Hayfields, Inc. v. Valleys Planning Council, Inc.

SALMON, Judge. In 1995, Hayfields, Inc. (“Hayfields”), owner of Hayfields Farm (the Farm), proposed to develop its 475-acre Baltimore County property into a residential community of single-family dwellings and a country club with an 18-hole golf course and other related facilities. Hayfields filed a petition for special exception with the Baltimore County Zoning Commission to permit the proposed country club on the Farm. Hayfields also submitted a development plan for nearly 300 acres of the Farm, which included the country club and a portion of the residential component of the project.

Valleys Planning Council, Inc., and several individually named adjacent and nearby property owners (collectively “VPC”), protested the subdivision and development of the Farm. The Zoning Commissioner granted Hayfields’ petition and approved the development plan. VPC appealed. 1 The County Board of Appeals of Baltimore County (the Board) approved the petition for special exception, subject to certain conditions, and also approved the development plan but reduced from five to three the number of lots into which the property could be subdivided. The Circuit Court for Baltimore County affirmed the Board’s decisions but removed two of the conditions that had been imposed.

Hayfields appealed and presents one question for our review, which we have rephrased: Did the Board err in ruling that Hayfields could subdivide its 295-acre tract of R.C. 2-zoned land into only three lots? VPC cross-appealed, presenting six questions: ⁶²² 1. Did the Board err in disregarding the adverse impact of the proposed special exception use on significant on-site resources of public importance? 2. Did the Board err in its application of Schultz v. PHtts? 3.

Did the Board err in failing to consider the adverse impact of the proposed special exception use on the historic Hayfields Farm and National Register Historic District in which the Hayfields Farm is located? [2] 4. Did the Board incorrectly impose the burden of proof on Valleys Planning Council? 5. Did the Board properly impose certain conditions on the special exception use with respect to the golf driving range? 6. Did the Board err in concluding that the definition of “country club” as used in the Baltimore County Zoning Regulations Section 101 includes a golf course plus a multiplicity of other facilities that are open to the public?

I. FACTS Hayfields Farm has existed for nearly 200 years. 3 Its soil is superior to that found on other farms in the region. 4 A portion of the land is still being farmed. ⁶²³ The Farm is underlain by a geological formation known as Cockeysville Marble, a large aquifer that constitutes an important source of water for wells in the area. There are some experts who believe that the Cockeysville Marble aquifer is particularly vulnerable to contamination. Hayfields Farm is located on the northwest corner of the intersection of Interstate 83 and Shawan Road. To the east is a commercial area, to the south are residential developments, and to the north and west are agricultural communities.

The Farm is the “gateway” to the rural area of Baltimore County and to the Western Run — Belfast Road National Register Historic District, a rural historic district noted for its agricultural significance. The original country home (the manor house), slaves’ quarters, barns, and outbuildings were all built prior to the Civil War. 5 Baltimore County’s Landmarks Preservation Commission (the LPC) has included these structures, seven in all, on its historic landmarks list. This designation provides the LPC with certain authority over proposed renovations of any listed structure. See Baltimore County Code §§ 26-540 through 26-555 (requiring the LPC to issue a certificate of appropriateness or notice to proceed to the building engineer prior to exterior changes being made to privately owned, landmarks-designated structures). ⁶²⁴ Hayfields’ plan is to build an 18-hole golf course, driving range, clubhouse, restaurant, and other related facilities.

The anticipated intensity of play at the golf course, which will be open to the public, is 45,000 rounds per year. This level of play is lower than' that at other public golf courses in Baltimore County but higher than the level at almost all of the private courses in the area. 6 VPC is concerned that development of the property will destroy invaluable agricultural and historical assets, resources that are allegedly of benefit to the general public. The premier and highly productive Farm with a history encompassing agricultural, political, and legal components is uniquely deserving of preservation, says VPC. Moreover, VPC believes that the chemicals applied to the golf course may contaminate the water in the Cockeysville Marble aquifer and nearby wells.

In terms of zoning restrictions on the land on which the Farm lies, the property is split-zoned under the County’s R.C. 2 and R.C. 4 zoning classifications. Both of these zones are designated for resource conservation: R.C. 2 is zoned agricultural, and R.C. 4 is zoned for watershed protection. Although the use of land for single-family dwellings is permitted as of “right” (i.e., permitted without conditions) in both R.C. 2 and R.C. 4 zones, use of land for a country club in these zones is permissible only by special exception (i.e., permitted providing certain conditions have been met). Prior to breaking ground on this project, the Baltimore County Code (BCC) and the Baltimore County Zoning Regulations (BCZR) required Hayfields to obtain approval from the Zoning Commissioner for the proposed country club as a special exception use.

See BCC § 26-127; BCZR §§ 1A01.2.C and 502. In addition, the project’s development plan had to be approved under the procedures detailed in BCC § 26-206. As part of this process, a development plan ⁶²⁵ that involves historically significant buildings or sites is subject to additional reviews. See BCC § 26-205(a)(ll) and 26-207(a)(3); see also BCC § 26-545.

Finally, approval must be requested for any variances necessary to comply with the BCZR. 7 See BCZR § 307.1. A. Petition for Special Exception and Development Plan 1. Petition for Special Exception In the spring of 1995, Hayfields filed with Lawrence E. Schmidt, Zoning Commissioner for Baltimore County, a petition for special exception for a country club on approximately 228 acres of the Farm. 8 The petition requested the Zoning Commissioner to approve the use of the land for an 18-hole golf course open to the public, with a limited membership component; a driving range with 30 tees, 3 target greens, and nighttime lighting; a pro shop; tennis and swimming facilities; a clubhouse; a public restaurant; a banquet hall; and limited overnight accommodations. Hayfields anticipated that the Farm’s manor house would become the clubhouse, restaurant, and banquet hall; the building once used as slaves’ quarters would be transformed into the pro shop; and the barns would be used for storage.

The Zoning Commissioner held a five-day public hearing and heard testimony from a variety of experts in the fields of agriculture, traffic engineering, hydrology and environmental science, environmental engineering, renovation of historic buildings, and landmarks preservation. Thirteen lay witnesses, many of whom live near the site, also testified. Additionally, the Baltimore County Zoning Plans Advisory Committee, comprised of several government agencies including the Office of Planning and Zoning and the Department of ⁶²⁶ Environmental Protection and Resource Management, reviewed the zoning petition and submitted non-binding recommendations to the Zoning Commissioner. Based on Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981), Commissioner Schmidt analyzed the nature of the adverse impact associated with Hayfields’ proposal.

Following the Commissioner’s conclusion that the impact on the locale surrounding the proposed site did not warrant the denial of the special exception, he granted Hayfields’ petition and approved the site plan on June 30, 1995. VPC noted an appeal to the Board, which we discuss infra. 2. Submission of the Development Plan In the spring of 1996, Hayfields submitted a development plan for Commissioner Schmidt’s approval. The plan amended the number of R.C. 2 acres for the country club from approximately 225 acres to 273.1 acres and also included 21.8 acres of R.C. 2 land to be used for residential dwellings (for a total of 295 acres of R.C. 2 land incorporated in the development plan).

At this time, Hayfields also filed two more zoning petitions — a petition for special hearing and a petition for variances. 9 Mr. Schmidt heard Hayfields’ petitions in his capacity as Zoning Commissioner; with respect to the development plan, he acted in his capacity as Baltimore County Hearing Officer. 10 In the combined hearings, we refer to ⁶²⁷ Commissioner Schmidt as Zoning Commissioner/Hearing Officer. A four-day hearing was held on the development plan and the zoning issues. Testimony was presented by various witnesses, including experts who were involved in formulating the development plan, several individual property owners in the area, a land planner, and representatives from the County Department of Permits and Development Management, the Department of Environmental Protection and Resource Management, the Planning Board, the Agricultural Preservation Program, and the State Highway Administration. The Zoning Commissioner/Hearing Officer issued an order on June 12, 1996.

The order, inter alia, approved the development plan, permitting the creation of a total of five lots on the site. VPC noted an appeal to the Board from this order. B. Appeals to the Board of Appeals of Baltimore County 1. Appeal from the Order Granting the Special Exception The Board conducted a de novo review of the Zoning Commissioner’s grant of the special exception and heard over seven days of testimony.

On August 6, 1996, Hayfields’ petition for special exception was approved by the Board, subject to conditions, including restrictions that the golf practice facility/driving range: (1) is limited to use by those individuals preparing for play or completing a round of play on the golf course, and outside of this limitation, available for use by members only; and (2) is limited to 30 tees, of which no more than 15 may be in operation at any one time. VPC appealed to the Circuit Court for Baltimore County from the approval of the special exception. Hayfields also filed a petition requesting review of several of the Board’s conditions. 2. Appeal from the Order Approving the Development Plan The Board conducted an “on the record” review of the approval of the development plan.

On September 12, 1996, the Board affirmed the Zoning Commissioner/Hearing Offi ⁶²⁸ cer’s approval of the development plan but ruled that only three lots can be created on the Hayfields site. The Board disagreed with the Zoning Commissioner/Hearing Officer’s conclusion that the “county club lot should be considered as the exercise of a single right of subdivision,” which would give Hayfields the right to create five lots on the R.C. 2-zoned property. According to the Board, the country club is a special exception use that occupies an area of 273.1 acres, and the permissible number of lots on the remaining 21.8 acres designated for residential use is limited to two lots, for a total of three lots. Hayfields filed, in the Circuit Court for Baltimore County, a petition for review of the Board’s lot limitation.

C. Consolidated Appeal Before the Circuit Court The Circuit Court for Baltimore County (Smith, J.) granted Hayfields’ motion to consolidate the petition for review of the Board’s decisions and orders in the two cases. Following a hearing, the court entered its written opinion and order on June 11, 1997, affirming the Board’s approval of the petition for special exception but striking two of the conditions that the Board imposed — the restriction that the golf practice facility can be used only by those preparing for, or ending play on, the golf course and otherwise limiting use of the practice facility to members only and the restriction that only 15 tees may be in use at one time. The trial court also affirmed the Board’s conditional approval of the development plan, i.e., with the three-lot limitation. Hayfields appealed and VPC cross-appealed.

We will present additional facts as necessary to resolve the issues presented.

II

STANDARD OF REVIEW As we stated recently in Colao v. Prince George’s County, 109 Md.App. 431 , 675 A.2d 148 (1996) (quoting Columbia Road Citizens’ Assoc. v. Montgomery County, 98 Md.App. 695, 698 , 635 A.2d 30 (1994)), aff'd, 346 Md. 342 , ⁶²⁹ 697 A.2d 96 (1997)), there 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 conclusions. People’s Counsel v. Prosser Co., 119 Md.App. 150, 167-68 , 704 A.2d 483 , cert. denied, 349 Md. 494 , 709 A.2d 139 (1998). We review the decision of the Board, not the decision of the trial court, see Department of Educ. v. Shoop, 119 Md.App. 181, 196 , 704 A.2d 499 , cert. denied, 349 Md. 495 , 709 A.2d 140 (1998), and apply the standard stated in Prosser Co. III. ANALYSIS A. Hayfields’ Appeal To reiterate, the Zoning Commissioner/Hearing Officer approved Hayfields’ development plan with five subdivision lots in the Farm’s R.C. 2 acreage, one lot for the country club and four lots for residential development.

The Board affirmed approval of the plan but held that the number of subdivision lots permitted in this acreage is limited to three lots, two residential lots and one lot attributed to the country club. The Board explained: We concur [with Mr. John Lewis, who represented the County’s Department of Permits & Development Management, Zoning Review Section] that the R.C. 2 acreage designated for the golf course is not a density calculation since it does not bear any relationship to dwellings or bedrooms but, rather, is a special exception usage that occupies a designated area, and that the remainder of the R.C. 2 acreage designated for residential use carries its own density based on the expressed formula of two lots for up to 100 acres, or one lot per 50 acres. ⁶³⁰ Additionally, we concur with the portion of the Department of Permits & Development Management that an owner cannot use his acreage twice to support two different uses, i.e., a residential use permitted as of right and a special exception (such as country club). We believe that the distinction is important because of its impact and interpretation as development occurs in other R.C. 2 zones. This interpretation of the Board, we believe, is consistent with the spirit and intent of the R.C. 2 legislation.

In an R.C. 2 zone, the formula for calculating subdivision lot density, i.e., the number of lots that can be created from a given tract of land, is based on the number of acres comprising that tract. The issue presented by Hayfields requires us to determine how many of the Farm’s 295 acres designated for the country club and single-family dwellings form the gross acreage from which the number of lots for the residential component can be derived. We must decide whether the County’s zoning regulations require that the 273.1 acres approved for country club use should be excluded prior to a determination of the number of residential lots into which the balance of the R.C. 2 acreage (21.8 acres) can be divided. Two interrelated questions must be considered.

First, should the 273.1 acres be subtracted from the 295 acres because the country club is a special exception use, rather than a use permitted as of right, as is the plan for single-family dwellings on the remaining 21.8 acres? Alternatively, must the 273.1 acres be subtracted because the country club is a non-residential use, in contrast -with the residential use proposed on the remainder of the R.C. 2 tract, thus involving different considerations from those that otherwise would exist if all of the 295 acres were to be used for residential development? Resolution of these questions presents issues of law, and as such, we afford no deference to the Board’s determination. See Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607, 652 , 701 A.2d 879 (1997) (citing Lee v. Maryland Nat’l Capital Park and Planning Comm’n, 107 Md.App. 486, 492 , 668 A.2d 980 (1995), cert. denied, 343 Md. 333 , 681 A.2d 69 (1996)). ⁶³¹ The foundation of Hayfields’ argument is that, under the plain language of BCZR. § 1A01.3.B.1 through .4, it can subdivide the 295-acre tract of R.C. 2-zoned land into five lots.

Under these regulations, asserts Hayfields, the acreage dedicated to the country club does not have to be removed prior to calculating the maximum number of lots that are available for the residential dwellings. Hayfields explains that the zoning regulations applicable to an R.C. 2 zone incorporate neither a distinction between residential and nonresidential uses nor a distinction between special exception uses and uses permitted as of right. According to Hayfields, there is only one formula for calculating subdivision lot density in an R.C. 2 zone, and that formula permits the subdivision lot density to be computed from the overall acreage of the tract, notwithstanding the fact that the use on one lot will be different from the use proposed for the remaining lots. In Hayfields’ view, it therefore is immaterial that the country club represents a nonresidential use (versus a residential use) and a special exception use (versus a use permitted by right).

BCZR § 1A01.3.B provides, in part: 1. Subdivision lot density. No lot of record lying within an R.C. 2 zone and having a gross area of less than 2 acres may be subdivided. No such lot having a gross area between 2 and 100 acres may be divided into more than 2 lots (total), and such a lot having a gross area of more than 100 acres may be subdivided only at the rate of 1 lot for each 50 acres of gross area....

BCZR § 1A01.3.B.2 through .4 provides additional restrictions. Each lot created in an R.C. 2 zone must have an area not less than one acre, BCZR § 1A01.3.B.2; no dwelling or principal structure in an R.C. 2 zone may be situated within 75 feet of the centerline of any street or within 35 feet of any lot line other than a street line, BCZR § 1A01.3.B.3; and no more than one principal dwelling is permitted on any lot in an R.C. 2 zone, BCZR § 1A01.3.B.4. We agree with Hayfields that the plain language of these R.C. 2 zoning regulations does not distinguish between ⁶³² residential and nonresidential uses nor between uses permitted by special exception and permitted as of right. 11 Based on the terms of BCZR § 1A01.3.B.1, the maximum yield for Hayfields is five lots. A lot of record having a gross area in excess of 100 acres may be subdivided at a rate of one lot for every 50 acres of gross area; therefore, a lot of record with a gross area of 295 acres, such as the Hayfields tract, may be subdivided into a maximum of five lots.

Hayfields’ plan to create five lots also meets the minimum area, setback, and dwelling limit requirement in BCZR § 1A01.3.B.2 through .4. Because Hayfields argues that it is not required to subtract the 273.1 R.C. 2 acres dedicated to the special exception country club use for purposes of calculating the number of lots for residential development that it can create in the remaining 21.8 R.C. 2 acres, VPC asserts that Hayfields is seeking to “double use” acreage. In other words, according to VPC, Hayfields is attempting “to use the 273.1 acres twice to support two different uses — a residential use permitted as a matter of right and a special exception country club use.” VPC states that the clear language of BCZR § 1A01.3.B.1, when read together with BCZR § 102.2, prohibits such “double use.” Under the BCZR’s general requirements, BCZR § 102.2 states: “No yard space or minimum area required for a building or use shall be considered as any part of the yard space or minimum area for another building or use.” VPC posits: [I]t is plain that a yard space that has already been dedicated to a special exception use may not also be considered as part of the minimum area to support a residential use. ⁶³³ Accordingly, in the present case, the yard space dedicated to the special exception country club use (any part of the 273.1 acres) may not be considered as part of the minimum area in support of the proposed residential use of four lots in the R.C.-2 zone (200 acres). Hayfields disputes the characterization that it is attempting to double-count acreage.

So do we. We agree with Hayfields’ position that BCZR § 102.2 is inapplicable to the calculation of subdivision lot density in an R.C. 2 zone. The prohibitions on double-using “yard space” and “minimum area” will be addressed separately. Yard, Space We interpret the term “yard space” as being relevant to the setback requirements of BCZR § 1A01.3.B.3. 12 Although the BCZR does not provide a definition of “yard space,” “yard” is defined as “[a]ny open space located on the same lot with a building....

The minimum depth or width of a yard shall consist of the horizontal distance between the lot line and the nearest point of the foundation wall of the main building.” BCZR § 101. Hayfields’ proposal to subdivide its 295 R.C. 2-zoned acres into five lots meets all the setback requirements under BCZR § 1A01.3.B.3. And in accordance with BCZR § 102.2, each one of the five lots meets the setback requirements without using depth or width demarcations from any other lot. Minimum Area With regard to the prohibition on double-using “minimum area,” VPC argues that “minimum lot area” refers to the one acre minimum lot size in BCZR § 1A01.3.B.2, but “minimum area,” the term used in BCZR § 102.2, refers to the gross acreage required by BCZR § 1A01.3.B.1 to divide the tract ⁶³⁴ into a given number of lots.

Because 273.1 acres have already been dedicated for the country club use, VPC says that this acreage cannot be considered as part of the lot of record’s gross area when contemplating the remaining subdivisions. To create four lots for residential use, as Hayfields wishes to do, VPC states that the “minimum area” requirement of BCZR § 1A01.3.B.1 calls for a minimum of 200 acres. We interpret BCZR § 102.2’s prohibition on using minimum area to support more than one use (or building) as being relevant only to the one acre lot size requirement of BCZR § 1A01.3.B.2 and disagree with the distinction VPC makes between minimum lot area (or minimum lot size) and minimum area. We read BCZR §§ 1A01.3.B.2 and 102.2 together as preventing a situation in which, for example, a developer proposes to use a 250-acre tract in an R.C. 2 zone to create a 248-acre golf course in conjunction with four residential lots.

BCZR § 102.2 prohibits such a proposal because in order to meet the one acre minimum lot size requirement of BCZR § 1A01.3.B.2, two acres would have to be “borrowed” from the golf course lot, thus double-using acreage. Hayfields’ plan, however, meets the lot size requirement of BCZR § 1A01.3.B.2. In accordance with BCZR § 102.2, each of the five lots meets the one acre minimum without having to “borrow” acreage from one of the other lots. Density Requirement Before addressing VPC’s next argument, we note that both parties agree that R.C. 2 zoning regulations do not provide a method for calculating residential density as a discretional use. 13 VPC states, however, that, according to § 102.2 of the ⁶³⁵ Zoning Commission’s Policy Manual, “residential density may only be calculated ‘on the overall property acreage if all uses are residential.’ ” 14 Therefore, “to the extent there are nonresidential uses on the lot, the acreage dedicated to the nonresidential use may not be considered in calculating residential density.” In support of this proposition, VPC states: [T]here is no formula for calculating residential density in the R.C.-2 zone.

Instead, density in the R.C.-2 zone is determined by number of lots, as opposed to number of dwelling units. Thus, for all intents and purposes, “residential density” in the R.C.-2 zone is “subdivision lot density,” particularly because only one dwelling unit is permitted per lot in the R.C.-2 zone. Thus, in making a density determination, whether it be by number of lots in the R.C.-2 zone or by number of dwelling units in the D.R. zone, a developer should not be permitted to “double use” acreage to achieve ⁶³⁶ a higher density than contemplated by the Zoning Regulations. (Citation to record extract and footnote omitted.) Once again, we agree with Hayfields’ response to VPC’s position.

Hayfields explains: As the language of the relevant BCZR sections indicates, the calculation of residential density determines the number of residential density units which may be developed on a single tract of land; by contrast, the calculation of subdivision lot density determines the number of lots which may be subdivided from a lot of record in the R.C. 2 zone.... [VPC’s] interpretation ignores the fact that, unlike the calculation of “residential density,” the calculation of “subdivision lot density” does not contemplate subdivision based on distinctions among land uses; the subdivision lot density calculation does not consider the land uses which will be developed on the subdivided lots. Moreover, VPC’s reliance upon the Zoning Commission’s Policy Manual § 102.2.A is misplaced. This section applies to a situation in which two uses are proposed on the same lot. In the case before us, Hayfields’ development plan proposes only one use for each of the five lots created from the subdivision of the 295-acre, R.C. 2-zoned portion of the development site.

The 273.1-acre lot is allocated to the country club and the remaining four lots will be developed into single-family residences. Deference to Agency Interpretation VPC also argues that, under Morris v. Prince George’s County, 319 Md. 597, 613 , 573 A.2d 1346 (1990) (holding that in the face of legislative acquiescence a longstanding administrative interpretation is presumed to be correct), the Board properly gave deference to the testimony of Mr. John Lewis, a planner with the County’s Department of Permits and Development Management (the PDM). Mr. Lewis testified before the Zoning Commissioner/Hearing Officer that the consistent practice of the PDM and the County generally, extending over ⁶³⁷ the last ten years, is that a property owner cannot “use his acreage twice” to support two different uses, such as residential uses permitted as of right, on the one hand, and special exception uses such as a country club, on the other. To this Hayfields retorts that, if the Board should afford deference to an agency representative’s interpretation, it should afford deference to the decision of the Zoning Commissioner/Hearing Officer. 15 Assuming, arguendo, that the longstanding, consistent practices of the PDM and the County generally should be given deference, there was insufficient evidence in the record of a “longstanding and consistent practice of the PDM.” As Hay-fields points out, the two cases cited by Mr. Lewis to show PDM’s interpretation do not in fact demonstrate a longstanding agency practice of subtracting special exception acreage prior to calculating residential subdivision lot density in an R.C. 2 zone. 16 Legislative Purpose VPC’s final argument is that “double use” of acreage in determining subdivision lot density is inconsistent with the legislative purpose of the R.C. 2 zoning classification.

The resource conservation zone’s purpose is to “protect both natural and man-made resources from compromising effects of specific forms and densities of development.” BCZR § lA00.2(c). We reject VPC’s argument because, paradoxically, the formula for calculating subdivision lot density advocated by VPC may result in the creation of a greater number of lots compared with the result achieved under the formula we ⁶³⁸ hold as correct. For example, a development plan for a 295-acre tract may designate 15 acres for use as a private school (a special exception use in an R.C. 2 zone) and 280 acres for use as single-family dwellings. With the approval of the special exception use, the acreage for the residential component could thereafter be subdivided into five lots, for a total of six lots under VPC’s formulation. “Our” formula would allow, of course, a maximum of five lots.

In summary, according to the plain language of BCZR § 1A01.3.B.1 through .4, the area for a special exception use in an R.C. 2-zoned property should not be removed prior to the calculation of subdivision lot density even though the development plan calls for residential use on the remaining acreage. The method for calculating subdivision lot density in an R.C. 2 zone is not analogous to that for calculating residential density in other zones. Instead, R.C. 2 zone subdivisions are created purely on available acreage under the formula previously stated, subject only to other special limitations, such as minimum lot size and set back. The Board erred in reversing the Zoning Commissioner/Hearing Officer’s order.

B. VPC’s Cross-Appeal 1. Background “Zoning is the legislative division of a community into areas in each of which only certain designated uses of land are permitted so that the community may develop in an orderly manner in accordance with a comprehensive plan.” 17 1 E.C. Yokley, Zoning Law and Practice § 2-1, at 15-16 (4th ed.1978) (footnote omitted). Within any given zoning classification, the BCZR prescribes two types of uses: certain uses are permitted as of right and others are conditionally permissible. Golf courses and country clubs are conditionally per ⁶³⁹ missible uses in the County’s R.C. 2 zones, BCZR § 1A01.2.C.10, and also in the R.C. 4 zones, BCZR § 1A03.3.B.7.

A use permitted as of right may be developed, as a matter of zoning, regardless of the kind and extent of adverse impact (from a land use perspective) it will create in the particular location proposed. Schultz, supra, 291 Md. at 21 , 432 A.2d 1319 . On the other hand, a conditional use, i.e., a use permitted by special exception, may be developed only under certain circumstances. Id. at 22 , 432 A.2d 1319 .

In Schultz , the Court of Appeals noted: 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. Id. at 11 , 432 A.2d 1319 ; see also Rockville Fuel & Feed Co. v. Board of Appeals, 257 Md. 183, 187-88 , 262 A.2d 499 (1970); People’s Counsel v. Mangione, 85 Md.App. 738, 747-48 , 584 A.2d 1318 (1991); Anderson v. Sawyer, 23 Md.App. 612, 617 , 329 A.2d 716 (1974). More recently this Court said in Mossburg v. Montgomery County, 107 Md.App. 1 , 666 A.2d 1253 (1995), cert. denied, 341 Md. 649 , 672 A.2d 623 (1996), that a special exception/conditional use in a zoning ordinance recognizes that the legislative body of a representative government has made a policy decision for all of the inhabitants of the particular governmental jurisdiction, and that the exception or use is desirable and necessary in its zoning planning provided certain standards are met.

Id. at 7-8, 666 A.2d 1253 (emphasis added). In the instant case, the standards that must be met are found in BCZR §§ 1A01.2.C and 502.1. BCZR § 1A01.2.C provides that a petition for special exception use may be granted in an R.C. 2 zone if “the hearing ⁶⁴⁰ authority empowered to hear the petition finds that the use would not be detrimental to the primary agricultural uses in its vicinity.” BCZR § 502.1 lists eight factors that negate a special exception’s presumption of validity. Only two of the eight factors in BCZR § 502.1 are raised in this appeal.

Under BCZR § 502.1: —Before any Special Exception may be granted, it must appear that the use for which the Special Exception is requested will not: a. Be detrimental to the health, safety, or general welfare of the locality involved; [nor] g. Be inconsistent with the purposes of the property’s zoning classification nor in any other way inconsistent with the spirit and intent of these zoning regulations. [18] By definition, each special exception use carries with it a potential to cause adverse effects. If no constraint were placed on BCZR § 502.1(a), in particular, when evaluating the acceptability of a special exception use, few special exceptions would be granted.

Precedent has developed to govern the application of factors, such as those in BCZR § 502.1, in analyzing the propriety of a special exception use in a particular location. As stated in Mossburg , “[b]y reason of the holdings in Schultz, supra, and its progeny, such general conditions as are applied to special exceptions are themselves subject to the limitation that the adverse effects must be ⁶⁴¹ greater than or above and beyond the effects normally inherent with such a use anywhere within the relevant zones in the regional district.” Mossburg, supra, 107 Md.App. at 21, 666 A.2d 1253 . In Mossburg , Judge Cathell for this Court provided an example of how to “overlay” the statutory conditions of a county’s special exception law with the restrictions in Schultz. Mossburg, 107 Md.App. at 21-22, 666 A.2d 1253 .

Based on the Mossburg example, we have added the limiting language of Schultz to BCZR § 502.1(a). The test becomes: —Before any Special Exception may be granted, it must appear that the use for which the Special Exception is requested will not: a. Be [more] detrimental to the health, safety, or general welfare of the locality involved [than the effects normally inherent with such a use would be generally elsewhere in the zone]. (Emphasis added.) We have thus far not discussed the extent or limitation of the term “locality,” as used in BCZR § 502.1(a).

This issue is addressed in the next subsection. 2. On-Site Impact of Proposed Special Exception Use The parties disagree on the appropriate method of evaluating Hayfields’ proposal under BCZR § 502.1, in light of Schultz . VPC argues that the adverse impacts analysis must not only consider off-site impact, i.e., impact to the surrounding and neighboring properties, but must include an examination of on-site impact, i.e., adverse impact to the subject property itself. Hayfields counters that Schultz mandates the evaluation of off-site impacts only.

The difference in the parties’ interpretations is of particular significance in the instant case because of the Farm’s unique agricultural and historical character. In response to Hayfields’ petition for special exception, Commissioner Schmidt opined: Whether the Hayfields property should remain a farm is irrelevant, within the context of this case. It does not ⁶⁴² matter whether the Hayfields property represents the most significant farm in Baltimore County.... The test for approval of the use, and the only test, is whether the special exception criteria within Section 502.1 of the B.C.Z.R. are satisfied.

The Zoning Commissioner concluded that Schultz and its progeny require that he “adjudge the impacts of the use on neighboring properties, only” and that the potential impacts on the subject property itself are not to be considered. 19 The Board agreed. VPC disagrees with the Zoning Commissioner’s interpretation of Schultz and claims that the Board misunderstood the requirements for approving a special exception use. In the previous subsection, we have introduced the Schultz holding 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. Schultz, 291 Md. at 22-23 , 432 A.2d 1319 .

In reaching its decision, the Court discussed Deen v. Baltimore Gas & Elec. Co., 240 Md. 317, 330-31 , 214 A.2d 146 (1965) (concerning construction of high tension transmission wires above ground) and Anderson, supra, 23 Md.App. at 617-18 , 329 A.2d 716 (concerning construction of a funeral home in a residential zone), and explained: These cases establish that a special exception use has an adverse effect and must be denied when it is determined from the facts and circumstances that the grant of the ⁶⁴³ requested special exception use would result in an adverse effect upon adjoining and surrounding properties unique and different from the adverse effect that would otherwise result from the development of such a special exception use located anywhere within the zone. Schultz, 291 Md. at 15 , 432 A.2d 1319 (emphasis added). Been and Anderson both involved proposed special exception uses in Baltimore County.

BCZR § 502.1(a) was at issue in those two cases, as it is here. Although conceding that the holding in Schultz speaks of off-site effects, VPC stresses that the test articulated by the Schultz Court comparing the “particular location” with the area elsewhere in the zone should not be limited to off-site effects. In an attempt to distinguish the instant case from Schultz and cases that have followed Schultz , VPC postulates: The only reason that the Court in Schultz spoke at all in terms of adverse effects on adjoining or neighboring properties was because those happened to be the kinds of effects that were relied upon by the protestants in Schultz . The same is true of both the cases cited by the Court in Schultz , and the cases decided subsequent to Schultz .

In none of these cases were any “unique” qualities intrinsic to the site alleged to be adversely impacted by the proposed conditional use. However, the fact that the effects cited by the protestants in Schultz and other appellate cases were effects on adjoining properties does not mean that the special exception test should not take into account, where appropriate, adverse impacts which will occur on the property that is the subject of the application. From VPC’s viewpoint, the development of the Farm will result in a loss of unique on-site resources, such as the Farm’s prime and productive soils and its value as an historic site, both of which are public resources. VPC observes that the legislature, by creating the R.C. 2 zoning classification, has declared explicitly that agricultural resources are of value to ⁶⁴⁴ the general public. 20 VPC’s appraisal continues with the following: The Board’s erroneous exclusion of adverse impacts on the property itself occurred because the Board failed to appreciate the difference between impacts on resources of admitted public importance or significance (which may be found either on or off site) and “private” impacts on the value or use of neighboring properties....

The Board erred in only considering the private impacts on adjoining properties, and by failing to consider the loss of important agricultural and historical resources within the four corners of the property itself. When an important public resource is harmed, even where the resource is located on the special exception site itself, everyone is harmed — including both the general public and the owners of other properties in the locality. Evidence of such harm cannot be ignored by the ⁶⁴⁵ Board, but must be evaluated as a part of the special exception process. (Footnote omitted.) Due to the alleged threat to public resources on the Farm itself, VPC argues that the Schultz test should be applied in a different manner in the instant case. 21 VPC’s theory furnishes two categories of on-site impacts that the Board needed to consider but did not: Characteristics of the specific proposal which are unusual or not generic to the type of facility, and which arguably result in unusual detriments, must be considered, and features of the particular sites or areas selected which are not commonly or routinely found throughout the zone and which thus pose unusual detriments specific to the facility or site under review can and must be considered in applying the standards of both Section 502.1 and Section 1A01.2.C.

(Emphasis added.) VPC provides the following as an example of “characteristics of the specific proposal.” According to VPC, the projected level of play at the proposed golf course is nearly twice as high as the overall average rounds played at private 18-hole golf courses in the County. Given the fact that the proposed golf course allegedly is atypical in generated activity when compared with a “generic golf course,” VPC contends that any potential on-site detriments to the Farm resulting from the golf course’s atypical level of activity should be examined. Under the second category, “features of the particular site,” VPC states that any detriments to the Farm’s uncommonly productive soil and its unusually rich historical significance should be evaluated. VPC presents an interesting approach to the law of special exceptions, but it cites no case that supports its position.

On the contrary, numerous cases support the proposition that the Board was correct in looking only at the off-site effects of the ⁶⁴⁶ proposed special exception use. For applications of the Schultz test, see Harford County v. Earl E. Preston, Jr., Inc., 322 Md. 493, 505 , 588 A.2d 772 (1991) (finding that “[t]he Board ... made no attempt to reconcile the contradictory findings of fact by its hearing examiner in his two reports as to whether the adverse impacts upon the neighborhood of the [applicant’s] proposed special exception uses were beyond those inherently associated with such special exception uses irrespective of their location within the AG zone” (emphasis added)); Board of County Comm’rs v. Holbrook, 314 Md. 210, 217-18 , 550 A.2d 664 (1988) (“[W]here the facts and circumstances indicate that the particular special exception use and location proposed would cause an adverse effect upon adjoining and surrounding properties unique and different, in kind or degree, than that inherently associated with such a use regardless of its location within the zone, the [special exception] application should be denied.”); Evans v. Shore Communications, Inc., 112 Md.App. 284, 304 , 685 A.2d 454 (1996) (holding that “[assuming, arguendo, that appellant has produced evidence that the [antenna] tower will result in an adverse impact on the surrounding properties, the Board was ... obliged to make a finding that the adverse effects would be greater in the proposed location than they would generally be elsewhere within the areas of the county where they may be established”); Mossburg, 107 Md.App. at 13 , 666 A.2d 1253 (stating that in reviewing the Board’s decision, the Court “look[s] for evidence, if any, in the record of the adverse effects and impact that could generally be expected as an inherent adverse impact anywhere in the 1-2 Zones in order to determine whether the environmental and traffic safety impact at the subject site is greater” 22 ); Moseman v. County ⁶⁴⁷ Council, 99 Md.App. 258, 264 , 636 A.2d 499 (citing Schultz for the proposition that the proposed use cannot have “any adverse [e]ffect above and beyond those inherently associated with such a special exception use irrespective of its location in the permitted zone”), cert. denied, 335 Md. 229 , 643 A.2d 383 (1994); Sharp, 98 Md.App. at 86-87 , 632 A.2d 248 (holding, inter alia, that “[t]he Board had before it substantial evidence to support its finding that potential dangers from airplane crashes were such a remote possibility as not to constitute an adverse effect to the owners of vicinal properties ” (emphasis added)); Mangione, supra, 85 Md.App. at 750 , 584 A.2d 1318 (stating that the Court “shall review facts and circumstances upon which the Board could have found that the special exception use and location proposed would cause an adverse effect upon adjoining and surrounding properties unique and different, in kind or degree, than that inherently associated with such a use regardless of its location within the zone”). Additionally, as the Schultz Court noted, “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 [comprehensive] plan.” Schultz, 291 Md. at 11 , 432 A.2d 1319 . Five of the seven cases we cited above directly quote this portion of Schultz that establishes the Board’s duties in its judicial review of the grant or denial of a special exception use.

See Preston, 322 Md. at 498 , 588 A.2d 772 ; Holbrook, 314 Md. at 216 , 550 A.2d 664 ; Evans, 112 Md.App. at 302 , 685 A.2d 454 ; Sharp, 98 Md.App. at 76 , 632 A.2d 248 ; Mangione, 85 Md.App. at 748 , 584 A.2d 1318 . Furthermore, none of the seven cases suggests that, in certain circumstances, an additional duty of the Board may involve the examination of on-site impacts under the Schultz test. We hold that absent a stricter standard clearly expressed in the County’s zoning regulations, or until the relevant case law is modified by the Court of Appeals, the current expression of the Schultz test applies. ⁶⁴⁸ We agree with Hayfields’ contention that “although the adverse impacts considered by the Board vary according to the special exception use requested, the ‘adverse effect analysis,’ i.e., the Schultz review standard, used by the Board when evaluating adverse impacts, necessarily remains constant.” The Board, therefore, correctly limited its adverse impacts analysis under BCZR § 502.1, as modified by