Miller v. Maloney Concrete Co.

WILNER, Judge. Among the powers granted to chartered counties in Maryland by the “Express Powers Act” (Md.Code Ann. art. 25A, § 5) is the power to “prevent, abate and remove nuisances.” Sec. 5(J). The Act does not specify how that power may be implemented. One of the ways that Montgomery County has chosen to implement it is by including in its zoning law a provision that “[a]ny use which is found by the [county board of appeals] to be a public nuisance, by reason of the emission ⁴¹ of dust, fumes, gas, smoke, odor, noise, vibration or other disturbance, is expressly prohibited.” Montgomery County Code, § 59-A-5.7.

The validity of that provision, as applied in this case, is the subject of this appeal. For some 45 years, Maloney Concrete Company, appellee, has operated a concrete batching plant on the southeast corner of Bethesda Avenue and Arlington Road. At least since 1962, the operation was conducted on two contiguous parcels of land, each comprising approximately 15,000 square feet. One of the parcels was owned by Thomas Miller, appellant, and was leased to Maloney.

When Maloney began its operation, and continuing into the mid-1970’s, the neighborhood was industrial and the land was zoned industrial. Maloney’s use of both parcels was a permitted, lawful one. Over the years, however, as the Bethesda area developed, the character of the neighborhood began to change. In 1976, the Maryland-National Capital Park and Planning Commission (Park and Planning Commission) and the Montgomery County Council, sitting as a District Council under the Park and Planning Commission law (current Md.Code Ann. art. 28, § 8-101), approved and adopted the “Bethesda Sector Plan,” which recommended that the area be upgraded from industrial to retail commercial use.

In accordance with that recommendation, the District Council, as part of its 1977 comprehensive rezoning, rezoned the area from industrial to general commercial. A concrete batching plant is not a permitted use in a general commercial zone, but, because it was lawfully in existence at the time of the rezoning, the Maloney plant became a lawful nonconforming use under Montgomery County Code, § 59G-4.1. Mr. Miller owned a number of parcels along Bethesda Avenue and Arlington Road, other than that leased to Maloney. Consistent with the changing character of the neighborhood, he decided to develop his properties for retail commercial purposes.

Three clusters were planned and built — Bethesda Row, located immediately adjacent to the ⁴² Maloney Plant, Bethesda Avenue Row East, located across Bethesda Avenue somewhat north of the plant, and Bethesda Avenue Row West, located catercorner from the plant, on the northwest corner of the intersection. Bethesda Avenue Rows East and West were quickly and successfully leased — within two months after completion — at rentals ranging from $15 to $20 per square foot. The center immediately adjacent to the plant — Bethesda Avenue Row— took about two years to lease fully, the average rental there being about $14 per square foot. Consistent with this development, Miller decided not to renew Maloney’s lease when it expired in September, 1982.

That decision necessarily required Maloney to consolidate its operation on the remaining half of its property. One result of the dislocation was the inability of Maloney to conduct its unloading operations — the delivery of dry cement from 20-ton hopper trucks — within the confines of the property itself. While the lease was in effect, the trucks parked and unloaded on the property within a fenced boundary; after September, 1982, the trucks parked along Arlington Road and pumped the cement powder into the plant through pneumatic tubes that extended from the plant to the street. On November 12, 1982 — exactly two months after termination of the Maloney lease — Mr. Miller, invoking § 59-A-5.7 of the county code, filed a petition with the county board of appeals, claiming that Maloney’s operation produced dust, dirt, noise, vibration, and smoke so as to affect adversely the public health, safety, and general welfare, as well as the peaceful use, enjoyment, and value of surrounding properties.

The same day, the Edgemoor Citizens Association, Inc. filed a similar petition. The board conducted a hearing on June 16, 1983, at which ten people testified — Miller, his leasing agent, four of his tenants, two nearby residents, a nearby businesswoman, and an environmental engineer. What emerged from the lay witnesses were complaints about (1) dust emanating ⁴³ from the plant, (2) noise, traffic congestion, and safety hazards from the trucks, and (3) water and mud on the ramp leading from the Maloney property to the street. As noted, Miller had successfully leased his three developments, although it took a while to lease fully the project nearest the plant.

None of the businesspeople indicated any loss of business by reason of the plant or the inability to conduct their respective businesses. One of the resident-witnesses complained that dust covered her porch, car, and bushes, but that was apparently a condition that long predated Maloney’s loss of the leased parcel. The other resident-witness, who opposed the petitions, indicated that “apparently no one had any problem from dust, or noise, or anything, until these shops were built there, and Mr. Miller started to file complaints____” The testimony of the engineer — Mr. Kamber — focused on noise, water quality, and air quality. The county has a noise control law, codified as ch. 31B of the county code.

The law specifies certain maximum noise levels permitted from commercial property which, Kamber said, are exceeded by Maloney’s operation. Mr. Kamber identified two sources of the noise — the trucks themselves and the plant. From the trucks, there came the sound of the engines, a whirring sound while the trucks were dumping, and the banging of tailgates. From the plant came the sound of the aggregate being dumped into bins.

Those sounds, said Mr. Kamber “are the sounds of industrial progress” that are “characteristic of what you would expect if you were in an industrial area,” but “are not particularly pleasant sounds in and around a residential area, or a commercial area.” Mr. Kamber made no independent study of the effect of the Maloney operation on water quality, but referred to county studies and records. Some of the dust, he said, ends up in the storm drainage system and is ultimately discharged into Willeck Branch. Those are not desirable substances to have discharged into the streams, he stated, but how much that runoff contributes to the poor water quality in Willeck Branch “I don’t know, and I don’t think even the ⁴⁴ county, with their monitoring data, really knows____” Some of the problem, he agreed, had been eliminated when Maloney stopped washing its trucks at the plant site; some of the pollution in Willeck Branch was attributable to the construction of the Metro system and not to the Maloney operation. As to air quality, Kamber cited problems with dust and exhaust fumes emanating from the trucks.

The dust, he said, “one can anticipate ... at a batching plant; that’s just characteristic of those.” The emissions from the trucks could be alleviated if Maloney had more room at the site. Finally, the board admitted into evidence a letter from the chairman of the Park and Planning Commission noting that (1) as part of the 1977 comprehensive rezoning, it was recognized that the Maloney property would be “in a legal nonconforming status” and (2) Maloney had purchased land elsewhere for the purpose of relocating the plant, but the county council declined to approve the necessary zoning for that site and thus “thwarted the intended relocation____” The letter concluded: “The Planning Board continues to believe that it is highly desirable to have such a business located in the lower county. While we agree that it must comply with relevant noise control and air pollution standards, it must be remembered that the surrounding businesses chose their locations long after the concrete plant was in operation and governmental action has made it difficult to relocate the plant. More recently, it has been brought to my attention that the loading of trucks has been forced onto Arlington Road by virtue of the fact that a portion of the adjoining lot formerly leased for that purpose is no longer available, which has constricted the operation.” Upon this evidence, the board concluded that the batching plant operation constitutes a public nuisance, but that the “nuisance aspects ... may be removed by Maloney in the following manner: ⁴⁵ 1.

The plant shall be operated in such a fashion that noise emitted by its operation shall not exceed 62 dBA at any property line of the Maloney Concrete property. 2. The plant shall be operated in such a way that water and concrete residue shall not be discharged onto the property abutting the south property line, and concrete residue shall not be discharged into the public sewer system. 3. The plant shall be operated in such a way that smoke, soot and dust will not be discharged into the air in quantities sufficient to leave a visible film on cars parked nearby. 4. Operation of the batching plant shall be confined to property owned or leased by Maloney Concrete Company, that is to say, public property shall not be utilized on a regular basis for unloading of supply trucks from Arlington Road.” The board made no finding as to whether these conditions could, in fact, be satisfied.

Instead, it concluded that “Should Maloney fail, within thirty (30) days of the date of this Opinion, to conform its operations to the four mandates of the Board as above set forth (and, thereby, to eliminate the nuisance aspects of the batching plant), the Board will refer this Opinion to the County Attorney for initiation of appropriate enforcement proceedings. Conformity to the mandates shall be certified to the Board by Maloney Concrete Company and verified by the Montgomery County Department of Environmental Protection.” Maloney appealed to the Circuit Court for Montgomery County which, on June 19, 1984, reversed the board. The court gave its reasons in an oral opinion. It found that (1) the board failed to make findings of fact, as required by the county’s administrative procedure act (Montgomery County Code, 1981 Cum.Supp., § 2A-10) and by basic due process of law, and that, in the absence of such findings, the court could not determine what standards had been used in find ⁴⁶ ing the operation to be a nuisance or how compliance with the board’s conditions would be measured, (2) § 59-A-5.7 was itself unconstitutionally vague, as it contained no standards for defining or determining the existence of a nuisance, (3) if the common law of nuisance is applied, there was insufficient evidence to support the board’s finding of public nuisance, (4) the board impermissibly intruded upon the jurisdiction of the county and State departments of transportation and, to a limited extent, upon the jurisdiction of the county department of environmental protection, (5) the board has no authority to enforce the abatement of a nuisance, and (6) under all the circumstances, the board’s action violated Maloney’s right to due process of law.

Miller is now the aggrieved party. In this appeal, he takes issue with each of the court’s findings, arguing that: “I. The Lower Court Erred in Considering the Constitutionality of Section 59-A-5.7 II. Section 59-A-5.7 of the Montgomery County Code is Not Unconstitutional III. The Lower Court Erred When It Found that the Decision of the Montgomery County Board of Appeals was not Supported by Substantial Evidence and Therefore was not at the Very Least Fairly Debatable IV.

The Board’s Decision did not Violate Section 2A-10(a) of the Montgomery County Code V. The Montgomery County Board of Appeals is not Precluded by Other Provisions of the Montgomery County Code from Considering Traffic Related Issues in Connection with Section 59-A-5.7 VI. The Board of Appeals in Its Opinion was not Attempting to Delegate Itself Enforcement Powers VII. The Board of Appeals Decision does not Constitute a Taking of Property Without Due Process or Just Compensation.” It is true, as Miller argues, that statutes are generally presumed to be constitutional, that they should not be ⁴⁷ declared otherwise unless the repugnancy is clear, and that courts should avoid declaring a statute invalid if there is some less drastic way of deciding the case. That said, however, we find no fault with the decision of the circuit court.

Section 59-A-5.7, both inherently and as applied in this case, clearly is invalid, and it would be a waste of time, effort, and money to duck that issue and permit any further proceedings to begin or continue under that ordinance. In light of that conclusion, it is unnecessary for us to consider whether the court’s other reasons are valid. To appreciate the Constitutional defect, one must first examine the statute in the light of other relevant provisions of law. Section 59-A-5.7 reads, in its entirety: “Any use which is found by the board to be a public nuisance, by reason of the emission of dust, fumes, gas, smoke, odor, noise, vibration or other disturbance, is expressly prohibited.

No such finding shall be made by the board except after a hearing upon reasonable notice, and any person, the [Park and Planning Commission] or the district council may file a petition with the board for such hearing.” Section 59-A-5.7 is part of the county zoning law — ch. 59 of the county code. That is significant because of § 59-A-1.3(a), which provides that “[violations of this chapter may be punishable as provided in section 2-120 of Article 66D of the Annotated Code of Maryland.” That section, in turn, provides: 1 “Every act or omission designated as a misdemeanor in this article, unless otherwise provided, shall be punishable ⁴⁸ before any District Court or in the circuit court of the county in which the offense is committed. It may be brought by warrant or indictment upon the oath or information of any member of the Commission or the employee thereof or any other person. Upon conviction thereof, the offender shall be subject to a fine not exceeding $500 or to 90 days imprisonment in the county jail, or both, in the discretion of the court.

If the act or omission is of a continuing nature, or is persisted in, in violation of the provisions of this article, or of any regulation enacted or decision made under the powers granted in this article, each and every day during which