Montgomery County v. Butler

HARRELL, J. This case invites us to revisit our modern cases exploring the essence of “special exceptions” 1 and their role in the regulatory scheme of zoning—principally starting with Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981), and running to, most recently, People’s Counsel for Baltimore County v. Loyola College in Maryland, 406 Md. 54 , 956 A.2d 166 (2008). We shall revisit these cases, not to reaffirm, reverse, or modify their holdings, but rather to consider the extent to which a local legislative body, in enacting amendments to its zoning ordinance, may craft those amendments so as to establish a ²⁷⁶ different analytical template for special exception applications than was considered and discussed in those cases. 2 Montgomery County, Maryland (“the County”) 3 and Cora Weeks (“Weeks”) (a neighbor of the subject property that is the subject of the pertinent special exception application) (collectively “Appellants”) appeal from the judgment of the Circuit Court for Montgomery County, which reversed the Montgomery County Board of Appeals’s (“the Board”) denial of Melody Butler’s, d/b/a Butler Landscape Design (“Butler” or “Appellee”), application for a special exception, the grant of which was necessary for Butler to validate the otherwise illegal operation of a landscape contractor’s business that she established on her property without benefit of a special exception. In arguing that the Circuit Court’s reversal of the Board’s denial of the application was erroneous, Appellants posit that substantial evidence exists in the record to support the Board’s denial, pursuant to the criteria of the relevant and prevailing zoning ordinance provisions. More specifically, Appellants argue that, considering the definition of “non-inherent adverse effects” stated in § 59-G-1.2.1 of the Montgomery County Code (“the County Code”) 4 —“physical and operational ²⁷⁷ characteristics not necessarily associated with a particular use, or adverse effects created by unusual characteristics of the site”—the Board concluded correctly that the configuration of Butler’s property and the layout of the operation of the landscaping business on the property would create unacceptable non-inherent adverse effects (essentially noise from trucks) on neighboring properties sufficient to deny the application.

In response, Butler argues that, the County Code provisions notwithstanding, the proper analysis of the evidence should be confined to what the Schultz line of cases states about the respective roles of inherent versus non-inherent adverse effects of the proposed use and how each relates to consideration of special exception applications. In effect, Butler argues that § 59-G-1.2.1 of the County Code “must be read in context and harmony with the holding in Schultz ... and its progeny from which it was derived,” resulting in an affirmance of the Circuit Court’s judgment. Truck noise, she claims, is an inherent adverse effect from a landscape contractor’s business whenever proposed and, therefore, such noise does not undercut the presumption of compatibility enjoyed by a proposed special exception use by virtue of its inclusion in the comprehensive zoning plan, ie., the zoning ordinance. We hold, as explained infra, that, to the extent there is any inconsistency between the special exception standards in the prevailing County Code and the reasoning and holdings of Schultz and its progeny, the County (“District Council”) was free to legislate as it did here; that is, we disagree with the notion that a local zoning ordinance’s treatment of special exceptions always must “be read in context and harmony with the holding in Schultz,” and we refuse to give such ordinances this “judicial gloss” when the local legislature has spoken unambiguously to the contrary.

Accordingly, we shall reverse the judgment of the Circuit Court for Montgomery County and remand to that court with instructions to affirm the decision of the Board denying Butler’s special exception application, which was supported by substantial evidence. ²⁷⁸ FACTS AND PROCEEDINGS Melody Butler operates a landscape contracting business, under the name Butler Landscape Design, at 21020 Peach Tree Road, in Dickerson, Montgomery County, Maryland. The real property on which the business operates, which Butler owns, is a 2.68-acre lot improved with a single-family residence. The lot is in an area zoned in the “Rural Density Transfer” zone. 5 Pursuant to the County Code, landscape contracting is not permitted as of right in the RDT zone, but may be allowed with the grant of a special exception. See Montgomery County Code, § 59-C-9.3(c) (2009).

Butler established her business without obtaining the requisite special exception first. On 27 April 2006, the County’s Department of Permitting Services issued Butler a Notice of Violation. 6 ²⁷⁹ Thereafter, on 30 July 2007, Butler, in an effort to correct the violation and validate her business, filed an application for a special exception to operate a landscape contractor’s business. The subject property is rectangular in shape, measuring 170 feet along its sole street frontage, Peach Tree Road, as well as the rear of the lot; 682 feet along its northern side; and, 695 feet on the southern side. 7 The abutting lots on either side of Butler’s property (the northern of which is owned by Cora Weeks), also having Peach Tree Road as their sole street access, are approximately of similar size and shape to Butler’s lot, and each lot contains an occupied residence. Peach Tree Road borders the three properties to the east (along the front of the properties), and a farm borders all three lots to the west (to the rear of the properties).

The neighborhood is predominantly rural in development character, and all of the lots are zoned as RDT. A gravel driveway on Butler’s property extends from Peach Tree Road, forms a loop in front of the residence, and then runs along the northern side of the lot, forming a second loop behind the house, where Butler stores and loads contracting equipment and supplies. The edge of the driveway is approximately twenty-two feet from the northern property line, and lies about forty-two feet from Weeks’s residence. Separating Butler’s lot from Weeks’s lot is a row of white pine trees, although many of the trees lost their lower branches by the time of the special exception hearing before the County hearing examiner. ²⁸⁰ Butler’s business provides landscape services, including: mulching, planting, weeding, mowing, and tree and snow removal for both residential and commercial properties, most of which are in Montgomery County.

While all of these services are conducted off-site, equipment and materials necessary to carry out these services are stored on the subject property. Stored materials, all located on the rear of the subject property, include: nursery stock, trees, plants, mulch, firewood, flagstones, and landscaping equipment. The company operates year round, with the busiest periods from March through May and October through December. During these busy seasons, the company employs seven people, working six days a week and arriving on those days at approximately 7 a.m.

When employees arrive for work, they load the trucks with the stock and equipment stored on-site and then drive to the location of the work to be performed, after which departure there is little activity on-site until the end of the day. The employees return the trucks to the lot by approximately 6:00-6:30 p.m. The employees are supposed to depart the site within a half hour, but Butler admitted that this schedule is not followed uniformly. No customers visit the property, and all office-bound work is done off-site.

In her special exception application, Butler proposed to limit mulch deliveries to the site to no more than three times per week during the period of Mareh-June, and no more than two times per week for the remainder of the year. Additionally, Butler anticipated that plant stock would be delivered no more than two times per season. An on-site dumpster will be emptied once per week during the busy season and less frequently during slower periods. Butler’s truck fleet consists of five trucks and two off-road utility vehicles (Bobcats).

All of the vehicles are kept on the subject property and are picked up and returned each day. In her special exception application, Butler stated that she plans to erect a prefabricated shed behind the residence in which to store the vehicles, tools, and other equipment. Butler hoped to pave the existing gravel driveway in its present location. She also planned to install additional screening for ²⁸¹ noise-reduction purposes, including a six-foot tall, wood-on-wood fence along the northern property line (the shared line with Weeks’s lot), and white pine trees along the southern property line. 8 Neighbors, through letters to and testimony before the Board and examiner, complained about the noise created by the trucks associated with Butler’s activities, including that of hydraulic lifts and the safety alert sounds when they were driven in reverse gear.

One neighbor complained of an “offensive odor” perceived on the neighbor’s adjacent property emanating from trash and delivery trucks on Butler’s property. Finally, neighbors opined that the use of the Butler property for contracting purposes had “severely diminished” the value of their homes. The local planning agency came to conflicting recommendations on what action should be taken on Butler’s special exception application. The Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission (“MNCPPC”) unanimously recommended that the application be denied.

On the other hand, contrary to the recommendation from its Community-Based Planning Division, the report compiled by the Technical Staff of the MNCPPC recommended approval, with conditions. Following an 8 February 2008 public hearing, the County zoning hearing examiner, on 24 June 2008, issued a 60-page findings of fact, conclusions of law, and recommendation in which he recommended that the application “requesting a special exception to conduct business as a landscape contractor in an RDT zone at 21020 Peach Tree Road be DENIED.” The hearing examiner reasoned ultimately that ²⁸² the use contemplated will have serious adverse consequences on Weeks’s property because of the commercial traffic engendered along Butler’s driveway 42 feet from Weeks’s residence and a mere 22 feet from her property line. The noise generated by trucks and Bobcats backing up to load and unload on Butler’s property will also seriously disturb both adjacent neighbors. Because of the narrowness of Butler’s lot, the configuration of the commercial use that Butler has included in her site plan, and the closeness of the commercial use to neighboring properties, I do not believe that conditions can be devised that will attenuate these adverse effects adequately.

By a vote of 3-1, the Board of Appeals “concur[red] with the Hearing Examiner’s finding that the special exception as proposed and in this particular location presents non-inherent adverse effects sufficient to warrant denial of this special exception.” Specifically, the Board highlighted the hearing examiner’s findings that: (1) due to the proximity to Weeks’s property, the commercial traffic traveling on the driveway would have serious adverse consequences on that property; (2) the noise generated by the trucks and the Bobcats, when operated in reverse, would have serious adverse consequences on both adjoining neighbors; and (3) the configuration of the lots and of the proposed use would produce traffic and noise on the property having immediate adverse effects on the adjoining neighbors. Butler sought judicial review of the Board’s decision by the Circuit Court for Montgomery County. The County and Weeks intervened successfully. The Circuit Court reversed the Board’s decision, holding that “[t]he Board erred as a matter of law in concluding that the inherent effects of a landscaping company operation on the Property rise to the level of non-inherent effects.” The Circuit Court reasoned that all of the proffered adverse effects “remain inherent to the operation of the landscaping business....” In rejecting the Board’s determination that the proximity of Butler’s driveway to Weeks’s lot was a sufficient non-inherent adverse effect upon which to deny the application, the Circuit Court noted ²⁸³ that “[virtually all of the inherent adverse effects ... will take place at the rear of the Property, over three hundred feet from the neighboring property and home,” and concluded that the Board “erroneously concluded that the inherent adverse effects in this unique factual circumstance [rise] to the level of non-inherent and erred as a matter of law in denying Petitioner’s application for Special Exception.” The County and Weeks appealed timely to the Court of Special Appeals.

On our initiative, we issued a writ of certiorari, Montgomery County v. Butler, 414 Md. 330 , 995 A.2d 296 (2010), before the intermediate appellate court decided the appeal. We consider here Appellants’ question of whether the “trial court err[ed] in its determination that [the] Board of Appeals had erred in its determination that inherent adverse effects of a landscaping business would become non-inherent adverse effects due to shape and configuration of the subject property.” DISCUSSION I. Standard of Review Judicial review of the final zoning action of a local administrative body, such as the denial of Butler’s special exception application by the Board of Appeals, “is narrow; it is limited [usually] 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.” Marzullo v. Kahl, 366 Md. 158, 171 , 783 A.2d 169, 177 (2001) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376, 380 (1999)) (quotation marks and citations omitted). When reviewing a final decision of the Board, we look “through the circuit court’s ... decision[ ], although applying the same standards of review, and evaluate[ ] the decision of the agency.” Loyola College, 406 Md. at 66 , 956 A.2d at 173 (quoting People’s Counsel for Baltimore County v. Surina, 400 Md. 662, 681 , 929 A.2d 899, 910 (2007)). ²⁸⁴ Further, “[i]n judicial review of zoning matters, including special exceptions ... ‘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 1072, 1079-80 (1999) (quoting Sembly v. County Bd. of Appeals of Baltimore County, 269 Md. 177, 182 , 304 A.2d 814, 818 (1973)). Thus, in examining the record made below, “we do not engage in an ‘independent analysis of the evidence,’ ” Armstrong v. Mayor of Baltimore, 410 Md. 426, 444 , 979 A.2d 98, 109 (2009) (quoting Bereano v. State Ethics Comm’n, 403 Md. 716, 731 , 944 A.2d 538, 547 (2008)), and we proceed from the premise that an agency’s decision is prima facie correct and presumed valid, Marzullo, 366 Md. at 172 , 783 A.2d at 177 (quoting Banks, 354 Md. at 68 , 729 A.2d at 381 ), if reached in accordance with the applicable and valid regulatory scheme.

The issue before us involves ultimately our review of the Board’s determination that non-inherent adverse effects persisted on Butler’s property from her on-going use (which would not change meaningfully as proposed in her special exception application) sufficient to deny the application. As discussed more fully infra, the County Code defines “inherent adverse effects” and “non-inherent adverse effects.” See Montgomery County Code § 59-G-1.2.1 (2009). Neither party contests the meaning of these terms nor do they ask this Court to construe these terms. Thus, we are faced with a “mixed question of law and fact.” See generally Arnold Rochvarg, Maryland Administrative Law § 4.47 at 154-57 (2d ed.2007).

A court is faced with a mixed question of law and fact “when a party challenges how an agency applied, as opposed to interpreted, a statute.... ” Bayly Crossing, LLC v. Consumer Protec. Div. Office of the Attorney Gen., 417 Md. 128, 138 , 9 A.3d 4 (2010); see Ramsay, Scarlett & Co., Inc. v. Comptroller, 302 Md. 825, 837 , 490 A.2d 1296, 1302 (1985) (“The difference between the [parties’] position[s] ... [are] based essentially on differing views—not as to the law governing the case—but rather as to its proper application to the ²⁸⁵ established evidence of record----”). Accordingly, in answering the question of whether (as the Board found) there were non-inherent adverse effects associated with Butler’s landscape contracting business, we do so by applying the “substantial evidence” test.

See Rochvarg, § 4.47 at 154 (“The standard of review of mixed questions of law and fact is well accepted as substantial evidence review.”). In applying the substantial evidence test, we do not substitute our judgment for that of the fact finder (in this case, the Board), even if we, exercising independent judgment, may have reached a different result on the same record. See Young v. Anne Arundel County, 146 Md.App. 526, 567 , 807 A.2d 651, 675-76 (2002).

II

Local Regulatory Standards Governing Consideration of Special Exception Applications in Montgomery County Generally and Landscape Contractors in the RDT Zone Specifically Montgomery County is a “charter county.” See Md. Const, art. XI-A; Montgomery County v. Anchor Inn Seafood Rest, 374 Md. 327, 331 , 822 A.2d 429, 431 (2003) (“Article XIA of the Maryland Constitution authorizes counties to adopt home rule charters which, as we have often pointed out, function as ‘constitutions’ for the counties adopting them.”). Although the Express Powers Act, Maryland Code (1957, 2005 Repl.Vol.), Article 25A, § 5, enumerates express powers granted to and conferred upon any county or counties which form a charter under Article XI-A of the Maryland Constitution, “Montgomery County’s zoning power ... derives exclusively from the Regional District Act [Art. 28, §§ 8-101 et seq.].” Pan Am. Health Org. v. Montgomery County, 338 Md. 214, 217 , 657 A.2d 1163, 1165 (1995).

The Regional District Act applies solely to those parts of the Regional District situated in Montgomery and Prince George’s Counties. 9 Section 8-101(b)(2) of the Md.Code, Art. 28 (the “Regional District Act”), provides in pertinent part: ²⁸⁶ Title 8. District Councils for Regional District. § 8-101. Powers Generally. (b) Grant of zoning power.

(2) ... each district council, respectively, in accordance with the conditions and procedures specified in this article, may by ordinance adopt and amend the text of the zoning ordinance and may by resolution or ordinance adopt and amend the map or maps accompanying the zoning ordinance text to regulate, in the portion of the regional district lying within its county, (i) the location, height, bulk, and size of buildings, other structures, and units therein, building lines, minimum frontages, depths and areas of lots, and percentages of lots which may be occupied; (ii) the size of lots, yards, courts, and other open states; (iii) the erection of temporary stands and structures; (iv) the density and distribution of population; (v) the location and uses of buildings and structures and units therein for trade, industry, residence, recreation, agriculture, public activities, and other purposes; and (vi) the uses of land, including surface, subsurface, and air rights therein, for building, trade, industry, residence, recreation, agriculture, forestry, or other purposes. Section 8-102 of Art. 28, entitled “Districts and [Z]ones” provides further: For the purposes of such exercise of power, each district council may divide the portion of the regional district lying within its county into districts and zones of whatever number, shape or area it may determine. Within the districts and zones the district council may regulate the erection, construction, reconstruction, alteration, and uses of buildings and structures and the uses of the land, including surface, subsurface, and air rights therein. Both districts ²⁸⁷ and zones may be created; all regulations shall be uniform for each class or kind of building throughout any district or zone, but the regulations in one district or zone may differ from those in another district or zone.

Section 8-104 of Art. 28 authorizes generally the District Councils in Montgomery and Prince George’s Counties to amend their zoning regulations “from time to time.” Specifically addressing special exceptions, § 8-110(a) authorizes a district council, in its zoning regulations, to “provide that the board of zoning appeals ... in appropriate cases and subject to appropriate principles, standards, rules, conditions, and safeguards set forth in the regulations, may either grant or deny, upon conditions ... special exceptions ... in harmony with the[ ] general purposes and intent [of the zoning regulations].” (Emphasis added.) Montgomery County’s zoning ordinance, 10 as noted earlier, is codified in Chapter 59 of the County Code. Pursuant to § 59-C-9.3(c), landscape contracting is a use allowed in an RDT zone only with the grant of a special exception, 11 unless established as a legal nonconforming use. Before any special exception may be granted, the Board must find, by a preponderance of the evidence, that the proposed use (1) Is a permissible special exception use in the zone. (2) Complies with the standards and requirements set forth for the use in Division[ 12 ] 59-G-2.[ 13 ] The fact that a ²⁸⁸ proposed use complies with all specific standards and requirements to grant a special exception does not create a presumption that the use is compatible with nearby properties and, in itself, is not sufficient to require a special exception to be granted.[ 14 ] ²⁸⁹ (3) Will be consistent with the general plan for the physical development of the District, including any master plan adopted by the Commission.

Any decision to grant or deny a special exception must be consistent with any recommendation in a master plan regarding the appropriateness of a special exception at a particular location. If the Planning Board or the Board’s technical staff in its report on a special exception concludes that granting a particular special exception at a particular location would be inconsistent with the land use objectives of the applicable master plan, a decision to grant the special exception must include specific findings as to master plan consistency. (4) Will be in harmony with the general character of the neighborhood considering population density, design, scale, and bulk of any proposed new structures, intensity and character of activity, traffic and parking conditions, and number of similar uses. The Board or Hearing Examiner must consider whether the public facilities and services will be adequate to serve the proposed development under the Growth Policy standards in effect when the special exception application was submitted.

(5) Will not be detrimental to the use, peaceful enjoyment, economic value or development of surrounding properties or the general neighborhood at the subject site, irrespective of any adverse effects the use might have if established elsewhere in the zone. (6) Will cause no objectionable noise, vibrations, fumes, odors, dust, illumination, glare, or physical activity at the subject site, irrespective of any adverse effects the use might have if established elsewhere in the zone. (7) Will not, when evaluated in conjunction with existing and approved special exceptions in any neighboring one- ²⁹⁰ family residential area, increase the number, intensity, or scope of special exception uses sufficiently to affect the area adversely or alter the predominantly residential nature of the area. Special exception uses that are consistent with the recommendations of a master plan do not alter the nature of an area.

(8) Will not adversely affect the health, safety, security, morals, or general welfare of residents, visitors, or workers in the area at the subject site, irrespective of any adverse effects the use might have if established elsewhere in the zone. (9) Will be served by adequate public services and facilities, including schools, police and fire protection, water, sanitary sewer, public roads, storm drainage and other public facilities. Montgomery County Code, § 59-G-1.21 (2009) (emphasis added). Section 59-G-1.2.1 instructs that the Board, in acting on each special exception application, “must consider the inherent and non-inherent adverse effects of the use on nearby properties and the general neighborhood at the proposed location.” Thus, the County Code does not endorse completely the distinction between inherent and non-inherent adverse effects in the review of special exception applications as discussed in our caselaw involving special exceptions.

Moreover, § 59-G-1.2.1 defines “inherent adverse effects” as those involving “the physical and operational characteristics necessarily associated with the particular use, regardless of its physical size or scale of operations,” and defines “non-inherent adverse effects” as those involving “physical and operational characteristics not necessarily associated with the particular use, or adverse effects created by unusual characteristics of the site.” Our cases heretofore have not sought to define these terms, except as noted infra. The County Code goes on to explain that, while “[ijnherent adverse effects alone are not a sufficient basis for denial of a special exception,” “non-inherent adverse effects, alone or in ²⁹¹ conjunction with inherent adverse effects, are a sufficient basis to deny a special exception.” Montgomery County Code § 59-G-1.2.1 (2009). Finally, presenting a prima facie case meeting the County Code’s standards and requirements applicable to specific special exception use does not ensure the approval of the special exception application. Rather, § 59-G-1.21(2) states that “[t]he fact that a proposed use complies with all specific standards and requirements to grant a special exception does not create a presumption that the use is compatible with nearby properties.” 15 See also § 59-G-1.21(a) (“A special exception may be granted when the Board ... finds from a preponderance of the evidence ... that ....”) (emphasis added).

III

Analysis A. The County Zoning Ordinance’s Treatment of the Presumption of Compatibility and Inherent and Non-Inherent Adverse Effects Associated with Special Exceptions Versus Schultz and Its Progeny This case involves the interplay between Maryland caselaw dealing with special exceptions, 16 and Montgomery County’s ²⁹² seemingly unique approach, as reflected in the County Code. To appreciate fully the apparent novelty of Montgomery County’s zoning ordinance in this regard, we restate the history of special exceptions as a land use tool and the origin and purpose of the “presumption of compatibility” said to accompany them. One treatise detailed aptly the origins of the special exception as a land use regulatory device: The creators of zoning designed a simple system. In principle, they believed that one ought to be able to look at a map and determine from that map exactly what could be done on a particular piece of property.

For many types of uses ... that system worked well; the zoning map created separate districts for each of those. Some uses do not fit so neatly into a map, however. These are uses that are generally compatible with the uses permitted as of right in a given district, but certain aspects of their implementation require scrutiny by the planning commission or other pertinent board before they are permitted. Certain uses may tend to generate excessive traffic, or attract a large number of people to the area, thereby creating noise or other pollutants.

Similarly, the proposed special use exception may have a detrimental effect on the value of other properties in the area or may create a higher potential for accidents or other adverse effects on the public health or safety.... With traditional zoning, there were only two ways to address putting these uses into residential areas-either designating [them] as permitted uses in all residential zones OR granting “spot” zones for such uses at appropriate locations in residential neighborhoods. Clearly allowing such uses on every lot in a residential area was never an attractive alternative, and the early drafters of zoning legislation sought a simpler and more elegant solution.... Nyal D. Deems et al, A Practical Guide to Winning Land Use Approvals and Permits, Ch. 2, § 2.05[3][a] (2010).

In Loyola College, we reiterated the place of a special exception ²⁹³ as a device or tool in a comprehensive zoning regulatory scheme: 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. Permitted and prohibited uses serve as binary, polar opposites in a zoning scheme. A permitted use in a given zone is permitted as of right within the zone, without regard to any potential or actual adverse effect that the use will have on neighboring properties. A special exception, by contrast, is merely deemed prima facie compatible in a given zone.” Loyola College, 406 Md. at 71 , 956 A.2d at 176 .

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 governmental jurisdiction, and that the exception or use is desirable and necessary in its zoning planning.... ” Mossburg v. Montgomery County, 107 Md.App. 1, 7-8 , 666 A.2d 1253 (1995). 17 The notion that a special exception is in a ²⁹⁴ certain context “prima facie compatible,” or, stated differently, that the use for which a special exception may be allowed by a zoning regulatory scheme is “presumptively compatible” generally with other uses permitted as of right in the same zone, is not a wholly contemporary notion. See, e.g., Creswell v. Baltimore Aviation Serv., Inc., 257 Md. 712, 719 , 264 A.2d 838, 842 (1970) (“A special exception is a use which has been legislatively predetermined to be conditionally compatible with the uses permitted as of right in a particular zone.... ”). 18 Tracing the origin of and the underlying rationale for a “presumption of compatibility” concept/rationale, however, proves a formidable task. The first Maryland case we could find that appeared to discuss such a presumption is Montgomery County v. Merlands Club, Inc., 202 Md. 279 , 96 A.2d 261 (1953). In Merlands Club, we considered the refusal by the Board of Appeals of Montgomery County to grant a special exception for a private recreational club.

Merlands Club, 202 Md. at 282 , 96 A.2d at 262 . In discussing the special exception provisions then found in the County Code, the Court stated that the purpose of the provisions were “to delegate to the Zoning Board a limited authority to permit enumerated uses which the legislative body finds in effect prima facie properly residential, absent any fact or circumstance in a particular case which would change this presumptive finding.” Merlands Club, 202 Md. at 287 , 96 A.2d at 264 (second emphasis added). Similar early cases from this Court appearing to discuss the presumption are to like effect. See Gilmor v. ²⁹⁵ Mayor of Baltimore, 205 Md. 557 , 109 A.2d 739 (1954) and Oursler v. Bd. of Zoning Appeals of Baltimore County, 204 Md. 397 , 104 A.2d 568 (1954).

The seminal Schultz v. Pritts and the more-recent Loyola College, cited supra, are no more illuminating on the origins of the presumption. The only kernel of guidance we could find in Maryland caselaw regarding the origins or rationale for the presumption comes from our intermediate appellate court, which concluded that “[t]he presumption in favor of a [special exception] derives from the legislative policy determination that such a use is permissible.... ” E. Outdoor Adver. Co. v. Mayor of Baltimore, 146 Md.App. 283, 308 , 807 A.2d 49, 63 (2002). Yet, even assuming the presumption derives from the local legislative policy decision to provide in its original zoning regulatory scheme (or by amendment to its text) for the potential of such a use with the grant of a special exception, the use remains only permissible conditionally and each applicant must prove actually, to the satisfaction of the administrative decision-maker (subject to the narrow standards for judicial review and applicable constitutional principles), that his/her/its application will be compatible with the uses on (or future permitted use of) other properties in the neighborhood.

Perhaps the presumption of compatibility stems 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. For instance, Professor Daniel R. Mandelker’s treatise, “Land Use Law,” looks to the Oregon Supreme Court’s decision in Archdiocese of Portland v. County of Washington, 254 Or. 77 , 458 P.2d 682, 685-86 (1969), for the presumption’s rationale: “[T]he ordinance itself reveals the legislative plan.... The suspicion which is cast upon the approval of a change involving an incompatible use ... is not warranted where the change has been anticipated by the governing body.” (emphasis added); see Daniel R. Mandelker, Land Use Law § 6.56 (5th ed.2003). That is, inherent in the essence of a special exception is a legislative determination that certain uses will be permissible (albeit with the grant of a special exception), notwithstanding ²⁹⁶ the likelihood of adverse effects naturally associated with such uses.

See Arden H. Rathkopf, The Law of Zoning and Planning § 61:8 (2010) (“The technique of the conditional use presupposes that some sort of legislative determination has been made as to which uses of property are allowable.... ”). But see Wells v. Pierpont, 253 Md. 554, 559 , 253 A.2d 749, 752 (1969) (“[T]he very fact of the granting of the special exception ... presumes a determination by zoning authorities that the requested use would not be ‘detrimental to the health, safety, or general welfare.... ’ ”). 19 Such thinking is consistent with most local zoning ordinances. For example, consider the Baltimore County Zoning Regulations (“BCZR”) with which the Loyola College Court was faced. The BCZR provided a list of requirements that must be satisfied before any special exception may be granted (not to mention additional conditions for each special exception use).

These generally-applicable requirements include, but are not limited to, a finding that the requested use will not “[b]e detrimental to the health, safety or general welfare of the locality involved; ... [tjend to create congestion in roads, streets or alleys therein; ... [or c]reate a potential hazard from fire, panic or other danger____” See Loyola College, 406 Md. at 68 , 956 A.2d at 174 . Thus, the ordinance, on its face, states that if the applicant satisfies the final administrative decision-maker that it has met these standards, the special exception ought to be granted. See John J. Delaney et al., Handling the Land Use Case; Land Use Law, Practice & Forms § 30:2 (3d ed. 2008) (“The distinguishing characteristic of the special-[exception] technique is that if the administrative body ... finds compliance with the standards set forth in the regulation, the applicant has a right to the exception.”) (emphasis added); 4 Southwestern Legal Foundation, Institute on Planning and Zoning 98 (1960) (“Many ordinances state that a use is subject to a conditional use permit[,] ²⁹⁷ period.”); Ogden Fire Co. No. 1 v. Upper Chichester Twp., 504 F.3d 370, 382 (3d Cir.2007) (noting that a “special exception is not really an exception at all”). Stated differently, after meeting the criteria set forth in the ordinance, ordinarily it may be said that there is a presumption that this land use is compatible generally with permitted uses in the underlying zone.

It is the caselaw that coins the presumption as such, as well as provides for the consideration of potential non-inherent adverse effects to rebut the now-shifted burden of production. See Loyola College, 406 Md. at 68-69 , 956 A.2d 166, 175 (“Within each individual factor [of the Baltimore County Zoning Ordinance] lurks another test, the Schultz v. Pritts standard.”). Another presumption—possibly working in tandem with the presumption discussed above—is the more general presumption “that zoning regulations reasonable in substance and reasonably applied do, or are presumed to, promote the public safety, health, morals, welfare and prosperity----” Rockville Fuel & Feed Co. v. Bd. of Appeals of the City of Gaithersburg, 257 Md. 183, 187 , 262 A.2d 499, 502 (1970). The uses for which a special exception is required are conceptualized generally as having some deleterious effects on surrounding uses or undeveloped land in the neighborhood—or, stated differently, may be said potentially not to promote the public safety, health, morals, welfare, and prosperity and, therefore, are not appropriate to be allowed as uses of right.

See John J. Delaney et al., supra, § 30:1 (“Most [uses for which a special exception is required] are regarded as potentially troublesome because of noise, traffic, congestion, or other associated problems.”). The local legislature, however, determines that this potential may not be so tangible in every case as to warrant prohibition of the use in the zone or zones; rather, an applicant should be given the opportunity to satisfy an administrative decision-maker that in his/her/its case, such potential does not rise to the level of so likely or actual incompatibility as to rebut the presumption. Because the allowance of a special exception use is part of a comprehensive zoning regulatory scheme that is itself accompanied by the ²⁹⁸ presumption that it promotes public safety, health, and morals, it stands to reason that