Maryland Aviation Administration v. Newsome

DAVIS, Judge. Appellant, Maryland Aviation Administration (MAA), appeals from a decision of the Circuit Court for Anne Arundel County, reversing the Maryland Department of Transportation Board of Airport Zoning Appeals (Board or BAZA), which denied appellee, R. Wayne Newsome (Newsome), a variance to permit the construction of twenty-seven houses in the Lennox Park subdivision of Howard County, Maryland. The MAA opposed the granting of the variance on the basis that the proposed increase of twenty-seven residences and sixty-eight people would increase the population density within the Airport Noise Zone and appellant did not foresee a decline in future aircraft noise in the Lennox Park area. The reasons given for the Board’s denial of the variance were that (1) the property in question was in the Airport Noise Zone in the 65-70 Ldn 1 and 70-75 Ldn noise contour; (2) airport noise is not estimated to decrease because of increased west operations from BWI Airport; (3) the number of persons who would be affected by high levels of noise was estimated to be about sixty-eight, and the density of the proposed individual building lots would ²⁷¹ be substantially greater than the low density developed in the surrounding residential community.

A motion for reconsideration filed by appellee was denied. Appellee appealed the Board’s decision to the Circuit Court for Anne Arundel County, which reversed the Board’s decision. Appellant filed this appeal from the decision of the circuit court. On this appeal, appellant asks: (1) Whether the Board’s decision to deny appellee a variance was fair and reasonable and supported by competent, material, and substantial evidence in the administrative record.

(2) Whether the Board’s decision to deny appellee a variance exceeded the statutory authority or jurisdiction of the agency. (3) Whether the Board’s decision to deny appellee a variance was affected by an error of law. We restate the issues raised by appellant as follows: (1) Whether the determination by the circuit court that the Board exceeded its authority in considering the increase in density was purely a question of law; and (2) Assuming the lower court decided a question of law, whether the court was correct in deciding that the Board exceeded its authority. FACTS Pursuant to Md.Transp.Code Ann., § 5-804, 2 the Maryland Aviation Administration (MAA) establishes limits for noise exposure for residential and other land uses.

MAA has set" 65 Ldn as the maximum noise level for residential development, which standard is the same maximum noise level established by the Federal Aviation Administration and the Environmental Protection Agency. Requests for variances by applicants ²⁷² who desire to live or build in the Airport Noise Zone in areas in excess of 65 Ldn must be presented to the Board, which is given discretion to grant or deny a variance concomitant with its obligation to prevent new noise problems and protect the health and general welfare of the occupants of the land near airports. When a variance is granted by the Board, the applicant may be issued a building permit by the appropriate county agency. Appellee proposed to construct twenty-seven single family dwellings on twenty-seven undeveloped lots he owned in the Lennox Park subdivision of Howard County.

The subject property is zoned R-12 with the exception of three lots that extend into an area zoned as M-2 industrial. Abutting the east side and the north side of the subject property is an existing Lennox Park residential community of approximately fifty houses, and undeveloped property borders the west side of the property. Appellee’s lots range in size from 7,500 to 12,000 square feet; the dwellings located in the existing residential community are situated on multiple lot sites. The subject property is located within both the 65-70 Ldn and 70-75 Ldn noise contours, the 70 Ldn contour running through the middle of the subject property and the more easterly lots being located in the 70-75 Ldn noise contour of the zone, subject to a noise exposure level of approximately 70 Ldn.

More westerly lots are subject to a noise exposure level of approximately 69 Ldn. An average of 2.5 persons would reside in each of the twenty-seven homes to be constructed, resulting in-sixty-eight additional persons residing on 6.3 acres in the Airport Noise Zone. The subject property is located west of Baltimore-Washington International Airport (BWI) and is subject to west operations, including air carrier flight operations departing on Runway 28 to the west of BWI. Because west operations are safer and there are fewer delays because of reduced taxi time and further because the area west of BWI is less populated, the Federal Aviation Administration favors west operations that will continue at a projected level of 80 percent ²⁷³ or higher.

Appellee’s application for a permit to construct the twenty-seven residences was denied by the MAA on the basis that the proposed residences would be inside the Airport Noise Zone and the 65-70 Ldn noise contour. The Board conducted a hearing on February 11, 1991 to consider appellee’s request for the variance and reconvened on March 11, 1991 to resume its deliberations. The Board issued a written memorandum and order on April 24, 1991 denying the variance request by appellee and, on May 8, 1991, appellee filed a motion for reconsideration with the Board, which was subsequently denied. Appellee thereafter filed an appeal with the Circuit Court for Anne Arundel County on July 18, 1991, 3 and the court, after a review of the record and oral argument, held that the Board erred as a matter of law when it considered the impact of factors other than noise on the surrounding community.

In its October 2, 1992 decision, the court determined the Board’s decision was arbitrary and reversed the Board’s denial of the variance. It did, however, on October 20, 1992 amend the order of October 2, 1992 to require appellee to comply with additional conditions: 1. Appell[ee] shall comply with all construction specifications and shall grant unto the State an avigation easement, both as more specifically identified in Md.Trans. Code Sec. 5-822(c)(l) & (2). 2.

Appellfee] shall include in any contract of sale or construction ib” any portion of the subject property a provision notifying the contract purchaser(s) that the property or properties being purchased are located within the Airport Noise Zone and that said property is subject to the terms of the recorded avigation easement. 3. Construction of the homes pursuant to the variance hereby granted shall be completed within three (3) years ²⁷⁴ from the date that this grant of variance, as conditioned herein, becomes final and non-appealable. ANALYSIS Focusing on the rationale of the lower court that the Board’s decision was arbitrary because its decision was based primarily on issues other than the impact of noise on the surrounding community, appellant asserts that [t]he reviewing court’s decision was erroneous because the legislative history of § 5—815(d) clearly indicates that the Board is empowered to consider issues other than noise regarding possible impacts on the surrounding community. Section 10-215(g) of the State Government Article provides the standard for judicial review of an administrative agency’s decision: Decision.—In a proceeding under this section, the court may: (1) remand the case for further proceedings; (2) affirm the decision of the agency; or (3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision of the agency: (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the agency; (iii) results from an unlawful procedure; (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or .

(vi) is arbitrary or capricious. Relying on § 5-815 of the Transportation Article, appellant attempts to buttress its argument, asserting that “the Board is required to consider any facts and circumstances relevant to the request for variances, including any testimony or evidence presented regarding possible impacts on the surrounding community of the grant or denial of the proposed variance.” ²⁷⁵ More specifically, MAA complains that the lower court should have considered the disparity in the density of appellee’s proposed building lots as compared with the existing residential community. Citing Commission on Human Relations v. Washington County Community Action Council, 59 Md.App. 451, 455, 476 A.2d 222 (1984), appellant insists that the issue before the circuit court should have been “whether reasoning minds could reasonably reach [its] conclusion by direct proof or by permissible inference from the facts and the record before the agency.” MAA suggests that the court has no power to reject that conclusion when it is based upon substantial evidence. The substantial evidence relied upon by MAA is that granting a variance would result in a 50 percent increase in the population of the existing community where lot sizes were substantially larger than the proposed one lot per house.

Appellee responds by initially asserting that the Circuit Court for Anne Arundel County decided questions that were solely issues of law, thereby permitting it to substitute its judgment for that of the Board in reversing the order. Appellee urges that the question of the housing density of the subject property was not a matter properly before the Board and that such a determination was purely a question of law rather than a question of fact or a mixed question of law and fact. See Comptroller v. World Book Childcraft, 67 Md.App. 424 , 508 A.2d 148 , cert. denied, 307 Md. 260 , 513 A.2d 314 (1986). Appellee sets forth the standard of judicial review we outlined in World Book, 67 Md.App. at 438-39 , 508 A.2d 148 : 1.

First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case. The reviewing court is not constrained to affirm the agency where its order “is premised solely upon an erroneous conclusion of law.” 2. Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency’s factual findings to determine if they are supported by substantial evidence, ²⁷⁶ i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. At this juncture, the Ramsay, Scarlett [& Co. v. Comptroller, 302 Md. 825 [ 490 A.2d 1296 ] (1985) ] court reminds us that “it is the agency’s province to resolve conflicting evidence, and, where inconsistent inferences can be drawn from the same evidence, it is for the agency to draw the inferences. [”] Id. at 835 , 490 A.2d 1296 . 3.

Finally, the reviewing court must examine how the agency applied the law to the facts. This, of course, is a judgmental process involving a mixed question of law and fact, and great deference must be accorded to the agency. The test of appellate review of this function is “whether, ... a reasoning mind could reasonably have reached the conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles].” [Citations omitted.] Thus, the threshold question we must resolve is whether appellee is correct that the issue of housing density, as a matter of law, was not properly before the Board. Section 5-507