Miller v. Kiwanis Club of Loch Raven, Inc.

Melvin, J., delivered the’opinion óf the Cdurt. - This-is an appeal from, the order of the. Circuit Court for Baltimore.'County reversing the action of the County Board of Áppe’álá' of Baltirhóre County denying-'the petition-of Kiwaáiis.Cluí). qt^Lopli'.Rayqn^ Inc.. (Kfwanis) for a special exception to 'operate a .day-camp uppn.a-.75 acre tract.of .land 'zoned RvD'.P-: ’ (Rural-: • Defebred-R-lanning)- located, on .the south' side of Baubl'itz Road approximately 1468-.west of Dover Roádf in the Fourth Election District of Baltimore .County..,. Section- .-1A00:2B (10)--';,of -- Article --1Á-.-.

(Rural; /and Rural-Suburban. Law — Intensity -Zones) of the Baltimore County Zónlng'Regulatiohs provides that in an R.'D.P. zone, .among other uses permitted as special exceptions, are' the ■following:. • . . -,- ■ ;;4,10AGc)lf>'cou-rses', country clubs, or other, outdoor recreation clubs; also quasi public camps, including day camps”. "The Eiwáhis: Club% petition-.for a special exception, in addition to the special exception for a day camp under -.Section, [email protected](1Q),,-also, requested a special exception for a “community.Tmilding and swimming-po.ol,/etc.” on.24 acres comprising- part, of ,the, 75 acre tract, under Section -,!A<(),0.2B(b) which permits la,nd in an R.D.P.,zone to .-be'used by way of a specialexception for: ’ ' . “'6v Community 'buildings, swimming pools, or other-structural or 1-and'useS devoted to.civic,-- . ¡-•‘•. ¿ocial, recreational, oreducatidnahactivities”. ²⁸⁷ Kiwanis had acquired the 24 acres in 1964 from the Spring Valley Country Club which had operated a pool and country club thereon, since about 1959. Kiwanis continued the swimming pool operation, apparently as a non-conforming use (although there is some indication it was not a legal non-conforming use), and the principal reason for requesting the community building and swimming pool exception was to “legitimize” its present operations on the 24 acres.

The County Board of Appeals granted the special exception for the community building and swimming pool, subject to restrictions concerning their operation. No appeal was taken from that decision. As already stated, however, Kiwanis appealed to the Circuit Court for Baltimore County the denial of the special exception for a day camp which it wishes to operate on the remaining 51 acres. It appears, however, that the swimming pool facilities would also be used to some degree by the day campers.

The 51 acre tract is contiguous to the 24 acre tract and was acquired in 1971, at which time it was being operated as a farm by the former owner. Sections 502.1 and 502.2 of the county zoning regulations set out the applicable provisions dealing with the granting of special exceptions in Baltimore Gounty:, “502.1 — Before any Special Exception shall be granted, it must appear that the use for which the Special Exception is requested will not: a. Be detrimental to the health, safety, or general welfare of the locality involved; b. Tend to create congestion in roads, streets, alleys therein; c.

Create a potential hazard from fire, panic or other dangers; d. Tend to overcrowd land and cause undue concentration of population; e. Interfere with adequate provisions for schools, parks, water, sewerage, transpor ²⁸⁸ tation or other public requirements, conveniences, or improvements; f. Interefere with adequate light and air. 502.2 — In granting any Special Exception, the Zoning Commissioner or Board of Zoning Appeals 1 upon appeal, shall impose such conditions, restrictions, or regulations as may be deemed necessary or advisable for the protection of surrounding and neighboring properties.

The owners, lessees or tenants of the property for which a Special Exception is granted, if required by the Zoning Commissioner, or Board of Zoning Appeals, upon appeal, shall enter into an agreement in writing with said Zoning Commissioner and/or the County Commissioners of Baltimore County, stipulating the conditions, restrictions, or regulations governing such Special Exception, the same to be recorded among the land Records of Baltimore County. The costs of such agreement and the cost of recording thereof shall be borne by the party requesting such Special Exception. When so recorded said agreement shall govern the exercise of the Special Exception as granted, as to such property, by any person, firm or corporation, regardless of subsequent sale, lease, assignment or other transfer.” In Turner v. Hammond, 270 Md. 41, 60 (1973) the Court of Appeals said: “The property owner [applicant for a special exception] has a prima facie right to enjoy the benefits of the special exception if he brings himself within the specific requirements of the ordinance”. In Anderson v. Sawyer, 23 Md. App. 612 (1974) this Court, speaking through Judge Davidson, discussed the applicable standards for judicial review of the grant or denial of a special exception, as ²⁸⁹ explicated by numerous decisions of the Court of Appeals, including Turner v. Hammond, supra.

Judge Davidson said, at 617: “The conditional use or special exception is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan. Whereas, the applicant has the burden of adducing testimony which will show that his use meets the prescribed standards and requirements, he does not have the burden of establishing affirmatively that his proposed use would be a benefit to the community.

Rockville Fuel, supra, at 257 Md. 191 , 262 A. 2d 503 . If he shows to the satisfaction of the Board that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material. If the evidence makes the question of harm or disturbance or the question of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the Board to decide.

But if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an ²⁹⁰ application for a special exception is arbitrary, capricious and illegal.” Applying these standards to the case before us we find that the Board’s action in denying the special exception for a day camp was unsupported by substantial evidence and was not fairly debatable. We shall-therefore affirm the judgment of the trial court reversing that action. Kiwanis’ purpose in acquiring the 51 acres was described by Mr. Walter E. Williams, a member of the Kiwanis committee “that worked on the acquisition of the farm property”: “. .- . When the club became aware that Mr. .Baublitz, the former owner of the farm, was interested in selling the farm, we as a property owner were concerned about what would happen to this 51 acres, as I am sure everyone else in the neighborhood was concerned.

We felt that the area which is now a golf course on one side, and our pool on the other, and generally an open space area, should be preserved. For this reason we became interested in acquiring the farm, both in terms of our concern, I think for our own property value, but also in concern for the area in which we are situated. We felt that keeping this space, which now consists not only of our own but also other open areas and open space, would be a real community service. Therefore we negotiated with Mr. Baublitz, who had indicated that he might sell the property to developers.

He gave us, however, the first option to buy, and we purchased the property for the purpose of preserving open space at that time. Q. What are the plans that the committee has developed, and what did they do in anticipation of being able to operate a day camp? A. Well, we felt that as part of this operation ²⁹¹ that the space should be used in some way that would be useful for the community, and investigated a number of things. We made trips to day camps, we made a trip to a Kiwanis camp that is in Richmond, Virginia.

Since it was a farm, we talked with the County extension agents as to the possibility of potential uses to maintain it as a farm setting. Q. (By Mr. Reiter) Out of curiosity, was this investigation made after you purchased and settled for the property? A. It was concurrent.

We did not purchase the property until we felt that there would be some useful purpose served for the community. The final decision regarding using it as a day camp, however, was after we purchased it, but as part of our purchase we felt there would have to be some use of the property to meet some of the expenses of having purchased this open space, — mainly the mortgage.” “. . . We also considered utilizing the property for senior citizens, for their benefit, which is another one of the aims of Kiwanis at this time. We decided that the most practical thing to do, and also something of value to the community, was to create a day camp for children from 7 to 11, as there do not appear to be these kind of resources, to any large degree, in Baltimore County.

Q. (By Mr. Reiter) Girls and boys? A. Girls and boys, yes. We also decided that it would be most appropriate to preserve the farm atmosphere that exists already, in terms of preserving the environment as it now exists, and therefore we could continue to have some modest kind of farm operations, like planting corn and perhaps one or two, maybe more, animals, — that ²⁹² would preserve a farm setting for both senior citizens, perhaps to come to, have a regular activity, a day-to-day camp for 8 weeks a year, Monday through Friday, and not on the weekends.

This would be for not more than, and this really boggles our imagination, to expect to get 150 campers. We anticipate, in reality, that it would be somewheres between 50 and 100 campers who would utilize the property. We would have these campers do things, like plant trees and do other things that would improve the environment, and we would supervise groups, we would permit the Boy Scouts to come into the property and perform that activity, insofar as programs. All of this would be done under the supervision and control of a full-time manager, at the property, whose responsibility would be to see that these activities were controlled, that they did not create any problems for anyone, and would not in any way be a detriment to the neighborhood.” (Emphasis supplied.) Mr. Henry F. Krautwurst, “hired as a camp director for our hopefully day camp on our Kiwanis Farm” testified further concerning the proposed operation of the day camp: “Q. Will you give the Board the benefit of what you would hope, what kind of operation you would hope to have and the program for the children, and how it would be conducted, and so forth?

A. Okay. The program is based as a day-camp operation. It is intended that the children will arrive in the morning around 9:00 o’clock, and spend the entire day at the farm, and leave at 1:00 in the afternoon. When they arrive, we start out, I imagine, with swimming lessons in the morning.

Then the day would progress and we would have activities like ²⁹³ different types of ball games, softball, volleyball, badminton, archery, nature studies, arts and crafts, and some supervised free activity on the farm.” “Q. (By Mr. Reiter) What are your projections for your camp, for its use, the