Mills v. GODLOVE

HOTTEN, J. The Euclidean 1 method of zoning is generally how municipalities divide “ ‘an area geographically into particular use districts, specifying certain uses for each district.’ ” People’s Counsel for Baltimore County v. Loyola College in Maryland, 406 Md. 54, 70 , 956 A.2d 166 (2008) (quoting ²¹⁷ Rouse-Fairwood Dev. Ltd. P’ship v. Supervisor of Assessments for Prince George’s County, 138 Md.App. 589, 623 , 773 A.2d 535 (2001)). The Euclidean method was “ ‘designed to achieve stability in land use planning and zoning and to be a comparatively inflexible, self-executing mechanism which, once in place, allows for little modification beyond self-contained procedures for predetermined exceptions or variances.’ ” Loyola, 406 Md. at 70 , 956 A.2d 166 (quoting The Mayor & Council of Rockville v. Rylyns Enter.’s, 372 Md. 514, 534 , 814 A.2d 469 (2002)). In the present case, the Washington County Board of Zoning Appeals (“Zoning Board”) granted James L. Mills and Korina Mills, collectively appellants, a special exception and variance that would allow them to park paving equipment on their property.

Ronald Godlove and Gail McDowell, collectively appellees, appealed and the Circuit Court for Washington County reversed the Zoning Board’s decision. Appellants noted an appeal and ask us to consider the following questions: 1. Did the Circuit Court err in reversing the Board’s grant of variance relief, where the variances were supported by substantial evidence of practical difficulty, and the resulting convenience to the applicant was merely incidental? 2. Did the Circuit Court err in reversing the Board’s grant of special exception, where the Board determined that no adverse effect from the proposed use at the proposed location had been shown?

For the following reasons, we conclude that the circuit court did not err in its determination. Factual and Procedural Background Appellants own property in Washington County that is divided by Licking Creek Road. Appellants reside on the east side of the road and maintain a garage and paving equipment on the west side. After parking the paving equipment on the west side of the property without issue for seven years, a ²¹⁸ complaint was filed.

As a result, appellants sought a special exception and variance to continue parking the paving equipment on their property. On March 14, 2007, appellants appeared before the Zoning Board to request a special exception and variance. At the hearing, several people testified and submitted letters in opposition to appellants’ request. Appellees wrote a joint letter objecting to appellants’ request.

The letter explained that their father’s estate, which is adjacent to and surrounds appellants’ property, would suffer a diminution in value. Moreover, the letter stated that there would be runoff into Licking Creek “from the petroleum based products.” Appel-lees also testified at the hearing. McDowell testified that she was concerned that the special exception would “run with the land,” and that it may affect future use, which was “still up in the air.” McDowell also feared that there would be a petroleum runoff that would “leach down” into a flood plain owned by the estate, and then into Licking Creek. Godlove testified that he opposed the special exception because he was concerned that parking paving equipment on appellants’ property would be detrimental to the environment, and would affect property values in the area.

Judy Kline, the daughter of one of appellants’ neighbors, testified that she opposed the special exception because they “have seven grandchildren and probably at one point we will put a residential building there.” However, Kline did not indicate when this would occur. Kline also testified that she was concerned that when her grandchildren play near Licking Creek, they would be near paving equipment. Terry McGee, the chief engineer for Washington County, submitted a letter, which read in pertinent part: Although the paving condition[s] of Licking Creek Road are very poor, the business as described in the request is a low traffic generator and thus our requirements regarding paving conditions do not apply. Even though this is a low volume traffic generator, our standard requirement [is] 18 foot wide paving to support all non resident development. ²¹⁹ The current road width is generally only 16 feet wide, although several locations are less than that.

As such, we do not recommend approval of the variance unless the applicant widens the road to 18 feet minimum in accordance with County policy. Mr. Mills testified and stated that it was not his intention to contaminate Licking Creek. He further stated that appellants would have to store the paving equipment ten to twelve miles away if they were not allowed to park it on their property, which would create “[a] lot of inconvenience----” On April 13, 2007, the Zoning Board issued an opinion and made the following findings of facts: 1. The Appellants have owned the subject property since 1999. 2.

Appellants operate a paving business and wish to park their business vehicles on the property as they have been doing for the past seven years. 3. The vehicles consist of 4 dump trucks, a backhoe, and a trailer -with a paver and roller. 4. The Appellants have no plans to remove any existing vegetation. 5. Several neighbors objected to the property, but the Appellants advised that those same neighbors have never before objected to the parking of the vehicles on property, as has been done for seven years. 6.

Widening one-half mile of Licking Creek Road would impose significant financial burden on Appellants, and may encourage further development. 7. Received and filed with the Board was a memorandum from Terrence McGee, P.E., Chief Engineer in the Washington County Engineering Department, stating that the department does not recommend approval of the variance request unless the road is widened to the minimum 18’ width required by County policy. 8. Received and filed with the Board was a memorandum from Kathy A. Kroboth, Washington County Zoning Coordi ²²⁰ nator, advising that the appeal is consistent with the Comprehensive Plan, and we find that the proposal is compatible with the neighborhood. In its decision, the Zoning Board explained that appellants’ property is “suited for the proposed use,” and that it has “been put to such use for the past seven years.” Moreover, appellants’ property was unique from other lots in the area, which made strict compliance with the special exception requirements impossible.

The Zoning Board then concluded that denying the requested variance “would be a substantial injustice upon [ajppellants and that, with the appropriate conditions, 2 granting the variance [would] uphold the spirit of the Ordinance.” The Zoning Board ultimately granted appellants’ special exception request to store contractor’s equipment. It then granted a variance that reduced the three acre requirement to .12 acres; the 300 foot width requirement to ninety feet; the fifty yard setback requirements to five feet on both side yards and fifteen feet in the front yard. Appellees submitted a petition for judicial review to the Circuit Court for Washington County. On October 11, 2007, the circuit court issued an opinion, holding that the findings articulated by the Zoning Board were insufficient.

The court explained that the Zoning Board’s findings did “not balance the ‘beneficial purposes’ of the use with its ‘possible adverse effect,’ nor [did] they support the notion that [appellants’] use of the property [did] not ‘have an adverse effect above and beyond that ordinarily associated with such uses.’ ” The circuit court also found that there were insufficient findings of facts to establish the uniqueness of appellants’ property, or that there was a practical difficulty in strictly complying with the requirements for a storage yard exception. In the end, the circuit court reversed the Zoning Board’s decision and remanded for further proceedings. ²²¹ On March 18, 2009, the Zoning Board held a second public hearing to address appellants’ request for a special exception and variance. At the hearing, appellants attempted to clarify that the proposed use would not have adverse effects above and beyond those inherently associated with storing contractor’s equipment. Appellants also explained that the configuration of their property was unique because it was triangular in shape, had a steep drop-off in the rear, was very shallow, and that no other property in the area was divided by Licking Creek.

Appellants then asserted that it would be a “big hassle” to park the equipment off-site because the nearest storage area was thirty miles away. 3 Appellees countered that appellants’ property was not unique simply because of its size, and that their property was too small to store the number of vehicles appellants desired. On April 16, 2009, the Zoning Board issued an opinion and rendered the following findings of facts: 1. The Board adopts those Findings of Facts set forth in its original Opinion dated April 13, 2007. 2. The property is unique in its shape and size from other properties in the neighborhood; it is smaller than most, if not all other, properties in the area, and is uniquely shaped due to its severance by Licking Creek Road and the shallowness of the lot. 3.

This request for storage of equipment on the property is primarily one of convenience; Appellants have a snow removal contract with the State which requires them to be mobilized and ready to plow with only one hour’s notice. 4. No truck repair or washing is, or will be done, on the premises, so the adverse effects inherent to the operation of a contractor’s equipment storage yard are no greater at this site than they would be at any other site. ²²² 5. The nearest residential use is approximately lk mile away. 6. The triangular shape of the property, its size, and its dissection by the road make it unique in that strict compliance with the required setbacks would make the use of the property difficult if not impracticable. 7.

The topography of the property (it has a steep drop-off to the rear) also makes it unique from other properties in the area. In its opinion, the Zoning Board explained that appellants’ property was “suited to the proposed use[,]” and that the “proposed use [was] of relatively low intensity and [was] compatible with the neighborhood.” The Zoning Board then highlighted the fact that there was a lack of evidence that the proposed use was incompatible with the neighborhood; disruptive of neighbors’ quiet enjoyment; detrimental to property values; would create excessive odors, dust, gas, smoke, fumes, vibrations, or glare; would cause traffic that would exceed the capacity of existing infrastructure; or that the proposal was an inappropriate use of land or structure. The Zoning Board further explained that a variance was necessary because appellants’ property was unique, and that strict compliance with the special exception requirements would be impossible. The Zoning Board also noted that denying the variance would “be a substantial injustice.” In the end, the Zoning Board granted the special exception and variance.

Appellees filed a second petition for judicial review. On January 4, 2010, the Circuit Court for Washington County issued an opinion reversing the Zoning Board’s grant of a special exception and variance. The court noted that there was insufficient analysis of the inherent adverse effects, and specifically articulated: There is no discussion of the inherent adverse effects associated with an equipment storage yard. There is no analysis in the Board’s Opinion whether the inherent adverse effects resulting from granting a special exception would be unique or different at this particular locality. ²²³ The circuit court then observed that even if appellants met their burden of production, there was ample evidence and testimony that raised a “genuine issue of material fact,” thereby shifting the burden of persuasion to appellants. 4 The circuit court further noted that appellants “failed, as a matter of law, to prove practical difficulty.” Appellants noted a timely appeal.

Standard of Review Our role in reviewing the Zoning Board’s decision to grant a special exception and variance is limited “ ‘to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determining] if the administrative decision is premised upon an erroneous conclusion of law.’ ” Montgomery County v. Butler, 417 Md. 271, 283 , 9 A.3d 824 (2010) (quoting Marzullo v. Kahl, 366 Md. 158, 171 , 783 A.2d 169 (2001) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376 (1999)) (quotation marks and citations omitted)). In making that determination, we do not substitute our judgment for that of the administrative agency. See Loyola, supra, 406 Md. at 66-67 , 956 A.2d 166 (citations omitted). “In judicial review of zoning matters, including special exceptions and variances, ‘the correct test to be applied is whether the issue before the administrative body is “fairly debatable,” that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions.’ ” White v. North, 356 Md. 31, 44 , 736 A.2d ²²⁴ 1072 (1999) (quoting Sembly v. County Bd. of Appeals Baltimore County, 269 Md. 177, 182 , 304 A.2d 814 (1973)). In order to be “fairly debatable, the administrative agency overseeing the ... decision must have ‘substantial evidence’ on the record supporting its decision.” White, 356 Md. at 44 , 736 A.2d 1072 (citations omitted).

In that regard, ‘“we inquire whether the zoning body’s determination was supported by “such evidence as a reasonable mind might accept as adequate to support a conclusion----” ’ ” Loyola, 406 Md. at 67 , 956 A.2d 166 (quoting People’s Counsel for Baltimore County v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007)) (quoting The Mayor & Aldermen of the City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398 , 396 A.2d 1080 (1979)). 5 Variance 6 “The general rule is that the authority to grant a variance 7 should be exercised sparingly and only under excep ²²⁵ tional circumstances.” Cromwell v. Ward, 102 Md.App. 691, 703 , 651 A.2d 424 (1995). In Washington County, a variance can be granted for “height, lot area, yard regulations, parking, space requirements, sign regulations, distance requirements .. ., buffer requirements and other distance or dimensional requirements of the Ordinances.” See Section 25.2 of the Washington County Zoning Ordinance. Moreover, because we are reviewing a variance request in Washington County, which is a Commissioner’s County subject to Md.Code. (2010 Repl.

Vol.), Article 66B, a variance is permissible where: (1) the request is not contrary to the public interest; (2) there are peculiar conditions of the property that prohibit literal enforcement of a zoning ordinance; and (3) where enforcement of the zoning ordinance would cause unnecessary hardship or practical difficulty. Article 66B § 1.00(m)(l)-(2). In Cromwell, 102 Md.App. at 694-95 , 651 A.2d 424 , Judge Cathell provided a good explanation of the process one should use in determining whether to grant a variance request: The first step requires a finding that the property whereon structures are to be placed (or uses conducted) is — in and of itself — unique and unusual in a manner different from the nature of surrounding properties such that the uniqueness and peculiarity of the subject property causes the zoning provision to impact disproportionately upon that property. Unless there is a finding that the property is unique, unusual, or different, the process stops here and the variance is denied without any consideration of practical difficulty or unreasonable hardship.

If that first step results in a supportable finding of uniqueness or unusualness, then a second step is taken in the process, i.e., a determination of whether practical difficulty and/or unreasonable hardship, resulting from the disproportionate impact of the ordinance caused by the property’s uniqueness, exists. Further con ²²⁶ sideration must then be given to the general purposes of the zoning ordinance. In the present case, the Zoning Board determined that appellants’ property was unique due to the size and shape of the lot, and because the property was divided by Licking Creek Road. On appeal, the parties stipulated that appellants’ property was “unique as defined by variance law.” Accordingly, we shall not address whether the Zoning Board correctly determined appellants’ property was unique.

Instead, we focus on whether the Zoning Board correctly determined that compliance with the zoning ordinance would be practically difficult. The Washington County Zoning Ordinance states that a variance can only be granted if there is a showing of practical difficulty or undue hardship. See Section 25.56 of the Washington County Zoning Ordinance. In situations like this, where the terms undue hardship or practical difficulty “are framed in the disjunctive (“or”), Maryland courts generally have applied ... the less restrictive practical difficulties standard to area variances because use variances are viewed as more drastic departures from zoning requirements.” Montgomery County v. Rotwein, 169 Md.App. 716, 729 , 906 A.2d 959 (2006) (quoting Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259 , 276 n. 10, 734 A.2d 227 (1999)).

Accordingly, because appellants requested an area variance, we shall review whether there was evidence of practical difficulty, which is defined as: 8 A. Practical Difficulty 1. Strict compliance would unreasonably prevent the use of the property for a permitted purpose or render conformance unnecessarily burdensome; ²²⁷ 2. Denying the variances would do substantial injustice to the applicant and a lesser relaxation than that applied for would not give substantial relief; and 3. Granting the variance would observe the spirit of the Ordinance and secure public safety and welfare.

Section 25.56 of the Washington County Zoning Ordinance. When the Zoning Board granted the variance request, it explained that appellants would experience practical difficulty in adhering to the Zoning Ordinance because of: The lot’s size and shape, and severance by the road, are unique from other lots in the area, making strict compliance impossible. ... denial of the requested variance would be a substantial injustice upon [ajppellants and that, with the appropriate conditions, granting the variance will uphold the spirit of the Ordinance. However, the Zoning Board also noted that the variance request was primarily one of convenience. Appellees, thus, suggest that the Zoning Board erred in granting the variance request.

In support, appellees assert that Carney v. City of Baltimore, 201 Md. 130 , 93 A.2d 74 (1952), illustrates that parking the paving equipment on appellants’ property because of convenience is not permissible. In Carney , a husband and wife submitted a permit to construct a one-story rear addition to their two-story house. See id. at 133 , 93 A.2d 74 . The husband and wife wanted the additional one-story because the wife’s physical conditions made it difficult for her to walk up stairs.

Id. The Board of Municipal and Zoning Appeals of Baltimore City considered the wife’s inability to walk up the stairs, but denied the request because convenience is not sufficient for making an exception to land requirements. Id. at 136 , 93 A.2d 74 . On appeal, the Court of Appeals affirmed the Board of Municipal and Zoning Appeals of Baltimore City and stated that “[t]he need sufficient to justify an exception must be substantial and urgent and not merely for the convenience of the applicant....” Id. at 137 , 93 A.2d 74 . ²²⁸ We found further support for appellees’ position in Rotwein, supra, 169 Md.App. at 716 , 906 A.2d 959 , where this Court noted that a variance cannot be granted because of convenience.

In Rotwein , the applicant, an elderly woman, requested a variance to construct a garage because: (1) she did not want to be exposed to “the elements” when she exited her car and (2) the other options would be substantially more expensive than the proposed location. Id. at 730 , 906 A.2d 959 . In denying the request, the zoning authority stated that the proposed location was a matter of convenience that did not rise to the level of practical difficulty. Id.

Moreover, it found that any hardship was “self-created.” Id. The Circuit Court for Montgomery County reversed and remanded for further proceedings. See id. at 726 , 906 A.2d 959 . On appeal, this Court held that the applicant’s reasons did not meet the standard of “peculiar or unusual practical difficulties,” id. at 732 , 906 A.2d 959 , and that financial loss, especially one that was self-created, was not sufficient to satisfy practical difficulty.

Id. at 733 , 906 A.2d 959 . In the instant case, Mr. Mills testified that parking the paving equipment off-site would create security issues, increase time retrieving the equipment, and increase costs. Mr. Mills also explained that the variance was necessary because appellants had a snow plowing contract with the State that required them to be at a specific location within one hour of notice. The aforementioned reasons are valid but suggest that the request was primarily one of convenience.

As such, we conclude that Carney and Rotwein are dispositive. Thus, we hold that the circuit court did not err in reversing the Zoning Board’s grant of a variance because it was primarily one of convenience. Special Exception “The special exception adds flexibility to a comprehensive legislative zoning scheme by serving as a ‘middle ground’ between permitted uses and prohibited uses in a particular zone.” 9 Loyola, 406 Md. at 71 , 956 A.2d 166 ; see ²²⁹ also Rylyns, supra, 372 Md. at 541 , 814 A.2d 469 (“Another mechanism allowing some flexibility in the land use process, without abandoning the uniformity principle, is the ‘special exception’ or ‘conditional use.’ ”). “A special exception use ‘in a zoning ordinance recognizes that the legislative body of a representative government has made a policy decision for all of the inhabitants of the particular government jurisdiction, and that the exception or use is desirable and necessary in its zoning planning....’” Butler, 417 Md. at 293 , 9 A.3d 824 (quoting Mossburg v. Montgomery County, 107 Md.App. 1, 7-8 , 666 A.2d 1253 (1995)). This presumption of compatibility is likely derived “from a judicially-created inference assigned to the legislative body’s decision to allow, in its zoning regulations, certain uses in certain zones by grant of a special exception.” Butler, 417 Md. at 295 , 9 A.3d 824 .

The Washington County Zoning Ordinance, which requires the Zoning Board to “hear and decide” special exceptions to the zoning ordinance, illustrates this logic. See Section 25.2(b) of the Zoning Ordinance for Washington County. The Zoning Board may grant special exceptions for permissible uses in a district, environmental conservation for the instant case, that are accounted for in the zoning ordinance. See Section 5B.2 of the Zoning Ordinance for Washington County.

The Zoning Board may also grant any use that is functionally similar. See Section 5B.2 of the Zoning Ordinance for Washington County. The board, however, is not permitted to grant a special exception that is inconsistent with the purpose of the district, which in this case is defined as “a zoning category for those areas where, because of natural geographic factors and existing land uses, it is considered feasible and desirable to conserve open spaces, water supply sources, woodland areas, wildlife and other natural resources.” See Section 5B.0 of the Zoning Ordinance for Washington County. As we previously noted, “there is a presumption that [a special exception] use is compatible generally with ²³⁰ permitted uses in the underlying zone.” Butler, 417 Md. at 297 , 9 A.3d 824 .

A presumption also exists that zoning regulations “promote the public safety, health, moral, welfare and prosperity.” Rockville Fuel & Feed Co., Inc. v. Bd. of Appeals of the City of Gaithersburg, 257 Md. 183, 187 , 262 A.2d 499 (1970). That presumption, however, naturally conflicts with a special exception because it has “some deleterious effects on surrounding uses or undeveloped land in the neighborhood----” Butler, 417 Md. at 297 , 9 A.3d 824 . Nonetheless, “[bjecause the allowance of a special exception use is part of a comprehensive zoning regulatory scheme that is itself accompanied by the presumption that it promotes public safety, health, and morals, it stands to reason that this broader presumption accompanying the