Anderson v. Sawyer

Davidson, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Baltimore County, reversing a decision of the Baltimore County Board of Appeals (Board) which had denied a special exception for the construction of a funeral home on land zoned for residential use. We shall affirm the order of the Circuit Court requiring the grant of the Special exception. The record shows that the subject property lies in a block bounded by Merritt Boulevard on the South, Merritt Avenue on the west, Sunberry Road on the north, and Meadow Lane on the east. 1 (See location plan, Exhibit 2, attached hereto.) The parcel, consisting of 1.5 + acres of land, is ⁶¹⁴ comprised of five separate lots, three of which front on Merritt Boulevard and two of which front on Sunberry Road.

It is zoned D.R.-5.5 (Density-Residential, 5.5 dwellings per acre). 2 The two easternmost lots fronting on Merritt Boulevard are developed with single-family homes. The remainder of the tract is undeveloped. On the east and on the north the subject property is bounded by D.R.-5.5 land upon which single-family houses, ranging in price from $30,000 to $50,000, are located. On the west the site is adjoined by land, zoned B.R. in a C.N.S. district (Commercial, neighborhood shopping).

That portion of the B.R. zoned land, abutting the subject property, which fronts on Sunberry Road contains a union hall used by union members for meetings and social events. A commercial enterprise, Harold’s Bar, is located on that portion of the B.R. zoned land fronting on Merritt Boulevard. On the north and across Sunberry Road the subject property confronts land zoned D.R.-5.5 which is developed with single-family houses. Lying between these houses on the north side of Sunberry Road and Merritt Avenue on the west there is a used car lot.

On the south and across Merritt Boulevard the subject property faces D.R.-5.5 zoned land upon which the Dundalk Presbyterian Church is located. Merritt Boulevard is a main traffic artery with a speed limit of 45 miles per hour. The section of that road which adjoins the subject property consists of five lanes — three westbound and two eastbound — divided by a median strip. The westbound lane of Merritt Boulevard which immediately adjoins the subject property is a deceleration lane which begins at the easternmost edge of the subject property and ultimately becomes a right-hand turn onto Merritt Avenue.

Harold’s. Bar has two driveways onto the deceleration lane. The existing residences located on the easternmost portion of the subject property also have driveways which lead directly onto the deceleration lane. Sunberry Road is a 30 foot-wide residential street with parking permitted on both sides. ⁶¹⁵ The application for a special exception was filed with the Zoning Commissioner (Commissioner) who, after a hearing, granted the application.

The development plan approved by the Commissioner called for the construction of a Colonial-style funeral home, consisting of one-story plus a basement, to be located on the Merritt Boulevard portion of the subject-property, and an off-street parking lot for 73 cars to be situated on the Sunberry Road portion of the property. Access to the property was to be limited to a single entrance on Merritt Avenue, located as near to the eastern border of the subject property as possible. Egress was to be limited to a single exit on Sunberry Road, located as close to the westernmost boundary of the subject property as possible. All exiting vehicles were to be required to turn left onto Sunberry Road.

At the hearing on appeal to the Board much testimony was presented to show that the grant of the special exception satisfied all of the requirements of the Baltimore County Zoning Regulations. 3 In opposition, the protestants, ⁶¹⁶ neighboring landowners, presented testimony intended to show that the grant of the requested special exception would tend to create congestion on neighboring roads and streets and would, in other respects, be detrimental to the health, safety and general welfare of the locality involved. According to them, the entrance on the Merritt Boulevard deceleration lane was unsafe; the proposed use would create traffic congestion on Sunberry Road and would generally increase the amount of traffic moving throughout the residential community. Moreover, they alleged that the proposed use would create a wedge for future commercialization, and would have a depressing psychological effect that would interfere with the enjoyment of the adjoining properties, make them less saleable, and prevent them from appreciating in value as much as other homes in the area. In its opinion denying the requested special exception, the Board said: “The Board finds that this is a very close case to decide, but believes the greater weight of testimony in evidence is with the protestants.

The Board believes the granting of the special exception will create traffic problems on Sunberry Road and will, in fact, be detrimental otherwise to the general welfare of the locality involved, and therefore, will deny the requested petition for a special exception for a funeral home.” The applicable standards for judicial review of the grant or denial of a special exception have been frequently expressed by the Court of Appeals. Turner v. Hammond, 270 Md. 41, 54-55 , 310 A. 2d 543, 550-51 (1973); Cason v. Bd. of Co. Comm’rs, 261 Md. 699, 707 , 276 A. 2d 661, 665 (1971); Rockville Fuel v. Bd. of Appeals, 257 Md. 183, 187-88 , 262 A. 2d 499, 502 (1970); Montgomery County v. Merland’s Club, ⁶¹⁷ Inc., 202 Md. 279, 287 , 96 A. 2d 261, 264 (1953). The conditional use or special exception 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 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 his use meets the prescribed standards and requirements, he does not have the burden of establishing affirmatively that his proposed use would be a benefit to the community. Rockville Fuel, supra, at 257 Md. 191 , 262 A. 2d 503 . 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 of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the Board to decide. But if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an application for a special exception is arbitrary, capricious and illegal. The case before us falls within the latter category.

Here, in order to deny the right of the property owner to enjoy the requested special exception, the Board needed before it probative evidence that the proposed use would, in fact, create traffic congestion on Sunberry Road, and would, in fact, be detrimental otherwise to the general welfare of ⁶¹⁸ the locality involved. In this case there was no such probative evidence presented. In reviewing the evidence before the Board it must be noted that the opinion or conclusion of an expert or lay witness is of no greater probative value than that warranted by the soundness of his underlying reasons and facts. Surkovich v. Doub, 258 Md. 263, 272 , 265 A. 2d 447, 451 (1970); Creswell v. Baltimore Aviation, 257 Md. 712, 721 , 264 A. 2d 838, 843 (1970); Westview Park v. Hayes, 256 Md. 575, 581-82 , 261 A. 2d 164, 167 (1970); Miller v. Abrahams, 239 Md. 263, 273 , 211 A. 2d 309, 314 (1965).

Thus, unsupp rted conclusions of witnesses to the effect that a proposed use will or will not result in harm amount to nothing more than vague and generalized expressions of opinion which are lacking in probative value. Rockville Fuel, supra, at 257 Md. 193 , 262 A. 2d 504 -05. A qualified traffic expert, presented by the applicant, testified with respect to the traffic impact which the proposed use would have upon Sunberry Road. His opinion was based upon a study of the traffic to be generated by the proposed use and the traffic conditions then existing upon Sunberry Road.

He testified that in his opinion Sunberry Road could comfortably and safely accommodate the volume of traffic to be generated by the proposed use. In contrast, the only expert testimony presented to the contrary was that of Eugene J. Clifford, director of traffic engineering for Baltimore County. He stated that, although he had not made a study of traffic at the location of the proposed special exception, he had reviewed the proposal and had “checked over the roads and the property.” In essence, his testimony regarding Sunberry Road consisted of a statement that it is undesirable, to increase traffic on a 30-foot-wide road in a residential neighborhood in which parking is permitted on both sides of the street. In addition, several nearby residents testified that the grant of the special exception would result in traffic congestion on Sunberry Road.

Thus, the testimony presented by the protestants neither contradicts nor rebuts that of the appellant’s qualified traffic expert to the effect that Sunberry Road is capable of absorbing the increase in traffic which the proposed use would generate. There are no facts provided by either the expert or the laymen to support ⁶¹⁹ the conclusion that increased traffic on Sunberry Road is “undesirable” or that traffic congestion will, in fact, result from the increase in traffic to be generated by the proposed use. Consequently, the testimony presented to the Board to show that the grant of the requested special exception would result in traffic congestion on Sunberry Road was totally devoid of probative value, and was, in effect, no evidence at all. The testimony presented to show that the grant of the special exception would otherwise be detrimental to the general welfare of the locality involved is similarly lacking in probative force.

The applicant presented the testimony of a qualified traffic expert who opined that the entrance on Merritt Boulevard was safe. He.pointed out that both the State Roads Commission and the Department of Traffic Engineering in Baltimore County have approved the location of the proposed entrance. The only evidence presented to the contrary was that of Mr. Clifford who testified that it is generally undesirable to have driveways leading directly onto deceleration right-turning lanes. More specifically, he stated: “Any driveway located at a right-turning lane is undesirable, of course, and any change in the land use at a site like this is bound to increase the traffic generated by the site. “So if the driveway is undesirable, an increased use of it becomes even more undesirable.” In support of his conclusion that driveways leading onto deceleration lanes for right-hand turns were unsafe, he stated: “Vehicles attempting to make right turns are usually intent on the maneuver, and people usually suddenly slow down to make a right turn at some point other than the intersection proper, represents an accident possibility. “People who are attempting to enter from a private driveway are not usually expected by the person on the main highway to turn into a side road ⁶²⁰ by way of these deceleration lanes, and the ability of a driver to exit at a point like that, and accelerate enough to get free of a free-moving vehicle, is very difficult, — plus the fact that somebody exiting from one of these private driveways, conceivably would attempt to go completely across in this case, the first half of Merritt Boulevard, to merge in a left turn into Peninsula Expressway, which I find is completely undesirable.” A careful analysis of Mr. Clifford’s testimony reveals its inherent deficiencies.

The reasons he offers in support of his conclusion that an access on Merritt Boulevard will increase the potential for accidents all relate to conditions which would arise if vehicles exited from the subject property onto the deceleration lane. The record, however, shows that the proposed access on Merritt Boulevard is to be restricted to use by vehicles entering onto the subject property. Moreover, the entrance is to be located at the easternmost boundary of the site near the beginning of the deceleration lane, thus minimizing the accident potential for cars entering the property. Mr. Clifford’s failure to take these facts into account leaves his conclusion that an access onto Merritt Boulevard will increase the potential for accidents totally unsupported by reasons.

More importantly, his opinion is unsupported by any specific facts which would lead to the conclusion that, given the traffic conditions then existing on Merritt Boulevard and the traffic which would be generated by the requested special exception, the use of a proposed