Rockville Crushed Stone, Inc. v. Montgomery County

BISHOP, Judge. The appellant, Rockville Crushed Stone, Inc. (RCS) appeals from an order of the Circuit Court for Montgomery County (Miller, J.) which affirmed Resolution 10-1971 (the Resolution) enacted June 10,1986 by the County Council for Montgomery County, Maryland, sitting as the District Council (the Council) for that portion of the Maryland-Washington Regional District (the District) located in Montgomery County, Maryland. The Resolution denied RCS’s Zoning Application G-316 (the Application), which sought a zoning reclassification from the Rural, Rural Density Transfer, and R-200 zones to the Mineral Resource Recovery Zone (“MRRZ”) of approximately 530 acres of RCS property (the “Property”) located in Boyds Maryland. Appellant claims that the Council acted arbitrarily, capriciously, and illegally.

We affirm the denial. I Statutory Framework In Montgomery County there are two separate procedures under the county zoning ordinance, The Montgomery County Code, Montgomery County, Md. (1984) (the “Code”), by which a party can apply to opérate a quarry in a zone which does not provide for such use as a matter of course. The first is to apply for a special exception under § 59-G-2.52 or 2.53 to operate in an area zoned as either Industrial (I) or Rural (R). The second is to apply for a zoning reclassification to the MRR Zone.

Division 59-C-12. Which method is to be used is not the applicant’s choice. The applicant would always rather proceed by way of a special exception under §§ 59-G-2.52 or 2.53 as the governmental controls are significantly fewer than they are in the MRRZ. Compare Code Chapter 38 (the general laws applicable to all quarries including those authorized as both a special exception and as an MRRZ) with §§ 59-C-12.5 thru 12.8 (additional constraints applicable to property re ¹⁷⁹ classified to the MRRZ).

The appropriate procedure by which an applicant for quarry operations at a particular site must proceed is determined by the area master plan with which the applicant must comply. See § 59-C-12.1 (applies to the MRRZ) and § 59-G-l.21(a)(3) (applies to a special exception under §§ 59-G-2.52 or 2.53). In the case sub judice, The Maryland-National Capital Park and Planning Commission approved and adopted Boyds Master Plan (1985) (the “Master Plan”) required RCS to obtain a zoning reclassification to the MRRZ in order to conduct quarrying operations on the Property. Therefore, this case involves a zoning reclassification to the MRRZ and not an application for a special exception. 1 The process of reclassification to the MRRZ under Division 59-C-12 is in two phases: Phase I — Division 59-C-12 authorizes reclassification to the MRRZ of those areas “indicated as appropriate on the approved and adopted Master Plan.” § 59-C-12.2.

This designation as “appropriate” does not make the location so specified an MRRZ and the fact that an area has been so labeled does not require the District Council to approve an application for an MRRZ at the site labeled “appropriate”. Boyds Civic Ass’n v. Montgomery County, 309 Md. 683, 696 , 526 A.2d 598 (1987). This designation is merely a condition precedent to the filing of an application for reclassification to an MRRZ. This Phase I process, having been the subject of a separate appeal to this Court, is not at issue in the case sub judice; therefore, we will not discuss it further.

Boyds Civic Association v. Montgomery County, No. 694 (Md.App. Jan. 1989) (upheld an amendment to the Master Plan by which the Council designated the property sub judice as appropriate for the MRRZ). Phase II — Once an area has been designated as “appropriate” for an MRRZ on the Master Plan, then a party seeking ¹⁸⁰ the reclassification of that area to an MRRZ must file an application for “Zoning Reclassification”, § 59-C-12.1, which is “in the nature of [an application for] a special exception.” § 59-C-12.1. This application consists of a Development Plan and a Site Plan. § 59-C-12.8. The application is initially reviewed by the hearing examiner, § 59-D-1.5, and is finally approved or rejected by the Council, § 59-D-1.4.

Approval for the requested reclassification to the MRRZ may be given by the hearing examiner and the Council only if the application meets certain standards specified in the Montgomery County Code, §§ 59-C-12.1 thru 12.8. These standards are divided into five major groupings: (i) The MRRZ purposes (the “Purposes”) include, inter alia: “preservation of preemptive developement of land underlain by certain mineral resource deposits of current or future economic importance to the county and region ...[and] to ensure maximum protection to surrounding properties and the physical environment ...[;] because of potential adverse environmental impacts associated with resource extraction, processing, and transportation, application of the mineral resource zone should be limited to deposits that can be demonstrated to be a valuable resource within the Washington metropolitan region.” § 59-C-12.1. (ii) The MRRZ development standards (the “Development Standards”) relate to: net lot area; percentage of lot coverage; front, side and rear yard requirements and lot width at the front street line; building height; and open space and green area requirements. Code § 59-C-12.52.

(iii) The MRRZ special regulations (the “Special Regulations”) control: paving of access roads, fencing, signs, parking, exterior lighting, hours of operation, land reclamation plans, explosives, and safety. Code § 59-C-12.6. (iv) The MRRZ performance standards (the “Performance Standards”) regulate: siting of operational activities, minimization of visual effects, noise, vibration, dust, hydrological effects, and reclamation. Code § 59-C-12.6(j). ¹⁸¹ (v) Finally, the application must be “in substantial compliance with the duly approved and adopted general plan or approved and adopted master plans for the Maryland-Washington Regional District.” § 59-C-12.1.

That “approved and adopted master plan,” the Boyds Master Plan, sets the following preconditions, inter alia, for approval of an MRR Zone: 1) All transportation of stone from the Boyds mineral resource extraction site shall be by rail only for the short term and long term. 2) A finding that County and region-wide benefits outweigh controlled community impacts. This analysis would include an examination on the following: (1) the general availability of diabase 2 or similar stone in the region; (2) the projected short-term and long-term cost of procuring the stone including hauling cost; (3) the need for the stone from a County-wide and region-wide perspective; (4) the demand for the use of diabase or similar stone in State and County road projects; (5) other relevant factors suitable for demonstrating the economic benefit for use of the stone and its need from a Countywide perspective; and (6) the impact of a quarry and haul traffic on Boyds and other affected areas. A staging element coordinating construction with the availability of an appropriately zoned site for receipt of the rail-hauled stone. Id. at 28-29.

II The Floating Zone The MRRZ is considered a “floating zone”, Boyds Civic Ass’n v. Montgomery County, 67 Md.App. 131, 134 , 506 A.2d 675 (1986). ¹⁸² A floating zone is differentiated from a so-called “Euclidean” zone, in that while the latter is a specific area defined by boundaries previously determined by the zoning authority, the former has no such defined boundaries and is said to “float” over the entire area of the district or zone where it may eventually be established. The floating zone is different from the establishment of an Euclidean zone in that it is initiated on the instigation of a land owner within the district rather than that of the legislative body. Bigenho v. Montgomery County, 248 Md. 386, 391 , 237 A.2d 53 (1968). In other words: “Floating zones” are a device permitting the establishment of tracts or parcels of land in a specialized use category in accord with the comprehensive plan, without predetermining the exact location by leaving that decision to future needs and demands of a community as they are recognized from time to time.

S. Abrams, Guide to Maryland Zoning Decisions, p. 69 (2nd ed. 1975). The Court of Appeals, in the pioneering decision, Huff v. Board of Zoning Appeals, 214 Md. 48 , 133 A.2d 83 (1957), established the legal criteria for a valid floating zone ordinance: When a zoning ordinance or an amendment puts a small area in a zone different from that of the surrounding area, we have what may be called “spot zoning”, using the term in a descriptive sense. Such zoning may be invalid or valid. If it is an arbitrary and unreasonable devotion of the small area to a use inconsistent with the uses to which the rest of the district is restricted and made for the sole benefit of the private interests of the owner, it is invalid.

Cassel v. City of Baltimore, 195 Md. 348, 355 , [ 73 A.2d 486 (1950) ]. On the other hand, if the zoning of the small parcel is in accord and in harmony with the comprehensive zoning plan and is done for the public good — that is, to serve one or more of the purposes of the enabling statute, and so bears a substantial rela ¹⁸³ tionship to the public health, safety, morals and general welfare, it is valid. Offutt v. Board of Zoning Appeals, 204 Md. 551, 561 [ 105 A.2d 219 (1954)]; Temmink v. Board of Zoning Appeals, 205 Md. 489, 495 [ 109 A.2d 85 (1954)]; Ellicott v. City of Baltimore, 180 Md. 176, 183 , [ 23 A.2d 649 (1942) ]; Cassel v. City of Baltimore, supra. Huff v. Board of Zoning Appeals, 214 Md. 48, 57-60 , 133 A.2d 83 (1957).

Huff and subsequent decisions have established that the “change or mistake" rule, normally applicable to rezoning of the standard Euclidean zone, is inapplicable to the floating zone. Knudsen v. Montgomery County Council, 241 Md. 436, 441 , 217 A.2d 97 (1966). The Council need not find a change or mistake in the present zoning in order to grant a reclassification to the floating zone. In floating zone reclassification proceedings, “the vital and decisive determination by the District Council is whether the application complies with the expressed [statutory] purposes for which the accomplishment of this floating zone was established." Aubinoe v. Lewis, 250 Md. 645, 652-53 , 244 A.2d 879 (1968).

To insure that a particular reclassification has been made in furtherance of the expressed statutory purposes, this Court has held that the District Council’s approval must be conditioned on the applicant’s satisfying certain conditions which must be specified in the enabling statute. 3 Floyd v. County Council of P.G. Co., 55 Md.App. 246, 259 , 461 A.2d 76 (1983) (citing Bigenho v. Montgomery County Council, 248 Md. 386 , 237 A.2d 53 (1968)); Bujno v. Montgomery County Council, 243 Md. 110 , 220 A.2d 126 (1966). Also, the District Council must make an express finding “that the project is compatible with existing uses in the general ¹⁸⁴ neighborhood.” Aubinoe v. Lewis, 250 Md. 645, 653 , 244 A.2d 879 (1968). Ill Facts The hearing examiner, as part of an excellent written recommendation to the Council, made the following findings of fáct which were adopted by the District Council and which RCS does not dispute: 1. General Description The subject property constitutes about one-sixth of the entire Boyds planning area.

It is situated in a community that is very rural in character and manifests the lowest population density in the county. The site is under common ownership and is made up of several individual parcels that form a large irregularly shaped tract which is located southwest of the intersection of White Grounds Road and Maryland Route 117. The site possesses about 1,100 feet of frontage along White Grounds Road and extends west to Bucklodge Road, where it possesses about 900 feet of frontage. The northern perimeter of the site abuts the Baltimore and Ohio Railroad right-of-way. 2.

Mineral Deposit The subject property and applicant’s other holdings in the area comprise about 1,871 acres, which contain large deposits of diabase stone. Diabase makes excellent crushed stone due to its hardness, durability, and skid-resistant qualities. Crushed stone produced from the Boyds diabase rock can by used for all types of aggregate [including] skid-resistant aggregate [for highway construction],----The Boyds diabase has a polish value of 13 ... a measure of its hardness quality, which substantially exceeds the Federal Highway Administration specification of 8.5. ¹⁸⁵ Most highway engineering experts believe that this hardness provides a skid-resistant quality that reduces highway accidents. For this reason, it is a requirement for federally funded highways ...

B. The Surrounding Area The surrounding area is rural and consists of farm land, woodland, scattered residential homes. The density reflects about 20 dwelling units per square mile and there are about 151 dwelling units within one mile of the subject property. The town of Boyds is located northeast of the ... property and is developed with homes, churches and a few commercial businesses within a very rural community____ C. Development Plan The applicant proposes to conduct an open quarry and crushing operation on the subject property that would extend over a 30-year period. Extraction activities would involve a 77-acre north quarry and a 31-acre south quarry, both of which would be extracted to a 300-foot depth---- Other activities of the site would include a processing plant, storage and rail loading facilities, all of which would comprise about 40 acres. a.

Haul Route The rail haul route currently involves two specific unloading locations, Site A, south of Gude Drive in Rock-ville, and a RCS facility at Bladensburg in Prince George’s County. RCS expects to exceed the minimum quantity shipment to Site A. In 1986, a shipment of 968,000 tons is project ¹⁸⁶ ed. In the year 2000, a shipment of 1,185,000 tons is projected. This means that 323 trains a year would unload at Site A and generate about 96,900 one-way truck trips in 1986.

About 395 trains would unload at Site A and generate 118,500 one-way truck trips in the year 2000. D. Potential Benefits and Impacts 1. Availability of Crushed Stone There are a number of locations of aggregate in the region and include sand and gravel, aggregate with a polish value in excess of 8.5, and aggregate with a lower polish value. The master plan map, reproduced on page 43 depicts 18 locations where aggregate with a polish value of 8.5 or more can be found: eight are located in Maryland, five are located in adjacent Virginia counties, and five are located in Pennsylvania.

An OMB analysis conducted for the master plan review process, Ex. 78, acknowledged that it is not possible to ascertain complete information about reserves and supplies in the region. The OMB study concluded that there was an adequate supply of aggregate in the region, although it is diminishing due to urbanization. 2. Cost of Procurement This factor is one of the most critical points in the case. The applicant claimed that lower prices would result from the opening of the Boyds quarry and this assumption provided a basis for projections of enormous savings to Montgomery County consumers and the release of large supplies of skid-resistant aggregate for highway projects.

The increased use of skid-resistant aggregate by the SHA and DOT is predicated on the assumption that the commodity would be available to these public agencies at prices substantially lower than competitors. ¹⁸⁷ The OMB analysis rejected the notion that RCS would do otherwise than price to the market. Indeed, OMB concluded that RCS would not generally reduce prices “except for concrete aggregate and some surface course stone.” Ex. 78, p. 22. The RCS pricing data is also flawed because its conclusions were not based on the proffered $1.70 per ton rate as they should have been. Mr. Lanham testified that his analysis was based on a rail rate of $1.70 per ton.

However, he actually extrapolated Boyds prices based on a rail haul cost of $2.11 a ton, which assumed a rail tariff of $1.21 a ton. When the proffered $1.70 rate is applied as it must be, Genstar-Frederick prices reflect a price advantage instead of the price disadvantage projected. 3. Regional Need In 1983, OMB reported that there was not evidence of need for the proposed quarry____the special advantages attributable to the Boyds diabase rock reasonably relate only to about 42 percent of the total aggregate market and the unique skid-resistant characteristics relate only to a very small percentage of the total aggregate market. RCS predicted that it would produce about 1,700,000 tons at Boyds in 1986 and expand production each year so that by the year 2000 it would producé 4,610,000 tons.

The Maryland SHA estimated a three-year need for skid-resistant aggregate for suburban Maryland counties (including Charles and St. Mary’s Counties) at a level of 882,000 tons, or about ten percent of its total projected aggregate consumption. Ex. 39(i). The applicant estimated that DOT consumption would be about 100,000 tons annually because of lower prices, [total 982,000]. The demand for diabase for state and county road projects constitutes an extremely small percentage in the ¹⁸⁸ total market for crushed stone____if a demand for Boyds diabase is shown, ... it would only justify a much smaller quarry.

The bulk of RCS production at Boyds would compete for Portland cement concrete and other aggregate uses. 4. Demand for Use on County Roads There is an obvious demand for diabase or similar crushed stone in state and county road projects. 5. Other Relevant Factors Relating to Benefit and Need The OMB analysis indicated that the opening of the proposed quarry would provide an economic benefit to the county in terms of jobs, increased tax revenues and other indirect benefits____ The evidence does demonstrate the limited availability of unloading space between Gaithers-” burg and Rockville, and this space is likely to diminish as future development occurs. 6. Impact in Boyds and Other Affected Areas The proposed quarry contemplates a massive operation that involves about one-sixth of the entire planning area.

Its impact on the community would be significant, even assuming compliance with various laws and regulations____ [For example, even the legal levels of noise] would be heard by the community____ The hearing examiner also found that RCS had satisfied all of the statutory Development Standards, Special Regulations, and Performance Standards with the exception of the noise standards. He found that RCS had failed to present evidence on nighttime noise levels. IY The District Council’s Conclusions In denying the application for a zoning reclassification the District Council concluded that: ¹⁸⁹ The record clearly indicates that the proposed quarry would generate some regional and community detriments. Substantial truck traffic would be generated by the applicant’s proposed unloading operation at Site A and the capacity of Derwood Circle to absorb this traffic is unknown.

Nearby businesses contended that the traffic would be a detriment to the area. The proposed unloading operation constitutes a heavy industrial use which is not suitable for the location. The evidence also suggests that rail loading operations and other activities would be likely at the subject property during nighttime hours, and these activities would generate noise problems for the community. The proposed quarry would be a massive operation that would produce noise, vibrations, traffic and dust.

Even if these aspects of the quarry operation can be maintained within specified limits, the character of the Boyds community would be altered and, for that reason, quarry use has been made dependent on [the Master Plan requirement of] a clear showing of countywide and regional benefits. The evidence does not permit an affirmative finding that these county-wide and regional benefits would exceed community detriments. (emphasis added) The Council adopted the following conclusion, made by the hearing examiner, on each of the factors which the Master Plan requires to be considered in determining whether the County wide and regional benefits of the quarry outweigh its controlled community impacts: (1) Availability of diabase — “Crushed stone with a polish value meeting federal standards for skid-resistant aggregate is .. .available although it is