Richmarr Holly Hills, Inc. v. American PCS, L.P.

HARRELL, Judge. Richmarr Holly Hills, Inc. (Richmarr), appellant, appeals from a decision of the Circuit Court for Frederick County (Stepler, J.) which affirmed the grant of a special exception by the Frederick County Board of Appeals (the Board). The special exception gave permission to American PCS, L.P. (APC) to erect and operate a 250 foot tall communications tower, with attendant equipment storage structures, on agriculturally-zoned land leased by APC from the American Veterans Association Frederick Post #2, Inc. (Amvets).

Richmarr poses one question for our resolution in this appeal: Did the circuit court correctly uphold the Board’s decision that the special exception use requested by APC was in harmony with the purpose and intent of the New Market Region Comprehensive Plan? We respond in the affirmative and, thus, shall affirm the judgment. FACTUAL AND REGULATORY CONTEXT On 21 July 1995, APC, through an agent, filed with the Board a petition for special exception to permit the erection and operation of a 250 foot tall “self-supporting lattice [metal] ⁶¹⁵ tower” as a base station for its wireless communications services network (including mobile and portable telephones, data and message services, and advanced paging services). The tower would have installed on it “up to nine (9) panel antennas (each approximately 54” long by 10” wide by 12” deep) and two (2) microwave dishes (each 2’ in diameter).” In addition, two ground-level equipment storage cabinets (each “approximately 6’ high by 5’ long by 2’ deep”) were proposed, along with the prospect of a future equipment shelter, at the tower’s base.

Coaxial antenna cables would connect the equipment cabinets to the antennas. Lighting, as required by the Federal Aviation Administration, would be installed on the tower to alert aircraft to its presence. No personnel would be stationed on-site, and only periodic visits of one or two times per month by maintenance/repair staff were projected. The hours of operation were twenty-four hours a day, seven days a week.

A six to ten foot high gated, chain link fence was proposed to secure the physical location of the structures. 1 As noted supra, the site of the proposed use was to be leased by APC from the Amvets. 2 The total Amvets property comprised 26.37 ± acres of land zoned A-Agricultural. APC’s proposed structures were to be sited on a fifty foot by fifty foot area located in the far southeasterly corner of the property (the property is roughly in the shape of a right-angled triangle), adjacent to the existing Interstate Highway 70 (I-70) ramp over Maryland Route 144 (Rte.144) (Exit 59 on I- ⁶¹⁶ 70). 3 Elsewhere on the property, the Amvets had constructed a forty foot by one hundred foot pavilion, restrooms, horseshoe pits, and playground, which facilities it used or rented for bull roasts, crab feasts, picnics, family and class reunions, outdoor meetings, and other recreational uses. These activities and structures were described as being located on a portion of the property which was “flat ground unsuitable for the cultivation of hay” and “far removed” from the proposed tower location which was to be located on “the grassy farming area which rises to a steep incline.” As to the visibility of the proposed tower from surrounding properties, APC asserted in its written Statement of Justification submitted with the special exception petition that [t]here will be minimal adverse aesthetic impact in that the tower will be located in a large farm field where the natural contours of the land and the natural tree buffers south, east and west of the proposed site help reduce visual impact to the surrounding area. 1-70 is located to the north and there are some existing tree buffer and large embankments to conceal a large portion of the tower from 1-70 traffic. To the east, there is a tree buffer and natural contours for a buffer.

APC will plant small trees around the exterior of the site to offer additional screening if requested. Further, APC described the neighborhood surrounding the Amvets’ property as follows: The neighborhood to be considered in this application generally consists of agricultural and forest properties with residences on large tracts of land. Interstate 70 borders the property to the north; Route. 144 to the south. North: Agricultural and Some Residential Properties.

South: Agricultural and Some Residential Properties. East: Large Agricultural Tract, Residential Properties and 1-70. West: Agricultural and Some Residential Properties. ⁶¹⁷ Finally, and of ultimately greatest consequence (whether APC foresaw it so at the time or not), APC aerially asserted that the proposed special exception “will be in harmony with the general purpose and intent of the adopted and approved Master Plan for the New Market region in that adjoining properties to the immediate northeast of our site will permit similar uses by Special Exception ... and meets ... the New Market Region Plan zoning requirements.” At the time APC filed its petition for special exception (and at all pertinent times thereafter for purposes of this litigation), the Frederick County Code, at § 1-19-289, permitted a “communications tower” in an Agricultural Zoning District only upon the grant of a special exception. 4 The Zoning Ordinance provided generally for special exceptions, in pertinent part, as follows: § 1-19-48. Special exceptions.

(b) A grant of a special exception is basically a matter of development policy, rather than an appeal based on administrative error or on hardship in a particular case. The board of appeals should consider the relation of the proposed use to the existing and future development patterns. A special exception shall be granted when the board finds that, (1) The proposed use is in harmony with[ 5 ] the purpose and intent of the comprehensive development plan and of this chapter. * * * * * * ⁶¹⁸ (emphasis supplied). Although the Zoning Ordinance contained other general requirements, as well as specific requirements, relative to special exceptions for a communication tower, this appeal presents no quarrel with the record of the instant case as to its containing evidence meeting those requirements.

It is only with regard to § l-19-48(b)(l) that we are called upon to provide judicial review of the grant of the special exception in this case. The comprehensive development plan 6 of moment to the case sub judice was last visited in 1990 by the Board of County Commissioners of Frederick County. The 1990 Frederick County Comprehensive Plan replaced a portion of its 1984 predecessor and was expressed in two volumes. Volume I was the 1990 update of the 1984 Countywide Plan.

Volume II, containing the more specific land use plans for the eight planning regions into which the County was divided, remained as it had been approved in 1984 when the Board of County Commissioners approved the 1990 version of Volume I. The 1990 Volume I (as did its predecessor) contemplated that the Volume II Regional Plans would be updated at a rate of two regions every four years. The regional plan for the New Market area, within which the Amvets property was located, was updated and approved ⁶¹⁹ by the Board of County Commissioners in 1993. Concurrent with the 1993 approval of the New Market Regional Plan, the Board of County Commissioners approved a new zoning map (comprehensive rezoning) for that region which retained the Amvets property in an Agricultural Zoning District, despite the fact that both the 1990 Countywide Plan and the 1993 New Market Regional Plan envisioned the property as someday being devoted to office-research or limited manufacturing uses in the ORI Zoning District. 7 The explanation for the difference between the recommendations of the 1990 Countywide Plan and 1993 New Market Regional Plan on the one hand and the 1993 comprehensive rezoning action on the other can be appreciated to some extent by the following language found in Volume I of the 1990 Countywide Plan at Pages IV-20 and 21: THE TIMING OF DEVELOPMENT While the update of the Regional land use maps will identify a pattern of development for a 20 year time frame, they will not directly address how quickly or slowly that development may take place. Left unregulated by local government, the rate of development is the result of many factors which are difficult to predict for any individual area.

Nevertheless, it is an objective of this Plan not only to recommend the bcation of new development, but when that development may most appropriately take place. The location of development will be accomplished by identifying ⁶²⁰ future land uses on a 20 year land use plan map, while the timing of development will be recommended through a 5 year zoning map. In other words, the long range plan will be implemented through limited zoning changes in each Region based on anticipated development needs over the following five years. Areas which are shown for development in the long range but which are not anticipated to be developed or are not appropriate for zoning over the 5 year time frame will be zoned Agricultural.

The anticipated development needs for the five year zoning time frame will take into consideration the development potential found in the incorporated municipalities as well as in the County. The following factors will be considered in developing the recommended 5 year zoning map: 1. County employment projections. 2. The Regional housing projections. 3.

The status of water and sewerage facilities. 4. The present condition of roads and programmed improvements to the highway system. 5. The current capacity of schools and programmed school building projects. 6. The current availability of other government facilities and services such as parks and protective services. 7.

The current zoning patterns. ... [Commercial and industrial [land uses], are not appropriate to consider utilizing a criteria of population and household projections. Future acreage needs for these types of uses must be based on a combination of employment projections, past industrial absorption trends and policies on industrial and office development. While the County has not to date undertaken a comprehensive industrial land use study, employment projections for the County have been proposed by the Washington Council of Governments. (Emphasis in original). ⁶²¹ Thus, although the record in the instant case is not blessed with any portions of the record (such as it may have been) from the 1993 adoption of the comprehensive zoning map or the New Market Regional Plan that would more specifically explain which, if less than all, of the foregoing factors caused the Board of County Commissioners to retain the Amvets property in an Agricultural Zone and not move it into the ORI Zoning District at that time, we assume the reason or reasons lay somewhere within the foregoing explanation of the influencing factors.

The linchpin for what was to become the focus of the instant controversy is the fact that a communications tower is not a use permitted in the ORI Zone, under any circumstances, in the Zoning Ordinance. Thus, the principal question for APC’s petition became whether, although its use of the Amvets site was permitted by special exception under the existing Agricultural Zone enjoyed by the property, could it be said to be in harmony with the intent and purpose of the comprehensive development plan (the 1990 Countywide Plan and the 1993 New Market Regional Plan) that recommended a different zone for the property, which zone by definition did not permit the proposed use? Thus were lines drawn and sides taken. The Board scheduled its hearing on APC’s petition for 22 August 1995. 8 The hearing generated a substantial amount of debate, but little of it was about whether the proposed use was in harmony with the purpose and intent of the comprehensive development plan.

APC’s representative 9 explained, with the ⁶²² use of visual aids, how the instant proposal would form a part of its existing and future network (both within and without Frederick County) of towers, poles, and the like in furtherance of the development of its “new technology” in wireless communications. The representative also explained how different users “piggyback” on each other’s towers and poles, presumably to avoid duplication of these generally unappealing and substantial structures. 10 Otherwise, he did not stray much in APC’s case-in-chief beyond the substance of the information provided at the time of filing the petition, although he did indicate in passing his awareness of the “Industrial Research” recommendation of the “future Comprehensive Plan.” Representatives of the Amvets testified next in support of the petition, candidly acknowledging that they were motivated by the organization standing to benefit from the lease income opportunities as a means to further the group’s benevolent programs. The final “witness” in the applicant’s case-in-chief at the 22 August hearing was its attorney. 11 She, at least, ⁶²³ paid some attention on behalf of APC to the relationship of the proposed use and the comprehensive plan. In pertinent and relevant part, she stated: I would just like to address some of the specific exception, in particular, the requirement that a proposed use be in harmony with the Comprehensive Plan for an area.

As I understand it, under the New Market Region Comprehensive Plan, this land is earmarked to be used as either some sort of office research or possibly light industrial, employment center land. I would proffer to the Board that a communications tower at that site would be completely consistent with that sort of land use. I’ve represented A.P.C. in a number of jurisdictions, Baltimore County, Baltimore City, Howard County and Anne Arundel County among them, and we have placed monopole towers 12 in office and research parks where necessary, particularly because they are less likely to be intrusive in those areas than in residential or highly populated areas. It’s a type of use that people are not likely to notice once it’s up and that will service an office or a research park particularly well because of the volume of traffic coming to and from that park.

It certainly would be in harmony with that kind of use. The opposition case then commenced. The first speaker was an attorney representing an adjacent property owner. 13 He made this pertinent point. ... [W]e heard testimony earlier that this little triangle [Amvets’ property], as well as the property across the street at Meadow Ridge Road, are ... also comprehensively planned for either General Commercial, just a little bit, but mostly office research, industrial uses. Now, office research, industrial uses, if you refer to your Zoning Ordinance, show that — are placed at interchange areas because ⁶²⁴ interchange areas are gateways to the city of Frederick and present a visual impact for the traveling public.

If you read the Zoning Ordinance, it says that office research and limited manufacturing uses are to be held in office research industrial and high visibility locations along major highways. Development in this district, and I’ll emphasize, should be characterized by an absence of nuisance in a clean and aesthetically attractive setting. I submit to you that [a] two hundred and fifty (250’) foot tower with multiple users, which the current Zoning Ordinance requires in special exceptions to require them to negotiate in good faith with additional users, will be not aesthetically pleasing but, on the contrary, an eyesore to the traveling public, an eyesore to the entryway to Frederick ... For a long time, there’s been discussions between the City of Frederick and Frederick County about protecting the gateways to Frederick City.

There’s annexation agreements between the municipalities in order to protect these — these entranceways. This will severely affect those agreements. Just because an applicant meets the specific requirements of a special exception doesn’t mean that a special exception needs to be granted. There’s also the general requirements ...

This neighborhood is developing into an area of residences with a — with an area of Office Research Industrial. And, as I mentioned before, the requirements for Office Research Industrial are completely at odds with this project. What I’m saying here is not only is it obnoxious because it’s a tower but it’s obnoxious to the Comprehensive Plan and in the way that the — the Plan envisioned the use of O.R.I. property and that that nestled up against residentially densely populated or to be densely populated property makes it less appropriate here than it would be in property that is, has been, and will always be agricultural in nature or conservation in nature. ⁶²⁵ The next opposition witness was Richmarr’s attorney. Richmarr was in the process of developing an approved residential community, the Fairways at Holly Hills (comprising 231 single family homes), situated somewhere “southeast of where this proposed tower is to be located.” Asserting that his client had “only recently” become aware of the petition, the attorney intimated that, subject to further review, there would be at least an adverse visual impact upon Richmarr’s development (and the existing and future residents thereof) from the proposed use.

He asked further that the record be kept open or the hearing continued for thirty days. He did not at this time mention, nor adopt by reference, the preceding witness’s arguments regarding the comprehensive development plan. The remaining two opposition witnesses spoke to safety, radio interference, visual impacts on surrounding properties, and adverse property value impacts. 14 The rebuttal from APC’s representative was confined to responses to the opposition’s technical arguments. No substantive response, however, was directed to the comprehensive development plan issue.

As the Board members began to discuss the petition among themselves, it was recognized that the major issue was whether the proposed use was in harmony with the purpose and intent of the comprehensive development plan. The Zoning Administrator for Frederick County offered his opinion, in response to a question from the Board Chair, that the earliest the Amvets property could be considered for a rezoning to the ORI Zoning District would be 1998, the next five year cycle following the 1993 concurrent adoption of the New Market Regional Plan and its comprehensive zoning map. The Chair ruminated aloud that multiple “gateway to Frederick” alternatives were proposed in the regional plan and that he wasn’t ⁶²⁶ certain that the Amvets property would be a particularly good place to develop as a gateway or that allowing a communications tower there would discourage necessarily it being developed as a gateway-type project. Another Board member spoke in favor of the tower not being an impediment to the recommendation of the comprehensive development plan.

A motion to approve the petition, with conditions (including site plan review and approval), was adopted unanimously by the three member Board. At the eleventh hour (and perhaps beyond), three of the opponents filed written requests for reconsideration of the Board’s 22 August 1995 oral approval. Only in Richmarr’s request, however, was the issue of comprehensive development plan harmony raised. The Board convened a hearing on the reconsideration requests on 24 October 1995. 15 The first attorney speaking in opposition to the special exception essentially argued that the grant thereof diminished the likelihood that the Amvets property would ever be developed in the ORI Zoning District as a “gateway to Frederick” because a communications tower is by definition not contemplated in the ORI Zone.

A fortiori, such a tower, he reasoned, was contrary to the purpose and intent of the comprehensive plan. Richmarr’s counsel spoke next. In pertinent part, his explanation for why the special exception should be denied was: I say that because of the stated goals and purposes in our Comprehensive Plan. If you look, and I’m reading now from Volume I, duly adopted June 1990, Countywide Comprehensive Plan.

On page 2-2, it states the zoning proposals found in the regional plans will be based upon projections of land use and facility needs for the next five (5) years ... plans ⁶²⁷ for twenty (20) years. And that’s what we have on this particular property. We have the “ORI,” the Office Research designation, that shows that sometime in the next twenty (20) years, this is to be used for Office Research development. And then what is done by the County Commissioners at each such update is they zone for what they feel to be the need, the demand for facilities, demand for development property for the next five (5) years.

And when you have a discrepancy between what is in your Comprehensive Plan for the ultimate development and what they show on the zoning map, what they tell you is they’re going to zone it Agricultural. And I would like to refer you now to page 4-20 of the June, 1990 Countywide Comprehensive Plan. Under the heading “Timing of Development,” it states, in part, the location of development will be accomplished by identifying future land uses on a twenty (20) year land use plan while the timing of development will be recommended through a five (5) year zoning map. Areas which are shown for development in the long range, but which are not anticipated to be developed or are not appropriate for zoning over the five (5) year time frame will be zoned Agricultural ... if you compare our Comprehensive Plan maps with our zoning maps, you will see that we have areas designated for development, some of which are now zoned for that development, and the rest of which are now zoned Agricultural.

And what that means is we have two (2) types of agriculturally zoned land in Frederick County. We have agriculturally zoned land, which is also planned to be Agricultural for the next twenty (20) years and beyond. And in that type of property, then we’d need to look at what is designated for Agricultural use and we approve what is to be approved in Agricultural uses. But then we have this other ground, which is zoned Agricultural as a holding zone for a future other development use, which is what we have here.

And I submit to you when you have that type of agricultural land, you have to look at the Comprehensive Plan and determine if what’s being proposed by special exception is consistent with what is going to be done with ⁶²⁸ that property over the next twenty (20) years. And I would maintain to you that to do otherwise would be putting this Board in, I believe, a precarious position of knowingly creating a future nonconforming use. I clearly think that this is the rare case where you’ve got to look beyond the zoning classification to the Comprehensive Plan because our Zoning Ordinance sends you right there and you look at the purpose and intent of our Comprehensive Plan, not just the map, but you read the words and you look at it and you understand why we zone some property Agricultural, even though we don’t intend for it to be Agricultural forever, but we zone it that way to hold it until the time is right to zone it that way we want it to be for eternity, I think you’ve got — you’ve got to go where our Ordinance sends you and I think to — to put a use in there that’s opposed — that is in conflict with the Comprehensive Plan when we know it’s going to be changed at some point, at least according to our Plan, I think you’re creating a nonconforming use and I don’t think this Board should knowingly create a nonconforming use. Again, I think it’s a rare case.

I don’t think you see many like this. But I certainly believe in this instance, the Comprehensive Plan tell us that it should not go here, it should move to the other side of the road or somewhere where we’ve got Agricultural land planned to remain Agricultural land. Thereafter, in colloquies with various Board members, Richmarr’s attorney conceded no one could predict when, if ever, the Board of County Commissioners would, in any subsequent five (5) year cycle update of the New Market regional plan and zoning map, retain the ORI Zone recommendation for the Amvets’ property or actually zone it. He conceived of those watershed decisional points, however, as being determined by need or demand, 16 presumably as seen through the eyes of ⁶²⁹ whoever occupied the County Commissioners’ chairs at the time.

He conceded that this objective could be affected by the initiative of the Amvets (or a contract purchaser) 17 to seek rezoning, although the property could be rezoned without the owner’s consent as part of a comprehensive rezoning. 18 When APC’s attorney responded, she pointed-out that her client was required to remove the tower and storage structures at the end of the lease, 20 years if it went full term. Thus, she argued that the tower would be no impediment to rezoning and developing the property in the ORI Zoning District at some point inclusive of the planning horizon of the comprehensive development plan. Her further argument that the existence of the tower, under the approved special exception, would not impede the development of the balance of the Amvets property in the ORI Zone, was as follows: So let’s hypothetically suppose that some day the property is rezoned and the Amvets convey it and somebody does want to put an office research park there. Well, a communications tower would be perfectly consistent with that use.

A communications tower would serve the very people in the facility, the very people going to and from the facility, and would be necessary to the employment center that is proposed under the Comprehensive Master Plan. Zoning ordinances are subject to text amendments. This Zoning Ordinance, as it’s written right now, treats communications towers like radio and television towers. Now, wireless communications is a fairly new trend and the need for structures to support the antennas is a fairly new trend and I suspect that either I or one of my counterparts represent ⁶³⁰ ing one of the wireless companies is going to propose a comprehensive text amendment to treat these towers the way they ought to be treated and not like radio and television towers because these are far smaller and far less intrusive structures. * * * * * * I maintain, as I did at the initial hearing on this, that, in fact, it would, that many towers have been placed in “ORI” or office research type developments in many other jurisdictions and that many jurisdictions direct the communication providers to place their towers there because they are alongside roads where they’re not going to be close to residential communities.

They are places where people come and go to work and so they expect there to be adequate public facilities to provide for all of their needs at work. And they are not places where people have the expectation of a clear vista that they have in their homes. She also emphasized that the Board need only conclude whether the use was in harmony with the intent and purpose of the plan(s), not whether some mandate in the plan(s) dictated a conforming decision. In support of this “master plan as guide” view, APC’s counsel relied on a number of reported Maryland appellate opinions, virtually all of which stated this principle in a rezoning context. 19 In rebuttal, Richmarr’s attorney introduced a new argument in support of his position: [something I wanted to get before you during [break in tape] but I ran out of time, this is not the first time that this ⁶³¹ issue has been before this Board.

In 1988, Case B-88-104, application of Barbara Marmet, application was made for a two hundred and seventy-five (275’) foot communications tower, which is twenty-five (25’) — I think just twenty-five (25’) feet more than what’s proposed here. Same thing, same issue — property was zoned Agricultural but shown on the Comprehensive Plan for Residential. The tower is not permitted in a Residential use, even though it’s permitted in Agricultural use. The Board, in its findings of fact, denied the request and in item “K,” stated that they found as a fact that the proposed use would not be in harmony with the purpose and intent of the Comprehensive Plan as the plan for the further development of the area is Low Density Residential and that communication towers are not allowed in Residential Zones.

It was exactly the same issue, the only difference being that here, it was Residential, in our case, it’s “ORI.” But it’s an identical issue because the tower is not permitted either in a Residential or “ORI,” so I think that if you’re going to talk about whether the Comprehensive Plan is a guide, I believe it is. It guides you; it guides everyone. But I think prior cases of this Board and prior interpretations of identical issues for this Board also have to guide this Board’s decision. This has been decided before. 20 Confronted with the more elaborative arguments adduced at the 24 October hearing, one of the Board members changed his mind about approving the petition.

He explained: I am concerned that we are not looking at what the Comprehensive Plan is telling us to do. Last month, we had up on Braddock Heights an area that is obviously denoted for reserve for Residential and residential uses only. We approved a tower. We said the reason was, the ⁶³² out was that the land was zoned Agricultural and was shown on the Comprehensive Plan to be Conservation, so, therefore, it’s allowed, so therefore, we got to do it.

Even though it’s obvious from previous Comprehensive Plans that that area is to be totally residential, is not supposed to have any of this stuff. In this particular case, you have the same thing. It is obvious that the area is to be residential with some Commercial and “ORI” at the intersection of these two (2) main roads. I think that the Zoning Ordinance is clear — we’re not supposed to put things like this in these areas.

One of his colleagues expressed renewed conviction about the correctness of the Board’s 22 August decision, explaining: I think it was a good decision and I think that [Richmarr’s attorney] has presented a very good argument but I think that we are — we have taken this application by the five (5) year plan, by the five (5) year zoning map, and if everything were such as [Richmarr’s attorney] said, then maybe we would take the application by the Comprehensive Plan designation and we do not do that now. I think that this is in harmony with the intent, with the spirit of the Comprehensive Plan. I think that all of our regulations — our land use regulations basically say we are going to have growth but we want to have controlled growth and I think that — I think [Richmarr’s attorney’s] letter states that this island or this small piece of land was sandwiched between two (2) major highways. This highway has gone from Baltimore and Washington, D.C. across the continental United States to Los Angeles, California ever since I can remember and as far back as the cowboys and Indians, the telephone poles and the transportation lines went together, so I think that this is a very appropriate location for this tower.

I’d much rather see it here than in the middle of some prime agricultural land. I wouldn’t want to see it beside El Capitan in Yosemite National Park or — or some location like [that]. I think this is an appropriate location and I think that these people with this request have been lead to believe, through the presumption of validity with our special exception use, ⁶³³ that they could put these towers along these lines and I think all of them, basically, are along that route and I think that if we don’t want towers along these locations and in these zones, I think we need to do — take another route to change that, either a text amendment or Comprehensive Plan update, but I think we need to follow through with what we’ve done to this point and I would make a motion to leave our decision stand from the last time. The Chair shared this sentiment and, in stating why he did so, distinguished the instant case from the Marmet case alluded to by Richmarr in its rebuttal.

He stated: [T]he point was brought up that we had another case that was like it, I don’t think the circumstances are exactly alike because we’re not talking about a piece of land that’s stuck out in the middle of an island with two (2) major roads going by it and all this type of thing. We’re not talking about the same exact situation. There are similar parts to it, as far as the zoning part of it, I’ll agree with that, but I don’t think it’s — I don’t think it is exactly the same situation and I think we have — we have an option to view it this way and sometimes, the burden goes with us, sometimes it doesn’t. Thus, by a two-one vote, the Board reaffirmed its 22 August approval of the special exception petition.

Thereafter, written findings and a decision memorializing the approval were adopted by the Board on 28 November 1995. Relevant findings included: A. The land in question is zoned Agricultural and consists of 26.87 acres and the Comprehensive Plan map designates this site for Office Research Industrial. B. The applicant proposes to construct a 250 ft. tall communications tower facility and accessory support structures within a 50’ x 50’ leased area. $ if: ♦ * H. The Board finds that the proposed use is in harmony with the general purpose and intent of the Comprehensive Plan because the land is designated on the current zoning map as an Agricultural Zone; the current owners, the ⁶³⁴ AMVETS, have indicated that the present agricultural use will remain indefinitely on the property; and the property is located at the intersection of two major highways, and that the staff and Board has regularly in the vast majority of special exceptions interpreted the present zoning indicates the purpose and intent of the Comprehensive Plan. I. The Board finds the nature and intensity of the operation in connection with the size of the site in relation to it are such that the proposed use would be in harmony with the appropriate and orderly development of the neighborhood upon compliance with conditions of approval set forth by the Board as the facility is located within an Agricultural zoned area and the Comprehensive Plan designates the areas to the south as Conservation, the east is residential, commercial and industrial.

Richmarr alone filed a petition for judicial review with the circuit court. After considering the parties’ 21 written memoranda and oral arguments, Judge Stepler filed on 12 August 1996 a well reasoned written Opinion and Order affirming the Board’s decision. In reaching this conclusion, the judge reasoned, in pertinent part, as follows: As is noted by the BOCC [Board of County Commissioners] in their answering Memorandum of Law, the crux of this case surrounds interpretation of the word “harmony.” It is noteworthy that the BOCC, in its answering Memorandum of Law filed on April 19, 1996, stated that, had the Frederick County Code required that the proposed special exception use “conform to the comprehensive development plan, the Board of Appeals would have been required to deny this special exception use, since the comprehensive plan calls for office research industrial.” ****** ⁶³⁵ Richmarr would have this Court equate “conformity” with “harmony,” as Richmarr speaks of “harmony” in terms of compliance. This Court first notes that neither [sic] of the parties has provided any authority of how “harmony” should be interpreted.

As is stated in the case of Schultz v. Pritts, the administrative board is given the duty of judging whether the use “in the particular case is in harmony with the general purpose and intent of the plan.” Schultz v. Pritts, 291 Md. 1, 11 , 432 A.2d 1319 (1981). “If the evidence makes the question of harm or disturbance or the question of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the board to decide.” Id. Therefore, this Court must defer to the Board’s expertise in defining what uses are in “harmony” with the purpose and intent of the comprehensive plan. Thus, this Court cannot find that the Board’s decision is clearly erroneous. Richmarr cannot provide this Court with a common law or statutory definition of “harmony” that would exclude the Board’s decision in this situation.

The Board is vested with the duty to determine whether certain uses are in harmony with the comprehensive plan. Although an exact definition of harmony has never been determined, it is clear that strict compliance with every aspect of the comprehensive plan is not necessary. This Court finds that the Board’s decision is supported by substantial evidence in the record. DISCUSSION Background In pertinent governmental land use decisions made in Maryland, save those concerning individual or piecemeal ⁶³⁶ petitions for rezoning, 22 the weight to be accorded a master plan or comprehensive plan recommendation depends upon the language of the statute, ordinance, or regulation establishing the standards 23 pursuant to which the decision is to be made.

The specific types of governmental land use decisions clearly embraced by that principle are rezonings, special exceptions, and subdivision approvals. In such cases, we look first to the words of the applicable statute, ordinance, or regulation to divine what the enabler intended the weight to be accorded by the ultimate decision-maker to a recommendation of the plan. This becomes largely an exercise in statutory interpretation, with its attendant principles of construction. Secondarily, because the field of inquiry involves the relatively complex area of land use, our predecessors have often looked to the nature and purpose of land use and master planning in order to validate and measure any legal conclusion reached regarding the interpretation of the applicable statute, ordinance, or regulation.

To appreciate the role played by master plans in the rezoning process, it is helpful to isolate and consider separately the two processes by which rezoning may occur (piecemeal or individual application by a property owner or its agent and comprehensive zoning map adoption, the former being a quasi-judicial process initiated by private interests leading to a legislative decision, while the latter is quintessentially a legislative function throughout), and also the nature of the zone sought (Euclidean versus floating zone). Piecemeal Or Individual Application For Rezoning An individual, or piecemeal, application for a Euclidean (see Euclid v. Ambler, 272 U.S. 365 , 47 S.Ct. 114 , 71 L.Ed. 303 (1926)) zoning category in Maryland is dependent for any ⁶³⁷ hope of success on the applicant satisfying the ultimate decision-maker of the existence of substantial change in the neighborhood of the subject property having occurred since the time of adoption of the most recent comprehensive zoning map, or a mistake having been made in that comprehensive zoning map adoption affecting the zone in which the subject property was placed. Because a master plan does not in and of itself establish either a change or mistake relative to the adoption of the comprehensive zoning map, the master plan recommendation as to the subject property, standing alone, can never satisfy the change-mistake requirement. Thus, the plan recommendation, though it will be a factor generally to be considered, serves merely as a guide or non-binding piece of evidence in the applicant’s case. 24 A slightly different role is normally accorded to a master plan recommendation for a particular zoning category or land use type where the zone sought in an individual application is a floating, versus Euclidean, zone.

The change-mistake requirement is inapplicable to floating zone applications. This is due to the nature of floating zones. Floating zones tend to be plan-implementation mechanisms that zoning decision-makers determine best carry out the function of a plan recommendation, and where placing the zone on the subject property is compatible with the surrounding area and the legislatively-declared prerequisites for imposition of the zone. Thus, although a master plan recommendation may assume a weightier role in floating zone cases, it still does not assume the legal weight of being dispositive of an application, unless the creating or enabling statute, ordinance, or regulation makes conformance to its recommendation mandatory. ⁶³⁸ A typical example of how a master plan functions in a piecemeal floating zone case is Floyd v. County Council of Prince George’s County, 55 Md.App. 246 , 461 A.2d 76 (1983).

In Floyd , the applicant sought a comprehensive design zone (CDZ), a type of floating zone in the panoply of zones described in the Prince George’s County Zoning Ordinance. The particular CDZ sought in that case conformed to some, but not all, of the applicable master plan’s recommendations for the subject property and its environs. Specifically, the plan recommended a land use activity that was consistent with the uses permitted in the floating zone sought, but did not envision that use spread over the entire property, i.e. it should be limited to an area within 1,500 feet of the main highway on which the property fronted. The applicant persuaded the County Council, sitting as the District Council for zoning matters, to rezone the entire property as requested, notwithstanding the fact that to do so arguably conflicted with the plan’s advice not to extend such a land use beyond a strip of land 1,500 feet east of the property’s road frontage (the applicant’s proposal depicted development ranging from between 2,400 to 4,800 feet east of the highway).

On appeal, the opponents to the rezoning urged that noncompliance with the spatial element of the master plan map required disapproval of the application. We explained, in pertinent part: Prince George’s County Code, § 27-591(b)(l) requires that: The proposed plan for development of the Comprehensive Design Zone conforms to an approved General Plan map, Area Master Plan map, or an urban renewal plan map or is in conformity with the principles described in such plans in relation to land use, number of dwelling units and intensity of nonresidential buildings, and location. As the emphasized language indicates, an applicant could fail to comply with any adopted map and still satisfy the standard by conforming with the “principles” in these plans, since the requirement is stated in the alternative. ⁶³⁹ The provisions of § 27-591(b) must be read as flexible standards, so that a large measure of discretion is left with the District Council when reviewing a Comprehensive Design Zone application. First, the language of the section states specifically that the standards are to be met “to the satisfaction of the District Council.” It appears that the Council’s intention in enacting the Comprehensive Design Zone provisions was that it have the freedom to decide, partly as policy questions, whether the standards are satisfied.

A review of the standards themselves indicates that they do not admit of precise definition and depend in large part on adopted County plans and policies. The standards are not like height or setback requirements, where compliance, or lack thereof, is readily discernible. Comprehensive Design Zones are considered “floating zones.” In reviewing floating zones, the courts have specifically applied the fairly debatable standard to actions taken by the legislative body. Reviewing courts must not substitute their judgment for that of the zoning agency and must affirm any decision which is supported by substantial evidence and therefore fairly debatable.

In Prince George’s County v. Meinenger [Meininger], 264 Md. 148, 152 , 285 A.2d 649, 651 (1972), it was explained that “substantial evidence” means a little more than a “scintilla of evidence,” and in Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372, 377 (1969), the “fairly debatable” standard was defined as follows: We have made it quite clear that if the issue before the administrative body is “fairly debatable,” that is, that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body____ Courts in Maryland tend to defer to zoning agencies because of their presumed “expertise,” and because it is thought best to allow the agency, rather than the reviewing ⁶⁴⁰ court, to exercise the “discretion” to grant or deny an application. This floating zone case is to be judged by the same “substantial evidence” and “fairly debatable” standards as apply in zoning cases generally. The controlling factor here is whether the Council could find that the Master Plan was only a guide and that the 1,500 foot limitation was adopted as a guideline and not as a mandatory requirement. If the Council were bound by the express provision that only 1,500 feet could be used for conditional employment along Crain Highway, then the finding of substantial compliance might well be found to be arbitrary and contrary to the Master Plan.

However, it is commonly understood, in Maryland and elsewhere, that Master Plans are guides in the zoning process. Master Plan guidelines are mandatory only if an ordinance so provides. The essential test in this floating-zone case is compatibility, clearly a matter of judgment which should be reserved to the District Council. The cases, starting with Huff v. Board of Zoning Appeals of Baltimore County, 214 Md. 48 , 133 A.2d 83 (1957), and the Prince George’s County Ordinance, in § 27-591(b)(6), provide that a showing of compatibility is a primary requirement.

This showing replaces the usual proof of change or mistake; and the requirement likens a floating zone case to a special exception case. Floating zone applications have been reviewed in Prince George’s County for years. The zoning agency in a floating zone case must find, just as it does in a special exception case, that compatibility is shown by the applicant’s conformance to express ordinance standards. 55 Md.App. at 256-59 , 461 A.2d 76 (Emphasis in original; some internal citations deleted). Because the record before the District Council in Floyd permitted the Council to discriminate rationally between what parts of the master plan’s recommendations to be guided by in determining conformity, the Court upheld the Council’s decision to grant the rezoning, ⁶⁴¹ notwithstanding the facial nonconformity to the master plan map delineation.

Comprehensive Zoning Map Adoption Judge Moylan recently compiled comprehensively in People’s Counsel v. Beachwood, 107 Md.App. 627 , 670 A.2d 484 , cert. denied 342 Md. 472 , 677 A.2d 565 (1996) the reasons why the recommendations of a master plan generally can serve only as a guide, and not a mandate, in the adoption or amendment of a comprehensive zoning map, unless the statute, ordinance, or regulation provides otherwise: Howard County v. Dorsey [ 292 Md. 851 , 438 A.2d 1339 (1982) ], however, was very emphatic that there is no requirement that a comprehensive zoning plan must conform to the recommendations of an applicable master plan. 292 Md. at 363 , 438 A.2d 1339 . Holding to a similar effect was Pattey v. Board of County Commissioners, 271 Md. 352, 360 , 317 A.2d 142 (1974): As we have said, a master plan is only a guide and is not to be confused with a comprehensive zoning, zoning map, or zoning classification. In Montgomery County v. Woodward & Lothrop, 280 Md. 686, 704 , 376 A.2d 488 (1977), Chief Judge Murphy observed: Nor is there any requirement, absent a statute, that the map amendment must adhere to the recommendations of the General or Master Plan. Such land use planning documents represent only a basic scheme generally outlining planning and zoning objectives in an extensive area, and are in no sense a final plan; they are continually subject to modification in the light of actual land use development and serve as a guide rather than a strait jacket.

See also People’s Counsel v. Webster, 65 Md.App. 694, 701-03 , 501 A.2d 1843 (1986); Floyd v. County Council of Prince ⁶⁴² George’s County, 55 Md.App. 246, 258-59, 461 A.2d 76 (1983). A definitive statement on this subject is that found in Nottingham Village v. Baltimore County, 266 Md. 339 , 292 A.2d 680 (1972). In that case, Nottingham Village and The Rouse Company sought a declaratory judgment that the comprehensive zoning promulgated by the Baltimore County Council in 1971 was invalid because of its failure to conform to the Master Plan for Baltimore County. In rejecting the argument made by the developers, Judge Singley stated for the Court of Appeals: Underlying this argument is a common misconception-a confusion between the planning function, the end product of which is