Entzian v. Prince George's County

Lowe, J., delivered the opinion of the Court. Parties to zoning cases are provided with more attention than are the parties in most other forms of litigation. Although there are slight variations in the several counties, generally a zoning application proceeding begins with an administrative hearing where the applicant and those opposed to the application may appear and offer testimony and other evidence. The hearing officer may utilize available county or municipal investigative sources (e.g., technical staff reports of planning commissions) for additional fact gathering.

The hearing officer then renders a decision based on the evidence elicited at the hearing. This decision, while not conclusive, is often persuasive to the quasi-judicial body which makes the ultimate decision as to whether to approve the application. This body may be a board or commission which has been statutorily provided for that single purpose, or, it may be the governing legislative body of the county which has been authorized to sit in such quasi-judicial capacity to decide zoning matters. The County Council of Prince George’s County convenes in matters of zoning as the “District Council.” An appeal of right from the Council’s decision is provided to the Circuit Court for Prince George’s County and, from there, to this Court.

The Council’s decision is not to be overturned if it is supported by competent, material and substantial evidence in the record. If the issue is fairly debatable as shown by the record, the Council’s decision will be affirmed. Prince George’s Co. v. Meininger, 264 Md. 148, 152 ; Wakefield v. Kraft, 202 Md. 136 . This test applies to applications for a zoning change as well as a special exception.

Zengerle v. Bd. of Co. Comm’rs, 262 Md. 1, 17 . Our role on review is the same as that of the circuit court looking to the legality of the ²⁵⁸ procedure and whether fairly debatable issues were raised by the evidence. Appellants applied for a special exception for a sanitary landfill in Prince George’s County at a location near the Patuxent River. It was denied.

After a thorough review of the evidence, the District Council, 1 in a comprehensive opinion, concluded: “That the proposed use is not in harmony with the purpose and intent of the Zoning Ordinance; and will substantially impair the integrity of the approved master plan for this area, including the functional plan for this activity; and the proposed use would affect adversely the health and safety of residents in the area and would be detrimental to the use and/or development of adjacent properties or the general neighborhood.” An appeal was noted in the Circuit Court for Prince George’s County wherein appellants contended substantially that which they argue here. The trial judge, the Honorable Ralph W. Powers, wrote an opinion concisely responding to the appellants’ contentions and, after correctly stating the burden of proof and standard of review in such cases, affirmed the District Council. We adopt Judge Powers’ opinion as our own and, because it so clearly articulates the facts and issues here presented, we repeat it before further comment. “OPINION AND ORDER This case comes before the Court on appeal from a ruling by the County Council of Prince George’s County sitting as the District Council. The statutory basis for this appeal is provided by Maryland Rule B1 in conjunction with the special authorization granted by Section 79(e), (f), (k), Chapter 780, Laws of the State of Maryland, 1959, as amended. ²⁵⁹ This appeal concerns a denial by the District Council of a special exception application by The International Disposal Corporation of Maryland, Inc., and others, (hereinafter referred to collectively as ‘International’).

The proceedings involved an application to use 268.80 acres (later amended to 180 acres) as a sanitary landfill, a use for which special exceptions may be granted. §28.31 ‘Special Exceptions', Zoning Ordinance for the Maryland-Washington Regional District in Prince George’s County, Maryland. Section 28.334A, Zoning Ordinance, empowers the District Council to grant a temporary special exception for a sanitary landfill in any O-S, R-A, or R-R Zone. The tract of land involved is on the east side of Mill Branch Road, just north of its intersection with Queen Anne Road in Prince George’s County, and is zoned R-R. After public hearings on the matter, the District Council, on April 28, 1975, disapproved the application for special exception. International timely appealed this action asking that this Court reverse the Decision of the District Council avering that the action of the District Council was: (1) in violation of constitutional provision; (2) in excess of the statutory authority or jurisdiction of the agency; (3) or made upon unlawful procedure; (4) or affected by other error of law; (5) or unsupported by competent, material and substantial evidence in view of the entire record as submitted; (6) or arbitrary or capricious.

These six allegations of error are those which allow the Circuit Court to reverse, modify, or remand a decision of the District Council. §79(i), Chapter 780. The scope of review by this Court of the administrative decision of the District Council is governed by statute. There must be substantial evidence on the entire record such that the decision ²⁶⁰ rendered by the District Council was not arbitrary or capricious. §79(i) (5) (6), Chapter 780. This is the typical standard of review the courts employ in reviewing denials of special exception applications.

See Rockville Fuel and Feed Company, Inc. v. Board of Appeals of the City of Gaithersburg, 257 Md. 183 . (1970) The District Council pursuant to its delegated authority granted by the General Assembly of Maryland, (Chapter 780), has by ordinance determined that special enumerated uses can be properly allowed in a specific use district. §28.31 through 28.359, ‘Special Exceptions’, Zoning Ordinance, supra. There is a presumption of validity and correctness that the enumerated special exception uses promote the general welfare. .Rockville Fuel, supra. A special exception application passes through three administrative levels before reaching the District Council.

These are in chronological order: The Technical Staff of the Prince George’s County Planning Board, the Prince George’s County Planning Board, and the Office of the Zoning Hearing Examiner. The Technical Staff is required to make a report and recommendation for the record on each application for special exceptions. Zoning Ordinance, supra, §28.111. The County Planning Board, among its exclusive local functions, is responsible for either adopting or not adopting the recommendations of the Technical Staff, and forwarding this to the District Council.

Chapter 780, §66. Before the District Council can make a decision on a special exception application, the Zoning Hearing Examiner is required to hold public hearings on the matter. Zoning Ordinance, supra, §28.12, §31A.1 - 31A.49. At the conclusion of the hearings, the Examiner must file with the District Council a written decision containing specific ²⁶¹ findings of basic facts, conclusions of law and a recommended disposition of the case.

Ordinance, supra, §31A.22. His decision is then considered by the District Council. Ordinance, supra, §31.A.3. The standard the District Council must use in determining whether to approve a special exception application, thus restricting their discretionary scope, is governed by ordinance. ‘28.2 General Provisions A special exception may be granted when the Council finds that: (a) The proposed use is in harmony with the purpose and intent of the Zoning Ordinance and will not substantially impair the integrity of any validly approved master plan or functional master plan, or in the absence of a master plan or functional master plan, the General Plan (Amended 10/29/74).

(b) The proposed use will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use and/or development of adjacent properties or the general neighborhood.’ Ordinance, supra, §28.2 In accord with Rockville Fuel, supra, then, the burden was on the applicant to demonstrate to the Council that the proposed use will not: (1) substantially impair any master, functional master or general plan; (2) adversely affect the health and safety of the area residents and workers; (3) or be detrimental to the use and/or development of the adjacent properties or the general neighborhood. Since these predetermined enumerated uses are prima facie in the interest of the general welfare, there is no burden on the part of the applicant to show affirmatively that the requested use will benefit the community at large. Rockville Fuel, supra. ²⁶² International’s argument on the adequacy of the evidence on the record centers around the three-prong test the Council must consider under §28.2. Ordinance, supra.

International proffers that there was no showing that a comprehensive plan would be impaired [§28.2(a)]; that there was not substantial evidence demonstrating that the landfill would adversely affect the health and safety of area residents or workers, or that the landfill would be detrimental to the use and/or development of adjacent properties or the general neighborhood. [§28.2(b)l]. Concerning the last point, International maintains that the boundary of the ‘general neighborhood’ was never defined so as to permit a factual finding of detrimental effect. The District Council has not adopted any rules of evidence to apply in its public hearings. We revert to case law which applies the general standard applicable to administrative bodies: ‘In general, administrative agencies are not bound by the technical common-law rules of evidence, but they must observe the basic rules of fairness as to the parties appearing before them.’ Dal Maso v. Board of County Commissioners of Prince George’s County, 238 Md. 333, p. 337 .

(1964). Followed in Dickinson-Tidewater, Inc., et al v. Supervisor of Assessments of Anne Arundel County, 273 Md. 245 . (1974). While zoning agency bodies then are not bound by strict rules of evidence, their decisions must be supported by substantial evidence on the record.

Rockville Fuel, supra. ‘Zoning is not a plebiscite’ and therefore testimony in opposition restricted solely to lay witnesses, petitions of objection to the proposal by residents, and testimony amounting to unsupported dislike and fear of (a) project, ‘... amounted to no evidence at all.’ Rockville Fuel, ²⁶³ supra, pps. 192 and 193. There is ample evidence in the record to support the decision of the District Council here. The Technical Staff and the Planning Board both recommended disapproval of the application (Ex. 95) based largely on the impact of the proposed site on the adjacent Patuxent Watershed. (See Patuxent River Watershed Committee Report, Ex. 95).

The Technical Report is by statute, part of the record. Zoning Ordinance, supra, §28.11 [1]. The General Assembly of Maryland has declared that ‘the policy of the State is to protect the water quality of the State scenic rivers system, (of which the Patuxent is a part) and fulfill vital conservation purposes by wise use or resources within this scenic river system.’ Annotated Code of Maryland, Natural Resources, 8-401, 8-402(a). Development of these rivers are limited to those ‘programs by which the general public can appreciate and enjoy the value of these areas as scenic rivers in a setting of natural solitude.’ Natural Resources, supra, 8-402(b). ‘Before specific plans for use and development of water and related land resources are approved .. . which change the character of a river or waterway or destroy its scenic value, full consideration and evaluation of the river as a scenic resource shall be given.’ Natural Resources, supra, §8-405.

Finally, ‘Every State unit shall recognize the intent of the scenic rivers program and take whatever action is necessary to protect and enhance the scenic qualities of the designated river.’ Natural Resources, supra, §8-407. To effectuate the State policy of the Scenic River Act in Prince George’s County, the Patuxent River Watershed was created. Natural Resources, supra, ²⁶⁴ Subtitle 13, §8-1301 — 8-1319. The General Assembly declared that: ‘(F)lood prevention, conservation, sediment or erosion protection and prevention of urban development within the watershed is a public benefit and conducive to the public health, safety and welfare.’ Natural Resources, supra, §8-1302.

In Prince George’s County, the Maryland-National Capital Park and Planning Commission (Commission) is the duly designated agency to carry out the provisions of the Patuxent River Watershed Act. Natural Resources, §8-1301(b), §8-1304. The Commission may adopt, amend, or extend the watershed plan (Natural Resources, supra, §8-1305) and acquire, improve, and develop land or other property within the watershed. Natural Resources, supra, §8-1307.

At the time application 2799 was pending, the Commission had acquired approximately 5,000 acres of a projected 15,000 acre watershed park, spending over three million dollars in public funds. See Council Decision, p. 7; and Technical Staff Report, p. 10, Ex. 95. In addition, the Commission may acquire lands outside of the area of the watershed plan if it finds: ‘(T)hat acquisition is necessary to preserve any portion of the watershed plan in its county.’ Natural Resources, supra, §8-1309. The proposed landfill originally contained 207.19 acres, some within the park-take line.

The amended application reduced the landfill site to 180 acres, none of which was within the park-take line, but some of which adjoined this line. In conjunction with the State policy embodied in the Scenic Rivers and Patuxent River Watershed Acts, in light of the evidentiary rules applicable to this administrative body, the Technical Staff, and Planning Board ²⁶⁵ could properly consider the recommendations of the Patuxent River Watershed Committee Report. The amendment to the application did not alter the conclusions reached by the earlier recommendation of the Watershed Committee, as incorporated in the Technical Staff Report. (Ex. 95).

It is apparent from the record that the general neighborhood included the nearby Patuxent River, and the adjoining proposed park area. The Council then properly accepted as material evidence the following: That the proposed landfill abutting a natural park area is an inappropriate use and is not in conformance with the Patuxent River Watershed Act nor the Maryland Scenic Rivers Bill; That because of noise, loss of food and habital area, wildlife, both on and off the landfill site, would be severely endangered; That the landfill would affect the deep ravines on the proposed site, which slope down to the river, by causing destruction to both surface and ground water systems, and cause severe erosion problems; That ‘the County Department of Health concluded that no matter how well operated, most landfills will produce sediment and leachate that will not always be contained on site. The ravines on the subject property lead directly into the Patuxent River thus causing a real threat of water pollution to the Patuxent.’ See Council Decision, p. 7, and Technical Staff Reports, Ex. 95. The Council also considered the observation by the Watershed Committee that, at that time, for the past three years, many existing sanitary landfills within the Patuxent Watershed, despite foolproof design, had on a daily basis violated one ²⁶⁶ or more regulations and conditions of the permit grant.

There was sufficient evidence before the Council to determine the proposed site would adversely affect the environment of the neighboring park, including the wildlife marsh lands, and the Patuxent River. In addition to finding that the proposed landfill would be detrimental to the general neighborhood, the Council concluded that there was no compliance with the Bowie-Collington and Vicinity Master Plan (adopted October 1970), and that adjacent property owners would have been detrimentally affected in the use and the development of their property. Council Decision, p. 7. The Bowie-Collington and Vicinity Master Plan (referred to in parts by all parties, the hearing examiner, the technical staff, and the Council, yet not marked as an exhibit), recommended that the land in the proposed site be used for the Patuxent River Park and low-density housing.

The Bowie-Collington and Vicinity Master Plan in addition to proposing that the area in which the landfill site was located be a permanent low-density area, states that the preservation policies attaching to this land includes the enforcement of the Patuxent River Act. See p. 12, Bowie-Collington- and Vicinity Approved Master Plan, October 1970. In accord with the Technical Staff Report, the Council apparently found that the applicant did not demonstrate that the proposal would not violate the Master Plan intention. Technical Staff Report, pps. 6-10.

Finally, the Council found that there would be an adverse affect on the property values of adjoining landowners, Kidwell, Wolman, and Battner, due to noise, water' and air pollution. Council Decision, pps. 5, 6. Hie Council found further that the Kidwell and Samareis land tracts would become ²⁶⁷ sandwiched between an existing County landfill site and the proposed landfill. Council Decision, p. 7.

There were no constitution or statutory violations and there was sufficient evidence in.support of the Decision of the District Council. It is therefore, this 3rd day of November, 1975, ORDERED, that the Decision of the District Council in denying Application No. 2799, be and hereby is, affirmed.” Appellants’ argument in their appeal to this Court consists primarily of a repetition of their argument below, coupled with an attack on the opinion of Judge Powers. Of the six issues they have raised in their brief, we will respond only to those not answered by Judge Powers. Their first complaint is that they were denied due process because their application was considered by the Maryland-National Capital Park and Planning Commission in spite of the fact that there is no statutory requirement 2 ²⁶⁸ for such consideration.

Both the report of the Technical Staff of the Commission and the Commission’s Planning Board recommended disapproval of appellants’ application. As may be seen by the District Council’s opinion appended, the reports and recommendations of the Commission were admitted into evidence at the hearing before the zoning examiner. The record also discloses that appellants appeared and participated in those hearings. Since the report was treated as evidence along with other facts presented and opinions expressed, we fail to comprehend the source of appellants’ concern.

It is obviously beyond our authority to review the weight given evidence by the District Council. ²⁶⁹ Judge Powers’ comprehensive opinion needs