Agenda - Planning Commission - 03/03/2016

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Zoning Bulletin January 10, 2016 1 Volume 10 1 Issue 1 change in a zoning ordinance can be abandoned under the terms of a zoning statute or if the landowner demonstrates an intent to abandon the permit. The Background/Facts: Joyce Sizemore owned property in the Town of Chesapeake Beach (the "Town"). In April 2000, Joyce Sizemore and her daughter, Stephanie Sizemore, (the "Sizemores") applied for a zoning permit to construct a "Beef & Reef Restaurant" on the property. In October 2003, the Sizemores received their final zoning permit for the restaurant and began construction. At that time, the Sizemores' property was zoned for Commercial High -Density ("C -HD") use, which permitted restaurants of the type proposed by the Sizemores. In February 2004, however, the Town completed a compre- hensive rezoning, which downzoned the Sizemores' property to Residential - Village ("R -V"). The R -V zone did not permit restaurants or other commercial establishments. Notwithstanding the rezoning, the Sizemores continued with construction of the restaurant in "fits and starts." After construction "languished for months and then years" --and after numerous written warnings from the town's zoning administrator—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), for failure to substantially complete or satisfactorily proceed with construction. The Sizemores appealed the decision of the zoning administrator to the Town of Chesapeake Beach Board of Zoning Appeals (the "Board"). The Board upheld the zoning administrator's decision. The Sizemores again appealed. The Calvert County Circuit Court upheld the Board's decision. The Sizemores appealed once more to the Court of Special Appeals of Maryland, but later abandoned that appeal. Then, eight months after abandoning their appeal of the 2009 decision, the Sizemores filed a new permit application for the Beef & Reef Restaurant on October 3, 2012. That permit application was denied because the R -V zone did not permit restaurants or other commercial establishments. The Sizemores ap- pealed that denial. They contended 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. The Sizemores appealed, and the Circuit Court af- firmed the Board's decision. The Sizemores again appealed. The Sizemores challenged the Town's abil- ity to extinguish their vested rights in the C -HD zoning under which construc- tion of their restaurant was peirrritted. On appeal, the Board maintained that the Town was justified in treating the Sizemores' failure to make progress on the construction as abandonment and to find the permit had expired under the Town Code § 290-27(E). Section 290- 27(E) provides in pertinent part that if the work described in any zoning permit has not been substantially completed within two years of the date of issuance, unless the work is satisfactorily proceeding thereon, the zoning permit shall expire and be cancelled by the zoning administrator. DECISION: Judgment of circuit court affirmed. The Court of Special Appeals of Maryland first found that the Sizemores © 2016 Thomson Reuters 3