# Minor v. Shifflett > Court of Appeals of Maryland · February 14, 1969 · 252 Md. 158 URL: https://www.frixlaw.com/law-library/cases/9652096 ## Case - **Full name:** MINOR Et Al. v. SHIFFLETT Et Al. - **Court:** Court of Appeals of Maryland - **Decided:** February 14, 1969 - **Citations:** 252 Md. 158; 249 A.2d 159 - **Precedential status:** Published - **Opinion:** Concurrence by Barnes - **Judges:** Hammond, Mar-Bury, Barnes, Ingrey, Smith - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9652096 ## Opinion text *168 Barnes, J., concurring: I most reluctantly concur in the result in this case. I only concur because I must as a result of the doctrine of store decisis. The result in the case on this appeal — contrary to the result reached both by the Board and by the Circuit Court — is based upon two lines of decision in this Court both of which I consider to be quite erroneous and contrary to a correct understanding of the constitutional provisions involved. The first of these erroneous lines of decision is the Maryland “change in conditions — mistake in original zoning” rule. My comments upon this unfortunate rule in regard to its curious inception, its illogical character and its unhappy results, have already appeared at some length in earlier dissenting and concurring opinions. See MacDonald v. Board of County Comm’rs, 238 Md. 549, 557, 604 , 210 A. 2d 325, 329, 340 (1965). See also Wahler v. Montgomery County Council, 249 Md. 62, 71 , 238 A. 2d 266, 271 (1968) and Randolph Hills, Inc. v. Whitley, 249 Md. 78, 90 , 238 A. 2d 257, 264 (1968). These comments need not be repeated again or even summarized here. The present case, however, appears to me to be a good example of an unfortunate and unsound result, emanating from this erroneous doctrine, which is gravely injurious to the property rights of Shifflett, the property owner, and to the public interest as well. First of all, it is established that the junk use is a lawful use of private property, and does not create a nuisance per se. Town of Bladensburg v. Berg, 216 Md. 292, 296 , 139 A. 2d 703, 705-06 (1958). Secondly, the private property involved in this case has been used for the lawful purpose since 1932, assuming, arguendo, that Section 200.16 of the Baltimore County Zoning Regulations is unconstitutional. The property owner has a substantial investment of approximately $300,000 in this property and the business conducted there. The use of this property for a lawful business is, in my opinion, a vested property right. The lawful use provides substantial employment for 10 full-time employees, and two part-time employees, with a payroll of ap *169 proximately $60,000 per year. The use not only is beneficial to the economy generally but specifically provides employment and advances the public interest in that important way. Thirdly, the vesting of this property right occurred some 13 years before the original zoning in the area in 1945 and has continued without interruption until the present time. What other property owner has been injured by this use? Some of the protestants in this case did not even know of the existence of the use when they acquired and moved into their properties. While others knew about the use, some could not see the subject property from their own properties; and not one testified in regard to any specific injury to him personally or even to any specific amount of depreciation in the value of his property resulting from Shifflett’s use. The terrain where the junk use is carried on is quite rough and at one time there was a quarry on the property. No nearby or other property owner has sought any relief in equity for any alleged nuisance, doubtless because there is no nuisance. And yet, notwithstanding this factual situation, his long-established lawful and beneficial use, by the terms of Section 200.16 of the Baltimore County Zoning Regulations, enacted by the County Council on November 17, 1962, must be obliterated, with no provision for just compensation, unless the Board could pursuant to its delegated legislative powers rezone a sufficient part of the subject property to enable the property owner to continue the use. At this point the difference between what I conceive to be the proper constitutional doctrine which ought to be applied and the Maryland “change-mistake” rule becomes clearly apparent. It is conceded that there has been no “change in conditions” since the last comprehensive rezoning to justify the Board in approving the rezoning. I must agree with the majority in its observation that the proof in the present case does not support the Board’s finding that there was a “mistake in original zoning.” There was no expert testimony to this effect introduced on behalf of Shifflett. Indeed, the only expert testimony in the case — that of Mr. Gavrelis — indicated (hypothetically, at least) that there was, in his opinion, no error in the original zoning. It is apparent, I think, that merely because there was a non-conforming use created at the time of the original zoning, *170 which was not then made to conform by some type of zoning, there is not, ipso facto, a “mistake” in the original zoning. If, however, the proper constitutional doctrine were applied, which, in my opinion, is whether or not the rezoning action of the Board was “arbitrary, unreasonable or capricious” and thus a denial of due process of law contrary to Article 23 of the Declaration of Rights in the Maryland Constitution — the usual test in other challenges to' the exercise of legislative power (unless limited by the provisions of the delegation of the exercise of this power to an agency other than the legislative body itself), — it is clear to me that the Board’s action in this case was not at all “arbitrary, unreasonable or capricious” but, on the contrary,' was a reasonable decision, based on the preservation of vested property rights and calculated to advance the public interest. In short, as I have indicated in the other opinions mentioned, the Maryland “change-mistake” rule confines the exercise of the legislative power in rezoning cases to a consideration of two factors only, and thus creates a new constitutional limitation. As I see it, there are a number of other equally important factors which the legislative body exercising the rezoning power couldi well take into consideration in reaching a reasonable decision, even though there may not be in the particular case a “change in conditions” or “mistake in original zoning.” Indeed, the tempering of the 'effect of a harsh and inequitable application of a general provision of the zoning law to a particular factual situation is one of the essential functions of the Board in exercising its rezoning functions, so long as the exercise of that necessary power does not result in arbitrary, unreasonable, discriminatory or capricious action. In my opinion, reasonable men could conclude that both justice to the property owner and the public interest required the granting of the rezoning in this case and it cannot properly be said that the Board’s action offended the constitutional limitation of due process of law by being arbitrary, unreasonable or capricious or discriminatory. When this situation exists, we have no constitutional power to - disturb the legislative action, unless there is some violation of another constitutional protection enjoyed by the property owner, e.g., when there is an attempt to take private property for public use without the payment of just com *171 pensation contrary to Article III, Section 40 of the Maryland Constitution. This brings me to the second line of erroneous decision, which began with Grant v. Mayor and City Council of Baltimore, 212 Md. 301 , 129 A. 2d 363 (1957) and has unfortunately been continued with increasing vigor in Eutaw Enterprises, Inc. v. Mayor and City Council of Baltimore, 241 Md. 686 , 217 A. 2d 348 (1966) and Shifflett v. Baltimore County, 247 Md. 151 , 230 A. 2d 310 (1967). 1 In my concurring opinion in Stevens v. City of Salisbury, 240 Md. 556, 573 , 214 A. 2d 775, 785 (1965), I indicated my distress at the Court’s approval of its prior decision in Grant and expressed the hope that the Grant decision would be overruled by the Court as soon as possible or, at least, strictly limited to the facts in the Grant case. As indicated, neither hope was realized. In my concurring opinion in Stevens , I quoted at some length from the “dissenting” opinion 2 of Judge Van Voorhis of the Court of Appeals of New York in Harbison v. City of Buffalo, 4 N.Y.2d 553, 564 , 176 N.Y.S.2d 598, 606 , 152 N.E.2d 42, 52 (1958), in which my views on this extraordinary doctrine of the constitutionality of the elimination by legislative provision of established non-conforming uses by the use of an “amortization” period in the statute, but without provision for the payment of just compensation, are fully articulated by Judge Van Voorhis. Again, I need not repeat these views here. When the right to use private property for a lawful use vests — as the right has, in my opinion, in this case, — the only constitutional way that vested right may be eliminated by the State or its political subdivisions against the will of the property owner is by the exercise of the power of eminent domain and the payment of just compensation. As Mr. Justice Holmes aptly stated in 1922 *172 in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 , 43 S. Ct. 158, 160 , 67 L. Ed. 322 , 326 : “The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the Fourteenth Amendment. * * * When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States.” Quite apart from our obligation as I see it to protect Shifflett’s property rights under the provisions of the Maryland Constitution, to fail to require payment to Shifflett for the deprivation of his right to continue to use part of the subject property for his lawful use is, in my opinion, contrary to the public interest. Where will Shifflett get the necessary money to continue his business? Where will he locate his business, if he is fortunate enough to have sufficient private resources to re-establish his business at another location, in view of the very few locations in Baltimore County as a result of the present legislative and other restrictions? If he is forced out of business, who will perform the useful function accomplished by his business and where will his employees be employed and receive the wages necessary to support them and their families? If we had held that Section 200.16 of the Baltimore County Zoning Regulations, enacted November 17, 1962, was unconstitutional and void, as I firmly believe it to be, Shifflett would not have to seek answers to these questions and, in my opinion, the public interest would also be served. Finally, it is not without irony that in the first of these erroneous lines of decision, we have, in my opinion, placed a restriction on the exercise of the legislative power more stringent than permitted to us under the Maryland Constitution, whereas in the second of these erroneous lines of decision, we have *173 declined to place a restriction upon the exercise of the legislation which seems to me to be clearly required by the constitutional prohibitions against taking private property for public use without the payment of just compensation. In the sonorous words of Archbishop Cranmer in the General Confession in Morning and Evening Prayer in the Book of Common Prayer “* * * we have left undone those things which we ought to have done and have done those things which we ought not to have done * * I will not, however, add the next clause. I still hope that ultimately we will return to more orthodox constitutional doctrine in the two areas mentioned. . By coincidence, by the operation of our general practice of sitting in panels of five judges, I did not sit in either Eutaw Enterprises, Inc. v. Mayor and City Council of Baltimore or in Shifflett v. Baltimore County. I would have dissented in both cases had I sat. . As pointed out in Note 1 in the concurring opinion in the Stevens case, the Van Voorhis opinion is not really a “dissenting” opinion as there was no majority opinion in the Harbison case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9652096. Public record. Not legal advice.