Thе underlying cause of this dispute is the inevitable conflict that results during the transition of a rural community to a suburban community. Circumstances which are accepted as natural and normal incidents of a rural society by those who are nurtured by an agrarian environment do not always match the expectations of bucolic life anticipated by suburbanites as they move out to the countryside. While new residents may well expect, and accept, vistas of *747 fields of waving grain, pastural scenes of dairy cattle on the hillside and the rustic ambiance of the pond and wetlands area in the meadows, they sometimes belatedly discover that the plow precedes the grain, manure accompanies the cattle, mosquitoes infest the ponds, and the products of the fields and animal husbandry must go to market. Since the advent of zoning, the conflicts between rural reality and suburban expectations have been refereed by zoning administrators who, all too often, have found themselves in the unenviable position of reconciling the irreconcilable.
The zoning law has attempted to serve as a mechanism for the resolution of these conflicts and to provide for an orderly process that recognizes the inevitable transition, while at the same time preserving and permitting the continuation of long-standing practices and customs. The relevant body of law governing this transition is the law of nonconforming, primary, accessory, and incidental uses. When the principles of this body of law are properly understood and applied by zoning administrators and ultimately by trial courts, the transition process is successfully managed. In this case, the trial judge clearly understood the process and correctly applied the law.
The Facts
The dispute arises from the use of a 2.022 acre parcel of land in Carroll County, Maryland, which was zoned “ ‘A’ Agricultural District.” Since 1923, a bulk milk delivery, distribution and trucking business has been operating from the site serving the farming community.
Milk, unlike some agricultural products, is produced (harvested) every day. It is picked up by truckers who serve individual farms and collect their milk for transport to the dairies where it is processed. There is no respite from collection, because the cows take none from their production, and the product is perishable. In modern times this truck collection and delivery system is almost as important *748 as the cow. 1
With the advent of zoning in Carroll County in 1965, the appellee’s milk trucking and distribution business became a nonconforming use. As such, it was then, and is now, a lawful use. The business involves the operation of between 30 and 35 trucks per day from its site, all of which must be mechanically serviced on a regular basis. As new trucks are purchased, old trucks are retired. In order to facilitate maintenance, the decommissioned vehicles are stored on the site as a source of parts for the operable trucks. This cannibalization and repair program occurs incrementally, and results in the storage of parts as well as vehicles. To the casual passerby, perhaps to neighboring residents in search of rustic scenes to match their expectations, and occasionally to some zoning administrators, these vehicles and parts, or some of them, appear to be junk. 2
*749 The Carroll County ordinance attempts to regulate junkyards. In 1988, the zoning office, and ultimately the Board of Zoning Appeals (“Board”), declared that the site was not a nonconforming junkyard because it had not registered and thus had not been “certified” as one under the ordinance. In essence, the zoning authorities were attempting to order the cessation or reduction of use of the outside portions of the property. There was no evidence which indicated that, at the time in question, greater use was being made of the property for storage, etc., than had previously been made. 3
The Board upheld the administrator’s decision. Appellee appealed the Board’s decision to the circuit court, where it was heard by Judge Burns. In a short but well-reasoned memorandum opinion, he cut to the heart of the matter and reversed the Board. The County Commissioners of Carroll County appealed to this Court.
Judge Burns stated, in part:
As all parties knоw this family-owned business has a long history in Carroll County and it is undisputed that it is a lawful non-conforming use within this zone. Prior to 1987/1988 Appellant’s storage of these vehicles in question, incidental to the business, was not seen as a “junkyard” under the Zoning Ordinance. We cannot condone changing the standard now and considering this incidental use of the otherwise valid business (non-conforming use) a “junkyard” when there is no substantial evidence to *750 support said determination. Therefore, the Board’s decision is not “fairly debatable” and cannot be affirmed.
We are persuaded by the case law cited by Appellant’s counsel, specifically Atkins v. Zoning Board of Adjustment, [53 N.C.App. 723 ]281 S.E.2d 756 , (N.Car.1981). Additionally, we note that this has always been an incidental part of this business. That such storage now becomes a violation creating a “junkyard,” is a new interpretation by the County____
Because we agree with the trial judge, we will not address estoppel, nor discuss
Permanent Financial Corp. v. Montgomery Co.,
The appellant raises two questions:
I. Whether the circuit court erred in applying the doctrine of equitable estoppel, where the evidence failed to establish that county officials ever approved the alleged zoning violation or caused the alleged violator to change his position in reliance upon the purported approval.
II. Whethеr substantial evidence supports the conclusion that appellee’s practice of retaining inoperable, obsolete trucks and other items constitutes a junkyard.
For reasons which will become apparent, we shall not address the first question. Appellant’s second question ignores, the trial court’s finding. We will address it only inferentially as we directly confront the real issues stated in appellee’s brief:
*751 I. Did the circuit court correctly determine that the incidental storage of material on appellee’s site in connection with appellee’s admittedly lawful non-conforming use was not a “junkyard”?
II. Is the incidental storage of material on appellee’s property no more than an accessory use to the lawful non-conforming trucking business and not a principal “junkyard” use subject to the enforcement sought by appellants?
The Law
The Court of Appeals, in discussing zoning ordinances generally, has said:
Such ordinances are in derogation of the common law right to so use private property as to realize its highest utility, and while they should be liberally construed to accomplish their plain purpose and intent, they should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language.
Landay v. Bd. of Zoning Appeals,
*752 In Lone, we discussed the concept of nonconforming uses:
An owner of land may еstablish a “lawful nonconforming use” if the evidence conclusively establishes that before and at the time of the adoption of the original zoning ordinance, he was using substantially all of his tract of land in a then-lawful manner for a use which by a later legislative action became nonpermitted. Board of Zoning Appeals of Howard County v. Meyer,207 Md. 389 [114 A.2d 626 ] (1955).
Id.
In the case sub judice, the County has attempted to eliminate an incidental and accessory use, which is inherently attached to a nonconforming use, by the ploy of administrative redefinition. 4 It has not reduced the nonconforming use by statute or other proper regulation. The trial judge discerned this and, in an appropriate exercise of his discretion, corrected it.
The Standards of Review
We discussed the standards for
judicial
review of zoning decisions in
Neuman v. Mayor of Baltimore,
The general rule is that the action of a zoning board will not be reversed on appeal if there is “substantial evidence” in the record to support the board’s finding. If such evidence does exist in the record, the matter is considered to be “fairly debatable”, and the courts may *753 not substitute their judgment for that of the board____ On the other hand, where the action of the board is not supported by substantial evidence the board’s decision cannot be said to be “fairly debatable”. Under those circumstances the board’s finding falls into the category of being arbitrary, capricious and a denial of due process of law.
Id.
at 14,
We must, in order to assess a
trial court’s
ruling, apply a different test. Judge Bishop, for this Court, restated that test in
Alston v. Alston,
Due to the trial court’s conclusion that the use was incidental to the nonconforming use and thus was not a junkyard, it is necessary to review the law of extension, intensification, and incidental and accessory uses, all in relation to nonconforming uses. We first discuss the difference between extension and intensification.
Extension-Intensification
The factors to be considered in determining whether an activity is within the scope of a nonconforming use are:
(1) to what extent does the current use of these lots reflect the nature and purpose of the original non-conforming use;
(2) is the current use merely a different manner of utilizing the original non-conforming use or does it constitute a use different in character, nature, and kind;
(3) does the current use have a substantially different effect upon the neighborhood;
*754 (4) is the current use a “drastic enlargement or extension” of the original non-conforming use.
McKemy,
In
Kastendike v. Baltimore Ass’n for Retarded Children, Inc.,
“The appellants contend that the enlargement of this use to include professional baseball games for a considerable period of a year is not within the exemption, but we cannot so find____ We have never held that the more frequent use of a property for a purpose which does not conform to the ordinary restrictions of the neighborhood is an extension of an infrequent use of the same building for a similar purpose____”
Kastendike,
A legal nonconforming junkyard was at issue in
Feldstein v. LaVale Zoning Bd.,
The zoning ordinance ... provides that a nonconforming use shall not be extеnded, but that does not mean that the vested nonconforming use of the junkyard owner could not be lawfully intensified. The chancellors held that the increase in the quantity and height of the stored scrap metal was an intensification and not an extension under the law. We agree.... While a nonconforming use should not be extended or perpetrated longer than necessary, the more frequent present use of property for the same or a similar use than that for which it had been used less frequently theretofore was held to be an intensification and not an extension....
Id.
at 211,
The Court in
Jahnigen v. Staley,
[W]e hold that the rental of rowboats can not be so limited. Any increase in the number of rowboats rented would be an intensification of non-conforming use and would not be an extension.
We affirm the decree of the chancellor in all respects except that portion thereof which restricted the rental ... to the seven rowboats ... which is modified so as to permit the rental of rowboats which appellants might own and the storage, repair, and maintenance of those rowboats.
Id.
at 138-39,
Other jurisdictions have expanded upon the intensification theory. In
Appeal of Suburban Gen. Hosp.,
48 Pa. Cmwlth. 273,
The doctrine of natural expansion was promulgated by this Court some forty years ago.
If a person owns prоperty which constitutes a valid non-conforming use, it is inequitable to prevent him from expanding the property as the dictates of business or modernization require.... [W]e must conclude from the tenor of these decisions that the right of natural expansion is a constitutional right protected by the due process clause.[ 6 ]
Id.
The business being operated in the case at bar is exactly the same business being operated at the time of the enactment of the ordinance, and it is being operated on the same land. There has been little, if any, measurable increase in the degree or intensity of the operation. The evidence indicates that there had been constant storage of items outside, which were adjunct to the repair phase of the business at issue, prior to the enactment of the ordinance.
There is little, if any, evidence that there had been an increase in use amounting to an illegal extension. To the extent there was any evidence of an increase in use, that increase would be an intensification. There was thus insuf *758 ficient evidence to make the issue fairly debatable. Accordingly, when the trial judge found that the administrator had mistakenly concluded as a matter of law that the incidental use of the property ancillary to the milk distribution business was a junkyard, he was correct. The administrator’s decision was clearly arbitrary and capricious. We further explain.
Accessory Use
In general, an accessory use is regarded as “a use which is dependent on or pertains to the principal or main use.” (Footnote omitted.) 82 Am.Jur.2d,
Zoning and Planning
§ 169 (2d ed. 1976) (footnote omitted).
7
In
Kowalski v. Lamar, 25
Md.App. 493, 499,
While at first glance, our recent case of
Co. Comm’rs of Carroll County v. Uhler,
The Court of Appeals in
Arundel Supply Corp. v. Cason,
From our review, we perceive a paucity of Maryland cases defining accessory uses, incidental uses, and their relationship with legal primary uses, whether the primary uses be permitted uses or legal nonconforming uses. 8 As to that relationship, we do not discern any distinction whether the primary use is “permitted” or legally “nonconforming.” 9
We will therefore extensively review the cases and authorities from without the state. 10 Because we agree with *760 the trial judge in the case at bar, we shall focus on similar cases from foreign jurisdictions. We will, by way of a footnote, provide a listing of authorities to the contrary. To aid in our discussion, we shall categorize the cases by the types of accessory uses and furnish illustrative examples. These categories are necessarily broad in nature and are accessory uses in the (a) transportation/service area; (b) residential area; (c) manufacturing/construction area; and (d) agricultural area.
A. Transportation/Service Industries
In a case involving a warehouse distribution operation, the Appeals Court of Massachusetts discussed the accessory nature of vehicle storage and maintenance:
[W]e do not agree with the board that, as a matter of law, the garage and storage of vehicles are not permitted as accеssory uses____ Uses such as those proposed by the plaintiff have, without detailed analysis of the facts, been held to be accessory.
Salah v. Bd. of Appeals of Canton,
Pennsylvania law affords reasonable and natural expansion of a nonconforming use due process protection. Absent evidence that the expansion ... represents such a change in volume or degree so as to represent a change in the protected nonconforming use itself, or evidence that the proposed expansion is, in and of itself, injurious to the public interest, reasonable expansion of the nonconforming junkyard use, short of the township’s 50% limitation on expansion, may not be impeded.
Id.
The primary issue in
Ferry v. City of Bellingham,
Whether a use is viewed in the perspective of a presently permitted use or of a use required to be permitted despite a present prohibition in the ordinance, there is no difference as to the extent to which it can be supplemented by customary accessory uses. The exercise of the right to engage in such an accessory use does not constitute a prohibited change of use where the accessory use does not achieve the status of an additional co-equal use but remains subordinate to the previously existing non-conforming use in scale, volume, and intensity.
Because the operation of the crematory was valid as an accessory use, it did not constitute an enlargement of a nonconforming use.
Id.
While not being able to decide the issue because of the state of the record, the Supreme Court of Louisiana in
Redfearn v. Creppel,
1. They must be related to the principal use (usually not explicitly stated, but implied).
2. They must be subordinate and clearly incidental to the principal use (almost always stated).
3. They must also be customarily incidental (almost always stated).
4. They must be located on the same lot as the principal use (almost always stated) — and, occasionally, must also be in the same ownership.
5. They must not alter the character of the area or be detrimental thereto (occasionally stated).
Applying these precepts, we conclude that bar and meeting room uses of the property can be classified as accessory uses of the hotel and rеstaurant if they meet all of these tests____
Id. at 1360 (emphasis in original, citation omitted).
B. Residential Area
In the vending machine case of
City of Newark v. Daly,
*763 To refer to a particular use in a residential district as a “business use” is not per se sufficient to stamp it as a violation of a zoning ordinance____
The use of the word “customarily,” when applied to “incidental,” may be helpful to establish affirmatively the existence of a use as “accessory.” But the fact that a use is not “customarily” indulged in is not conclusive.
In Illinois, an intermediate appellate court ruled that a for-profit restaurant serving alcoholic beverages was not a permitted accessory use incidental to the operation of an office complex. The decision was based primarily on the lack of specific factual support in the record to establish that such a use was customary, but the court nevertheless set forth a clear standard:
[A]n accessory use must be сustomarily incidental to the principal use, serving no other principal use, and must be subordinate in area, floor area, intensity, extent, and purpose to the principal use. It is required to contribute to the comfort, convenience, or necessity of users of the principal use.
Tollway North Office Ctr. Cent. Nat’l Bank in Chicago v. Streicher,
In
Markley v. Carlisle Zoning Hearing Bd.,
106 Pa. Cmwlth. 578,
C. Manufacturing/Construction Area
The Supreme Court of New Jersey, in reversing the denial of a heliport as an accessory use for a construction company, said in
New Jersey v. P.T. & L. Constr. Co., 77
N.J. 20,
In analyzing whether a use is customarily incident to the permitted use, two determinations must be made. The first is whether the use is incidental to the main use: does the use “ * * * bear a close resemblance and obvious relation to the main use to which the premises are put”? Second, it must be determined whether a use which is found to be incident to the permitted use is also a customary use. Generally, a use which is so necessary or commonly to be expected that it cannot be supposed that the ordinance was intended to prevent it will be found to be a customary use. The fact that a use is not customarily indulged in, however, is not conclusive, and even if the use in question is found in a small percentage of similar main uses, the use may still be found to be “customary.”
Id.
*765 If the conditions and situation of a particular municipality lead its governing body to believe that tighter restrictions than those before us in this case are reasonably necessary or desirable, it is free so to provide in its ordinance.
We thus approve the determination of the county court concerning the permissibility of the defendant’s helistop as an accessory use of the property in question under the Paramus zoning ordinance.
Id. at 453 (footnote omitted).
D. Agricultural Area
In the context of a plant nursery operating out of a residential district, the Supreme Court of Massachusetts held that an incidental use did not include the maintenance of vehicles which were not used in the nursery business itself:
An incidental or accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use.
Doubtless the defendant may engage in landscaping аs a part of the ... nursery. It may enter into contracts for such work. We think, however, its premises cannot be used as headquarters for a contracting business which does not concern the transplanting of the defendant’s own nursery stock____ Such use exceeds what is reasonably accessory to its principal business, as does the maintenance of the premises of more trucks than are necessary for the delivery of its own products.
Town of Needham v. Winslow Nurseries,
In discussing the construction of a commercial greenhouse in an agricultural district, a Pennsylvania court noted that “[w]hen an ordinance permits an owner to use his property as a farm, the ordinance by necessary implication permits the use of the lot for such agricultural specialties as its size will permit.”
Klavon v. Zoning Hearing Bd.,
The case of
Atkins v. Zoning Bd. of Adjustment,
Under the Doctrine of Accessory Uses, a landowner is permitted to maintain an accessory or incidental use in connection with a permitted use of land if the accessory use is truly incidental to the primary nonconforming use and does not change the basic nature of the use of property. Given the nature of Rape’s agricultural service business, we are not convinced that the stockpiling or transportation of sand, gravel or lumber is incidental to any use of Rape’s property permitted by the Ordinance.[ 12 ]
*767
Id.
Conclusion
One of the mоst restrictive definitions of “accessory use” is that found in
Lawrence v. Zoning Bd. of Appeals of the North Branford,
The ordinance in question defines an accessory use as one which is subordinate and customarily incidental to the *768 main building and use on the same lot. The crucial phrase “customarily incidental” is typically present in this type of legislation....
The word “incidental” as employed in a definition of “accessory use” incorporates two concepts. It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. Indeed, we find the word “subordinate” included in the definition in the ordinance under consideration. But “incidental,” when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendаnt or concomitant. ...
The word “customarily” is even more difficult to apply. Although it is used in this and many other ordinances as a modifier of “incidental,” it should be applied as a separate and distinct test. Courts have often held that use of the word “customarily” places a duty on the board or court to determine whether it is usual to maintain the use in question in connection with the primary use of the land. In examining the use in question, it is not enough to determine that it is incidental in the two meanings of that word as discussed above. The use must be further scrutinized to determine whether it has commonly, habitually and by long practice been established as reasonably associated with the primary use.
Id.
Addressing the facts in the case at bar and applying any of the definitions or tests we have described from other jurisdictions, including that mentioned in Lawrence, we are compelled to hold that the use described in the case at bar was attendant, concomitant, and customary to the primary use of the property. It was thus incidental to, or accessory *769 to, the primary nonconforming use. We hold that when a use does not change the basic nature of the primary permitted nonconforming use and is truly incidental to, and supports the nonconforming use, it is an accessory use and, unless expressly prohibited by statute, is permitted.
When Judge Burns opined that “there is no substantial evidence to support” a determination that the use of the property being complained of, had not predated the ordinance, and was not incidental to a valid nonconforming use, he was correct. There was no dispute that these activities had been occurring prior to the ordinance and that there had been little, if any, intensification since the advent of zoning in the County. Every iota of evidence before the agency, and thus reviewed by the court, supports, and supports only, a finding that the use was clearly incidental and accessory to the legal nonconforming use. Intensification of the use, if any, was clearly appropriate. 14 Appellant’s administrative actions were therefore arbitrary and capricious. The use at issue was clearly an accessory use and incidental to the operation of the lawfully permitted milk distribution business. No other interpretation of the evidence is logically supportable. We hold that the trial judge did not abuse his discretion. Accordingly, we shall affirm.
*770
With our decision, we do not mean to say that the County cannot, in time, reduce or limit this, or any other use, provided it does so in a reаsonable exercise of the police powers and does so in a manner properly recognizing property rights.
See Lone,
As we affirm the trial court’s ruling that the uses were incidental (and accessory) to a primary legal nonconforming use, we do not address the remaining issues.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.
Notes
. In the first half of the century, many dairy farms processed their own milk and maintained house delivery routes serving individual residences. They were, in essence, "mom and pop” family operations. With population and economic growth, milk processing facilities became centralized in order to supply large concentrations of consumers via supermarkets, convenience stores, etc., as opposed to residential deliveries. In order to achieve the supply necessary for the demand, pickup systems came into use.
. Various zoning complaint forms are contained in the extract. One, dated 4-28-71, states: "Nature of call 20-25 junk cars.” It contains the notation "6-21-71 no improvement — don't see why he has to move them." It later states that they were mоved to the back. Another, dated 4/2/85, says “untagged vehicles,” and states that some of vehicles were for storage and company use and that one would be sold. A notice, dated 3/24/87, for the first time says "Junk Yard,” describes in detail items on the property, and contains the notation that "many of the above vehicles & parts are used in the maintainance [sic] of there [sic] existing fleet, I advised of what the ord. allows & the policy of parts for other vehicles, I will get back to him after discussing w/the zoning ad.....” Then, on the same date, a notice was sent to appellee ordering him to remove the vehicles and parts by 4/24/87, or risk receiving a violation notice. On 4/9/87, the same inspector sent a memo to the zoning administrator, which said "where do we draw the line on the amount of junk allowed to be kept in conjunction with a business?” On 6/11/87, appellee notified the zoning inspector that all vehicles had been removed except those used in business. On 9/19/88, an inspection report listed the items on the *749 site concluding with the phrase "[a]cording [sic] to the Zoning Administrator they may keep 4 or 5 trucks for parts.” On 9/28/88, the zoning inspector notified the appellee of a violation, accusing him of operating a junkyard. The decision was appealed and resulted in the case before us.
. There was some evidence that, on occasion over the years, some vehicles and items not adaptable to use in the business of the trucking firm had found their way on the site. The evidence indicated that this had been mostly corrected when brought to the attention of the appellee in an effort to avoid conflict with the authorities.
. This Court held in
Nat'l Insts. of Health Federal Credit Union v. Hawk,
. We said in
Prince George’s Co. v. E.L. Gardiner, Inc.,
"A distinction is. to be drawn between the enlargement or extension of non-conforming uses and an intensification of such lawful uses. An increase in floor space ... an increase in the area of a lot used for non-conforming uses; or a change in business methods or the provision of new accessory facilities with the resulting extension of the use involved have all been held to be proposals for the enlargement of a non-conforming use. Conversely, an increase in the volume of an existing business is usually referred to as an intensification rather than an enlargement and such an intensification has been permitted under a valid non-conforming use.”
Id.
. We have not unearthed any Maryland cases that have explicitly recognized the "doctrine of natural expansion.” We first note that the name is an especially congruous description of the principle. We do not further address that doctrine, though we acknowledge that its basic premise appears consistent with the Maryland theory of "intensification.”
.
See also Urban v. Planning Bd. of the Borough of Manasquan,
. There are some cases defining accessory buildings.
See, e.g., Carney v. City of Baltimore,
. Generally there are two types of zoning ordinances — “permissive” and "prohibited.” In the former, the ordinance lists the uses permitted and all else is prohibited. In the latter, the ordinance lists prohibitions, and all else is permitted. Both types generally also provide for the continuation of nonconforming uses. Permissive ordinances, such as Carroll County’s, are the most common.
. We have reviewed the Maryland case law for cases dealing with incidental and accessory uses and their relationship to primary permitted or legal nonconforming uses. With the few exceptions we have noted, we have not found any clear definitive discussions. In our review, we have considered the Maryland cases cited by the parties which, in addition to those mentioned above, include:
Inlet Assoc. v. Assateague House Condominium Ass'n,
. The Colorado court further found that the administrator had no power to regulate the number of dogs kept on the premises.
. There were other issues in Atkins which we need not address.
. As to other cases finding accessory uses, see
Hinkle v. Board of Zoning Adjust. & App. of Shelby Co.,
As to cases not finding accessory uses see
Wundsam v. Gilna,
. There was only minimal and insubstantial evidence that any of the parts were used outside appellee’s business. This was introduced primarily in response to questions concerning the valuation placed on thе items by appellee. Appellee at one point stated:
A I placed those values on what they would be worth if we had to go out and buy it or get somebody to come in and wanted a piece to sell [buy], that’s what we would ask for it____ We don’t normally do this. We try to keep that stuff for our own use.
Q If somebody came in, would you sell it?
A ... [I]f someone came in that we know. But ... to the public, no, but to one of our farmers that we do business with ... [who] need[ed] a wheel ... we would let him have it. But we are not open to buy or sell with the general public....
We fail to see where an accomodation sale to farmer clients of the milk distribution business in an agricultural community would constitute a junk sale in the nature of “junkyard” sales generally.
. There are provisions relating to amortization, destruction of the use, obsolesce, or abandonment which are commonly extant in zoning ordinances.