Marietta Aggregates v. Citizens for the Preservation of the South Mountain-Antietam Environment

LlSS, J., delivered the opinion of the Court. To characterize this case as a “highly controversial” one in Washington County, Maryland is probably the understatement of the year. On the one side of the issue are the appellants, Benévola Farms, Inc., David Litton, Sr., and Martin Marietta Aggregates Corporation, who were perceived by the court below as having a common interest in the controversy and as acting in concert with each other as to the use of the property which is the subject matter of this dispute. We shall adopt the position of the trial court on this phase of the matter and shall make no effort to unravel the complex series of deeds, leases, and options which established the respective interests of the parties.

The appellees are Citizens for the Preservation of the South Mountain-Antietam Environment, a nonprofit unincorporated association, and the individual adjoining property owners who have joined in this proceeding. In 1975, Martin Marietta Aggregates was the operator of a quarry pit located on a fifty-eight-acre tract owned by Benévola Farms, Inc. in Election District Six of Washington County. The operation included storage of stockpiles, a plant building office, equipment and scales used in the extraction of Tomstown dolomite stone. The stone was utilized in an asphalt, concrete and cement plant owned by Richard F. Kline, Inc., located in close proximity to the quarry pit.

The quarry and asphalt plant were served by a road running from Benévola Church Road. It is conceded that the quarry and asphalt plant had been in operation for a long period of time before the adoption of the Washington County Zoning Ordinance, and that the classification of the quarry under that Ordinance was “Industrial Mining.” Immediately adjoining the fifty-eight-acre tract was an unimproved tract of eighty-five acres owned by David Litton, Sr., which was zoned as “Agricultural” land and used for farming purposes by the owner. By a series of transactions, Martin Marietta Aggregates obtained an option to purchase the eighty-five acres provided the land could be classified “Industrial Mining.” A petition was filed, in proper form, with the County Commissioners for Washington County in which ²⁸ the petitioners sought to rezone the eighty-five-acre tract from “Agricultural” to “Industrial Mining.” The area surrounding the two tracts is a mixture of farmland and single family residences. On May 25, 1976, the County Commissioners, after a hearing, denied the petition for rezoning.

The appellants appealed that decision to the Circuit Court for Washington County. On July 15, 1976, while the appeal from the denial of the petition for rezoning was still pending in the Circuit Court, Martin Marietta Aggregates filed a petition, in proper form, with the Washington County Board of Zoning Appeals for a special exception in which it sought permission to operate a mineral extraction enterprise on the eighty-five-acre tract adjoining their existing quarry operation. The applicants presented by testimony and exhibits a plan for the integration of the eighty-five-acre tract into the existing quarry operation on a step-by-step basis commencing with the granting of the special exception and concluding with the reclamation of the property in approximately the year 2011. The plan was drawn in conformity with the provisions of Article 22, Section 22.3 of the Washington County Zoning Ordinance.

It contemplated moving the existing stockpiles of stone onto the eighty-five-acre tract, improving of the herm area (the area where top soil and unusable material are mounded) with the planting of pines, and constructing a sediment and erosion control pond and drain. The applicant produced testimony that as the existing quarry pit expanded the stockpiles on the adjoining property would be expanded until a maximum pit area of thirty-four acres would be attained. Thereafter, in approximately 1991, the applicant would begin reclamation of the existing quarry, would move the plant, office scales and equipment onto the property for which the special exception was sought and would begin to excavate a pit near the south end of the property which would ultimately cover twenty-nine acres of the eighty-five-acre tract. The development of this pit would occur through the 1991-2011 phase of the development plan.

It was stated that at maximum development the proposed quarry operation ²⁹ would be no closer than 1450 feet to residences presently-existing. Extensive hearings were held before the Board of Appeals, and on September 2, 1976, the Board granted the special exception. The Board gave the following reasons for granting the special exception: 1. That Article 6, Section 6.2(f) allows the Board to decide on a special exception for extractive type industries, subject to the requirements of Section 22.3. 2.

That the proposed special exception shows no increase or intensification of the effects of a quarrying operation on the lives or property of people residing in the area. The plans call for a transitional move from one site to another with no immediate or sudden increase in the volume of business. The Board finds that the net effect of such a plan will not substantially differ from the present minimal effect of the quarry on the area. Section 25.6 (Limitations, Guides & Standards) 3.

That the area’s growth and population will not be adversely effected by the transitional plan for the special exception. Section 25.6 A & B 4. That the volume of truck traffic will not be substantially increased. The appellant requested at the hearing that a meeting be held with County representatives so as to alleviate truck traffic west of the quarry.

Section 25.6c 5. That the transitional or phased plan for the special exception use will not deprive people of the peaceful enjoyment of their homes (Section 25.6d) or lower property values (Section 25.6e) 6. That the proposed special exception is an appropriate use of the land. (Section 25.6g) It is adjacent to the existing quarry, and contains extensive deposits necessary for a quarrying operation.

It is located in a rural area of the County ³⁰ outside of the urban type growth of larger communities. Section 6.0 (Purpose) The appeal for a special exception as provided for in Section 6.2(f) of the Ordinance is granted for the implementation of the transition or phase-type plans submitted at the hearing, subject to all present requirements of the Ordinance, including Section 22.3. The appellant or their representative is directed to meet with County agencies within 30 days from the date of this decision to seek to alleviate or prohibit truck traffic west of the quarry on Benévola Church Road to Alt. Rt. 40 and also on Toms Road.

The appellees appealed to the Circuit Court for Washington County, and after a preliminary hearing, the court remanded the case to the Board of Appeals to take testimony to replace that portion of the record that was not preserved at the original hearing because of a failure of the recording device. After a rehearing, the Board of Appeals affirmed its original decision to grant the special exception sought by Martin Marietta. Appellees again appealed to the Circuit Court, and the trial judge, after hearing extensive argument and considering the record of both proceedings before the Board of Appeals, reversed the action of the Board on the ground that the Board had no jurisdiction to hear and decide the petition for a special exception in view of the pending appeal of the denial of the petition for rezoning. The trial judge in his opinion said: The appellant protestants [appellees herein] argue that the Board of Zoning Appeals should not have received the application for a special exception while the rezoning decision concerning the same premises was on appeal to the Circuit Court.

The Court agrees for the reasons stated hereafter. * * When the appellees [appellants herein] first sought to change the use of the subject property ³¹ they had a choice of two approaches. They could seek rezoning of the land in question under Article 27 of the Zoning Ordinance or they could seek a special exception under Article 6 of the Ordinance. The rezoning approach was elected and it was argued to the County Commissioners that there had been a mistake in the original zoning classification and that there had been a substantial change in the character of the neighborhood which justified the rezoning requested. The request was denied and that decision was appealed.

While that appeal was pending the appellees sought a special exception from the Board of Zoning Appeals and argued that the zoning classification was correct and that they were qualified for a special exception under it. The Court is of the opinion that once the rezoning request was pursued to a decision the appellees could not then elect to pursue the special exception route. Article 27.6 of the Zoning Ordinance states that once reclassification has been denied another such application dealing with the same land shall not be accepted for filing for twelve months. To permit the appellees to follow the special exception route would have the effect of nullifying Article 27.6.

It would allow the administrative body, the Board of Zoning Appeals, to substitute its judgment for that of the legislative body, the County Commissioners, and it would permit the appellees to argue mistake in zoning in the reclassification case and correctness of zoning in the special exception case. Further, to permit such a dual approach permits a multiplicity of actions and places a substantial financial burden upon the protestants. They must oppose the rezoning at the Commissioner level and on appeal and at the same time oppose the special exception application before the Board of Zoning Appeals and on appeal. A party with superior resources could thus prevail over a party with limited resources ³² through a multiplicity of litigation and that does not serve the ends of justice. , Once the appellees have made an election between rezoning and special exception and have pursued their election to a decision they cannot revert to the other.

It is from the judgment of the court below reversing the Board of Appeals that this appeal was filed. The issues to be decided by this appeal are: 1. Did the trial court err in its conclusion that the appellants’ pending appeal of the denial of its petition for rezoning by the County Commissioners of Washington County was a bar to its attempt to secure a special exception under the Washington County Zoning Ordinance? 2. Assuming, arguendo, that the proceeding for a special exception before the Board of Appeals was not barred, should the Court consider and affirm the Board’s action in this case?

In order to decide the controversy between the parties in this case, it is necessary that we consider the provisions of the Washington County Zoning Ordinance which became effective in that County on April 2, 1973. By its terms, the Ordinance adopted a plan for the County, a developmental analysis plan map and certain stated policies. The Ordinance divided the powers to be exercised under its terms between the County Commissioners and a Board of Appeals created by the Ordinance. The Commissioners were charged with the responsibility of considering all applications for rezoning including proposals for amendment, change, modification, and repeal.

Article 27, Section 27.1. By Article 27, Section 27.3, the County Commissioners, before rendering a decision on the granting of a request for change, are required to consider certain criteria which are set out in that section. As we have already noted, the County Commissioners had before them an application for rezoning in this case, on which a hearing was held. They denied that ³³ application and refused to rezone the subject property.

Article 27, Section 27.6 provides: An application for a reclassification shall not be accepted for filing by the Board of County Commissioners if the application is for the reclassification of the whole or any part of land the reclassification of which has been opposed or denied by the Board of County Commissioners on the merits as herein above provided within twelve (12) months from the date of the Board’s decision. The duties and powers of the Board of Appeals established by the Washington County Zoning Ordinance are found in Article 25. Section 25.2 of Article 25 states that in addition to its power to hear and decide appeals where it is alleged that there is error in any order made by an administrative official in the enforcement of the Ordinance, the Board has the power: (a) * * * (b) To hear and decide special exceptions to the ordinance upon which the Board is required to pass. (c) To authorize, upon appeal in special cases, such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions, the enforcement of the provisions of this ordinance will result in unwarranted hardship and injustice and which will most nearly accomplish the purpose and intent of the regulations of the Zoning Ordinance.

Article 25, Section 25.6 outlines