Summary
discussing a warrant that incorrectly cited a section of a zoning ordinance; the warrant was found to be sufficient because the incorrect citation did not otherwise mislead the accused and an amendment to the warrant of a substitution for the correct section reference could have been made at any time before the final judgment.
Summary of this case from Thompson v. StateOpinion
[No. 107, October Term, 1954.]
Decided May 16, 1955. Certiorari denied, 350 U.S. 863.
CRIMINAL LAW — Warrant Charging Defendant with Operating Junk Yard in Violation of Ordinance Provision Limiting Zoning Board's Powers to Grant Special Exception — Stated Offense, as Construed by Defendant. Where defendant was charged with unlawfully operating "a junk and/or salvage yard in violation of Section IV-C-1 (d) of the Zoning Ordinance of Anne Arundel County", and that section merely defined or limited the powers of the Board of (Zoning) Appeals to grant a "special exception" for the use of property as a junk or salvage yard, this Court, while pointing out that the charges in the warrants were open to serious criticism grammatically and presented a form not to be recommended, held that the charges, as construed by defendant to mean that he "was being prosecuted criminally under the penalty section of the ordinance which makes it a misdemeanor to operate a salvage or junk yard without approval by the Zoning Board", did state an offense under the Ordinance, and that this construction was sustainable. The elliptical form of the charges did not appear to have misled defendant, who did not raise this objection either in the trial court or on appeal. Had the objection been raised below, the charges could have been corrected by amendment at any time before final judgment. Code (1951), Art. 52, § 20. pp. 247-249
ZONING — Anne Arundel County — Non-Conforming Use — Decisive Date for Determining Whether Lawful Use Existed. Under Section I-D of the Zoning Ordinance of Anne Arundel County, adopted July 1, 1952, providing that "A lawful non-conforming use existing on the effective date of the adoption of these regulations may continue * * *", the controlling and decisive date for determining whether such a use existed is December 2, 1947, for a "lawful non-conforming use" is defined by Section I-B (an) as "Any lawful use existing prior to the initial passage of the zoning ordinance and contrary to the zoning restrictions of said ordinance". The date of "the initial passage" was December 2, 1947. pp. 249-250
CRIMINAL LAW — Charge of Unlawful Operation of Junk Yard Contrary to Anne Arundel County Zoning Ordinance — Defendant Held to Be Maintaining and Operating Such Yard. Defendant, charged with the unlawful operation of a junk or salvage yard, contrary to the provisions of the Zoning Ordinance of Anne Arundel County, was held to be maintaining and operating such a yard on his own testimony, where he testified in substance that he did not run a junk yard because his method of operation was merely to salvage and sell usable parts from old automobiles remaining only temporarily on his lot, and that when such parts had been sold, he removed the automobile bodies to a junk yard. p. 251
ZONING — Non-Conforming Uses — Protection of. Non-conforming uses are rights which are entitled to protection. p. 251
CRIMINAL LAW — Unlawful Operation of Junk Yard Contrary to Zoning Ordinance — Convictions of, Affirmed. Judgments of conviction in each of five cases, entered against defendant herein under warrants charging him with the unlawful operation of a junk and/or salvage yard in violation of the Zoning Ordinance of Anne Arundel County, were affirmed, where the only bases upon which the sanction of the Board of (Zoning) Appeals might be obtained for the operation of a junk or salvage yard were either (1) a lawful non-conforming use, or (2) a special exception, and defendant had neither a certificate of occupancy showing a non-conforming use, nor a special exception permit to operate the yard. As to the first possible defense, defendant had applied for a certificate of occupancy, the Board after a hearing had denied the application, and its action was affirmed by the Circuit Court for Anne Arundel County on appeal. He was thus afforded a full and fair opportunity to obtain a certificate, including a judicial review of his application. He was not entitled to a relitigation of the question, nor was he thereby deprived of a constitutional right. As to the second possible defense, the evidence showed that he applied for a special exception permit, that the Board denied the application, and there was nothing to indicate that he appealed therefrom. There was thus ample opportunity to present and litigate the contentions presented in the instant proceeding as to the validity of the portion of the Ordinance dealing with the granting of special exceptions. Further, the Ordinance required that a junk yard must not be visible from a State or county highway and must be at least 300 feet from one to qualify for a special exception, and the portion of defendant's tract used for the purposes charged fronted on a public street and was 200 feet in depth. Defendant did not contest the validity of the 300-foot requirement, merely questioning whether "an attractive fence" cutting off visibility would satisfy the ordinance. There was no evidence that there was one at the time of the alleged offenses. Finding no need to reach arguments directed to the alleged constitutional invalidity of another requirement (there being a separability clause), this Court found that the above requirements were not so arbitrary or unreasonable on their face as to be void, and found no deprivation of any constitutional right of defendant by reason of the special exception requirements. pp. 251-254
EVIDENCE — Proceeding Charging Unlawful Operation of Junk Yard Contrary to Zoning Ordinance — Admissibility of Zoning Board Proceedings and Court Decree Affirming Denial of Occupancy Certificate. In a proceeding charging defendant with the unlawful operation of a junk or salvage yard, contrary to the provision of a zoning ordinance, wherein his possession of a certificate of occupancy showing a non-conforming use would have been a defense, the order or resolution of the Board of (Zoning) Appeals denying defendant's application for such a certificate was admissible to negative this possible defense to the charge, and the admission of the entire record of the proceedings before the Board was not shown, or claimed below, to have been prejudicial to defendant. The decree of the trial court affirming the Board's action on appeal was also admissible. p. 254
CRIMINAL LAW — Unlawful Operation of Junk Yard Contrary to Zoning Ordinance — Complaint That Defendant Was Not Allowed to Testify as to Establishment of Non-Conforming Use. Where defendant was charged with unlawfully operating a junk or salvage yard, contrary to the provisions of a zoning ordinance, there was no merit to a contention that he should have been allowed to testify in support of his claim that he had established a non-conforming use, since the record showed that he did testify somewhat extensively on the subject, and the controlling question was not whether the Board of (Zoning) Appeals in a prior proceeding did or did not correctly deny him a certificate of occupancy showing a lawful non-conforming use, but that after a full hearing by the Board and a review of its action by the Circuit Court, he had no certificate. Neither the Board's action nor that of the Circuit Court in affirming the Board was before this Court for review in this criminal proceeding. p. 254
CONTINUANCE — Denial of, Because of Absence of Witnesses Who Were Not Summoned, No Abuse of Discretion. In a criminal proceeding, it was not shown that the trial judge abused his discretion in refusing a continuance at defendant's request, because of the absence of certain witnesses who had not been summoned, where defendant offered no explanation as to why they had not been summoned earlier, despite the fact that he had had notice that his case was to come up on that day. Matters of continuance are ordinarily within the discretion of the trial judge. pp. 254-255
J.E.B.
Decided May 16, 1955.
Appeal from the Circuit Court for Anne Arundel County (MICHAELSON, J.).
Henry J. Laque, Jr., was convicted, after a jury trial, on each of five different dates of operating a junk and/or salvage yard in violation of the Zoning Ordinance of Anne Arundel County, and from the judgments entered thereon, he appeals.
Reporter's Note: Petition for certiorari filed August 12, 1955.
The cause was argued before BRUNE, C.J., and DELAPLAINE and COLLINS, JJ.
I. Duke Avnet, with whom were James C. Morton, Jr., and Avnet Avnet on the brief, for the appellant.
Norman P. Ramsey, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, C. Osborne Duvall, State's Attorney for Anne Arundel County, and Clarence L. Johnson, Assistant State's Attorney, on the brief, for the appellee.
On August 2d 1954, five separate warrants were issued by a trial magistrate of Anne Arundel County for the arrest of the appellant on charges that on each of five different dates (April 13, April 22, May 11, July 2 and July 29, all in 1954) at premises on Belle Grove Road, in that County, he "did unlawfully operate a junk and/or salvage yard in violation of Section IV-C-1(d) of the Zoning Ordinance of Anne Arundel County." In each case the appellant prayed a jury trial, the case was transferred to the Circuit Court for Anne Arundel County and the appellant was found guilty by the jury in each case. In one case he was sentenced to a fine of $25 and costs and to six months in jail, the jail sentence to be suspended upon payment of the fine and costs, and the appellant was placed on probation. In three of the other cases he was fined $25 and costs, and in the fourth he was fined $100 and costs.
Before the cases went to trial before the jury the appellant filed a motion to dismiss, which was denied, in which he asserted that he was not a proper party defendant, that the "ordinance and/or statute under which he has been charged" violated the Constitutions of the United States and of Maryland and specifically asserted that "it" deprived him of property without due process of law, denied him the equal protection of the laws and operated against him as an ex post facto law. He further asserted that the statute and ordinance are too vague and indefinite to be valid, that the "exercise and application of the ordinance and/or statute" violated his constitutional rights and privileges, that the application of the "ordinance and/or statute" constituted an abuse of the power and discretion vested in the persons enforcing the "ordinance and/or statute" and that the charges were so vague and indefinite as to make it impossible for the accused to be informed of the charges against him and thereby prevented him from properly making a defense thereto.
Turning back to the terms of the warrant we note that the defendant is charged with operating "a junk and/or salvage yard in violation of Section IV-C-1(d) of the Zoning Ordinance of Anne Arundel County." The testimony shows that part of the appellant's property is zoned "heavy commercial," part as "agricultural" and a small part as "cottage residential." The Zoning Ordinance does not permit a junk or salvage yard to be located in any area zoned under any of these classifications unless either (1) such a "lawful non-conforming use" existed on the effective date of the Ordinance, July 1, 1952 (See Section I-D), or (2) in the case of property zoned as "heavy commercial" and meeting certain other requirements, a "special exception" allowing such use is granted by the Board of Appeals. (See Section IV-C-1(d).
Section IV-C-1 (d) reads as follows:
"C — Powers of the Board of Appeals are as follows: 1. The Board shall have the power to hear and decide, in accordance with the provisions of this Ordinance, requests for special exceptions or for interpretation of the zoning map or for decisions upon other special questions upon which the Board is authorized to pass. The special exceptions are as follows:
* * *
(d) Junk or Salvage yards.
* * *
The following minimum standards shall be met by each application for any special exceptions above listed:
* * *
(d) For Junk or Salvage Yards such a use may be authorized:
1. Only in a heavy commercial or industrial zone.
2. Where the yard itself be invisible from and at least three hundred (300) feet distant from any state or county highway.
3. Where the general welfare, in the judgment of the Board of Appeals, will not be injured by proximity to populated areas or other circumstances."
The prohibitions against junk yards in areas zoned as "agricultural," "cottage type residential," and "heavy commercial" are contained in Section II A 1 (b)(1), Section II B 2 a (2) (1) and Section II E 1 (b)(1), respectively. The provisions of Section IV-C deal with the powers of the Board of Appeals and sub-division 1 (d) thereof deals only with limitations on the power of the Board to grant "special exceptions" for the use of property as a junk yard or salvage yard. The charge in the warrants has been treated by the appellant, and also by the State, as sufficient to set forth an offense. The appellant's brief states that "In this case, Appellant was being prosecuted criminally under the penalty section of the ordinance which makes it a misdemeanor to operate a salvage or junk yard without approval by the Zoning Board."
Grammatically, the charge in the warrants is open to serious criticism since the appellant obviously could not, by operating a junk yard, violate provisions of the ordinance defining or limiting the powers of the Board to grant a permit or "special exception" to operate one. However, the elliptical form in which the charge is stated does not appear to have misled the appellant, as is indicated by his construction of the warrants, as stated in his brief; and he has not raised either in the trial court or in this Court any objections to the warrant on the grammatical grounds which we have noted. Had they been raised in the trial court it appears that the charges could have been corrected by amendment of the warrants at any time before final judgment under Code (1951), Article 52, § 20. The case was tried upon the meaning of the charges as stated in the appellant's brief; and so construed, they do state an offense under the Zoning Ordinance. This construction, we think, is sustainable, though the matter has presented considerable difficulty, and this form of expressing a charge is one which is certainly not to be recommended.
See Leet v. State, 203 Md. 285, 289-290, 100 A.2d 789, 791; Hurwitz v. State, 200 Md. 578, 92 A.2d 575; Rule 3 (b)(2) of the Rules of Criminal Procedure.
There are two different bases upon which the sanction of the Board of Appeals might be obtained for the operation of a junk yard or salvage yard. One is that of a lawful non-conforming use; the other is a "special exception."
Section I-D of the Zoning Ordinance provides that "A lawful non-conforming use existing on the effective date of the adoption of these regulations may continue; * * *." That date was July 1, 1952. The appellant argues that this is the controlling date, but his argument overlooks the definition of a "lawful non-conforming use." This is set forth in Section I-B (a n) as "Any lawful use existing prior to the initial passage of the zoning ordinance and contrary to the zoning restrictions of said ordinance." The date of "the initial passage of the zoning ordinance" was apparently December 2d 1947. Under the amended ordinance adopted July 1, 1952, it was necessary for the appellant to obtain a "certificate of occupancy" for the use of the property as a junk or storage yard in order to continue such use. See Section I-C 2(b). To obtain such a certificate, proof would be required of the non-conforming use on December 2d 1947, and of its non-abandonment for a period of as much as a year thereafter. The appellant sought such a certificate and the Board of Appeals held a hearing on his application, as a result of which it found that the alleged non-conforming use was not established and accordingly on December 4th, 1953, denied the application. The applicant then appealed to the Circuit Court for Anne Arundel County, and the action of the Board of Appeals was affirmed by the Court on March 11th, 1954.
The other possible form of approval which might be obtained for the operation of a junk or salvage yard is a "special exception." Such an exception is not permissible under the terms of the Zoning Ordinance unless the property in question is zoned as "heavy commercial" or "industrial" and then is permissible only if the yard is "invisible from and at least three hundred (300) feet distant from any state or county highway." The final clause of Section IV-C-1 (d), paragraph (3), requires as an additional condition for the issuance of a special exception permit that, in the judgment of the Board of Appeals, the general welfare "will not be injured by proximity to populated areas or other circumstances." It is this last clause against which the appellant directs most of his attacks based upon constitutional grounds.
The record of the Board of Appeals hearing which was introduced in evidence shows that about a year before Mr. Laque's unsuccessful effort to establish a non-conforming use he had made an unsuccessful effort to obtain from the Board of Appeals a "special exception" to use his property for the salvage of automobile parts. There is nothing to indicate that he took any appeal from this adverse ruling of the Board.
It was thus established that the appellant had neither a certificate of occupancy showing a non-conforming use nor a "special exception" permit to operate a junk or salvage yard. Hence his operations, if they amounted to the maintenance or operation of such a yard, were in violation of the ordinance and neither of the possible exceptions was available to him. He testified in substance that he did not run a junk yard because his method of operation was merely to salvage and sell usable parts from old automobiles which remained only temporarily on his lot, and that when such parts had been sold he removed the automobile bodies to a junk yard. We think that this is too fine a distinction and that, on his own testimony, he was maintaining and operating a junk or salvage yard.
The appellant's principal argument is that he should be permitted in this case to relitigate the question of whether or not he had established a non-conforming use of the property as a salvage or junk yard. As already pointed out, he selects July 1, 1952, as the decisive date; but because of the definition of a "lawful non-conforming use" we think that December 2, 1947, is the controlling date on this point. He asserts that he has been deprived of a constitutional right, because he was not permitted to relitigate this question so fully as he wished to. We do not agree.
The Zoning Ordinance of July 1, 1952, clearly recognized and offered protection to any lawful non-conforming use in existence on that date, and provided for the protection of such uses as had existed on December 2, 1947 and had not thereafter been abandoned. This Court has recognized that non-conforming uses are rights which are entitled to protection. Amereihn v. Kotras, 194 Md. 591, 71 A.2d 865; Higgins v. City of Baltimore, 206 Md. 89, 110 A.2d 503. In neither of these cases did the provisions of the ordinance involved require any action on the part of the person claiming the use at a time material to the decision of the case. The 1952 Anne Arundel County Ordinance, unlike its 1947 predecessor, required "certificates of occupancy" for the use of land for other than agricultural or residential uses (or uses accessory thereto). It also makes provision for obtaining such certificates from administrative officials, and Section 614 of the Code of Public Local Laws of Anne Arundel County provided for judicial review of the action of the Board of Appeals. Mr. Laque followed these procedures, and he appealed from the Board of Appeals to the Circuit Court where he was entitled to full hearing and to produce additional testimony. He has had his day in court on his alleged constitutional rights, and the determination has been adverse to him. We know of no rule of law which requires that he be offered the right to relitigate the question as often as he pleases. The point at issue is really not one of protecting a judgment from collateral attack; the question is simply whether or not he has been deprived of an opportunity to assert in a judicial proceeding a right which he claims and has thereby been denied due process of law. We think that clearly he has had such an opportunity. See Yakus v. U.S., 321 U.S. 414.
The situation is simply that the appellant does not have a "certificate of occupancy" authorizing the use of the property as a junk yard. He has been afforded a full and fair opportunity to get one, including a judicial review of his application for it. The absence of such a certificate bars him from one of the two defenses which he might have under the ordinance. It so happens that this defense is outside the scope of Section IV-C-1(d); but if he had such a certificate it would be a defense against a charge based upon his operating a junk yard without a "special exception" permit from the Board, because no such permit would then be needed.
This reduces him to the one other possible defense — a "special exception" permit to operate a junk yard. It is perfectly clear that he does not have one. The ordinance offers him ample opportunity to get one by the same kind of procedures which were available to him in connection with his effort to establish a non-conforming use. The evidence shows that he tried to get one from the Board and that his application was denied. There is nothing to indicate that he took or attempted to take an appeal from that adverse decision. Every objection to Section IV-C-1(d) or its application which he urges here was available to him in those proceedings. The State urges that he is obligated to exhaust the administrative remedies available to him and thereafter to pursue the statutory method of appeal and judicial review which was available to him under the procedure provided by Article 66 B of the Code and the ordinance, and denies his right to make a collateral attack on the ordinance as a defense to a criminal prosecution. In this contention it relies largely on Kahl v. Consolidated Gas Elec. Lt. Power Co., 191 Md. 249, 60 A.2d 754; Applestein v. Baltimore, 156 Md. 40, 143 A. 666; and Anne Arundel County v. Snyder, 186 Md. 342, 46 A.2d 689. None of those cases was a criminal case and they are therefore not directly in point. However, where, as here, there was ample opportunity to present and litigate all of the contentions now presented, we think the same reasoning is applicable. See also Yakus v. U.S., supra.
Even if this rule were not applicable, it would seem that in order to present an adequate defense to the charge of operating a junk yard without a "special exception" permit, the appellant would have to show at least that the challenged portion of the ordinance is invalid and that he is entitled to proceed without a permit thereunder. He would promptly encounter two obstacles: first, the separability clause of the ordinance; and, second, the perfectly clear and explicit requirements that a junk yard must not be visible from a State or county highway and must be at least 300 feet distant from one. The evidence seems to show rather clearly that the portion of the appellant's tract used for the purposes charged fronts on a public street and is 200 feet in depth. The argument of vagueness which the appellant directs against the provision requiring consideration by the Board of "the general welfare" therefore need not be reached. The appellant has made no argument against the validity of the three hundred foot requirement and has merely questioned whether "an attractive fence" which would cut off visibility would satisfy the ordinance. There is no evidence that there was one at the time of the alleged offenses. We are not prepared to hold that on their face these explicit provisions are so arbitrary or unreasonable as to be void, and we do not find any deprivation of any constitutional right of the appellant by reason of the "special exception" permit requirements of the ordinance.
The appellant urges several grounds for a reversal of the judgment.
One is the admission of the record of the proceedings before the Board of Appeals on his application for a certificate of occupancy. While there may be some question as to the admissibility of the entire record, we think that the order or resolution based thereon was admissible to negative one possible defense to the charge and that the admission of the entire record is not shown to have been prejudicial to the appellant and his objection to its admission made at the trial appears to have been based on materiality rather than prejudice. For the same reason that we think the resolution of the Board was admissible we think the decree of the Circuit Court affirming the Board's action was admissible.
The appellant also complains that he was not allowed to testify in support of his claim that he had established a non-conforming use. The record shows that he did testify somewhat extensively on this subject. In addition, as what we have already said will indicate, it is not controlling in our view, whether the Board did or did not reach the correct conclusion on that subject; the important facts are that after a full hearing and after review of the Board's decision by the Circuit Court, he does not have a certificate of occupancy based upon an alleged non-conforming use and that neither the Board's action nor that of the Circuit Court in affirming the Board is before us for review in this case.
The appellant also objected to being required to go to trial in the absence of certain witnesses who had not been summoned. No explanation was offered as to why they had not been summoned earlier, despite the fact that it seems perfectly clear that the defendant had notice that his case was to come up on that day. Matters of continuance are ordinarily within the discretion of the trial judge and it has not been shown that he abused his discretion in this case. Compare Plank v. Summers, 205 Md. 598, 109 A.2d 914. It appears, though it is by no means clear, that the absent witnesses were to be interrogated about the alleged non-conforming use. No amount of such testimony would have supplied the absence of the certificate of occupancy.
We are of the opinion that the judgments should be affirmed.
Judgments affirmed, with costs.