Creative Country Day School of Sandy Spring, Inc. v. Montgomery County Board of Appeals

Barnes, J., delivered the opinion of the Court. The appeal in this case is from an order of the Circuit Court for Montgomery County (Pugh, J.) entered on July 7, 1965 affirming a decision of the County Board of Appeals for Montgomery County (the Board) which denied on December 12, 1963 the petition of the appellants, Creative Country Day School of Sandy Spring, Inc. (Country Day School) and Sandy ■Spring Acres, Inc. for a special exception under Sections 104-29(m)l(c) (5), 104-29(w) (2) and 104-29(i)l(e) of the Montgomery County Code of 1960 to permit the petitioners to operate a private educational institution for forty or more nursery, kindergarten and elementary school children, a riding stable and a child care home. At the time of the hearing before the Board, Sandy Spring Acres, Inc. was the contract purchaser of the land involved in the petition consisting of two parcels, known ⁵⁵⁶ as the Daymude and Hobbs property, containing approximately 39 acres located on Route 108 in the Olney Election District, Sandy Spring, Maryland (the subject property). That corporation is now the owner of the subject property, title having passed to it subsequent to the hearing.

Country Day School is the lessee of the subject property. The petition of the appellants was denied by a three to two vote of the Board. The subject property lies between Olney and Ashton in Montgomery County. It fronts on Route 108 for approximately 350 feet.

In general outline it is a panhandle of approximately 9 acres (the Hobbs property) fronting on Route 108 (which runs approximately east and west at this point) with the main body of the property consisting of approximately 30 acres (the Daymude property) averaging about 900 feet north and south and about 1600 feet east and west. Access to the main body of the subject property to Route 108 will be over the panhandle section which will not be used for any other purpose after the Hobbs’ vacate the residence on the panhandle section, other than for parking areas for automobiles and buses. Route 108 is a black top road with a width of about 18 or 20 feet. It has a speed limit of 40 miles per hour.

Buford Hayden, an expert land planner, who testified for the petitioners before the Board, stated that the sight distance to the entrance to the subject property from west to east is over 1000 feet and is “very good”, while the sight distance from east to west is between 300 to 400 feet and “is not so good.” The general character of the area in which the subject property is located is that of a residential agricultural district. It is appropriately zoned in an R-A (residential-agricultural) zone. There are several large houses on large tracts in the immediate neighborhood of the subject property. For example, the property of Arthur D. Farquhar adjoins the Daymude portion of the subject property and consists of 132 acres with a dwelling and other buildings.

This property has been owned by the Farquhar family for 137 years. Nearby are even larger agricultural properties. There is, however, a small subdivision called Olney Estates on Dominion Drive to the west of the subject property which consists of 12 homes on one-half acre lots. The general Sandy Spring-Ashton area is sparsely settled, it being ⁵⁵⁷ estimated that there are approximately 1000 residents in that area.

In the general area there are several institutional uses. They include the following: The Sherwood School, approximately a mile to the east of the subject property, a large public school, which is a combined elementary and junior senior high school complex having approximately 1880 pupils on 30.2 acres of land. In the general neighborhood, St. John’s Episcopal Church operates a school which includes a kindergarten and an elementary school. St. Peter’s Roman Catholic Church has an elementary school.

There is also a Quaker day and boarding school for students of secondary years. Edward L. Silver, who owns the stock in the two appellant corporations, has been a teacher and director of educational facilities for over 12 years. He owns and operates three nursery schools in the State of New York which are accredited under the laws of that State. He has obtained a master’s degree from New York University in early childhood education and is completing work at that University for his doctorate in the same field.

He testified at the hearing before the Board that the plan was to build a building for approximately 100 students in the winter time with a possible (and hoped for) ultimate enrollment in the nursery school of 350 children, ranging in age from 3 to 5, split into two sessions, one session in the morning and one session in the afternoon, and 950 children, ranging in age from 3 to 12 in the summer recreational program for the entire day. The summer students will be housed in tents (10 to a tent) in an open field during the summer program. A swimming pool will be constructed and during the summer the program will consist of activities such as swimming, baseball, arts and crafts, nature study and similar activities. The first building to be constructed will consist of 6 classrooms designed for 15 children per room with possibly a multipurpose room.

There will be a riding stable for 4 horses. If the school enrollment reaches its ultimate goal, the children will be brought to the subject property during the winter in 35 station wagons. During the summer, 14 or 15 buses will be used to transport the increased number of children. The plan at the beginning is to use 10 station wagons during the winter with an additional 4 buses during the summer. ⁵⁵⁸ Mr. Hayden testified that in his opinion the proposed use would not be detrimental to the use or development of the adjacent properties or of those in the general neighborhood.

He was also of the opinion that the addition of 35 station wagons and 15 buses going in and out of the subject property twice a day would not impose a hazardous condition on Route 108, although he admitted that he had not personally made any traffic counts. He had obtained two traffic counts from the State Roads Commission of Maryland on Route 108 for the average 24 hour count for 1962 which showed that just east of Olney there were 3625 vehicles a day, while just west of Ashton there were 3650 vehicles a day. There are no immediate plans to widen or otherwise substantially improve Route 108 near the subject property. Mr. Hayden was also of the opinion that the noise generated by the proposed operation would not create a nuisance.

John Zimmerman, an architect from New York City, testified for the applicants in regard to the proposed structures, screening and planting on the subject property and proposed parking facilities for the motor vehicles to be used in connection with the contemplated operation. The Site Plan, as revised, prepared by Mr. Zimmerman (Exhibit 48-B), graphically portrays the proposed use at its ultimate capacity. The entrance road from Route 108 is laid out in approximately a north-south direction through the center of the panhandle. On the east side of the entrance road, approximately 150 feet from Route 108 is an area for bus parking and farther to the north and on the east side of the entrance road is an area for the parking of 100 automobiles.

Directly across the entrance road, from the 100 car parking area, is another parking area for 100 automobiles. The entrance road then proceeds in an approximately easterly direction about 50 feet from the southerly boundary of the Daymude parcel and to the north of the entrance road at this point are the principal buildings to be constructed. They consist of a large multipurpose room with a capacity of 300j on the south of which is a kitchen and lobby. To the north of this building is an amphitheater.

To the east of the multipurpose room (and connected to it by a closed corridor are four buildings containing 6 classrooms each, a total of ⁵⁵⁹ 24 classrooms. To the east of the multipurpose building is the tent camp and to the northeast of that area is the lake. The stable, bridle path and corral are located at the northerly end of the subject property, the northerly end of the stable being 105 feet from the northerly property line. There are two swimming pools to the west of the stable which are 90 feet from the northerly property line.

There is a combined tennis, basketball and handball court to the east of the swimming pools. To the northeast and east of the principal buildings is a shelter area for 10 shelters. There is also an arts and crafts building in this area. There are also softball, badminton and volleyball fields, a pitch and putt golf area as well as an archery area.

The tabulation on the Revised Site Plan shows the following: Nursery School-24 classrooms at 15 children each 360 Tent Camp Capacity 290 Shelters: 10 centers at 15 children each 300 Total Children 950 Mr. Zimmerman was of the opinion that the proposed construction and operation would not create any nuisance by reason of dust, gas, smoke or odor or by reason of noise. Henry J. Connor, who had been in the building and real estate business for over 30 years and who was generally familiar with the area in which the subject property is located, and who owned a property which partially abuts the subject property, testified for the applicants that in his opinion the proposed use would not adversely affect the general development of the community. In opposition to the granting of the application, the protestants offered the testimony of Clarke W. Slade, who has resided in the neighborhood of the subject property since 1937 or 1938. He was the former head master of the Slade School in Sandy Spring for approximately 20 years and for 5 years prior to his experience as head master, he was in the Baltimore City School System; He was also a consultant to 5 of the private schools in Baltimore City for approximately 5 years.

At the ⁵⁶⁰ present time he is the Chief Psychiatric Social Worker of the Episcopal Home for Children in Washington, D. C., and is a counsellor to the Committee on Education of the American Foreign Service Association. When he first learned of the proposed use he had no strong feeling about it, one way or the other, but after he had made a personal investigation in New York State of the existing operation of schools there by Mr. Silver (or his controlled corporations) he became unalterably opposed to the proposed use. He investigated the Valley Stream School which is operated on approximately three and one-half acres of land. It has approximately 800 students.

Mr. Slade described the result of his investigation as follows: “Well, I went to Valley Stream. I could only describe what I saw there with the word ‘slovenly’, I believe. The entrance to the school is through a sort of a court yard, in which there were a bunch of station wagons parked and a pile of discarded tires and a tow truck. Then you get on into the grounds of the school, proper, and they were quite denuded of grass.

They had a zoo, so-called, consisting of a few animals and a fruit tree of some sort with cherries or something dropping down. And there was an offensive odor about that. There was in the middle of the grounds a drinking fountain which had a muddy spot around it probably eight or ten feet in diameter. I was there on a Sunday afternoon.

I could understand that if a school week ended, the children had gone, there would be some litter around. But it seems to me that it ought to have been cleaned up on a Sunday. “There were dirty towels. There were articles of apparel. The so-called tent area had tents very close together, some of which were down off their poles.

There were Coke bottles. There were just general things that were not neat and tidy. “There was nothing about it that would be attractive. And it did not seem to me to bear out the printed literature which is used for promotional purposes at Valley Stream School. It was not attractive.” ^ * ⁵⁶¹ “Those are the things which I observed by eye.

The school also has a loudspeaker which I could observe by ear. I was there also on Monday morning at the time that the children were being brought to the school. I had occasion to hear the loudspeaker blast off, which can be heard for a substantial distance around. Those are my chief impressions of the physical appearance of the Valley Stream School.” Mr. Slade’s testimony was confirmed by affidavits, received into evidence by the Board, of Frederick Contanzo, Dr. Burrell Walters and Lyda Walters, William and Margaret Larson and Gina Cohen, residents who had lived for a number of years adjacent or contiguous to the Valley Stream School. 1 Mr. Slade was of the opinion that the proposed use would adversely affect the enjoyment and value of properties adjacent to or near the subject property as well as those in the general neighborhood.

He pointed out that the three non-profit private or parochial schools in the general neighborhood are all “quite compatible with the character of Sandy Spring,” but the proposed use—which would have 950 students at its proposed maximum operation as compared with an estimated 1000 per ⁵⁶² sons living in the general community—would be incompatible with the neighborhood, would result in a hazard to the community, and would create a nuisance from noise and increased traffic. Mrs. Slade, who accompanied her husband on his trip to New York, corroborated his testimony in regard to the conditions at the Valley Stream School. Francis K. Metzger, a consulting engineer and for 15 years Assistant Supervisor of Assessments for Montgomery County, and also a member of the Board of Education of that county for 10 years with particular responsibility for the selection of land sites for Montgomery County schools, testified for the protestants. He was familiar with the subject property and neighboring properties.

Although he is “very sympathetic to any form of education”, it was his opinion that the subject property was the wrong site for the proposed use, would create a nuisance, resulting from noise and traffic and the proposed use would have a devaluating effect upon the surrounding properties. Jesse E. Aiken, a qualified realtor, testified for the protestants that he was familiar with the subject property and surrounding properties. In his opinion the proposed use would decrease property values in the neighborhood. This would be caused by the substantial increase in traffic and in the noise which would likely result from the proposed operation.

He estimated that, for example, the value of the Beebe property, which adjoins the subject property on the south, and which had been appraised by Mr. Aiken, would be reduced by 25%, and stated his reasons for his opinion. In addition to Arthur D. Farquhar, already mentioned, Dr. Stephen O. Beebe, who owns nearby property, and Delmas Wood, Jr., who owns properties adjoining the subject property, also testified in opposition to granting the special exception. There was no testimony offered in regard to the specific nature of the operation of the schools operated by the Quakers, St. John’s Episcopal Church or St. Peter’s Roman Catholic Church. The majority of the Board in a carefully considered opinion, after reviewing the facts, concluded: ⁵⁶³ “The Board finds that the petitioner has not met the burden of proof to show that the traffic generated by the transportation of 350 to 950 children, the minimum faculty, an undetermined number of assistants and the administrative staff will not be a nuisance in the community.

Nor has the petitioner shown in contradiction to the evidence presented by the opposition, that the noise and physical activity of 350 to 950 young children will not constitute a nuisance. “Accordingly, the Board must rule that the special exception for the private educational institution (Section 104-29(m) 1(c) (5)), the child care home (Section 104-29(i)l(e)) and the attendant riding stable (Section 104-29(w) (2)) must be denied.” In the dissenting opinion of the Board, it was indicated that in the opinion of the minority of the Board, insufficient weight had been given by the majority to Mr. Hayden’s testimony in regard to the traffic hazard and noise factor and that the operation of the New York schools was not comparable to the proposed operation because the acreage of the subj ect property was approximately 10 times larger than the largest site of the New York facilities. The minority was of the opinion thaL the applicants had met the burden of proof placed upon them by the Zoning Ordinance, considering the record as a whole. Judge Pugh, in affirming the decision of the Board, filed a helpful and carefully considered opinion in which the applicable provisions of the Zoning Ordinance and the testimony were analyzed. He concluded that under the prior decisions of this Court and in view of the decision of the Supreme Court of Errors of Connecticut in St. John’s Roman Catholic Church v. Town of Darien, 149 Conn. 712 , 184 A. 2d 42 (1962)—on which he strongly relied—it could not be said that the provisions of the Zoning Ordinance were clearly arbitrary, unreasonable and capricious, having no substantial relation to the public health, safety or general welfare.

He also indicated that the applicants had not met the burden of showing that the proposed use would not be a nuisance that issue being fairly debatable and not clearly erroneous. ⁵⁶⁴ We agree with the conclusions of the lower court and will affirm the Order of July 7, 1965, affirming the decision of the Board. Three questions are presented by this appeal for our decision: I. Is the Zoning Ordinance, as construed and applied by the Board, unconstitutional as containing an allegedly unlawful and unreasonable discrimination between public schools and recreational facilities and private schools and recreational facilities?

II

Is the Zoning Ordinance, as construed and applied by the Board, unconstitutional as containing an allegedly unlawful and unreasonable discrimination between parochial schools and private schools ?

III

Was the action of the Board in holding that the applicants did not meet the burden of proof that the proposed use would not create a nuisance because of traffic, noise and physical activity unsupported by sufficient evidence so that its action is arbitrary, unreasonable and capricious and, therefore, illegal and void ? As we have indicated these questions, in our opinion, must all be answered in the negative. I. The Montgomery County Zoning Ordinance in Section 104-5-(a) setting forth the uses permitted in an R-A Zone provides for certain permitted uses including: “Publicly owned or government operated buildings and uses, including community buildings and public parks, playgrounds and other recreational areas.” This same subsection also permits: “Churches, convents, monasteries and other places of worship” and “accessory buildings and uses.” Section 104-5-(b) is entitled “Special Exceptions” and lists, among other uses which may be permitted by the granting by the Board of a special exception: “Child care homes Educational institutions, private Riding stables.” ⁵⁶⁵ Section 104-29(m) sets up the standards which guide the Board in granting a special exception lor private educational institutions. By Section 104-29(m)l(c) (5) the Board is authorized to grant as a special exception, among other uses, the following: “m.

Educational institutions, private. 1. In any Residential Zone, a lot, tract or parcel of land to be used for a private educational institution upon a finding by the Board that said use will not constitute a nuisance because of traffic, number of students, noise or type of physical activity and if the lot, lots or tract of land on which the building or buildings to be used by said institution are located conform to the following minimum area, frontage and setback requirements. (c) Private Educational institutions, other than those covered by (a) and (b) above. (5) All institutions where the maximum attendance at any one time exceeds forty students.

Total Area—30,000 square feet Frontage—200 feet Setback—25 feet from all property lines.” Section 104-29(m) (2) provides: “2. The requirements of this subsection (m) shall not apply to the use of any lot, lots, or tract of land for any private educational institution which is a parochial school or which is located in a building or on premises owned or leased by any church or religious organization, the Government of the United States, the State of Maryland or any agency thereof, Montgomery County, or any incorporated village or town within Montgomery County.” Section 104-29(w) (2) provides: “w. Riding stable. (2) If three or more horses are kept, the stable shall be located on a tract of not less than five acres.” ⁵⁶⁶ In regard to Child care homes, Section I04-29(i) 1(e) provides : “i.

Child Care Homes. (1) In any residential zone, a child care home upon a finding by the Board that said use will not constitute a nuisance