Relating to Real Estate

In 2015, the Board of Appeals of Baltimore County (Board) approved a special exception to allow Riverwatch, LLC and Two Farms, Inc. (collectively, Royal Farms), to build a fuel service station, convenience store, and carry-out restaurant in Hereford. The Sparks-Glencoe Community Planning Council, Tom Graul, Ken Bullen, Jr. and Ruth Mascari, and the People’s Counsel for Baltimore County petitioned for judicial review of the Board’s decision by the Circuit Court for Baltimore County. Following a hearing, the court remanded the case to the Board for further proceedings to consider additional evidence.

Between the remand order and the next Board hearing, the Baltimore County Council enacted Bill 56-16, which changed the zoning classification of the subject property to prohibit the fuel service station. At the subsequent hearing, the Board held that the former zoning classification applied because Royal Farms had obtained vested development rights by recording a plat in accordance with the provisions of Baltimore County Code (BCC) § 32-4-264(b)(2) (2009). On appeal, the Circuit Court for Baltimore County affirmed the decision of the Board, and on further appeal the Court of Special Appeals (CSA) also affirmed. Graul v. Riverwatch, LLC, No. 978, Sept. Term 2018, 2020 WL 6623283 (Md. Ct. Spec. App. Nov. 12, 2020).

The question of when a project has achieved vested rights is pivotal. Common law rules as well as statewide laws and local ordinances address when rights vest. The CSA noted that very recently the Court of Appeals wrote, “[w]ith respect to common law vested rights, this Court has explained [in 75-80 Properties, L.L.C. v. Rale, Inc.] that in order to vest rights in an existing zoning use that will be protected against a subsequent change in zoning use, the owner must obtain a valid permit and undertake a substantial beginning in construction before the change in zoning has occurred.”

The CSA also pointed out that in 1995 the General Assembly addressed the vesting issue by adopting legislation that authorized certain local governments to enter into Development Rights and Responsibilities Agreements (DRRA) with persons having an interest in real property. SeeLand Use Article §7-304.

For the case at hand, the CSA held that BCC § 32-4-264 clearly establishes that recordation of an approved plat for a non-residential development plan is an alternative to the common law vesting of development rights in Baltimore County.

The opponents to the project argued that the new development was not needed because the same items could be purchased at other places nearby. But the Board had determined that there was a “need” for the products and services offered at Royal Farms “particularly if they are distinctive, different, and sold in combination with other products and services.” Both the circuit court and the CSA found that evidence in the record was sufficient to support this conclusion.

For more information, contact Edward J. Levin.

Ed Levin
410-576-1900 • elevin@gfrlaw.com