County Council v. Potomac Electric Power Co.

Barnes, J., delivered the opinion of the Court. The question presented to us in this appeal is whether the judgment of the Circuit Court for Prince George’s County (Loveless, J.) dated February 24, 1971, was erroneous in reversing the action of the Board of County Commissioners for Prince George’s County, sitting as a District Council (District Council), in failing to grant to the Potomac Electric Power Company (Pepeo) a special exception under the zoning ordinance of Prince George’s County for the purpose of erecting and maintaining an electric substation on a 29.275 acre tract of land in College Park in Prince George's County adjacent to the present power lines of Pepeo. Section 28.330 of the applicable zoning ordinance provides that the applicant for the special exception for the erection and maintenance of the electric substation must show: “a. The proposed use at the location selected is necessary for public convenience and service and cannot be supplied with equal public convenience, if located elsewhere. ¹⁶¹ “b.

The proposed use at the location selected will not endanger the health and safety of workers and/or residents in the community and will not impair or prove detrimental to neighboring properties or the development of same.” The Circuit Court for Prince George’s County, as the reviewing court on appeal from a decision of the District Council, is given the power by § 59-85 (i) of the Code of Public Local Laws of Prince George’s County (1963 ed., Supp. 1967), as amended, to reverse or modify such decision if substantial rights of the petitioner on appeal may have been prejudiced because the findings, inferences, conclusions or decisions are “* * * (5) unsupported by competent, material and substantial evidence in view of the entire record as submitted, or (6) arbitrary or capricious.” (Emphasis supplied.) In Rockville Fuel & Feed Co., Inc. v. Board of Appeals of the City of Gaithersburg, 257 Md. 183 , 262 A. 2d 499 (1970), we held that the findings of the zoning board were unsupported by any probative evidence. Chief Judge Hammond aptly stated for the Court: “If the evidence makes the question of harm or disturbance or the question of the 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 at all 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 is arbitrary, capricious and illegal.” ( 257 Md. at 191 , 262 A. 2d at 504 .) We cited Rockville Fuel & Feed Co. with approval in the recent case of Cason v. Board of County Commissioners for Prince George’s County, 261 Md. 699, 707 , 276 A. 2d 661, 665 (1971). ¹⁶² See also Montgomery County Council v. Scrimgeour, 211 Md. 306 , 127 A. 2d 528 (1956); Montgomery County v. Merlands Club, Inc., 202 Md. 279 , 96 A. 2d 261 (1953). The present appeal comes to us in the unusual posture of a reversal of the failure of the District Council to grant the requested special exception because of a tie vote in the District Council.

One Commissioner abstained; Chairman Aluisi and Commissioner Baggett voted in favor of granting the special exception and Commissioners Francois and Spellman voted to deny it. Hence, the granting of the application for the special exception failed for want of a majority vote. The four Commissioners who voted gave statements concerning their respective votes. Judge Loveless, on appeal to the Circuit Court, found that Pepeo had established the need for the electric substation; that the criteria for the requested special exception had been clearly established by it; and that, in effect, there was no competent, material or substantial evidence to support a contention to the contrary.

Accordingly, as we have indicated, he directed that the application for the special exception be granted. We have concluded that the lower court was correct in its conclusion and will affirm the judgment. The appellants strenuously contend that there was sufficient evidence to make the issues before the District Council fairly debatable and hence, in accordance with our many prior decisions, the courts should not substitute their judgment for that of the District Council. Smith v. Board of County Commissioners of Howard County, 252 Md. 280 , 249 A. 2d 708 (1969) and cases therein cited.

If there were such sufficient evidence, the contention of the appellants would be correct; but, as we have seen, when there is no sufficient probative evidence, so that the issues are not fairly debatable, the action of the District Council is arbitrary and capricious and hence a denial of due process of law. In the instant case, apart from the constitutional issue, the statute itself, as we ¹⁶³ have observed, gives the Circuit Court upon appeal power to reverse the District Council if its findings are not supported by competent, material and substantial evidence in view of the whole record as submitted or if its findings are arbitrary or capricious. Inasmuch as the resolution of the issue in this appeal turns on a consideration of the facts presented to the District Council, we will consider those facts in some detail. Pepeo is a public utility corporation furnishing electric power to the residents of the Washington Metropolitan area which includes Prince George’s County.

This county has had a rapid increase in population during the past decade with a consequent rapid increase in the demand for electric power from Pepeo. In the past six years, in the general area, Pepco’s customers have increased by 53% and the use of electrical energy has increased by 169%. To meet these ever-increasing needs, Pepeo conducted studies to determine where a new substation should be located. Several possible sites were considered but were rejected for reasons later stated in this opinion.

Pepco’s officials concluded that the 29.275 acre tract adjacent to Pepco’s present power lines in College Park was the only suitable location meeting all of the requirements of the much needed facility. Accordingly, Pepeo, as contract purchaser, and the University of Maryland, as owner, filed its application for a special exception (No. 1760), dated June 10, 1968, and received by the District Council on June 17, 1968, for the 29.275 acre tract “on the east side of Pepco’s Takoma/Burtonville TL R/W, fronting on the north side of Metzerott Rd. approx. 2,000 feet easterly of the intersection of Metzerott and Adelphia Roads.” The land is located in an R-R (Rural Residential) zone. There were three hearings before the District Council in regard to the application. The first hearing was on July 17, 1968, at which Pepeo officials indicated that the proposed substation would occupy only nine acres of the ¹⁶⁴ 29.275 acre tract.

It was testified that the remaining land was required to screen the substation adequately from the properties of adjacent landowners. The Soil Conservation Service filed a letter with the District Council indicating that there would be no adverse effect on the adjoining property with respect to the stream which flows through the property. It was indicated also that Maryland-National Capital Park and Planning Commission (Park and Planning Commission) had approved the application subject to five conditions which were acceptable to Pepeo and that the Mayor and Council of College Park had recommended approval of the application subject to nine conditions in regard to noise, screening and other matters later mentioned in this opinion—all acceptable to Pepeo. Daniel C. Vaughan, Vice President, Electrical Engineering of Pepeo, testified in regard to the need for the proposed substation resulting from the population growth and substantial increase in the use of electric power already mentioned.

He stated that there were four outstanding factors to be considered in the selection of a site for the proposed facility: 1. The facility should be adjacent to the existing transmission lines so that Pepeo would not have to extend transmission lines out to the substation and back again. 2. It should be of sufficient size and proper shape to permit screening from adjacent properties. 3. It should be adjacent to dedicated roads. 4.

It should have natural screening either in the form of contours of the land or trees. The real estate department of Pepeo made a search for a site and found that the 29.275 acre tract was the only site which fulfilled all of the requirements in the area in which it is practicable to build a substation. Clifford W. Schmitz, Jr., Manager of the Civil and Substation Engineering Department of Pepeo, whose de ¹⁶⁵ partment had charge of the detailed design of the proposed substation, gave the details in regard to the proposed structures and indicated that all transformers would be completely enclosed with noise attenuating structures and that no radio or television interference would be caused by the operation of the substation, pointing out that one of the conditions of approval by the City of College Park—and accepted by Pepeo—was that the operation would not add to the noise level in the neighborhood. Alvin A. Turner, Assistant Manager of the Real Estate Department of Pepeo, testified that he had made a study in regard to possible effects on the values of adjacent properties from the installation and operation of the substation.

In his opinion, there would be no adverse effect upon such values, based upon studies by independent consultants and upon the effect of similar substations within the general tract. Melvin R. Chewning, the Manager of Pepco’s Real Estate Department who had been with Pepeo for 31 or 32 years, testified in regard to the consideration of other possible sites and stated why they would not be suitable for the proposed installation and that the 29.275 acre tract in College Park was the only suitable site. The opposition to the granting of the application came primarily from the College Park Woods Citizens Association. Its president, in testifying on behalf of the Association, recognized the need for the proposed facility but thought it should be located elsewhere.

He stated that the Park and Planning Commission had seriously considered recommending to the District Council that the hearing be postponed until the Technical Staff of the Park and Planning Commission could, with the Pepeo officials, evaluate possible sites to ascertain whether the substation could be located somewhere else. Dr. J. Neil Birch, an Electrical Engineer and a member of the faculty of Catholic University of America, who is employed by Magnavox Corporation and is a resi ¹⁶⁶ dent and property owner in College Park Woods, testified that he thought alternative sites could be used for the substation; that operation of the proposed substation “could in the future cause us great difficulties”; and that the District Council should allow the Park and Planning Commission to conduct a thorough alternative survey, indicating that he was highly confident that it would result in its recommendation of an alternate site. Mr. Vaughan, in rebuttal, testified that, in his opinion, Dr. Birch was not “familiar with the requirements as far as getting transmission lines away from these sites to the distribution substations.” The District Council denied the application stating that the applicant had not proved “beyond any reasonable doubt” that the substation could not be located elsewhere, but made no findings of fact or conclusions of law as required by Section 59-104 of the Prince George’s County Code of Public Local Laws. Pepeo took an appeal from this decision of the District Council to the Circuit Court.

Judge Loveless, on February 17, 1969, remanded the case to the District Council with instructions to make basic findings of fact and conclusions of law as required by Section 59-104 and suggested to the District Council that the Park and Planning Commission might investigate alternative sites and report to the District Council as recommended by those opposing the granting of the application. Thereafter, the District Council did request the Park and Planning Commission to make the study suggested by the Circuit Court. After making the study, the Park and Planning Commission, on April 30, 1969, filed its comprehensive report. In the Report, the engineering and economic criteria used were listed as follows: “1. that it be located adjacent to the main (230 KV) power line from which its supply is obtained ; “2. that it be central to the area it is to serve; ¹⁶⁷ “3. that it be reasonably adjacent to a 69KV distribution system; “4. that it be adjacent to a good road to enable the necessary heavy equipment to be moved in and replaced by truck.” It was further stated in the Report that the outer limit of the Pepeo franchise area was approximately the line of the proposed outer Beltway.

Four possible sites were considered in the Report. They were: Site A—North of Sellman Road. Site A is a 15 acre triangle bounded on the west by the main transmission line of Pepeo and on the south by Sellman Road. Unless site A were substantially enlarged by acquiring a nursery and private dwellings immediately to the east, the site would be too small for other than the transformer station itself.

Farther to the east is park land owned by the Park and Planning Commission. The close proximity of dwellings would require intensive screening to insure compatibility. Screening would be difficult because of the elevation of the site. Sellman Road provides direct road access to the site but is not built for heavy traffic.

The site being north of the beltway, expensive tunnelling would be required to bring Pepco’s 69 KV lines to the south of the Beltway or circuitous routes to tie into existing lines would be required. Site B—East of the main power line, immediately north of the Beltway. This site is of adequate size for the substation but leaves little room for screening unless two additional private holdings to the north and east were acquired. There is a light screening of trees on the borders of the site; but unless substantial planting were undertaken or until the present trees had grown sufficiently, the site would be exposed to Cherry Hill Road, the Beltway and I-95.

The site would not be immediately available since it is being used for storage and a borrow pit in connection ¹⁶⁸ with the present construction of I-95. Again, it would be necessary to cross the Beltway with 69 KV cables. There is road access by Cherry Hill Road. Site C—West of the main power line, and bounded by 1-95 north of the Beltway.

This site is located near the interchange of 1-95 and. the Capital Beltway. The site is of minimal size and leaves little area for screening from 1-95. It is heavily wooded and would need to be cleared. There would be a problem resulting from crossing the Beltway with power lines; and inasmuch as the site has a 1 in 8 slope, this would make difficult the movement of heavy equipment.

The building of approximately a quarter of a mile of road would be required to connect the site with Cherry Hill Road, either down the steep slope or across the private lands comprising Site B. The two sites at the interchange of the Beltway (Sites B and C) and 1-95 will be one of the major gateways both to the Nation’s Capital and to Prince George’s County. It is poor planning practice to permit the use of these sites as a substation which is not in itself attractive or an enhancement of the gateway aspect. Here again, as in regard to Sites A and B, the problems of adequate screening and access for the 69 KV lines and required heavy equipment preclude the economic use of those sites. Site