Sharp v. Howard County Board of Appeals

HARRELL, Judge. Id imperfeetum manet dwm confectum erit (it ain’t over until it’s over). Once more (and perhaps for the last time), the judiciary of Maryland has been implored to resolve a skirmish in Howard County’s answer to the Hundred Years War. A stalwart band of Howard County property owners who are operating a private airstrip on a portion of their residential properties have bested, with the aid of the Howard County Board of Appeals that has sanctioned the continuation of the aerial activities, a coterie of the airstrip’s equally stalwart but disgruntled neighbors.

We shall try our level best to end this land use civil war. Robert V.L. Sharp, other individual neighbors, and Crosen Development Co., appellants, ask that we reverse a judgment of the Circuit Court for Howard County affirming the grant of a special exception by the Howard County Board of Appeals (the Board). The special exception permits the continued use of a private use/private ownership aircraft landing strip along an easement created by covenant on eight discrete parcels owned by the thirteen individual applicants. It also provides ⁶⁰ for the storage of a maximum of three airplanes on the applicants’ properties.

QUESTIONS PRESENTED Appellants have framed two queries for our consideration: I. Is the holding of Schultz v. Pritts 1 properly applied when a Board of Appeals refuses to make any finding of fact regarding the uniqueness of adverse effects on vicinal properties of a proposed special exception use, and there is uncontroverted evidence of both adverse effects and unique adverse effects on the vicinal properties?

II

Did the lower court err when it sustained an agency decision which was expressly premised upon an erroneous application of the law? For reasons we shall explain, we shall affirm the circuit court’s judgment. PROCEDURAL PROLOGUE In 1973, the then owners of the eight contiguous parcels of land in Howard County that are the subject of the instant special exception executed and recorded a Declaration of Covenants. The covenants created reciprocal easements on a 150 foot wide strip of land running across all of their properties for the purpose of creating a private air strip.

We shall sometimes refer to the airstrip hereafter by the name, “Glenair,” which is also how the Federal Aviation Agency (FAA) and the Maryland State Aviation Administration (MAA) identify it. In August 1978, the owners of the eight properties sought a special exception to operate Glenair. After public hearings, the Board as then constituted denied the special exception, concluding that the proposed use would adversely affect vicinal properties. The applicants appealed that denial to the Circuit Court for Howard County.

The circuit court remanded the case to the Board for reconsideration, in light of the ⁶¹ standard for evaluating the impact of proposed special exception uses enunciated in Schultz v. Pritts, supra, which had been decided since the Board’s denial. We affirmed that remand in Sharp v. Somerlock, 52 Md.App. 207 , 447 A.2d 500 (1982). While the appeal in Sharp v. Somerlock was pending, one of the eight parcels of land subject to the covenants was sold. The buyers, Marvin and Mary Alice Schaefer, were opposed to Glenair.

At one of the public hearings held before the Board in 1983 pursuant to the remand, the Schaefers asked to be removed from the list of applicants for the special exception, and that their parcel of land be deleted from the petition. The Board granted the Schaefers’ request. It also granted the special exception on 20 September 1983. The Board, in applying its view of the rule of Schultz v. Pritts to the facts before it at that time, explicitly found and concluded that the protestants have failed to adduce evidence which demonstrates that granting the special exception use would result in adverse effects upon adjoining and surrounding properties unique and different from the adverse effects that would otherwise result from the location of a private aircraft landing and storage area anywhere within the R Zoning District.

The protestants, many of whom remain as appellants in the instant appeal, took umbrage and appealed. The circuit court affirmed the Board’s action, and an appeal to this court followed. We reversed, holding that the Board did not have the authority under the Howard County zoning ordinance to grant the special exception petition because the Schaefers’ withdrawal from participation in the petition caused the amount of land proposed for the airstrip use to fall below the minimum required by the local ordinance. Fiol v. Howard County Board of Appeals, 67 Md.App. 595 , 508 A.2d 1005 (1986).

Nevertheless, we expressly declined to consider whether the Schaefers’ withdrawal violated the 1973 Declaration of Covenants. ⁶² Following our decision in Fiol , the remaining applicants sought an injunction to compel the Schaefers to join the special exception petition in compliance with the Declaration of Covenants. The circuit court granted the injunction and ordered the Schaefers to execute the petition. The Schaefers appealed. In an unreported opinion, we construed the language of the Declaration of Covenants and determined that the Schaefers’ withdrawal violated the covenants.

Schaefer v. Levy, 74 Md.App. 732 , 737 (1988). As a result, the petition was considered anew by the Board. Evidentiary hearings were held on 8, 15, 22, and 26 September and 8 November 1988. On 9 March 1989, the Board again granted the special exception for Glenair, but not without dissent.

A three member majority of the Board joined in a Decision and Order approving the petition subject to a list of conditions. Among the required findings of fact made by the Board majority in its Decision appears the following statement of the Board’s understanding of how Schultz v. Pritts applies, or does not apply, to granting the special exception: The Board finds that the use will not adversely affect vicinal properties. In its regulations the Zoning Board has allowed airfields to be located in R (Rural) Zoning Districts, subject to the satisfaction of certain conditions noted in the Zoning Regulations. The Zoning Board also permits residential development on minimum three-acre homesites in this category of zoning district.

Thus the Zoning Board must have envisioned the possibility that these two types of uses, a private airfield and residences, may be in some proximity to each other. Given this presumption, the Board must determine whether or not vicinal property owners are affected in a manner beyond that contemplated by the Zoning Board, that is, adversely. If the Board’s decision would be in the affirmative, then, under the doctrine of Schultz v. Pritts, the Board would decide whether or not this adverse effect on these vicinal properties would be unique and different from the adverse effects that would otherwise result from the ⁶³ location of a private aircraft landing and storage area anywhere within the R Zoning District. Since the Board finds that the proposal, as set forth in the Petition and Noise Control Plan, will not adversely affect vicinal properties, it does not need to decide the issue that must be addressed under Schultz.

The two member Board minority 2 , in a classic riposte, cast its Dissent, in part, as a contrary view of the interplay of Schultz v. Pritts and the obligation of the Board to evaluate the perceived adverse effects presented by the evidence before it: The inherent adverse effects of the use are uniquely intensified in this particular location. While adverse effects are inherent in the proposed special exception use, (e.g. negative impact on property values evidenced by the reduction in tax assessments and in the noise effects on the peaceful enjoyment of homes), this particular area of the County’s Rural (R) zone has a noticeably higher concentration of existing and proposed development, a significant number of approved special exception uses, and three (3) public schools in the immediate area. Thus, the Petitioners have failed to meet the standards as elucidated in Schultz v. Pritts. (citation omitted).

Appellants noted an appeal to the circuit court. In addition to contesting the merits, they requested that the assigned judge in the circuit court recuse himself because he had, while practicing law in 1973, drafted the Declaration of Covenants that served as the foundation for the establishment of Glenair. The judge declined to recuse himself and proceeded to affirm the Board’s grant of the special exception. Appellants then took an appeal to us.

In an unreported opinion, a different panel of this court held that it was not an abuse of discretion for the circuit court judge to refuse to recuse himself, that the Board majority’s interpretation of ⁶⁴ Schultz v. Pritts was appropriate, and that the Board’s decision be affirmed. Robert V.L. Sharp, et al. v. Howard County, Maryland, et al., 87 Md.App. 806 , 814 (1991). Continuing to spin the judicial roulette wheel, appellants took their case to a higher court. In Sharp v. Howard County, 327 Md. 17 , 607 A.2d 545 (1992), the Court of Appeals reversed our decision on the ground that the circuit court judge should have recused himself. 3 The matter was remanded to the circuit court where a different judge, on 16 November 1992, affirmed the Board’s decision and observed, with a trace of prophecy and futility, that On remand, Appellants press anew their argument that the Howard County Board of Appeals (the “Board”) did not correctly apply Schultz v. Pritts, 291 Md. 1 [ 432 A.2d 1319 ] (1985) [ (1981) ] in granting a special exception for a private use-private ownership aircraft landing and storage area in an R (Rural) Zoning District. :¡j # Whether to grant a special exception for the aircraft landing and storage area has been in litigation in one form ⁶⁵ or another for decades, and this Court has no illusion that this Order will end the string of appeals and remands.

However, this Court is satisfied that the Board’s decision was supported by substantial evidence, was within its discretion to reach, and did not violate any applicable legal standards. This Court has also considered Appellants’ alternative request that this Court remand the case to the Board for additional proceedings and findings to insure that the Board has correctly applied Schultz . While arguably a further remand may well produce a more perfect and exquisite determination, this Court believes that the Board’s findings and decision clearly express its intentions. The instant appeal inexorably followed.

SUMMARY OF THE RELEVANT EVIDENCE BEFORE THE BOARD The subject property of Glenair, inclusive of the airstrip, is comprised of 45 acres. Glenair is located on the east side of Sharp Road, about 1700 feet north of Shady Lane, in the Glenwood area of Howard County. The 45 acres is comprised of eight contiguous parcels, each about 5.5 acres in size. The parcels, sited side-by-side in a east/west direction, form a rectangle.

The grass air strip is located within an easement along the southerly portions of all of the parcels. The easement is 150 feet wide and 3200 feet long. The actual aircraft runway within the easement is 40 wide and 2178 feet long. The ends of the runway are 500 feet from both the east and west boundaries of the subject property.

The south edge of the runway is 104 feet from the southerly edge of the subject property. Among the reasons given by the applicants in the special exception application for the selection of the subject property as the site of Glenair was that it is higher than the surrounding land. The average elevation of Howard County piedmont land is 450 to 500 feet above sea level; this site is 590 feet above sea level, and there are no hills or trees in the surrounding area to pose obstructions ⁶⁶ during landings and takeoffs. The elevation difference keeps airplanes higher above the surrounding land and buildings during landings and takeoffs.

The special exception application requested permission to continue a private aircraft landing and storage area pursuant to § 126 F.2.a. of the Howard County Zoning Ordinance. Two airplanes had been stored on the subject property since 1983. According to the applicants’ records, since 1983 there had been 341 flights from Glenair, or about one flight (takeoff and landing) every 5% days on the average. The applicants also produced testimony and internally-generated records regarding occasional landings or overflights by planes not based at Glenair or involving invited guests.

Where identification of the uninvited miscreants was obtained, applicants attested to their efforts to warn the pilots and ward-off repeat episodes. Glenair’s operations are subject to a noise control plan approved by the MAA. See generally COMAR 11.03.03. This plan, when combined with mandatory FAA regulations, obligated Glenair’s legitimate users: (a) not to fly over the nearby Glenelg High School, Glenwood Middle School, and Bushy Park Elementary School at any altitude; (b) not to engage in any landing patterns from the north where the high school is situated; (c) not to fly over adjacent residential areas at an altitude of less than 1000 feet or at more than fifty percent of an aircraft’s maximum engine power; and, (d) to avoid overflight of adjacent residences during takeoff until reaching an altitude of 1000 feet.

The noise control plan also calculated and mapped noise impact contours on the surrounding properties that projected noise levels from the operations of Glenair would not exceed the State-prescribed maximum level for land zoned for single family, detached residences. Compliance with the decibel limits established in the plan was asserted through anecdotal testimony of applicants and some neighbors, as well as a noise measurement study of aircraft takeoff, landing, and taxi operations conducted by one of the applicants, an electrical engineer by occupation. He characterized the peak noise level as comparable to that of a riding lawn mower, but of a much shorter duration. ⁶⁷ An expert in real estate appraising opined, from a study he made of Glenair, another nearby private airstrip, and surrounding areas, that there had not been any impact on property values as a result of Glenair’s continued operations. The applicants also produced evidence of the relative safety of general aviation activities nationally and Glenair specifically.

Reference was made to FAA and Aircraft Owners and Pilots Association (AOPA) statistics in support of this contention. Mr. Albert J. Selby, Director of Regional Aviation Assistance of the MAA, opined on the record with regard to Glenair: It is a safe airport. Among all the licensed and registered grass airstrips in the State, Glenair is one of the finest and safest with excellent approaches and a well maintained, lighted, level and solid turf landing strip. The orientation of its landing strip into the prevailing wind, its elevation being higher than the surrounding terrain, its location in open, lightly developed countryside all combine to make this strip one of the outstanding private airstrips in the State.

Because Schultz v. Pritts was so keenly on everyone’s minds, the opponents’ testimony and demonstrative evidence were singularly focused on demonstrating their thesis that the particular facts and circumstances attendant to Glenair caused adverse effects on vicinal properties that were unique to this neighborhood as opposed to elsewhere in the R (Rural) Zone in Howard County. To this end, appellant Robert V.L. Sharp testified that the closest boundary of his property was 600-650 feet west of the westerly end of the airstrip, and that his land was “higher than the runway.” 4 As a consequence of this ⁶⁸ difference in elevation and some unspecified “grading into the hill” attributed to the applicants, he could not see aircraft sitting on the ground preparing to take off to the west. His first view was when they “pop up from the west end.” He found this activity noisy and “at times scary.” He related an episode occurring on Saturday morning, 20 May 1984, when he was bush-hog mowing a portion of his property on a farm tractor. He had his back to the airstrip as he was slowly mowing.

A plane that he subsequently recognized as one stored at Glenair apparently took off to the west and startled him when it got close enough to be heard over the masking noise of the tractor and mower. When he heard the sudden noise of the plane, his body involuntarily jerked violently and he struck his leg on the tractor, thereby curtailing his activities for the rest of the morning while he applied ice to his injured leg. Clyde W. Pace, a former FAA employee offered by appellants as an expert, visited the site and testified that certain structures or objects in the vicinity of the airstrip might be contrary to certain FAA airport standards binding on airports that receive federal aid. Glenair receives no such subsidy and, hence, these standards were, at best, apparently deemed by the Board to be guidelines or suggestions in the special exception case.

The potential obstructions within the so-called “transition slopes” adjacent to the airstrip identified by Mr. Pace were: “some trees” 20 feet tall on an unspecified plot of land potentially within a so-called southerly side transition slope; a 60 foot tall metal tower located “perhaps 100 feet” east of the easterly edge of the runway; and, a powerline 500 feet west of the westerly end of the runway. The Board heard additional evidence concerning the arguably unique locational features of the airstrip and its vicinal properties. Three schools are located in the vicinity of the airstrip. It was asserted that this is the only place in the R ⁶⁹ (Rural) District that has three schools in such close proximity to one another.

In addition, the only public high school within the R (Rural) District is one of these three nearby schools. The location of the schools makes the vicinal properties very appealing to home buyers. Evidence of ongoing residential development occurring within a one mile radius of the airstrip was offered to support appellants’ contention regarding the unique character of the neighborhood. Twenty-two subdivision record plats, encompassing over three hundred acres of development, had been approved and filed.

Moreover, five proposed residential subdivisions, encompassing over four hundred additional acres of development, including a large subdivision that abuts the east end of the airstrip, were then in the approval and recordation process. The tax maps of the surrounding area, received in evidence before the Board as Protestant’s Exhibit 10, reflected the residential development in the vicinity of the airstrip. 5 By contrast, the area to the west of the subject property was less developed. Furthermore, appellants drew the Board’s attention to the approval of eleven special exceptions, also within a one mile radius of the proposed airstrip. Robert V.L. Sharp, who compiled the list of the special exceptions, testified he could find no other R (Rural) District in the County with such a concentration of special exceptions within a one mile radius.

These approved special exception uses were residential in nature, and included a nursery school, three churches, three craft shops, a hair salon, a riding stable, a two family dwelling, ⁷⁰ and a parking area for school buses that service the three nearby schools. The thrust of appellants’ evidence with regard to the proximity of residential development, schools, and the special exception uses, besides endeavoring to distinguish the area from other R (Rural) Districts that might be less developed or have less development potential, was to demonstrate receptors for the actual adverse effects from Glenair’s operation based on noise and safety concerns. As to noise, several witnesses, in addition to Robert V.L. Sharp, attested to being annoyed, irritated, or otherwise having the enjoyment of their property intruded upon by Glenair-related air traffic or unidentified flights that they associated with the existence of Glenair. Witnesses who addressed safety concerns conjured reports of military, commercial, and general aviation accidents, some of which they had witnessed and others repeated from hearsay, that had resulted in human tragedy and property damage.

The spectre of a replication of such an event in the area of Glenair was visualized by the opponents. Appellants’ other assault on the special exception application was aimed at a perceived adverse effect on property values. Testimony of reductions in tax assessments on two vicinal properties was related to the presence of the airstrip. Bruno Reich, one of the applicants whose property was subject to the Declaration of Covenants, had requested and received a reduction in the assessment on two of the sub-lots of his parcel because the restrictions of the easement creating the airstrip precluded the erection of buildings on the sub-lots that fell within the easement.

The assessment on the balance of Reich’s parcel was apparently unaffected by the existence of the airfield. One of the opponents, Charles Sharp, had obtained a 10% reduction in the fair market value of his property due to “airport factors.” This reduction, denied him by the local Supervisor of Assessments & Taxation, was achieved only after the Maryland Tax court sustained a decision apparently by the local Property Tax Appeals Board in Mr. Sharp’s ⁷¹ favor after the Supervisor appealed. 6 The Board, in its questioning of the applicants’ appraisal witness, Walter Reiter, also elicited an opinion that an airfield would likely be a factor that potential home buyers would consider as mitigating against purchasing a home in the vicinity of the airfield. The Board, in its 9 March 1989 Decision and Order conditionally granting the special exception, found as follows with regard to the appellants’ opposition evidence: The protestants’ concerns about adverse effect fall into two categories — noise from the operation of the airplanes, and their fears that an airplane will crash onto the ground, potentially on a house or one of the nearby schools. Addressing the possibility of an airplane crash, while the prospect may present a frightening vision, the statistics on the probability of such an occurrence submitted by the Petitioners illustrates the unlikelihood of this happening.

Further, in reference to the nearby schools, the Noise Control Plan prohibits overflights of the three schools, so the possibility of a crash on one of the schools seems even less likely. Therefore, the owners of vicinal properties are not adversely affected by what is a remote possibility of one of the two or three planes crashing. The noise generated by these three planes, to which the Board will limit this operation to 7:00 a.m. to 10:00 p.m., is not of a degree sufficient to constitute an adverse effect upon the vicinal property owners. While any individual homeowner might not like the sound of an airplane’s engine near his or her home, the operation of the three planes that may be stored on the airstrip do not rise to the level of adverse effect as contemplated by the Zoning Regulations. ⁷² However, the Board is changing the beginning of the hours of operation from 6:00 a.m. to 7:00 a.m. to ameliorate the impact of any noise upon adjacent landowners.

As an amplification of this attempt of showing adverse effect, many of the protestants have recounted instances of planes buzzing certain locations, and planes manifesting excessive noise. There was no evidence that these planes were any of those operated by the Petitioners.[ 7 ] Obviously the Petitioners cannot be held responsible for the actions of airplanes over which they have no control. This also applies to those instances where unauthorized planes or helicopters land at Glenair. If the Petitioners follow the Noise Control Plan, which they must, they will see to it that Section 15, VISITING AIRCRAFT, is carried out.

This should minimize the number of landings of unauthorized aircraft. As an adjunct to the protestants’ inclusion of all incidents of small planes acting inappropriately, they also would have the Board consider their contention that the mere presence of the airport constitutes an attractive nuisance, drawing numerous disturbing flights in the area. This theory could apply to any location of a private airport. Presumably the Zoning Board was aware of the nature of private airports and any attraction they might have for other planes.

Further, the instances recounted by the protestants do not rise to the level of adverse effect from the use. The Board did not, in its Decision and Order, render any finding or conclusion regarding the appellants’ argument and supporting evidence as to Glenair’s effect, if any, on vicinal property values, apparently viewing it as an inherent consequence of the operation of a private airstrip regardless of where it was located in the R (Rural) District in Howard County. ⁷³ ANALYSIS Appellants contend that the Board did not properly apply the standard announced in Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981). They claim that the Board erred when it refused to make a finding of fact regarding the uniqueness of adverse effects on vicinal properties, in the face of uncontroverted evidence of both adverse effects and unique adverse effects on the vicinal properties. Relying on Anderson, American Law of Zoning, § 21.06, appellants suggest that all special exception uses generate some adverse effects, apparently regardless of where they might be located within a zoning district or category.

The full impact of these adverse effects is tempered, in the first instance, by the express conditions placed on them and the findings required to be made before they can be approved by the legislative body, and, in the final analysis, by the application of the Schultz v. Pritts standard to the facts and circumstances of each individual petition as determined by the appropriate administrative agency. In that final analysis, appellants postulate that Schultz v. Pritts can only be correctly applied if the agency, the Board in this case, first identifies the universe of potential adverse effects inherently associated with the abstract special exception use (which the legislative 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. The dispute over the interpretation and application of Schultz v. Pritts in the instant case stems, it seems to us, from two sources: (1) the Board unnecessarily courting a reversal of its action by not casting its Decision and Order in language more precisely parallel to the language of Schultz ; and, (2) the appellants’ interpretation of the holding of Schultz as if it were the atomic chart of elements from which a formula for divining inherent and peculiar adverse effects could be derived.

A ⁷⁴ close examination of how the Court arrived at Schultz v. Pritts, and those cases construing and applying Schultz , will reveal the bases for these two observations. The late Judge Rita Davidson painstakingly traced the nature of special exceptions in Maryland as she developed the foundation for the Court’s ultimate holding in Schultz : The general purpose of adequate land planning is to guide and accomplish the “coordinated, adjusted, and harmonious development of [a] jurisdiction ... which will ... promote ... [the] general welfare.” Zoning is one of the important elements of land planning that is used to further this purpose. # * % * * Zoning provides a tool by which to establish general areas or districts devoted to selected uses. Indeed, the very essence of zoning is the territorial division of land into use districts according to the character of the land and buildings, the suitability of land and buildings for particular uses, and uniformity of use. Generally, when a use district is established, the zoning regulations prescribe that certain uses are permitted as of right (permitted use), while other uses are permitted only under certain conditions (conditional or special exception use).

In determining which uses should be designated as permitted or conditional in a given use district, a legislative body considers the variety of possible uses available, examines the impact of the uses upon the various purposes of the zoning ordinance, determines which uses are compatible with each other and can share reciprocal benefits, and decides which uses will provide for coordinated, adjusted, and harmonious development of the district. Because the legislative body, in reaching its determination, is engaged in a balancing process, certain uses may be designated as permitted although they may not foster all of the purposes of the zoning regulations and, indeed, may have an adverse effect with respect to some of these purposes. Thus, when the legislative body determines that the ⁷⁵ beneficial purposes that certain uses serve outweigh their possible adverse effect, such uses are designated as permitted uses and may be developed even though a particular permitted use at the particular location proposed would have an adverse effect above and beyond that ordinarily associated with such uses. For example, churches and schools generally are designated as permitted uses.

Such uses may be developed, although at the particular location proposed they may have an adverse effect on a factor such as traffic, because the m,oral and educational purposes served are deemed to outweigh this particular adverse effect. When 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. For example, funeral establishments generally are designated as special exception uses.

Such uses may not be developed if at the particular location proposed they have an adverse effect upon a factor such as traffic because the legislative body has determined that the beneficial purposes that such establishment serve do not necessarily outweigh their possible adverse effects. More particularly, by definition, a permitted use may be developed even though it has an adverse effect upon traffic in the particular location proposed. By definition, a requested special exception use producing the same adverse effect at the same location must be denied. Thus, by definition, a church may be developed even if the volume of traffic that it generates causes congestion and unsafe conditions at the particular location proposed.

By definition, however, a special exception use for a funeral establishment producing the same volume of traffic and, therefore, the same congestion and unsafe conditions at the particular location proposed must be denied. It is precisely because a ⁷⁶ permitted use may be developed even though it may have an adverse effect on traffic at the particular location proposed, whereas a special exception use may not, that to grant a requested special exception use on the ground that it generates traffic volume no greater than that generated by a permitted use is logically inconsistent and in conflict with previously established standards, (citations and footnotes omitted) (emphasis in original and supplied). 291 Md. at 19-22 , 432 A.2d 1319 . Judge Davidson equally patiently, but more