Calvert County has won the latest round in its effort to shut down a controversial Dunkirk-area garden nursery for alleged zoning violations.
On Wednesday, District Judge Douglas Everngam held the nursery in contempt after finding that owners Kelly and Kim McConkey are operating a landscaping business from the property in violation of zoning regulations for a rural district, officials said. The nursery was fined $7,500, and the owners were threatened with additional penalties, including possible jail time, if found in contempt again.
Everngam, a visiting judge from Montgomery County District Court, postponed consideration of the larger issue, which is whether the entire nursery operation should be shut down. Calvert County is seeking to close the business because, county officials maintain, it is operating without an approved site plan and in violation of the county's zoning ordinance.
If the judge rules against the nursery in that case, the McConkeys would need Planning Commission approval to remain open, officials said. Moreover, because regulations adopted since the McConkeys first went through the planning process require owners to live on property occupied by such nurseries located within residential subdivisions containing more than five lots. The McConkeys, who do not live on the nursery site, would now have to comply with that rule.
Though a court hearing on the nursery shutdown remains to be scheduled, Wednesday's ruling means that the county could push for those harsher penalties, including jail time, if McConkey is found in contempt again for operating a landscaping business.
"The county is prepared to do what we need to do," said Pamela Lucas, an associate county attorney.
The judge's ruling followed reports from neighbors who said that the McConkeys were operating a landscaping business out of the nursery, according to Lucas.
However, Kim McConkey said that the judge was told "outright lies" about a landscaping business operation. McConkey said there had been "virtually no activity" in general at the nursery lately.
"Half of the last four months we've been closed," she said.
McConkey said that lawyers representing her and her husband had advised them to keep the nursery open.
The county first moved to close the nursery in 2001 after a written ruling by Calvert County Circuit Judge Marjorie L. Clagett, who upheld a challenge by nearby residents who opposed the nursery operating in their neighborhood. The Brickhouse Estates neighbors argued that the approval process for the nursery had been mishandled.
The business continued operating when the Court of Special Appeals granted McConkey a stay of Clagett's ruling that county planning staff had acted improperly in approving the establishment's site plan instead of referring the case to the Planning Commission.
At that time, the nursery owners signed a consent order with the county, in essence agreeing that they would abide by the Court of Special Appeals ruling, according to Lucas. In return, the county agreed to not immediately pursue a separate legal challenge in March 2002 , that included issues such as the allegedly illegal landscaping business, until the higher court handed down its ruling.
On Sept. 13, 2002, the Court of Special Appeals affirmed Clagett's ruling, according to Lucas. The next month, on Oct. 28, the nursery was cited again by the county, and McConkey was given seven days to comply with zoning rules.
When McConkey failed to shut down, the county filed a motion in District Court asking that he be found in contempt for not abiding by the consent order. The same day, McConkey lost his bid to have his case heard by the Maryland Court of Appeals.
On Feb. 5, the McConkeys were issued two citations for operating a nursery without a valid site plan and also not meeting the residency requirement.
While the McConkey case has been in litigation, the Calvert County Board of Commissioners approved the zoning ordinance amendment that imposes the residency requirement on the owners of nurseries in such neighborhoods.
That change did not affect immediately the operation because McConkey was able to build his nursery before enactment of the new restrictions.
The McConkeys have maintained that they should not have to comply with that new rule because they were victims of a mistake by the county, which allowed them to open without going to the Planning Commission.