Agenda - Planning Commission - 09/06/2018

Home

August 25, 2018 I Volume 12 I Issue 16 Zoning Bulletin ing permit, and did not make a substantial beginning to reconstruct the building at the Property. The County also argued that the state Legislature did not intend to preempt local municipalities from exert- ing zoning control over the medical cannabis industry. The circuit court found that the Applicants "failed to meet the requirements under Maryland law to assert a claim that they acquired a property interest to develop [the Property] and, as a result, [could] not meet the burden required to prove either a substantive due process or procedural due process claim." The circuit court also concluded that the Ordinance was not preempted "by any other legislation." The Applicants appealed. DECISION: Judgment of circuit court affirmed. The Court of Special Appeals of Maryland first held that the Ap- plicants did not acquire a vested property interest or "have a legitimate claim of entitlement to any other cognizable constitutional interest." In so holding, the court explained that there were "two avenues" by which the Applicants could acquire a constitutionally protected prop- erty interest: (1) by obtaining a "vested right" in the existing zoning use; or (2) by possessing a "legitimate claim of entitlement" to a permit or approval. The court addressed each of those avenues. The court explained that, under Maryland law, in order to obtain a vested right in the existing zoning use that will be constitutionally protected against a later change in the zoning ordinance prohibiting or limiting that use, the owner must: "(1) obtain a permit or occupancy certificate where required by the applicable ordinance and (2) must proceed under that permit or certificate to exercise it on the land involved so that the neighborhood may be advised that the land is be- ing devoted to that use." Here, the court found that the Applicants "never acquired a vested property interest" since they did not obtain a permit at the Property, and did not make a substantial beginning to reconstruct the building at the property such that "the neighborhood [was] advised that the land [was] being devoted to that use." In finding that the Applicants also did not have a legitimate claim of interest to a permit or approval, the court explained that whether the property interest at issue here was a permit license or a medical can- nabis dispensary license, the test would be the same: "a constitution- ally cognizable interest requires a `legitimate claim of entitlement' and turns on whether the `local agency lacks all discretion to deny issuance of the permit or to withhold its approval.' " Here, the court found that the County did not lack discretion to deny the permit or withhold its approval. In fact, the court found that "the [Cannabis] Commission's regulations indicate that local zoning authorities wield independent authority in the licensing process." Specifically, Commission regula- tions authorize the Commission to issue a dispensary license on a de- 8 © 2018 Thomson Reuters