Friends of Ridge v. Baltimore Gas & Electric Co.

HARRELL, Judge. “Power to the People” 1 Baltimore Gas And Electric Company (BGE), appellee and cross-appellant, seeking to replace and expand an existing electrical transformer substation (the Ivy Hill substation) located on the south side of Ridge Road, at its intersection with Gent Road, in northern Baltimore County, filed with the Zoning Commissioner of Baltimore County (Zoning Commis ⁴⁴⁸ sioner) a petition for special exception, joined with a petition for a variance of internal lot line setback requirements, to accomplish that objective. After public hearings, the Zoning Commissioner, and thereafter the Baltimore County Board of Appeals (Board), granted BGE’s petitions for both the special exception and variance over the vigorous opposition of appellants and cross-appellees, and other neighbors or organizations of neighbors in the vicinity of the BGE property (we will most often hereafter refer to appellants/cross-appellees as “the neighbors”). Appellants/cross-appellees appealed the grant of the petitions to the Circuit Court for Baltimore County. In the preliminary skirmishing, BGE moved to dismiss the appeal as to the variance, contending the neighbors lacked standing.

The circuit court (Daniels, J.) ultimately denied the motion to dismiss and affirmed the Board’s grant of both the special exception and the variance. Appellants filed a timely appeal to this Court regarding the circuit court’s affirmance of the Board’s decision. BGE cross-appealed the circuit court’s denial of its motion to dismiss the neighbors’ appeal as to the variance. ISSUES Because its resolution may affect the contours of our discussion of the neighbors’ issues, we shall first consider BGE’s cross-appeal contention, which is, as slightly rephrased by us: I. As appellants/cross-appellees were not aggrieved parties as to the variance request, the circuit court erred in not dismissing their appeal of its approval for lack of standing.

Depending on our disposition of the foregoing proposition, we may proceed to consider the following appellate questions propounded by the neighbors, which we also have slightly rephrased as: II. Did the Board err, as a matter of law under the Baltimore County Zoning Regulations (BCZR), in concluding that BGE’s proposed replacement and enlargement of the Ivy Hill substation, at least as it implicated that part of ⁴⁴⁹ the BGE property described as Tract “A,” did not also require an amendment to the Final Development Plan for the Fox Ridge Estates community?

III

Did the Board err, as a matter of law, in granting the variance?

IV

Did the Board err, as a matter of law under the BCZR, in finding that there was a need for the augmented electric substation? V. Did the circuit court err in denying appellants’ Motion to Alter or Amend Judgment which was based upon new evidence as to the alleged deleterious effect on the neighbors’ property values due to BGE’s land use proposal? THE FACTS In March 1956, the Zoning Commissioner approved BGE’s petition for a special exception to erect and operate a 16.6 megawatt, single transformer electrical substation 2 occupying approximately 1200 square feet of the surface of a trapezoid-shaped, 0.40 acre parcel (Tract C) owned by BGE, abutting the south side of Ridge Road, opposite its intersection with Gent Road, and approximately 625 feet west of Falls Road, in Baltimore County. Upon its construction and placement into service later in 1956, this transformer was known as the Ivy Hill substation.

The initial service area of the Ivy Hill substation was established as an 18 square mile portion of northern Baltimore County roughly bounded by Butler Road on the north, Sagamore Forest Road on the west, Broadway Road and Caves Road on the south, and Oregon Ridge Park on the east. 3 ⁴⁵⁰ Anticipating that the 16.6 megawatt facility some day would become obsolete due to, among other reasons, increased demand for electricity, BGE appears to have begun laying the foundation for an expansion of the Ivy Hill substation no later than 1988 when it contracted to acquire a 1.5 acre parcel (Tract A) abutting Tract C on its eastern and southern boundaries. BGE acquired Tract C in 1989 from Mr. George V. Palmer, the principal owner-developer of the abutting property, who, in 1988, had obtained approval of a Final Development Plan for the entirety of his property, referred to then as the Forwood Property (later to be known as the Fox Ridge Estates development). 4 On the approved 1988 Final Development Plan (the Plan), the heavily-wooded Tract A, unlike the other proposed parcels shown on the Plan, was not assigned any specific development proposal or information; instead, arrows drew attention to the fact that Tract A was labeled as to be “conveyed to adjoining property owner BGE Co.” The Plan also indicated that BGE owned the abutting Tract C. The Plan depicted the remaining property as lots for 24 single-family-detached, residential dwellings, and showed such development information for each proposed lot as house location, building envelope, septic field location, and subdivision street pattern. Thus, at the time of conveyance of Tract A to BGE in 1989, the 16.6 megawatt Ivy Hill substation on Tract C was in existence and operating, but none of the proposed residential building lots on the Forwood/Fox Ridge ⁴⁵¹ Estates property had been developed or sold to anyone, let alone appellants/cross-appellees here. Rounding out its land assemblage for the planned expansion of the Ivy Hill substation, BGE contracted in 1994, prior to filing the instant petitions, with a Mr. & Mrs. Vinup to acquire their 0.922 acre tract abutting Tract C on the west.

The Vinups’ property, referred to as Tract B, was improved at the time by a residence and a swimming pool, both of which BGE planned to raze in order to make the property suitable for the planned substation expansion. Over the period from 1989 until BGE contracted with the Vinups in 1994, and while BGE apparently was engaged in its internal planning efforts with regard to the Ivy Hill substation, the Forwood Property/Fox Ridge Estates lots were developed, and homes were built on them and sold by Mr. Palmer’s successor, JCS Corporation. 5 The owners of those ⁴⁵² homes, together with a few other neighbors in the surrounding area, understandably became the moving forces opposing BGE’s expansion plans. 6 The neighbors residing in Fox Ridge Estates claimed that, at the time they purchased their homes, they had no idea that BGE might expand the Ivy Hill substation beyond Tract C. This belief was fostered either by representations made to them by the builder/developer (or its representatives) prior to or at the time of their closings or by opinions they formed from their scrutiny of some or all of the available public documents regarding the development planned for the Forwood Property, i.e., approved subdivision plat and/or the Plan. Even those who carefully perused the Plan concluded that Tract A could not be developed without an amendment to the Plan because the Plan did not propose any specific development on Tract A. 7 ⁴⁵³ On 10 May 1994, BGE filed with the Zoning Commissioner a petition for special exception for “an outdoor electric public utility service center (electric substation) in an R.C.-5 Zone [as allowed by special exception in BCZR § 1.A.0.4.2.B.11] and to amend the Fox Ridge Estates (formerly Forwood Property) Final Development Plan if necessary.” In addition, BGE concurrently filed a petition for variance requesting permission essentially to ignore the interior lot lines of Tracts A, B, and C for purposes of the otherwise required 50 foot building setback in the R.C.-5 Zone. The subject property of the petitions was essentially the assembled 2.8933 acres of Tracts A, B, and C, although only Tract A was implicated technically in the precautionary request to amend the Plan as to the Forwood Property/Fox Ridge Estates.

The petitions were assigned Case No. 94-452-XA. BGE’s proposal involved removing the 16.6 megawatt transformer existing on Tract C and, in two phases, constructing an expanded, 64 megawatt substation. Phase I, a 32 megawatt transformer and supporting equipment, would be constructed as soon as possible. According to BGE’s electrical service needs forecasting, the Ivy Hill service area (which would include reabsorbing a portion of the original Ivy Hill service area in its southwest corner that had been transferred temporarily to the Delight substation 8 during a power crisis in the winter of 1994 9 ) would need this level of service capability by the year 2001. 10 The forecasts were premised on the following ⁴⁵⁴ information relevant to the original Ivy Hill service area: (a) current demand from the largely residential existing development (approximately 1750 dwelling units — up from 1000 homes existing in 1985); (b) projected growth of 75 new dwelling units per year, predominantly in the southern part of the service area, based on an analysis of zoning yields and other data obtained from the County government; and (c) an assumed annual electric consumption by 75 dwelling units of .7 megawatt.

BGE projected that Phase II, the addition of a second 32 megawatt transformer and supporting equipment, would be needed to meet service demand and other contingencies beyond the year 2001 because the service area would not have achieved maximum growth by then and because of the general need to be assured of adequate future capacity to be called upon to respond to unforeseen demands 11 and/or a higher degree of efficiency in providing electrical service in the Ivy Hill area. BGE proposed to increase the service area by the addition 12 of a 4 square mile area — Hickory Meadow — bordering on the southeast corner of the original Ivy Hill service area. 13 BGE’s projections for the need for and longevity of Phase II’s power level, however, were less precise and more open-ended than those for Phase I. ⁴⁵⁵ BGE grounded its decision to seek expansion of the existing Ivy Hill substation location, rather than the possible alternatives of establishing a new substation elsewhere or upgrading another existing substation, on the centrality of the Ivy Hill substation with regard to the electrical load concentrations (existing and projected) within the service area. 14 Moreover, existing connective infrastructure (major supply lines) to and from the Ivy Hill substation would reduce the need to acquire additional rights of way or construct additional capital projects. The siting of the Phase I and II improvements on the 2.8933 acres, explained by BGE in terms of balancing the goal of achieving maximum screening of views from adjacent properties against the necessity of the functional interrelationships and spacing of the equipment, created the need for the setback variance requested. Although the bulk of the physical installations 15 was to be on Tracts B and C, the bulk of a storm water management area (a potential pond) and a relatively small portion of the vertical structures would be located on Tract A. Thus, the straddling of the interior lot lines of Tracts A, B, and C by the proposed facility necessitated the variance request. 16 The developmental summary of the BGE proposal disclosed that of the 2.8933 acre site, a storm water management ⁴⁵⁶ facility 17 would occupy one-quarter acre and the electrical substation structures 18 would occupy less than an additional one-half acre.

A total of three-quarters of an acre of the 1.5977 acres of existing woods on the total site would be removed to make possible the installation of all of the proposed structures. BGE’s plan also contained supplemental plantings designed to screen, to some degree, the substation from exterior views. On 21 June 1994, the Zoning Commissioner conducted a hearing on BGE’s petitions and on 24 June issued an order granting them. The neighbors noted a timely appeal of that order to the Board on 21 July.

The Board conducted de novo evidentiary hearings on 4 October 1994 and 10, 12, 17, and 19 January 1995. At the Board’s hearings, BGE explained that the overarching force driving the need to expand the Ivy Hill substation flowed from its legal obligation as' a regulated Maryland public utility to supply its customers with adequate electric service including a reasonable reserve for emergencies. 19 BGE’s evi-dentiary presentation included, among other things, expert witnesses regarding electrical substation construction, electrical demand forecasting, the effect of EMF’s (electro-magnetic fields), storm water management, tree planting and forest management, land planning and zoning in Baltimore County, and real estate appraising, together with physical evidence consisting of various photographs, plats, and plans. ⁴⁵⁷ Before the Board, the neighbors’ evidence aimed to demonstrate that (a) the proposed expansion of the Ivy Hill Substation in both number of square feet of surface area to be occupied by the physical installations (from 1200 to 22,000) and in electrical service capacity (by 400% over the existing 16.6 megawatt transformer) exceeded the legitimate existing and future needs of the original service area (without conceding that such increased capacity was needed even with the proposed augmented service area) and was out of character with the surrounding residential community; (b) the proposed expansion would have a deleterious effect on the property values of the surrounding community; (c) BGE’s proposal, insofar as it proposed development on Parcel A, failed to follow the procedures prescribed by the BCZR for amending the approved Plan for the Fox Ridge Estates subdivision; and (d) BGE had failed to produce adequate evidence to justify the grant of the variance from the interior lot line setback requirements. The neighbors themselves provided the bulk of the testimonial and documentary evidence regarding these points, but also marshaled an expert real estate appraiser, Mr. Ernest Kern, who opined generally that the existence of the enlarged substation would diminish the value of the surrounding properties and homes. 20 Moreover, the neighbors produced an expert urban planner, Mr. Norman E. Gerber, a former Director of Planning for the County, who testified in support of their opposition. Mr. Gerber opined: (a) the BCZR provisions for amending the Plan for the Fox Ridge Estates subdivision had not been followed; (b) even if the proper procedures had been followed, the BGE proposal as to Tract A could not be approved' under the criteria for a Plan amendment; (c) BGE’s overall proposal would be detrimental to the welfare of the neighborhood, overcrowd the surface area of Tracts A, B, and C, and would be inconsistent with the ⁴⁵⁸ purpose of the R.C.-5 zone as it exists in this community, all contrary to the required findings that must be made, as provided in the BCZR, before a special exception can be approved; and, (d) as to the variance request, in addition to characterizing BGE’s proposal as overcrowding its property, there was nothing unique or unusual about the physical characteristics of the BGE parcels when compared to the surrounding residential properties.

The Board issued its written opinion on 31 May 1995, granting both the special exception 21 ■ and the variance. In reaching these decisions, the Board explained, in pertinent part: Protestants [the neighbors] allege that, due to the ... parcel known as Tract A, the plan which is the subject of this hearing should have gone to the Planning Board for advice on the appropriateness of the instant case in relation to the final development plan [for Forest Ridge Estates] ____the Board agrees with the Petitioner [BGE] that the subject case is not a deviation from the final development plan, and, in fact, that the transfer of title of Tract A to the Baltimore Gas & Electric Company (hereinafter “BGE”) occurred prior to the sale of other lots within the development. Therefore, this case is properly before the Board. The facts in the case are essentially undisputed ...

The issues before this Board are whether (a) BGE is able to meet the tests under Section 411 of the Baltimore County Zoning Regulations (hereinafter “BCZR”) for public utility uses; (b) whether, due to the nature of the proposed development, the tests pursuant to Section 502.1, Special Exceptions, are met; and (c) whether the Petitioner is due ⁴⁵⁹ variances from interior lot lines between Tracts A, B and C, pursuant to Section 307, Variances, of the BCZR. Ht * % ifc % The first issue to be decided by this Board, therefore, is the question of need pursuant to Section 411 of the BCZR regarding distribution of electric power. Petitioner brought evidence and testimony by an expert in forecasting electric demand, James F. Ryan. Protestants offered the testimony of Ronald P. Hanley, an employee for a waste collection and recycling company, and one who had three courses in statistics at Pennsylvania State University, and who prepared various graphs which were introduced into evidence.

According to the testimony of Charles S. Taylor, an engineer and expert in the area of electrical system planning, the BGE franchise with the Public Services [sic] Commission in the State of Maryland is required to supply power at all times and satisfy all demands. In short, the obligation of the Petitioner is to serve the demand at peak periods. The Protestants allege that the peak demand experienced on one day in the winter of 1994 was, admittedly by the Petitioner’s witness, a one-time occurrence; however, that one-time occurrence established the new demand. It was well established during the course of evidence and testimony that existing demand, prior to the single-day occurrence in 1994, is not met by the existing substation capacity; therefore, need for enlargement of the substation given current demand is justified.

As indicated by Petitioner’s experts, future demand is forecasted and is the basis for establishing future demand in designing facilities such as the Ivy Hill Substation. The analysis of the need comparison versus capacity presented by Protestants’ witness, Mr. Hanley, points to a future need for increased capacity from this substation. Protestants would have the petitioner increase the capacity of the substation in increments which stay just ahead of demand. The Board notes that such alteration of the substation places unreasonable engineering constraints and unnecessary additional cost to the ultimate development of this site.

Such costs would be unnecessarily ⁴⁶⁰ borne by all electric consumers for the benefit of those in the surrounding community. The Public Services [sic] Commission dictates that BGE must provide sufficient power to exceed demand. Petitioner has obviously met its burden of proof to Section 411 as buttressed by the evidence presented by Protestants in their graphic analysis of need versus capacity. The Protestants further allege that the Ivy Hill Substation should not be used to supply power to areas outside of their own locale.

Again, BGE was able to demonstrate that, because of its requirement to provide power, it was forced into the position of switching power distribution away from the Ivy Hill Substation as a result of the peak demands in 1994, creating a similar condition at the nearby Delight Substation in Owings Mills, an area growing even faster than the area surrounding Ivy Hill. The Board therefore finds as a fact that not only has need been demonstrated but that in further reviewing the requirements of 502.1 the health, safety and welfare of the general public is suspect when required power is not delivered to the homes served by the substations as mandated. * * * * * * Regarding [BCZR § ]502.1G, the Board agrees with the testimony of Mr. [George] Gavrelis [BGE’s expert with regard to land planning and zoning] when he states that the R.C. 5 zone permits some public utility uses as a matter of right and others as special exceptions which are presumed to be valid uses. The mere existence of homes in the R.C. 5 zone points to their need for power transmission; therefore, the reasoning follows that facilities to provide the transmission of power as a natural consequence of the existence of those homes dictates that not only are electric substations consistent with the purposes of the property’s zoning classification but are a need to be fulfilled, in the allowance of development in the R.C. 5 zone. Regarding [BCZR § ] 502.1H, the Board heard testimony from Mr. Gavrelis and Monica McGrady, BGE project engi ⁴⁶¹ neer and an expert in site planning, that because of the intent to raze the existing structures which include a residence and swimming pool, coupled with the planned siting of equipment within the cleared area and the additional landscaping, the impermeable surface and vegetative retention provisions are met by the subject Petition.

Concerning 502.1A, the Board did hear testimony from experts in property values from both the Petitioner and Protestants; the Board recognizes that one of the concerns in regard to property values is the visual impact that an enlarged substation presents. The Board is not compelled by the argument that property values will be negatively impacted; however, the Board recognizes that the residents have come to be familiar and comfortable with what has been termed the pastoral setting of the neighborhood. In recognizing that BGE is meeting the requirements for vegetative retention provisions of the regulations, the Board is compelled to require as part of any improvements pursuant to this Petition to include landscaping which serves to provide a visual buffer between the subject site and surrounding properties, in deference to the adjoining property owners. Therefore, the Board will grant the special exception, subject to restrictions.

The Petitioner finally must meet the tests under [BCZR] Section 307.1 in pursuing variance from lot line setbacks, said lot lines existing between tracts owned by the Petitioner. George Gavrelis clearly points out in his testimony that Section 306 of the BCZR speaks to lot area regulations for erecting substations. The Petitioner seeks a variance under 307.1 from BCZR 1A04.3B.3 which requires a 50-foot setback from any lot line other than a street line. The Board finds as a fact that Section 306 applies in this case and that the application for a variance under 307.1 may be treated as moot.

The Petitioner recognizes that its placement of electric utility structures on the subject site, straddling interior lot lines and certainly within otherwise required setbacks, may be construed under 1A04.3B.3 as a principal building, and is therefore requesting such variance. The Board is ⁴⁶² compelled to address the issue of 307.1 pursuant to the Petition. As stated by Mr. Gavrelis in his testimony, the Board finds that the application of Section 306 points to the fact that public utilities are unique in their requirements. Therefore, the spirit and intent of the BCZR in height, area, off-street parking and sign regulations are met by the subject Petitioner.

Since the Petitioner seeks relief from 1A04.3B.3, the Petitioner must meet the tests in trying to prove that special circumstance or conditions exist that are peculiar to this land or structure that is the subject of the variance request. In David Cromwell v. Arthur Thomas Ward, III, [ 102 Md.App. 691 , 651 A.2d 424 (1995) ] ... the Court of Special Appeals [of Maryland] states that the conditions which are peculiar to the land or structure must be met before the tests for strict application of the BCZR and any resulting practical difficulty or unreasonable hardship are reviewed. The Board finds as a fact that the existing electrical substation is a substation which is far undersized in capacity for the required demand in the existing locale. An immediate need in increased capacity has been adequately demonstrated to address the issue of an unusual condition which exists with the existing structure.

BGE is mandated to increase the capacity of any substation in order to stay ahead of demand. The conditions which exist in the existing substation are unique in that BGE has been unable to even meet existing demand. The Board finds that the existing conditions and insufficient capacity force BGE to increase capacity; furthermore, in order to accommodate existing and increasing demand, in accordance with its requirements under its Public Services franchise, as well as nationally recognized and accepted building codes and standards, a condition exists which requires sufficient area to accommodate the needs of an enlarged substation. The Board therefore finds that the first test under 307.1 has been met.

The land on which the substation will sit is divided by interior lot lines. The second test under 307.1, assuming the first has been met, is that strict compliance with the zoning regulations ⁴⁶³ would result in practical difficulty or unreasonable hardship. In order to require BGE to comply strictly with the setback requirements, the Board would be asking BGE to deviate from the aforementioned nationally recognized building and electrical codes, as well as sound engineering practices, on consolidating all substation equipment to the extent possible under this Petition. That deviation creates a practical difficulty in causing BGE to design a facility which would not conform to those standards.

Furthermore, the Board finds as a fact that BGE’s proposal, in consolidating the substation equipment to a central location within the three tracts, provides for the maximum setback from adjoining property owners, allowing for the greatest opportunity from visual and other alleged impacts. Because the Board finds that strict compliance would result in practical difficulty, the Board is not required to address the issue of unreasonable hardship. The neighbors, on 16 June 1995, sought judicial review in the Circuit Court for Baltimore County of the Board’s action. When they realized that BGE had initiated the local permitting process, intending to commence construction in reliance on the recently granted special exception and variance, the neighbors sought and obtained from the circuit court (DeWa-ters, J.) on 30 June 1995 a stay of the Board’s decision.

This stay stymied BGE’s ability to proceed through the permitting process until the merits of the judicial review petition could be heard and decided. On 28 July 1995, BGE filed a motion to dismiss the neighbors’ appeal of the variance approval. BGE premised its theory of the neighbors’ lack of standing to challenge the interior lot line setback variance on the neighbors’ alleged lack of demonstrable and special aggrievement, inasmuch as the BGE proposal would meet or exceed the setback requirement from any of the neighbors’ properties vis á vis the external lot lines of the assembled BGE parcels. Consequently, BGE reasoned, no neighbor had demonstrated that a particularized adverse effect would result if BGE were allowed to ignore the internal lot lines for purposes of clustering the substation ⁴⁶⁴ equipment in the center of its assembled parcels.

Rather, BGE asserted that the clustering design enabled it to better meet or exceed the setbacks and landscape screening of the installation from the neighbors properties. After considering the parties’ memoranda of law, the court filed on 30 December 1996 its well reasoned and written 24 December 1996 opinion and order denying the neighbors’ petition for judicial review and effectively affirmed the Board’s decision. Prior to noting their appeal to us on 6 January 1997, the neighbors sought from the circuit court a further stay of BGE’s ability to complete the local permitting process based on the approved (and now affirmed) special exception and variance. That request was denied by written order dated 31 January 1997.

At the same time they filed their motion for further stay, the neighbors also filed a Rule 2-534 motion to alter or amend judgment. The motion requested that the court allow them to offer additional evidence, which purportedly they did not become aware of until after oral argument on the merits in the circuit court 22 but before the court’s 24 December 1996 opinion and order; the evidence concerned revised real property tax valuations made by the Maryland Department of Assessments & Taxation the properties owned by the Hanleys, the O’Haras, the Folios, the Rytters, the Browns, and the Hows-es. 23 The revised valuations reflected for the levy year 1996-97 reduced “full cash value” from those proposed in December 1995 assessments. The written notices of the revised, reduced ⁴⁶⁵ values were dated 23 August 1996 and the affected neighbors acknowledged that they received the notices shortly thereafter (except in the case of the O’Haras, whose notice was dated 27 September 1996 and received the same date). On the face of the notices, each adjustment in full cash value was explained as “for proximity to Baltimore Gas and Electric substation and economic obsolescence.” Further, this explanation was reached apparently after a State assessor had visited the neighborhood on 20 May 1996. 24 The circuit court denied the motion to alter or amend by written order dated 3 February 1997.

In addition to the neighbors’ appeal, BGE cross-appealed the circuit court’s denial of its motion to dismiss the neighbors’ petition for judicial review as to the variance. Standard of Review As Judge Eyler recently stated for us: [TJhere are two general standards of review of a decision of a zoning board: In regard to findings of fact, the trial court cannot substitute its judgment for that of the agency and must accept the agency’s conclusions if they are based on substantial evidence and if reasoning minds could reach the same conclusion based on the record; when reviewing findings of law, however, no such deference is given the agency’s conclusion. (quoting Columbia Road Citizens’ Assoc. v. Montgomery County, 98 Md.App. 695 , 635 A.2d 30 (1994)). See also Liberty Nursing v. Department, 330 Md. 433, 442-43 , 624 A.2d 941 (1993) (discussing administrative review generally); Caucus v. Maryland Securities, 320 Md. 313, 323-24 , 577 A.2d 783 (1990) (same).

People’s Counsel v. Prosser Co., 119 Md.App. 150 , 704 A.2d 483, 492 (1998) (citing Colao v. Prince George’s County, 109 ⁴⁶⁶ Md.App. 431, 458, 675 A.2d 148 , aff'd, 346 Md. 342 , 697 A.2d 96 (1997)). On this score, only a little more need be said. With regard to Charter counties particularly, such as Baltimore County, Md.Code, art. 25A, § 5(U) (1996 Repl-Vol., 1997 Supp.), 25 courts may reverse or modify decisions of the Board “if ... not in accordance with law.” See Baltimore County Code, Charter § 604. The substantial evidence standard applicable to the Board’s findings of fact and resolution of mixed questions of law and fact, sometimes referred to as the “fairly debatable” test, is implicated by our assessment of whether the record before the Board contained at least “a little more than a scintilla of evidence” to support the Board’s scrutinized action.

See Anne Arundel County v. A-PAC, Ltd., 67 Md.App. 122, 126 , 506 A.2d 671 (1986) (quoting Floyd v. County Council, 55 Md.App. 246, 258 , 461 A.2d 76 (1983)). If such substantial evidence exists, even if we would not have reached the same conclusions as the Board based on all of the evidence, we must affirm. Stated another way, substantial evidence pushes the Board’s decision into the unassailable realm of a judgment call, one for which we may not substitute our own exercise of discretion. Of course, on pure questions of law, we extend no deference to the Board (or the circuit court for that matter) beyond the weight merited by the persuasive force of the reasoning employed.

I. BGE asserts initially that the record fails to demonstrate that the neighbors possess the necessary aggrievement to establish standing to obtain judicial review of the Board’s grant of the variance. In support of this contention, BGE essentially maintains that, because the variance pertains to lot line setback requirements internal to its assembled lots and ⁴⁶⁷ BGE’s development proposal for those lots otherwise meets the external lot line setback requirements relative to the neighbors’ properties, 26 the neighbors did not, indeed cannot, demonstrate the special damage or adverse effect necessary to support aggrievement. BGE’s dexterous argument will not prevail. The recent opinion of the Court of Appeals in Sugarloaf v. Dept. of the Environment, 344 Md. 271 , 686 A.2d 605 (1996), although involving questions of judicial review of a decision by a State administrative agency, is very instructive regarding BGE’s standing challenge here.

In its discussion of the common law definition of “aggrieved” as applicable to judicial review of the actions of administrative bodies generally, inclusive of the Board’s in the instant case, the Court observed that in order to be “aggrieved” for purposes of judicial review, a person ordinarily must have an interest “ ‘such that he is personally and specifically affected in a way different from ... the public generally.’ ” See Maryland-Nat’l v. Smith, supra, 333 Md. at 11, 633 A.2d at 859; Abramson v. Montgomery County, 328 Md. 721, 733 , 616 A.2d 894, 900 (1992); DuBay v. Crane, 240 Md. 180, 185 , 213 A.2d 487, 489-490 (1965) (“the [administrative] decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from ... the public generally”). Sugarloaf, 344 Md. at 288 , 686 A.2d 605 (some internal citations omitted). With respect to the question of judicial standing in an administrative law context, the Court cautioned: In cases involving challenges to administrative land use decisions, there is a distinction between standing in court to obtain review of the governmental action and the merits of the challenger’s position. Thus, in Bryniarski v. Montgomery Co., 247 Md. [137] 145-146, 230 A.2d [289] 295 [(1967)], ⁴⁶⁸ involving the administrative grant of a special exception permitting the construction and operation of an apartment hotel, this Court stated: “The status of a person to [obtain judicial review] as a ‘person aggrieved’ is to be distinguished from the result on the merits of the case itself____ If, on the merits, the board acted properly in approving the application, the protesting property owner is not damaged in law, however much he may be damaged in fact.

His damage is then damnum absque injuria. Because the result on the merits might be adverse, however, does not mean the protestant would not have status to challenge the board’s action.” Id. at 294-95 , 686 A.2d 605 (some internal citations omitted) (emphasis in original). Courts consider challenges to a litigant’s standing on a case-by-case basis. Guidance for these ad hoc determinations in land use cases also is available in Sugarloaf .

In actions for judicial review of administrative land use decisions, “[a]n adjoining, confronting or nearby property owner is deemed, prima facie, ... a person aggrieved. The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for [judicial review] and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved.” Bryniarski v. Montgomery Co., supra, 247 Md. at 145, 230 A.2d at 294. See, e.g., Md. Nat’l Cap. P. & P. v. Rockville, 269 Md. 240, 248 , 305 A.2d 122, 127 (1973) (indicating that one who “owns any property located within sight or sound of the subject property” is aggrieved); Wier v. Witney Land Co., 257 Md. 600, 612-613 , 263 A.2d 833, 839 (1970) (“ ‘At least three of the protestants ... are in sight distance of the property forming the subject of the petition....

These protestants were ... nearby property owners and are deemed, prima facie, to be specially damaged and, consequently, persons aggrieved’ ”); Chatham Corp. v. Beltram, 252 Md. 578 , 251 A.2d 1, 4 (1969) (“In light of the testimony of Mr. Beltram and Mrs. Hahn with reference to ⁴⁶⁹ the proximity of their homes within the same subdivision to the reclassified area ... there was no error in the ruling that [they] had standing to sue”); Aubinoe v. Lewis, 250 Md. 645, 650-652 , 244 A.2d 879, 882-883 (1968); The Chatham Corp. v. Beltram, 243 Md. [138] 148, 220 A.2d [589] 595 [(1966)] (“Since Beltram’s evidence was that he owned property, in which he lived, in close proximity to the reclassified land ..., there was no error in ruling that Beltram had standing to sue”); Toomey v. Gomeringer, 235 Md. 456, 460 , 201 A.2d 842, 844 (1964) (although “the protestants’ properties were more than two city blocks away from the property for which rezoning was sought,” they were accorded standing); Bd. of Zoning Appeals v. Bailey, 216 Md. 536, 539 , 141 A.2d 502, 503 (1958) (standing accorded to zoning reclassification protestants who lived “three-fourths of a mile by road and between one-third and one-half a mile as the crow flies” from the subject property). Id. at 297-98, 686 A.2d 605 (Emphasis in original.) Considering the case at hand, we observe initially that BGE offered no additional evidence to the circuit court, bearing on the issue of the neighbors’ standing, than was otherwise part of the record before the Board. As we noted supra at n. 4, virtually all of the neighbors own and reside on property situated to the south and east of the southerly boundary of Tract A of the BGE property, separated only by a 24 foot wide, paved residential subdivision road (Joel Court). Certain neighbors (the Folios and the Howses) testified expressly that their homes were within 300 feet of the BGE property.

We are unwilling to conclude that the neighbors, or at least some of them, 27 did not demonstrate that their properties were in close proximity to the subject properties of BGE’s variance application. Moreover, many of the neighbors complained, at a minimum, of perceived visual objections to BGE’s proposed, ⁴⁷⁰ clustered improvements and of anticipated adverse effects flowing therefrom as to the value of their homes and realty. We are satisfied, as was the circuit court, that the neighbors presented an adequate prima facie case of their standing to challenge the grant of the variance, which BGE failed to rebut persuasively. The variance would enable BGE to cluster or mass its improvements in the center of the assembled parcels, heedless of the internal lot line setback requirement.

Though debatable that such site design leads to beneficial impacts on the surrounding community (and is otherwise justifiable on electrical engineering bases), such an assertion arguably opens the door also to balancing considerations of the potentially adverse visual effects of the massing of the equipment. Thus, the variance request, for purposes of establishing judicial standing to challenge its grant, bears an articulable and rational connection to the neighbors’ concerns, even though the focus of the request is internal to BGE’s property.

II

A flagship issue of this appeal appears to be the neighbors’ two-fold assertion that (1) BGE’s development proposal as to Tract A was required to, but did not, receive Planning Board review and approval, as required at the time for an amendment to the previously approved Final Development Plan for the Forwood Property/Fox Ridge Estates subdivision; and, (2) regardless of which governmental entity properly may review and approve amendment proposals to an approved Plan under the circumstances, BGE’s proposal as to Tract A could not satisfy the BCZR requirement that such amendment be found “consistent with the spirit and intent of the original plan.” BCZR § 1 BOL. 8(A)(4). The threshold question that must be answered before launching into any close analysis of the neighbors’ two arguments is whether BGE’s proposed uses on Tract A triggered a formal Plan amendatory process at all. Indeed, as the Board explained as its primary reason for concluding that no amend ⁴⁷¹ ment was required, BGE’s proposal was “not a deviation from the final development plan.” The pertinent BCZR provisions with regard to final development plans generally, and amendments thereto specifically, are as follows: 28 1B01.3 — Plans and Plats. A. Development Plans. 1.

Purpose. This paragraph is intended: a. to provide for the disclosure of development plans to prospective residents and to protect those who have made decisions based on such plans from inappropriate changes therein; and b. to provide for review of residential development plans to determine whether they comply with these regulations and with standards and policies adopted pursuant to the authority of Section 504. sfc s¡* * sfc * # 5. Forms and Content of Plans. :■« sj; H* % sH b. Content.

Each partial and final development plan must show: the locations, types, and exterior dimensions of all proposed structures and all existing structures to be retained; generalized floor plans to scale; layout of parking facilities; streets and drives giving access to and lying within the tract; existing topography and major vegetation; proposed grading; common amenity open space (including local open space); all additional information that may be required under procedures adopted pursuant to the authority of Section 504; and all additional information which is necessary, as determined by the zoning commissioner and the director of Planning, to ascertain whether the project will comply with the zoning and subdivision require ⁴⁷² ments of Baltimore County. The plan shall contain the note that landscaping and screening shall conform to the standards contained in the Baltimore County Landscape Manual adopted pursuant to Section 22-105 of Title 22 of the Baltimore County Code. 7. Amendment of Approved Development Plans. After partial or final development plans have been approved as provided under Subparagraph 6, preceding, they may be amended only as provided below. a.

Amendment Prior to Sale of Interest in Nearby Property. The development plans may be amended by simple resubmission, or by the submission of appropriate documents of revision, subject to the same requirements as are applied to original plans, if there is no change with respect to any lot, structure, or use within 300 feet or a lot or structure which has been sold since the original plans were filed. b. Amendment After Sale of Interest in Nearby Property or Upon Demand for Hearing. In the case of an amendment not allowed under Sub-subparagraph a, by reason of sale of property within the area, or in case of a demand for hearing by an eligible individual or group, the plans may be amended through special exception procedures, in the manner provided under Section 502 and subject to the following provisions: (1) The amendment must first be approved by the Planning Board as being in accord with provisions adopted under the authority of Section 504.

(2) The amendment must be in accord with the specific standards and requirements of this article, as determined by the Office of Planning and Zoning. (3) Only an owner of a lot abutting or lying directly across a street or other right of way from the property in question, an owner of a structure on such a lot, or a homes association (as may be defined under the subdivision regulations or under provisions adopted pursuant ⁴⁷³ to the authority of Section 504) having members who own or reside on property lying wholly or partially within 300 feet of the lot in question are eligible to file a demand for hearing. (4) It must be determined in the course of the hearing procedure that the amendment would be consistent •with the spirit and intent of the original plan and of this article.[ 29 ] As noted previously, the Zoning Commissioner approved the Plan for the Forwood Property/Fox Ridge Estates subdivision on 27 May 1988. The Plan depicted a development of twenty-four single family, detached residences on numbered lots, plus Tract A. For each of the numbered lots, house locations and orientations, building envelopes, typical off-streeting layouts, well locations, soil types, topographic data, and other development information were provided graphically and statistically.

In contrast, however, stood Tract A. The Plan provided no statistical or graphic development proposal for Tract A, except for the notation that it was “to be conveyed to adjoining property owner BGE Co.” Further, arrows indicating the relationship of Tract A to the existing BGE property (Tract C) were superimposed across the common boundary line of the two tracts. As we know from other evidence in the record, the 16.6 megawatt electrical transformer had been in existence on Tract C since 1956. The ⁴⁷⁴ subdivision plan for the Forwood Property/Fox Ridge Estates, recorded on 23 August 1988, also depicted no development on Tract A, contrasted with the homes shown on the twenty-four numbered lots. Tract A was conveyed to BGE before any of the residentially-denominated lots in the Plan were marketed or conveyed.

Clearly, the Plan did not propose residential development on Tract A. That being the case, much of the specific informational requirements of BCZR § 1B01.3A for inclusion on a final development plan appear inapplicable to Tract A. That no more explicit development plan for Tract A was itemized on the Plan is, of course, what powers the instant controversy. The neighbors cry foul, asserting that they were surprised when they learned of BGE’s plans for Tract A following the variance and special exception filing in May 1994. BGE impliedly decries as disingenuous the neighbors’ claims of surprise. BGE points to presumably mandatory inferences that a reasonable person would draw from the facts that the Plan, in substance, alerted any reader that Tract A would become the property of BGE and, in all likelihood, given the existence of the existing 16.6 megawatt substation on the abutting Tract C and the absence of a contrary development proposal for Tract A, would become subject to at least some public utility use that implicated the principal, if not sole, activity engaged in by the prospective owner, i.e., providing electrical service to its customers.

Mr. Gavrelis, BGE’s expert witness regarding zoning and land planning in Baltimore County, testified, among other things, that BGE’s plans for Tract A were “in absolute accord with [the Plan] for Tract A.” He based this opinion on the Plan’s notations as to Tract A’s prospective conveyance to BGE and the arrows linking it to Tract C, upon which the existing substation was located. He further expressed his opinion that the Plan notes predicted BGE’s future use to such an extent that subsequent purchasers of the residential lots within the remainder of the Forwood Property/Fox Ridge Estates subdivision were on notice of the likely future use of ⁴⁷⁵ Tract A, consonant with the purpose articulated in BCZR § 1B01.3(A)(1)(a). 30 We conclude that the Board had before it an adequate factual record to support its conclusion that no amendment to the Plan was required under the circumstances of this case. Moreover, the Board correctly interpreted BCZR § 1B01.3(A) and applied it to the facts as the Board found them to be. Because we agree with the Board’s and circuit court’s disposition of this issue, we need not address the neighbors’ two-fold argument, because both of its elements necessarily assume that an amendment to the Plan was required.

III

BCZR § 307.1 provides as follows with regard to variances: 31 The zoning commissioner of Baltimore County and the County Board of Appeals, upon appeal, shall have and they are hereby given the power to grant variances from height and area regulations, from off-street parking regulations and from sign regulations, only in cases where special circumstances or conditions exist that are peculiar to the land or structure which is the subject of the variance request and where strict compliance with the zoning regulations for Baltimore County would result in practical diffi ⁴⁷⁶ culty or unreasonable hardship. No increase in residential density beyond that otherwise allowable by the zoning regulations shall be permitted as a result of any such grant of a variance from height' or area regulations. Furthermore, any such variance shall be granted only if in strict harmony with the spirit and intent of said height, area, off-street parking, or sign regulations, and only in such manner as to grant relief without injury to public health, safety, and general welfare. They shall have no power to grant any other variances.

Before granting any variance, the zoning commissioner shall require public notice to be given and shall hold a public hearing upon any application for a variance in the same manner as in the case of a petition for reclassification. Any order by the zoning commissioner or the County Board of Appeals granting a variance shall contain a finding of fact setting forth and specifying the reason or reasons for making such variance. (Emphasis added.) BGE sought a variance in this case from BCZR § lA04.3(B)(3)’s area regulation in the R.C.-5 zone that required that “[a]ny principal building ... constructed ... shall be situated ... at least 50 feet from any lot line other than a street line.” The aspect of BGE’s special exception application that, in the exercise of caution, dictated the need for such a variance was the clustering of the expanded Ivy Hill substation equipment in the center of the assembled Tracts A, B. and C. That siting arguably would not be possible if the equipment (if treated as a “principal building”) had to be set back 50 feet from the internal lot lines of the 3 tracts. 32 ⁴⁷⁷ As noted previously, the Board explained, in pertinent part, its grant of the variance: Section 306 points to the fact that public utilities are unique in their requirements. Therefore, the spirit and intent of the BCZR in height, area, off-street parking and sign regulations are met by the subject Petitioner. s{« }¡c Hi s{* The Board finds as a fact that the existing electrical substation is a substation which is far undersized in capacity for the required demand in the