Layton v. Howard County Board of Appeals

• Decision Date: 02 October 2006
• Docket Number: No. 1715, September Term, 2005.,1715, September Term, 2005.
• Citation: 171 Md. App. 137,908 A.2d 724
• Parties: Colleen L. LAYTON et al. v. HOWARD COUNTY BOARD OF APPEALS.
• Court: Court of Special Appeals of Maryland

908 A.2d 724

171 Md. App. 137

Colleen L. LAYTON et al. v. HOWARD COUNTY BOARD OF APPEALS.

No. 1715, September Term, 2005.

Court of Special Appeals of Maryland.

October 2, 2006.

Albert Figinski (Fred M. Lauer, on brief), Baltimore, for appellant.

Thomas M. Meachum, Columbia, Barry M. Sanders, Ellicott City (David A. Carney, on brief), Columbia, for appellee.

Panel DAVIS, HOLLANDER and EYLER, JAMES R., JJ.

DAVIS, J.

Appellants, Colleen Layton and Scott Robbins, dba Frisky's Wildlife and Primate Sanctuary, Inc., appeal the decision of the Circuit Court for Howard County, affirming the decision of the Howard County Board of Appeals, which had granted, in part, the petition of appellants for a Special Exception for a Charitable and Philanthropic Institution and a Variance to reduce the required thirty foot side yard setback to twenty feet for a pole barn, said variance to be subject to certain conditions.¹ On April 20, 2000, appellants filed a petition for a variance for a charitable and philanthropic institution in a Rural Conservation-Density exchange Option Overlay Zoning District (RC-DEO). The petition was filed pursuant to §§ 131.N.13 and 130.B.2 of the Howard County Zoning Regulations. On August 9, 2000, the Planning Board issued a recommendation that Frisky's request for a special exception be approved, subject to a number of conditions.

Per the conditions imposed by the Planning Board, appellants petitioned the Board of Appeals for a variance. The Board met to consider the petition on July 10, November 1, November 15, 2001 and January 3, March 7, March 14, April 9, April 23, May 7, June 6, June 27, July 18, August 29, October 22, 2002 and October 28, 2003. A written decision was issued by the Board on May 18, 2004, granting an exception for a charitable and philanthropic institution and a variance to reduce the required thirty foot side yard setback to twenty feet, in order to accommodate a previously constructed pole barn. Although Frisky's was also granted permission to operate an animal rehabilitation center on the property, the request for an exception to operate a primate or other wildlife sanctuary was denied. Finally, the Order conditionally granting the relief requested was subject to conditions regarding dates for yard sale operations.

In its conditional grant of Frisky's Petition for a Variance, the Board ruled:

21. The Board finds that although the [appellant] may have a license to exhibit animals at the Center, the [appellant] initially did not apply to be an animal exhibitor and subsequently failed to provide sufficient evidence during the course of the hearings held before the Board to determine that the [appellant] is, in fact, an animal exhibitor. The Petition presented to the Board as well as the testimony given by the [appellant] describes the activities of the Center as a charitable institution for the rehabilitation and sanctuary of animals and not for displaying or exhibiting the animals to the public. The [appellant] did not request approval as a wildlife or exotic animal exhibitor nor was Frisky's petition reviewed by DPZ or the Planning Board as an animal exhibit facility. The mere existence of a visitor policy does not change the [appellant's] proposed use for the subject Property into that of an animal exhibitor. The purpose of the Center is to maintain a preserve and sanctuary for animals. The animals at the Center are not kept there for the purpose of public exhibition. Board Opinion page 8.

5. The Board concludes that although the [appellant] may have an exhibitor's license, the [appellant] failed to provide sufficient evidence during the course of the hearings for the Board to determine that the [appellant] is, in fact, an animal exhibitor rather than a sanctuary and rehabilitation center for animals, the exemption for exhibits in Section 17.306(e)(4) of the Howard County Code does not apply because the [appellant] did not prove to the Board that she was an exhibitor and the [appellant] cannot therefore legally keep primates or other wild or exotic animals on the subject Property. Board Opinion page 9.

Frisky's, on June 17, 2004, and Wyckoff, on June 25, 2004, filed petitions for judicial review in the circuit court.

In the petition, Wyckoff contended that (1) Frisky's did not qualify for the Special Exception under the HCZR; (2) Frisky's is not a charitable institution and should not qualify for the special exception use approved by the Board; and (3) the record does not contain substantial evidence to support the Board's grant of a setback variance related to the pole barn. Answering these allegations by Wyckoff, Frisky's retorts that (1) Wyckoff did not have standing to appeal the decision of the Board of Appeals; (2) the HCZ zoning permitted Frisky's as a charitable or philanthropic institution; (3) Frisky's is a charitable institution; and (4) Frisky's presented evidence that a variance was necessary for the pole barn.

On January 18, 2005, Frisky's filed a memorandum in support of its petition for judicial review in which it alleged that (1) the Board erred in finding that Frisky's did not submit sufficient evidence to show that it is a wildlife or exotic animal exhibitor and the Board's decision should be remanded to consider revisions made to the Howard County Code that, as amended, permitted animal sanctuaries that provide permanent housing to exotic animals. In response thereto, Wyckoff filed a memorandum on March 7, 2005, alleging that (1) the evidence presented to the Board relating to Frisky's status as an exhibitor was "fairly debatable"; (2) revisions to the Animal Control Act do not apply retroactively to Frisky's; and (3) regardless of what the current Animal Control Act permits, animal sanctuaries are not permitted in any zoning district in the County. The Board, On March 8, 2005, filed an Appellee's Answering Memorandum, requesting that the circuit court affirm the Board's decision and dismiss the appeals of both Frisky's and Wyckoff. Wyckoff, on March 22, 2005, in a Reply Memorandum, responded to the Answering Memoranda of the Board and Frisky's. A reply memorandum was filed by Frisky's on March 22, 2005, addressing the issues raised in its original memorandum and responding to the Answering Memoranda of the Board and Wyckoff.

The circuit court, in affirming the decision of the Board of Appeals, issued the following memorandum opinion, in pertinent part:

Preliminarily, Frisky's claims that Wyckoff's Petition should be dismissed because Wyckoff failed to plead that they have standing to appeal this matter. "Any person or persons, jointly or severally, aggrieved by any decision of the board of appeals ... may appeal the same to the circuit court of the county." Maryland Code, Article 66B § 4.08(a). "If the petitioner was not a party [to the underlying Board of Appeals action], the petition shall state the basis of the petitioner's standing to seek judicial review. No other allegations are necessary." Md. Rule 7-202(c). Wyckoff claims, "the [appellants] here were opponents before the Board." Wyckoff Memorandum at 1.

The Court is satisfied that Wyckoff may pursue the appeal and has sufficient standing to do so.

1. Did the Board err when it found that Frisky's submitted insufficient evidence to support the approval of Frisky's as a wildlife or exotic animal exhibitor?

Frisky's first allegation of error is that the Board incorrectly concluded that Frisky's "failed to provide sufficient evidence during the course of the hearings for the Board to determine that [it] is, in fact, an animal exhibitor rather than a sanctuary and rehabilitation center for animals." D & O at 9. Generally, "no person may keep, hold for sale or sell wild or exotic animals." Code, § 17.306. However, "the holder of a currently valid permit issued by a state or federal authority to keep animals for scientific research, study, or exhibits is exempt from the [general prohibition] only to the extent provided in the permit." Code, § 17.306(e)(4). Frisky's claims that the wording of the exception makes it mandatory if the requirements are met.

Since "exhibitor" is not defined in the Howard County Code, Frisky's asserts that the Board should accept the definition promulgated by the United States Department of Agriculture (hereinafter "USDA"). The USDA defines "exhibitor" as "any person (public or private) exhibiting animals, which were purchased in commerce, or will affect commerce ... this term includes zoos and educational exhibits, exhibiting such animals whether operated for profit or not." 9 CFR 1.1.

Frisky's goes on to allege that it provided sufficient evidence to meet the exemption provision as an exhibitor under § 17.306(e)(4). Frisky's alleges that the mere existence of the permit, and its provisions to the Board, is prima facie evidence to grant the exception. Frisky's alleges that it provided to the Board on November 1, 2001 a copy of their USDA "Class C" exhibitors' license, which was issued on August 14, 2001. (Transcript C-11-12). "At the hearing held before the Board on November 1, 2001, the [appellant] submitted documentation that Frisky's had obtained a `Class C' Exhibitor" license pursuant to the Animal Welfare Act (7 U.S.C. § 2131 et seq.) from the United States Department of Agriculture. (D & O at 4). A "Class C" exhibitor may buy or sell the exhibited animals as a means to maintain the collections of animals for exhibit. 9 CFR 2.1. Frisky's also submitted testimony regarding the license at the January 3, 2002 hearing before the Board. (Transcript D-13-21). Next, Frisky's alleges that the members of the Board unanimously agreed that Frisky's amended its petition by submitting the USDA License, and that the amendment was not substantive, because "they're still abiding by the same policy that they filed under and are doing the same, similar things." (Transcript D-41-43). Further, Frisky's points to a February 20, 2004 Memorandum from the Office of the ...