Trinity Assembly of God of Baltimore City, Inc. v. People's Counsel for Baltimore County

EYLER, DEBORAH S., J. The instant zoning dispute over a sign is approaching its sixth year in litigation. On September 9, 2002, Trinity Assembly of God of Baltimore City, Inc. (“the Church”), the appellant, filed a petition for variance with Baltimore County, seeking to vary the height and square footage limitations for a sign on its property (“Property”). The Deputy Zoning Commissioner took evidence and denied the petition. The Church appealed to the County Board of Appeals (“Board”), which ²³⁵ held a de novo evidentiary hearing.

It also denied the petition. In the Circuit Court for Baltimore County, the Church brought an action for judicial review. The People’s Counsel for Baltimore County (“the County”) appeared as the respondent. The court upheld the final decision of the Board but remanded the matter for the Board to consider the application of 42 U.S.C. section 2000ec, et seq., known as “The Religious Land Use and Institutionalized Persons Act” (“RLUIPA”).

The Board did so, and again denied the petition. In a second action for judicial review, the circuit court affirmed the Board’s final decision. We have before us now the Church’s appeal from the judgment in that action. The County is the appellee in this Court.

The Church raises two questions for review, which we quote: I. Did the Board fail to apply the correct law of variances as to “uniqueness” and err in its determination that [the Church’s] burden was not met?

II

Did the Board err as a matter of law when it found that the proposed use constitutes religious exercise, but compelling interests exist which present no substantial burden on religious exercise? Was the Board’s denial of the variances arbitrary and capricious since [the County] failed to support [its] objections with legally sufficient empirical data? For the following reasons, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS The Property is comprised of 15 acres of land situated along side the inner loop of the Baltimore Beltway (Interstate 695), in the greater Towson area.

Its address is 2122 West Joppa Road. It is in a low-density residential zone in which a church is a permitted use. ²³⁶ The Property is a rectangular parcel that is nestled at the intersection of the Beltway and West Joppa Road, which runs northeast across the Beltway, by overpass. Its westernmost short side is adjacent to the east side of West Joppa Road. Its northernmost long side is adjacent to a portion of the Beltway that is slightly east of Exit 23 (Interstate 83/Pikesville/Falls Road) and west of Exit 24 (Interstate 83).

That particular segment of the Beltway actually is both 1-695 and 1-83. For a vehicle to travel from 1-83 North inside the Beltway (the Jones Falls Expressway) to 1-83 North outside the Beltway (Harrisburg Pike), the driver must traverse the eastbound segment of 1-695 of which we speak. Another church is located immediately across West Joppa Road from the Property; and yet a third church is located directly across the Beltway, also on the east side of West Joppa Road. There is a country club (also a permitted use in the zone) catty-corner to the Property, across the Beltway.

The Church currently has two signs visible from a highway. One is an identification sign measuring 36 square feet located at the Church’s entryway on Joppa Road. The second is a double-sided sign that was erected when the original primary building was constructed in 1980; its replacement is the subject of this appeal. It is situated at the northwest corner of the Property, facing west, toward oncoming traffic on the inner loop, which at that point in the Beltway is roughly eastbound.

Much of the Property’s border with the Beltway is walled off by 20- to 25-feet-high sound barriers that were erected by the County in the 1990s. The sound barriers end just to the east of the sign. The sign is made of wood, is 6 feet high by 4 feet wide, and is mounted on two 6 inch by 6 inch treated lumber supports. It identifies the Church as “Trinity” in large letters and “Assembly of God” in smaller letters.

At night, the sign is illuminated by a ground-mounted light fixture. Because of the configuration of the Beltway and the West Joppa Road overpass, a sign at that location only can be seen by travelers on the inner loop. Also, a sign at that location ²³⁷ does not have directional value, ie., its location is not close enough to a Beltway exit from which the Church can be accessed to direct Beltway travelers to its site. In its petition, the Church sought a variance from Baltimore County Zoning Regulation (“BCZR”) section 450.4 Table of Sign Regulations (“450.4 Table”), to permit a single-faced, freestanding, illuminated identification sign of 250 square feet in area, in lieu of the allowed 25 square feet, and 25 feet in height, in lieu of the allowed 6 feet, with part of the sign being “changeable copy,” operated electronically.

The changeable copy segment of the proposed sign is designed to be in the middle area of the sign, approximately 5 feet high and 18)6 feet wide. The evidentiary hearing before the Deputy Zoning Commissioner took place on October 15, 2002. Witnesses in support of the petition were George Raduano, the pastor of the Church; Ellis Shapos and Robert Weaber, representatives of Visual Message and Display, Inc., the designer of the new sign; and counsel for the Church. Appearing in opposition to the petition were several residents of the surrounding community and Peggy Squitieri, a representative of the Ruxton/Riderwood/Lake Roland Area Improvement Association.

The Deputy Zoning Commissioner issued his memorandum opinion and order denying the variance request on October 23, 2002. He found as follows: After considering the testimony and the evidence offered both in support and in opposition to the [Church’s] request, I find that the variance request to permit the sign in question to be constructed on the [Church’s] property should be denied. Of particular concern to me was the flashing message portion of the sign in question. The testimony offered at the hearing did demonstrate that the old sign is out-dated and is in need of replacement.

However, the sign proposed to replace the old sign is not appropriate and cannot be approved. The Church appealed to the Board, which, on July 17 and 29, and December 10, 2003, held a public evidentiary hearing. ²³⁸ Appearing in favor of the requested variance were: 1) Pastor Raduano, who testified that the Church intended to use the proposed sign to post directions, community activities, scripture verse and other inspiring messages; 2) Mr. Shapos; 3) Dr. Robert James Claus, who was accepted as an expert witness on signs and the sign industry; and 4) William Monk, who was accepted as an expert in the Baltimore County zoning and development regulations. Appearing in opposition were 1) Jeffrey Long, of the Baltimore County Planning Office, who was accepted as an expert in planning; 2) George Jensen, a resident of the general area of the Church; 3) Patricia Huffman, president of the Heatherfield Community Association; 4) Ms. Squitieri; 5) Randall Scott, an Assistant District Engineer for Traffic for the State Highway Administration (“SHA”), who testified among other things about concerns the SHA had about the erection of a blinking and flashing sign at that portion of the Beltway; 6) Jack Dillon, an expert in planning and zoning; and 7) Donald Gerding, a representative of the Greater Timonium Community Council. Numerous documents were admitted into evidence.

On July 2, 2004, the Board issued a 34-page opinion denying the petition for variance. The Board devoted 22 pages of its opinion to background and context information and summaries of the testimony of each witness. The Board then described the question before it: It is to be noted that the proposed sign is for an institution [a church] which is permitted as a matter of right in the [Density Residential 2] zone. The only question is one of the present height limitations of 6 feet and an area limitation of 25 sq. ft.

The Board is required to apply the law of variances as prescribed by Baltimore County Zoning Regulations (BCZR) § 307.1. That legislation requires the Board to grant variances from “height and area regulations, and from sign regulations only in cases where special circumstances exist that are peculiar to the land or structure which is the subject of the variance request, where strict compliance with the zoning regulations would result in practical difficulty or unreasonable hardship ... and any such vari ²³⁹ anees shall be granted only if in strict harmony with the spirit and intent of said height, area, off-street parking, or sign regulations, and only in. such manner as to grant relief without injury to the public health, safety and welfare.” The Board proceeded to discuss the particulars of the issue before it and to conclude: 1) the Property is not “unique” within the meaning of that term as explained in the relevant zoning case law; 2) alternatively, there is no “practical difficulty” with respect to the Property; 3) the BCZR sign ordinance is not unconstitutional; and 4) the Board did not have jurisdiction to decide “the issue of whether or not [RLUIPA] applies to the instant case” because “it is not within [the Board’s] jurisdiction to rule on the applicability of Federal statutes.” The Church filed its action for judicial review on July 22, 2004. The parties submitted memoranda of law and appeared before the court for oral argument. On May 31, 2005, the court issued a “Judgment and Order” determining that the Board’s factual findings that the Property was not “unique” and did not present “practical difficulties” were supported by substantial evidence in the agency record; and that the Board properly found, as a matter of law, that the section of the BCZR governing signs “do[es] not offend the freedom of speech, the freedom of exercise of religion, or freedom of assembly, guaranteed by the Constitution of the United States and the Maryland Declaration of Rights.” The court decided, however, that it was within the power of the Board to consider and decide “the effect [RLUIPA] might have on the [Church’s] request for a sign variance[,]” and remanded the matter to the Board for that purpose.

On remand, the Board heard oral argument from counsel representing the parties and conducted a public deliberation. On October 8, 2006, the Board issued its opinion on remand and found that the denial of a variance did not work a substantial burden on the Church’s religious exercise, and, as such, did not violate RLUIPA in the enforcement of the County’s sign regulations. Alternatively, the Board found that denying the Church’s variance request was the least ²⁴⁰ restrictive means available to further the County’s compelling interest in traffic safety and community aesthetics as reflected in the County’s sign regulations. Accordingly, the Board again denied the variance petition.

The Church brought a second action for judicial review and the parties submitted memoranda and made oral arguments as before. On January 23, 2007, the court issued a “Ruling and Order” affirming the decision of the Board. The court stated: [T]he record of proceedings before the [Board] contains substantial evidence in the agency record to support the Board’s finding that “Baltimore County ‘demonstrated a compelling interest in the passage of the sign ordinance which would reduce the number of distractions to motorists on the county’s roads and highways and would reduce the clutter and excessive incompatible signage which had appeared throughout the County’ ... [and] ‘that the passage of the sign regulation in Baltimore County’ ” ... “ ‘is the least restrictive means of furthering that compelling government interest’.... Accordingly, the [Board] was correct in concluding that the denial of [the Church’s] application for a sign variance was not a violation of [RLUIPA].” The Church noted a timely appeal to this Court.

We shall include additional information as necessary to our discussion of the issues. DISCUSSION I. The zoning regulations governing signs in Baltimore County can be found at BCZR section 450, et seq. By means of definitions and a table of regulations, that section controls the type, nature, size, and number of signs that may be erected on properties in Baltimore County. Two classes of sign are relevant to the case at bar: 1) “Changeable Copy,” which “mean[s] an on-premises sign displaying a message which may be changed periodically, manually, or by electric or electronic controls[,]” and 2) “Identification,” which “mean[s] a sign ²⁴¹ displaying the name or purpose of a place or structure.” BCZR 450.4 Table.

One changeable copy sign is allowed as an accessory to an “institutional structure,” which pursuant to section 450.3 includes a church. Such a sign may be wall-mounted or freestanding, may be illuminated, and may not exceed 25 square feet in area and 6 feet in height. It requires a use permit. BCZR 450.4 Table.

Identification signs—one for each frontage of the property—also are allowed as an accessory to a church. They may be wall-mounted or freestanding, may be illuminated, may not exceed 25 square feet in area and 6 feet in height. They also require a use permit. The authority to grant variances from zoning regulations, including from sign regulations, is conferred upon the Zoning Commissioner and the Board pursuant to BCZR 307.1.

As pertinent to the issues in the case at bar, that regulation provides that, the power to grant variances from height and area regulations, from off-street parking regulations, and from sign regulations [exists] only in cases where special circumstances or conditions exist that are peculiar to the land or structure which is the subject of the variance request and where strict compliance with the [BCZR] would result in practical difficulty or unreasonable hardship.... [A]ny such variance shall be granted only if in strict harmony with the spirit and intent of said height, area, off-street parking or sign regulations, and only in such manner as to grant relief without injury to the public health, safety and general welfare. BCZR 307.1 (emphasis added). In Cromwell v. Ward, 102 Md.App. 691 , 651 A.2d 424 (1995), Judge Cathell, then a member of this Court, explained that the variance authority conferred by BCZR 307.1, like the variance authority conferred upon non-charter counties by Article 66B of the Maryland Code, implicates two issues: uniqueness and practical difficulty. Id. at 694-96 , 651 A.2d 424 .

Specifically, the requirement that variances be granted ²⁴² only when “special circumstances or conditions exist that are peculiar to the land or structure which is the subject of the variance request” is a uniqueness criterion that must be satisfied—even though the word “unique” is not used; and if that first criterion is met, practical difficulty or unreasonable hardship also must be shown. Id. at 698-99 , 651 A.2d 424 . With respect to uniqueness, Judge Cathell further explained: [T]he initial factor that must be established before the practical difficulties, if any, are addressed, is the abnormal impact the ordinance has on a specific piece of property because of the peculiarity and uniqueness of that piece of property, not the uniqueness or peculiarity of the practical difficulties alleged to exist. Id.

(emphasis in original). See also Mueller v. People’s Counsel for Baltimore County, 177 Md.App. 43, 70 , 934 A.2d 974 (2007) (stating that the uniqueness factor for obtaining a variance “requires a finding that the property whereon structures are to be placed (or uses conducted) is—in and of itself—unique and unusual in a manner different from the nature of surrounding properties such that the uniqueness and peculiarity of the subject property causes the zoning provision to impact disproportionately upon that property.”) (quoting Cromwell, supra, 102 Md.App. at 694-95 , 651 A.2d 424 ). In the case at bar, the Board found, in its initial opinion, that the Church did not satisfy the uniqueness criterion and on that ground alone would not be granted the requested variance from the height and area requirements of the sign regulations. The Board explained as follows: The first requirement [for a variance] obviously imposed on the Board is to determine whether or not, as a finder of fact, uniqueness is present as to the land or structure.

The “uniqueness” requires that “the subject property have an inherent characteristic not shared by other properties in the area.” The Board as the finder of fact has no difficulty determining, from the testimony and the evidence submitted, that the subject property is not “unique” within the guidelines of Cromwell . ²⁴³ Unlike many variance request cases that come before the Board where very little is known about the subject property in question by the Board members, this case is unusual because all three panel members have considerable knowledge of the location of the [Cjhurch, and that portion of the eastbound Baltimore Beltway that intersects with 1-83, the Harrisburg Expressway. To that extent, Maryland law permits the Board members to bring into focus their own experiences with the roadway system and driving observations in the area. All three member [sic] of this panel have viewed the sanctuary during daylight hours in the locale of the sound barriers and architectural style of the roof, and are aware of the dangers inherent in “weaving” and “merging” attempts in the area of the [C]hurch. All agree that motorists must be alert and cautious driving in the area and that the height and area face of the proposed sign would be a dangerous distraction to motorists driving eastbound in the direction of northbound 1-83.

Irrespective of that factor is the overwhelming weight of evidence and testimony of participants in the hearing. The Board points significantly to the testimony of Mr. Jeffrey Long, who was accepted as an “expert planner.” He adequately described the predominantly residential use of the neighborhood. As a planner familiar with the area, he did not consider the subject property to be unique. Other churches in the immediate area of Trinity also had identification problems, since their facilities are only partially visible from the Beltway—or not visible at all but were not requesting additional signage as evidence in this case.

The Board credits Mr. Long’s testimony. The [Cjhurch occupies approximately 15 acres with the original buildings constructed around 1980. The existing sanctuary was built around 1994, which is the building farthest from [West] Joppa Road. At the time the sound barrier was being constructed, the [Church] was able to work out an agreement with the State Highway Administration to provide a “break” in the barrier wall to provide a ²⁴⁴ view of the [C]hurch from eastbound 1-695.

The fact that the church is located adjacent to the Beltway does not make it “unique,” since, as Mr. Long opined, “there are many other uses with double frontage to their properties, and in no way unique given its topography.” Based on his experience as an area planner, Mr. Long did not believe it had any topographical or geographical characteristics that would make it unique. There exists many miles of similar type sound barriers along the many miles of the Beltway, along with brush, shrubbery or tree plantings by the SHA to provide visual relief from the driving experience. In other words, being adjacent to the Beltway does not, in and of itself, constitute uniqueness. The testimony of the Protestants herein also could not confirm any uniqueness of the property.

The testimony of Pastor Raduano did not reflect any particular uniqueness to the property, but rather dealt with the [Cjhurch’s position relative to a need for large signage as opposed to conditions constituting “uniqueness.” In fact, the Pastor acknowledged that, while he resided in Elders-burg, and drove the Beltway on a weekly basis, he “could not recall a single institution along the Beltway that had a digital sign of the size or nature that was being proposed.” Similarly, Mr. Ellis Shapos, the designer of the proposed sign, in his testimony ... does not specifically reference the question of “uniqueness”—but rather concentrated on the need for the signage as an identification factor. Dr. Claus was accepted as an expert in signage and traffic safety. His testimony focused on traffic and safety issues. He admitted that he had only spent “probably five hours in preparing the case, other than travel,” hardly sufficient time to consider all local aspects of the case.

There is nothing tangible in his testimony concerning any unique aspects of the subject property. ²⁴⁵ Frankly, the Board was not impressed with the testimony of [Dr. Claus]. [He] dealt in generalities and not specifics. The Board was also not totally impressed with Mr. Monk’s analysis of why he considered the property unique. His analysis was that there were “several unique site considerations here, some of which did not exist at the first variance hearing years ago, which created a unique set of circumstances which drove, in part, the positioning, the size, and the height of the subject sign....” The Board in its analysis of the case and examination of the drawings does not consider that the bushes, the chain fence, the evergreensf,] or the barrier wall create “uniqueness” that are [sic] commonly found in many areas of the Beltway.... In summary, as to the uniqueness issue, the burden is on [the Church] to prove that fact by the evidence and testimony presented at the hearings.

The Board concludes that the [Church] has failed to meet its burden and the requested variance must be denied on the basis of that fact alone. (Citations to the record omitted.) In this appeal, the Church contends that “the Board failed to apply the correct law of variances as to ‘uniqueness’ ” and that, if the Board did not so err, it nevertheless erred in ruling as a matter of fact that the Church did not meet its burden to show “uniqueness” of the Property. As we shall explain, we disagree with both prongs of this contention. On the question whether the Board applied the correct variance law as to “uniqueness,” the Church argues as follows: While the Board addressed whether there was uniqueness present as to the land or structure, it failed to correctly state the law as to the definition of uniqueness.

The Board defined “uniqueness” as “special circumstances that exist that are peculiar to the land or structure,” but omitted the second part of the definition, which focuses on the disproportionate impact that the zoning provision has on the property. ²⁴⁶ In Umerley v. People’s Counsel, 108 Md.App. 497, 506 , 672 A.2d 173 (1996), this Court wrote: “A variance may only be granted after a two-step inquiry. First the zoning authority must determine whether the subject property is unique and unusual in a manner different from the nature of the surrounding