Remes v. Montgomery County
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David H. Remes v. Montgomery County, Maryland, et al. No. 122, September Term, 2004 Headnote: Two contiguous lots had been in common ownership. At the time of the common ownership one lot was used to comply with setback requirements of the other lot and used for the construction of a swimming pool as an accessory use. Thus, the lots had merged for zoning purposes, but remained distinct lots under subdivision regulations. Montgomery County Code § 50-8, requiring filing and approval of plat for any proposed subdivision or resubdivision of land, did not preclude a zoning merger arising out of the common owner s use, despite the fact that the common owner had never submitted a formal replatting and his purported successor in title desired to sell one of the subdivided lots. Circuit Co urt for Mo ntgomery C ounty Case # 2 43716 -V IN THE COURT OF APPEALS OF MARYLAND No. 122 September Term, 2004 David H. Remes v. Montg omery Cou nty, Maryland, et a l. Bell, C.J. Raker Cathell Battaglia Greene Eldridg e, John C. (Retired, Specially Assigned) Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ. Opinion by Cathell, J. Filed: May 12, 2005 In this case, David H. Remes, petitioner, owner of a home located in Silver Spring, seeks to establish whether directly-adjacent property, which formerly was owned by Jonathan C. Duffie, and was later transferred b y Mr. Duffie to Design-Tech Builders, Inc. ( DesignTech), respondent, is deemed to have merged for zoning purposes under the common-law principles described in Friends of the Ridge v. Baltimore Gas & Elec. Co., 352 Md. 645, 724 A.2d 34 (199 9). Under the circumstances of this case, the Court is called upon to determine if DesignTech was properly granted a building permit by the Montgomery County Division of Permitting Services ( DPS ) and whether the Montgom ery County Board of Appeals ( the Board or the County ), respondent, properly interpreted the relevant provisions of the Montgom ery County Code, Subdivision Regulations, and Zoning Ordinance in respect to the issuance of a building permit. Our review shall address the following questions: 1. Did the Montgom ery County Board of Appeals correctly rule that two contiguous lots had not undergone a zoning merger and a building permit for one of the lots was, therefore, properly issued? 2. Did the Montgomery County Board of A ppeals corr ectly find that a single-fam ily dwelling proposed to be built on one lot did not exceed the height requirements of the Montgomery County Zoning Ordinance?1 We hold that the Board of Appeals incorrectly failed to find that Lot 11 and Lot 12 had merged for zoning purposes. Because we hold that there occurred a zoning merger of Lot 11 and L ot 12 notw ithstanding th e provision s of Mo ntgomery C ounty Cod e § 50-8, it is 1 In Montgomery County height is apparently determined by first establishing the natura l grade. unnecessary to reach a determination whether the Board properly approved a cellar as a noncounting story in calculating the permissible height of the applicant s p roposed s ingle-fam ily dwelling.2 I. Facts and Procedural History This case involv es property in th e Woodside Park neighborhood of Silver Spring, Maryland, consisting of several parcels created by a 1945 subdivision and located in an R-60 zone which allows single-family detached residential homes. The primary parcels at issue, as originally laid out in the subdivision, are Lot 12, a corner lot with access both to Noyes Drive toward the north and to Fairview Road toward the east, acquired by husband and wife, Ralph J. Duffie and Violette P. Duffie ( elder Duffies ) in 1951 on which they constructed their home, an d its westerly adjacent neighboring lot, Lot 11, acquired by the elder Duffies in 1954. A semi-circular driveway serving the home on Lot 12 was constructed by the Duffies over and through both Lot 11 and Lot 12. A Montgomery County Department of Permitting Services permit card, found among DPS records, indicates that a building permit 2 We note however that natural grade would include the grade of the land prior to any work in respe ct to the u se that is th e subje ct of an applica tion. In virtually every subdivision of land, the land is prepared and graded long before the lots are conveyed and prior to applications for individual permits. Over time, farming changes the grades that theretofore existed. Grades may have been changed centuries before. In many instances it would be impossible to determine a purely natural grade. Natural grade as used in most land use regulations, subject to constitutional requirements, normally might mean the grade, however created, that leg ally exists or was or could be le gally created, prior to or at the time of any land preparation for a specific project that is the subject of the application at issue; otherw ise no b uilding permits could e ver be is sued. -2- was also issued in June 1959 to the elder Duffies, for construction of a swimming pool3 on Lot 11 as an a ccessory use to their home on Lot 12 , and a build ing permit w as issued to the Duffies in October 1963, presumably for the construction of an addition to the Lot 12 home. At the time of its original construction around 1951, the Lot 12 home had the required sevenfoot4 side yard setback and twenty-foot rear yard setback. The 1963 addition extended thirteen feet into the twenty-foot rear setback. This construction changed the side and rear yards of Lot 12, resulting in encroachments into the setback requirements on the Lot 11 side of the house. Following the deaths of V iolette Duffie in 1988 and Ralph Duffie in 1999, their son, Jonathan C. Duffie, ( M r. Duff ie ), as Personal Representative of the latter s estate, deeded the property to himself. This Personal Representative s Deed, dated August 31, 2001, describes the subject property, in relevant part, as follows: Lot numbered elev en (11) and twelve (12) of a resubdivision of original Lot numbered two (2) in Block lettered A -2 of the subdivision known as Woodside Park , as per plat of said resubdivision recorded in Plat Book 26, folio 1614, in the Land Records of Montgom ery County, Maryland. ... 3 There is so me evid ence in the record that, as of January 2003, the pool may have been demolished. 4 The elder Duffies home apparently was constructed according to the provisions of Montgom ery County s 1950 Zoning Ordinance. The 1954 zoning ordinance established a minimum side yard setback of eight feet and main taine d the twenty foot rear yard setback requireme nt. The current zoning ordinance, likewise, require s lots in this zone to have an eight-foot side yard set back and a twenty foot rear yard s etback . See Montg omery Cou nty Zoning O rdinance § 59-C-1.3 23(b), regar ding setbac k from the adjoining lo t. -3- The improvements thereon being known as 8920 Fairview Road. Appare ntly, up until the 2003 request to separate Lot 11 and Lot 12 for tax assessment purposes, both lots had been assessed as one lot under the single address of 8920 Fairview Road. More important even is that the use of the swimming pool on subdivision Lot 11 was initially described as an acce ssory structure to the house on L ot 12, and remained in that status at least through the 2001 reassessment. Accordingly, at least in 1959, the relevant governmental officials considered the swimming pool on Lot 11 as an accessory use to the structure on Lot 12. At that time the Montgomery County Zoning Ordinance defined accessory use as a use of a building, lot, or portion thereof, which is customarily incidental and subordina te to the principal use of the main building or lot. See Montg omery Cou nty Zonin g Ordinance (1958) § 107-2, Definitions. In 1960, and since, the definition was changed to read building lot, or portion thereof. Even after the 1960 amendment, which deleted the comma between building and lot, the relevant governmental officials continued to treat the swimming pool as an accessory use to the home on Lot 12. On December 10, 2002, DPS, the agency, one of whose functions is to determine whether a proposed development complies with the zoning ordinance,5 issued to Design-Tech Builders, Inc., respondent, a building permit for construction of a single-fam ily dwelling on Lot 11, Block A-2, Woodside Park, 1102 Noyes Drive, Silver Spring. At that time Design- 5 Montgom ery County Code § 8-26, conditions of permit, requires the permit issuing agency to establish that the building complies with zoning regulations. -4- Tech was n ot the ow ner of th e lot. On Januar y 8, 2003 , petitioner noted an Appeal Charging Error in Admin istrative Action or Determ ination to respondent M ontgomery County Board of Appeals asserting that DPS had issued erroneously a building permit for 1102 Noyes Drive/8920 Fairview Road for the following reasons: 1. 2. The permit authorizes construction of a second building on a single lot, in violation of Code § 59 - A - 5.2. The permit authorizes construction of a building that violates the building height limitation of Code § 59 - C - 1.327(a), in that (a) the height is greater than 35 when measured along the average elevation of the front of the building; and (b) the height excee ds 2 ½ sto ries, in that the lowest level is a basement (and the refore a story), not a cellar, as those terms a re defin ed in the Code , § 59 - A - 2.1. Mr. Duffie executed a deed dated Janua ry 15, 2003, to convey Lot 11 to Design-Tech and this transfer was reco rded in the Land R ecords of M ontgomery County on January 30, 2003. Design-T ech intend ed to build on the property a single-family dwelling, similar to that which it had constructed on at least thirteen other lots in the locality. Following this transfer, the respondents requested that the Maryland Department of Assessments and Taxation reassess the parcel as two separate lots. The lots had been assessed and billed as a single account since at least 1974. The Department then requested that Mr. Duffie and Design-Tech prov ide a ppro priate inf ormation in order that L ot 11 could be asse ssed sepa ratel y. Petitioner (and his wife) filed a Complaint for Declaratory and Injunctive Relief in the Circuit Court for Montgomery County on January 29, 2003, seeking to declare Lot 11 and Lot 12 merged and seeking also to rescind the sale of Lot 11 from Mr. Duffie to DesignTech, and enjo in an y further s ale o f Lo t 11. T his d ecla ratory judgment action was stayed -5- during the pendency of the administrative appeal before the Board of Appeals. The Board of Appeals held hearings on Mr. Remes appeal of DPS issuance of a building permit, in which Design-Tech intervened, on February 26 and March 5, 2003. After hearing the te stimony of several witnesses, the Board issued a written opinion on May 29, 2003, denying the a dministrativ e appeal and concluding that Lot 11 and Lot 12 had not merge d. In its co nclusio ns of la w, the B oard of Appe als stated , inter alia: Lot 11 is a properly recorded lot, which is independent of Lot 12. [Petitioner] argues that Lots 11 and 12 merged into one lot, while DPS and Design-Tech argue that Lots 11 and 12 were complementary but independent lots. The Board agrees with DPS and De sign-Tech . Although [petitioner] d id establish that the Du ffies may ha ve intende d to treat Lots 11 and 12 as one single lot, the Board does not agree that their intentions are determinative of the issue . [Alte rations a dded.] The Board then quoted extensively from Design-Tech s Memorandum of Law: Montgom ery County has codified the procedures for the formal combination, assembly or other merger of already recorded lots (or unrecorded parcels) in Chapter 50 of the Montgomery County Code. The procedure culminates with the recordation of a new plat describing the newly create d, merge d lots to effectuate any assembly. Lot 11, as shown on the permit plans, is a recorded lot pursuant to a plat recorded in 1945 in Plat Book 26 at Plat Number 1614. Since that time, n o additional subdivision or resu bdivision procedures w ere initiated and no new plat was recorded; therefore, Lot 11 remains a valid subdivided, individual lo t with the ab ility to support a building permit and related r esiden tial structu re. The Board also believes tha t [petitioner s] reliance on Friends of the Ridge v. Balt. Gas & Elec. Company, 352 Md. 645 (1999) is misplaced. In Ridge, the Court of Appeals held that for zoning purposes, adjacent lots held by the same owner could merge by operation o f law as a re sult of the intentions and actions of the owner. But Judge Catthel [sic] stated unequivocally in Ridge that subdivision is not zoning, that zoning ordinances do not create lots, and that the construction of structures over more than one parcel wo uld not affect -6- lot lines. He state d first: We h ave often held that subdivision is not zo ning. Ridge, at 648, n.4. He later states: Zonin g ordin ances . . . do not create lots (emphas is in original). Ridge, at 651. He finally states: . . . the construction of structures extending over more than one parcel or lot would not, in our view, affect the boundary lines (or lot lines) of the two pa rcels. They rem ain in place until a deed of con veyance or a new su bdivision . . . is created. Ridge, at 661. Unlike Ridge, this is not a zoning v ariance cas e, it is a building permit case. The only issue for permit purposes is whether the lot was a properly recorded lot which met the development standards of the zone.[6] Lot 11 is a p roperly recorded lot, and no plat has ever identified the merger of Lots 11 and 12 into 6 This is not so . Complia nce with the requirements of zo ning and zoning codes, where they exist, are generally necessary before permits may be issued. T he Mo ntgomery C ounty Zoning Ordinance provides as follows: § 59-A-3.1. Bu ilding permit. (a) Building permits generally. A building permit must be issued by the director before any building or other structure can be erected, moved, structurally altered, added to, or enlarged and before any excavation can be started. A building perm it is not required for any building or structure to be used exclusively for purposes of agriculture upon land used exclusively for agriculture. Howe ver, a buildin g permit is required for any building or structure to be used for a purpose th at is not exclu sively agricultural in nature, including special exception uses, even though located on otherwise agricultural land, and (ii) any equestrian facility building or structure intended for use by participants o r spectators a t an equestria n event. (b) A building permit may be issued only for proposed work that conforms to the uses and amount of development authorized under this chapter or other applicable law and for w hich the ad equacy of p ublic facilities is d etermined after: (1) Review of a prelim inary plan of su bdivision o r site plan if required under this chapter or chapter 50 [subdivision regulations]; or (2) Building permit review if required under chap ter 8 [Buildin gs]. [Altera tions ad ded.] [E mpha sis adde d.] Moreover, as we explained supra, complian ce with zoning requirements is a function of the permitting process under the Montgomery County Code. The permit application procedure, is furthe r explain ed in C hapter 8 , Buildin gs, of th e Mo ntgom ery Cou nty Cod e. See infra. -7- a third larger lo t. Therefore, based upon the subdivision plat recorded in the land reco rds o f this Cou nty, we believe that Lot 11 is a properly recorded indepe ndent lo t. [Alte ration ad ded.] [B olding origina l.] [Foo tnote ad ded.] The Board of Appeals declined Mr. Remes request for reconsideration of its decision. On June 27, 2003, petitioner filed a petition for jud icial review in the Circuit Cou rt for Montgomery County of the Board of Appeals decision. T he Mo ntgomery C ounty Planning Board of the Maryland-National Capital Park and Planning Commission ( MNC PPC ), in its capacity as the general oversight body for the physical development of the Capital region, sought to intervene as an additional respondent in this judicial review and the Circuit Court granted this request on December 17, 2003. Following a March 22, 2004, hearing, the Circuit Court issued an order on April 5, 2004, affirming the Board of Appeals decision. On M ay 6, 2004, pe titioner noted an appea l to the Cou rt of Specia l Appeals. Before the intermed iate appellate co urt could he ar the case, this Court, on its own initiative, issued a writ o f certior ari. Remes v. Montg omery C ounty, 384 Md. 581, 865 A.2d 589 (2005). II. Discussion Much of the deb ate in the instan t case arises fro m an issue this Court ra ised, but did not have need to add ress, in our Friends of the Ridge opinion. Specifically, we there surmised: An owner o f contiguo us parcels w ho erects a s tructure in what w ould ordinarily be a setback of one of the individual p arcels migh t, under this doctrine, although we do n ot now d ecide it, also cause a combination of lots thus restricting the future alienability of the unbuilt upon parcel because the conveyance of that parcel w ould caus e the prope rty upon which the structure is built to be in violation of the ordinance. Such an owner would also risk -8- being forced to b ring that parcel into conformity by removing the s tructure from th e setbac k. 352 Md. at 65 8 n.11, 724 A.2d at 41 n.11 (empha sis added). While petitioner operates under the belief that Lot 11 and Lot 12 have merged for zoning purposes , the respond ents, and sp ecifically Mo ntgomery C ounty, in oral arg ument, succinctly summarized their position as follows: Montgom ery Cou nty asks the Court not to extend the Ridge doctrine in situations where a developer has borrowed open space from an adjacen t lot to satisfy setback require ments o n the lot b eing de velope d. Ridge, in footnote eleven , leaves th at issue f or anot her day, a nd I gu ess this is the day. 7 A. Zoning Merger Petitioner grounds his argument that Lot 11 and Lot 12 have functionally merged for zoning purposes pursuant to our decision in Friends of the Ridge v. Baltimore Gas & Elec. Co., 352 M d. 645, 724 A.2d 34 (1999), w herein w e recogniz ed the exis tence of the doctrine of zoning merger in Maryland. We described zoning merger to be the merger for zoning purposes of two or more lots held in commo n owne rship whe re one lot is us ed in service to one or more of the other common lots solely to meet zoning requirements. Petitioner argues that Ridge is an equitab le doctrine that seeks to prevent lots from being 7 We are unaware of a legal rationale for borrowing open space from adjacent lots. How do you borrow open space? More importantly, under circumstances such as exist here, how is it repaid or returned? If Lot 11 is considered a separate unrestricted lot, from where does the pay back come? What would happen is that the ope n space b orrowed would never be returned, thus creating an illegal non-conforming use on Lot 12 from the point in time when Lot 11 separated. -9- broken up in such a way that w ould create zoning violations. In Ridge, respondent Baltimore Gas and Electric Compa ny ( BG& E ) soug ht to increase the capacity of its electric substation. In order to effectuate this expansion, BG&E acquired additional parcels of land contiguous with the pa rcel on w hich the ex isting substatio n was loc ated and BG&E attempted to create a new resubdivision. It was argued that i ts attempt to create a formal resubdivision was inadequate. We did not address that particular controversy, resolving the case on the assumption that no proper formal resubdivision had occurred. BG&E sought an d was gra nted a pub lic utility special exce ption to operate a larger capacity substation. BG&E also applied for a variance from the side yard setback requirements. In considering BG&E s request, the Baltimo re Coun ty Board of A ppeals determined that the variance criteria of the Baltimore County Zoning Ordinance did not apply. In response to the Ridge petitioners concerns with the propriety of BG&E s lot consolidation, we stated that, as to Ridge, [w]e are concerned here only with the applicability of the zoning ordinance s variance p rovisions an d not Baltim ore Cou nty subdivision regulations. Id. at 649-50, 724 A.2d at 36.8 We sustained the Board of Appeals conclusion, reasoning that there was no need for BG&E to obtain a variance from the zoning regulations9 because BG&E s intended use of its three contiguous parcels as one parcel 8 As we have generally stated, zoning and subdivision are normally separate and distinct regulato ry entities. See Ridge, 352 Md. at 650 n.4, 724 A.2d at 36 n.4 ( We often have held that subdivision is not zoning. ). 9 But for the land area requirement of the increased substation sought by Baltimore (contin ued...) -10- effectively overcame the conditions triggering the need for a variance. Thus, BG&E was permitted to use the entire parcel for its substation expansion, provided that its proposal met the setback requirements as measured from the exterior property lines of the combined parcel. Specif ically, this Court held, unless the ordinance s language specifically and clearly proh ibits it, an own er of contiguous p arce ls of real p rope rty . . . is free to combine them into larger and fewer parcels without violating the zoning code. Id. at 648, 724 A.2d at 35-36.10 In reaching our resolution, we examined the mechanisms triggering the doctrine of zoning merger in other jurisdictions and observed that merger had been applie d to prohibit[] the use of in dividual sub standard p arcels if con tiguous pa rcels have been, at any relevant time, in the same ownership and at the time of that ownership, the combined parcel was not substandard. Id. at 653, 724 A.2d at 38. We also stated: We see no reason why a doctrine that seeks to prevent the proliferation or use of nonconforming, undersized lots by holding that they have been combined or merged into a larger parcel should not, as far as zoning is concerned, be applied proper ly to perm it the crea tion, through the combining by use of a larger parcel from already co nforming smaller pa rcels, without the necessity of off icial actio n or con veyancin g. Id. at 654, 7 24 A.2 d at 38 ( emph asis add ed). The facts of the instant case, as one m ay suppose, p resent issues s omew hat differen tly 9 (...continued) Gas & Electric, there is no indication that the lots acqu ired by BG&E were undersized or otherwise substandard, in and of themselves. 10 When we referred to the ordinance in this statement we were referring to the zoning ordinance, not subdivision regulations. -11- than the facts in Ridge. In Ridge, BG& E, as the developer, sough t a conclusio n that its three lots had merged for zoning purposes so that it might possess a land assemblage of sufficient size, with sufficient setbacks to allow it to enlarge its electricity substation. In the case at bar, respondents seek the conclusion that Lot 11 and Lot 12 have not merged, for varying reasons inc luding that in formal lot c onsolidation, according to respondents, is not available other then by formal plat submission in Montgomery County and so that Mr. Du ffie might sell Lot 11 to Design-Tech, the developer, wh o seeks to b uild a single-f amily dwelling on this piece of land.11 We indicated in Ridge that merger may be derived from the comm on own er s intent, as evidenced by integrat[ing] or utiliz[ing] th e contiguo us lots in the se rvice of a sin gle structure or project . . . . Id. at 658, 724 A.2d at 40 (alterations added). Intent is to be derived from th e facts. Id. at 659, 7 24 A.2d at 41; see also Rouse-Fairwood Devel. Ltd. Partnersh ip v. Supervisor of Assessments for Prince Geo rge s Cou nty, 138 Md.App. 589, 630, 773 A.2 d 535, 55 9 (2001); Ianucci v. Zoning B d. of Appe als, 25 Conn.App. 85, 87, 592 A.2d 970, 971 (1991) (stating that intent of the owner may be inferred from his conduct with respect to the land and the use which he makes of it ). In reviewing scenarios from varying jurisdictions, we noted that [s]om e cases discuss autom atic merger, but most requ ire that the intent of the owner to merge the parcels be expressed, though little evidence of that intent is required. Ridge, 352 Md. at 653, 724 A.2d at 38. 11 The doctrine of zoning merger deals with zoning limitations and uses, not with title. -12- Petitioner contends that, in applying Ridge to the instant case, Lot 11 and Lot 12 remain separate for subdivision purposes, but are combined for zoning purposes. This is, indeed, a correct articulation of the thrust of zoning merger: zoning merger does not cause a nullifica tion of an y subdivision th at has previo usly occurred . It merely conso lidates lots insofar as the determination of what can be constructed upon that land, or what uses can be made of it, bearing in mind the requireme nt that one m ust comp ly with zoning requireme nts including area , setb ack, etc. For t itle p urpo ses, the platted lot lines may remain, bu t by operation of law a s ingle parcel emerges for zoning purposes. Ridge, 352 Md. at 658, 724 A.2d at 34. Respon dents urge that m erger in M ontgom ery County may arise only from a formal replatting. Thus, according to the respondents, other indicia of merger such as common ownership, contiguous parcels, use of one or more lots in service of another, offer no evidentiary import and are of little moment in Montgomery County. They are incorrect. The responde nts read this Court s decision in Ridge as narrowly focused on the realm of zoning, and to this effec t, Montgo mery Coun ty insists that the C ourt limited its ruling to the zoning requiremen ts and did not add ress the s ubdivi sion pe rspectiv e of cre ating lot s. The respondents assertion illustrates a point, that we emphasized in Ridge, and that bears repeating: zoning merger is not a resubdivision. When zoning merger occurs, the lots remain divided. Thus, zon ing merge r, in effect, is an adjustment of zoning requirements. It has no effect on subdivision. Title exam iners regularly consider aspects of zoning when examining -13- titles in order to be able to indica te to p urch aser s the uses that c an be ma de of a pr operty. Those uses have no effect on subdivision regulation. One must comply with both zoning and subdivision require ments. I n the pr esent ca se, the applicant canno t meet zon ing requirem ents because of the doctrine of zoning merger and thus, while Lot 11 may be sold, it cannot be used, ab sent zo ning va riances or othe r zonin g relief, if any. Simply because a n applican t submits do cuments a rticulating plan specifications, engineering details, and a plot diagram showing details of the building to be erected12 does not remove th e fact that the instant lo t may b e part of some larger zoning configuration a configuration that arose through a common owner s use of the property, if not through 12 Montgom ery County Code, Chapter 8, Buildings, mandates, in relevant part, the required components for permit application as follows: § 8-24. Application for permit. ... (f) Plot dia gram . There shall also be filed in duplicate with each application for a buildin g or occu pancy perm it, a plot plan dra wn to sca le showing: (1) The lot upon which the proposed building is to be erected, lot dimen sions, lo t and blo ck num bers an d subd ivision n ame, if a ny . . . . Section 8-26 further provides, among the several conditions associated with issuance of a building permit, that the building must mee t the zoning requireme nts. This sectio n states, in relevant pa rt: § 8-26. Cond itions of permit. ... (g) Compliance with zo ning re gulatio ns. The building or structure must comply with all applicable zoning regulations, including all conditions and development standards attached to a site plan approved under Chapter 59 [subdivision regulations]. The issuance of a permit by the Department for the building or structure does not affect an otherwise applicable zoning regulati on. [A lteration added .] -14- schematics. Each case must be examined on its own. In the case at bar, there is ample evidence to conclud e the elder Duffies intended to use their Lot 11 and Lot 12 as one property for zoning purpo ses: the pool on Lot 11 violates (or violated) the prescribed setbacks from the street and from Lot 12, unless it was dedicated for zoning purposes to Lot 12, and from the time of its creation was thus an accessory use to the structure or use of Lot 12; the additions to the house on Lot 12 encroach upon that lot s setbacks; the circular driveway traverses both Lot 11 and Lot 12; until very recently the lots were assessed for tax purposes as a single parcel; and the subsequent personal representative s deed conveying Lot 11 and Lot 12 to M r. Duffie described a single lot comprised of two lots, in that it reads Lot numbered eleven (11) an d twelv e (12). 13 Thus, petitioner maintains th at the building permit for the construction of a single-family dwelling on Lot 11 was issue d in error an d its issuance violates the current relevant provisions of the Montgomery County Zoning Ordinance, which prohibit a second single-family dwelling on a single lot, as follows: § 59-A-5.2. Buildings to be located on lots. Every building hereafter erected shall be located on a lot, as herein defined; and, except as provided in this chapter, there shall be not more than one single- family dwe lling on one lot. § 59-A-5.3. Yards and open spaces generally. No building sh all be erected, nor shall any existing building be altered, enlarged, moved or rebuilt, nor shall any open space surrounding any building be encroached upon or reduced in any manner not in conformity with the yard, lot, area and building location regulations hereinafter designated for the zone 13 Design-Tech urges that the Personal Representative s Deed contains a typographical error in denominating the lots and that the single taxation was simply a matter of convenience. The actuality of either of these possibilities is not dispositive. -15- in which such building or open space is located, except as otherwise specifically provided. No yard or other open space provided about any building for the purpose of complying with the provisions of this chapter shall be considered as a yard or open space fo r any other building; and no yard or other open space of a building on one lot shall be considered as a yard or open spa ce for a buildin g on an y other lot. 14 14 The elder Duffies acquired Lot 12 in 1951 and Lot 11 in 1954. The 1955 version of this section of the zoning ordinance, adopted originally in December 1953 and effective January 1, 1954, provided as follows: § 107-4. General regulations. ... (c) Area. (1) No building shall be erected, nor shall any existing building be altered, enlarged, moved or rebuilt, nor shall any open space surrounding any building be encroached upon or reduced in any manner, e xcept in co nformity with the yard, lot, area and building location regulations hereinafter designated for the zone in which such building or open space is located, except as otherwise specifically provided. (2) No yard or other open space provided about any building, for the purpose of complying with the provisions o f this chapte r, shall be considered as a yard or open space fo r any other building; and no yard or other open space on one lot shall be considered as a yard or open space for a building on any other lo t. Thus, the only way that the permit for the addition to the structure on Lot 12 (as well as the pool) could hav e been leg ally issued was for the two lots to have been considered one parcel for zoning purposes. The 1958 version of the zoning ordinance, adopted May 1958 and effective June 1958, is slightly altered from its predecessor: § 107-4. GENERAL REGULATIONS. ... c. Area. (1) Yards and open spaces. (a) No building shall be erected, nor shall any existing building be altered, enlarged, moved or rebuilt, nor shall any open space surrounding any building be encroached upon or reduced in any manner n ot in confo rmity with (contin ued...) -16- B. Montgomery County s Zoning Ordinance and Subdivision Regulations Montgom ery County is somewhat unique in the source and exercise of its municipal authority to regulate the use of land. As this Court explained in Pan Am erican H ealth Organ . v. Montg omery C ounty, 338 Md. 214 , 657 A.2d 116 3 (1995): Montgom ery County is a charter county unde r the Hom e Rule A mendm ent. See M D . C ONST. art. XI-A. Section 5 of Maryland Code (1957, [2001] Repl.V ol., []) Article 25A, kn own as th e Expres s Powe rs Act, enumerates the powers that are granted to and conferred upon any county that forms a charter under t he prov isions o f the H ome R ule Am endm ent. Montgom ery County s zoning power, however, derives exclusively from the Regional District Act [enacted by Chapter 448, A cts of 1 927]. . . . [Amended] in 1939 an d currently codified in Article 28 of the Maryland Code, creates the Regional District, which now encom passes all of Mon tgomery County and most of Prince George s County. Maryland Code (1957, [1997] Repl.Vol., [2001] Cum.Supp.) Art. 28, § 7-103. The Regiona l District Act e stablishes two mechanisms for land use planning. The first mechanism is through zoning. Under the Regional District Act, the county councils of M ontgomery and Prince George s Counties each serve as the district council for that portion of the regional distric t lying within [the] county. Art. 28 , § 8-101(a ). Each district c ouncil may by ordinance adopt and amend the text of the zoning ordinance and may by resolution or ordinance adopt and amend the map or maps accompanying the zoning 14 (...continued) the yard, lot, area, and building location regulations hereinafter designated for the zone in which such building or open space is located, except as otherwise specifically provided. (b) N o yard or other open space provided about any building for the purpose of complying with the provisions of this Ordinance shall be considered as a yard or open space for any other building; and no yard or other open space of a building on one lot shall be considered as a yard or open space for a bu ilding o n any oth er lot. [A lteration emph asized.] As indicated, the essential lang uage of th is section of th e current zo ning ordin ance is unchanged from th at foun d in the 1 958 ve rsion. Compare, § 107- 4 (b) (19 58), supra, with the curr ent M ontgom ery Cou nty Zonin g Ord inance § 59-A -5.3 (b), supra. -17- ordinance text. Id. § 8-10 1(b)(2) . Thus, the Montgomery County Council has been designated as the District Council and has broad authority to adopt and amend the text of the zoning or dinance to regulate the location and uses of buildings and structures. Art. 28, § 8 -101(b)(2)(v). The second mechanism is known as the mandatory referral process. Under the Regional District Act, the Maryland-National Capital Park and Planning Commission ( M-NCPPC ) is empowered to adopt a general plan for the physical development of the [Regional] District. 1939 Maryland Laws ch. 714, § 4, at 1489 (codified as amended at Art. 28, § 7-108). Section 7-112 of Article 28 (the man datory referral prov ision ) provid es that prop osals for certain public projects shall be referred to the M-NCPPC for non-binding review . Pan America n Health , 338 Md. at 217-18, 657 A.2d at 1164-65 (footnote omitted) (some alterations added) (some citations omitted). Thus, M ontgom ery County s zo ning autho rity arises from the Regional District Act, and is regulated by the provisions of the Montgom ery County Code. The respondents offer two primary objections to Mr. Remes contention that Lot 11 and Lot 12 ha ve merge d. First, the respo ndents urg e that lot merger, b y any method other than forma l plat sub mission , is unavailable according to the Montgomery County Code.15 15 Respondents contend that Montgomery County s building code, subdivision regulations, and zoning ordinance each contain language specifically prohibiting the merger conclusio n advanced by Mr. Remes. The County adds that these articulated prohibitions serve two important purposes: First, the language prevents the County s Department of Permitting Services from bearing the burden of having to consider the circumstances of surrounding lots, as well as th e propriety of g ranting the p ermit in light of any surrounding lots, when presented with a permit application. Second, persons looking to buy vacant property are not left to perform exhaustive title searches solely to determine if the lot of interest has ever been in common ownership with surrounding lots and there may have been created zoning encum brance s arising from th e uses o f surrou nding l ots. Howeve r, we have not been directed to any language in the zoning code that prohibits (contin ued...) -18- Second, the respondents maintain that merger is intended to combine substandard, undersized, or nonconforming lots, 16 not to rectify setback encroachments and, because at no time have Lot 11 and Lot 12 been deemed substandard according to any of the iterations of Montgomery County s Zoning Ordinance development standards, 17 the issue before this Court, according to the respondents, thus, is not one of merger, but rather a question of whether the Mo ntgomery C ounty Dep artment of Permitting S ervices pro perly issued a building permit for L ot 11. As a corollary to the latter argumen t, the Coun ty notes that County law, dating back at least to the mid 1950 s has prohibited the use of an adjoining lot to satisfy zoning setback requirements. . . . Thus, even if the elder Duffies might have 15 (...continued) the applicability of the doctrine of zoning merger. As far as we have bee n made aw are, there is nothing in the Montgom ery County Zoning Ordinance that would prohibit the County (or whatever appropriate entity) from amending its zoning code to prohibit zoning merger. Such a prohibition must be done carefully in order that the problem o f the creation of nonconforming uses be pro perly addressed and resolved. Modifications of subdivision regulations, without the modification of zoning ordinances, normally would not suffice. Zoning and subdivision are typically separate concepts. 16 This idea is apparently based on our statement in Ridge: As far as we can discern, the zoning doctrine of lot merger has never been applied in any jurisdiction to limit the creation of parcels that exceed minimum dimensional requirements; merger has been applied only to prohibit the later creation of und ersized parcels . Id. at 653, 724 A.2d at 38. The attempt to limit merger might, under some circumstances, raise constitutional issues. 17 The current development standards are found in Montgomery County s Zoning Ordinance, at Chapter 59 of the Montgomery County Code. Lot 11 and Lot 12 are located in the R-60 Zone allowing single-family detached residential dwellings and requiring a minim um lot a rea of a t least six t housa nd squ are fee t. -19- imagined that Lot 11 would absorb the setback deficiencies by their Lot 11 pool and Lot 12 home additions, the setback requirements delineated in Montgomery County s zoning ordinance prohibit such adjacent lot encumbrance and Lot 11 never actually fulfilled this ro le in service of Lot 12. What respondents fail to acknowledge is that the zoning merger that occurred in this case forestalled the creation of a non-conformity on Lot 12. Without the use of Lot 11 as accessory to Lot 12, the uses of both lots would have violated the zoning ordinance. Mr. Remes u rges that Ridge mandates that the ow ner of Lot 11 and Lot 12 make a choice: either form ally combine th e parcels so as to enable Lot 11 to satisfy the appropriate setbacks for the structure on Lot 12, or cure the setback deficiencies on Lot 12 and then subdivide the merged Lot 11 and Lot 12 . Thus, petitioner argues that the fact that neither Lot 11 nor Lot 12 have ever been deemed undersized is relevant on ly to the issue of remedy; it has no bearing on whether these are merger-eligible lots. He is correct. Petitioner further maintains that the Ridge doctrine applies without regard to the positive law of a m unic ipali ty, i.e., what aff irmative step s the local subdivision regulations m ight require in order to recognize a formal z oning m erger of lots, b ecause the underlying po licy of Ridge seeks to protect zoning requirements, requirements which are separate and apart from subdivision regulations. A gain he is co rrect. As we explained in Ridge, zoning differs from planning; the latter of which embodies the requirements of subdivision. We stated: -20- Zoning does not c reate parcels of real prop erty. What zon ing ordinances normally do, with respect to residential districts, is establish dimensional minimums, such as minimal lot, parcel or tract size, yard sizes (the distance between buildings and property lines), and the height of structures. In addition, such ordinances specify the number of residential units that may be placed upon the area of a tract or parcel (den sity), ancillary requirements such as parking minimums, bathroom minimums, and square footage minimums of buildings. Add ition ally, zoning or dinances c an, to some extent, regulate uses of pro perty, as di stinct fro m dim ension al requir emen ts. Id. at 650-651, 724 A.2d at 37. Effectively, zoning dictates what one can build on, or how one may use his property while subdivision or planning determines how the land is divided. It is entirely possible that subdivision regulations are utilized to create separate lots while, at the same time, zoning principles establish limitations on the uses of lots, limitations that can extend across lot lines. The respondents vigorously exhort that zoning merger by operation of law, see Ridge, 352 Md. at 658, 724 A.2d at 40, is unavailable in Montgomery County. In arguing that Ridge is inapposite , the County states that [u]nlike Baltimore C ounty, Montgom ery County law clearly prohibits subdivision by intent, requiring instead that a property owner submit a plat for recording in the land records to combine or divide land . The C ounty points to the language of current Montgomery County Code § 50-8, found in the chapter governin g subdivisio n of land, w hich prov ides as follow s: § 50-8. [ ]-Filing and approval of plats. Whenever any subdivision or resubdivision of land is proposed to be made within the district, and before any contract fo r the sale of o r any offer to sell such subdivision is made, or before any development or construction of any building takes place within a subdivision or any part thereof, the subdivider therof or his agent shall file, in accordance with procedure -21- prescribed in this chapter, a plat of the proposed subdivision with the board for its approval and the approved record plat shall be recorded in the land records of the county, except as provided in section 50-9 [exceptions to platting requirements]. [Alterations ad ded.] Montgom ery County further contends that given its long history of imposing exacting requireme nts for subdivision, which in cludes requ irements fo r combinin g or dividin g parcels, the doctrin e of m erger sta nds dia metrica lly oppos ed to the clear dic tates of Coun ty law. According to the County, then, the owner s intent and presumably the owner s actual use plays no part in a finding of merger (or resubdivision) unless there has been a formal adju dica tion by the Cou nty s l and use r egulator y auth ority. In a related argument Design-Tech suggests that the elder Mr. Duffie could not have intended to merge the lots wh en the comm on law of this State did n ot formally recognize zoning merger until such time as the filing of Ridge on February 11, 1999. Specific ally, Design-Tech states in a footnote: Even if this Court were to extend Ridge in favor of [petitioner s] p osition in this case, it wou ld be inapp ropriate to give such a ruling a retroactive application to cover the actions taken by the owner of Lot 11 and Lot 12 in the 1950 s and 1960 s. See, e.g. Julian v. Christopher, 320 Md. 1, 10-11, 575 A.2d 735, 739 -40 (1990 ); Kelly v. R.G. Indus., Inc., 304 Md. 124, 140, 497 A.2d 1143, 1150-51 (1985) (ch anges to co mmon law are ge nerally restricted to prosp ective a pplicatio n). [A lteration added .] In essence, Design-Tech seems to be arguing that zoning merger, since it is based, in part, on the ow ner s intent, m ust run with the person , and not w ith the land; alternatively, Design-Tech may be arguing for zoning merger to come in to Mon tgomery Co unty, but only after Desig n-Tec h buys L ot 11 an d build s its hou se, i.e., prospectiv ely. -22- The facts indicate that the elder Mr. Duffie died on August 16, 1999, and M r. Duffie (the son) did no t convey Lo t 11 and L ot 12 to himself until August 31, 2001. There is no indication that, in those intervening two years, there were any changes on Lot 11 or Lot 12 that altered or ameliorated the encroachments or that removed one lot from the service of the other. Thus, technically, there was a period , after Ridge, and before the elder Mr. Du ffie s death, during which the elde r Mr. Duffie held both lots. A lso, for two years follow ing his death the lots were not yet deeded (by personal represen tative s deed) to Mr. Du ffie (the son). During those two years, the encroachments (i.e., the use of Lot 11 in service of the needed Lot 12 setbacks) remained. In addition, the cases cited by Design-Tech do not support the position of prospective application of the c omm on law . Julian v. Christopher, 320 Md. 1, 10-11, 575 A.2d 735, 73940 (1990), w as a case de aling with c ontractual re strictions on th e alienability of leasehold interests in which this Court stated: In appropriate cases, courts may in the interest of justice give their decisions only prospective effect. Contracts are drafted b ased on w hat the law is; to upset such transactions even for the purpose of improving the law could be grossly unfair. Overruling prospectively is particularly appropriate when we are dealing with decisions involving contract law . The cou rts must protect an individual s right to rely on ex isting law w hen contra cting. Ordin arily decisions which change the common law apply prospectively, as well as to the litigants b efore th e court. Design-Tech also cited this C ourt s opinio n in Kelly v. R.G. Indus., Inc., 304 Md. 124, 161, 497 A.2d 1143, 1161-62 (1985) (a products liability case prompting changes to Maryland common law tort principles in respect to gun manufacturers offering of Saturday Night -23- Specials ). We stated: One final matter warrants discussion, namely the effective date of the modification in Maryland common law tort principles which is set forth in Part III of this opinion. Ordinarily in a case such as this, which changes common law principles ap plicable to civ il actions sou nding in tort, w e would apply the change to the case before us and prospectively to all such causes of action accruing after the date of the case before us. Kelly, 304 M d. at 161, 497 A.2d at 1161-62 (citation omitted). In Kelly, this Court determined that, based upon the particular circumstances in that case in respect to the Cou rt s recognition that the wrongful conduct was related to the gun manufacturers marketing of their product, the changes to the common law of tort effected by Kelly would n ot apply to all causes of action arising from a gunshot wound inflicted by a Saturday Night Special, but would apply to the Kelly plaintiff as well as to other causes of action accru ing after the d ate of the Kelly mand ate. Julian and Kelly were a contract case and a products liability case, resp ectiv ely; they do not ap ply to the facts o f the instant case and do not support DesignTech s position. Gen erall y, changes in the com mon law are applied pro spectively, as w ell as to the case triggering that change in the common law. In Boblitz v. Bo blitz, 296 Md. 242, 462 A.2d 506 (1983), this Court ab rogated the commo n law of in terspousal im munity and applied the abrogation to Boblitz as well as to all such cases acc ruing after the filing of the Boblitz opinion. Id. at 275, 462 A.2d at 522. But see Williams v . State, 292 Md. 201, 217, 438 A.2d 1301, 1309 (1981) (noting that particularly in criminal cases, changes in the common law ordinarily should have on ly prospective effect when considerations of fairness a re present ). -24- The Court w ill hesitate to apply a change to the common law in the case before it where such a chan ge w ould be co ntrary to a public policy se t forth b y the Gen eral As sembly. See Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 460, 456 A.2d 894, 903 (1983) (stating that the Co urt has bee n particularly reluctant to alter a common law rule in the face of indicatio ns that to do so w ould be contrar y to the pu blic poli cy of the S tate ). See also Murphy v. Baltimore Gas & Elec. Co., 290 Md. 186, 428 A.2d 459 (1981), overruled on other grou nds b y Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680 , 705 A.2d 114 4 (1998); Condo re v. Prince George s County , 289 Md. 516, 532, 425 A.2d 1011, 1019 (1981). We perceive no such d eclared pu blic policy that should prevent us from finding a zoning merger where two lots he ld in comm on own ership were clearly used in the service of one another in order to satisfy zoning requirements and subsequent to Ridge remaine d in that c ateg ory. 18 Moreover, as we perce ive it, Ridge was a statement of the common law, not a change. The issue had not theretofore arisen, or been specified or articulate d in our prior ca ses. Ridge was merely the first case to determine that zoning merger existed in Maryland. Montgom ery County goes on to state that [b]y de finition, subd ivision includ es both the division of land into one or more lots and the assembly of one or m ore lots or pa rcels into a larger one. [Mon tgomery County] Code § 5 0-1. [According to the County, t]o combine lots 18 We do not need to, nor do we now address, the situation where lots may have been combined in the past, but legally separated before our decision in Ridge. If that were the present case, whic h it is not, respon dents argu ment might be more persuasive. H owever, lots that remained combined, or encumbered by the doctrine of zoning merger at the time of Ridge, and since, are clearly subject to its effects. -25- in Montgomery County, a property owner must prepare and submit a plat showing the resubdivision. When the Planning Board approves it, the plat is then recorded in the Coun ty land records. [M ontgomery County] Code § 50-8 (alterations added). The terms subdivision and resubdivision are defined in the current M ontgom ery County Subdivision Regulations as follows: § 50-1. Definitions. ... Resubdivision: A change in any lot line of a recorded lot or parcel of land. Resubdivision includes the assembly of record ed lots o r parts of lots. A resubdivision is a subdivision. ... Subdivision: The division or assemblage of a lot, tract or parcel of land into one (1) or more lots, plots, sites, tracts, parcels or other divisions for the purpose, whether immediate or future, of sale or building development and, when appropriate to the contex t, relating to the process of subdividing or to the land or area subdivided; provided, that the definition of subdivision shall not include a bona fide division or partition of exclusively agricultural land not for develo pmen t purpo ses. A re subdiv ision is a subdiv ision. The responde nts endeav or to distingu ish the facts of the case sub judice from the circumstances in Friends of the Ridge, observing that Baltimore County, the locus of Ridge, had no statute or ordinance sp ecifically prohibiting that merger. 19 The text of the relevant 19 The Ba ltimore Co unty Code, P lanning, Z oning and Subdivisio n Control Article, Development Title, includes the following relevant subdivision provisions: § 32-4-101. Definitions. ... (p) Develop ment. Development means: ... (contin ued...) -26- provisions of the Baltimore County Code are set out in the margin. We fail to perceive the degree of distinction between the Baltimore County and the Montgomery County provisions urged on the Co urt by respond ents. Both, re gardless of labels, addre ss division o f parcels and combining of parcels. Thus, the crux of the respondents position is that no merger by operation of law occurred because the common owner of Lot 11 and Lot 12 did not undertake a formal anti-subdivision process to consolidate the lots as contemplated by 19 (...continued) (3) The combination of any two or more lots, tracts, or parcels of property for any purpose; ... (yy) Subdivision. Subdivision means: (1) The division of property into two or more lots; or (2) The combination of lots, parcels, tracts , or other units o f property previously divided for the purpose, whether immediate or future, of sale, rental, or build ing develo pment. § 32-4-108. Prohibition on Transfer of Land. (a) In genera l. A person may not convey a lot, parcel, or tract of a subdivision unless a plat, if required, has been recorded in accordance with this title and the plat is effective at the time of the conveyance. ... § 32-4-20 1. In Gen eral. Except as provided in §§ 32-4-105 [Agricultural exemptions], 32-4-106 [Limited exemptions], and 32-4-107 [Waivers] of this title, an approved Development Plan is required for a dev elopment and a p lat is required for a subdiv ision. [A lteration s added .] ... § 32-4-271. Required. (a) In general. The applicant shall prepare a plat in accordance with the approv ed De velopm ent Plan for any su bdivisio n. -27- Montgom ery County s subdivision regulations.20 Simply because a formal combination of Lot 11 and Lot 12 did not occur as contemp lated by the M ontgom ery County Code, how ever, does not lead us to the necessary conclusion that these lots for zoning limitations are not subject to the doctrine of zoning merger. The issue is not subdivision combination but zoning merger. The respondents assert that the mandatory languag e of Mon tgomery County Code § 50-8 ( the subdivider therof or his agen t shall file . . . . ) precludes any use of the land that is incons istent w ith the file d subd ivision p lat. As we have indicated, however, zoning concerns one s use of land, not how it is formally divided. The MNCPPC points to the intermediate appellate court s decision in Lee v. Maryland National Capital Park and Planning Comm n, 107 Md.App. 486, 668 A.2d 980 (1995), an opinion which p re-dates this 20 Montgom ery County also questions its ability to prosecute and/or remedy any unapproved merger of Lot 11 and Lot 12 and subsequent construction undertaken by the property s owner decad es ago, noting that M d. Code (1973 , 1998 Repl. Vo l.), § 5-114 of the Courts and Judicial Procedure Article sets a statute of limitations as follows: § 5-114. Setback line restrictions. ... (b) In general. . . . (2) A gove rnmental e ntity may not initiate an action or proceeding arising out of a failure of a building or structure to comply with a setback line restriction more than 3 years after the date on which the violation first occurred if the building or structure was constructed or reconstructed: (i) In comp liance with an otherw ise valid building permit, except that the building pe rmit wron gfully permitted the building or structure to violate a setback line restriction; or (ii) Under a valid building permit, and the building or structure failed to com ply with a setback line restri ction ac curately re flected in the pe rmit. -28- Court s Ridge opinion, as dispositive of the availability of m erger by oper ation of law in Montgom ery County. In Lee the MNCPPC approved the resubdivision [i.e., a subsequent subdivision] of two lo ts in the Glen Hills area into six lots. Id. at 488-89, 668 A.2d at 982 (alteration added). 21 Following a petition for judicial review in the Circuit Court for Montgom ery County brought by neighboring landowners who argued that the resubdivision was not consistent with the rural character of the neighborhood, the circuit court affirmed. The neighbors appealed and the intermediate appellate court reversed, holding that although the MNCPPC considered the seven statutory subdivision criteria found in M ontgomery County Code § 50-29 (b)(2),22 there was not substantial evidence that the Board found that the proposed subdivision complied with all s even c riteria. Lee, 107 M d.App . at 495, 6 68 A.2d at 985. The Court of Special Appeals explained: Compliance with the criteria ensures that the lots will be of the same 21 This was the opposite of combining two parcels into a larger parcel through zoning merger. 22 These seven subdivision criteria are as follows: § 50-29. Lot design. ... (b) Additional requirements for residential lots. ... (2) Resubdivision. Lots on a plat for the resubdivision of any lot, tract or other parcel of land that is a p art of an ex isting subdiv ision previo usly recorded in a plat book shall be of the same character as to [1] street frontage, [2] alignment, [3] size, [4] shape, [5] width, [6] area and [7] suitability for residential use as other lots within the existing block, neighborhood or subdiv ision. [ Alterati ons ad ded.] -29- character as existing lots in the neighborhood, block, or subdivision. To prove that the seven criteria have been met, lots need not be cookie cutter matches to existing lots in the neighborhoo d. The correlation, how ever, between area, size, shape, street frontage, alignment, width, and suitability for residential use of the proposed resubdivided lots and existing lots must be high in order to meet th e requir emen ts of sec tion 50 -29. Id. Lee is inapposite. As we have emphasized repeatedly, merger of the type here present is a function of, and limited to, zoning. To find zoning merger in the case sub judice affects no change to the decades-long status quo of the formal dimensions of Lot 11 and L ot 12; it merely affec ts the uses to w hich Lot 1 1 and Lo t 12 may be p ut. The County s position specifically, and the o ther resp ondents pos ition generall y, suggests their belief that those actions which are not legislated do not hap pen. Montgo mery County s having legislated a formal process for land subdivision does not necessarily mean that such re sults, i.e., a limitation on uses, might not o therwise co me abou t. We stated in Ridge: We shall hold that a landowner who clearly desires to combine or merge several parcels or lots of land into one larger parcel may do so. One way he or she m ay do so is to integrate or u tilize the contigu ous lots in the service o f a single structur e or pro ject . . . . 23 Id. at 658, 7 24 A.2 d at 40. T hat is precisely what the elder Duffies did when, in making additions to their home and in constructing a pool on a lot adjacent to their home, they employed Lot 11 in the service of Lot 12 for zoning pu rposes. Their use of Lot 11 and Lot 23 For instance, there is no indication that the elder Duffies constructed a swimming pool on Lot 11, the contiguous parcel to Lo t 12 on w hich their fam ily home wa s located, to serve other than the elder Duffies home located on Lot 12. More over, the circular driveway transversed both lots. -30- 12 in concert is c onsistent w ith zoning m erger. Tha t they did not un dertake to su bmit a formal replatting to the Coun ty24 does not vitiate the man ner in wh ich th ey used their prop erty. 1. What becomes of Lot 12 in the absence of Lot 11? Another question that would be left wanting, should this Court approve the agencies approval of a building permit issued for Lot 11, is what becomes of Lot 12? We begin by noting that one of the primary goals of zoning and subdivision controls is to avoid the 24 The1955 Montgomery County Subdivision Regulations contain the following provision: § 106-2. Procedure for preparation and filing of plats. (a) Whenever any subdivision of land is proposed to be made, and b efore any contract fo r the sale of, or any offer to sell such subdivision o r any part thereof is made, the subdivider thereof or his agent shall file a plat of the proposed subdivision with the commission for its approva l. Such plat an d all procedure relating thereto shall, in all respects, be in full compliance with the provisions of the regulations set out in this chapter. (b) The sub divider shall p repare a prelimin ary subd ivision p lat . . . . [Footn ote om itted.] The 1965 Montgomery County Subdivision Regulations reflect changes made to the regulations in 1961. Specifically, the words or resubdivision were added as follows: § 104-7. Filing and recording of plats required. Whenever any subdivision or resubdivision of land is prop osed to be made within the district, and before any contract for th e sale of or a ny offer to sell such subdivision is made, or b efore any de velopme nt or construction of any building take place w ithin a subdivision or any part thereof, the subdivider thereof or h is agent sha ll file, in accordan ce with pro cedure de scribed in this chapter, a plat of the prop osed subd ivision with the board f or its approval and the approv ed record p lat shall be recorded in the land reco rds o f the county . . . . [Alte ration em phasiz ed.] [F ootnot e omitte d.] Resubdivision is not found amo ng the definitions in either the 1955 or the 1965 subdivision regulations. -31- creation of nonco nforming lots (and uses) and to restrict undersize parcels, not oversized parcels . Ridge, 352 Md. at 653, 724 A.2d at 34 ; see Fred McDowell, Inc. v. Wall Twp. Bd. of Adjustm ent, 334 N.J.Super. 201, 224, 757 A.2d 822, 835 (N.J.Super.App.Div.2000) (invoking Loechn er v. Cam poli, 49 N.J. 504, 231 A.2d 553 (1967), New Jersey s seminal zoning merger case which we discussed in Ridge, and stating merger is employed to further the goal of bringing (or keeping) nonconforming lots into conform ity with the zoning ordinance and thereby serving the overall goals of the master plan ). Thus, based on the setback encroachments existing as a result of the structures on Lot 12, the proposed construction on Lot 11 would make Lot 12, if in separate ownership, a new and illegal nonconforming lot, unless, und er the doctrin e of zonin g merger, th e uses of L ot 11 are appropriately limited. Montgom ery County notes that a single building may not extend across lot lines, even internal lot lines.25 It is not disputed that Lot 11 , with an are a of eight th ousand sq uare feet, 25 The sub division reg ulations pro vide, in releva nt part: § 50-20. Limitations on issuance of building permits. ... (b) A building permit may not be approved for the construction of a dwelling or other structure, except those strictly for agricultural use, which is located on more than one (1) lot, which crosses a lot line, which is located on the unplatted remainder of a resubdivided lot, or which is located on an outlot . . . . [Em phasis a dded.] The constitutionality of this provision in the Montgomery County Code is not before us. In the instant case, the structure on Lot 12 does not traverse the lot line delineating Lot 11 and Lot 12, but rather the structure on Lot 12 extends so as to fail to have sufficient setbacks from Lot 11. We note that a building that goes right to the lot line is the same thing (contin ued...) -32- if considered in a vacuum, exceeds the minimum six thousand square feet lot size required in the R-60 zone, and satisfies the setback requirements. On the other hand, Lo t 12, while of sufficient area for the zone,26 does not, by itself, without the use of Lot 11, possess the required side yard and rear yard setbacks on account of the configuration of the structures constructed upon it. To allow Lot 11 to be used, as proposed, thus creates an illegal nonconformance as to Lot 12 and, by implication, grants an improper variance as to the rear yard setback for Lot 12.27 Should this Court permit Lot 11 to be so used and a home constructed thereon, what becomes of Lot 12 s ability to comply with the existing rear yard and side yard setback requireme nts? Suc h action ef fectively waiv es the zonin g requirem ents as to Lo t 12. The County, apparently recognizing that if its position were to be accep ted by this Court it will have permitted the creation of an illegal nonconforming use, seeks to relieve the Court of concern, assuring that this C ourt need [] [n ot] apply Ridge to prevent a nonconforming use that m ight resu lt from a n own er treatin g merg ed lots a s separa te. . . . Based on the setback requirements and the longstanding rejection of attempts to treat 25 (...continued) as crossing the lot line for zo ning purp oses. That is, th e setback re quiremen ts are still violated. 26 Lot 12 measures 11,182 square feet well in excess of the R-60 zone s required 6,000 square foot lot size. 27 We do not comment as to whether variance procedures can be used to obtain a variance for Lot 12. -33- adjoining lots as one without form al resubdivision, the encroach ment of the [elder D uffies ] addition into the setbacks remains a matter for DPS to handle through enforcement or when the owner of that lot seeks an additional building permit in the future 28 (alterations added). The Court must consider, however, the possibility that a Montgomery County landowner of multiple lo ts might utilize a parcel A to assuage zoning violations on an adjacent comp anion ( and thu s, nonconforming) parcel B , and later be nefit from the sale of parcel A without correcting conditions caus ing the n oncon forma nce of parce l B. Moreover, in relying on merger arising only from a formal resubdivision platting, a common owner might fly un der the rada r by simply refraining from submitting a new resubdivision plat. That is, the ow ner wou ld assert zoning merger for purposes of complying with zoning requirements, but two lots for purposes of subdivision and sale (free of zoning limitations). In this w ay, the common owner could flip-flop between his or her adjacent parcels, thwarting the intent of the land development regulations and, perhaps more egregiously, skirting Montgom ery County s exacting requirements for subdivision. The owner would have the benefit of avoiding zoning violations by treating the parcels as merged for zoning purposes, but later seek benefit from the sale of two separate va luable parc els of land. T hat is exactly what is occurring in the instant case. 28 The Co unty has already expressed, however, its doubt about its ability to pro secute a code violation that occurred more than three years ago . See Md. C ode (197 3, 1998 R epl. Vol.), § 5-114 of the Courts and Judicial Procedure Article, addressing setback line restrictions. -34- 2. Title to Lot 11 and Lot 12 Mr. Duffie a cquired title to a lot composed of Lots 11 and 12 from his father s estate. At that time zoning merge r had alr eady occ urred. The respondents contend that, should we find zoning merger of Lot 11 and Lot 12, our decision will wreak havoc on the title search procedures that a landowner who seeks to buy property must undertake. That is, the responde nts urge that there must be an exhaustive title search in order to determine if two or more lots were ever held in common ownership and may have been used in a manner suggesting zoning merger. Such a practice, according to respondents, can lead to clouds on title and undermine zoning and subdivision laws. As stated by the M NCPPC , every situation involving the application of the merger doctrine for subdivision matters could potentially involve a f actual dispu te over whether a prior or current owner ever desired [i.e., intended] to merge the lots (alteration added). As we have indicated previously, a common owner of property who constructs a building on one lot which incorporates space from an adjacent lot in order to fulfill setback requireme nts still main tains tw o separ ate lots f or title pu rposes . See Ridge, 352 Md. at 658, 724 A.2d a t 34. See also Rouse-Fairwood Devel. Ltd. Partnership v. Supervisor of Assessm ents for Prince G eorge s C ounty, 138 Md.App. at 630, 773 A.2d at 559 (stating that this Court, in Ridge observed that lots do not remain separate merely because they appear separately on a subdivision plan ). Surv eys are available to answer many of the title questions that m ight arise . Sur veys -35- routinely disclose encroachments. Surveys can as easily determine setback violations on abutting properties. The records of the administrative entities are public records and thus, available; land record s of adjace nt lots are also a vailable (they were cle arly available in the present case they are, for the m ost part, in the re cord); title insura nce is likewise av ailable in most instances; actions in ejectment, quia timet29 and the like are available . If disputes arising from encroachments or setback violations lead to claims of adverse possession or an action for ejectme nt, the parties generally seek judicial review in an effort to remove any such clouds on title. The same can be done via declaratory judgment actions in respect to the factual applicability of zoning merger emanating from adjacent properties. The task, for competent title attorneys, is not insurmountable. It would not be necess ary as respond ents specu late to trace title to an indefinite time for, as we have indicated, there are avenues which may be used to resolve the infrequen t title questions that may arise. A s petitioner su ggests, DP S might rev ise its permit ap plication to determine whe ther the subje ct lot is pre sently, or was fo rmerly, held in comm on own ership with a contiguous lot. In the instant case, Lot 11 and Lot 12 apparently were still held by M r. Duffie w hen De sign-Tech obtained its b uilding perm it.30 29 A legal doctrine that allows a p erson to see k equitable relief from future pro bable harm to a specific right or interest. BLACK S L AW D ICTIONARY 1281 (8 th ed. 2004). [A]nd again, that eq uity will not allow a title, othe rwis e cle ar, to be cl ouded by a claim which cannot be enforced in law or equity. Holland v. City of Baltimore, 11 Md 186, 197 (1857) (alteration add ed). 30 Design-Tech obtained a building permit in December 2002. The deed from Mr. (contin ued...) -36- III. Conclusion We find that Lot 11 and Lot 12 are merged for zoning purposes. Accordingly, we reverse the Board of Appeals rejection of petitioner s contention that the building permit for Lot 11 was erroneously granted. Lot 11 and Lot 12 were under common ownership, and at the time of that common ownership, they were used in serv ice to one an other. The permit should not have issued, absent further zoning action. In order for Lot 11 to be utilized separate and apart f rom Lot 1 2, there wo uld have to be a resub division of the comb ined lot, creating two lots both of which meet the requirements of both the zoning ordinance and the subdivision regulations. In that process it may well be necessary to seek zoning variances as to setb acks, or to remo ve the s etback encroa chme nts of th e structu re on L ot 12. As we have found that Lot 11 and Lot 12 have merged for zoning purposes, we do not resolve the issue of whether the base level of the single-family home proposed by DesignTech w as a cella r or a ba semen t. See supra note 1. JUDGMENT OF TH E CIRCU IT COURT FOR MONTGOMER Y COUNTY REVERSED. C A SE REMANDED TO THAT COURT WITH DIRECTIONS TO R EVERSE THE DECISION OF THE BOARD OF A P P E A L S AND D IR ECT T H E BOARD TO ISSUE AN ORDER 30 (...continued) Duffie to Design-Tech was executed in January 2003. At all times relevant hereto DesignTech needed to have looked no farther than Mr. Duffie, its immediate predecessor in title, in order to assess the potential that zoning merger might have occurred. -37- CONSISTENT WITH OUR OPINION. COSTS TO PA I D B Y THE RESPONDEN TS. -38-
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