Mills v. Godlove
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2761 September Term, 2009 JAMES L. MILLS, et ux. v. RON ALD GOD LOV E, et al. Matriccian i, Keho e, Hotten , JJ. Opinion by Hotten, J. Filed: July 7, 2011 The Euclidean1 method of zoning is generally how municipalities divide an area geographically into particular use districts, specifying certain uses for each district. People s Counsel for Baltimore County v. Loyola College in Maryland, 406 Md. 54, 70 (2008) (quoting Rouse-Fairwood Dev. Ltd. P ship v. Supervisor of Assessments for Prince G eorge s C ounty, 138 Md. App. 589, 623 (2001)). The Euclidean method was designed to achieve s tability in land use p lanning an d zoning a nd to be a c omparativ ely inflexible, self-executing mechanism which, once in place, allows for little modification beyond self-contained procedures for predetermined exceptions or variances. Loyola, 406 Md. at 70 (quoting The Mayor & Council of Rockville v. Rylyns Enter. s, 372 Md. 514, 53 4 (200 2)). In the present case, the Washington County Board of Zoning Appeals ( Zoning Board ) granted James L. Mills and Korina Mills, collectively appellants, a special exception and varian ce that wo uld allow th em to park paving eq uipment o n their property. Ronald Godlove and Gail McDowell, collectively appellees, appealed and the Circuit Co urt for W ashington County reve rsed the Zo ning Bo ard s decisio n. Appe llants noted an a ppeal and ask us to co nsider the fo llowing q uestions: 1. 1 Did the Circuit Court err in reversing the Board s grant of variance relief, where the variances were supported by substantial evidence of practical difficulty, and the resulting convenience to the applicant was merely incidental? Euclidean zoning is a fairly static and rigid form of z oning nam ed after the b asic zoning ordinance upheld in Village of Euclid v. Ambler Realty Co., 272 U .S. 365 (1926 ). Rylyns, supra, 372 Md. at 534. 2. Did the Circuit Court err in reversing the Board s grant of special exception, where the Board determined that no adverse effect from the proposed use at the proposed location had been shown? For the fo llowing rea sons, we c onclude th at the circuit co urt did not err in its determ ination. Factual and Procedural Background Appellan ts own prop erty in Was hing ton C ounty that is divided by Licking Creek Road. Appellants reside on the east side of the road and maintain a garage and paving equipment on the west side. After parking the paving equipment on the west side of the property without issue for seven years, a complaint was filed. As a result, appellants sought a spec ial ex cept ion a nd varian ce to continue par king the p avin g equipm ent o n the ir pro perty. On March 14, 2007, appellants appeared before the Zoning Board to request a special exception and varian ce. At the h earing, seve ral people tes tified and su bmitted letters in opposition to appellants request. Appellees wrote a joint letter objecting to appellants request. The letter ex plained tha t their father s e state, which is adjacent to and surrounds appellants property, would suffer a diminution in value. Moreover, the letter stated that there would be runoff into Licking Creek from the petroleum based produ cts. Appellees also testified at the hearing. McDowell testified that she was concerned that the special exception would run with the land, and that it may affect future use, which was still up in the air. McDowell also feared that there would be a petroleum runoff that would leach down into a flood plain owned by the estate, and then into Licking Creek. Godlove testified -2- that he opposed the sp ecial exception because he was conce rned that parking paving equipment on appellants property would be detrimental to the environment, and would affect proper ty values in the area . Judy Kline, the daughter of one of appellants neighbors, testified that she opposed the special exception because they have seven grandchildren and probably at one point we will put a residen tial building the re. How ever, Kline did not indic ate when this would occur. Kline also testified that she was concerned that when her grandchildren play near Lickin g Cree k, they w ould be near pa ving eq uipme nt. Terry McGee, the chief engineer for Washington County, submitted a letter, which read in pertin ent part: Although the paving condition[s] of Licking Creek Road are very poor, the business as described in the request is a low traffic generator and thus our requireme nts regarding p aving con ditions do n ot apply. Even though th is is a low vo lume tra ffic ge nerator , our standard requirement [is] 18 foot wide paving to s upport all no n resident d evelopm ent. The current road width is ge nerally only 16 feet wide, although several locations are less than that. As such, we do not recommend approval of the variance unless the applicant widens th e road to 18 feet minim um in accord ance w ith Cou nty policy. Mr. Mills testified and stated that it was not his intention to contaminate Licking Creek. He further stated that app ellants wou ld have to sto re the pavin g equipm ent ten to twelve miles away if they were not allowed to park it on the ir property, wh ich wou ld create [a] lot of inconvenience . . . . On April 13, 2007, the Zoning Board issued an opinion and made the following -3- findings o f facts: 1. The Appe llants ha ve ow ned the subjec t prope rty since 1 999. 2. Appellants operate a paving business and wis h to park their business vehicles on the property as they have been doing for the past seven years. 3. The v ehicles c onsist o f 4 dum p truck s, a backhoe, and a trailer with a paver and rol ler. 4. The Appe llants ha ve no p lans to re move any existin g vege tation. 5. Several neighbors objected to the property, but the Appellants advised that those same neighbors have never before objected to the parking of the vehicles on pro perty, as ha s been d one fo r seven years. 6. Widening one-half mile of Licking Creek Road would impose significant financ ial burd en on A ppellan ts, and m ay encou rage fu rther de velopm ent. 7. Received and filed with the Board w as a memora ndum from Terrence McGee, P.E., Chief Engineer in the Washington County Engineering Departm ent, stating that the department does not recommend approval of the variance request unless the road is w idened to th e minimu m 18 w idth required by Coun ty policy. 8. Received and filed with the Board was a memorandum from Kathy A. Kroboth, Washington County Zoning Coordinator, advising that the appeal is consistent with the Comp rehensive P lan, and w e find that the proposal is comp atible w ith the ne ighbor hood. In its decision, the Zoning Board explained that appellants p roperty is suited for the proposed use, and that it has been put to such use for the past seven years. Moreover, appellants property wa s unique f rom other lots in the area, which made strict compliance with the special exception requirements impossible. The Zoning Board then concluded that denying the requeste d variance would be a substa ntial injustice up on [a]pp ellants and that, -4- with the appropriate conditions,2 granting the variance [ would] u phold the spirit of the Ordin ance. The Zoning Board ultimately granted appellants special exception request to store contractor s equipme nt. It then granted a variance that reduced the three acre requirement to .12 acres; the 300 foot width requirement to ninety feet; the fifty yard setback require ments to five fe et on bo th side yar ds and fifteen feet in th e front ya rd. Appellees submitted a petition for judicial review to the Circuit Court for Washington Cou nty. On October 11, 2007, the circuit court issued an opinion, holding that the findings articulated by the Zoning Board were insufficient. The court explained that the Zoning Board s findings did not balance the beneficial purposes of the use w ith its possible adverse effect, nor [did] they support the notion that [appellants ] use of the property [did] not have an adverse effect above and b eyond that ordinarily associated with such uses. The circuit court also found that there were insufficient findings of facts to establish the uniqueness of appella nts property, or th at there wa s a practical difficulty in strictly complying with the req uirements for a storage yard exception. In the end, the circuit court reverse d the Z oning B oard s d ecision and rem anded for fur ther pro ceedin gs. On March 18, 2009, the Zoning Board held a second public hearing to address appellants request for a special e xceptio n and v ariance . At the hearing, appellants attempted 2 The Zoning Board s conditions were: (1) no maintenance on the subject p rope rty, (2) only the 4 dump trucks, a backhoe, and the trailer with a paver and roller were allowed to be parked on the subject property, and (3) only snow removal equipment could be parked on the s ubject p roperty w hen pa ving se ason en ded. -5- to clari fy that the proposed use would not have adverse effects above and beyond those inherently associated with storing contractor s equipment. Appellants also explained that the configuration of their property was unique because it was triangular in shape, had a steep drop-off in the rear, was very shallow, and that no other property in the area was divided by Licking Creek. Appellants then asserted that it would be a big hassle to park the equipment off-site beca use the neare st sto rage area was thirty m iles a way. 3 Appellees countered that appellan ts property wa s not uniqu e simply because o f its size, and tha t their proper ty was too small to store the numb er of ve hicles ap pellants desired . On April 16, 2009, the Zoning Board issued an opinion and rendered the following findings o f facts: 1. The Board adopts those Findings of Facts set forth in its original Opinion dated A pril 13, 2 007. 2. The property is unique in its shape and size from othe r properties in the neighborhood; it is smaller than most, if not all other, properties in the area, and is uniquely shaped due to its severance by Licking Creek Road and the shallown ess of the lo t. 3. This request for storage of equipment on the property is primarily one of convenience; Appellan ts have a snow removal contract with the State which requires them to be mobilized and ready to plow with only one hour s notice. 4. No truck repair or washing is, or will be done, on the premises, so the 3 Appellan ts further asse rted that keep ing the pav ing equipm ent on their p roperty would prevent theft, vandalism, and other adverse acts. Appellants then reminded the Zoning Board that they had a snow plowing contract with the State that required them to be at a desig nated lo cation w ithin on e hour o f notice . -6- adverse effects inherent to the operation of a contractor s equipment storage yard are n o greate r at this site than the y would be at an y other site . 5. The neares t residen tial use is a pprox imately ½ mile aw ay. 6. The triangular shape of the property, its size , and its dissection by the road make it unique in that strict compliance with the required setbacks would make the use of the p roperty di fficult if not imp racticab le. 7. The topography of the property (it has a steep drop-off to the rear) also make s it uniqu e from other p ropertie s in the a rea. In its opinion, the Zoning Board explained that appellants property was suited to the proposed use[,] and that the proposed use [was] of relatively low intensity and [was] compatib le with the neighborh ood. The Zo ning Board then highlighted the fact that there was a lack of evidence that the proposed use was incompatible with the neighborhood; disruptive of neighbors quiet enjoyment; detrimental to property values; would create excessive odors, dust, gas, smoke, fumes, vibrations, or glare; would cause traffic that w ould exceed the capacity of existing infrastructure; or that the prop osal was a n inappro priate use of land or structure. The Zoning Board further exp lained that a variance wa s necessary because appellants property was unique, and that strict compliance with the special exception requirements would be impossible. The Zoning Board also noted that denying the variance would be a substantial injustice. In the end, the Zoning Board granted the special excep tion and varianc e. Appellees filed a second petition for judicial review. On January 4, 2010, the Circuit Court for Washington County issued an opinion reversing the Zoning Board s grant of a -7- special exception and variance. The court noted that there was insufficient analysis of the inherent ad verse effe cts, and spec ifically articulated: There is no discuss ion of the in herent adv erse effec ts associated with an equipment storage yard. There is no analysis in the Board s Opinion whether the inherent adverse effects resu lting from g ranting a sp ecial excep tion wou ld be uniq ue or di fferen t at this pa rticular lo cality. The circuit court then observed that even if appellants me t their burden of produ ction, there was ample evidence and testimony that raised a genuine issue of material fact, thereby shifting the burden of persuasion to appellants.4 The circuit court further noted that appellants failed, as a m atter of law, to prove practical difficulty. Appellants noted a timely appeal. Standard of Review Our role in review ing the Zo ning Bo ard s decisio n to grant a special exception and variance is limited to determining if there is substantial evidence in the record as a whole to support the agency s findings and conclusions, and to determin[ing] if the administrative decision is premised upon an erroneous conclusion of law. Montgomery County v. Butler, 4 The circuit court also noted that absent [was] any recognition by the Board of the allocation of the burden of persuasion. Although the circuit court recognized there was a burden of persua sion, it incorrec tly determined that once issues of material fact were raised the burden shifted . The circuit court mistook the burden of persuasion for the burden of production. If issues of material fact were raised, as the circuit court suggests, the burden of production would have shifted not the burden of persuasion. See Ang elini v. Harfo rd Coun ty, 144 Md. App. 369, 376 ( 2002) . ( To satisfy the burden o f produc tion is not rem otely to satisfy the burden of persuasion. ). The burden of persuasion was on appellant throughout the entir e case. -8- 417 Md. 271, 283 (2010) (quoting Marzullo v. Kahl, 366 Md. 158, 171 (2001) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68 (1999)) (quotation marks and citations omitted). In making that determination, we do not substitute our judgment for that of the a dminis trative ag ency. See Loyo la, supra, 406 M d. at 66- 67 (citat ions om itted). In judicial review of zoning matters, including special exceptions and variances, the correct test to be applied is whether the issue before the administrative bod y is fairly debata ble, that is, wheth er its determination is based upon evidence from w hich reason able persons could com e to differen t conclusions. White v. N orth, 356 Md. 31, 44 (1999) (quoting Sembly v . County Bd. of Ap peals Baltim ore Cou nty, 269 Md. 177, 182 (1973)). In order to be fairly debatable, the administrative agency overseeing the . . . decision must have substantial evidence on the record s upporting its decision. White, 356 Md. at 44 (citations omitted). In that regard, we inquire whether the zoning body s determination was supported by such evidence as a reasonable m ind might ac cept as ade quate to sup port a conclusion . . . . Loyola, 406 Md. at 67 (quoting People s C ounsel for B altimore C ounty v. Surina, 400 Md. 662, 681 (2007) (quoting The Mayor & Alderman of the City of An napolis v. Annapolis Waterfront Co., 284 Md. 383 , 398 (1979)). 5 5 The Court of Appeals in Annapolis Waterfront Co., supra, 284 Md. at 398-99 (quoting 4 K. Davis, Administrative Law, § 29.05, at 137, 139 (1958)) provided a beneficial breakdown of the substantial evidence rule: The heart of the fact-finding process often is the drawing of inferences from the evidence. A fa ct finder may draw inferences from the words or gestures or inflections or demeanor of a particular witness, may infer a (continued...) -9- Variance 6 The general rule is that the authority to grant a variance7 should be exercised sparingly and only under exceptional circumstances. Cromwell v. Ward, 102 Md. App. 691, 703 (1995 ). In Washington C ounty, a variance can be gran ted for height, lot area, yard regulations, parking, space requirements, sign regulations, d istance requ irements . . ., buffer requireme nts and other d istance or dimensional requirements of the Ordinances. See Section 25.2 of the Washin gton Co unty Zoning Ordinance. Moreover, bec ause we are reviewing a variance request in Washington County, which is a Commissioner s County 5 (...continued) particular basic fact from the testimony of one or more witnesses on one side or on both sid es, and ma y infer an ultima te fact from undisputed basic facts or from a n entire r ecord o f conf licting ev idence . . . . The question for the reviewing court is . . . whether the conclusions reasonab ly may be based upon the facts proven. The court may not substitute its judgment on the question w hether the in ference d rawn is the right one or wheth er a differe nt inferenc e would be better sup ported. Th e test is reason ablene ss, not rig htness. 6 The varia nce that was granted in the instant case was predicated on the grant of a special exception. However, the variance was useless without the special exception. In light of that, the Zon ing Board , and the circu it court, analyzed the special exc eption requ est first. Howeve r, in appellants brief, the variance issue is argued first. Although we believe the special exception should be addressed first, we shall adhere to the order established by appella nt. 7 A varian ce refers to a dministrative relief which may be granted from the strict application of a particular deve lopment limitation in the zoning ordinance. Critical Area Comm n for the Chesapeake & Atlantic Coastal Bays v. Moreland, LLC, 418 Md. 111, 114 n.1 (2011) (quoting Rylyns, supra, 372 Md . at 537, quoting Stanley D. A brams, G uide to Marylan d Zon ing De cisions, § 11.1 (3 d. ed. M ichie 19 92)). -10- subject to Md. Code. (2010 Repl. Vol.), Article 66B, a variance is permissible where: (1) the request is not contrary to the public interest; (2) there are peculiar c onditions o f the prope rty that prohibit literal enforcement of a zoning ordinance; and (3) where enforcement of the zoning ordinance w ould caus e unnece ssary hard ship or pr actic al dif ficu lty. Article 66B § 1.00(m )(1)-(2). In Cromw ell, 102 M d. App. at 6 94-95, Jud ge Cathe ll provided a good explanation of the process one shou ld use in dete rmining w hether to gra nt a varianc e request: The first step 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. Unless there is a finding that the property is unique, unusual, or differe nt, the process stops here and the variance is denied without any consideration of practical difficulty or unreason able hardship. If that first step results in a supportable finding of uniqueness or unusua lness, the n a seco nd step is taken in the pr ocess, i.e ., a determin ation of whether practical difficulty and/or unreasonable hardship, resulting from the disproportionate impact of the ordinance caused by the property s uniqueness, exists. Further consideration must then be given to the genera l purpo ses of th e zonin g ordin ance. In the present case, the Zoning Board determined that appellants property was unique due to the size and shape of the lot, and because the property was divided by Licking Creek Road. On appeal, the parties stipulated that appellants property was unique as defined by variance law. Accordingly, we shall not address whether the Zoning Board correctly determined appella nts pro perty wa s uniqu e. Instead, we focus on whether the Zo ning Board -11- correctly determined that complian ce with the zoning or dinance w ould be pr actically difficu lt. The Washington County Zoning Ordinance states that a variance can only be granted if there is a show ing o f pra ctica l diff icult y or undue hardship. See Section 25.56 of the Washington County Zo ning Ord inance. In situ ations like th is, where the terms undue hardship or practical difficulty are fram ed in the disju nctive ( or ), Maryland c ourts generally have applied . . . the less restrictive practical difficulties standard to area variances because use variances are viewed as more drastic departures fro m zon ing req uireme nts. Montgomery County v . Rotwein , 169 Md. App. 716, 729 (2006) (quoting Belvoir Farms Homeowners Ass n, Inc. v. N orth, 355 M d. 259, 276 n. 10 (1999)). Accordingly, because appellants requested an area variance, we shall review whether there was evidence of practical difficulty, which is defined as:8 A. Prac tical Difficu lty 1. Strict compliance would unreasonably prevent the use of the property for a permitted purpose or render conformance unneces sarily burdenso me; 2. Denying the variances would do substantial injustice to the applicant and a lesser relaxation than that applied for would not give substantial relief; and 8 The Court of App eals in McLean v. Soley, 270 Md. 208, 214-15 (1973), articulated a standard for practical difficulty that has been repeatedly used in analyzing whether an applicant experien ced p racti cal d iffic ulty. However, since the Washington County Zoning Ordinance provided a definition of practical difficulty, we use that instead of McLean s . -12- 3. Granting the variance would observe the spirit of the Ordinance and sec ure pub lic safety a nd we lfare. Section 25.56 o f the W ashing ton Co unty Zon ing Or dinanc e. When the Zoning Board granted the variance request, it explained that appellants would e xperience practical diff iculty in adhering to the Zon ing Ordin ance bec ause of: The lot s size and shape, and severance by the road, are unique from othe r lots in the are a, mak ing strict c omplia nce im possib le. *** . . . denial of the requested variance would be a substantial injustice upon [a]ppellan ts and that, with the appropriate conditions, granting the variance will uphold the spirit of the Ordinance. Howeve r, the Zoning Board also noted that the variance request w as primarily one of convenience. Appellees, thus, suggest that the Zoning Board erred in granting the variance request. In support, appellees assert that Carney v. City of Baltimore, 201 Md. 130 (1952), illustrates that parking the paving equipment on appellants property because of convenience is not permissible. In Carney, a husband and w ife submitted a permit to con struct a one-story rear addition to their tw o-story ho use. See id at 133. The husband and wife wanted the additional one-story because the wife s physical conditions made it difficult for her to wa lk up stairs. Id. The Board of Municipal and Zon ing Appeals of Baltimore City considered the wife s inability to walk up the stairs, but denied the request because convenience is not sufficient for making an e xceptio n to land require ments. Id. at 136. On appe al, the Court of Appeals affirmed the Board of Municipal and Zoning Appeals of Baltimore City and -13- stated that [t]he need sufficient to justify an exception must be substantial and urgent and not merely for the convenience of the applicant . . . . Id. at 137. We found further support for appellees position in Rotwein , supra, 169 Md. App. at 716, where this Court noted that a variance cannot be granted because of convenience. In Rotwein , the applicant, an elderly woman, requested a variance to construct a garage because: (1) she did not want to be exposed to the elements when she exited her car and (2) the other options would be su bstantia lly more e xpens ive than the pro posed location . Id. at 730. In denying the request, the zoning authority stated that the proposed location was a matter of convenience that did not rise to the level of practica l difficu lty. Id. Moreover, it found that any hardship was self-created. Id. The Circuit Cou rt for Montgom ery County reversed and remand ed for f urther p roceed ings. See id. at 726. On appeal, this Court held that the applicant s reasons did not meet the standard of peculiar or unusual practical difficu lties, id. at 732, and that financial loss, especially one that was se lf-created, w as not suff icient to satisfy pra ctical dif ficulty. Id. at 733. In the instant case, Mr. Mills testified that parking the paving eq uipment o ff-site would create secu rity issues, increase tim e retrieving th e equipm ent, and increase costs. Mr. Mills also explained that the variance was necessary because appellants had a snow plowing contract with the State that required them to be at a specific location within one hour of notice. The afo remention ed reason s are valid but sugge st that the requ est was prim arily one of convenience. As such, we conclude that Carney and Rotwein are dispositive. Thus, we -14- hold that the circuit court did not err in reversing the Zoning Board s grant of a variance becau se it wa s prima rily one of conve nience . Special Exception The special exc eption add s flexibility to a comprehensive legislative zoning scheme by serving as a middle ground between permitted uses and prohibited uses in a particular zone. 9 Loyola, 406 M d. at 71; see also Rylyns, supra, 372 Md. at 541 ( Another mechanism allowing som e fle xibility in the land use proc ess, withou t abandon ing the unif ormity principle, is the special exception or conditional use. ). A special exception use in a zoning ordinance recognizes that the legislative body of a representative government has made a policy decision for all of the inhabitants of the particular government jurisdiction, and that the excep tion or use is d esirable and necessary in its zoning planning . . . . Butler, 417 Md. at 293 (quoting Mossburg v. Montg omery C ounty, 107 Md. A pp. 1, 7-8 (1995)). This presumption of comp atibility is likely derived from a judicially-created inference assigned to the legislative body s decision to allow , in its zoning re gulations, ce rtain uses in ce rtain zones by grant of a special exception. Butler, 417 M d. at 295 . The Washington County Zoning Ordinance, which requires the Zoning Board to hear and decide special exceptions to the zoning ordina nce, illus trates this logic. See Section 25.2(b) of the Zoning Ordinance for Washington County. The Zoning Board may grant 9 A permitted use does not consider potential or actual adverse effect that its use may have o n a neig hborin g prop erty. Loyola, 406 Md. at 71. In contrast, a special exception is merely deemed prima facie comp atible u se with in a zon ing reg ion. Id. -15- special exceptions for permissible uses in a district, environmental conservation for the instant case, that are accounted for in the zoning ordina nce. See Section 5B.2 of the Zoning Ordinance for Washington County. The Zoning Board may also grant any use that is functiona lly similar. See Section 5B.2 of the Zoning Ordinance for Washington County. The board, however, is not permitted to grant a special exception that is inconsistent with the purpose of the district, which in this case is defined as a zoning category for those areas where, because of natural g eographic factors and existing land uses, it is considered feasible and desirable to conserve open spaces, water supply sources, woodland areas, wildlife and other natural resources. See Section 5B.0 of the Zoning Ordinance for W ashingto n Co unty. As we previously noted, there is a presump tion that [a sp ecial excep tion] use is compatib le generally w ith permitted uses in the underlying zone. Butler, 417 Md. at 297. A pres ump tion also exists tha t zon ing regulatio ns p romote th e public s afet y, health, mor al, welfare and prosperity. Rockville Fuel & Feed Co., Inc. v. Bd. of Appeals of the City of Gaithersburg, 257 Md. 183, 187 (1970). That presumption, howeve r, naturally conflic ts with a special exception because it has some deleterious effects on surrounding uses or undeveloped land in the neighborhood . . . . Butler, 417 M d. at 297. Nonetheless, [b]ecause the allowance of a special exception use is part of a comprehensive zoning regulatory sche me th at is it self acco mpa nied by the presump tion that it prom otes public safe ty, health, and morals, it stands to reason that this broader presumption accompanying the zoning ordin ance itself generates the specific presumption of compatibility associated -16- with the inclusion in the ordinance of those uses that may be allowed through the grant of special exceptions. Id. at 297- 98. In Marylan d, Schultz v. P ritts, 291 Md. 1 (1981) is the seminal case regarding special exceptions. In Schultz, the Court of Appeals articulated the standard for reviewing an application f or special ex ception, and explained : This Court has frequently expressed the applicable standards for judicial review of the grant or denial of a special exception use. The special exception use is a part of the comp rehensive z oning plan sharing the presump tion that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception use is a valid zoning mechanism that delegates to an administrative board a limited authori ty to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the [zoning authority] are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan. Whereas, the applicant has the burden of adducing testimony wh ich will show that his use meets the prescribed standards and requirements, he does not have the b urden of establishing a ffirmatively that his proposed use would be a benefit to the community. If he shows to the satisfaction of the [zoning auth ority] that the proposed use would be conducted without real detrimen t to the neighborhood and wo uld not actu ally adversely affe ct the public in terest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material. If the evidence makes the question of harm or disturbance or the question of the disruption of the harmony of the com prehensiv e plan of z oning fairly de batable, the matter is one for the [z onin g authority] to decide. But if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an application for a special exception use is arbitrary, capricious, an d illegal. Turner v. Hammond, 270 Md. 41, 54-55, 310 A.2d 54 3, 550-51 (1973 ); Rockville Fuel & Feed Co. v. Boa rd of App eals of Gaithersburg, 257 Md. 183, 187-88, 262 A.2d 499, 5 02 (1970 ); Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287, 96 A.2d 261, 264 (1953); Anderson v. Sawyer, 23 Md. -17- App. 612, 617, 329 A.2d 716, 720 (1974). These standards dictate that if a requested special exception use is properly determined to have an adverse effect upon n eighbo ring pro perties in the gen eral area , it must b e denie d. 291 M d. at 11- 12. After reviewing the existing standard, in an oft-quoted paragraph, the Schultz Court held: [T]he appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special e xceptio n use irre spectiv e of its lo cation w ithin the zone. Id. at 15. The standard in Schultz has been review ed and analyzed many tim es. In a particula rly relevant review, Judge Harrell in Loyola, supra, 406 Md. at 105, clarified that the Schultz standard . . . requires that th e adverse effect inherent in a proposed use be determined without recourse to a comparative geographic analysis. Id. (any language to the contrary in other cases is disapproved ). In so doing, Judge Harrell noted that Schultz requires that a zoning authority review the effects of a propose d use irrespe ctive of its loca tion within the zone, but does not require an applicant to compare the adverse effects of a proposed use against a reasona ble selection representative sampling of other sites within the same zone throughout the distric t or jurisd iction, taking into account the particular characteristics of the areas surrounding those other test sites. Id. at 102. Additionally, Judge Harrell remarked that the term inherent was derived from Judge Davidson s opinion in Anderson, supra, 23 -18- Md. App. at 612, which did not state there was a compara tive multi-site analysis neede d to determine what adverse effects were inherent in the special excep tion at iss ue. See Loyola, 406 M d. at 105 . Rec ently, Judge Harrell in Butler, supra, 417 Md. at 271, again, reviewed Schultz and its progeny to determine whether a local government can legislate different standards for reviewing special exception applications. In Butler, Judge Harrell examined the Montgom ery County Co de, which states that a special exception10 can be granted if the zoning au thority finds, by a pre pondera nce of the evidence , that the prop osed use: (1) Is a permissible special exception use in the zone. (2) Comp lies with the sta ndards an d requirem ents set forth for the use in Division 59-G 2. The fact that a proposed use complies with all specific standards and requirements to grant a special exception does not create a presumption that the use is c ompatib le with nea rby prope rties and, in itself, is not sufficient to require a special exception to be granted. (3) Will be consistent with the general plan for the physical development of the District, including any master plan adopted by the Commission. Any decision to grant or deny a special exception must be consistent with any recommendation in a maste r plan regarding the appropriateness of a special exceptio n at a particular location. If the Planning Board or the Board s technical staff in its report on a special exception concludes that granting a particular special exc eption at a p articular locatio n would be inconsistent with 10 The Mo ntgomery County Co de defines special exce ption as [t]he grant of a specific use that would not be appropriate generally or without restriction, which must be based on a finding that certain conditions governing special exceptions as detailed in A rticle 59-G exist, and that the use is consistent with the applicable master plan and is compatib le with the existing neighborhood. Montgomery County Code, § 59-A-2.1 (2009 ). Judge Harrell notes that this definition mimics the definition of special e xception se t forth in Article 66B, the le gislation that g rants non-charter counties and municipalities zoning and plannin g pow ers. Butler, 417 M d. at 290 n.11. -19- the land use objectives of the applicable master plan, a decision to grant the special exception must include specific findings as to master plan consiste ncy. (4) Will be in h armony w ith the gene ral characte r of the neighborhood considering population density, design, scale, and bulk of any proposed new structures, intensity and character of activity, traffic and parking conditions, and number of sim ilar uses. The Board or Hearing Examiner must consider whether the public f acilities and ser vices will be adequate to serve the proposed development under the Growth Policy standards in effect when the special exception application was submitted. (5) Will not be detrimental to the use, peaceful enjoyment, economic value or development of surrounding properties or the general neighborhood at the subject site, irrespective of any adverse effects the use might have if established elsewhere in the zone. (6) Will cause no obje ctionable n oise, vibration s, fumes, od ors, dust, illumination, glare, or physical activity at the subject site, irrespective of any adverse effects the use might have if established elsewhere in the zone. (7) Will not, when evaluated in conjunction with existing and approved special exceptions in any neighboring one-family residential area, increase the number, intensity, or scope of special exc eption uses sufficiently to affect the area adversely or alter the pred ominantly residential nature of the area. Special exception uses that are consistent with the recommendations of a master plan do not alter the nature of an area. (8) Will no t advers ely affec t the hea lth, safe ty, security, m orals, or general welfare of residents, visitors, or workers in the area at the subject site, irrespective of any adverse effects the use migh t have if established elsewh ere in the zone. (9) Will be served by adequate public services and facilities, including schools, police and fire protection, water, sanitary sewer, public roads, storm drainage and other public facilities. Id. at 287- 90 (qu oting M ontgom ery Cou nty Cod e, § 59-G -1.21). Judge Harrell concluded that in the absence of clear legislative intent to the contrar y, because there is a presump tion of com patibility, a local legislatu re could establish -20- different requirements from Schultz and its p rogeny. Id. at 302; Id. (quoting Mossburg, 107 Md. App. at 21 ( In the absence of a provision in a zoning statute clearly requiring a stricter standard than Schultz, Schultz v. Pritts applies. ). Judge Harrell, moreover, noted that Montgom ery County was permitted to make amendments to the definitions of inherent and non-inherent because [n]owhere in Schultz . . . or in an y other M aryland re ported case . . . is there ex press d elineatio n of crit eria for determ ining w hat adv erse eff ects are inhere nt, versus those that are not, with regard to a particular special exception use. Butler, 417 Md. at 303; Id. ( If, as we hold, the County w as free to en act a zoning ordinance within its delegated zoning and planning powers from the General Assembly and consistent with constitutional inhibitions, a fortiori it should be able to enact amendments to its zoning ordina nce to d eal with issues o n whic h this C ourt ha s been l argely silen t. ). In light of Butler, when a zoning authority is determining whether to grant or deny an application for special exception, it must identify the relevant zoning ordinance and analyze whether it is silent on matters to which Schultz and its progeny speak . . . . Id. at 306. The Washington County Zoning Ordinance permits the Zoning Board to determine whe ther a special excep tion sho uld be g ranted. See Section 25.2(b) of the Zoning Ordinance for Washington County. (The Zoning Board has the powers [t]o hear and decide special exceptions to the Ordinance upon which the Board is requ ired to pass. ). 11 However, the 11 Washington County is governed by Article 66B because it is not a charter county. See Article 66B § 1.02. The language bestowing authority to grant a special exception in the zoning ordinance mirrors Article 66B§ 4.07(h)(2), which provides that a zoning authority (continued...) -21- zoning ordinance does not define special exception or articulate a specific standard for analyzing whether a special exception should be granted.12 Instead, the zoning ordinance provides categorical special exc eptions and permits exceptions that are consistent with the purpose of the district. Because the Washington County Zoning Ordinance is silent as to the standards enunciated in Schultz and its proge ny, the principles in those cases become pertinent and controlling.13 In the case sub judice, the circuit court reversed the Zoning Board s grant of a special exception, because, among other reasons, the board failed to discuss the inherent adverse effects associated with an equipment storage yard, and whether the inherent adverse effects resulting from granting a special ex ception w ould be un ique or diff erent at this particular locality. In the Zoning Board s findings of facts, it noted that [n]o tru ck repair or washing is, or will be done, on the premises, so the adverse effects inherent to the 11 (...continued) shall [h]ear and decide special exceptions to the terms of an ordinance on w hich the board is required to pass under the ordinance. 12 Although the Washington County Zoning Ordinance does not define special exception, because A rticle 66B is applicable, the ordinan ce assum es the defin ition set forth in Article 66B. The term special exception is defined as a grant of specific use that would not be appro priate gene rally or without re striction and shall be based upon a finding that certain governing special exceptions as detailed in the zoning ordinance exist, that the use is consistent w ith the plan an d is comp atible with the existing neighborhood. Article 66B § 1.00( k). 13 Butler held that Montgomery County could legislatively adopt standards that differed in part from Schultz and its progeny. 417 Md. at 271. In the case sub judice, it is not necessary for us to decide whether an Article 66B jurisdiction would have the same flex ibility. -22- operation of a contractor s equipment storage yard are no greater at this site than they wo uld be at any other site. Then, without supporting analysis, the Zoning Board concluded that the use of appellants land was of low intensity and was compatible with the neighborhood. The Zoning Board, again, without support, stated that [n]o evidence was presented that the proposed use was incompatible with the neighborhood; disruptive of neighbors quiet enjoyment of their properties; detrimental to surrounding property values; generative of excessive odors, dus t, gas, smoke , fumes, vib rations, or glare ; generative o f traffic that w ould exceed the capacity of existing infra structure; or tha t the propos al was inap propriate use of land or structure. The Zoning Board s conclu sions, as indic ated abov e, were insu fficient bec ause it merely presented conclu sions w ithout p ointing to any ev identiar y basis. See Moreland, supra, 418 M d. at 134; see also Rodrigu ez v. Prince George s County , 79 Md. App. 537, 550 (1989) ( It is not permissible for the Council, or any administrative body, sim ply to . . . rest on broad conclus ory statements. ). In More land, 418 Md. at 134, the Court o f Appe als recently determined that an appeal is not amenable to meaningful judicial review when an agency merely states co nclusions n ot supporte d by an evide ntiary basis. In reac hing this conclusion, the Court of Appeals focused on, among other cases, 14 Buckta il, LLC v. The County C ouncil of Ta lbot Coun ty, 352 M d. 530 ( 1999) . 14 The Court of Appeals also reviewed Annap olis Market Place, L.L.C v. Parker, 369 Md. 689 (2 002), Alviani v. Dixon, 365 Md. 95 (2001), and Mastan drea v. No rth, 361 Md. 107 (2000), superceded by statute on other grounds as stated in Chesley v . City of Ann apolis, 176 Md. App. 413 (2007), but these cases are not relevant to the issue at hand. -23- In Bucktail, a real estate developer, Bucktail, applied for a growth allocation that would reclassify a 72.7 6 acre parc el from R CA to L DA, so B ucktail could develop dwelling units on the C ritical A rea parc el. Id. at 539. The Planning Commission opined that Bucktail s application met all the mandatory requirements and recommended reclassification. Id. On January 28, 1997, Bill Nos. 640 and 641 were introduced to the Talbot C ounty Coun cil. Id. A public hearing was held and the council voted four to one against Bill No. 641.15 Id. In denying the bill, the Talbot County Council made the following relevant findings o f fact: (5) The proposed District Boundary Amendment from RC Rural Conservation to RR Rural Residential is a Critical Areas Growth Allocation request and as such the Council must find that the request complies with the Critical Area Policies and applicable design standards set forth in Section 19.14(c)(iv) of the Zonin g Cod e of Ta lbot Co unty. (6) The County Council finds upon the basis of the evidence of record that the request for Critical Area Growth Allocation does not comply with all of the Critical Area Po licies and ap plicable des ign standar ds as refere nced in Section 19.1 4(c)(iv) o f the Zon ing C ode of T albo t County. (7) The County Council finds that the Growth Allocation request is not consistent w ith the purposes and intent of the Talbot County Comprehensive Plan. (8) The Co unty Council finds that the proposed change will not be compatib le with existing and proposed development and land use in the surrounding area. (9) The County Council finds upon the basis of the evidence of record that there have been no population changes that would suggest this reclassification to be wise. 15 Bill No . 640 w as tabled . -24- (10) The Co unty Coun cil finds that the availability of public facilities and the present and proposed transportation patterns do not support the reclassification. (11) Five members of the Council inspected the site prior to voting. (12) In light of the abo ve finding s, the Bill requ esting Critica l Area G rowth Allocation and reclassification of the prop erty from R C Rura l Conserv ation to RR Rural Residential will be denied. Id. at 539- 40. Bucktail thereaf ter subm itted a pe tition fo r judicia l review . Id. at 540. Th e Circuit Court for Talbot County affirmed the County Council s decision and held that there was substantial evidence to supp ort the d enial of the requ ested g rowth allocatio n. Id. Bucktail noted an appea l and the C ourt of A ppeals gran ted certiorari. 16 Id. at 541. On appeal, the Court of Appeals determined that the Talbot County Council did not sufficiently inform Bucktail in terms of the facts and circumstances of the record w hich aspec t of its application did not comp ly with the Critical A rea criter ia or po licies. Id. at 558. In making that determin ation, the Co urt of Ap peals noted : Counc il findings six through ten [were] merely conclusory statements. Here, where the planning staff and the Planning Commission ha[d] recommended approval of Bucktail s project and foun d that it complie[ d] with all ap plicable requirements, it [was] not sufficient for the Council simply to express conclusions, without pointing to the facts found by the Council that form the basis for its contrary conclusion. Id. As such, the Co urt of A ppeals reman ded the matter f or furth er proc eeding s. Id. at 559. 16 The Court of Appeals granted certiorari before this Court could address the issue. -25- Bucktail is instructive because the Zoning Board made conclusions that were not supported by sufficient factual predicate and analysis. Interesting enough, the Zoning Bo ard proffered a finding of fact, which was actually a conclusion, that adverse effects would not be above and beyond those inherent in storing paving equipment because no truck repair or washing would occur on the property. Even if we accept this finding as a conclusion, we do not believe it was sufficient to warrant a review because there has to be articulated evidence in support of a conclusory finding. More land, 418 M d. at 128-29 . In making this conclusion, the Zoning Board did not address the adverse effects of storing contractor s equipme nt, nor did it address how appellants storage of paving equipment would be different. The Zoning Board should have fleshed out any adverse effects appellants use would have had on the neighborhood, and determined whether those effects were above and beyond those inherently associated with storing paving equipment. The Zoning Board, moreover, did not discuss the neighborhood, provide an in depth analysis of the effect storing paving equipment would have on the neighborhood, or anything else when it concluded that the proposed use was o f low inten sity and com patible with the neighborhood. Likewise, the Zoning Board m erely stated, witho ut support, th at there wa s no evide nce in sup port of the notion that the proposed use was incompatible with the neighborhood; disruptive of neighbors quiet enjoyment of their properties; detrimental to surround ing prope rty values; generative of excessive odors, dust, gas, smoke, fumes, vibrations, or glare; generative of traffic that would exceed the capacity of existing infrastructure; or that the proposal was inapprop riate use of land or structur e. Accordingly, we m ust conclude that the circuit court -26- correctly held that the Zoning Board did not sufficiently discuss the adverse effects above and beyond those inherently associated with a storage yard. JUDGMENT OF THE CIRCUIT COURT FOR WASH INGTON COUNTY AFFIRMED. COS TS T O BE PAID BY A PPE LLA NT. -27-
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