Umerley v. PEOPLE'S COUNSEL FOR BALTIMORE CTY.

BISHOP, Judge. Appellants, Leo and Wanda Umerley, filed a petition requesting that the zoning commissioner of Baltimore County grant a special exception for a Class II Trucking Facility and certain variances. The Commissioner denied the petition for a special exception and dismissed the variances. The Umerleys filed a timely appeal to the Board of Appeals of Baltimore County.

After a de novo hearing, the Board of Appeals granted the requested special exception and variances. Appellees, the People’s Counsel for Baltimore County, the Nottingham Improvement Association, residents of the Nottingham neighborhood, and Gary Hoffman, owner of a business property adjacent to that of the Umerleys, filed an appeal of the Board of Appeals’s decision to the Circuit Court for Baltimore County. Following oral argument, the circuit court reversed the Board of Appeals’s decision, and the Umerleys noted an appeal to this Court. ISSUE The Umerleys raise a single issue on appeal, which we subdivide and rephrase: ⁵⁰⁰ I. Did the Board of Appeals properly grant the variances?

II

Did the Board of Appeals properly grant the special exception? FACTS The subject of this appeal consists of 8.5 acres that were acquired by the Umerleys over a period of thirty-one years. The property lies northeast of Baltimore City, and is bordered by Philadelphia Road to the north, by a line of the Baltimore & Ohio Railroad to the south, and by unimproved, wooded property to the east and west. The property is primarily zoned Manufacturing Light, Industrial Major (“M.L.-I.M.”), and lies directly across Philadelphia Road from the residential neighborhood of Nottingham.

Philadelphia Road itself is a two-lane artery that lies between U.S. Interstate 95 and U.S. Route 40 (Pulaski Highway); the land to its north is generally zoned for residential use, while the land to its south is zoned for industrial use. The Umerleys acquired the first part of the 8.5 acre parcel in the mid-1950s. That lot, which consists of 2.5 acres, was improved by a two-bay garage in 1958. In 1961, the garage was expanded to four bays, and in 1982, an office complex was constructed next to the garage.

The lot is mostly paved and is used for “employee automobile parking, truck parking, and frontage landscaping.” In 1982, the Umerleys acquired the second part of the 8.5 acre parcel. That lot, which consists of 2.8 acres, is almost entirely paved and is used for truck and trailer parking. In 1989, the Umerleys acquired the third part of the 8.5 acre parcel. That lot consists of 3.2 acres and is vacant and wooded.

In 1976, the Baltimore County Council passed regulations designed to minimize the impact of trucking facilities on environmentally sensitive and residential areas. Recognizing the adverse effect of the regulations on existing trucking facilities, the council included provisions that allowed such ⁵⁰¹ trucking facilities to exempt themselves from the new laws. We paraphrase these exemptions as follows: 1) All existing Class II trucking facilities had to file plans demonstrating their “layout and operation of use” with the county within one year of the passage of the law. (BCZR 410A.1.A.1,410A.1.A.2, 410A.3.C.1). 2) Within one year of the date those plans were filed, the Zoning Commissioner was required to determine if they complied with selected provisions of the new regulations, or whether they were permissibly exempt from those regulations.

(BCZR 410A.1.B.1, 410A.1.B.2, 410A.1.B.3). 3) If the Zoning Commissioner determined that the filed plans did not comply with the appropriate regulations, and were not permissibly exempt from those regulations, the trucking facility was required to file: a) a program of compliance showing that the appropriate regulations would be met within twenty-seven months (BCZR 410A.1.C.1); or b) a petition requesting that the facility not be required to meet the appropriate regulations because “conformance with the provision would cause undue hardship and would not be in the general interest of the community....” (BCZR 410A.1.C.2). 4) Failure of a trucking facility to file plans with the county at all (in conformance with BCZR 410A.1.B.1 or 410A.1.B.2) meant that the facility lost the right to exist as a trucking facility three years from the date the new law was passed. (BCZR 410A.1.D.1 and 410A.1.D.2). Failure of a nonconforming trucking facility to file either a program of compliance or a petition for noncompliance (in conformance with BCZR 410A.1.C.1 or 410A.1.C.2) meant that the facility lost its right to exist as a trucking facility three years after the determination of noncompliance by the Zoning Commissioner. (BCZR 410A.1.D.3).

If a trucking facility failed to comply with the applicable exemption provisions and thus lost the right to exist as a trucking facility, it could only continue operations by qualifying as a new use. ⁵⁰² The Umerleys operated a trucking facility on the original 2.5 acre parcel at the time the 1976 regulations were passed; and their facility violated those regulations. The Umerleys never complied with the exemption provisions of the new law, and lost the right to maintain a trucking facility on the property. In spite of this fact, the Umerleys never shut down their facility; they actually expanded it in 1982 and 1988. For the 1982 expansion, the Umerleys obtained a permit from the county’s Department of Permits and Licenses.

On the application for that permit, the Umerleys represented that the land was to be used for the operation of a contracting business, rather than a trucking facility. In the late 1980s, as a result of complaints from nearby businesses and residents, the county authorities finally noted the Umerleys’ zoning violations. In response, the Umerleys moved to legalize the use of their land by filing a petition for the following: 1) A special exception to allow a Class II trucking facility in the M.L.-I.M. zone. (BCZR 253.2.A.6, 410, 410A). 2) A variance to allow a trucking facility within 300 feet of residential zones or residences.

(BCZR 410A.2). 3) A variance to allow a trucking facility within 200 feet of wetlands. (BCZR 410A.2). 4) A variance to allow a trucking facility within 200 feet of Philadelphia Road. (BCZR 253.4). 5) A variance to allow automobile parking within 25 feet of a residential zone. (BCZR 410A.2). 6) A variance to allow the percentage of the facility devoted to truck and trailer parking to be 35.5 percent of the site used for trucking operations as opposed to the required 75 percent.

(BCZR 410A.3.B.3). 7) A variance requesting a reduction of the sideyard building setback from fifty feet to seven feet within the increased setback area. (BCZR 243.2). As stated supra, the zoning commissioner denied the Umerleys’ petition, but the Board of Appeals of Baltimore County reversed that decision after a de novo hearing, and the Circuit ⁵⁰³ Court for Baltimore County reversed the Board of Appeals’s decision. DISCUSSION Standard of Review The order of a county zoning authority “must be upheld on review if it is not premised upon an error of law and if [its] conclusions ‘reasonably may be based upon the facts proven.’ ” Ad + Soil, Inc. v. County Commissioners of Queen Anne’s County, 307 Md. 307, 338 , 513 A.2d 893 (1986) (citing Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 399 , 396 A.2d 1080 (1979)).

See also Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287 , 96 A.2d 261 (1953) (zoning authority must properly construe controlling law); Northampton Corp. v. Prince George’s County, 273 Md. 93, 101 , 327 A.2d 774 (1974) (action of zoning authority is “fairly debatable” if based on substantial evidence); Board of County Commissioners v. Holbrook, 314 Md. 210, 218 , 550 A.2d 664 (1988) (fairly debatable test “accords with the general standard for judicial review of the ruling of an administrative agency, which [is] defined as ‘whether a reasoning mind reasonably could have reached the factual conclusion the agency reached; this need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment.’ ”); Ocean Hideaway Condominium Ass’n. v. Boardwalk Plaza Venture, 68 Md.App. 650, 665 , 515 A.2d 485 (1986) (no substantial evidence to support factual findings of zoning authority; because of the lack of substantial evidence, zoning authority’s decision was not fairly debatable, and thus was “arbitrary, capricious and a denial of due process of law.”). An application of the above standard requires that we undertake the three-step analysis set forth by this Court in Comptroller v. World Book Childcraft, 67 Md.App. 424 , 508 A.2d 148 (1986): 1. First, the reviewing court must determine whether the agency recognized and applied the correct principles of law ⁵⁰⁴ governing the case. The reviewing court is not constrained to affirm the agency where its order “is premised solely upon an erroneous conclusion of law.” 2.

Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency’s factual findings to determine if they are supported by substantial evidence, ie., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.... 3. Finally, the reviewing court must examine how the agency applied the law to the facts. This, of course, is a judgmental process involving a mixed question of law and fact, and great deference must be accorded to the agency. The test of appellate review of this function is “whether ... a reasoning mind could reasonably have reached the conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles].” Id. at 438-39 , 508 A.2d 148 (citations omitted).

Also, unlike our review of a trial court’s judgment, we will only uphold the decision of an agency on the basis of the agency’s reasons and findings. United Steelworkers of America AFL-CIO v. Bethlehem Steel Corp., 298 Md. 665, 679 , 472 A.2d 62 (1984). We may search the record for evidence to support a trial court’s judgment; and we may sustain that judgment for a reason plainly appearing on the record, even if the reason was not relied on by the trial court. Id.

But we may not uphold an agency’s decision “unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” Id. I. Variances The zoning commissioner of Baltimore County and the Board of Appeals of Baltimore County are given the power to grant variances by BCZR 307.1, which provides as follows: The zoning commissioner of Baltimore County and County Board of Appeals, upon appeal, shall have and they are hereby given the power to grant variances from height and ⁵⁰⁵ area regulations, from off-street parking regulations and from sign regulations, 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 zoning regulations for Baltimore County would result in practical difficulty or unreasonable hardship. No increase in residential density beyond that otherwise allowable by the zoning regulations shall be permitted as a result of any such grant of a variance from height or area regulations. Furthermore, any 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 public health, safety, and general welfare.

They shall have no power to grant any other variances. Before granting any variance, the zoning commissioner shall require public notice to be given and shall hold a public hearing upon any application for a variance in the same manner as in the case of a petition for reclassification. Any order by the zoning commissioner or the County Board of Appeals granting a variance shall contain a finding of fact setting forth and specifying the reason or reasons for making such variance. In the appeal before the circuit court, the parties clashed over the following question: whether the