Harford County v. Earl E. Preston, Jr., Inc.

KARWACKI, Judge. The central issue in this zoning case is whether the County Council of Harford County, sitting as its Board of Appeals (the Board), applied the appropriate standard under the Harford County Zoning Code (1982) in determining whether a requested special exception use should be granted. I. Earl E. Preston, Jr., and his wife, Deborah, own 7.469 acres of land in the Fallston area of Harford County which is located in an agricultural (AG) zoning district. The property is traversed by Engle Road, a county secondary road which is approximately 20 feet wide.

The Prestons ⁴⁹⁵ reside on the 1.797 acre portion of the property that lies southeast of Engle Road which is known as 2233 Engle Road. It is improved by a two story dwelling, swimming pool, bath house and garage. The remainder of their property located on the other side of Engle Road, known as 2228 Engle Road, is improved by a two story frame house which is leased by the Prestons. In addition, a 42 foot by 60 foo: shop building and two small sheds are located on that parcel.

Mr. Preston is the principal operating officer of Earl E. Preston, Jr., Inc. He and his wife are the sole stockholders of that corporation which is engaged in the business of excavation, roadway construction, and septic tank installation. Since May of 1979, vehicles, equipment, and supplies used in that business have been stored in and around the shop building and sheds at 2228 Engle Road. The second floor of the garage located at 2233 Engle Road has been converted to an office for use in connection with the business. In 1985, the Prestons were cited by the Harford County Zoning Administrator for violating the zoning code by using 2228 Engle Road for the storage of commercial equipment and supplies, a use not permitted in an AG district.

In response to that citation, the Prestons on December 19, 1985, applied to the Board in Case No. 3295 for a special exception under the precursor of § 267-53(D)(l) of the zoning code. 1 After a hearing, the Board’s hearing officer ⁴⁹⁶ recommended that the application be denied. On October 21, 1986, the Board followed that recommendation, and the Prestons appealed to the Circuit Court for Harford County. On May 1, 1987, the court vacated the Board’s decision and remanded the case to the Board for additional testimony on the issue of whether the screening of the vehicles and equipment stored at 2228 Engle Road would be adequate to block their view from adjacent residential lots and public roads. Also, the court directed that the Board consider additional evidence bearing upon the issue of whether the proposed use adversely affected the neighborhood sufficiently so as to justify denial of the application under Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981).

While the Prestons’ appeal in Case No. 3295 was pending before the circuit court, they filed two more applications with the Board. In Case No. 3430, with regard to 2228 Engle Road, the Prestons requested: a special exception to conduct construction services and suppliers uses pursuant to § 267-53(H)(l) of the zoning code; 2 a special exception for a motor vehicle repair shop 3 pursuant to § 267-53(D)(3); of the zoning code; a ⁴⁹⁷ variance from § 267-53(D)(3) of the zoning code to permit a related repair shop to be operated by a non-resident of the property; and front, side and rear yard setback variances pursuant to § 267-ll(A) of the zoning code for the repair shop building. (2) Case No. 3431 related to 2233 Engle Road and requested: a special exception for construction services and suppliers uses. After the remand of Case No. 3295, it was consolidated with Case Nos. 3430 and 3431 for hearings conducted by the Board’s hearing examiner.

On January 19, 1988, he recommended that the special exception uses requested in all three cases be approved but that the variances sought in Case No. 3430 be denied. After a review of the evidence offered before the hearing examiner and hearing argument of counsel, the Board rejected the recommendations of the hearing examiner in all three cases and denied the special exceptions for which applications had been made. The Prestons again appealed to the circuit court which issued its memorandum opinion and order on July 26, 1989, affirming the Board. The Court of Special Appeals, in an unreported opinion, reversed that decision and remanded the cases for further hearing by the Board.

We granted the petition of Harford County for a writ of certiorari to review the decision of our intermediate appellate court.

II

In Schultz v. Pritts, 291 Md. at 11-12 , 432 A.2d at 1325 , we observed: This Court has frequently expressed the applicable standards for judicial review of the grant or denial of a ⁴⁹⁸ special exception use. The special exception use is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception use is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan.

Whereas, the applicant has the burden of adducing testimony which will show that his use meets the prescribed standards and requirements, he does not have the burden of establishing affirmatively that his proposed use would be a benefit to the community. If he shows to the satisfaction of the Board that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material. If the evidence makes the question of harm or disturbance or the question of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the Board to decide.

But if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an application for a special exception use is arbitrary, capricious, and illegal. Turner v. Hammond, 270 Md. 41, 54-55 , 310 A.2d 543, 550-51 (1973); Rockville Fuel & Feed Co. v. Board of Appeals of Gaithersburg, 257 Md. 183, 187-88 , 262 A.2d 499, 502 (1970); Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287 , 96 A.2d 261, 264 (1953); Anderson v. Sawyer, 23 Md.App. 612, 617 , 329 A.2d 716, 720 (1974). ⁴⁹⁹ These standards dictate that if a requested special exception use is properly determined to have an adverse effect upon neighboring properties in the general area, it must be denied. (Emphasis in the original.) We then held: that the appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone. (Citations omitted.) 291 Md. at 22-23 , 432 A.2d at 1331 .

In so holding we rejected a different standard for determining adverse impact of a special exception use which was approved by the Court of Special Appeals in Gowl v. Atlantic Richfield Co., 27 Md.App. 410, 417-18 , 341 A.2d 832, 836 (1975). The Gowl court held that the adverse impact from a proposed special exception use should be compared with the same type of adverse impact that could arise under any use permitted by the zoning ordinance as a matter of right. Thus, under the Gowl test an adverse impact relied on to refuse a special exception would have to be greater than the same type of adverse impact which could arise from the development of the property with a permitted use. After our decision in Schultz v. Pritts, supra, the Court of Special Appeals decided Gotach Center v. Board of County Commissioners, 60 Md.App. 477 , 483 A.2d 786 (1984).

In that case the applicant for a special exception contended that the zoning board had improperly applied the standard for evaluating adverse impact of the proposed use set forth in Schultz because it contended that the zoning ordinance had adopted the Gowl test for measuring such adverse impact. Under the ordinance in question, five factors had to be considered and resolved in favor of the applicant before a special exception would be granted. The ⁵⁰⁰ intermediate appellate court rejected the argument of the applicant since the court concluded that as to four of the five determining factors there was no legislative predilection for a Gowl type standard in the ordinance. In dicta, however, Judge (now Chief Judge) Wilner wrote: [Ujnder Gowl , the focus is on whether, with respect to a given factor stated in the ordinance, the proposed conditional use would affect the neighborhood more adversely than any of the uses permitted without special exception.

Under Schultz , the possible effects of permitted uses are not considered; the focus, rather, is on whether, with respect to that factor, the proposed conditional use would have a more adverse effect on the particular location at issue than it would have generally in the zone. Schultz is a more particularized, and normally a more stringent, test for an applicant to meet than is Gowl . The underpinning of the Schultz analysis is the legislative discretion necessarily involved in the “balancing process.” We do not read that case as binding county legislative bodies to the particular analysis used there. All that Schultz seems to say is that, absent some clear legislative direction to the contrary, if a particular kind of impact is required to be taken into account in considering a special exception, the impact is to be measured by the test enunciated in Schultz and not by that stated in Gowl .

We see no reason, however, why a county legislative body cannot adopt a Gowl-type standard in the ordinance itself, if it chooses to do so. There is nothing inherently improper about comparing the effect of a particular conditional use with that of a permitted use; it simply is not the kind of comparison normally regarded as consistent with general legislative intent. Gotach, 60 Md.App. at 485 , 483 A.2d at 790-91 . In their appeal to the Court of Special Appeals in the instant cases, the Prestons argued that the zoning code had incorporated the Gowl test for measuring adverse impact from a special exception use and that the Board erred in ⁵⁰¹ applying the Schultz test. 4 The intermediate appellate court agreed and remanded the cases to the circuit court with directions to remand them to the Board with instructions to compare the adverse impact upon the neighboring properties resulting from granting the special exceptions to the adverse impact which would result from permitted uses in the AG zone.

We disagree. In 1972, Harford County became a “chartered county” pursuant to Article XI-A of the Maryland Constitution. As such, the county is empowered by the