Alviani v. Dixon

CATHELL, Judge. The Board of Appeals of Anne Arundel County (hereinafter Board) granted an application for a special exception to build an automotive service facility and variance requests incident to the proposed automotive service facility made by Phyllis Dixon and Jonathan Aaron, respondents. Dennis Alviani, Fulvio Alviani, Maryann Alviani, Leonard Bender, ard William E. Neiman, petitioners, filed a request for judicial review with the Circuit Court for Anne Arundel County. The Circuit Court affirmed the decision of the Board. ⁹⁸ Petitioners then filed an appeal to the Court of Special Appeals.

The Court of Special Appeals, in an unreported opinion, affirmed the decision. Petitioners then filed a Petition for Writ of Certiorari with this Court. We granted the Petition. Petitioners have presented two questions in the Petition: 1.

Whether the Anne Arundel County Board of Appeals erred as a matter of law in granting the special exception when the only way to approve the special exception was by approving three (3) variances to the statutory standards for the automobile filling station special exception use? 2. Whether the Board erred as a matter of law by failing to make the necessary findings required in order to grant a variance, and whether the record before the Board contained evidence sufficient to support such findings? 1 We answer no to both questions and affirm the decision of the Court of Special Appeals. We hold that the Board had the authority to grant a special exception with variances when the Anne Arundel County Code precluded variances from being applied to some sections of the code and the special exception section was not one of those excluded sections. We also hold that there is substantial evidence in the record to establish that the Board made the necessary findings to grant the variances.

I. Facts Respondents own a 1.2 acre parcel of land located on Old Mill Bottom Road at U.S. Route 50 east in Annapolis, Mary ⁹⁹ land. The property was originally part of a larger tract, but in 1990 the State Highway Administration obtained 7.65 acres of that tract by threat of condemnation for placement of an access ramp to Route 50. After the access ramp was built and various improvements were made to Route 50, the remaining parcel was an isolated, circular plot of land that was surrounded by roads and access ramps. As it currently sits, the parcel is partially developed with an old service station that is in a state of disrepair.

Prior to 1995, the parcel of land was split zoned 40% Cl-B (community retail) and 60% RLD (residential low density). 2 In 1995, respondents, who hoped to develop an automotive service facility 3 on the parcel, filed an application with the Anne Arundel County Department of Planning and Code Enforcement requesting a zoning reclassification. An automotive service facility could not be developed on that part of the parcel encumbered with a RLD classification. Respondents requested that the Department of Planning and Code Enforcement reclassify the entire property as either C4 (highway commercial) or Cl-B. A C4 classification would permit an automotive service facility to be constructed without a special exception, while a Cl-B classification of the entire parcel would require a special exception for the automotive service facility to be constructed. Both zoning classifications would require variances to permit the proposed development because of the circular shape of the isolated parcel, a shape that resulted from the 1990 taking.

In their application, respondents requested the variances and the special exception if the parcel was zoned Cl-B. In respect to the special exception, respondents requested variances from two of the criteria required by Article 28, ¹⁰⁰ section 12-206(b) of the Anne Arundel County Code as conditions for approval of the special exception. Section 12 — 206(b) states, in relevant part, that: § 12-206. Automotive service stations. (b) An automobile service station is permitted in a Cl-B or C3 District, provided: (1) any lot used for a station has at least 150 feet of frontage along each street, and a lot area of at least 22,500 square feet; (8) pump islands are at least 20 feet apart....

As a result of the extensive taking in 1990 by the State Highway Administration, the parcel was left with only 143 feet of frontage along Old Mill Bottom Road. Respondents, therefore, were requesting a variance of seven feet from the 150 feet of frontage required by section 12 — 206(b)(1). Respondents also requested a variance from section 12-206(b)(8), which requires that pump islands be at least twenty feet apart. Respondents were proposing to operate six gasoline dispensers at the site, with each dispenser located on a separate pump island.

The dispensers would be located in three parallel rows, with two dispensers per row. The rows would have thirty feet of space between them and the two dispensers in each row, on their separate pump islands, would be twelve feet apart. Respondents were requesting a variance of eight feet from the twenty feet distance that was required by section 12-206(b)(8). 4 ¹⁰¹ Respondents requested one other variance from Article 28, section 10-103(a) of the Anne Arundel County Code, which covers general setback requirements for all uses located on a dual, multi-lane, or divided highway. Section 10-103 states, in relevant part, that: § 10-103.

General setback requirements. (a) Notwithstanding any provision to the contrary, each structure that is located on a dual, multi-lane, or divided highway shall be setback at least 60 feet from the existing right-of-way line. An accessory use may not be permitted in this setback. The proposed overhead elevated canopy over the pump islands would roughly be located at the site of the present dilapidated service station structure.

It was proposed that one corner of the overhead canopy be set back thirty-five feet from the Route 50 access ramp. Respondents requested a variance of twenty-five feet from the sixty-foot set back requirement for this corner of the edge of the elevated canopy. Because it was elevated, it would not interfere with ground level lines of sight across the edge of the property. The Department of Planning and Code Enforcement for Anne Arundel County recommended to the Hearing Officer that respondent’s application for the Cl-B zoning option and the special exception and variances, subject to certain conditions, be approved.

In its Findings and Recommendations, the Department of Planning and Code Enforcement stated that: VARIANCE Relative to the variance application, the Department has no major issues with the granting of the setback, lot frontage and distance between pump islands. The canopy and pump islands are to be located in the general vicinity of the existing building which is to be torn down. Only a small comer of the canopy projects into the setback area and the ¹⁰² area at issue is oriented towards the ramps, not the main highway. The lot frontage issue was created by State action with the resulting configuration limited by roadways.

There is no option to reconfigure the property. The distance between pump islands is almost a non-issue. The 20 foot minimum distance between pump islands was established to allow two cars side by side served from parallel pump islands. The 12 foot break between islands results in the splitting of a single island to enhance drainage and pedestrian flow.

SPECIAL EXCEPTION The site plan submitted as part of the application, appears to satisfy the specific design standards for a service station with the approval of the variances. Though the ability to access Ferguson Road is not yet resolved, Special Exception approval should remain flexible to accommodate the general layout whether this access point occurs or not. Relative [to] the more general standards, the issue of “need” should be addressed by the applicant to the satisfaction of the Hearing Officer. RECOMMENDATION Based on the reasoning as outlined herein, the Department of Planning and Code Enforcement would recommend denial of the C-4 zoning option and in the alternative support C-l-B, the variances and the special exception subject to: 1) the upgrading of Old Mill Bottom Road to a 70 rating as outlined by Public Works. 2) the resolution of the Ferguson Road issue with the State Highway or the modification of the plan to contain only one access point from Old Mill Bottom Road. 3) the showing of “need” to the satisfaction of the Administrative Hearing Officer. [Emphasis added.] On March 7, 1996, a hearing was held by a Hearing Officer to consider respondent’s application.

The Hearing Officer’s Findings and Recommendations of March 28, 1996 approved the Cl-B reclassification but denied the C4 reclassification and also denied the special exception and variances. Respondents appealed to the Board of Appeals, seeking reversal of ¹⁰³ either the Hearing Officer’s denial of the C4 reclassification or a reversal of the denial of the special exception and variances. The Board of Appeals made respondents either appeal the denial of the C4 reclassification or the denial of the special exception and variances. Respondents chose to appeal the denial of the C4 reclassification.

That appeal was denied by the Board of Appeals. Respondents filed a Petition for Judicial Review in the Circuit Court for Anne Arundel County. The Circuit Court held that the Board of Appeals should have allowed respondents to present evidence on the special exception and variances under the Cl-B classification. The Circuit Court remanded the case to the Board of Appeals for the taking of testimony and a determination on the issue of the special exception and the variances in a Cl-B classification. 5 On September 11, 1997, after the case was remanded, the Board of Appeals held a public hearing on the special exception and variances.

The Board of Appeals then issued a Memorandum of Opinion on December 2, 1997 in which the Board conditionally approved the special exception and variances. The Board stated that: The Board finds from the testimony presented and its site visit, that, except where a variance has been requested, the Petitioners meet the criteria set forth in Section 12-206 of the Zoning Regulations. The Board finds further that the Petitioners have presented sufficient evidence to warrant the grant of the three requested variances. The Board then discussed the granting of the variances, stating that “[i]n order to grant the variances requested, the Board must find that the Petitioners comply in all respects with the relevant provisions of Section 2-107 of Article 3 of the Anne Arundel County Code.” 6 ¹⁰⁴ The first variance examined by the Board was the seven-foot variance from the requirement of having 150 feet of road frontage.

The Board stated that there was testimony that the parcel was bound on three sides by State Highway Administration rights-of-way and the remaining side was bound by Old Mill Bottom Road for 143 feet. The Board then stated: The Board finds that requiring the Petitioners to strictly meet the requirement of at least 150 of road frontage, where the property actually binds on all sides by either unbuildable road rights-of-way or actual road bed, represents an exceptional circumstance and an unnecessary hardship upon the Petitioners. Since the Petitioners cannot change their amount of lot frontage, the request for a 7 foot variance is the minimum necessary to afford relief to the Petitioners. ¹⁰⁵ The Board then examined the eight-foot variance from the twenty-foot pump island separation requirement. Respondents were going to have three rows with two gasoline dispensers in each row.

Instead of connecting the two dispensers in each row into one pump island, respondents were going to make each dispenser its own pump island. Respondents, however, only wanted to leave twelve feet of space between each pump island in a single lineal row of pump islands, not the twenty feet that is required to exist between adjacent parallel rows containing multiple pumps. The Board stated that: The separation of each pump dispenser into a separate pump island will ease the flow of runoff and pedestrian traffic under the canopy. The Board finds that requiring the Petitioners to include each row of pump dispensers in one pump island would result in a practical difficulty to and an unnecessary hardship upon the Petitioners and the community.

Pedestrian traffic should be as unencumbered as possible. Large raised islands would hinder the ability of pedestrians, handicapped individuals, families with strollers and the like to move freely under the canopy and to access the convenience store component of this project. The Petitioners are providing 30 feet of width between adjacent rows of pump islands to create more than ample space for vehicles to access the pumps. The Board finds that the grant of a variance to this requirement will increase the public welfare which represents an exceptional circumstance worthy of the grant of a variance.

The request for a variance of 8 feet to the 20 foot required setback is the minimum necessary to afford relief to the Petitioners while providing the maximum public accommodation. [Footnote omitted.] The last variance requested by respondents and approved by the Board was a twenty-five-foot variance from the sixty-foot setback requirement for any structures on a dual, multilane, or divided highway. The Board found that the circular shape of the property and its proximity to Route 50 and its service ramps would leave respondents with “no reasonable ¹⁰⁶ possibility of developing the lot with a canopy over the pump islands which meets the requirements of the Zoning Regulations.” The Board found the canopy to be reasonable in size and that the canopy would not harm the public welfare by blocking sight lines for drivers. The Board then determined that the three variances would not alter the essential character of the area as the neighborhood is mixed with residential and commercial uses and is impacted by its proximity to Route 50. The Board also stated that the variances would not impair the use or development of adjacent properties and would not even be noticed by the public.

It then concluded that there was ample evidence to grant the requested variances, noting, however, that the respondents also were required to meet the general criteria for a special exception. 7 ¹⁰⁷ The Board then discussed its finding that respondents had presented sufficient evidence to satisfy the twelve criteria for the granting of a special exception listed in section 12-104. The Board went through each of the twelve criteria, explaining the evidence that the Board felt satisfied each criterion. Petitioners filed a Petition for Judicial Review in the Circuit Court for Anne Arundel County seeking a reversal of the Board’s conditional approval of the special exception and variances. On August 12, 1998, the Circuit Court filed a Memorandum Opinion in which the Circuit Court affirmed the Board’s decision.

Petitioners appealed to the Court of Special Appeals and the Court of Special Appeals also affirmed the decision of the Board.

II

Standard of Review A proceeding on a special exception is subject to a full judicial review. Mossburg v. Montgomery County, 329 Md. 494, 506 , 620 A.2d 886, 892 (1993). We examined the correct standard of judicial review in White v. North, 356 Md. 31, 44 , 736 A.2d 1072, 1079-80 (1999), when we stated that: In judicial review of zoning matters, including special exceptions and variances, “the correct test to be applied is whether the issue before the administrative body is ‘fairly debatable,’ that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions.” Sembly v. County Bd. of Appeals, ¹⁰⁸ 269 Md. 177, 182 , 804 A.2d 814 , 818 (1973). See also Board of County Comm’rs v. Holbrook, 314 Md. 210, 216-17 , 550 A.2d 664, 668 (1988); Prince George’s County v. Meininger, 264 Md. 148, 151 , 285 A.2d 649, 651 (1972); Zengerle v. Board of County Comm’rs, 262 Md. 1, 17 , 276 A.2d 646, 654 (1971); Gerachis v. Montgomery County Bd. of Appeals, 261 Md. 153, 156 , 274 A.2d 379, 381 (1971).

For its conclusion to be fairly debatable, the administrative agency overseeing the variance decision must have “substantial evidence” on the record supporting its decision. See Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 395 , 396 A.2d 1080, 1087 (1979); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 706 , 376 A.2d 483, 495 (1977), cert. denied sub nom. Funger v. Montgomery County, 434 U.S. 1067 , 98 S.Ct. 1245 , 55 L.Ed.2d 769 (1978); Agneslane, Inc. v. Lucas, 247 Md. 612, 619 , 233 A.2d 757, 761 (1967). In Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398 , 396 A.2d 1080, 1089 (1979), we defined the substantial evidence test as “ ‘whether a reasoning mind reasonably could have reached the factual conclusion the agency reached,’ Insurance Comm’r v. Nat’l Bureau, 248 Md. 292, 309 , 236 A.2d 282 (1967), or as ‘ “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,”’ Bulluck v. Pelham Wood Apts., 283 Md. 505 , 390 A.2d 1119 (1978); Snowden v. Mayor & C.C. of Balto., supra, 224 Md. at 448, 168 A.2d 390 .” In applying the substantial evidence test: The question for the reviewing court is ... whether the conclusions “reasonably may be based upon the facts proven.” The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported.

The test is reasonableness, not rightness. Annapolis Waterfront Co., 284 Md. at 399 , 396 A.2d at 1089 , quoting 4 K. Davis, Administrative Law, § 29.05, 137, 139 (1958). ¹⁰⁹ When we review an administrative agency’s order, we make sure that it is not premised upon an error in the law. Ad+Soil, Inc. v. County Commissioners of Queen Anne’s County, 307 Md. 307, 338 , 513 A.2d 893, 909 (1986). “Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law.” Belvoir Farms Homeowners Association, Inc. v. North, 355 Md. 259, 267 , 734 A.2d 227, 232 (1999), citing Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749, 753 (1998).

III

Discussion We hold a special exception with variances may be granted by a zoning agency when the applicable code contains provisions excluding certain areas of the code from being subject to variance relief, but does not exclude the section covering the relevant special exception from being modified by variances. In so holding, we answer the question first raised by the Court of Special Appeals in Chester Haven Beach Partnership v. Board of Appeals for Queen Anne’s County, 103 Md.App. 324 , 653 A.2d 532 (1995). We also find that there is sufficient evidence in the record to support the Board’s findings. A. Granting of Special Exception With Variances Petitioners contend that the Board erred as a matter of law in granting the special exception because the criteria for the granting of a special exception must be met without a variance. 8 In support of its proposition that the criteria for a special exception must be satisfied without a variance, peti ¹¹⁰ tioners rely on Chester Haven, supra, and Umerley v. People’s Counsel for Baltimore County, 108 Md.App. 497 , 672 A.2d 173 (1996).

Although neither Chester Haven nor Umerley decided the issue before this Court, petitioners point to language in Chester Haven, that was cited in Umerley , to support the idea that variances cannot be used to avoid meeting the expressed criteria required for the grant of a special exception. In Chester Haven, the Court of Special Appeals stated: The attempt to follow this procedure creates fundamental and conceptional problems with the generally accepted proposition that, if the express conditions necessary to obtain a conditional use are met, it is a permitted use because the legislative body has made that policy decision. Does the legislative intent that the use be permitted remain if the conditions are not met but are eliminated by an administrative body granting a variance? Upon such an occurrence, the application for a conditional use becomes dependent upon the granting of the variances.

Under those circumstances, the presumption that a conditional use is permitted may well fall by the wayside. The policy that establishes certain uses as permitted is predicated upon the satisfaction, not avoidance, of conditions. Conditions the legislative body attaches to the granting of a conditional use normally must be met in accordance with the statute-not avoided. In any event, even if such a procedure would pass muster, if the variance process fails, the entire application fails.

Chester Haven, 103 Md.App. at 336 , 653 A.2d at 538 . While the Court of Special Appeals in Chester Haven realized that this could be an issue, it did not resolve the issue; it decided the case based upon the failure of the variance process itself. The Anne Arundel County Code provides the standards for granting a variance and when variance procedures cannot be utilized. The Code, Article 3, section 2-107, states in relevant part: § 2-107.

Standards for granting variance. ¹¹¹ (a) The County Board of Appeals may vary or modify the provisions of Article 28 of this Code when it is alleged that practical difficulties or unnecessary hardships prevent carrying out the strict letter of that article, provided the spirit of law shall be observed, public safety secured, and substantial justice done. A variance may be granted only after determining: (1) that because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape, or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility of developing the lot in strict conformance with this article; or (2) that because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to develop such lot. (d) This section does not apply to Title IB or § 15-10JpA of Article 28 of this Code. 9 [Emphasis added.] The Code grants the Board the authority to grant variances from sections within the code, except for the titles and sections enumerated in section 2-107(d) aforesaid. The local legislative body clearly knew that it could except certain parts of the Code from the application of the variance provisions.

The section relating to the granting of a special exception for an automotive service station, located in Article 28, section 12-206, the special exception provision at issue here, was not one of the sections that was excepted. We have held that when there is an express exception to a statute, additional exceptions should not be implied. See Taylor v. Friedman, 344 Md. 572, 581 , 689 A.2d 59, 63 (1997) (“Taylor’s ¹¹² position is reinforced by the rule of statutory construction dealing with statutes that express a general rule, followed by one or more specific exceptions to the general rule. Under those circumstances, a court ordinarily cannot add to the list of exceptions.”); Pennsylvania Nat’l Mut.

Cas. Ins. Co. v. Gartelman, 288 Md. 151, 156 , 416 A.2d 734, 737 (1980) (“Where a statute expressly provides for certain exclusions, other should not be inserted.”). Accordingly, in an ordinance in which certain matters are excluded from the applicability of variance relief, it can be inferred that the legislative body’s intent is that all other areas are susceptible to variance relief.

The concerns about the intention of the legislative body, expressed in Chester Haven, are thus resolved. The legislative body has, by excluding portions of the code from the variance provisions, while not excluding others, expressed an intent that variance provisions be applied to all areas not excluded. That includes the special exception provision at issue here. We discussed the granting or denial of a special exception in Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981), when we stated that: This Court has frequently expressed the applicable standards for judicial review of the grant or denial of a special exception use.

The special exception use is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception use is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan. Whereas, the applicant has the burden of adducing testimony which will show that this use meets the prescribed standards and requirements, he does not have the burden of ¹¹³ establishing affirmatively that his proposed use would be a benefit to the community.

If he shows to the satisfaction of the Board that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material. If the evidence makes the question of harm or disturbance or the question