Brandywine Enterprises, Inc. v. County Council for Prince George's County

EYLER, Judge. The issue presented by this appeal is whether the denial of a special exception by the County Council for Prince George’s County sitting as the District Council (District Council), appellee, was arbitrary, capricious, and illegal. Brandywine Enterprises, Inc., appellant, is the applicant, and Mattaponi Basin Citizens Association, Clark Aist, Mary Murphy, Joel Proctor, and Dorothy Proctor, appellees, are opponents. Facts Appellant is the owner of approximately 450 acres of land zoned O-S, located on the south side of Cross Road Trail approximately one mile east of its intersection with Md. Route 301.

Approximately 177 acres currently are utilized as a rubble fill approved by the District Council as a special exception on November 24,1988, and valid through November 24, 1999. That special exception in turn constituted an extension and continuation of a special exception for the operation of a rubble fill previously granted. Although the record contains some discrepancy regarding the date a special exception first was issued for the operation of a rubble fill on any portion of the 450 acre tract, it appears that appellant has ⁵²⁸ been operating a rubble fill on the tract since at least 1982. 1 At the time of the administrative hearings below, most of the 450 acre tract had been used for sand and gravel mining. In addition, the 177 acre rubble fill included a closed section 2 and an active and operating section.

On April 2, 1993, appellant filed an application for a special exception for extension of its rubble fill operation onto 274 acres, immediately adjacent to the existing rubble fill, and intended to begin operating after the fill of the existing rubble fill is completed. After analysis of the Application, the technical staff of the Maryland-National Capital Park & Planning Commission (M-NCPPC) issued its technical staff report on July 26, 1993. The technical staff recommended denial on the basis that appellant had failed to meet its burden of proof with regard to various issues, and expressed particular concern with respect to the impact on neighboring residential properties “surrounded” by the proposed rubble fill. Subsequently, appellant amended its application (Application) to reduce the acreage from 274 acres to 118 acres (Subject Property).

According to appellant, the reduction of acreage was in response to the technical staffs concern about the impact of the rubble fill on the neighboring residential properties. A new technical staff report was issued on January 5, 1994, recommending approval subject to certain conditions. One of the conditions was that “[t]his use shall not commence until [the existing rubble fill approved as a special exception on Nov. 24, 1988] has been completed and closed out in accordance with all applicable State and County laws.” On February 24,1994, the ⁵²⁹ Prince George’s County Planning Board of the M-NCPPC adopted the technical staffs recommendation of approval, subject to the recommended conditions. On March 3, 4, and 23, 1994, the zoning hearing examiner held hearings on the Application.

On April 1, 1994, the hearing examiner issued his decision denying the Application based upon an inadequate showing of “need” based on projected growth in the County as required by § 27-406(g) & (h) of the zoning ordinance, plus the unique impact of odor, noise, dust, and views on adjacent residential properties. Appellant filed exceptions to the hearing examiner’s decision on April 21, 1994. The District Council, on May 24, 1994, remanded the Application to the hearing examiner to take additional evidence limited to “(a) the finding required by § 27-406(g) & (h), [of the zoning ordinance], including a study and an analysis of the study by the Technical Staff, (b) the necessity of mounding, and (c) the impact of mounding on the stormwater management system in this area.” In response, the Natural Resources Division of M-NCPPC prepared a Rubble Fill Needs and Mounding Impact Study, which was transmitted to the hearing examiner on January 9, 1995. On January 11, February 3, and February 15,1995, the hearing examiner held hearings to take evidence in accordance with the purpose of remand.

The hearing examiner filed his decision on April 11, 1995, stating that the evidence could support a finding of need, but denying the Application because of the unique adverse impact on the adjacent properties. Appellant filed exceptions to this decision on May 10, 1995. On October 10, 1995, following oral argument on October 2, the District Council issued an order denying the Application. Appellant subsequently appealed to the Circuit Court for Prince George’s County, which, after argument, by written order dated July 26, 1996, affirmed the District Council’s order of denial.

This appeal followed. Standard of Review The standards for judicial review of the grant or denial of a special exception use were most thoroughly set ⁵³⁰ forth by the Court of Appeals in the modern seminal case of Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981). As noted in that case, [t]he 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 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. 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 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 use is arbitrary, capricious, and illegal. Id. at 11 , 432 A.2d 1319 (emphasis in original). The Court more particularly held that the appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are ⁵³¹ facts and circumstances that show that the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone.

Id. at 22-23 , 432 A.2d 1319 . Stated somewhat differently, “where the facts and circumstances indicate that the particular special exception use and location proposed would cause an adverse effect upon adjoining and surrounding properties unique and different, in kind or degree, than that inherently associated with such a use regardless of its location within the zone, the application should be denied.” Board of County Comm’rs v. Holbrook, 314 Md. 210, 217-18 , 550 A.2d 664 (1988). See also Mossburg v. Montgomery County, 107 Md. App. 1, 8-9 , 666 A.2d 1253 (1995), cert. denied sub nom., Twin Lakes Citizens v. Mossburg, 341 Md. 649 , 672 A.2d 623 (1996). “Furthermore, if the evidence makes the issue of harm fairly debatable, the matter is one for the Board’s decision, and should not be second-guessed by an appellate court.” Id. at 218, 550 A.2d 664 . Discussion Appellant filed its Application for a special exception pursuant to § 27-406 of the Zoning Ordinance of Prince George’s County (1995).

That section provides in part as follows: (a) A sanitary landfill or rubble fill may be permitted as a temporary Special Exception. (b) The District Council shall determine the period of time for which the Special Exception is valid. (e) The Technical Staff Report prepared in response to the application shall include a current, Countywide inventory of the locations, dates of approval, and conditions of approval concerning haul routes and estimated loads per day for all approved and pending Special Exceptions for sand and gravel wet-processing, sanitary landfills and rubble fills, and surface mining, as indicated by the record in the case. The inventory shall also include the locations of ⁵³² all nonconforming sand and gravel wet-processing, sanitary landfills and rubble fills, and surface milling operations throughout the County that were certified after September 6,1974.

(f) In reviewing the application for compliance with the required findings set forth in Sections 27-317(a)(4) and 27-317(a)(5), the District Council shall consider the inventory required in Section 27-406(e). (g) The Technical Staff Report prepared in response to an application for a rubble fill shall include an analysis of need based on the most current available projections of residential and employment growth in Prince George’s County over a fifteen-year period. The District Council shall consider this analysis when determining compliance with the finding required in Subsection (h), below, and when determining the period of time for which the Special Exceptions is valid. (h) When approving a Special Exception for a rubble fill, the District Council shall find that the proposed use is necessary to serve the projected growth in Prince George’s County.

Section 27-317 of the same Ordinance sets forth the findings that must be made by the District Council in order to approve an application for a special exception. That section provides as follows: (a) A Special Exception may be approved if: (1) The proposed use and site plan are in harmony with the purpose of this Subtitle; (2) The proposed use is in conformance with all the applicable requirements and regulations of this Subtitle; (3) The proposed use will not substantially impair the integrity of any validly approved Master Plan or Functional Master Plan, or, in the absence of a Master Plan or Functional Master Plan, the General Plan; (4) The proposed use will not adversely affect the health, safety, or welfare of residents or workers in the area; ⁵³³ (5) The proposed use will not be detrimental to the use or development of adjacent properties or the general neighborhood; and (6) The proposed site plan is in conformance with an approved Tree Conservation Plan. One of the required findings pursuant to § 27-317 is that the proposed use and site plan be in harmony with the purpose of the Zoning Ordinance. § 27-317(a)(l). The purpose of the Zoning Ordinance is set forth in § 27-102(a), which provides as follows: (a) The purposes of the Zoning Ordinance are: (1) To protect and promote the health, safety, morals, comfort, convenience, and welfare of the present and future inhabitants of the County; (2) To implement the General Plan, Area Master Plans, and Functional Master Plans; (3) To promote the conservation, creation, and expansion of communities that will be developed with adequate public facilities and services; (4) To guide the orderly growth and development of the County, while recognizing the needs of agriculture, housing, industry, and business; (5) To provide adequate light, air, and privacy; (6) To promote the most beneficial relationship between the uses of land and buildings and protect landowners from adverse impacts of adjoining development; (7) To protect the County from fire, flood, panic, and other dangers; (8) To provide sound, sanitary housing in a suitable and health living environment within the economic reach of all County residents; (9) To encourage economic development activities that provide desirable employment and a broad, protected tax base; (10) To prevent the overcrowding of land; ⁵³⁴ (11) To lessen the danger and congestion of traffic on the streets, and to insure the continued usefulness of all elements of the transportation system for their planned functions; (12) To insure the social and economic stability of all parts of the County; (13) To protect against undue noise, and air and water pollution, and to encourage the preservation of stream valleys, steep slopes, lands of natural beauty, dense forests, scenic vistas, and other similar features; (14) To provide open space to protect scenic beauty and natural features of the County, as well as to provide recreational spáce; and (15) To protect and conserve the agricultural industry and natural resources.

The bistrict Council must find that the special exception would comply with the above provisions contained in the Prince George’s County Code. Such provisions, however are “subject to the limitation that the adverse effects must be greater than or above and beyond the effects normally inherent with such a use anywhere within the relevant zones in the regional district,” or, in this case, within the O-S zones of Prince George’s County. Mossburg, 107 Md.App. at 21 , 666 A.2d 1253 . The District Council denied appellant’s Application based upon its review of the entire record and for reasons stated in the findings and conclusions of law of the zoning hearing examiner.

In addition, the District Council enumerated a number of additional findings and conclusions, most of which appellant challenges. Of particular significance are the District Council’s reliance upon Moseman v. County Council, 99 Md.App. 258 , 636 A.2d 499 , cert. denied, 335 Md. 229 , 643 A.2d 383 (1994), and the