People's Counsel v. Mangione

⁷⁴¹ CATHELL, Judge. This is a zoning appeal from the order of the Circuit Court for Baltimore County remanding the case to the Baltimore County Board of Appeals (hereinafter Board). 1 The appellees, Nicholas B. Mangione et ux., requested a special exception for a nursing home and additional variances to permit a parking lot setback and a larger sign than ordinarily permitted. These requests were denied by the zoning commissioner. On appeal to it, the Board, after a hearing de novo, also denied the requests.

Thereafter, the appellees appealed the Board’s decision to the Circuit Court for Baltimore County. Initially, the circuit court affirmed the Board’s decision. Thereafter the appellees filed a Motion to Alter or Amend Judgment. The circuit court granted the appellees’ motion and remanded the case to the Board for an evidentiary hearing and finding, modifying its prior order.

The appellants, People’s Counsel for Baltimore County et al., then appealed to this Court. The Issues Whether the Circuit Court for Baltimore County abused its discretion in remanding the case to the Board; and whether the Board acted arbitrarily and capriciously in denying the appellees’ request for a special exception to ⁷⁴² locate a convalescent home in an area zoned for residential use. 2 The Holding For the reasons that follow, we shall hold that the Circuit Court for Baltimore County abused its discretion in remanding the case to the Board, and that the Board did not act arbitrarily and capriciously in denying the appellees’ request for a special exception to locate a convalescent home in an area zoned for residential use. The Facts The appellees requested a special exception to build a convalescent home on a four-acre parcel inside a single-family detached home area of Lutherville, Baltimore County, which is zoned for residential use (D.R. 5.5). The appellees also requested variances for a reduced parking lot set back and for a larger sign than ordinarily permitted.

The property at issue is located in the part of Lutherville, east of York Road and just north of the Baltimore Beltway York Road exit serving Lutherville-Timonium. The subject property is a full block away from York Road, being parallel to York Road and one block easterly. The York Road corridor in this vicinity is primarily commercial in nature, but the areas to the interior are residential. On July 9, 1987, the zoning commissioner denied an application for a special exception, and the variances were dismissed as a consequence.

The commissioner cited the interior residential location, the comparatively narrow feeder roads, and the limited access to York Road. He found that the proposal would have an unusual adverse impact as compared with other residential zone locations, and that it would be inconsistent with the purposes, spirit, and intent of the zoning scheme. The appellees then appealed to the ⁷⁴³ Board pursuant to the Express Powers Act and the Baltimore County Charter. 3 After a lengthy hearing, the Board affirmed the commissioner’s decision. The Board concluded: In doing so, the Board finds uncommon problems associated with this proposed development at this specific locale.

Of particular concern is the size and scope of the proposal. The projected facility houses 260 [240] beds, contained within two large wings. Additionally, a parking area large enough to house 100 vehicles is planned. Unquestionably, the project as proposed would overwhelm and dominate the surrounding landscape.

This is particularly relevant in considering this site’s location and surrounding community. Although not far from the commercial corridor of York Road, the proposal represents the deepest intrusion into the residential community of Dulaney Valley. The sheer size of the project from a building footprint standpoint would clearly exacerbate an already worsening storm water runoff situation within this community. Further, the Board remains unconvinced that the traffic generated by the home’s employees and visitors would not overtax an interior community road system designed to accommodate residential traffic.

At its essence, the Board finds as fact that the Petitioner has not met his burden that the proposed use is not detrimental to the health, safety or general welfare of the locality as provided in B.C.Z.R. 502.1. Upon appellees’ appeal, the circuit court, applying the “substantial evidence” test, initially affirmed the Board’s decision. After the court’s opinion, the appellees filed a Motion to Alter or Amend Judgment. The court granted the appellees’ motion and modified its earlier ruling for the following reason: “unrecognized disparity in the pleadings and unresolved question as to what Appellant [appellee] is seeking in terms of the size of the nursing home.” Then ⁷⁴⁴ the court ordered that the case be remanded to the Board for an evidentiary hearing and finding in accordance with its opinion.

I Abuse of Discretion: The Remand Judge Bishop, writing for this Court in. Alston v. Alston, 85 Md.App. 176 , 582 A.2d 574 (1990), restated the standard of review where an abuse of discretion is alleged: While the “clearly erroneous” standard applies to the court’s findings of fact, the “abuse of discretion” standard applies to the court’s determinations of legal questions or conclusions of law based upon its findings of fact. We will not interfere with such determinations without a clear showing of abuse of that discretion. See Davis v. Davis, 280 Md. 119, 124-25 [ 372 A.2d 231 ] (1977). [4] We hold that the circuit court’s modification and remand to the Board was not warranted.

When the court said “unrecognized disparity in the pleadings and unresolved question^] as to what Appellant [appellee] is seeking in terms of the size of the nursing home,” it meant the size of the convalescent home, i.e., 240-bed or 120-bed. The appellees originally had petitioned for a 240-bed facility. Throughout the proceedings before the zoning commissioner and the Board, the project at issue was for a 240-bed facility. After the Board had rendered its decision affirming the commissioner in rejecting a special exception for a 240-bed complex and, after the circuit court’s initial affirmance, the appellees asked the circuit court to consider a 120-bed facility.

Our review of the record does not reflect that a petition for a 120-bed facility was ever filed with the administrative zoning agency. The parties have inexplicably failed to include a copy of the original application for a special ⁷⁴⁵ exception as a part of the extract. Neither did they include a copy of the appellee’s Petition of Appeal to the circuit court in that extract. They have included in the extract a copy of appellee’s Motion to Alter or Amend which appears to state that their petition for special exception had been for “a 120-bed nursing home ...” and indicates that the Board had failed to act on the 120-bed request.

While we do not normally go beyond the extract and examine the record, we chose to do so in this case in light of the apparent inconsistency between what had occurred at the agency and what appellee alleged had occurred in his Motion to Alter or Amend. We first note that the site plans that are included in the extract as being filed with the application (that is missing), refer to a 240-bed facility. The appellee’s Petition of Appeal to the circuit court states that “the application and plat projected a facility housing 240 beds contained within two wings.” A petition of appeal to the circuit court of the decision of an administrative agency is a pleading. Accordingly, appellee was bound by the admission of his pleading.

In footnote 4 in Thomas v. Solis, 263 Md. 536, 544 , 283 A.2d 777 (1971), the Court of Appeals briefly discussed such admissions: The very signing of the petition in the instant case would satisfy provision (2) of Article 93, Sec. 1-208. See Matthews v. Kernewood, Inc., 184 Md. 297, 306 , 40 A.2d 522 (1945); and Parker v. Tilghman V. Morgan, Inc., 170 Md. 7, 25 , 183 A. 224 (1936) for cases which hold that parties are generally bound by allegations or admissions in their pleadings. In Matthews v. Kernewood, Inc., 184 Md. 297, 306 , 40 A.2d 522 (1944), the Court of Appeals held that where an allegation of a violation of a restriction had been made in a pleading, the pleader could not thereafter allege that the violation had not occurred. In discussing admissions in ⁷⁴⁶ appellate briefs, that Court in Van Royen v. Lacey, 266 Md. 649 , 296 A.2d 426 (1972), stated: If the appellees honestly believed that a tenancy by the entireties interest were [sic] involved here it is strange they did not raise that contention earlier____ Be that as it may, estoppel by admission or by pleading has long been recognized in this State____ In [Edes v. Garey, 46 Md. 24, 41 (1887)], the Court of Exchequer in Cave v. Mills, 7 H. & W. 927, was quoted as saying, “A man shall not be allowed to blow hot and cold, to claim at one time and deny at another.” Van Royen, at 651-52, 296 A.2d 426 .

(Citations omitted.) By admitting in his original petition to the circuit court that his application was for 240 beds, appellee was thereafter prohibited from asserting, as he misleadingly did in his Motion to Alter and Amend, that the application was for 120 beds. We also note that the Zoning Administrator’s denial of the application described it as being for “240 beds and three stories” composed of 120 beds for domiciliary care ... and 116 beds for nursing patients. 5 In upholding the Commissioner, the Board of Appeals stated “the Petitioner seeks approval to construct a 240-bed nursing home____” Appellee, in his opening argument to the circuit court, stated, “The plat that we submitted showed a layout of two buildings ... and showed them to be 240 beds total. Now, we were not before the Zoning Commissioner to obtain permission to build 240 beds. We were only before the Zoning Commissioner to get zoning for a convalescent home.” 6 ⁷⁴⁷ The record reflects that at no time was an application for a 120-bed facility ever filed with the administrative agency.

Nor is there any record that the original 240-bed application was downsized by proper amendment. There was, to be sure, testimony that a 120-bed facility would be less objectionable than a 240-bed facility and some indications from that testimony that appellee might accede to a lesser facility, but our review of the record indicates very little more than speculation on that point and nothing that arises to a recognizable request for downsize modification. Furthermore, the Board made no ruling on the feasability of a 120-bed facility. As we shall discuss in this opinion, the circuit court’s scope of review is limited in nature — to determine whether the Board’s decision was based on “substantial evidence” — which it correctly determined the first time.

When it granted the motion to alter and amend, the trial court abused its discretion. II A. The Law of Special Exceptions 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.” 7 Cadem v. Nanna, 243 Md. 536, 543 , 221 A.2d 703 (1966). It is a part of a comprehensive zoning ⁷⁴⁸ plan, sharing the presumption that it is in the interest of the general welfare and is, therefore valid. Rockville Fuel and Feed Co. v. Board of Appeals of the City of Gaithersburg, 257 Md. 183 , 262 A.2d 499 (1970).

It is a use which has been legislatively predetermined to be conditionally compatible with the uses permitted as of right in a particular zone, the condition being that a zoning body must, in each case, decide under specified statutory standards whether presumptive compatibility exists. Creswell v. Baltimore Aviation Service, Inc., 257 Md. 712 , 264 A.2d 838 (1970). In sum, special exception is a “valid zoning mechanism that delegates to an administrative board a limited authority to permit enumerated uses which 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.” Rockville Fuel, 257 Md. at 188 , 262 A.2d 499 . (Citing Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287 , 96 A.2d 261 (1953)).

Most recently, the Court of Appeals, in Board of County Comm’rs v. Holbrook, 314 Md. 210 , 550