Friends of the Ridge v. Baltimore Gas and Elec. Co.

• Decision Date: 01 September 1997
• Docket Number: No. 309,309
• Parties: , Util. L. Rep. P 26,661 FRIENDS OF THE RIDGE, et al. v. BALTIMORE GAS AND ELECTRIC COMPANY. ,
• Court: Court of Special Appeals of Maryland

Page 444

120 Md.App. 444

707 A.2d 866, Util. L. Rep. P 26,661

FRIENDS OF THE RIDGE, et al. v. BALTIMORE GAS AND ELECTRIC COMPANY.

No. 309, Sept. Term, 1997.

Court of Special Appeals of Maryland.

April 1, 1998.

J. Carroll Holzer (Holzer and Lee, on the brief), Towson, for appellants

John H. Zink, III (Patricia A. Malone, Kathleen Cox, C. Carey Deeley, Jr. and Venable, Baetjer & Howard, L.L.P., on the brief), Towson, for appellee.

Argued before HARRELL, J., and THEODORE G. BLOOM and PAUL E. ALPERT, Judges (retired), Specially Assigned.

HARRELL, Judge.

"Power to the People" ¹

Baltimore Gas And Electric Company (BGE), appellee and cross-appellant, seeking to replace and expand an existing electrical transformer substation (the Ivy Hill substation) located on the south side of Ridge Road, at its intersection with Gent Road, in northern Baltimore County, filed with the Zoning Commissioner of Baltimore County (Zoning Commissioner) Appellants/cross-appellees appealed the grant of the petitions to the Circuit Court for Baltimore County. In the preliminary skirmishing, BGE moved to dismiss the appeal as to the variance, contending the neighbors lacked standing. The circuit court (Daniels, J.) ultimately denied the motion to dismiss and affirmed the Board's grant of both the special exception and the variance.

a petition for special exception, joined with a petition for a variance of internal lot line setback requirements, to accomplish that objective. After public hearings, the Zoning Commissioner, and thereafter the Baltimore County Board of Appeals (Board), granted BGE's petitions for both the special exception and variance over the vigorous opposition of appellants and cross-appellees, and other neighbors or organizations of neighbors in the vicinity of the BGE property (we will most often hereafter refer to appellants/cross-appellees as "the neighbors").

Appellants filed a timely appeal to this Court regarding the circuit court's affirmance of the Board's decision. BGE cross-appealed the circuit court's denial of its motion to dismiss the neighbors' appeal as to the variance.

ISSUES

Because its resolution may affect the contours of our discussion of the neighbors' issues, we shall first consider BGE's cross-appeal contention, which is, as slightly rephrased by us:

I. As appellants/cross-appellees were not aggrieved parties as to the variance request, the circuit court erred in not dismissing their appeal of its approval for lack of standing.

Depending on our disposition of the foregoing proposition, we may proceed to consider the following appellate questions propounded by the neighbors, which we also have slightly rephrased as:

II. Did the Board err, as a matter of law under the Baltimore County Zoning Regulations (BCZR), in concluding that BGE's proposed replacement and enlargement of the Ivy Hill substation, at least as it implicated that part of III. Did the Board err, as a matter of law, in granting the variance?

the BGE property described as Tract "A," did not also require an amendment to the Final Development Plan for the Fox Ridge Estates community?

IV. Did the Board err, as a matter of law under the BCZR, in finding that there was a need for the augmented electric substation?

V. Did the circuit court err in denying appellants' Motion to Alter or Amend Judgment which was based upon new evidence as to the alleged deleterious effect on the neighbors' property values due to BGE's land use proposal?

THE FACTS

In March 1956, the Zoning Commissioner approved BGE's petition for a special exception to erect and operate a 16.6 megawatt, single transformer electrical substation ² occupying approximately 1200 square feet of the surface of a trapezoid-shaped, 0.40 acre parcel (Tract C) owned by BGE, abutting the south side of Ridge Road, opposite its intersection with Gent Road, and approximately 625 feet west of Falls Road, in Baltimore County. Upon its construction and placement into service later in 1956, this transformer was known as the Ivy Hill substation. The initial service area of the Ivy Hill substation was established as an 18 square mile portion of northern Baltimore County roughly bounded by Butler Road on the north, Sagamore Forest Road on the west, Broadway Road and Caves Road on the south, and Oregon Ridge Park on the east. ³ Anticipating that the 16.6 megawatt facility some day would become obsolete due to, among other reasons, increased demand for electricity, BGE appears to have begun laying the foundation for an expansion of the Ivy Hill substation no later than 1988 when it contracted to acquire a 1.5 acre parcel (Tract A) abutting Tract C on its eastern and southern boundaries. BGE acquired Tract C in 1989 from Mr. George V. Palmer, the principal owner-developer of the abutting property, who, in 1988, had obtained approval of a Final Development Plan for the entirety of his property, referred to then as the Forwood Property (later to be known as the Fox Ridge Estates development). ⁴ On the approved 1988 Final Development Plan (the Plan), the heavily-wooded Tract A, unlike the other proposed parcels shown on the Plan, was not assigned any specific development proposal or information; instead, arrows drew attention to the fact that Tract A was labeled as to be "conveyed to adjoining property owner BGE Co." The Plan also indicated that BGE owned the abutting Tract C. The Plan depicted the remaining property as lots for 24 single-family-detached, residential dwellings, and showed such development information for each proposed lot as house location, building envelope, septic field location, and subdivision street pattern. Thus, at the time of conveyance of Tract A to BGE in 1989, the 16.6 megawatt Ivy Hill substation on Tract C was in existence and operating, but none of the proposed residential building lots on the Forwood/Fox Ridge Rounding out its land assemblage for the planned expansion of the Ivy Hill substation, BGE contracted in 1994, prior to filing the instant petitions, with a Mr. & Mrs. Vinup to acquire their 0.922 acre tract abutting Tract C on the west. The Vinups' property, referred to as Tract B, was improved at the time by a residence and a swimming pool, both of which BGE planned to raze in order to make the property suitable for the planned substation expansion.

Estates property had been developed or sold to anyone, let alone appellants/cross-appellees here.

Over the period from 1989 until BGE contracted with the Vinups in 1994, and while BGE apparently was engaged in its internal planning efforts with regard to the Ivy Hill substation, the Forwood Property/Fox Ridge Estates lots were developed, and homes were built on them and sold by Mr. Palmer's successor, JCS Corporation. ⁵ The owners of those On 10 May 1994, BGE filed with the Zoning Commissioner a petition for special exception for "an outdoor electric public utility service center (electric substation) in an R.C.-5 Zone [as allowed by special exception in BCZR § 1.A.0.4.2.B.11] and to amend the Fox Ridge Estates (formerly Forwood Property) Final Development Plan if necessary." In addition, BGE concurrently filed a petition for variance requesting permission essentially to ignore the interior lot lines of Tracts A, B, and C for purposes of the otherwise required 50 foot building setback in the R.C.-5 Zone. The subject property of the petitions was essentially the assembled 2.8933 acres of Tracts A, B, and C, although only Tract A was implicated technically in the precautionary request to amend the Plan as to the Forwood Property/Fox Ridge Estates. The petitions were assigned Case No. 94-452-XA.

homes, together with a few other neighbors in the surrounding area, understandably became the moving forces opposing BGE's expansion plans. ⁶ The neighbors residing in Fox Ridge Estates claimed that, at the time they purchased their homes, they had no idea that BGE might expand the Ivy Hill substation beyond Tract C. This belief was fostered either by representations made to them by the builder/developer (or its representatives) prior to or at the time of their closings or by opinions they formed from their scrutiny of some or all of the available public documents regarding the development planned for the Forwood Property, i.e., approved subdivision plat and/or the Plan. Even those who carefully perused the Plan concluded that Tract A could not be developed without an amendment to the Plan because the Plan did not propose any specific development on Tract A. ⁷

BGE's proposal involved removing the 16.6 megawatt transformer existing on Tract C and, in two phases, constructing an expanded, 64 megawatt substation. Phase I, a 32 megawatt transformer and supporting equipment, would be constructed as soon as possible. According to BGE's electrical service needs forecasting, the Ivy Hill service area (which would include reabsorbing a portion of the original Ivy Hill service area in its southwest corner that had been transferred temporarily to the Delight substation ⁸ during a power crisis in the winter of 1994 ⁹) would need this level of service capability by the year 2001. ¹⁰ The forecasts were premised on the following BGE projected that Phase II, the addition of a second 32 megawatt transformer and supporting equipment, would be needed to meet service demand and other contingencies beyond the year 2001 because the service area would not have achieved maximum growth by then and because of the general need to be assured of adequate future capacity to be called upon to respond to unforeseen demands ¹¹ and/or a higher degree of efficiency in providing electrical service in the Ivy Hill area. BGE proposed to increase the service area by the addition ¹² of a 4 square mile area--Hickory Meadow--bordering on the southeast corner of the original Ivy Hill service area. ¹³ BGE's projections for the need for and longevity of Phase II's power level, however, were less precise and more open-ended than those for Phase I BG...