary predicate in the 2009 appeal to the Board, even if
not directly addressed by the Sizemores, because the issue was whether that vested right—
the right to continue construction of the resturaunt—was properly extinguished under §
290-27(E)(2).
When the Sizemores applied for a new zoning permit in 2012, a restaurant was no
longer a permitted use in the R-V zone, and, as discussed above, the Sizemores’ vested
right was extinguished in 2009 after they abandoned that right by failing to comply with
Town Code § 290-27(E)(2) after reasonable notice. Thus, although the Sizemores’ legal
argument—that they had not abandoned their vested right and were entitled to a new permit
in 2012—was presented in the context of the 2012 permit application, the matter of their
vested right in the construction of a restaurant was fairly disposed of by the Board in 2009.
The Court of Appeals has long recognized in zoning appeals involving a permit re-
application “the proposition that it would be arbitrary for the board to arrive at opposite
conclusions on substantially the same state of facts and the same law.” Whittle, 211 Md.
at 45 (citations omitted). Accordingly, the Board did not err in determining that the vested
33
rights argument should have been raised in Case No. 2009-1 and that the matter was
disposed of in 2009.
III.
The Tolling Bill
In the Sizemores’ brief and reply brief to this Court, they make abundantly clear
that they did not raise the Tolling Bill in 2012 as part of their request for a new zoning
permit.13 Rather, the Sizemores contend that the Board’s failure to consider the Tolling
Bill in 2009—which the Sizemores argue applied to their zoning permit No. 5077—
constituted a “mistake or inadvertence” on the part of the Board in 2009 that would allow
it to reconsider, in 2012, its prior revocation of the zoning permit. They argue that res
judicata does not apply to bar an administrative body from reconsidering an erroneous
determination of law. However, because we determine that the Board correctly declined
to reconsider its 2009 decision, we do not reach whether the Appellant is barred by res
judicata from arguing the application of the Tolling Bill to that decision.14
13
For reasons unclear to Appellant and this Court, the Appellees argue that the
Tolling Bill is res judicata, or waived, as to the Sizemores’ petition for a new zoning permit.
14
This Court in Lawrence M. Brandt, Inc. v. Montgomery County Commission on
Landlord-Tenant Affairs, held that an administrative body lacks the authority to reconsider
an issued opinion unless a motion for reconsideration is timely filed and the administrative
body may not reconsider an order after an appeal has been lodged in the courts. 39 Md.
App. 147, 160 (1978). Here, the Board issued its opinion on July 28, 2009, and the
Sizemores sought judicial review in the circuit court and, thereafter, in this Court. They
failed to petition the Board to reconsider its decision prior to judicial review, and the Board
correctly found that “it d[id] not have the authority to reconsider a case . . . after the decision
was appealed to the circuit court and then to the Court of Special Appeals.”
34
Regardless, the sunset provisions of the Tolling Bill limited its application to a
period of years—between January 1, 2008, and June 30, 2010. SG § 11-202; 2009 Md.
Laws, ch. 334 (SB 958). Appellant failed to present any argument regarding the Tolling
Bill until May 20, 2010, and the Board had no opportunity to address the issue prior to
2012. Notwithstanding those failures, even were the Tolling Bill to have applied to the
2003 permit, it would only have preserved the permit through June 30, 2010. Thereafter,
the zoning permit could have been properly revoked for non-compliance with § 290-27(E),
and application of the tolling bill would not have prolonged the survival of the permit.
Accordingly, the Sizemores’ July 20, 2012, attempt to reinstate the 2003 zoning permit
through the Tolling Bill was moot because the Tolling Bill could no longer revive or sustain
a zoning permit after the expiration of its effective period.
If, at the time a question is before the Court, there is no longer any effective remedy
that can be provided, the question is moot. Attorney Gen. v. Anne Arundel Cnty. Sch. Bus
Contractors Ass’n, Inc., 286 Md. 324, 327 (1979) (citations omitted). “Generally,
appellate courts do not decide academic or moot questions,” id., and we decline to do so
here.
JUDGMENTS OF THE CIRCUIT
COURT FOR CALVERT COUNTY
SUSTAINING THE RESOLUTION OF
THE BOARD OF APPEALS OF
CHESAPEAKE BEACH, MARYLAND
AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
35