Deen v. Baltimore Gas & Electric Co.

Marbury, J., delivered the opinion of the Court. The issue involved in this case is whether or not the Baltimore Gas and Electric Company, appellee, will be allowed to place its 115,000 volt (115-kv) transmission line above ground on dodecahedral steel poles throughout its right-of-way from Summerfield to the East Towson substation in Baltimore County. The right-of-way runs for a distance of 5.1 miles and is, with a few exceptions, that property formerly used by the Maryland and Pennsylvania Railroad. Under the zoning ordinances of Baltimore County the Company was required to apply for a special exception in order to construct its high voltage transmission lines above ground.

No special exception was needed to place such lines below the surface of the ground. Pursuant to the Baltimore County Zoning Regulations, the Company filed a petition for a special exception with the County Zoning Commissioner in November 1962 asking for a special exception to permit construction of the lines above ground along the entire right-of-way. The appellants herein, and the protestants before the Zoning Commissioner, are owners of property along the five mile right-of-way. These property owners admit that the new line is needed in order to adequately supply the electric power needs of this part of Baltimore County.

They maintain that the transmission lines should be placed underground because the proposed above ground structures would decrease property values inasmuch as they would be unsightly and also would be inimical to the health and safety of those who live nearby or who would travel on the highways over which the lines would be strung. On the other hand, the Company does not want to be required to construct the lines underground because underground construction is a great deal more expensive and in turn would have to be reflected in their consumer rates. The right-of-way over which the Company proposed to place the transmission lines can be conveniently divided into three sections. The first section is from the East Towson substation ³²² easterly to Lot 34, Section 2 in the' Cromwell Heights development.

This section is within the Metropolitan District of Baltimore County, which is a term used to describe the area of the county serviced by sewer and water. In order for a public utility to obtain a special exception within the Metropolitan District, the Zoning Regulations require that Section 502, and the additional provisions of Section 411, must be met. Within this first section the right-of-way runs for a distance of 5,385.6 feet and the proposed high tension lines would cross Goucher Boulevard and Joppa Road, which are heavily traveled highways; would pass through a heavily built-up residential section of Towson; and also through areas which are zoned M.L. for light manufacturing. The second segment of this right-of-way for which a special exception was requested runs from Lot 34 in Cromwell Heights easterly and then northerly to the easternmost terminus of the Metropolitan District line.

It is 6,177.6 feet in length; would cross over both the Loch Raven Boulevard and the Baltimore County Beltway; and would pass through a suburban area. The entire length of this second segment lies within the Metropolitan District. The third section, over which the proposed transmission lines would run, extends from the Metropolitan District line northerly to Summerfield, a distance of 15,364.8 feet. At Summerfield the Company’s plan is for the transmission line to connect with a ring line, which is somewhat of an electric power beltway encircling Baltimore City some ten to fifteen miles in radius from the center of the City, a part of which is in Baltimore County.

This last segment of the proposed line runs through an area which is presently rural. After a hearing, the Zoning Commissioner authorized the special exception the Company requested for the area outside the Metropolitan District, i.e., that area described as section three above. Within the Metropolitan District the Commissioner ordered that the transmission lines be placed underground “excluding that portion of the right-of-way in Towson, subject to the Redevelopment and Rehabilitation Commission (approximately 370 feet) and excluding the Manufacturing Zone, *' * The Company appealed so much of the Zoning Commission ³²³ er’s decision as required it to place any of its transmission lines underground to the County Board of Appeals of Baltimore County, and pursuant to Section 501.6 of the Zoning Regulations a hearing was held de novo. After the hearing, which lasted six days and involved a transcript of 844 pages and nearly 100 exhibits, the Board concluded that a special exception should be granted for the overhead lines along the Company’s entire right-of-way except- that portion which was from Lot 34 in Cromwell Heights to the East Towson substation, excluding the portions thereof which were zoned for manufacturing.

From the Board’s decision the Company filed an appeal to the Circuit Court for Baltimore County from that portion of the order which denied the special exception for above ground construction in that area where it ordered the lines to be placed underground, and a cross appeal was filed by the protestants from so much of that order which allowed any of the wires to be strung above ground. In the Circuit Court, Judge Menchine fully reviewed the entire record, together with memoranda filed on behalf of the respective parties and heard argument of counsel on both sides. He held that the finding of facts by the Board did not support its conclusions of law in regard to that portion of its decision which required the transmission lines to be placed underground, and as a result he ordered that the case be remanded to the Board for the passage of an appropriate order granting the special exception for the construction of the power line upon dodecahedral steel poles for the entire length of the route covered by the Company’s petition. The protestants then noted this appeal.

I First to be considered on this appeal is whether or not the Circuit Court was correct in reversing that portion of the-Board’s order which required the transmission lines to be placed' underground from Lot 34 in Cromwell Heights to the East Towson substation, except in manufacturing zones. In regard to that portion of the Board’s order, Judge Menchine held that its findings of fact did not support its conclusions of law and' thus the decision was arbitrary and capricious in a legal sense, relying upon Montgomery Co. v. Merlands Club, 202 Md. ³²⁴ 279, 96 A. 2d 261 . In fairness to the lower court, it should be pointed out that clarity and internal consistency were not conspicuous attributes of the Board’s written opinion. However, a reading of that entire opinion makes it apparent to us that the Board adopted for its findings of fact the testimony of Mr. Gavrelis, Director of Planning for Baltimore County, which was supported by that of a real estate expert.

Their testimony clearly supported the Board’s conclusion of law and for this reason such a conclusion was not arbitrary or capricious. Although Mr. Gavrelis’ testimony was not specifically adopted by the Board, we feel that the Circuit Court, in its review of the decision of this quasi legislative body, should have concerned itself with the question considered in Board v. Meltzer, 239 Md. 144, 153 , 210 A. 2d 505 , and not with the question of whether the reasons set out in the opinion supported the conclusions of law drawn therefrom. In Meltzer we found the test to be: “whether a reasoning mind could reasonably have reached, after a fair consideration of the entire record, the conclusion that the Council [Board] did, or, in other words, was its action clearly erroneous and therefore not fairly debatable.” Thus, the court should have looked at all the facts to see if the conclusion reached by the Board was justified. Section 411.3 of the Baltimore County Zoning Regulations specifically sets out the seven factors which are proper for the Board’s consideration in determining whether transmission lines carrying more than 35,000 volts shall be placed underground.

Section 411.3 a (7) states as one of these factors to be considered: “Any other matter or thing deemed by him [Zoning Commissioner] or them [Board] to be material in connection with the public health, safety or general welfare.” The Planning Commission report, introduced into evidence by the testimony of Mr. Gavrelis, used the following language in reference to that part of the right-of-way which the Board ordered underground: “A 100 foot setback is sought between any new residential improvement in new developments and the edge of a high voltage transmission line right of way. Although arbitrary, the extra setback attempts to temper any adverse effect of the power line by extra ³²⁵ distance. Examination of land use data indicates that all of the houses on the north side of Brook Road in the Greenbrier Subdivisions do not conform to this standard nor do all of the dwellings in the Cromwell Heights Subdivision. The Planning staff recommends therefore, that in order best to comply with the health, safety or general welfare that that portion of the transmission lines westerly from a point more or less at Lot 34, Section 2 — Cromwell Heights, be placed underground to the terminus in East Towson.” As to the relationship between safety and the 100 feet setback requirement, Mr. Gavrelis testified that the 100 feet zone was established to insure against the possibility of home damage in the event one of the poles carrying high tension wires should fall.

The proposed poles will vary in height from 60 to 90 feet and will have crossarms extending 11 feet. The uncontroverted evidence before the Board indicated that high voltage lines have, on occasion, come down in other parts of the country. When the lines fall they remain energized for a fraction of a second after they strike the ground and could thus start a fire if they should come in contact with a combustible substance. In addition, it was undisputed that lines similar to the proposed ones have sagged in close proximity to the ground as the result of an accumulation of ice, snow or sleet, or as the result of a defective tower.

Under such circumstances the circuit breakers would not work, since the line would not be grounded, and would thus present a hazard to any person coming in contact therewith. Given the height of the proposed poles, and the chance that falling lines could start a fire which might spread to homes, we think that a reasoning mind could have found a substantial connection between the 100 feet setback requirement and the health, safety and welfare of the people living in close proximity to the high tension wires. The Board was duty bound to consider this factor of safety in determining whether to grant a special exception. In addition to his testimony as to safety, Mr. Gavrelis testified that the presence of above ground high tension wires has a tendency to decrease property values in residential areas.

As a planning expert Mr. Gavrelis opined that the 100 feet setback requirement mini ³²⁶ mized the deflating effect which above ground high tension wires has on land values. Such economic consequences were properly considered by the Board pursuant to Section 411.3 a (6). Besides Mr. Gavrelis, other witnesses, including Hugh E. Gelston, a real estate expert, testified before the Board that in their opinion high tension wires in this area would adversely affect property values. To rebut this, the Company produced Mr. Magee and Mr. Heinmuller, both expert real estate appraisers, who testified that in their opinions overhead lines do not have an adverse effect on property values.

Because of the evidence as to safety, coupled with the conclusions which reasonable men could have gleaned from the conflicting testimony as to the effect of high tension wires on nearby property values, we conclude that under the test used in Meltzer , the Board was not clearly erroneous when, pursuant to the authority given the Board under Section 411.3, it ordered these high tension wires underground. For that reason this portion of the Board’s findings we consider to be supported by competent, material and substantial evidence upon the whole record, and, therefore, was not arbitrary and capricious. II The protestants next contend that within the manufacturing zones lying between Lot 34, Cromwell Heights and the East Towson substation, the Board should have ordered the lines to be placed underground. Why the Board did not so order becomes apparent from the clear language of Section 411.3: “Electric light and power transmission lines carrying more than 35,000 volts shall be governed by the following principles, standards,