Zengerle v. Board of County Commissioners

Digges, J., delivered the opinion of the Court. “Keep your nose to the wind” is an old adage that local government officials must ignore in choosing a location for a sanitary landfill. Reconciled to this odious but necessary task, the appellees, the Frederick County Board of County Commissioners, selected a reasonably isolated 104 acre farm a few miles east of Frederick city as the site and braced themselves for the inevitable barrage of objections from landowners who considered themselves ³ downwind from the proposed facility. Joseph C. Zengerle, Jr. from the nearby town of Ijamsville, Maryland, and twenty-eight other property owners are the appellants in this case. Opposing the Commissioners at every turn, they ultimately failed to dissuade the County Board of Appeals from granting a conditional use permit, special exception and variance, all three of which were necessary to fully use the farm as a landfill in compliance with the county zoning ordinances.

They failed again on appeal before the Circuit Court for Frederick County (Clapp, J.) and, undaunted, they now seek review in this Court, where they principally argue that 1) the Appeals Board’s tripartite action was arbitrary, capricious and illegal, and 2) there was insufficient evidence before the Board to make the issue of a proper site selection fairly debatable. In an extensive and thoughtful memorandum Judge Clapp reviewed the myriad factual assertions and statutory interpretations that formed the basis of the Appeals Board’s resolution of this dispute. Having carefully sifted through the same material we find no occasion to paraphrase what he has said or error in his conclusions. Keeping in mind that references to “this court” refer to the Circuit Court for Frederick County, we shall adopt his opinion as follows: “This is an appeal from an order of the Board of Zoning Appeals of Frederick County granting to the County Commissioners of Frederick County, the applicant and appellee, a conditional use for the operation of a sanitary landfill in an A-l agricultural district.

In addition, the Board granted to the County an area variance permitting the proposed landfill to be operated, as to certain portions, within 25 feet of the boundary line in question as against the ordinary zoning requirement for landfills, ‘that the operations be confined to areas at least 200 feet distant from all adjoining property lines.’ ⁴ The property upon which the proposed landfill is sought to be operated is known as the Boyer farm and contains 104 acres more or less. It fronts approximately 700 feet on the southern edge of Reichs Ford Road, a paved county road, described by the County Engineer as not the best but in the upper one-third of such roads, and it runs back in a southerly direction about 1,700 feet. There is a meandering stream running through the property from north to south through a deep ravine, which stream empties into Bush Creek, a tributary of the Monocacy River. There is also a smaller ravine cutting through the property about mid-way between the Reichs Ford Road at the north and the rear of the property at the south that runs from northeast towards the southwest and joins with the large ravine and stream.

As stated, the Boyer farm is in an agricultural district and the adjoining lands are mainly used as farms although there are some houses and lots near the property to the west, fronting on the southern edge of Reichs Ford Road. / Under the proposed variance the nearest dwelling will be 800 feet from a portion of the landfill. CHRONOLOGY OF THE CASE Prior to October 16, 1967, the County Commissioners took an option upon the Boyer farm permitting the Board, amongst other things, to make preliminary tests looking to the use of the property for a sanitary landfill, the testimony in the case showing an urgent need in both the County and Frederick city for the disposition of waste and garbage. Thereafter, on October 16, 1967, the Board filed an application for a conditional use of the property as such a landfill ⁵ pursuant to county zoning regulations. 40-65(f). This section on that date provided for such use in an A-l agricultural district as follows: ‘Sec. 40-65 Conditional uses.

The following uses are conditional in the A-l district, requiring authorization by the board: (f) The disposal of garbage or refuse by the county or a municipality thereof, subject to the provisions of subsection (b) of section 40-143, provided, that these areas shall comply with five times the distance requirements of section 40-67. However, mechanical sewage treatment plants or sewage lagoons may be in any location recommended and approved by the Bureau of Environmental Hygiene of the Maryland State Department of Health and as approved by the Board.’ It will be noted that the Board of Appeals has original jurisdiction to hear such applications in accordance with Section 40-143, set forth in part as then provided as follows: ‘Sec. 40-143 Same — Conditional uses and special exceptions. (a) Generally. The board shall have the power to hear and decide, in accordance with the provisions of this chapter, applications filed as provided in this article, for conditional uses and special exceptions, or for decisions upon other special questions on which the board is authorized by this chapter to pass.

In considering any application for a conditional use or special exception, the board shall give due regard to the nature and condition of all adjacent uses and structures. In authorizing a conditional use or special exception, the board ⁶ may impose such requirements and conditions with respect to location, construction, maintenance and operation, in addition to those expressly stipulated in this chapter for the particular conditional use or special exception, as the board may deem necessary for the protection of adjacent properties and the public interest. (b) Specifically. In addition to permitting the conditional uses and special exceptions hereinbefore specified, the board shall have the power to permit the following conditional uses and special exceptions: (1) * * * * (2) Within any A or M district, the disposal of garbage or refuse by the county or a municipality or agents thereof.

(3) * * * * In connection with any of the uses in this section, the board may require the installation, operation and maintenance in or in connection with the proposed use of such devices and methods of operation as may, in its opinion, be reasonably required to prevent or reduce hazardous or congested traffic conditions, odor, dust, smoke, gas, noise or similar nuisances and it may impose such other conditions and requirements as may be necessary, in its opinion, to protect adjacent properties and neighborhoods and prevent conditions which may become obnoxious or offensive. In authorizing a conditional use or a special exception, subject to compliance with certain conditions, the board shall require from the owners, lessees or tenants of the property for which this conditional use or special exception is granted such evidence, written agreement, guarantee or bond as it ⁷ may deem necessary to ensure that the conditions stipulated by the board are being and will be complied with. Any such written agreement may be required by the board to be recorded among the land records of the county at the expense of the applicant.’ Section 40-140 establishes the guides and standards to be applied by the Board of Appeals in considering such applications. This section then and now provides: ‘Sec. 40-140.

Same — Limitations, guides and standards. Where, in this chapter, certain powers are conferred upon the board of appeals or the approval of the board of appeals is required before a permit may be issued or the board is called upon to decide certain issues, such board shall study the specific property involved and the neighborhood, cause the property to be posted in a conspicuous place, hold a public hearing, consider all testimony and data submitted, and hear any person for or against the issuance of the permit. However, the application for permit shall not be approved where the board finds the proposed building, addition, extension of building or use, sign, use or change of use would adversely affect the public health, safety, security, morals or general welfare or would result in dangerous traffic conditions or would jeopardize the lives of [sic] property of people living in the neigborhood. In deciding such matters the board shall give consideration, among other things, to the following: (a) The purpose, application, interpretation and standards of these regulations as provided in sections 40-2 to 40-4. ⁸ (b) Decisions of the circuit court of the county and the court of appeals of the state.

(c) The orderly growth of the neighborhood and community. (d) The most appropriate use of land and structure. (e) Facilities for sewers, water, trash and garbage collection and disposal and the ability of the county to supply such services. (f) Availability of fire-fighting equipment.

(g) The effect of such use upon the peaceful enjoyment of people in their homes. (h) The number of people residing, working or studying in the immediate areas. (i) The type and kind of structures in the vicinity where people are apt to gather in large numbers such as schools, churches, theatres, hospitals and the like. (j) Traffic conditions, including facilities for pedestrians, such as sidewalks and safety zones and parking facilities available and the access of cars to highways.

(k) The preservation of cultural and historic landmarks. (l) The conservation of property values. (m) The effect of odors, dust, gas, smoke, fumes, vibrations, glare and noise upon the uses of surrounding properties. (n) The contribution, if any, such proposed use, building or addition would make toward the deterioration of areas and neighborhoods.’ Four separate hearings were thereafter held by the Board of Appeals, testimony being heard both from witnesses for the County Commissioners and on behalf of the protestants to. the application who are the present appellants. ⁹ During the course of these hearings, it became apparent that zoning regulation 40-65 (f) as it then existed was an obstacle to any use of the property as a sanitary landfill because that section creating the conditional use required compliance with five (5) times the distance requirements of Section 40-67 and that latter section provided in part, ‘all uses, buildings or premises for which compliance with the distance requirements in this section is stipulated in the foregoing sections shall be distant at least 200 feet from any lot in any R-district or any lot occupied by a dwelling or by any school, church or any institution for human care located in the A-l district and not located on the same lot as such uses or buildings.’ As Section 40-67 was interpreted by the Board of Appeals, no conditional use for a landfill could have been granted within 1,000 feet from the boundary line of an adjacent property occupied by a dwelling, no matter how far distant the dwelling.

Accordingly, without any formal application being made for a variance, the Board in its approval of the conditional use of the property granted an area variance, this action being taken on December 15,1967. On June 11, 1968, following an appeal by the protestants and the hearing of arguments of counsel, this court entered an order remanding the case to the Board of Appeals for certain specific purposes. One of these was for the Board to consider the fact that the County Engineer had, without the knowledge of the protestants, communicated certain information to the Board by letter prior to its order on December 15, 1967, relating to preliminary approval of the site by the State Department of Health. This court in its remand desired that the Board ¹⁰ should give the protestants full opportunity to cross-examine the County Engineer, to present any evidence they desired in contradiction of his-L letter and then to reconsider its prior order in the light of all of the testimony.

A second reason for remand was the fact that one of the Board members had not been present at all four of the hearings and the court wished to be sure, that, before voting, he had fully familiarized himself with all of the testimony taken before casting his vote. A third and the most serious reason for remand was the fact that there had been no formal application for the variance and the record did not show that the protestants had a full notice and opportunity to be heard in connection with the granted variance. At the hearing of that first appeal this court indicated its view that the testimony with respect to the conditional use phase of the case appeared to present a fairly debatable issue but it made no formal finding in this connection because of the remand set forth above. Before any additional action was taken by the Board of Appeals upon remand, the County Commissioners of Frederick County, pursuant to their legislative authority, made changes in the applicable zoning ordinancés.

Amongst other things, they deleted the first sentence in Sec. 40-65 (f) as previously set forth and all of Sec. 40-143 (b) (2) and inserted new wording therein relating to conditional uses and special exceptions as follows: ‘Within any C, A, or M district the operation of a sanitary landfill by the county or municipality thereof, provided that the operations be confined to areas at least 200 feet distant from all adjoining property lines. ¹¹ Final approval by the Board of Appeals shall be contingent upon approval of State Health Department and the State Department of Water Resources. The following conditions shall be deemed mandatory: 1. The site shall have a permanent caretaker in order to prevent unauthorized or unsupervised dumping. 2. The operator shall provide screening necessary to prevent normal viewing into the landfill operations and to present an outwardly pleasant and maintained appearance.’ The case again came before the Board of Appeals for the taking of testimony in accordance with the remand order and it was there pointed out by the protestants that the above zoning amendment had not been filed with the clerk of the circuit court as required by Sec. 4 of Art. 25 of the Annotated Code and that, therefore, the amendment would not have the force of law.

The Board did not decide the question but proceeded to take testimony on the theory that such evidence would be pertinent regardless of whether their decision had to be made under the former ordinance or under the amendment. This testimony related to the three matters for which the case was remanded but the hearing was not concluded. The next day, on September 17, 1968, the amendment was duly filed in the office of the clerk of the circuit court for Frederick County and the hearing was resumed on October 1, 1968, at which time the filing of the amendment was called to the attention of the Board, and the protestants agreed that all testimony whether ¹² taken before or after remand should be considered by the Board in connection wtih any further order. Some testimony was taken at this hearing but most of it consisted of arguments of counsel.

On October 16, 1968, the Board of Appeals, apparently being of the opinion that the remand order of this court required it to report back, filed a paper in this court signed by all three members as follows: This is to advise you that additional testimony was taken on September 16, 1968, and October 1, 1968, in accordance with your Decree of June 11, 1968. It was determined from that testimony and testimony previously taken in this case that the following facts and conditions exist: FIRST: That the property in question does have exceptional and extraordinary conditions applying to it and its intended use, that do not apply generally to other properties in the same zoning district. The topographic characteristics that make the site ideal for landfill operations, also present major difficulties if the zoning ordinance distance requirements are literally enforced. A variance in this case is necessary if the site is to be used fully for a sanitary landfill.

This site is long and narrow and if the zoning ordinance is literally enforced much of the property will be unavailable for the purpose of the filling operations. In reviewing the testimony, it was determined by the Board that the features of this property that make it particularly desirable for an “area fill” type of landfill, also make it necessary for the granting of a variance if the property is going to ¹³ be used to its fullest extent and left in the most desirable condition. SECOND: The variance in this case is necessary for the preservation and employment of substantial property rights possessed by other properties in the same zoning district. The zoning ordinance permits sanitary landfills in A-l District as a conditional use.

Because of the extraordinary conditions of this property, it cannot be fully used as a sanitary landfill without granting a variance. THIRD: That the authorization of a variance will not be of substantial detriment to adjacent property and will not materially impair the purposes of this ordinance, or the public interest. As a matter of fact, the granting of the variance will be an advantage to the adjacent property owners in that the operation will be less visible and the property left in a better condition than if the variance is not allowed. Further, the granting of the variance will not impair the purposes of this zoning ordinance in that it still will permit the orderly growth of the County and, as a matter of fact, will greatly help the public and the purposes of the zoning ordinance.