Mossburg v. Montgomery County

CATHELL, Judge. William H. Mossburg Jr., et al., appeal from an order of the Circuit Court for Montgomery County that affirmed the order of the Montgomery County Board of Appeals denying appellants’ request for a special exception for the operation of a solid waste transfer station in an 1-2 Industrial Zone in the Southlawn Lane industrial corridor of Rockville, a zone in which such uses are permitted as special exceptions. This case is a companion case to one also on appeal and being considered by the same panel of this Court, Mossburg v. Montgomery County [No. 57, 1995 Term], which involves the grant of declaratory and injunctive relief, foreclosing Moss-burg’s attempt to continue the operation of a solid waste transfer operation at another location as a legal nonconforming use. The case sub jvdice arises out of appellants’ attempt to transfer the business from that location to the one in the instant case.

In order to do so, a special exception is necessary. There have been several judicial proceedings involving this matter. At least one has proceeded as far as the Court of Appeals. The companion case, at one point, at least facially, was subject to a compromise via a consent agreement before an administrative agency.

That settlement contemplated the possible relocation of the operation. At that time, the Montgomery County zoning code did not permit such uses in any zone. The County apparently amended the code to provide for such uses in certain industrial zones. The legislative process began as an attempt to classify such uses as permitted in the designated zone.

For whatever reason, by the time the ⁵ process was completed, solid waste transfer uses were permitted in 1-2 Industrial Zones, but only as special exceptions. The inventory of 1-2 Zones in Montgomery County is apparently extremely limited. 1 The 1-2 industrial corridor at issue here is already intensively built up with heavy industrial uses, as we shall hereafter discuss. On this appeal, appellants present two questions: I. Was the Board of Appeal[s]’s denial of the application on remand the result of impermissible “change of mind” conclusions and therefore arbitrary and capricious?

II

Were the reasons given by the Board of Appeals for its denial of the application supported by substantial evidence of record? Before discussing the facts of this particular case, it may be helpful to discuss, once again, (1) how provisions for special exceptions are created in zoning codes, (2) the policy statements made by the creation of those provisions, (3) the inherent permissive nature of such exceptions, and (4) the proper focus to be utilized in determining whether a proposed special exception satisfies the conditions of the statute. Any discussion of any zoning matter, be it, inter alia, rezoning, special exceptions/conditional uses, or variances, must always recognize that zoning is an interference (if done correctly, a permissible one) with a property owner’s constitutional rights to use his own property as he sees fit. The Fifth ⁶ Amendment to the United States Constitution provides, in pertinent part: No person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation.

See also Article 24 of the Maryland Declaration of Rights. In Offen v. County Council, 96 Md.App. 526 , 625 A.2d 424 (1993), aff'd in part, rev’d in part on other grounds, 334 Md. 499 , 639 A.2d 1070 (1994), we noted that, in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-15 , 112 S.Ct. 2886, 289293 , 120 L.Ed.2d 798 (1992), the Supreme Court there said that, in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , 43 S.Ct. 158 , 67 L.Ed. 322 (1922), the Court “had first recognized” that [i]f ... the uses of private property were subject to unbridled, uncompensated qualification under the police power, “the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed].” Offen, 96 Md.App. at 550-51 , 625 A.2d 424 . We went on, in Offen , to describe part of the history of zoning generally and its legitimate regulation of uses of private property, recognizing the awesome (but not unlimited) power of government to regulate such uses. In that regard, we perceive no illegality, in the case sub judice, on the part of the legislative body of Montgomery County in establishing that solid waste transfer operations are permitted as special exceptions only in the 1-2 Industrial Zones of Montgomery County. .

In fact, had that policy-making body chosen to prohibit such uses altogether, we would not be inclined to question its powers to do so unless, in so doing, it eliminated all viable economical uses of a property. 2 Appellants, in the case sub judice, do not challenge the ⁷ power of the County to provide for the use by way of a special exception, but question whether the body charged with administering that law, ie., the Board, has done so properly. Special Exceptions We noted, in Cromwell v. Ward, 102 Md.App. 691, 701 , 651 A.2d 424 (1995), citing Stacy v. Montgomery County, 239 Md. 189, 193 , 210 A.2d 540 (1965), that “[a] special exception ... is expressly permissible____” See also Montgomery County v. Merlands Club, Inc., 202 Md. 279, 288 , 96 A.2d 261 (1953); Cromwell, 102 Md.App. at 702 , 651 A.2d 424 (citing Eberhart v. Indiana Waste Systems, Inc., 452 N.E.2d 455, 459 (Ind.App. 3 Dist.1983) (“A conditional use [3] is a desirable use which is attended with detrimental effects which require that certain conditions be met.”)); Ash v. Rush County Bd. of Zoning Appeals, 464 N.E.2d 347, 350 (Ind.App. 1 Dist.1984) (“A special exception involves a use which is permitted ... once certain statutory criteria have been satisfied.”). We noted, in respect to attempts to utilize variance procedures to eliminate conditions, in the conditional use case of Chester Haven Beach Partnership v. Board of Appeals, 103 Md.App. 324, 336 , 653 A.2d 532 (1995), that it is “the generally accepted proposition ] that, if the express conditions ... are met, it is a permitted use because the legislative body has made that policy decision.” Thus, we conclude, as this Court and the Court of Appeals often have, that a special exeeption/conditional 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 ⁸ desirable and necessary in its zoning planning provided certain standards are met. The modern seminal case, authored by the late Judge Davidson (who had herself risen through the community organizations and the planning/zoning arena of Montgomery County), is Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981).

That case, with but minor modifications, and with but one or two strained deviations, see Board of County Comm’rs v. Holbrook, 314 Md. 210 , 550 A.2d 664 (1988), remains the standard by which special exception questions are resolved. After furnishing legal and historical background, Judge Davidson noted for that Court that [w]hen the legislative body determines that other uses are compatible with the permitted uses in a use district, but that the beneficial purposes such other uses serve do not outweigh their possible adverse effect, such uses are designated as conditional or special exception uses. Such uses cannot be developed if at the particular location proposed they have an adverse effect above and beyond that ordinarily associated with such uses. Schultz, 291 Md. at 21-22 , 432 A.2d 1319 (emphasis added, citations omitted).

Thus, it is not whether a special exception/conditional use is compatible with permitted uses that is relevant in the administrative proceedings. The legislative body, by designating the special exception, has deemed it to be generally compatible with the other uses. In special exception cases, therefore, general compatibility is not normally a proper issue for the agency to consider. That issue has already been addressed and legislatively resolved.

Moreover, it is not whether a use permitted by way of a special exception will have adverse effects (adverse effects are implied in the first instance by making such uses conditional uses or special exceptions rather than permitted uses), it is whether the adverse effects in a particular location would be greater than the adverse effects ordinarily associated with a particular use ⁹ that is to be considered by the agency. As Judge Davidson opined in Schultz : [T]he appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone. Id. at 22-23 , 432 A.2d 1319 (emphasis added). The question in the case sub judice, therefore, is not whether a solid waste transfer station has adverse effects.

It inherently has them. The question is also not whether the solid waste transfer station at issue here will have adverse effects at this proposed location. Certainly, it will and those adverse effects are contemplated by the statute. The proper question is whether those adverse effects are above and beyond, i.e., greater here than they would generally be elsewhere within the areas of the County where they may be established, i.e., the other few 1-2 Industrial Zones.

In other words, if it must be shown, as it must be, that the adverse effects at the particular site are greater or “above and beyond,” then it must be asked, greater than what? Above and beyond what? Once an applicant presents sufficient evidence establishing that his proposed use meets the requirements of the statute, even including that it has attached to it some inherent adverse impact, an otherwise silent record does not establish that that impact, however severe at a given location, is greater at that location than elsewhere. In the recent case of Sharp v. Howard County Bd. of Appeals, 98 Md.App. 57, 73 , 632 A.2d 248 (1993), Judge Harrell, for this Court, noted the position of the appellants in that case: [A]ppellants postulate that Schultz v. Pritts can only be correctly applied if the agency ... first identifies the universe of potential adverse effects inherently associated with the abstract special exception use (which the legislative ¹⁰ body was presumptively aware of when it permitted the use only after the grant of a special exception).

With those inherent adverse effects in mind, the Board must then analyze which of the actual adverse effects on adjoining and surrounding properties demonstrated in the particular application exceed, in kind or degree, the inherent adverse effects due to the proposed location of the subject property of the application. Judge Harrell then acknowledged the Schultz Court’s discussion of the nature of the requisite adverse effect that would compel denial of a special exception. That discussion involved a contrasting review of two cases—Deen v. Baltimore Gas & Elec. Co., 240 Md. 317 , 214 A.2d 146 (1965), involving overhead power lines, and Anderson v. Sawyer, 23 Md.App. 612 , 329 A.2d 716 (1974), cert. denied, 274 Md. 725 (1975), which, like Schultz , involved a funeral home.

In discussing the cases, we quoted a portion of Deen that appears especially appropriate here: Appellants assert that it was error for the Board to fail to consider the future effects which the high tension wires would have on the health, safety and general welfare of the locality.... This factor was without relevance in this case, because there was no evidence produced at the hearing which would show that the effect of high tension wires ... [in] this area would be in any respect different than its effect on any other rural area. Section 502.1 implies that the effect on health, safety or general welfare must be in some sense unique or else a special exception could never be granted in such an area.... Sharp, 98 Md.App. at 77-78 , 632 A.2d 248 (bold added).

We likewise emphasized in Sharp portions of our Anderson decision: “... Because there were neither facts nor valid reasons to support the conclusion that the grant of the requested special exception would adversely affect adjoining and surrounding properties in any way other than result from the location of any funeral home in any residential zone, the ¹¹ evidence presented by the protestants was, in effect, no evidence at all.” Id. at 79, 632 A.2d 248 (bold added.) We shall now consider the issues of this case—i.e., the evidence presented and the findings of the Board, findings affirmed by the trial court—keeping in mind as we do what we said about special exceptions in People’s Counsel v. Mangione, 85 Md.App. 738, 747-48 , 584 A.2d 1318 (1991): The term “special exception” refers to a “grant by a zoning administrative body pursuant to existing provisions of zoning law and subject to certain guides and standards of special use permitted under provisions of existing zoning law.” Cadem v. Nanna, 243 Md. 536, 543 , 221 A.2d 703 (1966). It is a part of a comprehensive zoning plan, sharing the presumption that it is in the interest of the general welfare and is, therefore valid. It is a use which has been legislatively predetermined to be conditionally compatible with the uses permitted as of right in a particular zone____ In sum, special exception is a “valid zoning mechanism that ... the legislative body has determined can, prima facie, properly be allowed in a specified use district, absent any fact or circumstance in a particular case which would change this presumptive finding.” 85 Md.App. at 747-48 , 584 A.2d 1318 (some emphasis added, footnote and citations omitted).

We also keep in mind the standard of review we reiterated in Mangione, at 750, 584 A.2d 1318 : The general standard of judicial review of most administrative factfinding is: “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached; this need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.” Holbrook, 314 Md. at 218 , 550 A.2d 664 (quoting Supervisor of Assess, v. Ely, 272 Md. 77, 84 , 321 A.2d 166 (1974)). Specifically, we shall review facts and circumstances upon which the Board could have found that the special exception use and location proposed would cause an ¹² adverse effect upon adjoining and surrounding properties unique and different, in kind or degree, than that inherently associated with such a use regardless of its location within the zone. Holbrook, 314 Md. at 217-18 , 550 A.2d 664 . [Footnotes omitted.] We shall first direct our attention to appellants’ second issue. We shall recite the facts as necessary.

II

Were the reasons given by the Board of Appeals for its denial of the application supported by substantial evidence of record? We address the relevant portion of the “Opinion of the Board,” ie., the findings and opinion of the Board. As the special exception here at issue has, by the very reason of provisions for its existence, been predetermined by the legislative, policy-making body of Montgomery County to be generally “beneficial,” Schultz, supra, and presumptively compatible, our discussion of the Board’s opinion will be primarily directed to its findings of adverse effects. In its findings, the Board stated that the majority of its members remain concerned, as they were in 1990, [4] about the impact of the proposed special exception on the environment and on traffic safety.

The Board concludes that the application must be denied because the applicant has not met its burden on these two vital issues. We shall thus limit this portion of our review to those issues, ie., findings the Board states are the basis for its denial of the application, ie., the “environment” and “traffic safety.” We shall attempt to focus on the relationship those two findings have in respect to the standards that apply in cases involving special exceptions, especially to the requirement that such adverse effects be greater, ie., above and ¹³ beyond, the adverse impact generally in other areas where such special exceptions are permitted. We therefore look for evidence, if any, in the record of the adverse effects and impact that could generally be expected as an inherent adverse impact anywhere in the 1-2 Zones in order to determine whether the environmental and traffic safety impact at the subject site is greater. The Board found that there would be adverse impact from runoff from the subject site into a tributary that ultimately drains into Rock Creek, the Potomac River, and the Chesapeake Bay.

There is evidence to support that finding. There was no evidence, however, that other areas in this particular 1-2 industrial corridor do not drain into the same tributary. The exhibits indicate that other properties in the corridor very possibly do. Moreover, there was no evidence as to whether the three other 1-2 Zones located elsewhere in Montgomery County (Pepeo, Montgomery Industrial Park, Brookville) drain into Rock Creek, the Potomac River, or the Chesapeake Bay watershed.

Indeed, we know of no areas in Montgomery County where storm water runoff does not ultimately drain into the Chesapeake Bay. 5 We note again that the exhibits in the record indicate that Rock Creek, through its tributary, Southlawn Creek, drains the entire Southlawn 1-2 industrial corridor, the specific 1-2 Zone at issue here. Appellants asserted below, and here, that the drainage pattern of the industrial uses of the subject site runs from the site, ie., the southeast side of Southlawn Lane, to Southlawn ¹⁴ Creek, and argue that runoff would, therefore, cross South-lawn Lane and find its way into that Creek. This pattern of runoff is due to the presence of a hill behind the subject site and, apparently, behind the other sites as well. It appears from the exhibits that most, if not all, of the existing uses in the 1-2 Zone along the Southlawn Lane industrial corridor to the north of Gude Drive that abut on the lane drain in that direction as well. 6 If so, and it appears so, Southlawn Creek is subject to drainage from the printing plant, the Levine junkyard, the Wilcoxon operation, Montgomery Concrete batching operation, Montgomery Scrap Corporation (apparently a metal recycling facility), F.O. Day Co. (a construction company that appears to process scrap material at this location), Brigham & Day Paving Company, Genstar Stone Products Co., and A.H. Smith Asphalt Plant.

Rockville Fuel and Feed and Beltway Movers also abut on Southlawn. Just behind Beltway Movers is Genstar Asphalt (another asphalt mixing plant) and, between Beltway Movers and Rockville Fuel and Feed, abutting on Southlawn, is another concrete batching plant, which utilizes, among other vehicles, numerous concrete and dump trucks. Additionally, on the westerly side of Southlawn Creek, partially to the rear and across the Creek from the uses we have identified as being generally on the west side of South-lawn Lane, is a former Montgomery County landfill and incinerator operation that appears from the exhibits to be in the Southlawn/Rock Creek drainage basin. Moreover, there is a Montgomery County Sewage Treatment Plant off of Gude Drive, whose rear property line abuts on a wooded area that appears to be contiguous with Southlawn Creek and its drainage basin.

In respect to the environmental issue, the Board concluded that it “cannot approve a use which it believes would run counter to the steps currently being taken to protect and ¹⁵ improve Southlawn Creek. Denial is warranted for this reason alone.” Interestingly, in so finding, the Board ignored the County Environmental Planning Division’s (EPD) findings and recommendations, including the fact that “staff would recommend conditional approval subject to the applicant revising the currently approved ... plan and obtaining approval from MCDEP.” Appellant revised the plan and agreed to meet the criteria and conditions of EPD. We shall further address this “environmental issue,” infra. In discussing traffic safety, the Board of Appeals initially acknowledged that a preliminary plan of subdivision will ultimately be required before actual permits for a solid waste transfer station could issue.

It then acknowledged that the Planning Board was the proper body to evaluate the adequacy of the roads to handle the traffic generated by the use. It noted that § 59-G-1.21(a)(8) of the Montgomery County Code directs the Board of Appeals to condition the grant of a special exception on the Planning Board’s determination of adequacy, ie., to defer to the Planning Board, and acknowledged that it is not its function to determine the adequacy of intersections or other facilities in respect to traffic. “Therefore, this Board will not make a finding about the adequacy of nearby intersections or other elements related to the adequacy of public facilities.” (Emphasis added.) Nevertheless, it immediately did that which it has just said it would not do, by bootstrapping specific traffic safety matters under the general provisions of the Code. The Board then paid lip service to the Schultz requirement of site specific adverse impact by saying: The Board’s findings about traffic safety relate to the unique location of the subject property within the 1-2 Zone. The subject property faces Southlawn Lane, which is a four lane road until just west of the Mossburg site.

Only one other established use is northeast of, ie., farther out, ¹⁶ the Southlawn Lane industrial corridor from Gude Drive, 7 that being the printing plant. This commercial printing plant also has truck loading and off-loading facilities and, from the photos admitted in evidence, parking for scores of vehicles. Further, it is situated on the two-lane portion of the road. It appears that Montgomery Concrete, a batching, mixing, and truck loading plant, across Southlawn Lane, is just south of the subject site.

It fronts Southlawn Lane at the point where the road narrows. The exhibits show numerous heavy trucks at that location. The Levine property is situated on the southeast side of Southlawn Lane, abutting the subject site. It is, apparently, a junkyard—or at least a storage area for junked vehicles.

Approximately 100 or more vehicles, including trucks and trailers, are shown situated on that location on the exhibits admitted in evidence. The Levine property is also on the two-lane section of Southlawn Lane. Next to the Levine property, on the same side of Southlawn Lane as the subject property, is a site identified as the J.W. Wilcoxon property. It is located approximately where South-lawn Lane begins to narrow to less than four lanes.

In the exhibit in evidence, in addition to buildings and cars, there were eleven or twelve trucks of various sizes on the site at the time the pictures were taken, and several vehicle trailers in addition to other equipment the purpose or use of which is unclear. On the west side of Southlawn Lane is another J.W. Wilcoxon facility abutting on “Incinerator Lane,” south of Montgomery Concrete. It contains what appears to be large garages and warehouses. In addition to numerous cars, there are many trucks of various sizes, including tractor-trailer trucks and front-end loaders, and stored timber, pilings and other lumber situated on the site.

These uses are all situated at the two-lane area of Southlawn Lane and/or at, or near, the point of its transformation from four to two lanes. ¹⁷ The Board determined that this particular site is unique because it abuts on what is a two-lane road and because trucks cannot continue past the subject property because of restrictions on a bridge located further up Southlawn Lane. The Board stretches the facts to support the result it desires to achieve. The truck traffic generated by the subject site will not go past the subject site in any event. The traffic generated by the use terminates at the use.

These trucks will not “proceed past” the subject site, so the fact that they cannot proceed past it because of a bridge is irrelevant. Except for the printing plant, the exhibits reflect no present industrial use in this 1-2 Zone past the subject site. As the Board posits, the 1-2 Zone contemplates the intense involvement of heavy trucks. When the legislative body provided for the subject special exception in 1-2 Zones, it necessarily contemplated heavy truck traffic as normally associated with the use.

As we indicate elsewhere, this legislative body knew exactly the type of business or use for which it was providing (as it had been involved in litigation over it) and devised the special exception process, at least partially, to address this specific use. 8 The Board went on to find that the subject use generated a heavy traffic load, and that there would be many left turns from the subject site onto Southlawn Lane across both lanes of traffic because right turns from the subject site would be restricted because of the bridge. What the Board and appellees fail to recognize is that, even though trucks are required to exit left, though their destinations might be to the right, because the bridge forecloses that direction of travel, these vehicles are trucks that, without the bridge limitation, would be approaching the site from the direction of the bridge and making a left turn across the same opposing traffic and the same two lanes into the site. In actuality, left turns across two lanes of traffic are not increased; they would be approxi ¹⁸ mately the same. They are, because of the bridge, unidirectional.

The traffic problem would be roughly the same. The existence of the bridge does not increase those problems. The Board went on to note, not find: In addition, if trucks cannot enter the site because too many trucks are already there, the only place for them to wait is on Southlawn Lane, effectively blocking the eastbound lane. While the petitioner indicated that the site could accommodate all the trucks that he expects to arrive at one time, the Board appreciates the seriousness of the problem if the estimates prove to be faulty.

If trucks block the eastbound lane waiting to enter the site, other eastbound vehicles must either wait behind them, thus backing up traffic on Southlawn Lane, or they must pull out into the westbound lane to go around the truck. On a road as narrow as Southlawn Lane, this may pose a serious traffic hazard. The Board heard testimony that the County plans to widen Southlawn Lane to four lanes in front of and beyond the Mossburg site. The roadway would be relocated to the north, and the existing pavement would become a