Lawton T. Sharp Farm, Inc. v. Somerlock

Lowe, J., delivered the opinion of the Court. In this appeal from an order of the Circuit Court for Howard County, the appellant, Lawton T. Sharp Farm, Inc., was the opponent of a petition to permit a private aircraft landing strip in a residential section of Howard County. Since new zoning regulations were adopted during a comprehensive rezoning in 1977, such use has been permitted in Howard County as a special exception in residential and other zones. In 1978, the petitioners applied for a special exception to operate the private airstrip on their property.

The Office of Planning and Zoning recommended approval, the Planning Board recommended denial, and thereafter public hearings were held by the Board of Appeals. Following substantial testimony both for and against the petition, the Board visited the site of the proposed airstrip for an aerial demonstration. Two weeks later the Board reconvened to hear testimony solely about the demonstration. One witness, Nancy Adams, testified that she purchased a 107-acre farm directly across Sharp Road from the Sharp Farm, and partially moved there in December, 1978, unaware of the petition for an airstrip or that a demonstration was scheduled to be conducted.

She purchased the farm to train thoroughbred racehorses, mainly for Maryland tracks. Adams testified that on the morning of the demonstration, she had 15 horses in the lower pasture when a plane flew in over her barn, looking as if it "was going to crash into the hill.” She said her horses are very high-strung animals and that they began going "crazy” in the field. She feared some might break through the fences, because they were running wildly through the fields trying to get away from the noise. She had 51 horses at that time, and some of them were with foal, including one which was insured for $100,000.00.

Adams testified to having observed high-strung racehorses injure themselves when excited, and said she had never seen her horses as excited as they were ²⁰⁹ when the airplanes flew over during the take-offs and landings for the aerial demonstration. After a lengthy review of testimony in the case, the Board recited numerous findings of fact and conclusions of law in a written order dated April 3, 1979, denying the petition. The essence of its findings and conclusions was that an aircraft landing strip was not an "accepted residential use,” that it would interfere with the peaceful enjoyment of persons living in their homes, that it was not consistent with the purpose and intent of the Howard County Zoning Regulations, that it was not the most appropriate use of the land, and that it would not satisfy the reasonable needs of the community. The petitioners appealed to the circuit court, which affirmed the Board on May 14,1981.

On August 24, the court struck its order in response to petitioners’ motion to reconsider, and remanded the case to afford petitioners the right to rebut the testimony of Nancy Adams. Appellant (participating as an appellee below, along with the Howard County Board) then moved for and obtained a reconsideration of the reconsideration, which the court denied on December 11, 1981. In denying the motion, the court relied upon Schultz v. Pritts, 291 Md. 1 , which had been decided on July 16, 1981. Because petitioners had cross-examined Nancy Adams and had the opportunity to rebut but did not move to do so, Judge Fischer decided, based upon Schultz , that his original reasons for remanding were improper.

Although he found that "due process” had not been violated under the Schultz rationale, he elected to remand for another reason which was also derived from Schultz . The judge pointed out that the Court of Appeals had declared in that case a new standard of review of applications for special exceptions, which the Howard County Board of Appeals had not considered. The judge noted that although the Board had generally decided that an airstrip was not an acceptable residential use, that determination ²¹⁰ was a legislative one which the County decided when it adopted § 122 F 1 of its zoning regulations, providing for private aircraft landing and storage areas in residential zones. See Schultz, supra at 21 .

Quoting the opinion, he pointed out that the new test was whether the proposed use would "have any adverse effects above and beyond those inherently associated with such a