Long Green Valley Ass'n v. Prigel Family Creamery

WRIGHT, J. This case arises from a decision of the Baltimore County Board of Appeals (“Board”) upholding the Baltimore County Deputy Zoning Commissioner’s grant of a petition for special exception filed by appellee, Prigel Family Creamery (“Creamery”). 1 The Creamery sought a permit for “a Farm Market; or alternatively for a Farmer’s Roadside Stand” pursuant to the Baltimore County Zoning Regulations (“BCZR”), which appellants, Long Green Valley Association, Carol Trela, John Yoder, Susan Yoder, and Charlotte Pine, opposed. After ²⁶⁷ hearing the matter on October 15, 2009, the Board issued an opinion and order on March 25, 2010, granting the Creamery’s request. Thereafter, appellants and the People’s Counsel for Baltimore County filed motions for reconsideration which the Board denied. On July 16, 2010, appellants filed a petition for judicial review in the Circuit Court for Baltimore County.

After holding a hearing on January 14, 2011, the court issued a memorandum opinion and order on April 5, 2011, affirming the Board’s decision. On April 21, 2011, appellants filed this appeal. Questions Presented We have adopted the questions presented by the Creamery: 2 1. Was the Board of Appeals legally correct in finding that the special exception requirements had been satisfied for the Farm Market? 2.

Was the Board of Appeals legally correct in finding that the B.C.Z.R. criteria had been satisfied for the Farmer’s Roadside Stand? For the reasons that follow, we uphold the Board’s decision and affirm the judgment of the circuit court. Facts The Creamery is located on Bellevale Farm in the Long Green Valley of northeastern Baltimore County. The farm, which is zoned R.C.2 for Agricultural Preservation, 3 consists of approximately 200 acres, 180 of which have been placed in an ²⁶⁸ agricultural easement with the Maryland Agricultural Land Preservation Foundation (“MALPF”). 4 Both the Creamery and the farm are owned by the Prigel family.

The Prigels have operated a dairy on their farm for several generations. According to the operator of the dairy, Robert Prigel, Bellevale Farm is “quite different than the average commercial dairy farm in the United States.” He explained: It’s patterned more after a New Zealand style dairy. Everything we have is grass. The cows go out and graze every day.

They get new sections of grass every twelve hours. The daytime, since the pasture[ ] is pretty much divided, half on the north side, half on the south side of Long Green Road, the cows graze the north side during the day, and the south side in the evening time. We’re also certified organic.... Mr. Prigel stated that approximately 150 cows are milked on a daily basis, for an average of 500 gallons of milk per day.

He added that his family sells the majority of the milk wholesale. On or about March 31, 2006, the Creamery filed a petition for special exception “per BCZR § 404.4D and § 502.1 to permit a Farm Market; or alternatively for a Farmer’s Roadside Stand per BCZR § 404.4C.” The Prigels intended to sell milk, butter, yogurt, ice cream, jams, beef, pork, chicken, eggs, and crafts, with about 95% of the merchandise being dairy products. The Prigels planned to construct a 10,000 square foot building on the north side of Long Green Road to house the Creamery and retail area. They proposed a parking area on a porous paving surface to accommodate eight vehicles.

Due to the farm’s location in the R.C.2 zone and the easement encumbering the bulk of the property, the Prigels sought permission from both the Baltimore County Agricul ²⁶⁹ tural Land Preservation Advisory Board (“BCALP”) and MALPF. By letter dated October 29, 2007, MALPF informed Mr. Prigel that it “approved the construction of a 7,000 to 10,000 square foot building to house the creamery operation, processing facility and farm store,” conditioned upon the following: Must not interfere with other agricultural or silvicultural operations. Must not limit future agricultural or silvicultural production. Easement owner must have an ownership interest in the operation.

Some of the products must come from animals raised or crops grown on site; the remainder from animals or crops indigenous to Maryland. Facility and parking area must cover no more than 2% (two percent) of the easement/district, or two acres, whichever is smaller. Parking area must be pervious. Accessory sales area must not exceed 600 sq. ft.

BCALP also supported the request, stating: The location is directly across from the existing farmstead and is located immediately adjacent to the road. This is consistent with the practice of protecting prime and productive agricultural soils.... The applicant’s farm operation gives reasonable indication that he can meet the production requirements for Farmer’s Roadside Stand and Farm Market. This request for a building of a maximum of 10,000 square feet that includes the farm market, processing and creamery [is] consistent with the MALPF approval, Baltimore County Zoning, and the Baltimore County Master Plan.

This support is conditional upon Mr. Prigel receiving all necessary permits for the processing and creamery operation. On October 15, 2009, the Board held a hearing regarding the Creamery’s request for a special exception. The Creamery presented the testimonies of Mr. Prigel, two experts, a representative of the Greater Long Green Community Associ ²⁷⁰ ation, and immediate neighbors to the farm. Michael Fisher, who was accepted as an expert in landscaping, architecture, zoning, and land development in Baltimore County, opined that the proposed use would not create any congestion in the roads, potential hazards, overcrowding, or interference with existing water provisions.

Fisher also testified that the proposed use is “consistent with the R.C.2 agriculture zone” and would not have a detrimental impact on the health, safety, or general welfare of the locality. Mickey Cornelius, who was accepted as an expert traffic engineer, stated that his company collected traffic volume data on Long Green Road by using a mechanical volume counter. After analyzing the results, he opined that “Long Green Road has fairly minor traffic volumes throughout the day.” Taking into consideration the minimal accident activity in the area and “the low volume of traffic that would be expected to be generated by [the proposed Farm Market],” Cornelius concluded that approval of the Creamery’s request “would not tend to create any congestion on the road.” William Pennington, a representative of the Greater Long Green Community Association, explained that their association was “organized for the purpose of helping our community maintain its rural and agricultural nature.” Pennington testified that their organization has “taken a position ... in support of the Prigels’ objectives.” Likewise, Robert Carter, Louis Reiehart, James Currens, and Darrell Edwards—all neighbors to Bellevale Farm—expressed their support for granting the special exception. Appellants presented the testimonies of Edward Blanton, who resides off Long Green Road, and Carol Trela, the secretary of the Long Green Valley Association.

Blanton stated that his only concern “ha[s] to do with the traffic,” because he started running exclusively on Long Green Road and wanted to minimize the possibility of accidents. Blanton stated that if the Creamery’s request was approved, he would support it and become a customer, but he first wanted to make sure that the Prigels have “the legal right to put up a building ²⁷¹ on that property.” Trela testified, on behalf of appellants’ organization, that the Prigels’ new building is “out of place” in the valley. She believed that the development is incompatible with the R.C. zoning and with land conservation and that it would bring a lot of traffic into the area. Trela also testified that members of appellants’ organization were afraid of losing their water and were concerned about the possible runoff from the farm going into a nearby Class III trout stream.

By opinion and order dated March 25, 2010, the Board granted the Creamery’s request for a special exception for a farm market, or in the alternative, for a farmer’s roadside stand. The Board found that the Creamery met the special exception standards for a farm market, as the building “will not be injurious to the health safety and welfare of the public nor would it create congestion on Long Green Road or any other nearby roads.” According to the Board, the market is not expected to generate the type of traffic that comes with a grocery or convenience store. Similarly, the Board found that the Creamery met the criteria for a farmer’s roadside stand. The Board noted that the majority of the products to be sold will be dairy products from the cows on Bellevale Farm, and the non-agricultural goods “will be in the minority of products sold.” The Board further stated: The Board does not find any merit to [appellants’] argument that the inclusion of the words “grown and produced” in the definition of farmer’s roadside stand and farm market in § 101.1 of BCZR prohibits the sale of dairy products from either the market or stand.

The Board construes the meaning of “grown and produced” to mean that it originates on the farm and/or that it is indigenous to the area. The Board acknowledges that both a farm market and farmer’s [roadside] stand are uses which support agricultural [sic]. The [appellants’] argument is essentially that only the sale of fruits and vegetables qualifies as the product which can be sold from either a market or stand. The Board does not believe that the County Council intended to restrict the sale of dairy products, beef, chicken and eggs, particularly in ²⁷² light of the County Council’s recent Bill 34-09 which explicitly stated that a farm market could be used in conjunction with a farmstead creamery to sell dairy products.

Moreover, the term “farm product” is not defined in BCZR but has been defined in the Maryland Agriculture Code, § 10-601(c) to include eggs and dairy products. The testimony of Edward Blanton as to the legality of constructing the building in the agricultural easement was countered by the documents from MALPF and Baltimore County which show that permission was obtained] to build within the easement area. The Board also noted that appellants did not offer any experts to counter the testimony of Fisher and Cornelius. Finally, citing the support of BCALP and the Deputy Zoning Commissioner, the Board concluded that the proposed use is “a small but critical component of the continued operation of one of the last few dairy farms in the county.” In April 2010, appellants and the People’s Counsel for Baltimore County filed motions for reconsideration.

Following a public deliberation on May 25, 2010, the Board issued an order on June 22, 2010, denying the motions. In pertinent part, the Board stated: [A]ny Motion for Reconsideration should only be necessary when there has been substantive new case law or enactment of a statute not available previously, which would clearly merit a modification of a Board’s previous decision. After careful consideration of both Motions, this Board has decided that the Motions for Reconsideration [do] not point to any fraud, mistake or irregularity in the conduct of the hearing in this case, nor does the Board find there is any indication of the existence of new law or evidence not available to the [appellants] or to People’s Counsel at the time of the hearing. The essence of both Motions center on [MALPF’s] decision to permit the [Creamery] to build within the agricultural easement area.... ²⁷³ ... [T]his Board has no jurisdiction to reverse the decision of MALPF....

Additional facts will be provided, as necessary, below. Discussion Appellants argue that the Board erred in granting the special exception for the farm market and, to the extent that the Creamery sought permission for a farmer’s roadside stand, the Board erred in granting that request as well. According to appellants, the County Council explicitly prohibits the sale of dairy products at a farm market or farmer’s roadside stand. In addition, appellants aver that the use intended by the Creamery is commercial in nature and inconsistent with the use of land that is subject to an agricultural easement.

Moreover, appellants contend that the Creamery did not satisfy the conditions imposed by MALPF, did not exhibit compliance with the Baltimore County Master Water and Sewage Plan, and did not show, pursuant to BCZR § 502. 1, that the use would not impact public health, safety, or welfare in the area. The Creamery responds by stating that the Board properly granted its request. The Creamery argues that zoning regulations were amended “so that the sale of processed dairy products could be a primary purpose” of farm markets and farmer’s roadside stands. Furthermore, the Creamery contends that its intended use falls within “commercial agriculture,” which is permitted by the BCZR.

The Creamery also notes that it satisfied the conditions imposed by MALPF and avers that appellants’ arguments regarding water and the possible impact on public health, safety, and welfare are unsupported and without merit. We agree with the Creamery. “On appellate review of the decision of an administrative agency, this Court reviews the agency’s decision, not the circuit court’s decision.” Halici v. City of Gaithersburg, 180 Md.App. 238, 248 , 949 A.2d 85 (2008) (citing Anderson v. Gen. Gas. Ins.

Co., 402 Md. 236, 244 , 935 A.2d 746 (2007)). ²⁷⁴ “Our primary goal is to determine whether the agency’s decision is in accordance with the law or whether it is arbitrary, illegal, and capricious.” Md. Dep’t of the Env’t v. Ives, 136 Md.App. 581, 585 , 766 A.2d 657 (2001) (citation omitted). In other words, “[w]e apply a limited standard of review and will not disturb an administrative decision on appeal ‘if substantial evidence supports factual findings and no error of law exists.’ ” Tabassi v. Carroll County Dep’t of Soc. Servs., 182 Md.App. 80, 86 , 957 A.2d 620 (2008) (quoting Howard County v. Davidsonville Area Civic & Potomac River Ass’ns, Inc., 72 Md.App. 19, 34 , 527 A.2d 772 (1987)). I. Farm Market A farm market is defined as: An accessory or principal building or structure other than a dwelling which is used by one or more farmers for the sale of products grown, or grown and produced, primarily on their own farms or for the sale of other indigenous farm products.

A farm market may sell a limited amount of locally produced nonagricultural goods such as handcrafted items, homemade baked goods, homemade preserves, and jams. BCZR § 101.1. This definition was adopted by the