Enviro-Gro Technologies v. Bockelmann

• Decision Date: 01 September 1990
• Docket Number: 1625,Nos. 1624,ENVIRO-GRO,s. 1624
• Citation: 88 Md.App. 323,594 A.2d 1190
• Parties: TECHNOLOGIES, et al. v. Gary BOCKELMANN, et al. ,
• Court: Court of Special Appeals of Maryland

Page 323

88 Md.App. 323

594 A.2d 1190

ENVIRO-GRO TECHNOLOGIES, et al. v. Gary BOCKELMANN, et al.

Nos. 1624, 1625, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Sept. 5, 1991.

Certiorari Denied December 20, 1991.

Warren K. Rich (Sharon K. Tucker and Rich, Tucker & Rice, on the brief), Annapolis, for appellants.

Charles M. Preston (Stoner, Preston & Boswell, Chartered, on the brief), Westminster, for appellee, Bockelmann.

Charles W. Thompson, Jr., Westminster, for appellee, County Com'rs of Carroll County.

Argued before WILNER, C.J., and ROSALYN B. BELL and CATHELL, JJ.

CATHELL, Judge.

We are again called upon to provide an appellate review of a zoning case arising out of the application of the Carroll County Zoning Ordinance. We have in this term, alone, provided that review for at least three prior cases: County Comm'rs of Carroll County v. Zent, 86 Md.App. 745, 587 A.2d 1205 (1991); County Comm'rs of Carroll County v. Wisner [No. 1140, 1990 Term, per curiam, filed May 7, 1991]; Carroll County v. Brothers [No. 1141, 1990 Term, per curiam, filed May 16, 1991]. In Zent, we recognized that the situation there in controversy arose out of the emerging suburban character of the county. The present issue involves the problems created by the desire to dispose of urban sewage sludge by utilizing it in land application on Carroll County farms. This is alleged to be justified as an "agricultural practice."

Facts

A facility for the storage of 13,500 tons of municipal sewage sludge was constructed on Robert Neal's farm in Carroll County. No building permit or conditional use was obtained. Thereafter, on March 13, 1989, the zoning administrator notified the appellants, Enviro-Gro Technologies, Inc. et al. (Enviro), that the facility violated the zoning ordinance and directed the stoppage of any further work or utilization of the facility absent zoning approval. An appeal was noted to the Carroll County Board of Zoning Appeals (BZA).

After a hearing, the BZA rendered a decision. Among its factual determinations were the following findings of fact :

[T]hat the application of sludge to agricultural lands is an accepted agricultural practice....

[T]he purpose of the pit is to hold sludge which must be taken from a waste treatment plant and stored until it can be applied to the land....

[T]he Board finds as a fact that the purpose of the pit is not agricultural use.... [T]here is no agricultural use associated with its storage. Rather, the pit is more properly simply a link in the chain of sludge transport and eventual disposal.... The existence of the pit responds not to a constant need for fertilizer on the Neal farm but to a fact of urban life--sewage treatment facilities generate sludge on a 24 hour basis and it must be removed continuously.

[T]he Board finds as a fact that it [sludge] is not fertilizer.... [S]ludge does not have a controlled analysis.... [T]he sludge storage pit is not a facility for the storage of liquid or dry fertilizer. Sludge has some of the properties of fertilizer, but it is not fertilizer as such. It is sludge.

Sludge causes an odor. The ... Board smelled the sludge when they visited the facility [pit].... Many of the protestants testified about the strong odor from the property.... [T]he Board finds as a fact that the sludge in the pit does cause an odor.... [T]he Board relies upon the testimony of Martha Hinson, the section head of the sewage sludge division of the Department of the Environment.... The Board accepts her testimony and finds as a fact that there is a stronger odor from a pit than from sludge spread on the fields.

* * * * * *

[T]he sludge pit takes on the character of a step in the chain of sludge disposal; and the ... pit allows Enviro-Gro to meet its commitment to remove sludge from municipal facilities on a regular basis.

* * * * * *

[I]t is a very large facility.... [I]t is a very major facility having a constant and immediate inter-action with the surrounding neighborhood.... [T]hese are not major incidents, but demonstrate the close quarters in which the residents ... live and the immediate impact which the sludge operation has on them.

The Board finds as a fact that this is not a suitable site for such a large scale facility.

The BZA then concluded that the sludge pit was not an accessory agricultural use, because it was part of a sludge handling operation, and that its storage of sludge was not for an agricultural purpose as defined in the ordinance. It also concluded that it was not qualified to be a conditional use under the provisions permitting storage of fertilizer, because the sludge was not fertilizer as contemplated by the ordinance. It further stated that, even if the sludge was fertilizer, its storage did not qualify as a conditional use. The BZA then affirmed the administrative action except to reverse that official's determination that a sludge pit qualifies for a conditional use consideration. ¹

On appeal to the Circuit Court for Carroll County, the court found:

First, the sludge storage ... fails to satisfy the "customarily incidental" requirement of Art. 6, Sec. 6.4, and is not, therefore, an accessory use. Second, because the BZA found that sludge application serves an agricultural purpose and Art. 1, Sec. 4.5, restrains the outright prohibition of "structures incident to the use for agricultural purposes ...", the sludge storage pit must be viewed as a conditional use under Art. 6, Sec. 6.3(r). Lastly, the BZA's "shotgun approach" to decision-making was both unsatisfactory and inadequate.... [Footnote omitted.]

It then ordered a remand in order for the BZA to make the complete and specific findings it said were mandated by Art. 17, § 17.7.

Enviro appeals and raises two questions:

1. Did the Circuit Court err in finding that the storage of sewage sludge, to be used for agricultural purposes, is not a permitted use in the Agricultural District under the Carroll County Zoning Ordinance?

2. Did the Circuit Court err when it held that farm storage of sewage sludge, to be used for agricultural purposes, is not an accessory use in the Agricultural

District under the Carroll County Zoning Ordinance? ²

Although we do not agree with some of its reasoning, we perceive no error in the trial court's findings as to those two questions.

Appellees/cross-appellants, Gary Bockelmann et al. (Bockelmann), argue on cross appeal that the appellants abandoned their request for a conditional use for the purpose of maintaining a storage pit for municipal sewage sludge. They also argue that, even if the appellants had not abandoned that application, the trial court erred in ruling that the BZA's findings were insufficient to justify the denial of the conditional use application. We find it unnecessary to address these two issues.

Did the Circuit Court err in finding that the storage of sewage sludge, to be used for agricultural purposes, is not a permitted or accessory use in the Agricultural District under the Carroll County Zoning Ordinance?

It is undeniable that the process of sewage treatment by which sludge is created is not an agricultural process. While it can be argued that not all land applications of sludge are for agricultural purposes, it appears that land application of sludge on Robert Neal's property is, at least in part, for an agricultural purpose.

The issue before the BZA and the trial court was to determine at which point, during the process from one extreme to the other, sludge lost its identity as a sewage by-product needing disposal and gained a new identity as an element of an agricultural use. That issue was a matter of fact. ³

The BZA, in essence, determined that sludge retained its character as a sewage by-product until it was applied to fields for agricultural purposes; and that storage pits as such, and the Enviro pit in particular, served the primary purpose of responding to the continuous need for sludge removal from sewerage systems rather than the need for agricultural applications. Thus, the BZA found that the sludge storage at issue was not yet a permitted or accessory agricultural use. The trial court's opinion, although somewhat unclear, did affirm that part of the BZA's opinion, albeit upon different reasoning.

We said in Harford County v. McDonough, 74 Md.App. 119, 122, 536 A.2d 724 (1988):

The order of an administrative agency, such as a county zoning board, must be upheld on review if it is not premised upon an error of law and if the agency's conclusions on questions of fact or on mixed questions of law and fact are supported by substantial evidence presented to it.

The Court of Appeals in Bd. of County Comm'rs v. Holbrook, 314 Md. 210, 218, 550 A.2d 664 (1988), referring to the standards for special exception grants outlined in Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981), said:

The Schultz test accords with the general standard for judicial review of the ruling of an administrative agency which we have 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." Supervisor of Assess. v. Ely, 272 Md. 77, 84 (1974).

* * * * * *

Therefore, due deference must be given to the right of an administrative agency, such as the Cecil County Board of Appeals, to draw reasonable inferences from the facts and circumstances presented before it.

Additionally, the Court of Appeals said in respect to the treatment of factual inferences:

"The heart of the fact finding process often is the drawing of inferences from the facts. The administrative agency is the one to whom is committed the drawing of whatever inferences reasonably are to be drawn from the factual evidence. 'The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The...