Clark v. COUNTY BOARD OF MONTGOMERY COUNTY

Henderson, J., delivered the opinion of the Court. This appeal is from an order affirming the decision of the County Board of Appeals of Montgomery County granting a special exception in an R R Zone to Geneva Culver to use her home at 207 Patrick Henry Drive, Williamsburg Village, Olney, Maryland, as a beauty shop. The appellants appear to concede that a beauty shop, of the limited type here involved, qualifies as a home occupation. Montgomery County Code (1960), sec. 104-29 p^ provides: “In any residential zone the use of a dwelling for a home occupation, upon a finding by the board that such use will not constitute a nuisance because of sidewalk or street traffic, noise or type of physical activity, and that such use will not tend to affect adversely the use and development of adjoining properties in the immediate neighborhood.

Permission so to use such property for such home occupation may be granted by said board for a one-year period and may be renewed by the board at yearly intervals upon the same findings required for the initial grant of permission by said board. * * See also sec. 104-27. The appellants contend that the Board’s decision was invalid because the Board failed to make findings of fact and to state the grounds of its decision. See Montgomery County Code (1960) sec. 104-22 d. Cf.

Maryland Code (1963 Supp.), Art. 25A, sec. 5(U)(4). As the trial court remarked, the findings in the instant case “leave much to be desired.” The authorities indicate that a mere conclusion or finding of an ultimate fact will not suffice. Robey v. Schwab, 307 F. 2d 198 (C.A.D.C.) ; 2 Am. Jur. 2d Administrative Law § 451 et seq.; Note, 146 A.L.R. 209 .

However, we think the Board’s opinion was sufficient in this relatively simple case. The Board summarized the evidence on both sides, and noted that off-street parking was ³²³ available for five cars, no help, or special equipment except one-chair and a hair dryer, such as are to be found in many homes, would be employed, and only a three-inch sign would be displayed. It noted that most of the witnesses appearing in opposition agreed that there would be no nuisance created because of noise or traffic, and that many neighbors were in favor of the grant. The village is a quiet, residential community with substantial dwellings on rather large lots.

The home in question was found by the Board to be “in keeping with the other dwellings in the neighborhood,” and that no external changes were proposed, except to convert one window into a door. The appellants argue that the burden was upon the applicant to show by a preponderance of the testimony that there would be no nuisance, or adverse effect upon adjourning properties, citing Robertson v. Board of Appeals, 210 Md. 190 . That case, however, is distinguishable upon the facts. Cf.

Perry v. Board of Appeals, 211 Md. 294, 299 . It was an application for a large off-street parking lot in a residential zone adjacent to a shopping center on a tract zoned commercial. We held there was no evidence to meet the burden of establishing that there would be no nuisance. In the instant case we think there was substantial evidence to support the Board’s finding that there would be no nuisance or adverse effect.

The applicant testified that she could handle only about three or four customers per day, or some twenty-two customers a week. She had never had more than two cars there at a time, in some six months of operation prior to her application. None of this testimony was contradicted, and several witnesses testified there was no unusual flow of traffic, and there would be no adverse effect upon real estate values. The final point raised by the appellants gives us more concern.

Montgomery County Code (1960), sec. 104-22 d provides that “all actions or decisions of the board shall be taken by a resolution, in which at least three members must concur * * * and the full text of said resolution and record of members’ votes shall be incorporated in the minutes of said board.” Sec. 104-23 a(l) provides that before making its decision on any ³²⁴ petition for special