Layton v. Howard County Board of Appeals

DAVIS, J. Appellants, Colleen Layton and Scott Robbins, dba Frisky’s Wildlife and Primate Sanctuary, Inc., appeal the decision of the Circuit Court for Howard County, affirming the decision of the Howard County Board of Appeals, which had granted, in part, the petition of appellants for a Special Exception for a Charitable and Philanthropic Institution and a Variance to reduce the required thirty foot side yard setback to twenty feet for a pole barn, said variance to be subject to certain conditions. 1 On April 20, 2000, appellants filed a petition for a ¹⁴¹ variance for a charitable and philanthropic institution in a Rural Conservation-Density exchange Option Overlay Zoning District (RC-DEO). The petition was filed pursuant to §§ 131.N.13 and 130.B.2 of the Howard County Zoning Regulations. On August 9, 2000, the Planning Board issued a recommendation that Frisky’s request for a special exception be approved, subject to a number of conditions. Per the conditions imposed by the Planning Board, appellants petitioned the Board of Appeals for a variance.

The Board met to consider the petition on July 10, November 1, November 15, 2001 and January 3, March 7, March 14, April 9, April 23, May 7, June 6, June 27, July 18, August 29, October 22, 2002 and October 28, 2003. A written decision was issued by the Board on May 18, 2004, granting an exception for a charitable and philanthropic institution and a variance to reduce the required thirty foot side yard setback to twenty feet, in order to accommodate a previously constructed pole barn. Although Frisky’s was also granted permission to operate an animal rehabilitation center on the property, the request for an exception to operate a primate or other wildlife sanctuary was denied. Finally, the Order conditionally granting the relief requested was subject to conditions regarding dates for yard sale operations.

In its conditional grant of Frisky’s Petition for a Variance, the Board ruled: 21. The Board finds that although the [appellant] may have a license to exhibit animals at the Center, the [appellant] initially did not apply to be an animal exhibitor and subsequently failed to provide sufficient evidence during the course of the hearings held before the Board to determine that the [appellant] is, in fact, an animal exhibitor. The Petition presented to the Board as well as the testimony given by the [appellant] describes the activities of the Center as a charitable institution for the rehabilitation and sanctuary of ani ¹⁴² mals and not for displaying or exhibiting the animals to the public. The [appellant] did not request approval as a wildlife or exotic animal exhibitor nor was Frisky’s petition reviewed by DPZ or the Planning Board as an animal exhibit facility.

The mere existence of a visitor policy does not change the [appellant’s] proposed use for the subject Property into that of an animal exhibitor. The purpose of the Center is to maintain a preserve and sanctuary for animals. The animals at the Center are not kept there for the purpose of public exhibition. Board Opinion page 8. 5.

The Board concludes that although the [appellant] may have an exhibitor’s license, the [appellant] failed to provide sufficient evidence during the course of the hearings for the Board to determine that the [appellant] is, in fact, an animal exhibitor rather than a sanctuary and rehabilitation center for animals, the exemption for exhibits in Section 17.306(e)(4) of the Howard County Code does not apply because the [appellant] did not prove to the Board that she was an exhibitor and the [appellant] cannot therefore legally keep primates or other wild or exotic animals on the subject Property. Board Opinion page 9. Frisky’s, on June 17, 2004, and Wyckoff, on June 25, 2004, filed petitions for judicial review in the circuit court. In the petition, Wyckoff contended that (1) Frisky’s did not qualify for the Special Exception under the HCZR; (2) Frisky’s is not a charitable institution and should not qualify for the special exception use approved by the Board; and (3) the record does not contain substantial evidence to support the Board’s grant of a setback variance related to the pole barn.

Answering these allegations by Wyckoff, Frisky’s retorts that (1) Wyckoff did not have standing to appeal the decision of the Board of Appeals; (2) the HCZ zoning permitted Frisky’s as a charitable or philanthropic institution; (3) Frisky’s is a charitable institution; and (4) Frisky’s presented evidence that a variance was necessary for the pole barn. ¹⁴³ On January 18, 2005, Frisky’s filed a memorandum in support of its petition for judicial review in which it alleged that (1) the Board erred in finding that Frisky’s did not submit sufficient evidence to show that it is a wildlife or exotic animal exhibitor and the Board’s decision should be remanded to consider revisions made to the Howard County Code that, as amended, permitted animal sanctuaries that provide permanent housing to exotic animals. In response thereto, Wyckoff filed a memorandum on March 7, 2005, alleging that (1) the evidence presented to the Board relating to Frisky’s status as an exhibitor was “fairly debatable”; (2) revisions to the Animal Control Act do not apply retroactively to Frisky’s; and (3) regardless of what the current Animal Control Act permits, animal sanctuaries are not permitted in any zoning district in the County. The Board, On March 8, 2005, filed an Appellee’s Answering Memorandum, requesting that the circuit court affirm the Board’s decision and dismiss the appeals of both Frisky’s and Wyckoff. Wyckoff, on March 22, 2005, in a Reply Memorandum, responded to the Answering Memoranda of the Board and Frisky’s.

A reply memorandum was filed by Frisky’s on March 22, 2005, addressing the issues raised in its original memorandum and responding to the Answering Memoranda of the Board and Wyckoff. The circuit court, in affirming the decision of the Board of Appeals, issued the following memorandum opinion, in pertinent part: Preliminarily, Frisky’s claims that Wyckoffs Petition should be dismissed because Wyckoff failed to plead that they have standing to appeal this matter. “Any person or persons, jointly or severally, aggrieved by any decision of the board of appeals ... may appeal the same to the circuit court of the county.” Maryland Code, Article 66B § 4.08(a). “If the petitioner was not a party [to the underlying Board of Appeals action], the petition shall state the basis of the petitioner’s standing to seek judicial review. No other allegations are necessary.” Md. Rule 7-202(c). Wyckoff claims, “the [appellants] here were opponents before the Board.” Wyckoff Memorandum at 1. ¹⁴⁴ The Court is satisfied that Wyckoff may pursue the appeal and has sufficient standing to do so. 1.

Did the Board err when it found that Frisky’s submitted insufficient evidence to support the approval of Frisky’s as a wildlife or exotic animal exhibitor? Frisky’s first allegation of error is that the Board incorrectly concluded that Frisky’s “failed to provide sufficient evidence during the course of the hearings for the Board to determine that [it] is, in fact, an animal exhibitor rather than a sanctuary and rehabilitation center for animals.” D & 0 at 9. Generally, “no person may keep, hold for sale or sell wild or exotic animals.” Code, § 17.306. However, “the holder of a currently valid permit issued by a state or federal authority to keep animals for scientific research, study, or exhibits is exempt from the [general prohibition] only to the extent provided in the permit.” Code, § 17.306(e)(4).

Frisky’s claims that the wording of the exception makes it mandatory if the requirements are met. Since “exhibitor” is not defined in the Howard County Code, Frisky’s asserts that the Board should accept the definition promulgated by the United States Department of Agriculture (hereinafter “USDA”). The USDA defines “exhibitor” as “any person (public or private) exhibiting animals, which were purchased in commerce, or will affect commerce ... this term includes zoos and educational exhibits, exhibiting such animals whether operated for profit or not.” 9CFR1.1. Frisky’s goes on to allege that it provided sufficient evidence to meet the exemption provision as an exhibitor under § 17.306(e)(4).

Frisky’s alleges that the mere existence of the permit, and its provisions to the Board, is prima facie evidence to grant the exception. Frisky’s alleges that it provided to the Board on November 1, 2001 a copy of their USDA “Class C” exhibitors’ license, which was issued on August 14, 2001. (Transcript C-ll-12). “At the hearing held before the Board on November 1, 2001, the [appellant] submitted documentation that Frisky’s had obtained a ‘Class C’ Exhibitor” license pursuant to the Animal ¹⁴⁵ Welfare Act ( 7 U.S.C. § 2131 et seq.) from the United States Department of Agriculture. (D & 0 at 4).

A “Class C” exhibitor may buy or sell the exhibited animals as a means to maintain the collections of animals for exhibit. 9 CFR 2.1. Frisky’s also submitted testimony regarding the license at the January 3, 2002 hearing before the Board. (Transcript D-13-21). Next, Frisky’s alleges that the members of the Board unanimously agreed that Frisky’s amended its petition by submitting the USDA License, and that the amendment was not substantive, because “they’re still abiding by the same policy that they filed under and are doing the same, similar things.” (Transcript D-41-43).

Further, Frisky’s points to a February 20, 2004 Memorandum from the Office of the County Solicitor which concluded that Frisky’s “is exempt from the provisions of Section 17.306(e)(1) of the Code, as long as it maintains this federal license.” While the opinion was admitted into evidence before the Board, it was only advisory upon them. The Board alleges that, due to a lack of sufficient evidence, Frisky’s did not prove that it was an exhibitor. The Board found that although Frisky’s had a license to exhibit animals, Frisky’s did not initially apply with the County to be an animal exhibitor. (D & O at 9).

The Board claims that Frisky’s did not petition either for a permit as a center for public exhibition or to operate as a wildlife or exotic animal exhibitor, but rather to keep a preserve and sanctuary for animals. (D & O at 8). The Board found that Frisky’s does possess an exhibitor’s license, but that such license is insufficient evidence to prove that Frisky’s is an animal exhibitor. (D & O at 9).

The Board claims that it must be provided sufficient evidence before it may determine if the [appellant] is an animal exhibitor. (D & O at 8-9). It goes on to allege that the evidence submitted by Frisky’s “described the activities of the proposed use as a charitable institution for the rehabilitation and sanctuary of animals and not for displaying or exhibiting the animals to the public.” (Transcript, C-7). Frisky’s set forth evidence that they do not permit the general public to take tours of the facility.

(Transcript, D-16-19). However, Frisky’s also ¹⁴⁶ put on testimony that the general public is permitted to view the facility, if the individuals are over age sixteen and make an appointment two weeks in advance. (Transcript, D-19-20). In their final conclusion, the Board found that the § 17.306(e)(4) exemption does not apply to Frisky’s, and it may not legally keep wild or exotic animals or primates.

(D & 0 at 9). Wyckoff alleges not only that the Board was correct in determining that Frisky’s is not an exhibitor, but also that the Board was correct in finding that the mere fact that Frisky’s possesses an exhibitor’s permit does not make it an animal exhibitor. (D & 0 at 8). The Court agrees with the Board and Wyckoff that the Board did not err in concluding that the exemption for exhibitors did not apply to the special exception petition.

Simply put, Frisky’s did not prove to the Board’s satisfaction that it was an exhibitor. See Decision and Order at page 9. The Board acknowledged that Frisky’s did acquire a license to exhibit animals, but it found that it had not applied to be an animal exhibitor with the Board and also that it failed to prove to the Board’s satisfaction that it was, in essence, an animal exhibitor. In the Board’s view, the credible testimony supported the conclusion that Frisky’s was a charitable institution for the rehabilitation and sanctuary of animals.

It was not incumbent on the Board to have to conclude on the record that Frisky’s had shown itself to be an exhibitor. The mere fact that it acquired a federal license to be an exhibitor and that judgment was made by a different agency, at a different level of government, for different purposes, did not tie the Board’s hands or require only one result by the Board. This was left to their judgment and discretion, which the Board fairly exercised. The Court does not find a basis to reverse it. 2.

Did the Board err in applying a previous version of the Howard County Zoning Regulations, which has since been updated? Wyckoff alleges that the Board incorrectly applied the previous version of the Howard County Zoning Regulations ¹⁴⁷ to the instant case. The Howard County Code provides that, “any amendment or charge to the Zoning Regulations, whether previously or hereafter adopted, shall be applicable to all pending and future proceedings and actions of any Board, Hearing Examiner or agency ... unless the amendment or change expressly provides that it only applies to future proceedings and actions.” HCZR § 100(E). See also Washington Suburban Sanitary Commission v. Riverdale Heights Volunteer Fire Co., Inc., et al., 308 Md. 556, 560 , 520 A.2d 1319, 1322 (1987).

The Council went on to clarify that “cases that require a Decision and Order are considered pending unless the Decision and Order is signed by the Board ... prior to the date the legislation is adopted.” HCZR § 100(E)(1). In Maryland, “statutes are presumed to operate prospectively unless the Legislature ‘clearly expresses an intent that the statute apply retroactively.’ ” Della Ratta v. Larkin, 382 Md. 553, 566 , 856 A.2d 643, 651 (2004) (quoting State Ethics Comm’n v. Evans, 382 Md. 370, 387 , 855 A.2d 364, 374 (2004)). There is an exception to the County provision, allowing “any conditional use application filed on or before March 5, 2001 shall be subject to the regulations in effect prior to the effective date of Council Bill No. 11-2001.” HCZR § 100(E)(1)(a). However, not only must the legislative body evince a clear intent for the enactment to apply retroactively, but the court must also determine that retroactive application will not infringe upon a right vested in a party.

Della Ratta, 382 Md. at 566 , 856 A.2d 643 . As to the “conditional use” qualification to the exception, the HCZR defines “conditional uses” as “land uses and activities which require approval by the Board of Appeals for a specific location and site plan, based upon standards established in [the HCZR], Formerly called special exceptions.” HCZR § 103.A.28. The request for a variance issuance from the Board is clearly a “conditional use” under HCZR § 103.A.28. In regards to the application date, this case was already before the Planning Board of Howard ¹⁴⁸ County on July 27, 2000, almost a full year before the effective date of Council Bill No. 11-2001.

Wyckoff alleges that while the “savings clause” saves prior applications from Council Bill No. 11-2001, no “savings clause” exists for the changes in the April 2004 HCZR. Wyckoff argues that if the County Council wanted to have all of the HCZR changes apply retroactively, then each provision would require its own savings clause. Additionally, Wyckoff alleges that the amended act is substantive, not procedural, and therefore cannot be retroactively applied. However, no distinction is made in the statutory or case law between substantive and procedural statutory amendments.

See Della Ratba, 382 Md. at 566, 856 A.2d 643 and Evans, 382 Md. at 387 , 855 A.2d 364 . The Board asserts that the arguments put forth by Wyckoff and Tuttle are not meritorious because it applied the law and specifically that Section 100.E of the April 13, 2004 zoning regulations did not require it to apply the new law to this application. The Court agrees with the Board and rejects the argument that it could not approve the proposed use. The Court also agrees with the Board that a remand is not necessary for it to revisit its decision; the Court therefore accepts the Board’s arguments on this point. 3.

Did the Board err when it granted to Frisky’s a special exception as a Charitable and Philanthropic Institution under HCZR? In its May 18, 2004 Decision and Order, the Board granted Friskys’ Petition for a special exception for a charitable and philanthropic institution. (D & O at 14). Specifically, “the Board conclude[d] that [Frisky’s] operates the center as a charitable institution for the rehabilitation and sanctuary of animals on the property.” (D & O at 9).

A charitable or philanthropic institution is “a private, nonprofit organization whose primary function is to provide either health, social, religious or benevolent services.” (HCZR § 103.A.16). Additionally, “a determination of ¹⁴⁹ whether an institution is charitable must include a careful examination of the stated purposes of the organization, the actual work performed, the extent to which the work performed benefits the community and the public welfare in general, and the support provided by donations.” State Dept, of Assessments and Taxation v. North Baltimore Center, Inc., 129 Md.App. 588, 593 , 743 A.2d 759, 762 (2000) (quoting Supervisor of Assessments of Montgomery County v. Group Health Ass’n, Inc., 308 Md. 151, 157 , 517 A.2d 1076, 1079 (1986)). Wyckoff s arguments as to the lack of any charitable or benevolent purpose were not persuasive to the Board. The Board had ample evidence before it to support the conclusion it reached.

The Board’s interpretation and application of the special exception provisions of Section 131 of the Zoning Regulations, which the Board administers, must be given considerable weight by the Court. See Board of Physician Quality Assurance v. Banks, 354 Md. 59, 68-69 , 729 A.2d 376 (1999). The Court has little trouble here since the Board’s conclusion seems fully supported by the evidence and within the ambit of the legal strictures governing it. 4. Did the Board err in granting to Frisky’s a special exception for a setback variance for a Pole Barn?

In an “RC-DEO”—designated zoning district, such as the one in which Frisky’s is located, the minimum side yard setback requirement for a structure is 30 feet. HCZR § 104(E)(4)(a)(3)(b). However, Wyckoff alleges in his Memorandum that the Board erred in granting a setback variance to Frisky’s for a pole barn, to a maximum of 20 feet. The Hearing Authority may grant such a variance to the setback requirement if five separate requirements are met, such requirements designed to balance and protect the interests of both the individual requesting for [sic] variance, and also neighboring property owners.

See HCZR § 130(B)(2). Of those five requirements, the only one at ¹⁵⁰ issue is HCZR § 130(B)(2)(a)(l), which requires “that there are unique physical conditions, including irregularity, narrowness or shallowness of lot or shape, exceptional topography, or other existing features peculiar to the particular lot; and that as a result of such unique physical conditions, practical difficulties or unnecessary hardships arise in complying strictly with the bulk provisions of these regulations.” Specifically, the petitioner must submit to the Board evidence to show that the property is unique when compared with other properties located in the same neighborhood. Cromwell v. Ward, 102 Md.App. 691, 726 , 651 A.2d 424, 441 (1995). See also Umerley v. People’s Counsel for Baltimore County, 108 Md.App. 497, 507-08 , 672 A.2d 173 (1996).

This Court’s review leads it to conclude that the Board reasonably determined that as a result of the unique features of the property, Frisky’s was faced with a “practical difficulty” in complying with the setback restriction. This conclusion was based on a careful review by the Board that included a review of the zoning maps, vicinity maps and the testimony on the issue. While one may reasonably disagree with the Board’s conclusion that the narrow width, the topography and the location of the septic tank should lead to granting a variance, it is hard to argue that their conclusion is not a “fairly debatable” one that falls within the Board’s permissible choices given the record before it. Their conclusion was within their discretion and supported by sufficient evidence.

This being the case, the Court should not second-guess the result. (Footnotes omitted.) From the Order of the circuit court, this timely appeal was filed, in which Frisky’s raises the following issues for our review: I. Whether because the Board of Appeals clearly found that Appellants operated an animal sanctuary, and because the Howard County Animal Control Law was amended during the course of this litigation, the new ¹⁵¹ comprehensive, remedial law should be applied to Appellants’ request and the matter remanded to the Board for application of the new law?

II

Whether the Board committed reversible errors by (A) defiling its process by attacking the failure to obtain certain reviews after it voted to forgo those reviews (B) disregarding valid evidence including a Federal License and a County Solicitor’s letter of advice, and (C) failed to explain its conclusions properly? FACTUAL BACKGROUND Appellants have operated a wildlife refuge and sanctuary in Howard County since 1976. They have operated at their current location, 10790 Old Frederick Road, Woodstock, Maryland since 1993. The property is described as a 3.728 acre lot in a Rural Conservation—Density Exchange Option (RC-DEO) zoning district in the Second Election District on the north side of MD 99, 700 feet west of Woodstock Road.

To the North of the subject property is an improved lot with a single family detached dwelling, which is buffered by Evergreen trees. To the East of the subject property is the lot owned by Wyckoff, which is an improved lot with a single family dwelling located approximately seventy feet from the subject property. The Wyckoff property shares a common driveway with the subject property. Frisky’s was incorporated in 1998, as a not-for-profit corporation.

Frisky’s functions as an animal rehabilitation center and primate sanctuary, whose activities include care and rehabilitation of “wildlife that have been injured or orphaned; domestic animals such as rabbits, and farm animals that are sick or who have become pets, but can’t be kept by their owners; and primates that come from laboratories, sanctuaries or private owners around the country before it became illegal to own primates without a license.” Colleen Layton is Frisky’s proprietor and there are no other employees. Frisky’s is operated primarily by Layton twenty-four hours a day, seven days a week, with the help of volunteers, currently ¹⁵² numbering about twelve. According to Layton, wildlife rehabilitation consists of assessing the injuries of orphaned, displaced or injured animals, and returning them to the their habitat or designated areas of the state park. With respect to the farm animals, Layton testified that individuals bring them in as unwanted pets, and she tries to find them appropriate homes.

The animals remain at Frisky’s until an “experienced home that has a vet” is found. Within the boundaries of the property, there is a residence, two garages, a barn and several other structures, which will be described, infra. An infirmary is located in the basement of the residence, with support areas, including a kitchen. The infirmary is a five hundred square foot room, which also has cages to house some of the primates.

A deck adjacent to the kitchen is used to store toys and other items. Among the other structures on the property, there are three primate houses which provide indoor shelter and secure outdoor cages. In addition, there are dog runs, a goat run, a horse pasture, chicken and duck coops. The property has several storage sheds and a pole barn.

At the time of the hearings, there were twenty-seven primates living at Frisky’s, consisting of four species: Macaque, Squirrel, Capuchin and Vervet Guenon. On December 14, 1999, appellants were issued a notice for violating a zoning regulation by operating a charitable and philanthropic institution without an approved special exception by the Howard County Department of Planning and Zoning (Planning and Zoning). On July 27, 2000, Planning and Zoning considered appellants’ petition “for a Special Exception for a Charitable and Philanthropic Institution for an existing wildlife rehabilitation center and primate sanctuary.” On August 9, 2000, Planning and Zoning recommended approval of appellants’ petition subject to correction of nine conditions, two of which were disposed of prior to the issuance of the recommendations. The matter proceeded to the Board of Appeals, which received testimony from a number of witnesses over a period of approximately two years.

The conditions ¹⁵³ attached to the recommendations from Planning and Zoning included: 1. The Special Exception shall apply only to the existing wildlife rehabilitation center and primate sanctuary as described in the petition, and as depicted on the plan for Frisky’s Wildlife & Primate Sanctuary, or as may be revised by the Board, and not to any other activities, uses, or structures on the Property. 2. Any encroachments of existing structures or uses into the required 30 foot side setbacks shall be eliminated or the Petitioner shall obtain approval for variances for the encroachments. 3. The portion of the West Use Area which extends beyond the front wall of the existing dwelling shall be buffered on the east side by landscaping. 4.

Screening shall be provided along the common east side lot line, from the driveway on lot 1 to the rear property line of the Property. 5. Landscaping shall be placed within the lawn area at the center of the circular drive to screen and buffer the view of Primate House 1 and activities in the circular driveway from the house on Lot 1. 6. Evergreen landscaping shall be planted along the east side of the parking lot, replacing the large sign in that location, to appropriately screen the parking spaces from Lot 1. 7. The outside primate enclosures on the southwest side of Primate House 1 shall be screened with landscaping on its east side, to buffer potential sounds or these particular enclosures shall be entirely removed, leaving only the enclosures on the northwest side of Primate House 1.

At the July 10, 2001 hearing, the primary concern was whether Frisky’s was permitted to operate a primate sanctuary. The proffer from appellants’ counsel was that she was in the process of obtaining the necessary license to care for ¹⁵⁴ primates. The concern then turned to whether the acquisition of the exhibitor’s permit would, in effect, change the nature of appellants’ requests from that of a sanctuary. In response, appellants’ counsel stated: The permit that’s at issue here, it’s called an exhibitor’s permit.

The exhibitor’s permit, what it requires is that people see what’s there and people are educated about what’s there, the animals that are there. Currently, people drive by to drop off donations. The public comes by to drop off. Also the public comes to the facility to adopt the farm animals.

In order to adopt the farm animals, you have to walk past the primate house. According to the USDA, that qualifies as exhibition. We have no intention whatsoever of having a turnstile installed and having advertising and having whatever you see at the National Zoo, that’s not what’s going to happen. What’s going to happen next week is the same thing that happened last week.

There’s no intention whatsoever to alter in any manner the way that this operated, other than now we’re technically going to be in compliance with the Animal Control law. The Board, without considering the issues, continued the hearings for ninety days to allow appellants to complete the process and possibly obtain the license. At the November 1, 2001 meeting, appellants presented a “class C” exhibitor’s license granted by United States Department of Agriculture (USDA) on August 13, 2001, which permits the holder to house and exhibit primates. Wyckoffs counsel offered his disagreement with appellants’ proffer to the board during the July 10, 2001 meeting, concerning the exhibitor’s permit.

He argued: And you will note that the under the County’s animal control law it’s a public protection services law. That is, it’s intended to take care of the public health, safety and welfare. The USDA permit that they’ve obtained as an exhibitor has nothing to do with the public health and safety and welfare and the exemption that’s covered in the animal control laws deals with the protection of the public. You will see in the provisions of the attached USDA law that the ¹⁵⁵ purpose of Department of Agriculture’s problems with respect to animals is the protection of the animals.

What they care about is how a keeper of those animals takes care of them. Wyckoff continued, arguing that the definition of exhibitor under the federal statutes was in the nature of a zoo or museum. Additionally, Wyckoff presented evidence that certain activities were exempted from USDA licensing, such as a private zoo or shelter, and that is what appellants are requesting. In essence, Wyckoffs counsel argued that appellants were required to inform the Board of their exact status, either as an exhibitor, or as a sanctuary.

If appellants were to classify themselves as an exhibitor, then the choice became whether they were going to operate under their proffer from July 10, 2001, which would require dismissal or whether they could then demonstrate to the Board that they are in compliance with USDA as a true exhibitor. Robert Sharps, a member of the Board of Appeals, asked appellants’ counsel, “Now are you asking this Board to consider you as an exhibitor or as a primate sanctuary,” to which the response was: “As an exhibitor with a specific spelled out, limited, myopic limitation on that and the times in which exhibits can occur.” Robert Adams was the first witness called by appellants. Adams is a doctor of Veterinary Medicine with twenty seven-years of experience working with non-human primates in the area of biomedical research. He considered himself an expert on primates and primate diseases.

Adams testified that the Macaques were particularly susceptible to tuberculosis and herpes virus B, as well as bacterial diseases. Monkeys held in captivity may have fewer diseases, but are not disease free. The mechanism for disease transfer, in most cases, is “some sort of fairly intimate contact, fairly close contact.” He stated he has never known of anyone that has caught a disease by simply being in the same room as the primates. The likelihood of a human contracting a disease from the primates without physical contact, he stated, is fairly small.

Members of the Board questioned Adams as to whether requiring ¹⁵⁶ appellants to conform to an exhibitor type license would increase the hazards, to which he responded that he did not think there was any more risk because the public and the primates are kept separate. After hearing from Adams, the Board raised concerns as to whether appellants’ petition for the variance and special exception was substantially changed as a result of the USDA license, and appellants’ attempt at bringing Frisky’s within the provision of the Howard County Code that required the license. One concern apparently was that the Planning Board had not made its recommendations based upon appellants operating as an exhibitor, but as a sanctuary, as well as the Board’s uncertainty as to requirements that USDA would place on appellants. The Board heard proffers from both counsel and then met in a closed session to consider if it would consider a motion to determine if appellants’ change from sanctuary to exhibitor was a substantial change.

When the hearing resumed, the Board tabled the motion and requested testimony from appellants’ as to their intended use for the property. Layton testified at the November 15, 2001 hearing that, prior to acquiring the USDA license, the public was only allowed to inspect the animals for adoption between 1:00 p.m. and 5:00 p.m. on Sundays, and that was the original policy. The only exceptions to the policy were for fund-raising and “vet techs internships,” and even those individuals would be asked to plan for Sunday afternoons. When asked about the “No Visitors” sign posted at the facility, she stated, “We call it a peaceable kingdom.

One, we don’t want to be bothered. It stresses the animals to have visitors. It stresses me to stop what I’m doing when what I’m doing is more important.” She also testified that her reason for acquiring the permit was so that “Frisky’s would be in compliance with Howard County’s laws.” In addition to the conditions imposed by the Planning Board, to qualify for the USDA license, appellants stated that Frisky’s was required to increase the height of the fences ¹⁵⁷ around the animals from four feet to six feet high and move the fences back an additional foot from the animals, making the total distance three feet. They also replaced the wood floor in the primate room with ceramic tile for sanitation purposes.

Appellant then testified concerning the visitor policy: The visitor policy is, between September and March, the first and third Sunday of the month between one and five. No more than one car. No more than five people. Nobody under the age of sixteen.

They have a reason for wanting to visit. They make an appointment and then we access [sic] it and they’re allowed to come visit the animals by appointment only. Only between September and March. The Board, on January 3, 2002, questioned appellant, principally concerning the visitor policy and the USDA license.

The testimony of import was revealed through a colloquy with Robert Sharps and appellant, as follows: THE BOARD: Let’s talk about the permit that you have again. Under this USDA, is it a permit or a license? Appellant: It is a license. THE BOARD: It’s a license. [Appellant’s Counsel]: Mr. Chairman can I introduce that into evidence at this particular time?

THE BOARD: If you would like to. I’m going to ask her a specific question about it and that may help. Well we have the license. It’s not been entered except for on the bottom of the policy.

And since it’s on the, I can speak to that. Maybe later you may want to enter something if the question I ask is not answered. There’s so much ambiguity on what this license permits you to do. What is in writing besides what we see on the front sheet of this one page that allows you to do as an exhibitor?

Do you have something in writing other than your conversation with the ... Appellant: We have a manual that we have to follow and meet. Visitors such as somebody that is doing a tour, of course they can’t handle, touch, hold, interact. They get ¹⁵⁸ to see them from a distance like from where I am to the lawyers.

And if a primate is not interested in even seeing them they go inside. THE BOARD: Okay. Well the only reason that you are authorized to have this as we see so far, to even have primates there, is because you have this exhibitor’s license, correct? Appellant: I do have an impeccable reputation and I met everything that they asked me to do.

THE BOARD: No, no. I’m not questioning your reputation or your character. I’m saying the reason we’re here now and continuing with this case is to allow you to present your case to have primates in that wildlife sanctuary is because you went and pursued and obtained a USDA license which says that it allows you to be an exhibitor, correct? And according to the regulations of the county Code if you don’t have an exhibitor’s license that’s one of the exceptions for you to have primates.

Appellant: For me to become in compliance with Howard County’s zoning laws and Howard County animal control laws they said that I had to get a USDA license because the County changed the laws on exotics as pets. THE BOARD: We’re going along in the right directions. I think you’re agreeing with what I’m saying. Now that you have that, does that license say that you must have tours.

As an exhibitor you can’t exhibit without having someone see it. Correct? Appellant: Exactly. THE BOARD: And I think I want to go back to Mr. Waffs question.

You seemed to evade with which I don’t think is ... Appellant: I’m not meaning to. THE BOARD: Well let me ask you a direct question and then maybe we can get an answer and that will just clear all this up. As an exhibitor you have to have people look át it.

I don’t care whether it’s the public. You’re calling it not the public. Well who is it? Private showings of ¹⁵⁹ specific people on a list that you have that is specific only to membership?

Appellant: Pretty much, yes. THE BOARD: What do you mean by pretty much, yes? Appellant: Well we have college students that want to do an internship. Vet techs that do internships.

We do mentor programs. We do, where people want to have a fundraiser from their organization and of course they want to see what they’re having the fund-raisers for. This is what we need to change here and we’d like to better this or this is the size of their enclosures, this the type of toys they need, this the size of cage, this the gage wire we use. Things of this such.

If, you know, if somebody came there with a few children and said my children want to see the monkeys, of course we say no. We don’t want them under any kind of stress. We don’t want anybody bringing in any kind of germs. Nobody can get sick unless their introduced to it.

THE BOARD: Let me go back and maybe I’m not being clear either. The license that you received is an exhibitor license, correct? Appellant: Yes. THE BOARD: What does an exhibitor license allow you to do?

Appellant: It allows me to show when I want to show. THE BOARD: Oh. It says that in there. You can discriminate on who gets to see this?

It says that in the license? Appellant: I don’t think it is in writing, no. THE BOARD: Well if it’s not in writing would you assume that it may be open to the public as an exhibitor? Unless it says you can discriminate on who comes in there why would it not be allowed, why would they give you a license, a specific license that only allows your discrimination of who can come in and see the animals.

Now when you can do it, I’m not even going to question. You’re doing it twice a month. You can do it once a month as long as your exhibiting. Because obviously we don’t have ¹⁶⁰ anything that says that there is any specificity as far as time and dates.

You can do that. But who allows you to discriminate who? The license allows you to do that? Appellant: Yes.

THE BOARD: Where? Where does it specifically say, now I want to see the license, where it specifically allows you to discriminate ... Appellant: I don’t think that is in writing. THE BOARD: Okay.

So then we can’t assume that. That’s Mrs. Layton’s feeling. Appellant: No, that’s the sanctuary’s procedures that we had set up. It was submitted to USDA though.

THE BOARD: I understand. I’m not questioning that. It’s approved. You have a license.

I want to know what does that license allow you to do. Mr. Waff says for instance, and the reason I’m going through this and I’m not belaboring it, is you have a petition here that say specifically no tours will be given to the general public. Appellant: That’s exactly what it is, the general public. They’re not allowed to come in.

THE BOARD: Who’s the last person that you allowed to go in there to see those primates? Give me a name. Appellant: My vet from the Falls Road Animal ... THE BOARD: Okay, that’s not the general public.

Anybody outside of someone that you employ. Appellant: There is nobody. THE BOARD: Nobody has visited? Appellant: We have our friends and family and neighbors that are around there but no, we haven’t had a tour or visitor.

Oh yes, we have had one of our lawyers. THE BOARD: ... Mrs. Layton let’s cut to the chase, okay, so we can get through this. If someone wanted to come and see those animals under the license that you went and received from the USDA that allows you to be an exhibitor, can you discriminate and say no one other than who ¹⁶¹ you specifically anoint as a friend, family, vet or anyone else can see them and nobody else is allowed.

Does that license allow you to do that? Appellant: It allows me to do that but it is not in writing. THE BOARD: I know that I’m not the smartest cookie in the this box but let me tell you something ... Appellant: I don’t want to be classified as a zoo.

I don’t want the general public coming up there thinking they can come up there. THE BOARD: We’re not saying that. You’re not a zoo.