Attar v. DMS Tollgate, LLC

Hotten, J. In October 2012, William and Mary Groff, the property owners, and Respondent, DMS Tollgate, LLC (collectively “Applicants”) applied for a Petition for a Special Exception of the Baltimore County Zoning Regulations (“BCZR”), to operate a fuel service station with a convenience store containing a sales area larger than 1,500 square feet. The petition requested that Tollgate be permitted to construct a Wawa on an 8.51 acre property known as 10609 Reisterstown Road (“the property”). The property is zoned as BL-AS, or Business Local with Automotive Services. 1 The property is bordered by Reis-terstown Road, Groff Lane, and the Gwynns Falls stream. The Office of Administrative Hearings (“OAH”) conducted a hearing in which the Applicants appeared in support of the ²⁷⁷ grant of the Special Exception.

Petitioners in this Court, Afshin Attar, Ashkan Rahmanattar, Malik Imran, and Perry S. Crowl (collectively “Protestants”) attended in opposition. Witnesses for the Protestants testified at the hearing as to how the proposed Wawa would cause traffic congestion, a harmful environmental impact, and a detrimental effect upon the economic stability of the neighborhood. In its Opinion and Order dated October 31, 2013, OAH found that “these are impacts that are inherent in the operation of a gasoline/convenience store[,]” and granted the Petition with conditions. 2 The Protestants appealed to the Board of Appeals for Baltimore County (“the Board”), which approved the conditions for the Special Exception after a de novo evidentiary hearing. The Board noted that Tollgate ²⁷⁸ decided to proceed with the request for a Special Exception before receiving County approval for the proposed road relocation and approval for the flood plain relocation from [the Federal Emergency Management Agency].

Under the BCZR this approach is not prohibited and therefore the grant of a Special Exception has no bearing on the approval o[r] non-approval of the foregoing matters. The Board granted the Special Exception “with the same conditions as those imposed by the Administrative Law Judge below.” The Protestants appealed for judicial review in the Circuit Court for Baltimore County. The circuit court found that the Board’s findings: “were both reasonable and supported by substantial evidence in the record[]” and “were premised upon the proper application and conclusions of law[.]” The circuit court accordingly affirmed the decision of the Board on December 19, 2014. Thereafter, the Protestants appealed to the Court of Special Appeals.

In an unreported opinion dated December 28, 2015, the Court of Special Appeals affirmed the decision of the circuit court. We granted the Petition for Writ of Certiorari filed by the Protestants. 447 Md. 297 , 185 A.3d 416 (2016). Protestants present two questions for our review: 1. Whether Maryland’s special exception jurisprudence requires the Baltimore County Board of Appeals to define the boundaries of the neighborhood of the proposed special exception before approving that special exception and, if so, whether the Board of Appeals’ opinion satisfied Maryland’s minimum requirements for articulating the facts found regarding the neighborhood’s boundaries. 2.

Whether the Court of Special Appeals erred when it held that the Applicant met its burden of proof, as articulated by the concurring opinion in People’s Counsel for Baltimore County, et al. v. Loyola College in Maryland, 406 Md. 54 , [ 956 A.2d 166 ] (2008). We conclude that the Board’s description of the neighborhood impacted by the special exception was precise enough to enable a party or appellate court to comprehend the area that the Board considered. ²⁷⁹ Secondly, we conclude that while an applicant for a special exception bears both the burden of persuasion and production, the coexistent presumption in favor of an applicant is not a mutually exclusive evidentiary burden. The Board correctly determined that the Protestants failed to sufficiently rebut the presumption of validity of a special exception. Accordingly, we affirm the judgment of the Court of Special Appeals.

Standard of Review An appellate court reviews the decision of an administrative agency “under the same statutory standards as the [circuit [c]ourt,” meaning “we reevaluate the decision of the agency, not the decision of the lower court.” Gigeous v. Eastern Correctional Inst., 363 Md. 481, 495-96 , 769 A.2d 912, 921 (2001) (citation and footnote omitted). In reviewing the decision of an agency, our role “is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Md. State Police v. Warwick Supply & Equip. Co., Inc., 330 Md. 474, 494 , 624 A.2d 1238, 1248 (1993) (citation omitted).

Further, we may not substitute our judgment for that of the Board of Appeals unless the agency’s conclusions were not supported by substantial evidence or were premised on an error of law. Stansbury v. Jones, 372 Md. 172, 182, 184 , 812 A.2d 312, 318, 319 (2002). Discussion I. The Board’s Opinion Referenced Ample Evidence of Record Which Sufficiently Enables Us to Comprehend the Area the Board Considered. Thus, the Board Sufficiently Defined the Neighborhood.

The Protestants argue that the Board erred when it failed to define the boundaries of the Wawa’s neighborhood. In ²⁸⁰ support, Protestants urge that an applicant for a special exception must establish the boundaries of the neighborhood, and the zoning tribunal’s written decision must satisfy Maryland law’s minimum requirements for articulating the facts found regarding the neighborhood’s boundaries. Under BCZR § 502.1(A), a special exception use is prohibited if it is “detrimental to the health, safety or general welfare of the locality involved.” 3 In Schultz v. Pritts, we held that an applicant for a special exception “does not have the burden of 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 ... he has met his burden.” 291 Md. 1,11 , 432 A.2d 1319,1325 (1981).

We further held in Montgomery County v. Butler, “[t]he phrase ‘detriment to the neighborhood’ implies necessarily that the Board’s task is to determine if there is or likely will be a detriment to the surrounding properties.” 417 Md. 271, 305 , 9 A.3d 824, 844 (2010) (emphasis added). Thus, we held that, within the context of a special exception, the “neighborhood” means “the surrounding properties.” Id. See also Montgomery v. Bd. of Cty. Comm’rs for Prince George’s Cty., 263 Md. 1, 5 , 280 A.2d 901, 903 (1971) (holding that, in the rezoning context, “[t]he concept of a neighborhood is a flexible one, and will vary according to the geographical location involved[.]”); Woodlawn Area Citizens Ass’n v. Bd. of Cty.

Comm’rs for Prince George’s Cty, 241 Md. 187, 198 , 216 A.2d 149, 156 (1966) (holding that, in the rezoning context, “what constitutes a neighborhood ... is not and should not be precisely and rigidly defined[.]”). In Alviani v. Dixon, we considered whether the Anne Arundel County Board of Appeals erred when it granted variances 4 to enable applicants to satisfy criteria for a special ²⁸¹ exception, regarding the construction of an automotive service station. 365 Md. 95 , 775 A.2d 1234 (2001). The protestants in Alviani specifically “allege[d] that the Board failed to properly define the relevant neighborhood that was considered when the Board found that the variances would not affect the neighborhood.” Id. at 117 , 775 A.2d at 1247 . We disagreed and found, “after examining the record, that the Board established the relevant neighborhood!!,]” as the Board’s description was “precise enough to enable a party or an appellate court to comprehend the area that the Board considered when deciding to grant the variances.” Id. at 117,119 , 775 A.2d at 1247,1248 .

Lucas v. People’s Counsel for Balt. Cty. involved a petition for a special exception for an “airport” zoning special exception on a farm zoned for agriculture, located within a National Historic District in Baltimore County. 147 Md.App. 209, 216-17 , 807 A.2d 1176, 1180 (2002), disapproved of on other grounds by People’s Counsel for Balt. Cty. v. Loyola Coll, in Md., 406 Md. 54 , 956 A.2d 166 (2008). In Lucas, the Honorable James A. Kenney, III employed the standard outlined in Alviani, and found that the Board’s definition of the relevant area was insufficient, as it relied on only amorphous descriptions of the area to be considered: The Board relied on testimony regarding the adverse effect of the airport on the “land around Helmore Farm,” on “the horse industry in the area,” on the “historical district,” and on “Greenspring Valley.” The Board’s definition of the relevant area does not provide the precision required for a ²⁸² party or an appellate court to comprehend the adversely affected area and to determine if the neighborhood reasonably constitutes the immediate environment of the subject property. 147 Md.App. at 241 , 807 A.2d at 1195 .

In accord with our precedent in Alviani, in conjunction •with the special exception jurisprudence reflected by Schultz, Butler, and Lucas, we hold that the description of the neighborhood impacted by the special exception must be precise enough to enable a party or appellate court to comprehend the area that the Board considered. Precision is determined through a review of the evidence in the record describing the impact on the surrounding properties, as referenced within the Board’s opinion. See also Critical Area Comm’n for Chesapeake & Atl. Coastal Bays v. Moreland, LLC, 418 Md. 111, 135 , 12 A.3d 1223, 1238 (2011) (holding that meaningful judicial review is possible when the Board summarizes substantial evidence in support of its findings).

In the case at bar, the Board’s opinion stated in relevant part: The [Applicants] offered into evidence the testimony of Ken Schmid, of Traffic Concepts, Inc,, who was admitted as an expert in the fields of Traffic Engineering and Transportation Planning. Mr. Schmid opined that the proposed use will not create congestion of the roads, streets or alleys in the area of the subject property. The proposed relocation of Groff Lane to create a four way signalized intersection, according to Mr. Schmid, will create a safer and more convenient pattern of traffic circulation for the subject property and the surrounding area. ⅝⅜* The [Applicants] called Mr. Rick Richardson, of Richardson Engineering, who was offered and accepted by the Board as an expert in the fields of civil engineering, zoning and development. [[Image here]] ²⁸³ Mr. Richardson testified that the proposed fuel service station is not ... located within a mile radius of any-abandoned fuel service station(s). *** The Protestants called to testify John Seitz, of Transportation Resource Group, Inc. who was accepted by the Board as an expert in the area of Traffic Engineering. Mr. Seitz testified that as a part of his investigation of the proposed use of the subject site he evaluated the potential truck turning radius for fuel delivery trucks entering the proposed site using a computer based traffic modeling program and determined that a fuel delivery truck attempting to turn into the proposed site would cause potential congestion and traffic difficulty of Groff Mill Road because of the wide turning angle required for such trucks. [[Image here]] The Protestants next called Andrew Miller, PhD who was admitted as an expert in hydrological studies.

Dr. Miller testified concerning the Flood Plain Study prepared by the [Applicants]. According to Dr. Miller the subject area contains a portion of the existing flood plain which will be filled in to facilitate construction of the site. The Board’s opinion references ample evidence of record for us to appreciate the area considered by the Board. The Board referenced testimony concerning the roads and intersections surrounding the subject property, including: Tollgate Road, Reisterstown Road, Groff Lane, and Reisterstown Road’s intersection with Owings Mills Boulevard.

The Board referenced testimony regarding the commercial development surrounding the property. In accordance with BCZR § 405.3, 5 the Board referenced testimony regarding an exhibit which depicted the five gas stations contained within a one-mile radius from the property. The Board referenced testimony regarding ²⁸⁴ the flood plain surrounding the property. Unlike in Lucas, there was ample evidence presented to the Board regarding the immediate environs of the proposed Wawa, which the Board referenced in its opinion.

Here, the evidence presented to the Board regarding the area impacted by the special exception, as referenced in the Board’s opinion, was precise enough to enable a party or appellate court to comprehend the area that the Board considered. Thus, we will not disturb the Board’s decision. The Protestants further contend that we require a delineation of the neighborhood in rezoning matters, and accordingly, this same requirement should be extended to apply in special exception cases. We disagree.

Rezoning cases are inapposite to our analysis because of the respective burdens in rezoning and special exception matters. We have stated that: [T]here is a strong presumption of the correctness of original zoning and comprehensive rezoning and that to sustain a piecemeal change therefrom there must be produced strong evidence of mistake in the original zoning and comprehensive rezoning and that to sustain a piecemeal change therefrom there must be produced strong evidence of mistake in the original zoning or else evidence of a change in conditions resulting in a substantial change in the character of the neighborhood. Heller v. Prince George’s Cty., 264 Md. 410, 412 , 286 A.2d 772, 773 (1972) (citation omitted); see also Border v. Grooms, 267 Md. 100, 110 , 297 A.2d 81, 86 (1972) (holding “that which reasonably constitutes the neighborhood of the subject property is one of the basic facts to be established by an applicant for rezoning, and because of its fundamental involvement in any case resting on a contention of a change in the character of the neighborhood it must be satisfactorily shown upon the record.”) (emphasis added). Given the heavy burden upon the party seeking a rezoning, and the strong presumption in favor of the original zoning, “some delineation of the general boundaries encom ²⁸⁵ passed” is an apt evidentiary element in the rezoning context.

Border, 267 Md. at 110 , 297 A.2d at 86 ; see also