Does a private gas station and convenience store count as a 'public building' that a Maryland town's planning commission must review and approve?

Plain-English summary

An attorney representing the Town of Vienna asked the Attorney General in 1989 whether Article 66B's planning and zoning law required the town's planning commission to review and approve a privately owned gas station and convenience store, on the theory that a store open to the public counts as a "public building" under §3.08 of the Act. The Attorney General concluded no. Reading §3.08 in the context of the rest of the statute, the phrase "whether publicly or privately owned" modifies only "public utility," not every category of facility the section lists, and the section's own override mechanism (a governmental body gets to overrule the commission's disapproval) shows the section is aimed at facilities in which government has an ownership or financing interest, not privately run commercial businesses. Being "open to the public" in the sense of inviting customers in during business hours is not the same as being used by the public "as a matter of right" the way a park or public utility is. The commission could still end up reviewing the project, but only if and when Vienna adopted subdivision regulations under a different part of Article 66B.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article 66B, the Maryland zoning enabling law analyzed throughout this opinion, was recodified in 2012 by Chapter 426 of the Laws of Maryland into the Land Use Article; the specific Article 66B section numbers cited in this opinion (including §3.08 and §§5.01 through 5.08) no longer exist at those citations in current Maryland law, though comparable planning-commission review provisions appear to have carried forward into the Land Use Article recodification.

Common questions

In 1989, did a private convenience store need Maryland planning commission approval as a "public building"? No, according to this opinion. It concluded that a privately owned, for-profit retail business open to customers during business hours is not a "public building" under Article 66B, §3.08, even though the public is invited onto the premises to shop.

Why doesn't being "open to the public" make a building a public building? The opinion drew a distinction between a business inviting customers in (an invitation the owner can withdraw at any time) and a facility the public may use "as a matter of right," like a road, park, or public utility. It relied on prior Maryland cases holding that state- or government-owned property leased to a private business for private commercial use is not a "public use" for zoning-exemption purposes either, reasoning the same distinction should apply to the definition of "public building."

Could Vienna's planning commission ever review a project like this? Yes, but only through a different mechanism. The opinion noted that if Vienna adopted subdivision regulations under Article 66B, §§5.01 through 5.08, the planning commission could gain authority to review site plans for conformance with those regulations, separate from the §3.08 "public building" review that this opinion found did not apply.

Does this mean private businesses face no local review at all? No. The opinion noted the gas station and convenience store would still be subject to the municipality's ordinary zoning and building permit controls under Article 66B and Article 23A, §2(b)(30); the opinion only concluded that the specific planning-commission "public building" review under §3.08 did not apply.

Background and statutory framework

Article 66B, the State Planning and Zoning Enabling Act (enacted as Chapter 599 of the Laws of Maryland 1933), lets local governments create a planning commission and adopt a comprehensive plan. Section 3.08 bars construction of "any street, square, park or other public way, ground, or open space, or public building or structure, or public utility, whether public or privately owned" unless the planning commission first reviews it for consistency with the comprehensive plan, subject to override by a two-thirds vote of the local legislative body (or, for utility-financing matters, whatever body controls that financing).

The opinion built its analysis around the ordinary legal definition of "public building," a building "held, used, or controlled exclusively for public purposes," and around the structure of §3.08 itself: the phrase "whether public or privately owned" makes the most grammatical sense modifying only the immediately preceding term, "public utility," since utilities (unlike parks or public buildings) are commonly privately owned even though they serve a basic public function and are heavily regulated. The opinion also leaned on the section's override provision, which hands override power to a governmental body with jurisdiction over the facility's financing, something that makes sense only for facilities with a government ownership or funding interest. It drew further support from a line of Maryland cases on when privately used, sometimes government-owned, property counts as a "public use" exempt from ordinary zoning, including Youngstown Cartage Co. (a state-owned trucking facility leased to a private company was not a public use, so it stayed subject to zoning) and City of Baltimore v. State Department of Health and Mental Hygiene (a state-purchased building used by a charity to fulfill the state's own group-home obligations was a public use). Applying that same "used by the public as of right, or used to fulfill a government responsibility" framework, the opinion concluded a privately owned gas station and convenience store, however open to paying customers, did not qualify as a public building.

Citations and references

Statutes:

• Article 66B, §3.08, the "public building" review provision at the center of this opinion
• Article 66B, §§3.01 through 3.09, authorizing local planning commissions and comprehensive plans
• Article 66B, §§5.01 through 5.08 and §§5.02, 5.05, and 5.06, the separate subdivision-regulation review authority
• Article 23A, §2(b)(30), the municipality's general zoning and building-control authority
• Article 28, §7-112, the Regional District Act's parallel public-facility review provision, used for comparison
• Chapter 599 of the Laws of Maryland 1933, the original enactment of Article 66B
• Article XI-B and Article III, §40 of the Maryland Constitution, the eminent domain "public use"/"public benefit" provisions discussed in the case law

Cases:

• Cardon Inv. v. Town of New Market, 55 Md. App. 573, 466 A.2d 504 (1983), aff'd, 302 Md. 77, 485 A.2d 678 (1984), on a municipality's zoning authority being limited to what Article 66B delegates
• Board of County Commissioners v. Gaster, 285 Md. 233, 245, 401 A.2d 666 (1979), holding §3.08 covers streets built by private developers where the streets will be dedicated to public use
• Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987), on ascertaining legislative intent from a statute's words and context
• NCR Corp. v. Comptroller of Treasury, 313 Md. 118, 125, 544 A.2d 764 (1988), and ANA Towing, Inc. v. Prince George's County, 314 Md. 711, 718 n.5, 552 A.2d 1295 (1989), on construing statutory language in light of context and consequences
• Board of Child Care v. Marker, No. 120 September Term, 1988 (Md. July 28, 1989), a then-unreported decision on when privately used state-licensed facilities can claim a state zoning exemption
• City of Baltimore v. State, 281 Md. 217, 224, 378 A.2d 1326 (1977), holding state property for a penal institution was exempt from local zoning
• City of Baltimore v. State Dep't of Health and Mental Hygiene, 38 Md. App. 570, 578, 381 A.2d 1188 (1978), holding a state-purchased building leased to a charity for a state-mandated group home was a public use
• Rowe v. Chesapeake & Potomac Tel. Co., 65 Md. App. 527, 532-33, 501 A.2d 464 (1985), on state regulation of public utilities limiting local control
• Youngstown Cartage Co. v. North Point Peninsula Community Coordinating Council, 24 Md. App. 624, 630, 332 A.2d 718 (1975), holding a state-owned trucking facility leased for private commercial use was not a public use
• Riden v. Philadelphia, B. & W. R.R., 182 Md. 336, 340, 35 A.2d 99, 101 (1943), and Prince George's County v. Collington Crossroads, Inc., 275 Md. 171, 186-90, 339 A.2d 278, 286-88 (1975), on "public use" being a fact-specific determination not limited to physical public access

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 221-229 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PLANNING COMMISSION

Zoning - "Public Building" - Planning Commission Does Not Have Authority Under Article 66B, §3.08 To Review And Approve Project For Privately Owned Retail Business

August 4, 1989

Robert J. Merriken, Esquire
Earnest & Cowdrey, P.A.

On behalf of the Town of Vienna, you have requested our opinion on whether Article 66B of the Maryland Code requires planning commission approval for the construction of a retail business that will be open to the public, that is, whether the business is a "public building" within the meaning of Article 66B, §3.08.

For the reasons given below, we conclude that Article 66B, §3.08 does not apply to privately owned and operated retail stores, and the planning commission therefore does not have authority under Article 66B, §3.08 to review and approve those projects. However, that authority might arise under §§5.01 through 5.08 if and when the town adopts subdivision regulations.

I

Authority of Planning Commission

The Town of Vienna, a municipal corporation chartered by the General Assembly, receives its planning and zoning powers under the State Planning and Zoning Enabling Act, Article 66B (the "Act"). Cardon Inv. v. Town of New Market, 55 Md. App. 573, 466 A.2d 504 (1983), aff'd, 302 Md. 77, 485 A.2d 678 (1984). Sections 3.01 through 3.09 of the Act authorize each local government to create a planning commission and adopt a comprehensive plan for development in the jurisdiction, and the Town of Vienna has exercised that authority.

Section 3.08 provides in part that, after the adoption of a comprehensive plan, "no street, square, park or other public way, ground, or open space, or public building or structure, or public utility, whether public or privately owned, shall be constructed or authorized in the jurisdiction ... until the location, character, and extent of such development shall have been submitted to and approved by the [planning] commission as consistent with the [comprehensive] plan." The section further provides that the commission's disapproval may be overruled by a two-thirds vote of the entire local legislative body or other board, commission, or body having jurisdiction over the authorization of financing for the public way, ground, space, building, structure, or utility. These provisions have been part of the Act since the General Assembly first enacted it as Chapter 599 of the Laws of Maryland 1933, but have never been directly construed or interpreted by the Maryland courts.

Sections 5.01 through 5.08 of the Act provide for the adoption of subdivision regulations governing matters like erosion and sediment control, street and open space arrangement, and lot width and area. After the regulations have been adopted, every subdivision plat must receive planning commission approval before it may be recorded or the land covered by the plat may be sold. §§5.02, 5.05, and 5.06. However, the Town of Vienna has not yet adopted subdivision regulations.1

Your inquiry concerns a combination gas station and convenience store. This business is privately owned and operated but is open to the general public for commercial purposes. The question has arisen whether this development must be reviewed by the planning commission, pursuant to §3.08 of the Act, for consistency with the Town's comprehensive plan.

In Board of County Commissioners v. Gaster, 285 Md. 233, 245, 401 A.2d 666 (1979), the Court of Appeals held that a planning commission may disapprove a proposed subdivision that conforms to zoning requirements but is inconsistent with the comprehensive plan. In doing so, the Court commented:

1
In Board of County Commissioners v. Gaster, 285 Md. 233, 245, 401 A.2d 666 (1979), the Court of Appeals held that the planning and subdivision provisions of Article 66B, taken together, require the local legislative body to adopt both a comprehensive plan and subdivision regulations to effectuate the plan.

[T]he board of appeals found the factual conclusions of the [planning] commission to be correct. Thus, it follows that if this proposed subdivision were approved, the streets contemplated in it would be spewing traffic out onto a county road "which has poor vertical and horizontal alignment, poor sight distances, and narrow width [, a] road ... not programmed for reconstruction before 1990." Given the provisions of §3.08, this in itself was a sufficient basis for the disapproval of the subdivision plat by the commission.

285 Md. at 249. Thus, the Court recognized that §3.08 applies not only to facilities developed by governmental entities but also to streets planned and built by private developers. See also 64 Opinions of the Attorney General 341, 348 n.9 (1979).2 However, because those streets would presumably be dedicated as public streets upon completion, the Court's comments in Gaster are not determinative of whether a building housing a privately owned and operated retail business is a "public building" that also requires planning commission approval.

II

Construction of §3.08

The cardinal rule of statutory construction is to ascertain and carry out the real legislative intent, that is, the legislative purpose, aim, or policy underlying the statute. Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628 (1987). The starting point for

2
In this passage, the Attorney General observed:
"Because streets, squares, parks, playgrounds, and open spaces are often developed by the local government and because public buildings or structures and public utilities may be characterized as public or quasi-public development, §3.08 generally will apply to public or quasi-public development.
However, it also applies to the development of streets, playgrounds and open spaces by private developers of subdivisions as the Court of Appeals of Maryland recently recognized in Cecil County v. Gaster."

determining that intent is the words of the statute, but statutory language must be considered in light of its context. NCR Corp. v. Comptroller of Treasury, 313 Md. 118, 125, 544 A.2d 764 (1988). The context of a statute includes related laws. ANA Towing, Inc. v. Prince George's County, 314 Md. 711, 718 n.5, 552 A.2d 1295 (1989). Moreover, we should also consider the consequences resulting from one construction rather than another, to avoid results that are illogical. 314 Md. at 717.

Black's Law Dictionary 1105 (5th ed. 1979) defines a "public building" as:

One of which the possession and use, as well as the property in it, are in the public. Any building held, used, or controlled exclusively for public purposes by any department or branch of government, state, county, or municipality, without reference to the ownership of the building or of the realty upon which it is situated. A building belonging to or used by the public for the transaction of public or quasi public business.

That definition certainly suggests that a building constructed and used by a private entity for a commercial enterprise that is operated for private profit is not a public building.

Section 3.08 includes the phrase "whether publicly or privately owned." While the phrase could be construed to refer to all of the public facilities listed in the provision, the more logical construction is that it modifies only "public utility," the term that immediately precedes it. Public utilities differ from other types of public facilities in that they are often privately owned although they provide basic public needs such as water and electricity. Utility companies are really quasi-public or public in nature because of type of the services they provide and the extensive governmental regulation to which they are subject. Utilities often have large facilities whose installation can profoundly effect the development of an area, and review by the planning commission is important for the protection and promotion of the general plan. By contrast, private facilities open to the public for commercial purposes have on an individual basis much less impact on the plan.

Limiting the application of §3.08 to public utilities and publicly owned structures also comports with the provision of §3.08 regarding the power to overrule planning commission decisions. That power is given to the local legislative body unless the project under consideration is "one the authorization of financing of which does not, under the law or charter provisions governing same, fall within the province of the local legislative body ...." In that case, the power to overrule the planning commission is given to the "board, commission or body" that has jurisdiction to authorize the financing of the project.

This language clearly contemplates a facility constructed under government direction using public or quasi-public funds. Under Cecil County v. Gaster, §3.08 also includes facilities that would be financed and built by the developer and then transferred to the government. In those cases, however, the facilities would eventually be owned by a public body and maintained with public funds, like facilities originally constructed with public funds.3 Thus, the overruling provisions indicate that §3.08 applies only to facilities in which a governmental entity has an interest.4

3 The planning commission's disapproval of one of those facilities would be subject to override by the body that would eventually own and maintain the facility, and not by the private developer or the financing bank. Individuals and business entities simply are not "board[s], commission[s] or bod[ies]", all terms that import governmental or quasi-governmental entities.
4
It is helpful to compare §3.08 with a closely related provision in the Regional District Act, Article 28, §7-112 of the Maryland Code, which states:
"[N]o road, park, or other public way or ground, no public (including federal) buildings or structures, and no public utility, whether publicly or privately owned, shall be located, constructed or authorized in the regional district until and unless the proposed location, character, grade, and extent thereof has been submitted to and approved by the Commission. In case of disapproval the Commission shall communicate its reasons to the State, federal, county, municipal, or district board, body or official proposing to locate, construct or authorize such public way, ground, building, structure, or utility. There upon the board, body, or official in its discretion may overrule the disapproval and proceed...."
The provision concerns the same kinds of facilities and follows the same procedures as in §3.08, except that a two-thirds vote to override the commission is not required. The language of §7-112 is clearer that the facilities addressed are those in which a governmental entity has a significant and continuing interest.

The evident purpose of §3.08 is to ensure that a local planning commission has an opportunity to evaluate the appropriateness of proposed facilities that may significantly affect the integrity of the master plan. The opportunity would not necessarily arise under the general provisions of Article 66B: Under Maryland law, State property used for public purposes is not subject to the controls and restrictions of local planning and zoning authorities, absent a specific grant of authority by the General Assembly. Board of Child Care v. Marker, No. 120 September Term, 1988, slip op. at 9, 12 and 14 (Md. July 28, 1989); City of Baltimore v. State, 281 Md. 217, 224, 378 A.2d 1326 (1977); City of Baltimore v. State Dep't of Health and Mental Hygiene, 38 Md. App. 570, 578, 381 A.2d 1188 (1978). Neither are local governments' public facilities generally subject to planning and zoning control. 73 Opinions of the Attorney General 238, 243-45 (1988). See also 57 Opinions of the Attorney General 121, 125 (1972).

Thus, local planning commissions ordinarily would have no control over where government agencies placed their public roads, open spaces, and buildings. Moreover, the State's comprehensive and detailed regulation of public utilities might well prevent local governments from regulating the construction of public utility facilities authorized by the State. See Rowe v. Chesapeake & Potomac Tel. Co., 65 Md. App. 527, 532-33, 501 A.2d 464 (1985). In §3.08, however, the General Assembly has given the commission the power to review government proposals for public and quasi-public facilities and to apprise a government if its proposal contravenes the master plan.

Because §3.08 is intended to allow a planning commission to disapprove (although it may not wholly prevent) the construction of facilities over which local planning and zoning authorities would otherwise have little or no control, the scope of §3.08 must be determined by reference to the uses that are generally exempt from planning and zoning controls. Several Maryland cases have considered this issue. In City of Baltimore v. State, 281 Md. at 224, the Court of Appeals held that State-owned property intended to be used for a penal institution was exempt from local zoning. In Youngstown Cartage Co. v North Point Peninsula Community Coordinating Council, 24 Md. App. 624, 630, 332 A.2d 718 (1975), the Court of Special Appeals held, on the other hand, that State-owned property rented to a private enterprise for commercial use as a trucking facility was subject to zoning because it did not constitute a public use.

In reaching its conclusion in Youngstown, the Court of Special Appeals considered two distinct concepts of public use arising from the eminent domain provisions of the Maryland Constitution. Under Article XI-B, property may be acquired by eminent domain for land redevelopment so long as a public benefit can be shown. However, this "public benefit" test, as the court noted, seems to be limited to land redevelopment projects. 24 Md. at 629. The more generally used construction, which comes from Article III, §40 and the cases construing it, is that "public use" means use or enjoyment by the public. 24 Md. App. at 628. The court adopted this concept of public use and applied it to the zoning issue, concluding that State-owned property leased to a private enterprise for private commercial purposes was not a public use (and therefore not exempt from zoning) because the public had no right to enter upon or make use of the property so long as the private party remained a lawful tenant. 24 Md. App. at 630-31.

In City of Baltimore v. State Dep't of Health and Mental Hygiene, 38 Md. App. 570, 381 A.2d 1188 (1978), however, the Court of Special Appeals subsequently refined its definition of "public use." The court stated that the term "is not susceptible to any one single, all- inclusive definition"; rather, its meaning in any particular case must be determined by reference to the particular factual circumstances. 38 Md. App. at 576. See also Riden v. Philadelphia, B. & W. R.R., 182 Md. 336, 340, 35 A.2d 99, 101 (1943) ("Whether a particular use is in fact public is ultimately a question for the determination of the court."); Prince George's County v. Collington Crossroads, Inc., 275 Md. 171, 186-90, 339 A.2d 278, 286-88 (1975) ("'public use' is not synonymous with the physical use or access by the general public"). The court therefore considered the facts of the case before it: The Department of Juvenile Services was required by law to provide for the diagnosis, care, and rehabilitation of children in need of supervision by placing them in group homes. The Department had purchased a building and rented it to a charitable organization for the operation of such a group home. The court concluded that, because the organization was using the property for a purpose required of the Department by State law and for the benefit of the general public, the use of the property was a public use and the property was exempt from zoning restrictions. 38 Md. App. 577-78.

The analysis employed in these cases, in light of the close relationship of zoning controls to the subject matter and purpose of §3.08, is equally applicable to the determination of whether a building is a "public building" within the meaning of §3.08. Thus, the fact that the business will be open to the public is not determinative of its status as a public building. Instead, it is important to determine whether the building is used by the public as a matter of right or is used to fulfill a governmental responsibility.5

Applying this analysis to the facts you have provided, it is clear that the gas station and convenience store about which you inquire would not satisfy the criteria for a public building. The property will not be owned by a public body. Further, while it may be useful to the public to have such services at that location, the purposes of the establishment, like those of the trucking facility in Youngstown, are purely private. The facility is "open to the public," but what that really means is only that the owners or operators invite the public to enter the premises during business hours to make purchases. The public has no right to enter the premises, for that invitation can be withdrawn or restricted at any time. The facility is not used by the public in the sense that it is controlled by a governmental agency, and it does not fulfill a governmental responsibility or duty. While the meaning of the term "public building" may vary under different circumstances, the term cannot be interpreted to include a combination gas station and convenience store operated on privately owned property for private profit.

5
In its very recent decision regarding the applicability of local land use regulations to a privately owned, State-licensed child care facility, Board of Child Care v. Marker, the Court of Appeals wrote that "the right to exemption does not turn on the use being made by the party claiming exemption but upon its ownership by the state or its instrumentalities." Slip op. at 14. In this passage, the Court was responding to the argument that a privately owned child care facility was entitled to invoke the State's immunity from local zoning. We do not understand this passage to suggest that the matter of use is never relevant to a question of the applicability of local land use regulations. Indeed, elsewhere in its opinion the Court cited with approval City of Baltimore v. State Dep't of Health and Mental Hygiene, which found the use of a State-owned building to be a determinative.

Ill

Subdivision Regulations

Although the planning commission would not have authority under §3.08 to review the gas station project, it is unquestionably subject to the municipality's zoning and building controls pursuant to Article 66B and Article 23A, §2(b)(30). Further, the planning commission itself could be granted review authority under §§5.01 through 5.08 of Article 66B. These sections authorize the planning commission to review and approve proposed subdivisions for conformance with subdivision regulations adopted by the jurisdiction. In many jurisdictions, this review power has been extended to site plan review to assure conformance with the comprehensive plan. While the Town of Vienna does not have subdivision regulations now, it may enact them in the future and vest the planning commission with that authority.

IV

Conclusion

In summary, it is our opinion that Article 66B, §3.08 does not apply to privately owned and operated retail stores, and the planning commission therefore does not have authority under §3.08 to review and approve those projects. However, the planning commission might in the future be granted that authority if the Town of Vienna adopts subdivision regulations under Article 66B, §§5.01 through 5.08.

J. Joseph Curran, Jr.
Attorney General

Roberta B. McCarthy
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice