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Levinson v. Montgomery County

Filed: February 26, 1993.

LAWRENCE M. LEVINSON
v.
MONTGOMERY COUNTY, MARYLAND



APPEAL FROM THE Circuit Court for Montgomery County. Peter J. Messitte, JUDGE

Argued Before Bishop, Bloom, and Fischer, JJ.

Bishop

Opinion by Bishop, J.

The Montgomery County Department of Environmental Protection (the "DEP") issued a notice of zoning violation (the "Notice") to Appellant, Lawrence M. Levinson, M.D. ("Dr. Levinson"). Dr. Levinson filed a notice of appeal with Appellee, the Montgomery County Board of Appeals (the "Board"). The Board conducted an evidentiary hearing and affirmed the Notice. Dr. Levinson then filed an appeal to

the Circuit Court for Montgomery County. Appellee, Montgomery County (the "County"), filed a motion to intervene. The circuit court granted the County's motion, and affirmed the decision of the Board. Dr. Levinson filed a timely notice of appeal to this Court.

Issues

Appellant raises the following issues, which we restate as follows:

I. Whether a zoning ordinance that prohibits a home health practitioner from selling prescribed remedial devices that are available from a commercial source, without establishing specific criteria and standards for granting special exceptions or allowing sales that are compatible with the general welfare of the community as permitted uses, or both, is illegal, arbitrary, and capricious?

II. Whether a zoning ordinance that prohibits a home health practitioner from selling prescribed remedial devices that are available from a commercial source, without establishing specific criteria and standards for granting special exceptions or allowing sales that are compatible with the general welfare of the community as permitted uses, or both, deprives physicians of due process of law and equal protection of the laws, as guaranteed by the United States Constitution end the Maryland Declaration of Rights?

III. Whether Dr. Levinson acquired a vested right to sell commercially available eyeglasses?

IV. Whether the DEP is prevented, under the doctrine of equitable estoppel, from enforcing the Notice?

Facts

The facts of this case are essentially undisputed. Dr. Levinson, an ophthalmologist, has maintained a private practice in Potomac, Maryland since 1975. Around 1981, Dr. Levinson added to his office an optical dispensary from

which eyeglasses were sold. The office was located in the Sovran Bank Building in Potomac Village. Sometime in 1990, however, Dr. Levinson moved his ophthalmology practice, including the optical dispensary, to the basement of his single-family residence in Potomac. Although the property is zoned "RE-2" (residential, one-family), the Montgomery County Code, § 59-A-6.1 (1984, as amended), permits a home health practitioner to maintain a professional office within his or her home, subject to certain requirements and restrictions.

Before moving his practice, Dr. Levinson submitted two building permit applications to the DEP. In the first application, dated November 22, 1989, he requested a permit to alter the existing structure for use as a basement professional office. In the second application, dated January 19, 1990, he requested a permit to construct a professional office. The applications were accompanied by floor plans, which indicated an area for an "Optical Shop." The DEP approved the applications on January 25 and 30, 1990, respectively. On January 29, 1990, Dr. Levinson submitted an application for a "Use and Occupancy Certificate," on which he listed as the proposed use: "PROFESSIONAL OPHTHALMOLOGY OFFICE DISPENSING GLASSES CONTACT LENSES" (emphasis in original). The DEP approved the application and, on March 13, 1990, issued the certificate. The certificate specified the use as "Professional Office for resident of dwelling - Ophthalmology."

In August 1990, the West Montgomery County Citizens Association (the "Association") sent a letter of complaint to the DEP. The Association alleged that Dr. Levinson was selling, in his home, commercially available eyeglasses in violation of a County zoning ordinance. Section 59-A-6.1(c)(6) of the Montgomery County Code provides: "The sale of goods on the premises is prohibited, except for medication prescribed by the health practitioner or a prescribed remedial device that cannot be obtained from a commercial source" (emphasis added). In response to the complaint, Mark Moran ("Moran"), a County zoning inspector, visited Dr. Levinson's home, and confirmed the Association's

allegation. In a subsequent conversation with Moran, Dr. Levinson admitted that the eyeglasses he sold were available at commercial establishments. At the hearing, Dr. Levinson testified that, to the best of his knowledge, all eyeglasses are commercially available. Dr. Levinson gave his patients the option of purchasing glasses at his shop, or elsewhere. He neither advertised that he sold eyeglasses, nor filled other doctors' prescriptions.

The County Council adopted Section 59-A-6.1 on January 16, 1990 as part of a series of text amendments aimed at "minimizing the adverse impacts of non-residential uses in one-family residential zones and removing certain distinctions between types of occupations which no longer appeared to be valid." On February 5, 1990, the effective date of the text amendments, § 59-A-6.1(c)(6) replaced a similar provision contained in § 59-A-2.1, which provided in pertinent part:

Office, professional, residential : Rooms and/or buildings used for office purposes by not more than one (1) member of any recognized profession . . .; provided, that such use shall be incidental to and subordinate to residential use and not one involving a commercial enterprise. Such use shall preclude manufacturing or sale of any hardware product, except those remedial devices which are prescribed as a direct result of the specific service rendered on the premises and which devices cannot be obtained by the client from any commercial establishment.

(Emphasis added).

In October 1990, the DEP requested that the County Attorney provide an interpretation of § 59-A-6.1(c)(6). Moran testified that because the home occupation provisions of the zoning code were changed, the DEP wanted to confirm that, under the new text amendments, the sale of commercially available eyeglasses was prohibited. After receiving a memorandum from the County Attorney's office, which concluded that the sale of commercially available prescribed remedial devices by home health practitioners

was prohibited by the zoning ordinance, Moran issued the Notice directing Dr. Levinson, inter alia, to "cease sale of prescribed remedial devices on the premises that may be obtained from a commercial source."

Dr. Levinson filed a notice of appeal to the Board. After an evidentiary hearing on August 14 and September 11, 1991, the Board affirmed the Notice and found that there was a "facial violation of an unambiguous ordinance." The Board determined that the doctrines of vested rights and equitable estoppel were inapplicable, but declined to pass on the constitutionality of the ordinance.

Dr. Levinson filed an appeal to the Circuit Court for Montgomery County. After hearing the arguments of counsel, the court affirmed the decision of the Board.

The Court feels that although this is perhaps a close case, it is fair for the County to undertake to exclude commercial enterprise from a residential zone in general, and specifically when it does allow home offices, which really are of a commercial nature in a residential area.

It can also restrict the extent of that practice, and whether it is the number of people that can visit, or the number of parking spaces or signs, or the kinds of products that can be sold from the premises. Those are all reasonably related to the health and welfare that the Council is mandated to try and promote.

So, despite the interest, and there are obviously some issues that are going to be debated further on by perhaps other kinds of practitioners about just what the scope of this ordinance is, but for purposes of this specific case, I don't find that [Dr. Levinson's] positions are well taken.

Also, the court found, at least implicitly, that the doctrines of vested rights and equitable estoppel did not prevent the DEP from enforcing the Notice against Dr. Levinson.

Additional facts will be included, as necessary.

Standard of Review

Article 25A, § 5(U) of the Annotated Code of Maryland (1990) provides in pertinent part:

Any person aggrieved by the decision of the board [of appeals] and a party to the proceeding before it may appeal to the circuit court for the county which shall have power to affirm the decision of the board, or if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing as justice may require.

(Emphasis added). Generally, the determination of an administrative agency, such as the Board in the case sub judice, is entitled to great deference. Nevertheless, "the Board's decision may be set aside as not in accordance with law if it is arbitrary, illegal or capricious." Art Wood Enters. v. Wiseburg Community Assoc., Inc., 88 Md. App. 723, 727, 596 A.2d 712 (1991), cert. denied, 325 Md. 397, 601 A.2d 130 (1992). A decision of the Board is arbitrary, illegal, or capricious when it is not "supported by substantial evidence on the record taken as a whole." Mortimer v. Howard Research & Dev. Corp., 83 Md. App. 432, 441, 575 A.2d 750, cert. denied, 321 Md. 164, 582 A.2d 499 (1990). Furthermore, "where . . . the Board's decision is based on an erroneous conclusion of law, . . . the reviewing court . . . may substitute its judgment for that of the [Board] . . . ." Mayor of Ocean City v. Purnell-Jarvis, Ltd., 86 Md. App. 390, 402, 586 A.2d 816 (1991).

"The role of this court is essentially to repeat the task of the circuit court; that is, to be certain the circuit court did not err in its review." Mortimer, 83 Md. App. at 442. We shall also consider whether the circuit court's conclusion of law regarding the constitutionality of § 59-A-6.1(c)(6) was correct, because that question was considered there for the first time.

Discussion

I & II

Montgomery County "enjoys no inherent power to zone or rezone, and may exercise zoning power only to the

extent and in the manner directed by the State Legislature." West Montgomery County Citizens Assoc. v. Maryland-Nat'l Capital Park & Planning Comm'n, 309 Md. 183, 186, 522 A.2d 1328 (1987). The Regional District Act authorizes the County Council, sitting as district council, to "adopt and amend the text of the zoning ordinance . . . [in order] to regulate the location and uses of buildings and structures and units therein for trade, industry, residence, recreation, agriculture, public activities, and other purposes . . . ." Md. Ann. Code art. 28, § 8-101(b)(1) (1990). Section 8-101 (b)(1) requires, at least implicitly, that the County Council carry out its delegated zoning powers for the "protection and promotion of the health, safety, morals, comfort, and welfare of the inhabitants of the [County]." See id. § 7-110. In deference to this legislative mandate, the County Council declared that:

The zoning regulations set out in this chapter for that portion of the Maryland-Washington Regional District in the county are hereby adopted for the purpose of protecting and promoting the health, safety, morals, comfort and welfare of the present and future inhabitants of the district . . . .

Montgomery County Code, § 59-A-1.1 (1984, as amended).

Dr. Levinson first contends that the prohibition of the sale of commercially available prescribed remedial devices under § 59-A-6.1(c)(6) does not bear a substantial relation to the protection and promotion of the health, safety, morals, and general welfare of the County's inhabitants. He argues that there is no reason for the County to assume that the sale of eyeglasses will have an adverse impact on the community, and therefore, the County's decision to ban the sale, in advance, was arbitrary, discriminatory, and not rationally related to a lawful objective. Dr. Levinson points to the fact that § 59-A-6.1(c)(3) already limits the vehicle traffic to and from his office; thus, selling eyeglasses to existing patients would not increase traffic, parking, or other problems. Dr. Levinson also argues that the County could provide for special exceptions, thereby allowing the

Board to decide, on a case-by-case basis, whether such prohibition is necessary. Further, Dr. Levinson compares § 59-A-6.1(c)(6) to § 59-A-6.1(b)(4), a similar provision that applies to all home occupations other than the home health ...


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