Relating to Real Estate
Property Owners Abandoned Their Vested Right in a Permit After the Property Was Rezoned for Residential Use
In Sizemore v. Town of Chesapeake Beach, Maryland, 225 Md.App. 631 (2005), the Court of Special Appeals held that property owners could and did abandon their vested right in a zoning permit for a restaurant on their property after the property was rezoned residential and they stopped construction of improvements for extended periods of time.
In April 2000 Joyce and Stephanie Sizemore applied to the Town of Chesapeake Beach (the “Town”) for a zoning permit for a restaurant on the 0.43-acre property where Joyce lived, and in 2003 they obtained a final zoning permit to construct a restaurant. In February 2004, as part of a comprehensive rezoning, the property was downzoned to a residential category.
The Sizemores started construction but did not proceed very far, and construction ceased entirely for long periods of time. After numerous warnings, in January 2009 the Town zoning administrator revoked the zoning permit for failure to complete or satisfactorily proceed with construction.
In 2009 the Sizemores appealed to the Town of Chesapeake Beach Board of Zoning Appeals (the “Board”), where they lost, and to the Circuit Court for Calvert County, where they lost again. The Sizemores started to appeal to the Court of Special Appeals, but they abandoned that appeal and filed an application for a new permit on October 3, 2012. That application was denied because the zoning classification of the property at the time did not permit restaurants there.
Again, in 2013 the Sizemores appealed to the Board and then to the circuit court, and again they lost in both forums. Then they filed an appeal to the Court of Special Appeals.
The Court of Special Appeals held that a vested right to proceed with construction under a zoning permit may be abandoned under a law that sets reasonable parameters for abandonment, or when there is evidence of the intent to abandon or relinquish a vested right. The court found that the Town’s ordinance met the necessary criteria and that the Sizemores had abandoned their rights under it.
The court explained that rights continue after a change in the zoning laws, but only if there has been the commencement of physical construction in good faith pursuant to a valid permit. The court could not find Maryland case law on the issue of abandonment of a vested right after a change in zoning, so it looked to cases from other states and to Maryland law regarding nonconforming uses, which it found analogous.
Because a section of the Town Code provided for abandonment of a zoning permit if construction did not continue, and because the Town gave the Sizemores repeated written notices about the consequences of their failure to complete the project, the court held that the Sizemores had abandoned their right notwithstanding their protestations to the contrary.
The Board had taken the position that because the Sizemores had not raised the claim that they had a vested right during the 2009 hearing, they were precluded from doing so in the 2013 hearing. The Court of Special Appeals agreed with the Board under the principles of the doctrine of res judicata.
Finally, the Sizemores argued that they should have been entitled to the benefits of the Tolling Bill, Chapter 334 of the Laws of Maryland of 2009, which tolled the expiration of permits issued by the State or any county or municipality from January 1, 2008 to June 30, 2010 because of the Great Recession. However, the Tolling Bill could not revive or sustain a zoning permit after the expiration of its effective period, and the court found that the Sizemores’ permit had expired before they started their challenge on July 20, 2012.
For questions, please contact Ed Levin (410) 576-1900.