American Oil Co. v. Board of Appeals

Barnes, J., delivered the opinion of the Court. In this zoning case the principal issue is whether the action of the appellee, Board of Appeals of Montgomery County (the Board), in denying, on October 10, 1972, to the appellant, American Oil Company (Amoco), a special exception to construct and operate an automobile filling station on land at the northwest corner of the intersection of Middlebrook Road and Maryland Route 355 in Montgomery County was fairly debatable or was arbitrary, unreasonable, and capricious. The Circuit Court for Montgomery County (Fairbanks, J.) on appeal passed an order on April 2, 1973, affirming the Board and a timely appeal from that order was taken to this Court. The subject property is somewhat rectangular in shape and, as indicated, is in the northwest quadrant of the intersection of Middlebrook Road and Maryland Route 355 in Montgomery County (the County).

It is undeveloped and has several large trees. It is zoned C-2, Commercial. Amoco indicated in its petition for a special exception for the proposed filling station that the requested use would be to replace an automobile filling station which it had operated at the southeast quadrant of the same intersection. This obsolete filling station has been torn down.

At the public hearing before the Board, Amoco produced only three witnesses, i.e., (1) a land engineer and planner, A. Morton Thomas; (2) a construction engineer, Karl M. Hirsch; and~(3) a real estate representative, Henry Cerasoli. No witnesses appeared in opposition to the granting of the petition. Mr. Thomas, the land engineer and planner, in his testimony before the Board, did not refer to any study or report he had prepared. On the contrary, he used the Report ³⁰³ of the Technical Staff of the Maryland-National Capital Park and Planning Commission (the Commission), the street layout of the Germantown area prepared by the Commission’s staff, and the zoning and highway plan map of the Master Plan for Germantown, but not the text of that Master Plan.

After using these documents to indicate to the Board the geographic area of the requested filling station, Mr. Thomas stated that the site “is on rural ground that has been mainly farmed. It right now is in pasture.” He also observed that the “intersection of Middlebrook Road and Maryland Route 355 has been and still is ... somewhat of a rural county road intersection [with] just a few residences and just a few small stores around it.” He then stated: “[T]his complex is anticipated to change greatly which is referred to in the staff report when the Germantown master plan is implemented with all of its proposed development.” (Emphasis supplied.) He thought that this intersection “mil serve as the hub or the center of neighborhood areas 7, 8, 9, and 10.” (Emphasis supplied.) He was also of the opinion that neighborhood areas 8, 9 and 10 in which “it is planned on the Germantown master plan that a large commercial area be developed in the vicinity of the intersection of Middlebrook Road and 355, at which the gasoline service station was approved, it would be a part of the overall service area.” Mr. Thomas concluded that in his “thinking and observation, this area is certainly an ideal location for a gasoline service station not only to serve the existing developments that are being generated in this area, but also for the overall 800-aCre tract which mil be intensely developed as proposed by the Germantown master plan.” (Emphasis supplied.) When a member of the Board inquired in regard to the availability of sewers, Mr. Thomas stated that there was no current service and that, “right at the present time,” everything was “sort of in limbo” at the Washington Suburban Sanitary Commission (WSSC). Mr. Thomas suggested that, on a temporary basis, a septic tank could be used. At this point, Amoco, through its counsel, requested that ³⁰⁴ the Board grant a grace period of two and one-half years to implement the special exception, if granted, because of the lack of sewer facilities.

Even though Mr. Thomas was not a traffic engineer or expert, he testified that at the time of the hearing, Maryland Route 355 had two 12-foot lanes with a total width of 24 feet of macadam surface. On the Germantown Master Plan, Route 355 is classified as a major highway with a proposed 102-foot right of way with a recommended pavement width of four to six lanes. The State Highway Administration, however, has not made any provisions for the proposed improvement to Route 355 in its five-year program, FY 1972-76, and thus the road is not on the State’s program for upgrading at the present time. Mr. Thomas further testified that in front of the site of the subject property, the average daily traffic totalled 900 vehicles for a 24-hour count in both directions.

He said that with the proposed improvement to six lanes, Route 355 would have a design capacity of between 32,000 and 37,000 vehicles in both directions for a 24-hour period. Middlebrook Road is not a state road, Mr. Thomas stated, but is a county road having a total width of 20 feet of macadam surface. The current capital improvement program for the County (FY 1972-77) contains no provision for the improvement of Middlebrook Road. Mr. Thomas also observed that the Germantown Master Plan proposes that this road be classified as a major highway, but relocates it to the north of the site of the subject property.

This relocation would either eliminate the section of Middlebrook Road located at the site or lead to its use as a service road or its being cut off to the west of the site in a cul-de-sac. Amoco made no traffic count for this road and the County has never made a traffic count on that road since the County considered it to be only a minor road presenting “no problems at all.” Mr. Thomas stated that, upon the relocation of Middlebrook Road, the requested filling station would be oriented toward and dependent upon Route 355, but that, in his opinion, the relocation of Middlebrook Road would not affect the usefulness of the proposed filling station or its consistency with the Germantown Master Plan. ³⁰⁵ Through Mr. Thomas, Amoco introduced an exhibit, mentioned above, of a street layout within a limited area surrounding the subject property, showing that there were eight existing gasoline filling stations within 3.4 miles of the subject property, two of which were outlets of the American Oil Company. One of the Amoco stations is located at the northwest intersection of Germantown Road (Maryland Route 118) and Aircraft Drive some 2.5 miles from the subject property; the other is located on the west side of Maryland Route 355 in Wilson Heights some 2.7 miles from the subject property. The remaining six filling stations are: an Exxon station 0.6 miles away on the east side of Route 355 south of the subject property; a Texaco station 1.0 miles to the north on the west side of Route 355; a Gulf station 2.6 miles to the west on the east side of Germantown Road northeast of Middlebrook Road’s intersection with Germantown Road; a Gulf station 2.8 miles to the south on the west side of Route 355 in Wilson Heights near the Amoco station, which is also located on the west side of Route 355; a Shell station 3.1 miles to the south on Orchard Road near the right of way of the Baltimore and Ohio Railroad; and a Texaco station to the south near the southwest corner of the intersection of Orchard Road and Clopper Road.

Amoco next called Mr. Hirsch, one of its construction engineers, who was responsible for the site plan of the requested gasoline station. He described the proposed building which appeared on an exhibit of the site plan, the bays, the parking spaces, lights and other proposed improvements. He stated that the site plan complied with all of the technical requirements of the ordinance applicable to gasoline filling stations, including the type of required screening. No automobile rental facilities were contemplated on the subject property.

Amoco’s third and last witness was Mr. Cerasoli, Amoco’s real estate representative. Part of his testimony focused on the operation of the former Amoco filling station located on the southeast quadrant of the intersection of Route 355 and Middlebrook Road. A photograph of the former Amoco station was admitted into evidence showing an obsolete type ³⁰⁶ of station. Its gallonage was only 240,000 gallons a year which, the witness stated, “is not very conducive to good business” from that type of facility.

Amoco projected that, if the Board granted the special exception, in its first year of operation, the new station would have a gallonage of 480,000 gallons. He estimated that the two gasoline filling stations nearest the subject property were each “doing” approximately 360,000 gallons a year. The Texaco station had been recently refurbished. It will be noted that Amoco produced no evidence from residents living in the vicinity of the subject property that another filling station was needed.

It produced no studies or reports prepared by it, apparently preferring to rely upon the Germantown Master Plan (without the text being offered in evidence, however) and the Report of the Technical Staff of the Commission. Nor was any evidence produced of a “need deficiency.” The Board, on October 10, 1972, denied Amoco s petition, by a vote of three to two. In its opinion the Board stated in part: “After careful consideration of the proposed automobile filling station and the evidence concerning the need for a filling station at the proposed location, the Board finds that the subject petition is premature and that the petitioner has not been persuasive by a preponderance of the evidence of record that for the public convenience and service a need exists for the proposed automobile filling station for service to the present population in the general neighborhood considering the present availability of such uses to that neighborhood.” Amoco appealed the Board’s order denying its petition to the Circuit Court for Montgomery Cóunty. After a hearing, Judge Fairbanks filed a written opinion on April 2, 1973, indicating that the Board’s action was not arbitrary or capricious, but was fairly debatable.

He, therefore, passed ³⁰⁷ an order affirming the Board’s action. From this order of April 2,1973, Amoco perfected a timely appeal to this Court. The applicable statutory provisions giving the Board power to grant a special exception for an automobile filling station are presently codified as Sections 59-123, 59-124 and 59-131 of the Montgomery County Code, 1972, as amended. .Section 59-123 contains general requirements and standards which must be met by all requests for special exceptions. It provides: “Sec. 59-123.

Prerequisites to granting. “(a) A special exception may be granted when the Board, or the Director, as the case may be, finds from a preponderance of the evidence of record that the proposed use: “(1) Will be consistent with the general plan for the physical development of the district including any master plan or portion thereof adopted by the Commission; “(2) Will be in harmony with the general character of the neighborhood considering population density, design, scale and bulk of any proposed new structures, intensity and character of activity, traffic and parking conditions, and number of similar uses; “(3) Will not be detrimental to the use, peaceful enjoyment, economic value, or development of surrounding properties or the general neighborhood; and will cause no objectionable noise, vibrations, fumes, odors, dust, glare or physical activity; “(4) Will have no detrimental effect on vehicular or pedestrian traffic; “(5) Will not adversely affect the health, safety, security, morals, or general welfare of residents, visitors, or workers in the area; “(6) Will not, in conjunction with existing development in the area and development ³⁰⁸ permitted under existing zoning, overburden existing public services and facilities, including schools, police and fire protection, water, sanitary sewer, public roads, storm drainage, and other public improvements; and “(7) Meets the definition and specific standards set forth elsewhere in this ordinance for such particular use. “(b) The applicant for a special exception shall have the burden of proof which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the Board or the Director.” Additional terms and conditions are contained in Section 59-124, which provides in pertinent part: “Sec. 59-124. Additional terms and conditions. “(a) The Board, or the Director, when