Gowl v. Atlantic Richfield Co., 676

• Decision Date: 03 July 1975
• Docket Number: No. 676,676
• Citation: 27 Md.App. 410,341 A.2d 832
• Parties: Charles E. GOWL et al. v. ATLANTIC RICHFIELD COMPANY.
• Court: Court of Special Appeals of Maryland

Page 410

27 Md.App. 410

341 A.2d 832

Charles E. GOWL et al. v. ATLANTIC RICHFIELD COMPANY.

No. 676.

Court of Special Appeals of Maryland.

July 3, 1975.

Richard D. Payne, Towson, for appellants.

Cornelius F. Sybert, Jr. and Louis A. Becker, Ellicott City, with whom were Sybert, Sybert & Nippard, Ellicott City, on the brief, for appellee.

Argued before THOMPSON and LOWE, JJ. and ROBERT F. SWEENEY, Chief Judge of the District Court of Maryland, Specially Assigned.

ROBERT F. SWEENEY, Special Judge.

This is an appeal from an order of the Circuit Court for Howard County (Macgill, J.) reversing the decision of the Board of Appeals for Howard County, and permitting the construction of a facility for the storage of bulk petroleum products. The land in question is a tract of 19.27 acres, zoned M-2 heavy industrial, which fronts on Hanover Road in Howard County, within 500 feet of the Howard County-Anne Arundel County division line.

Under M-2 zoning bulk storage of gasoline, fuel oil, bottled gas, or liquified petroleum is permitted as a matter of right, provided that the maximum above ground storage does not exceed 30,000 gallons for each 20,000 sq. ft. of lot area. Bulk storage of petroleum products in excess of those limitations requires the granting of a special exception by the County Board of Appeals. That Board, before approving such a special exception, must find that the proposed use 'would not menace the public health, safety, morals or general welfare of the community.' Section 30.01 of the Zoning Code of Howard County.

The Board of Appeals held five public hearings on the petition for the special exception, beginning on January 15, 1973, and concluding on March 20, 1973. On July 9, 1973, the Board issued a Decision and Order denying the petition, and that denial was appealed to the Circuit Court for Howard County. The Appellants in this case were protestants before the Board, who intervened as appellees in the Circuit Court proceeding.

Twenty-three witnesses testified before the Board, seven for Atlantic Richfield and sixteen for the protestants. Additionally, Atlantic Richfield introduced 20 exhibits at the Board of Appeals proceeding and the protestants, in their turn, submitted 15 exhibits.

It is obvious from his Memorandum Opinion and Order that Judge Macgill carefully reviewed the voluminous record made in the Board of Appeals. After his review of the entire record, Judge Macgill concluded therefrom that 'the findings of the Board were not supported by substantial probative evidence, (and that) the decision of the Board denying the application must be reversed.'

In denying the petition for the special exception, the Board of Appeals made the following findings:

'1. That the proposed use would adversely affect the surrounding and vicinal properties by creating undue traffic congestion on a presently inadequate and hazardous road network and would result in a situation which would menace the public safety and jeopardize the lives of people residing, or traveling, in the area and their property.

2. That the proposed area would be within five hundred feet of a residential district which is prohibited by (Section) 30.01 of the zoning regulations of Howard County.

3. The increased vehicular traffic that would be produced both in volume and type would interfere with the reasonable enjoyment of people in their homes.

4. The support structures for the proposed pipeline from the tanks to the loading area would be within the floodplain and as a result would provide a potential danger to the surrounding properties, as well as menace the general welfare.

5. The water necessary for fire protection and for consumption by the employees is not presently available.

In his Memorandum Opinion, Judge Macgill carefully considered each of these findings, and examined in detail the testimony allegedly supporting each of the findings. Our review of the record leads us to concur in his view that the record is devoid of facts to support the Board's decision to deny the application for a special exception.

Three of the five findings of the Board may be dealt with summarily. First is the Board's finding that the application should be denied because the proposed area would be within 500 feet of a residential district, thereby violating the zoning regulations of Howard County. Although it is undisputed from the record that the borders of the property under consideration reach to a point within 500 feet of a residential district, this fact, standing alone, was not sufficient to authorize the denial of the application. Judge Macgill sets out the view, which we share, that the proper test to be applied is whether the portion of the property to be used for the proposed purpose is within 500 feet of a residential area. According to the voluminous plats and other exhibits submitted to the Board, and according to the testimony of Dr. Dorothy A. Munsey, an expert witness for the Appellee, the facilities to be actually utilized on the premises are a minimum of 550 feet from any residential district. Section 30.01 of the zoning regulations of Howard County provides that 'no land or building shall be used for any of the following uses within 500 feet of any Residential District.' (Emphasis supplied). Since virtually all of the evidence before the Board was to the effect that none of the land within 500 feet of the nearest residential district would be used for the bulk storage of oil and petroleum products, we believe it immaterial that the perimeter of the property encroaches on the 500 foot line of demarcation. As all structures and tanks constructed on this property will be well buffered from the surrounding property by open unused land, we find no violation of the only obvious intent and purpose of the zoning regulation.

Similarly devoid of a substantial factual basis was the Board's finding that '(t)he water necessary for fire protection and for consumption by the employees is not presently available.' The record before the Board clearly showed that all necessary water is available within 400 feet of the property, that an extension of the water main to the subject property could be arranged, and that the Appellee has plans to enter into a developer's agreement to extend that water line. Testimony before the Board indicates that only 19 persons would be employed on these premises, including supervisory personnel. Water sufficient for the needs of such a limited number of persons could probably be provided from private contractors. Whether that is feasible or not, however, we agree with Judge Macgill that it was unreasonable for the Board to ignore the testimony that an eight inch city water main now reaches within 400 feet of the premises. The Appellee, before commencing the use of these premises for its intended purpose, must comply with all State and local building codes and safety standards and we are entitled to assume that the necessary permits will not be granted until the water connection is made and adequate fire protection provided.

In considering the Board's finding that '(t)he support structures for the proposed pipeline from the tanks to the loading area would be within the flood-plain and as a result would provide a potential danger to the surrounding properties, as well as menace the general welfare', Judge Macgill said 'The Board's finding . . . cannot be faulted as an abstract proposition. There was, however, testimony that the likelihood of such a danger was minimal. It should be borne in mind that all uses of this nature present a 'potential' danger but if the possibilities rather than the probabilities of danger are good grounds for denying permits for such uses, it is difficult to see how these uses could be permitted anywhere, regardless of what steps might be taken to minimize the potential dangers accompanying them.

'In this connection the following...