Enviro-Gro Technologies v. Bockelmann

CATHELL, Judge. We are again called upon to provide an appellate review of a zoning case arising out of the application of the Carroll ³²⁵ County Zoning Ordinance. We have in this term, alone, provided that review for at least three prior cases: County Comm’rs of Carroll County v. Zent, 86 Md.App. 745 , 587 A.2d 1205 (1991); County Comm’rs of Carroll County v. Wisner [No. 1140, 1990 Term, per curiam, filed May 7, 1991]; Carroll County v. Brothers [No. 1141, 1990 Term, per curiam, filed May 16, 1991]». In Zent , we recognized that the situation there in controversy arose out of the emerging suburban character of the county.

The present issue involves the problems created by the desire to dispose of urban sewage sludge by utilizing it in land application on Carroll County farms. This is alleged to be justified as an “agricultural practice.” Facts A facility for the storage of 13,500 tons of municipal sewage sludge was constructed on Robert Neal’s farm in Carroll County. No building permit or conditional use was obtained. Thereafter, on March 13, 1989, the zoning administrator notified the appellants, Enviro-Gro Technologies, Inc. et al. (Enviro), that the facility violated the zoning ordinance and directed the stoppage of any further work or utilization of the facility absent zoning approval.

An appeal was noted to the Carroll County Board of Zoning Appeals (BZA). After a hearing, the BZA rendered a decision. Among its factual determinations were the following findings of fact: [T]hat the application of sludge to agricultural lands is an accepted agricultural practice____ [T]he purpose of the pit is to hold sludge which must be taken from a waste treatment plant and stored until it can be applied to the land____ [T]he Board finds as a fact that the purpose of the pit is not agricultural use____ [T]here is no agricultural use associated with its storage. Rather, the pit is more properly simply a link in the chain of sludge transport and eventual disposal____ The existence of the pit responds not to a constant need for fertilizer on the Neal ³²⁶ farm but to a fact of urban life — sewage treatment facilities generate sludge on a 24 hour basis and it must be removed continuously. [T]he Board finds as a fact that it [sludge] is not fertilizer____ [S]ludge does not have a controlled analysis____ [T]he sludge storage pit is not a facility for the storage of liquid or dry fertilizer.

Sludge has some of the properties of fertilizer, but it is not fertilizer as such. It is sludge. Sludge causes an odor. The ...

Board smelled the sludge when they visited the facility [pit]____ Many of the protestants testified about the strong odor from the property____ [T]he Board finds as a fact that the sludge in the pit does cause an odor____ [T]he Board relies upon the testimony of Martha Hinson, the section head of the sewage sludge division of the Department of the Environment____ The Board accepts her testimony and finds as a fact that there is a stronger odor from a pit than from sludge spread on the fields. [T]he sludge pit takes on the character of a step in the chain of sludge disposal; and the ... pit allows Enviro-Gro to meet its commitment to remove sludge from municipal facilities on a regular basis. * sjt * * sfe Sit [I]t is a very large facility____ [I]t is a very major facility having a constant and immediate inter-action with the surrounding neighborhood____ [T]hese are not major incidents, but demonstrate the close quarters in which the residents ... live and the immediate impact which the sludge operation has on them. The Board finds as a fact that this is not a suitable site for such a large scale facility. The BZA then concluded that the sludge pit was not an accessory agricultural use, because it was part of a sludge handling operation, and that its storage of sludge was not for an agricultural purpose as defined in the ordinance. It ³²⁷ also concluded that it was not qualified to be a conditional use under the provisions permitting storage of fertilizer, because the sludge was not fertilizer as contemplated by the ordinance.

It further stated that, even if the sludge was fertilizer, its storage did not qualify as a conditional use. The BZA then affirmed the administrative action except to reverse that official’s determination that a sludge pit qualifies for a conditional use consideration. 1 On appeal to the Circuit Court for Carroll County, the court found: First, the sludge storage ... fails to satisfy the “customarily incidental” requirement of Art. 6, Sec. 6.4, and is not, therefore, an accessory use. Second, because the BZA found that sludge application serves an agricultural purpose and Art. 1, Sec. 4.5, restrains the outright prohibition of “structures incident to the use for agricultural purposes ... ”, the sludge storage pit must be viewed as a conditional use under Art. 6, Sec. 6.3(r). Lastly, the BZA’s “shotgun approach” to decision-making was both unsatisfactory and inadequate____ [Footnote omitted.] It then ordered a remand in order for the BZA to make the complete and specific findings it said were mandated by Art. 17, § 17.7.

Enviro appeals and raises two questions: 1. Did the Circuit Court err in finding that the storage of sewage sludge, to be used for agricultural purposes, is not a permitted use in the Agricultural District under the Carroll County Zoning Ordinance? 2. Did the Circuit Court err when it held that farm storage of sewage sludge, to be used for agricultural purposes, is not an accessory use in the Agricultural ³²⁸ District under the Carroll County Zoning Ordinance? [2] Although we do not agree with some of its reasoning, we perceive no error'in the trial court’s findings as to those two questions. Appellees/cross-appellants, Gary Bockelmann et al. (Bockelmann), argue on cross appeal that the appellants abandoned their request for a conditional use for the purpose of maintaining a storage pit for municipal sewage sludge.

They also argue that, even if the appellants had not abandoned that application, the trial court erred in ruling that the BZA’s findings were insufficient to justify the denial of the conditional use application. We find it unnecessary to address these two issues. Did the Circuit Court err in finding that the storage of sewage sludge, to be used for agricultural purposes, is not a permitted or accessory use in the Agricultural District under the Carroll County Zoning Ordinance? It is undeniable that the process of sewage treatment by which sludge is created is not an agricultural process.

While it can be argued that not all land applications of sludge are for agricultural purposes, it appears that land application of sludge on Robert Neal’s property is, at least in part, for an agricultural purpose. The issue before the BZA and the trial court was to determine at which point, during the process from one extreme to the other, sludge lost its identity as a sewage by-product needing disposal and gained a new identity as an element of an agricultural use. That issue was a matter of fact.2 3 ³²⁹ The BZA, in essence, determined that sludge retained its character as a sewage by-product until it was applied to fields for agricultural purposes; and that storage pits as such, and the Enviro pit in particular, served the primary purpose of responding to the continuous need for sludge removal from sewerage systems rather than the need for agricultural applications. Thus, the BZA found that the sludge storage at issue was not yet a permitted or accessory agricultural use.

The trial court’s opinion, although somewhat unclear, did affirm that part of the BZA’s opinion, albeit upon different reasoning. We said in Harford County v. McDonough, 74 Md.App. 119, 122, 536 A.2d 724 (1988): The order of an administrative agency, such as a county zoning board, must be upheld on review if it is not premised upon an error of law and if the agency’s conclusions on questions of fact or on mixed questions of law and fact are supported by substantial evidence presented to it. The Court of Appeals in Bd. of County Comm’rs v. Holbrook, 314 Md. 210, 218 , 550 A.2d 664 (1988), referring to the standards for special exception grants outlined in Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981), said: The Schultz test accords with the general standard for judicial review of the ruling of an administrative agency, ³³⁰ which we have defined as “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached; this need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.” Supervisor of Assess. v. Ely, 272 Md. 77, 84 [ 321 A.2d 166 ] (1974). ****** Therefore, due deference must be given to the right of an administrative agency, such as the Cecil County Board of Appeals, to draw reasonable inferences from the facts and circumstances presented before it. Additionally, the Court of Appeals said in respect to the treatment of factual inferences: “The heart of the fact finding process often is the drawing of inferences from the facts.

The administrative agency is the one to whom is committed the drawing of whatever inferences reasonably are to be drawn from the factual evidence. ‘The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.’ ” (Citation omitted.) Holbrook, 314 Md. at 218 , 550 A.2d 664 (quoting Snowden v. Mayor of Baltimore, 224 Md. 443, 448 , 168 A.2d 390 (1961)). We shall now examine the factual record, as contained in the extract, to determine if the BZA’s factual findings are sufficiently supported, keeping in mind that “if the evidence makes the issue ... fairly debatable, the matter is one for the Board’s decision, and should not be second-guessed by an appellate court.” Holbrook, 314 Md. at 218 , 550 A.2d 664 . The BZA’s findings primarily relate to the sewage sludge pit being part of the sewage disposal process, not an agricultural practice.

Mr. Pepperman, the appellant’s project manager, testified that land application of sludge ³³¹ served an agricultural purpose. In reference to sludge management, however, he testified that: Sludge is produced by ... municipal agencies. They enter into contracts with us ... to take their sludge from the waste water treatment plant and manage it in an environmentally sound manner, which we do through land application or other processes that we offer. * He * * * * We have a proprietary process that heat dries sludge and creates a marketable product for use in the fertilizer industry____ [4] * s»! sjt Hs :}: * It means that it is utilized in the preparation of fertilizer blends, commercial fertilization blends. Mr. Pepperman also testified that in emergency situations, sludge which was originally to be applied elsewhere was to be delivered to the Neal farm.

Thus, an inference could be made that the primary compelling factor for the storage at the Neal pit was Enviro’s need for storage, not Neal’s need for sludge. 5 For example, he stated at one point that the pit would be utilized “[w]hen the weather or field conditions are such that we cannot go on to agricultural application sites of any of our locations.” At another point, he was asked, “Now ... it would be a fair statement, would it not, to say that you are going to put sludge in the storage pit on the Neal farm if weather conditions don’t permit application on farms other than the Neal farm?” He responded, “That’s correct.” He also testified that Enviro was under ³³² contract to take and remove a certain amount of sludge from sewerage plants equalling the plants’ daily production. Mr. Pepperman also testified that Enviro’s business was “[t]he management of the sludge,” and that the land application of the sludge was paid for by Enviro. There was no evidence that Enviro was involved in any agricultural business. In letters to the county, Enviro, referring to an emergency situation and the county’s stop work order, responded: “Enviro-Gro has entered into contracts with municipalities which require Enviro-Gro to acquire storage facilities to be used when rain and frozen ground prevent application of manure/sludge to the Neal Farm ...

Enviro-Gro requires the storage space immediately to fulfill outstanding contracts [with sewerage plants].” George Wilson, another witness for appellants, testified on cross-examination that septic systems and sludge processes at issue in the case at bar were both “parts of systems designed to process our waste waters.” He was asked: “Well, you would conclude then that a sludge storage pit is, in fact, part of our sewage treatment system?” He responded affirmatively. He also responded that he agreed generally with a publication which stated, “sludge storage facilities and their use should be considered as a part of sewage treatment, posing engineering and monitoring problems that vary greatly.” 6 Additionally, the evidence was uncontradicted that Enviro pays $100 per month for the right to maintain the Neal storage facility, and the Neals considered the pit to be Enviro’s property. 7 It was, thus, fairly debatable that the pit was part of Enviro’s operation. Enviro was involved in sewage treatment, not in the business of agriculture. Additionally, it is ³³³ apparent that inspections of sludge storage pits are conducted by the Department of the Environment, Hazardous and Solid Waste Management Administration, 8 not by the Maryland State Department of Agriculture.

While certainly not conclusive, this is an indication that the State primarily considered the pit (and probably land application as well) as part of a sewerage system. 9 Additionally, it appears that a distinction is made between the process involved with sewage disposal and farm-generated manure disposal. From the testimony, it appears that agriculturally generated manure is regulated through a separate program, the “Agricultural Waste Management Practices Approval,” which involves the Soil Conservation Service’s extension agents under a separate program partially financed through “a federal state agricultural pollution maintenance program.” This process was further described by Mr. Chicca as an “agricultural approval program,” which contrasts with the wealth of evidence establishing that sludge pits, generally, and the Neal pit, specifically, involved sewage treatment approval programs. Mr. Chicca also testified that, generally, farm-generated manure handling does not require a permit, in contrast with sludge handling, which does. 10 Mr. Chicca and Ms. Hyson also testified that land application is only one of several methods of sludge disposal; i.e., it is not purely an agricultural land application process. ³³⁴ The standard of review used in zoning matters is that “the action of a zoning board will not be reversed on appeal if there is ‘substantial evidence’ in the record to support the board’s finding.” Zent, 86 Md.App. at 752 , 587 A.2d 1205 (quoting Neuman v. Mayor of Baltimore, 23 Md.App. 13 , 325 A.2d 146 (1974)). See also People’s Counsel v. Mangione, 85 Md.App. 738 , 584 A.2d 1318 (1990).

As we said in Mangione , when reviewing the trial court’s ruling, we apply a “clearly erroneous” standard to its findings of fact and apply an “abuse of discretion” standard to its application of the law to the facts. In zoning cases, the “clearly erroneous” standard has been described as akin to, if not identical with, the “fairly debatable” rule. Largo Civic Ass’n v. Prince George’s County, 21 Md.App. 76 , 318 A.2d 834 (1974). The BZA found that the sludge from sewerage plants stored in the pit was still a part of the sewage treatment process, not yet sufficiently identified with agriculture to be considered a permitted/incidental or accessory agriculture practice. 11 While there , was evidence both supporting and negating the findings of the BZA and the trial court’s findings, that evidence which we have discussed was sufficient to make the BZA’s decision correct.

To the extent that the trial court disagreed with the BZA’s finding that the sludge storage in question here was a stage of sewage ³³⁵ disposal prior to its transmutation to agricultural use, it erred. 12 The Court of Appeals, in a case involving a denial of a use permit, stated: “It is a clearly established rule in the law of zoning that a court may not substitute its judgment for that of the Zoning Board.” Dorsey Enterprises v. Shpak, 219 Md. 16, 23 , 147 A.2d 853 (1959). See also Largo Civil Ass’n, supra, 21 Md.App. 76 , 318 A.2d 834 . We, in discussing the law relative to rezoning, have stated that the courts may not substitute their judgment for that of the legislative agency, if the issue is rendered fairly debatable. Anne Arundel County v. Maryland Nat’l Bank, 32 Md.App. 437, 440 , 361 A.2d 134 (1976).

See also Tennison v. Shomette, 38 Md.App. 1, 5 , 379 A.2d 187 (1977), cert. denied, 282 Md. 739 (1978); Fitzgerald v. Montgomery County, 37 Md.App. 148, 153 , 376 A.2d 1125 , cert. denied, 281 Md. 737 (1977), cert. denied, 439 U.S. 854 , 99 S.Ct. 164 , 58 L.Ed.2d 160 (1978) (“[jQt is fundamental that court review of actions taken by the zoning authority is narrow and restricted in scope.”) The basic reason for the “fairly debatable” rule is that zoning matters are, first of all, legislative functions and, absent arbitrary and capricious actions, are presumptively correct if based upon substantial evidence; even if substantial evidence to the contrary exists. The zoning agency, in this case, the BZA, not the court, is considered to be the expert in the assessment of the evidence. Prince George’s County v. Meininger, 264 Md. 148, 154 , 285 A.2d 649 (1972); Brouillett v. Eudowood Shopping Plaza, Inc., 249 Md. 606 , 241 A.2d 404 (1968); B.P. Oil, Inc. v. County Bd. of Appeals, 42 Md.App. 576, 577 , 401 A.2d 1054 (1979). ³³⁶ The BZA, in the case sub judice, had to determine at what stage, in the evolutionary process of the transformation of human waste to agricultural product, the transformation was completed. Obviously, it is not an agricultural product at the time of its initial appearance.

It concededly requires extensive treatment before it can even be considered for agricultural application. When being so considered, the sludge’s constituent elements, such as metals, bacteria, nutrients, chemicals, etc., must be measured. Then its ultimate agricultural application is permitted, prohibited, and/or regulated based on its composition. Even when it finally is rendered as sludge, it does not automatically assume an agricultural identity, as much of the sludge so produced is apparently unsuitable for agricultural purposes due to its content or for other reasons.

Some is further processed for ultimate inclusion as a constituent element of fertilizer; some is incinerated; and some is dumped in landfills. Even when the land application disposal method is utilized, the sludge may be applied