Entzian v. Prince George's County

• Decision Date: 01 July 1976
• Docket Number: No. 1282,1282
• Citation: 32 Md.App. 256,360 A.2d 6
• Parties: Albert E. ENTZIAN et al. v. PRINCE GEORGE'S COUNTY, Maryland, et al.
• Court: Court of Special Appeals of Maryland

Page 256

32 Md.App. 256

360 A.2d 6

Albert E. ENTZIAN et al. v. PRINCE GEORGE'S COUNTY, Maryland, et al.

No. 1282.

Court of Special Appeals of Maryland.

July 1, 1976.

Jess James Smith, Jr., Upper Marlboro, with whom were Burroughs & Smith, Upper Marlboro, on the brief, for appellants.

Barbara J. Lampe, Associate County Atty., and Ellis J. Koch, Deputy County Atty., with whom was James C. Chapin, County Atty., on the brief, for appellee Prince George's County, Maryland.

Frank M. Kratovil and Charles M. Cockerill, Hyattsville, for other appellee.

Argued before MORTON, GILBERT and LOWE, JJ.

LOWE, Judge.

Parties to zoning cases are provided with more attention than are the parties in most other forms of litigation. Although there are slight variations in the several counties, generally a zoning application proceeding begins with an administrative hearing where the applicant and those opposed to the applicationmay appear and offer testimony and other evidence. The hearing officer may utilize available county or municipal investigative sources (e. g., technical staff reports of planning commissions) for additional fact gathering. The hearing officer then renders a decision based on the evidence elicited a the hearing. This decision, while not conclusive, is often persuasive to the quasi-judicial body which makes the ultimate decision as to whether to approve the application. This body may be a board or commission which has been statutorily provided for that single purpose, or, it may be the governing legislative body of the county which has been authorized to sit in such quasi-judicial capacity to decide zoning matters.

The County Council of Prince George's County convenes in matters of zoning as the 'District Council.' An appeal of right from the Council's decision is provided to the Circuit Court for Prince George's County and, from there, to this Court. The Council's decision is not to be overturned if it is supported by competent, material and substantial evidence in the record. If the issue is fairly debatable as shown by the record, the Council's decision will be affirmed. Prince George's Co. v. Meininger, 264 Md. 148, 152, 285 A.2d 649; Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27. This test applies to applications for a zoning change as well as a special exception. Zengerle v. Bd. of Co. Comm'rs, 262 Md. 1, 17, 276 A.2d 646. Our role on review is the same as that of the circuit court looking to the legality of the procedure and whether fairly debatable issues were raised by the evidence.

Appellants applied for a special exception for a sanitary landfill in Prince George's County at a location near the Patuxent River. It was denied. After a thorough review of the evidence, the District Council, ¹ in a comprehensive opinion, concluded:

'That the proposed use is not in harmony with the purpose and intent of the Zoning Ordinance; and will substantially impair the integrity of the approved master plan for this area, including the functional plan for this activity; and the proposed use would affect adversely the health and safety of residents in the area and would be detrimental to the use and/or development of adjacent properties or the general neighborhood.'

An appeal was noted in the Circuit Court for Prince George's County wherein appellants contended substantially that which they argue here. The trial judge, the Honorable Ralph W. Powers, wrote an opinion concisely responding to the appellants' contentions and, after correctly stating the burden of proof and standard of review in such cases, affirmed the District Council. We adopt Judge Powers' opinion as our own and, because it so clearly articulates the facts and issues here presented, we repeat it before further comment.

'OPINION AND ORDER

This case comes before the Court on appeal from a ruling by the County Council of Prince George's County sitting as the District Council. The statutory basis for this appeal is provided by Maryland Rule B 1 in conjunction with the special authorization granted by Section 79(e), (f), (k), Chapter 780, Laws of the State of Maryland, 1959, as amended.

This appeal concerns a denial by the District Council of a special exception application by The International Disposal Corporation of Maryland, Inc., and others, (hereinafter referred to collectively as 'International').

The proceedings involved an application to use 268.80 acres (later amended to 180 acres) as a sanitary landfill, a use for which special exceptions may be granted. § 28.31 'Special Exceptions', Zoning Ordinance for the Maryland-Washington Regional District in Prince George's County, Maryland.

Section 28.334A, Zoning Ordinance, empowers the District Council to grant a temporary special exception for a sanitary landfill in any O-S, R-A, or R-R Zone. The tract of land involved is on the east side of Mill Branch Road, just north of its intersection with Queen Anne Road in Prince George's County, and is zoned R-R.

After public hearings on the matter, the District Council, on April 28, 1975, disapproved the application for special exception. International timely appealed this action asking that this Court reverse the Decision of the District Council avering that the action of the District Council was: (1) in violation of constitutional provision; (2) in excess of the statutory authority or jurisdiction of the agency; (3) or made upon unlawful procedure; (4) or affected by other error of law; (5) or unsupported by competent, material and substantial evidence in view of the entire record as submitted; (6) or arbitrary or capricious. These six allegations of error are those which allow the Circuit Court to reverse, modify, or remand a decision of the District Council. § 79(i), Chapter 780.

The scope of review by this Court of the administrative decision of the District Council is governed by statute. There must be substantial evidence on the entire record such that the decision rendered by the District Council was not arbitrary or capricious. § 79(i)(5), (6), Chapter 780. This is the typical standard of review the courts employ in reviewing denials of special exception applications. See Rockville Fuel and Feed Company, Inc. v. Board of Appeals of the City of Gaithersburg, 257 Md. 183 (, 262 A.2d 499) (1970).

The District Council pursuant to its delegated authority granted by the General Assembly of Maryland, (Chapter 780), has by ordinance determined that special enumerated uses can be properly allowed in a specific use district. § 28.31 through 28.359, 'Special Exceptions', Zoning Ordinance, supra. There is a presumption of validity and correctness that the enumerated special exception uses promote the general welfare. Rockville Fuel, supra.

A special exception application passes through three administrative levels before reaching the District Council. These are in chronological order: The Technical Staff of the Prince George's County Planning Board, the Prince George's County Planning Board, and the Office of the Zoning Hearing Examiner. The Technical Staff is required to make a report and recommendation for the record on each application for special exceptions. Zoning Ordinance, supra, § 28.111. The County Planning Board, among its exclusive local functions, is responsible for either adopting or not adopting the recommendations of the Technical Staff, and forwarding this to the District Council. Chapter 780, § 66.

Before the District Council can make a decision on a special exception application, the Zoning Hearing Examiner is required to hold public hearings on the matter. Zoning Ordinance, supra, § 28.12, § 31A.1-31A.49. At the conclusion of the hearings, the Examiner must file with the District Council a written decision containing specific findings of basic facts, conclusions of law and a recommended disposition of the case. Ordinance, supra, § 31A.-22. His decision is then considered by the District Council. Ordinance, supra, § 31A.3.

The standard the District Council must use in determining whether to approve a special exception application, thus restricting their discretionary scope, is governed by ordinance.

'28.2 General Provisions

A special exception may be granted when the Council finds that:

(a) The proposed use is in harmony with the purpose and intent of the Zoning Ordinance and will not substantially impair the integrity of any validly approved master plan or functional master plan, or in the absence of a master plan or functional master plan, the General Plan (Amended 10/29/74).

(b) The proposed use will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use and/or development of adjacent properties or the general neighborhood.' Ordinance, supra, § 28.2.

In accord with Rockville Fuel, supra, then, the burden was on the applicant to demonstrate to the Council that the proposed use will not: (1) substantially impair any master, functional master or general plan; (2) adversely affct the health and safety of the area residents and workers; (3) or be detrimental to the use and/or development of the adjacent properties or the general neighborhood. Since these predetermined enumerated uses are prima facie in the interest of the general welfare, there is no burden on the part of the applicant to show affirmatively that the requested use will benefit the community at large. Rockville Fuel, supra.

International's argument on the adequacy of the evidence on the record centers around the three-prong test the Council must consider under § 28.2. Ordinance, supra. International proffers that there was no showing that a comprehensive plan would be impaired (§ 28.2(a)); that there was not substantial evidence demonstrating that the landfill would adversely affect the health and safety of area residents or workers, or that the landfill would be detrimental to the use and/or development of adjacent properties or the general neighborhood. (§ 28.2(b)1). Concerning the last...