Delbrook Homes, Inc. v. Mayers

234 A.2d 880, 248 Md. 80

• Court: Court of Appeals of Maryland
• Decided: December 14, 1967
• Docket: [No. 648, September Term, 1966.]
• Status: Published

Opinions

Finan, J.,

delivered the opinion of the Court. Barnbs, J., dissents. Dissenting opinion at page 85, infra.

The question presented in this appeal is quite narrow, involving only the legal definition of the term “private community beachés” as appears in the Anne Arundel County zoning ordinance. More precisely, the question is whether such a private community béach must be located within the perimeter of, or contiguous to, the community which it serves.

The appellant’s beach property, located along the Severn River, 'is' zoned agricultural, a classification of which one of the permitted uses is'“private community beaches.” Anne Arundel County Code, § 35-38 (1957). The community which appellant wishes the beach to serve is its housing subdivision known as “Chartwell” located nearly a mile from the beach property. Since 1947 appellee-complainants have owned a converted summer home situated fifty feet from the appellant’s beach property, in an area of the county generally referred to as “Lakeland.”

On September 19, 1962, Mayers, his wife and the Lakeland Area Civic Association filed a Bill of Complaint in the Circuit Court for Anne Arundel County, seeking both a declaration that use of the beach property by residents of another community amounted to a violation of the County ordinances, and an injunction prohibiting such a use. The lower court sustained respondent’s demurrer against the Lakeland Area Civic Association. After an open hearing on the matter, the court filed an Opinion on July 24, 1966, in favor of appellee-complainants, and on September 28 of that year issued a decree which adjudicated the appellant’s use of the property to be violative of the zoning ordinance, and enjoined appellant from using the property as a community beach and boating facility for the benefit of Chartwell. We affirm the opinion of the lower court.

The term “private community beach” in the context of the zoning ordinance means a beach for the use and benefit of the surrounding and neighboring property owners, not one for the exclusive use of a community in another area. Although the uses imposed on the property by either group might well be identical, the fact remains that the residents of Chartwell cannot be expected to assume attitudes of responsibility toward the surrounding neighborhood and community control over the beach facilities as would those who reside in close proximity to the beach, that is, the residents of the Lakeland area. See Gilbert v. Town of Hamden, 135 Conn. 630, 68 A. 2d 157 (1949).

Support for the construction adopted may be found in § 35-115 (g) of the County zoning ordinance. After setting out the requirement of the approval of the Board of Zoning Appeals as a condition to establishing public beaches, the ordinance further provides: “The above shall not apply to community beaches or swimming pools in and for bona-fide residential subdivisions.” (Emphasis supplied.) This sentence certainly suggests that the county commissioners intended private community beaches and swimming pools to be located within or adjacent to the subdivisions which they serve.¹

The Court finds no evidence in favor of appellant’s contention that appellees did not show special damages and therefore lacked standing to sue. After purchasing the property in 1947, the Mayers expended capital in converting the summer home into a year-round home which Mr Mayers estimates is now worth between $25,000 and $30,000. Activity on the. beach property commenced in the summer of 1961, creating traffic problems, noise and various encroachments upon the appellees’ property from parked cars and trespassing individuals. Mr. Mayers testified that his property became both a telephone booth and a lost and found department for the beach property. Under such circumstances the lower court properly concluded that the relatively small beach property set aside for the enjoyment of a contemplated two hundred and seventy-five families would have a distinctly damaging effect of the Mayers’ property, different in kind and degree from that suffered by the public generally. The Chatham Corp. v. Beltram, 243 Md. 138, 147, 220 A. 2d 589, 595 (1966); DuBay v. Crane, 240 Md. 180, 185, 213 A. 2d 487, 489 (1965); Cassel v. City of Baltimore, 195 Md. 348, 353, 73 A. 2d 486 (1950).

Nor can it be argued that such a construction of the ordinance discriminates against appellant’s use of the premises. Although it is true that zoning must be directed toward use rather than location or ownership of property, we have on occasion permitted a commercial reclassification within a residential zone when convinced by the evidence that such use was for the accommodation and convenience of the neighborhood residents and therefore in the public interest. See MacDonald v. Board of County Commissioners, 238 Md. 549, 557, 210 A. 2d 325 (1965); Hewitt v. Baltimore County, 220 Md. 48, 58, 151 A. 2d 144 (1959). Cf. Temmink v. Board of Zoning Appeals, 205 Md. 489, 495, 109 A. 2d 85 (1954) ; Cassel v. City of Baltimore, supra. As Judge Macgill indicated below, a necessary corollary to the above rule is that such a commercial use may not be established when it is not for the accommodation and convenience of the residents. In such a case, as in the instant appeal, the requisite element of local public interest is absent.

The Planning and Zoning Commission, in approving the subdivision plat of Chartwell, permitted the beach property consisting of a little over an acre to be used together with approximately four acres abutting the Chartwell subdivision (which is about one mile from the beach property) to satisfy the statutory five-percent recreational use requirement. The appellant argues that such action amounted to an administrative interpretation of Anne Arundel County Code, § 35-38 (1957) that the use complained of was lawful, and that when one has acted in reliance upon an administrative interpretation, rather than upon governmental “mistake” or illegal conduct, an estoppel in pais may be imposed on the county.

In this case the only interpretation given by the Anne Arundel County Planning Administrator as to why the use complained of was lawful, in light of the wording of the ordinance, consisted of his act of approving the subdivision plan. Many months after this approval, upon inquiry by the attorney for the appellees, the Planning Administrator replied by letter stating:

“Your letters of April 3rd, 13th, and May 22nd, were referred to our legal department. In conversing with them, I have been given no opinion to indicate that the subject property in the Lakeland area is not a private community beach, or that such a use could be prohibited in an Agricultural zone. Consequently 1 feel that I am given no choice but to rule that the subject use is a valid one.”

No further elucidation as to the definition of a “private community beach” was given.

An administrative interpretation of an ordinance by the officer whose duty it is to execute it is entitled to consideration and this is particularly so when the meaning of the language is ambiguous; however a court is not bound by such an interpretation. McQuillin, Municipal Corporations (3rd ed.) § 20.45, and cases cited therein. In the instant case as noted, we are persuaded that the definition of a private community beach, as used in § 35-38 of the ordinance when read in light of the language employed in § 35-115 (g), is not ambiguous and the court below was not bound by the interpretation given it by the County Planning Administrator. Berwyn Heights v. Rogers, 228 Md. 271, 279, 179 A. 2d 712 (1962).

Nor does the record reveal any actions on the part of the Anne Arundel Zoning and Planning officials which would enable the appellant to avail itself of the doctrine of equitable estoppel. Kent County v. Abel, 246 Md. 395, 399-402, 228 A. 2d 247 (1967) and cases cited therein.

Decree affirmed, with costs.

1 . Judge Macgill in his opinion below drew a forceful analogy of an eventuality that could occur if the appellant’s interpretation of the ordinance prevailed, stating:

“The construction contended for by the Defendant might, not implausibly, be extended to permit a community such as ‘Columbia’, in Howard County, with a projected population of one hundred thousand, to buy and utilize, for the benefit of its members, a beach front in a quiet Anne Arundel County development.”