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Cities Service Oil Co. v. Board of County Commissioners of

Decided: July 11, 1961.

CITIES SERVICE OIL COMPANY
v.
BOARD OF COUNTY COMMISSIONERS OF PRINCE GEORGE'S COUNTY ET AL.



Appeal from the Circuit Court for Prince George's County; Marbury, J.

Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Brune, C. J., delivered the opinion of the Court.

Brune

The original pleading filed in this case, headed "Declaration and Petition," seems comprehensive as well as probably unique. In a single action at law the plaintiff-appellant, Cities Service Oil Company (Cities Service) has named as parties defendant the Building Inspector for Prince George's County (the Inspector), the Board of County Commissioners of Prince George's County (the Commissioners), the Maryland-National Capital Park and Planning Commission (hereinafter called Parks and Planning) and the Board of Zoning Appeals of Prince George's County (BZA); and it seeks assorted remedies against them. The "First Count" is an appeal from the BZA, which denied Cities Service's application for a variance. The "Second Count" seeks declaratory relief in very general terms, presumably against all of the defendants. The "Third Count" seeks a writ of mandamus to require the Inspector "and all other municipal corporate authorities of this County as may be necessary and are parties defendant" to rescind a "stop work" order issued by the Inspector to halt construction of a filling station service building. The BZA's demurrer to the Second and Third Counts was sustained, and that ruling is not attacked on this appeal. Parks and Planning's demurrer was overruled, but it did not file any further pleading. In its demurrer it denied the allegations of the "Declaration and Petition" asserted as the basis for joining it as a party "as a regulatory municipal agency charged with the administration and enforcement of Zoning Ordinances * * *." It seems to have taken little part in the trial and did not participate in the appeal. After extended hearings covering all of one day and a half of another, the trial court denied the relief sought and dismissed the "petition."

Cities Service appealed. No procedural questions have been strongly pressed (indeed, only one is raised at all) on this appeal, and we find it unnecessary to go into any such questions.

The controversy here grows out of the desire and efforts of Cities Service to erect a new filling station at the southeast corner of the intersection of 55th Avenue and Landover Road in a part of Prince George's County comprised in the Metropolitan District, defined in Maryland-National Capital Park and Planning Commission Act (Ch. 780 of the Acts of 1959, sometimes referred to below as the Act or the Parks and Planning Act). The sketch reproduced below will be of assistance in our presentation and discussion of the case. It shows the location, outline and recorded plat numbers of the lots here involved, and some of their dimensions, and the location of the appellant's service building now partly constructed.

The lot numbers on the above sketch are those shown on a duly recorded plat of a subdivision which included some additional land. When it was recorded does not appear. Cities Service bought lots 7, 10 and 11 and took title thereto by a deed containing a metes and bounds surveyors' description, but it had actual as well as constructive knowledge that they were subdivision lots. We infer that the plat had been recorded before either Cities Service's predecessor in title or the purchasers of adjacent lots bought their properties. All of the lots shown on the sketch had been zoned as residential, but lots 7, 10 and 11 have been rezoned as C-2 (General Commercial), a classification which permitted filling station use. This is said to have been done before Cities Service purchased the lots, and a building permit is also stated to have been obtained before the purchase was made. (It seems difficult to reconcile these statements with the date of the deed as given by a real estate representative of Cities Service, but we assume these statements to be correct.) This permit was issued after Cities Service's first plans had been submitted to Parks and Planning and found deficient in two respects. Cities Service had then revised its plans and obtained a permit. Soon afterwards it received a stop work order, which was rescinded after a conference between a Cities Service representative and the Inspector and after a call from the latter to one of the men in Parks and Planning. About a week or two later a second stop work order was issued by the Inspector. Meanwhile Cities Service had put in the footings for the service building and had put up a good deal of the cinder block walls. It had also ordered equipment for the station, most (if not all) of which was usable elsewhere.

The second stop work order was based upon an alleged violation of the rear yard set-back requirements of the Zoning Ordinance as between the building and the southerly side of lot 7 -- that is the line dividing lots 7 and 8. There was a controversy, which is the principal issue in this case, over the question whether the line in question should be regarded as a rear line, or as a side line of the Cities Service tract. If it is the former, a 20-foot set-back is required; if the latter, only an 8-foot set-back is needed. The actual distance from

the southeast corner of the building to the corner of the north and west lines of lot 8 is somewhat less than 8 feet, probably about 6 1/2 or possibly 7 feet.

Cities Service appealed to the BZA for a variance. It contended (as it does here) that its three lots constitute a single property, that under the definition of the "front line" of a corner lot contained in Sec. 10.0 of the County Zoning Ordinance, the property fronts on 55th Avenue, so that the line between record lots 7 and 8 is now a part of a side line and not a rear line of the property and hence that the 8-foot set-back is applicable, and (less clearly before the BZA than here) that the only practicable location for the service building is at the location where it was being constructed, and that it would impose serious and unnecessary hardship upon Cities Service not to permit it to build at that location and to require it to remove the building already partly constructed. It appears that the County Attorney had taken the view that the rear line of record lot 7 which itself fronted on Landover Road continued to be a rear line, notwithstanding that Cities Service had acquired lots 7, 10 and 11 and proposed to use them as a unit and that this view was the basis for the Inspector's issuing of the second stop order. Following the hearing at which representatives of Cities Service and the owners of lots 8 and 9 were heard, the BZA filed an opinion which seems to have been in accord with this view, though its reference to the rear line of lot 10, instead of the rear line of lot 7 seems erroneous. The attribution of hardship only to the fact that construction had started seems to ignore the confusion due to different interpretations of the zoning law by different public officials. The opinion states that: "it was determined that petitioner's appeal was based on hardship arising from the fact that construction had commenced. It ...


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