Maryland Aviation Administration v. Newsome

RODOWSKY, Judge. In the area surrounding the Baltimore-Washington International Airport (BWI) a General Assembly enactment overlays on the county zoning a form of environmental zoning designed to protect building occupants from excessive noise. The regulatory scheme identifies areas of high levels of noise and, inter alia, prohibits new residential construction there, absent a variance. At issue in the instant matter is whether the agency empowered to grant a variance from the prohibition may properly consider the number of additional persons who would be exposed to high levels of noise if a requested variance were granted.

In Maryland Aviation Admin, v. Newsome, 99 Md.App. 269 , 637 A.2d 469 (1994), the Court of Special Appeals held that the agency could not properly consider “density.” As explained below, we disagree. Authorization for the BWI overlay noise zone originated in the Environmental Noise Act of 1974, Chapter 287 of the Acts of 1974. It was enacted for “the purpose of establishing environmental noise control,” including “the prevention of new noise problems in areas near airports through the adoption of noise abatement plans and the establishment and enforcement of noise zone regulations.... ” 1974 Md.Laws at 995. Under that enactment, as revised, noise zone regulations for State-owned airports are administered by the petitioner, Maryland Aviation Administration (MAA).

See generally, Maryland Code (1977, 1993 Repl.Vol., 1994 Cum.Supp.), §§ 5-801 through 5-824 of the Transportation Article (TR); Maryland Regs.Code (COMAR) tit. 11, §§ 03.03.01 through 03.03.06 (1994); and, as to BWI, see COMAR § 11.03.01.12. ¹⁶⁶ Noise zoning is achieved by zone mapping and by the text of regulations. The initial regulations under the Environmental Noise Act of 1974 were adopted effective August 6, 1975. 2:17 Md.Reg. 1192 (adopting regulations proposed at 2:8 Md.Reg. 607 (Apr. 16, 1975)). The maps present contours of equal noise exposure. COMAR § 11.03.03.04B.

The initial maps, with supplemental information, for airports existing July 1, 1975, such as BWI, were required to be submitted by January 1, 1976. 2:17 Md.Reg. 1192 (adoption); 2:8 Md.Reg. 612 (1975) (proposal). The contours of equal noise exposure represent the exposure “in terms of the day-night average sound level [Ldn.” COMAR § 11.03.03.02D(1). 1 Maps for the BWI noise zone present the 65, 70, and 75 Ldn contours overprinted on county tax maps. COMAR § 11.03.01.12B(3). Since 1975 the limit under the regulations for cumulative noise exposure for land used as “[r]esidential single and two family; mobile homes” has been 65 Ldn.

COMAR § 11.03.03.03B(1). The respondent, R. Wayne Newsome (Newsome), in approximately 1989 purchased land in Howard County in the vicinity of BWI. Under the Howard County zoning regulations some of the land was zoned as M-2, permitting manufacturing use, and some of the land was zoned as R-12, a residential use. Part of Newsome’s purchase is the 6.3 acre area that is the subject of the proceedings before us (the Property).

It consists of twenty-seven, unimproved, R-12 lots shown on the subdivision plat of Lennox Park, a recorded subdivision in the Dorsey area near the boundary between Howard and Anne Arundel Counties. 2 The Property lies within the BWI noise zone, and we are ¹⁶⁷ concerned here with the zone as certified in 1988. 3 Dividing the Property approximately in half is the 70 Ldn contour line. Consequently, if residences were constructed and occupied on the Property, residents of the homes further from BWI would be subjected to a 69 Ldn, and residents of homes nearer BWI on the Property would be subjected to 70 Ldn. If used residentially the Property would become an “impacted land use area.” TR § 5—801(d). That definitional phrase means “an area within a noise zone occupied by a land use with a limit for cumulative noise exposure that is less than the actual cumulative noise exposure in that area.” Id.

Within the BWI noise zone a “person may not ... [establish or construct any new structure” unless that person has an appropriate permit issued by the MAA. TR § 5-821(a)(1). TR § 5—821(c), however, establishes the following prohibitions: “The [MAA] may not grant a permit if the proposed action would: (1) Enlarge the size of or create an impacted land use area; or (2) Violate local land use and zoning laws.” Newsome sought from the MAA a permit for the construction of twenty-seven residences, one per platted lot, on the Property, but the MAA, under the above-quoted prohibition, could not create an impacted land use area. Within the Department of Transportation there is a Board of Airport Zoning Appeals (the Board).

TR § 5-506(a). The Board is empowered to grant variances from decisions of the MAA, including a decision denying the permit required by TR § 5-821. TR § 5-822(a), (b), and (c). Newsome petitioned the Board to grant a variance from the denial of a permit for constructing residences on the Property.

The Board denied the variance in April 1991. Newsome sought judicial review in the Circuit Court for Anne Arundel ¹⁶⁸ County. It reversed the Board and directed that a variance be granted subject to certain conditions mandated by TR § 5-822(c). 4 The MAA appealed to the Court of Special Appeals, which affirmed the circuit court. The intermediate appellate court interpreted the Board’s decision to have been based on density, and the court concluded, as a matter of law, that that consideration was beyond the power of the Board.

We granted MAA’s petition for certiorari which essentially asks whether the noise zone statutes and regulations allow “the Board to consider the high population density resulting from a developer’s application for a variance[.]” In his response to the petition Newsome submitted that the previously reviewing courts properly evaluated the Board’s statutory authority, and Newsome raised no additional questions for our possible review. In his brief to us Newsome states the question presented to be: “Did the Board of Airport Zoning Appeals exceed its statutory authority relative to variances from airport noise regulations by: i) its reliance on a presumed number of people that would occupy newly constructed houses as the primary factor in its denial of a Petition for Variance ...; and ii) failing to consider the impact of its denial of the variance on the surrounding community?” Brief of Respondent at 3. Analysis of the Board’s decision requires a more detailed description of the Property and of the Lennox Park subdivi ¹⁶⁹ sion. Lennox Park lies southwest of Dorsey Road and northwest of the right-of-way of the former Baltimore & Ohio Railroad.

To the south, west, and north of Lennox Park is property zoned M-2 by Howard County. Traversing the subdivision in a generally north-south direction are Magnolia, Lennox, and Cedar Avenues and, in a generally east-west direction Locust and Cherry Avenues, Elm Road-Park Place, and Linden Avenue. The Property is in the southwest section of the subdivision. In the area of Lennox Park lying outside the Property, approximately fifty-two residences had been built prior to the imposition of noise zone regulations.

In the period between imposition of the regulations and the Board’s hearing in this case, three variances had been granted, approving a total of five additional residences in three different blocks. We were advised at the hearing in this Court that a variance for three additional residences on adjacent lots in a fourth block in Lennox Park had been approved by the Board after its hearing in this case. Within Lennox Park the current R-12 zoning permits one single-family, detached, dwelling unit per lot. The minimum lot size is 12,000 square feet.

Comprehensive Zoning Plan for Howard County, Maryland §§ 107.B.1 and D.2.a (1991). The twenty-seven lots comprising the Property range in lot size from 7,500 to 12,000 square feet. Because the subdivision was recorded in the early 1900s, Newsome’s proposal for one dwelling per lot is not prohibited by the Howard County Zoning Code. Most of the dwellings in the remaining portion of Lennox Park, outside of the Property, are located on multiple-lot sites.

In its written decision the Board reviewed the foregoing background facts. It noted that Newsome’s standards for construction of the homes met the requirement for “sound insulation adequate to insure that interior noise levels resulting from airport operations will not exceed those levels that would occur if the structure or land use were outside of the noise zone.” TR § 5-815(a); see also § 5-822(b). The Board stated the specifics of the three variances previously granted in Lennox Park. Noting that both Newsome and MAA had ¹⁷⁰ estimated 2.5 persons per dwelling on the Property, the Board observed “that approximately 68 additional persons would reside in the Noise Zone.” The decision reviewed the testimony of MAA’s Director of Aviation Noise Abatement to the effect that “65 to 70 people would substantially increase the noise impact zone,” and that MAA further opposed the variance because “MAA does not expect any appreciable decline in future aircraft noise in the area due to the continuation of 80% west operations____” The Board ended its fact-findings by listing the uses of the Property that were permissible under the noise regulations. 5 Turning to the Board’s conclusions of law, two of them are relevant to Newsome’s challenge to the Board’s power.

First, the Board relied on TR § 5-802, the legislative statement of the purpose of the “Noise Zone Regulations” subtitle of the “Aviation” title of the Transportation Article. Those purposes are to: “(1) Provide a positive basis for abatement of existing noise problems in communities near airports and to prevent new noise problems; and “(2) Protect the health and general welfare of the occupants of land near airports.” The Board, relying on the regulations, said flatly that “70 Ldn is a very high noise exposure level for residential living,” particularly as it affects the use of outdoor areas. The Board concluded that “[b]y adding a significant number of residents to an area of very high airport noise, the granting of a ¹⁷¹ variance would result in the creation of a new noise problem,” contrary to the purpose of the noise zone regulatory scheme. Second, the Board addressed the aspect of a variance dealt with in TR § 5-815(d).

It provides: “When reviewing a request for a variance under the airport noise zone regulations, the board shall consider any facts and circumstances relevant to the request for variance, including any testimony or evidence presented regarding possible impacts on the surrounding community of the grant or denial of the proposed variance.” On that aspect of its conclusions, the Board found “that the scope of the new noise problem which would be created if the variance were granted outweighs considerations of the present residential development of the area. It should be noted that the size of the proposed development is far greater than in the Board’s recent decisions to grant variances for single-family residences in the area.” The Board also distinguished its three prior grants of variances. It noted that “[e]ach involved only one or two homes and, in two of them, the noise level was significantly lower.” In an accompanying footnote the Board explained that the third variance, granted for a site with a 71 Ldn noise exposure, had been granted to an applicant who had lived immediately adjoining the site “for seven years and was not bothered by the airport noise.” None of the prior residences, said the Board, “involved high density development as proposed by [Newsome], but rather proposed low density development consistent with the existing development of the area.” 6 The Board summed up its holding as follows: “If a variance were granted, a significant number of people would be exposed to a noise level incompatible with normal ¹⁷² patterns of living, particularly outdoor living. This noise level is very high and it is not expected to change appreciably in the future.

To grant a variance in these circumstances would contravene the purpose of Subtitle 8---- In the interest of protecting the health and welfare of those who might be exposed to excessive levels of aircraft noise at the Subject Property, the Board will deny the variance----” The Court of Special Appeals recognized that MAA was authorized to establish limits for noise exposure, “to establish and implement a plan for the monitoring and abatement of noise on impacted land use, and to enact standards for the adaptation of structures within the noise zones.... ” Maryland Aviation Admin. v. Newsome, 99 Md.App. at 279 , 637 A.2d at 474 . But that court said that “[njowhere in the- noise zone regulations is there any reference to regulation of density within the affected areas.” Id. at 279-80 , 637 A.2d at 474 . In the view of the intermediate appellate court, the Howard County R-12 zoning determined both land úse and density. Id. at 281 , 637 A.2d at 475 .

It concluded that a determination denying a variance “could not be based upon the anticipated increase in density.” Id. Our conclusion, derived from the regulatory scheme as a whole, is diametrically opposite that of the Court of Special Appeals. In the noise zone of a State-owned airport, no person, without a permit from MAA, may: “(1) Establish or construct any new structure; (2) Make any new use of any existing structure or land; or (3) Substantially alter any existing structure or use of land.” TR § 5-821(a). If the proposed action would enlarge or create an impacted land use area, MAA is prohibited from issuing the permit.

TR § 5-821(c). The variance power in the Board under TR § 5-822(b) is essentially a safety valve on the otherwise flat prohibition. In traditional zoning, variances ordinarily are designed to prevent unreasonable and unnecessary hardships ¹⁷³ or practical difficulties. See generally, as to requested use variances, Pem Constr.

Co. v. City of Baltimore, 233 Md. 372, 376-77 , 196 A.2d 879, 881-82 (1964); Marino v. City of Baltimore, 215 Md. 206, 216-19, 137 A.2d 198, 202-03 (1957); Gleason v. Keswick, Improvement Ass’n, 197 Md. 46, 50 , 78 A.2d 164, 165-66 (1951); and Anderson v. Board of Appeals, 22 Md.App. 28, 38-39, 322 A.2d 220, 226 (1974); cf TR § 5-507(a) (articulating “practical difficulty or unnecessary hardship” standard for grant of variance by Board from zoning restrictions designed to protect the aerial approaches of State-owned airports). In traditional zoning, “the