B.P. Oil, Inc. v. County Board of Appeals

Moylan, J., delivered the opinion of the Court. The case is one of zoning. The zone in question, situate in Montgomery County just northeast of Rockville, is 1-2 (heavy ⁵⁷⁷ and light industrial). In such a zone, a filling station is permitted by way of special exception.

B.P. Oil, Inc., (B.P.), Appellant, applied for such an exception. It was denied by the Appellee, the County Board of Appeals (the Board). B.P. appealed the decision to the Circuit Court for Montgomery County. In that court, Judge Joseph M. Mathias affirmed the decision of the Board.

From that affirmance, the present appeal to us is noted. The function of a zoning board is to exercise discretion (the discretion of experts in their particular field) in deciding matters brought before it. Heath v. Mayor and City Council of Baltimore, 187 Md. 296 , 49 A. 2d 799, 804 (1946). A reviewing court, at either the circuit level or the appellate level, will not substitute its judgment for that of the board when the board is acting in its discretionary range.

The granting or denying of a special exception will be affirmed unless the action of the board is shown to be arbitrary, capricious or illegal. Marino v. City of Baltimore, 215 Md. 206 , 137 A. 2d 198, 205 (1957); Brouillett v. Eudowood Shopping Plaza, Inc., 249 Md. 606 , 241 A. 2d 404, 405 (1968); Crowther, Inc. v. Johnson, 225 Md. 379 , 170 A. 2d 768, 770 (1961). In phrasing their arguments before us, both B.P. and the Board fail to get a firm handle on the allocation of the burdens of proof — both the production burden and the persuasion burden. B.P. particularly fails to distinguish between the quantity and quality of evidence which is legally sufficient to permit a result and that which is so clear, decisive and indisputable as to compel a result.

To obtain the special exception, B.P. was obliged to satisfy the Board in three respects. Under Section 59-123 of the Montgomery County Code, it was required to persuade the Board as to the existence of seven affirmative criteria. Section 59-123 (a) places the burden of proof squarely upon the applicant for the exception: “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: ...” (Emphasis supplied). ⁵⁷⁸ B.P. met its production burden by introducing legally sufficient evidence to satisfy each of the criteria. It went further and met its persuasion burden because the evidence which was legally sufficient to persuade actually did persuade.

The Board found for B.P. in this regard. B.P. successfully cleared yet a second hurdle. Under Section 59-131 of the Montgomery County Code, it was required to persuade the Board that three adverse consequences would not accrue. It met its production burden by introducting legally sufficient evidence to permit the Board so to find.

It went further and met its persuasion burden by convincing the Board so to find. The Appellant tripped, however, when it came to the third hurdle. Section 59-124 (f) of the Montgomery County Code requires the finding of a special need before a special exception may be granted for an automobile filling station: “In addition to the findings required in Sections 59-123 and 59-125 through 59-184,. the following special exceptions may be granted when the Board or director, as the case may be, finds from a preponderance of the evidence of record that for the public convenience and service a heed exists for the proposed use for service of the population in the general neighborhood considering the present availability of such uses to the neighborhood." (Emphasis supplied). The Board simply was not persuaded by a preponderance of the evidence that a need existed.

Was this failure to be persuaded arbitrary, capricious or illegal? Clearly not. B.P. appropriately looks to American Oil Co. v. Board of Appeals of Montgomery County, 270 Md. 301 , 310 A. 2d 796 (1973) as it sets out six criteria for a zoning body to use in evaluating the need for an automobile filling station. B.P. then details