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Excavation business can stay, despite change in zoning laws, CSA holds

Because a Calvert County excavator had vested rights in a special exception use, the county board of appeals properly refused to apply an intervening change to the zoning ordinance that prohibited that use, the Court of Special Appeals held Friday.This is the second time home-owning neighbors of James W. Graner have petitioned the intermediate appellate court to reverse a special exception that allows Graner to operate an excavation business on three acres of his 14-acre, rural-zoned parcel. The first time, the court ordered the board to vacate the special exception and conduct further proceedings. However, in the interim the zoning laws had changed. The board nevertheless granted Graner the special exception, triggering the challenge addressed by the Court of Special Appeals on Friday.“We see no difference … between a use that only comes into existence pursuant to and after issuance of a special exception, on the one hand, and an existing illegal use that becomes legal when a special exception is issued and the use continues in existence,” Judge James R. Eyler wrote for the court.“In each case, there was a lawful use in existence prior to the amendment of the zoning ordinance,” Eyler added.But Paul B. Rodbell, the lawyer for Graner’s neighbors, disagreed.“I don’t agree with the court’s decision in any regard, especially as it treats the vacation of the first special exception …,” Rodbell said. He explained that the zoning law changed after the appeals court first vacated the board’s decision — and before the board issued its second special exception use.“To vacate means to vacate, and they’re saying to vacate doesn’t do anything,” Rodbell said, adding that his clients would continue to challenge Graner’s special exception use.But the court did not accept this argument.“[W]e hold that the special exception was never declared unlawful or invalid within the meaning of the rule of vested rights,” Eyler wrote. “[Graner] did proceed at his own risk, however, in that had we reversed the board’s action on this appeal based on an error of law, his rights would not have vested.”Jackson G. Upton, who argued the case for the county, declined to comment because he had not seen the opinion.Calvert County granted Graner a home occupation permit in 1984, allowing him to locate his business office on the property, Eyler said. Two years later, the county issued him a special exception use, permitting him to park excavating equipment on his premises. The judge noted that Graner eventually began storing construction materials on the grounds.The county consequently instituted a zoning violation action against Graner in circuit court. In January 1996, the court ruled that he had violated zoning restrictions; it ordered him to stop storing construction materials outside and to apply for a special exception if he wanted to continue to do so.A year later, Graner applied for and received the special exception use to store construction materials. When neighbors challenged this, the circuit court affirmed the board’s decision on review in November 1997.In April 1999, the Court of Special Appeals reversed that ruling, holding that the record was insufficient for appellate review, Eyler said. The matter went back to the circuit court with instructions to vacate the board’s decision and remand to the board for further proceedings.Meanwhile, in December 1998, the Calvert County commissioners changed the zoning ordinance “to prohibit the outdoor storage of materials in connection with a commercial or industrial use on RUR zoned property,” Eyler wrote.In September 1999, the county appeals board amended its earlier opinion and approved the special exception, the judge said. The neighboring home owners once more filed for the circuit court’s judicial review of the decision, and that court’s substantial affirmation of the board’s decision led to this appeal.Friday’s opinion also held that the neighbor’s challenge to the 1984 home occupation permit, in which the neighbors claimed that Graner doesn’t live on the property, was not properly before the board. However, “[w]e express no opinion as to whether the issue may now be raised with the Board or whether it has been waived,” Eyler wrote. <table width=”100%” border=”0″ cellspacing=”0″ cellpadding=”0″


Case: Larry Powell et al. v. Calvert County, CSA No. 1125, Sept. Term 2000. Reported. Opinion by Eyler, J. Filed March 9, 2001.Issue: Did the trial court err in affirming a county board of appeals refusal to apply an intervening change to the zoning ordinance that would have prohibited a special exception use it had earlier granted? Holding: No. A special exception use predating an amendment to an ordinance which prohibited that use had vested and the use was not unlawful within the meaning of the vested rights doctrine. Counsel: Paul B. Rodbell for appellants; Jackson G. Upton for appellee.RecordFax: #1-0309-05(23 pages)