Trinity Assembly v. People's Counsel

• Citation: 941 A.2d 560,178 Md. App. 232
• Decision Date: 06 February 2008
• Docket Number: No. 2840, Sept. Term, 2006.,2840, Sept. Term, 2006.
• Parties: TRINITY ASSEMBLY OF GOD OF BALTIMORE CITY, INC. v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al.
• Court: Court of Special Appeals of Maryland

941 A.2d 560

178 Md. App. 232

TRINITY ASSEMBLY OF GOD OF BALTIMORE CITY, INC. v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al.

No. 2840, Sept. Term, 2006.

Court of Special Appeals of Maryland.

February 6, 2008.

C. William Clark, Towson, for appellant.

Peter M. Zimmerman, People's Counsel for Baltimore County, Towson, for appellee.

Panel DEBORAH S. EYLER, SHARER, and PAUL E. ALPERT, (Reed, Specially Assigned), JJ.

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 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 2000cc, 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 raw 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.

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 I-695 and I-83. For a vehicle to travel from I-83 North inside the Beltway (the Jones Falls Expressway) to I-83 North outside the Beltway (Harrisburg Pike), the driver must traverse the eastbound segment of I-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 does not have directional value, i.e., 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 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. 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 variances 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 ...