Posted by: Patricia Salkin | December 11, 2015

MD High Court Finds Owners had Vested Right in Permit for Construction of Restaurant after Property was Rezoned But They Abandoned It

Appellants Joyce Sizemore and her daughter Stephanie Sizemore 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. Property owners petitioned for judicial review of decision of Town Board of Zoning Appeals revoking a permit to construct the restaurant on their property, after the property had been rezoned to residential-village, due to owners’ failure to progress satisfactorily on construction. The Circuit Court upheld the Board’s decision, and the owners appealed. The appeal was subsequently abandoned. Owners then applied for new permit. The Town denied the permit, and the Board upheld the denial. Owners petitioned for judicial review. The Circuit Court, Calvert County, affirmed, and the owners appealed.

At the outset, the court noted that vested rights are acquired when: there is actual physical commencement of some “significant and visible construction;” the construction was commenced in “good faith,” with the intention to complete the construction; and the construction was commenced “pursuant to a validly issued building permit.” Here, the Sizemores had a valid building permit when they began construction in October 2003, and had laid the foundation by 2004. There was no evidence in the record to suggest that the construction was begun with the intent to leave the building incomplete, or to suggest that the work was not done pursuant to the permit. Accordingly, the Sizemores had a vested right to continue construction of their restaurant under the 2003 zoning permit after their property was downzoned in 2004.

The Sizemores argued that they did not abandon their vested right to construct a restaurant on their property, because vested rights in a zoning permit should be treated like rights under a nonconforming use permit. Because these vested rights were analogous to nonconforming uses, 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. Appellees argued 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), requiring them to “substantially proceed” with construction. 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, but failed to take any steps to continue construction. Thus, the court agreed 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.

Lastly, the court found that 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, since it would only have preserved the permit through June 30, 2010. Accordingly, the Circuit Court’s holding was affirmed.

Sizemore v Town of Chesapeake, 2015 WL 7573409 (MD 11/25/2015)


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