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

HOLLANDER, Judge. This case concerns the procedural effect of an automatic statutory denial that followed a decision of the Prince George’s County Zoning Hearing Examiner (“the Examiner”). Brandywine Enterprises, Inc. (“Brandywine”), 1 appellee, sought a special exception to perform sand and gravel mining in Prince George’s County. Following a public hearing, the Examiner recommended approval of the application, subject to certain enumerated conditions.

Unhappy with that result, a citizen who resided near the subject area sought review of the Examiner’s decision by the Prince George’s County Council, sitting as the District Council (“the Council”), appellant. ⁶⁰² When the Council failed to render a decision within the statutorily specified time, the “application/appeal” was denied by operation of law, pursuant to Prince George’s County Code (“P.G.”), § 27-132(d)(2)(1991). Thereafter, appellee sought review in the Circuit Court for Prince George’s County, which reversed. The Council has appealed that decision and presents the following contentions for our review: I. The scope of review by this court is limited to determining that the Council’s decision was fairly debatable and supported by substantial evidence.

II

The statutory denial is not arbitrary, capricious or discriminatory and was supported by substantial evidence. Factual Background The Brandywine property in issue consists of 75.44 acres, located approximately one mile southeast of the intersection of Aquasco Road (Md. Route 381) and Croom Road (Md. Route 382), in southern Prince George’s County (“the Property”). Predominately wooded, the Property is surrounded by farmland to the north and west, undeveloped woodlands and land that is surface mined to the east and south, and single family residences to the northeast. By grant of a 2.2 acre easement through the property of Phillip and Linda Hutton, the main portion of the Property is connected to Aquasco Road by a haul road.

The Property is Open Space (“O-S”) zoned land, 2 located within the area encompassed by the County’s Master Plan for Subregion VI, which was approved in 1973. The Master Plan recommends the removal of the vast sand and gravel deposits in southern Prince George’s County, before the land is developed. On November 14, 1989, Brandywine submitted an application for a special exception, seeking permission to use the Property for surface mining of sand and gravel. On June 11, ⁶⁰³ 1990, the Technical Staff of the Maryland-National Capital Park and Planning Commission (“Planning Commission”) issued a Technical Staff Report recommending approval of appellee’s application, subject to certain conditions.

At the conclusion of a public hearing on July 11, 1990, the Examiner remanded the case to the Prince George’s County Planning Board (“the Planning Board”), de novo, with instructions to amend appellee’s application to include the 2.2 acre easement area. On May 1, 1991, the Technical Staff of the Planning Commission again recommended approval of appellee’s amended application, subject to certain conditions, including those proposed by the Natural Resources Division of the Planning Commission in its July 1990 Environmental Impact Report. On June 6, 1991, the Planning Board held a hearing concerning appellee’s application, after which, on June 27, 1991, the Planning Board recommended denial of the application, in Resolution No. 91-202. The Resolution provided, in pertinent part: WHEREAS, after consideration of the Technical Staff Report and testimony of its regular meeting on June 6, 1991, the Prince George’s County Planning Board disagreed with the staff recommendation; and WHEREAS, the Planning Board recommendation is based on the following DETERMINATIONS: A. The traffic generated by this request will adversely affect the surrounding neighborhood due to the already dangerous situation posed by trucks on MD 381.

B. Limited sight distance at the intersection of MD 381 and MD 382 makes the introduction of an additional 300 truck trips on MD 381 a hazard to motorists and pedestrians traversing the intersection. C. The above traffic concerns are deemed to present such a potential for deleterious impact to the health, safety and welfare of present and future inhabitants of the neighborhood that a denial of the application is warranted. ⁶⁰⁴ Thereafter, a hearing was held on July 16, 1991 before the Examiner, at which opponents and proponents of the application testified. On September 22, 1992, the Examiner issued his decision, recommending approval of the application, subject to twenty-six conditions. A document entitled “Notice of Decision,” which was included with the Examiner’s opinion, stated, in pertinent part: On the 22nd day of September, 1992, the attached Decision of the Zoning Hearing Examiner in Case No. SE-3967 was filed with the District Council.

The Zoning Hearing Examiner’s decision shall become final SO calendar days after the above filing date unless: (1) Written appeal within SO days of the above date is filed * with the District Council by any person of record or by the People’s Zoning Counsel; or (2) The District Council directs the case to be transmitted to the Council for final disposition by the Council. The reverse side of the notice provided in pertinent part: INSTRUCTIONS FOR FILING I. Exceptions Taken to the Examiner’s Decision Shall be: a) In writing; b) Numbered in sequence; c) Specific as to the error(s) which are claimed to have been committed by the Examiner.... d) Specific as to those portions of the record, including the Hearing Examiner’s Decision, relied upon to support your allegation of error(s) committed by the Examiner II. Requests for Oral Argument: If you desire oral argument before the District Council, request must be made, in writing, at the time of filing your exception(s). ⁶⁰⁵ IV. When to File: Your request for oral argument and/or exceptions must be filed within 30 days after the Examiner’s Decision has been filed with the District Council.

(Italics added; underlining in original). On January 26, 1993, pursuant to P.G. § 27-131, “exceptions” to the Examiner’s decision were noted by Raymond Richards, a resident of Subregion IV. Upon consideration of the exceptions, the Council again remanded the case, de novo, to the Technical Staff for the limited issue of revising the inventory as required under P.G. § 27-410(a)(8). 3 After appellee submitted a revised Traffic Impact Report on the basis of the new inventory, another evidentiary hearing was held before the Examiner on January 5,1994. On February 1, 1994, the Examiner issued another opinion, again recommending approval of the application, subject to the same twenty-six conditions.

In the opinion, the Examiner summarized, at length, the testimony of the many witnesses who appeared in opposition to appellee’s application. The Examiner also relied on the preliminary revised master plan for Subregion VI, which reaffirmed the 1973 policy in favor of extracting natural resources from southern Prince George’s County. It provides, in pertinent part: Because sand and gravel are economically important to the County, because they are finite, because the County is the leading resource area in Maryland, and because once these ⁶⁰⁶ sites are developed extraction is permanently precluded, it is recommended that sand and gravel extraction be given priority over more permanent land uses for the immediate future. In recommending approval of appellee’s request for a special exception, the Examiner concluded: The testimony in the instant case is similar to the testimony which is present in most sand and gravel requests.

The case is not unique. All such operations have trucks traveling the roads to and from the mining site and utilize excavation equipment on site. All sand and gravel operations use substantially the same amount and type of equipment and have dust and exhaust that become airborne. The applicant has shown that all potential pollutants are within the accepted governmental standards—even for particularly sensitive individuals.

The complaints made by the opposition show no adverse effect upon the neighborhood—the area has been consistently used for sand and gravel mining operations in the past; the existing traffic situation will not be overburdened by the operation; the hours of operation are limited to weekday business hours; the mining operation will operate within the state regulations for noise and state and national standards regarding dust and pollutants; the mining will not affect ground water levels nor pollute the ground water. Any disturbance by this special exception will be routine for sand and gravel mining operations which are permitted by special exception in all residential zones. There is no special characteristic of this neighborhood. Thus, we must follow the guidance of the Court of Special Appeals that unsupported conclusions of lay witnesses that a use would cause traffic problems or noise or pollution are not sufficient to make adverse findings as to those issues.

Mayor and City Council of Baltimore v. Bruce, 46 Md.App. 704 , 420 A.2d 1272 (1980). Opposition’s probative evidence of hazardousness at the intersection of Rts. 381 and 382 consists only of one picture taken south of the intersection that is advanced as showing a diminished sight distance from Rt. 382 north to the west on Rt. 381. ⁶⁰⁷ This photo is misleading and the remaining opposition photos, as well as applicant’s evidence, show that there is adequate sight distance in all directions at the intersection. Further, the evidence is quite clear that considering all the truck traffic on Rts. 381 and 382, both the routes and intersections studied by applicant and staff operate at more than adequate levels. The fact that children wait for school buses along Rt. 381 is no basis for considering the grant to this special exception as adverse to the neighborhood.

Children wait for school buses along numerous streets or roads in this County and State ... and have done so since the first rural school bus was put in service. There is nothing different or unique in this case. To say that trucks on the road at the same time create an adverse condition would mean that all trucks must be taken off all such highways, a ludicrous result____ The numerous conditions placed upon this operation have evolved over the years through the hearing process and are routinely placed upon or required of most all sand and gravel mining operations for the protection of the environment and community. A “Notice of Decision” was attached to the Examiner’s decision.

It provided, in pertinent part: On the 1st day of February, 1994, the attached Decision of the Zoning Hearing Examiner in Case No. SE-3967 was filed with the District Council. This is not the final decision, only the recommendation of the Hearing Examiner to the District Council. Within 30 calendar days after the above date, any person of record may file exceptions with the Clerk of the Council to any portion of this Decision, and may request oral argument thereon before the District Council. * In the event no exception or request for oral argument is filed with the Clerk of the Council within 30 calendar days from the above date, the District Council may act upon the application and must decide within 120 days or the case will be considered denied. ⁶⁰⁸ Subsequently, Mr. Richards again filed “exceptions” to the Examiner’s decision and, on April 25, 1994, the Council heard oral argument and took the matter under advisement. On May 9, 1994, a motion to approve the application did not pass, but a motion was approved to refer the application for preparation of an Order of Denial.

Nevertheless, the Council later failed to obtain the requisite number of votes required to pass the Order of Denial. Consequently, on July 1, 1994, the Council issued a “Notice of Denial,” which provided, in pertinent part, as follows: NOTICE OF DENIAL Pursuant to the provisions of Sec. 27-132(d)(2) of the Zoning Ordinance, a zoning matter shall be considered to have been denied if the District Council fails to render a final decision in accordance with the time limit and voting requirements. The above-referenced application!appeal appeared on the District Council’s agenda for final action on May 24, 1994; however, the Council was unable to,render a final decision. You are hereby notified that as of July 1, 1994, said application!appeal is denied by operation of the aforementioned provisions.

(Italics added). Appellee then sought review in the circuit court. Appellant asserted, inter alia, that the matter before the Council was the appeal of the Examiner’s decision, not the special exception application. Brandywine maintained, therefore, that the automatic statutory denial of the appeal operated to reinstate the Examiner’s decision.

In contrast, appellant argued that the failure of the Council to render a timely decision resulted ⁶⁰⁹ in a denial of the special exception application. By order dated May 18, 1995, the circuit court reversed the Council’s decision, finding “insufficient evidence in the record to render the Council’s decision fairly debatable____” The trial court did not address Brandywine’s argument that the Council’s inaction served to deny the appeal, rather than the special exception application. It remanded the case to the Council for further proceedings to approve the special exception, along with any conditions supported by the record. Discussion Appellant now argues that the scope of our review is limited to deciding if the Council’s decision to deny the special exception application “was fairly debatable and supported by evidence” in the record.

In spite of the lack of factual findings and the absence of a written decision explaining the basis for the statutory denial of the application, appellant claims that we must review the record and, if we find substantial evidence in the record to support the Council’s decision, we must affirm the Council. In contrast, appellee contends that the Council’s “summary denial of [appellee’s special exception application ], without any findings of fact or conclusions of law,” is inconsistent with the legislative policy in favor of approving special exceptions. In the alternative, appellee also asserts that “if anything was decided by the the non-decision of the District Council, it was the appeal of the Hearing Examiner’s decision, not the entire special exception application.” (Underlining in original). Therefore, appellee argues that the Examiner’s decision approving the special exception application was the final decision in this case.

At the outset, the precise question with which we are concerned is whether the Council denied the special exception application or the appeal from the Examiner’s decision. As we observed, the Council’s “Notice of Denial” stated that the “application/appeal” was denied by operation of law, because “the Council was unable to render a final decision” within the time provided by P.G. § 27-132(d). To the extent that the ⁶¹⁰ Notice said the “application/appeal” was denied, it was ambiguous. Based on the applicable statutory scheme, however, we believe that it was the appeal from the Examiner’s decision, rather than the special exception application, that constituted the zoning matter pending before the Council. 5 Consequently, the Council’s failure to render a timely decision constituted a denial of the appeal, but not a denial of the special exception application.

As a result, the denial of appellee’s appeal did not overrule the Examiner’s decision. To the contrary, the denial of the appeal had the effect of sustaining the Examiner’s decision approving the special exception. We explain. In Prince George’s County, the application procedure for special exceptions is governed by Article 27 of the Prince George’s County Code.

Pursuant to P.G. §§ 27-126 and 27-127(b), all applications receive a public hearing conducted by an Examiner, who is appointed by the Council. P.G. § 27-127(c) provides: After the conclusion of the hearing, the Zoning Hearing Examiner shall prepare and serve upon all persons of record a written decision containing specific findings of basic facts, conclusions of law, and either a recommended disposition of the case, or pursuant to Section 27-312, a final ⁶¹¹ decision. That decision shall be filed with the District Council at this same time. Further, P.G. § 27-312 provides, in pertinent part: (a) The Zoning Hearing Examiner shall have the authority to approve or deny an application for Special Exception ... in accordance with the following: (1) The Zoning Hearing Examiner shall have all the authority, discretion, and power given the District Council in this Part and in Part 3, Division 5, Subdivision 2, in the absence of a provision to the contrary.

(2) The Zoning Hearing Examiner’s decision on an application for Special Exception shall be final thirty (30) days after filing the written decision except: ■ (A) Where timely appeal has been made to the District Council pursuant to 27-131; (C) In any case where, within thirty (30) days after receipt of the Zoning Hearing Examiner’s decision, the District Council, upon its own motion and by a majority vote of the full Council, elects to make the final decision on the case itself____ 6 (Italics added). Appeals from the Examiner’s decision are governed by P.G. § 27-131. That section provides, in pertinent part: (a) Authorization (1) Within thirty (30) days after the Hearing Examiner files his written decision in a zoning case, any person of record or the People’s Zoning Council may file with the District Council: ⁶¹² (A) An appeal from, the Zoning Hearing Examiner’s decision in a special exception case finally decided by the Zoning Hearing Examiner. (B) Exceptions to the Zoning Hearing Examiner’s decision in any other zoning case....

(c) Time for Council Action (1) The District Council shall consider the exception or appeal at the time it takes final action on the case.... (Italics added). The Prince George’s County Code further provides that, once an appeal is filed, the Council must render a decision on the zoning matter in a timely fashion. P.G. § 27-132(d) states, in pertinent part: (d) Time limits on final action (2) If the District Council fails to render a final decision in accordance with the time limit and voting requirements of this Section, the zoning matter shall be considered to have been denied,