Long Green Valley Ass'n v. Prigel Family Creamery

• Decision Date: 29 June 2012
• Docket Number: Sept. Term, 2011.,No. 0350,0350
• Parties: LONG GREEN VALLEY ASSOCIATION, et al. v. PRIGEL FAMILY CREAMERY, et al.
• Court: Court of Special Appeals of Maryland

206 Md.App. 264

47 A.3d 1087

LONG GREEN VALLEY ASSOCIATION, et al.

v.PRIGEL FAMILY CREAMERY, et al.

No. 0350, Sept. Term, 2011.

Court of Special Appeals of Maryland.

June 29, 2012.

J. Carroll Holzer (Holzer & Lee, PA, on the brief) Towson, MD, for appellant.

John B. Gontrum (Jennifer R. Lazenby, Whiteford, Taylor & Preston, LLP, on the brief) Towson, MD, for appellee.

Panel: EYLER, DEBORAH S., WRIGHT, KEHOE, JJ.

WRIGHT, J.

This case arises from a decision of the Baltimore County Board of Appeals (“Board”) upholding the Baltimore County Deputy Zoning Commissioner's grant of a petition for special exception filed by appellee, Prigel Family Creamery (“Creamery”).¹ The Creamery sought a permit for “a Farm Market; or alternatively for a Farmer's Roadside Stand” pursuant to the Baltimore County Zoning Regulations (“BCZR”), which appellants, Long Green Valley Association, Carol Trela, John Yoder, Susan Yoder, and Charlotte Pine, opposed. After hearing the matter on October 15, 2009, the Board issued an opinion and order on March 25, 2010, granting the Creamery's request. Thereafter, appellants and the People's Counsel for Baltimore County filed motions for reconsideration which the Board denied.

On July 16, 2010, appellants filed a petition for judicial review in the Circuit Court for Baltimore County. After holding a hearing on January 14, 2011, the court issued a memorandum opinion and order on April 5, 2011, affirming the Board's decision. On April 21, 2011, appellants filed this appeal.

Questions Presented

We have adopted the questions presented by the Creamery: ²

1. Was the Board of Appeals legally correct in finding that the special exception requirements had been satisfied for the Farm Market?

2. Was the Board of Appeals legally correct in finding that the B.C.Z.R. criteria had been satisfied for the Farmer's Roadside Stand?

For the reasons that follow, we uphold the Board's decision and affirm the judgment of the circuit court.

Facts

The Creamery is located on Bellevale Farm in the Long Green Valley of northeastern Baltimore County. The farm, which is zoned R.C.2 for Agricultural Preservation,³ consists of approximately 200 acres, 180 of which have been placed in an agricultural easement with the Maryland Agricultural Land Preservation Foundation (“MALPF”).⁴ Both the Creamery and the farm are owned by the Prigel family. The Prigels have operated a dairy on their farm for several generations.

According to the operator of the dairy, Robert Prigel, Bellevale Farm is “quite different than the average commercial dairy farm in the United States.” He explained:

It's patterned more after a New Zealand style dairy. Everything we have is grass. The cows go out and graze every day.

They get new sections of grass every twelve hours. The daytime, since the pasture[ ] is pretty much divided, half on the north side, half on the south side of Long Green Road, the cows graze the north side during the day, and the south side in the evening time.

We're also certified organic....

Mr. Prigel stated that approximately 150 cows are milked on a daily basis, for an average of 500 gallons of milk per day. He added that his family sells the majority of the milk wholesale.

On or about March 31, 2006, the Creamery filed a petition for special exception “per BCZR § 404.4D and § 502.1 to permit a Farm Market; or alternatively for a Farmer's Roadside Stand per BCZR § 404.4C.” The Prigels intended to sell milk, butter, yogurt, ice cream, jams, beef, pork, chicken, eggs, and crafts, with about 95% of the merchandise being dairy products. The Prigels planned to construct a 10,000 square foot building on the north side of Long Green Road to house the Creamery and retail area. They proposed a parking area on a porous paving surface to accommodate eight vehicles.

Due to the farm's location in the R.C.2 zone and the easement encumbering the bulk of the property, the Prigels sought permission from both the Baltimore County AgriculturalLand Preservation Advisory Board (“BCALP”) and MALPF. By letter dated October 29, 2007, MALPF informed Mr. Prigel that it “approved the construction of a 7,000 to 10,000 square foot building to house the creamery operation, processing facility and farm store,” conditioned upon the following:

Must not interfere with other agricultural or silvicultural operations.

Must not limit future agricultural or silvicultural production.

Easement owner must have an ownership interest in the operation.

Some of the products must come from animals raised or crops grown on site; the remainder from animals or crops indigenous to Maryland.

Facility and parking area must cover no more than 2% (two percent) of the easement/district, or two acres, whichever is smaller.

Parking area must be pervious. Accessory sales area must not exceed 600 sq. ft.

BCALP also supported the request, stating:

The location is directly across from the existing farmstead and is located immediately adjacent to the road. This is consistent with the practice of protecting prime and productive agricultural soils.... The applicant's farm operation gives reasonable indication that he can meet the production requirements for Farmer's Roadside Stand and Farm Market. This request for a building of a maximum of 10,000 square feet that includes the farm market, processing and creamery [is] consistent with the MALPF approval, Baltimore County Zoning, and the Baltimore County Master Plan. This support is conditional upon Mr. Prigel receiving all necessary permits for the processing and creamery operation.

On October 15, 2009, the Board held a hearing regarding the Creamery's request for a special exception. The Creamery presented the testimonies of Mr. Prigel, two experts, a representative of the Greater Long Green Community Association,and immediate neighbors to the farm. Michael Fisher, who was accepted as an expert in landscaping, architecture, zoning, and land development in Baltimore County, opined that the proposed use would not create any congestion in the roads, potential hazards, overcrowding, or interference with existing water provisions. Fisher also testified that the proposed use is “consistent with the R.C.2 agriculture zone” and would not have a detrimental impact on the health, safety, or general welfare of the locality.

Mickey Cornelius, who was accepted as an expert traffic engineer, stated that his company collected traffic volume data on Long Green Road by using a mechanical volume counter. After analyzing the results, he opined that “Long Green Road has fairly minor traffic volumes throughout the day.” Taking into consideration the minimal accident activity in the area and “the low volume of traffic that would be expected to be generated by [the proposed Farm Market],” Cornelius concluded that approval of the Creamery's request “would not tend to create any congestion on the road.”

William Pennington, a representative of the Greater Long Green Community Association, explained that their association was “organized for the purpose of helping our community maintain its rural and agricultural nature.” Pennington testified that their organization has “taken a position ... in support of the Prigels' objectives.” Likewise, Robert Carter, Louis Reichart, James Currens, and Darrell Edwards—all neighbors to Bellevale Farm—expressed their support for granting the special exception.

Appellants presented the testimonies of Edward Blanton, who resides off Long Green Road, and Carol Trela, the secretary of the Long Green Valley Association. Blanton stated that his only concern “ha[s] to do with the traffic,” because he started running exclusively on Long Green Road and wanted to minimize the possibility of accidents. Blanton stated that if the Creamery's request was approved, he would support it and become a customer, but he first wanted to make sure that the Prigels have “the legal right to put up a building on that property.” Trela testified, on behalf of appellants' organization, that the Prigels' new building is “out of place” in the valley. She believed that the development is incompatible with the R.C. zoning and with land conservation and that it would bring a lot of traffic into the area. Trela also testified that members of appellants' organization were afraid of losing their water and were concerned about the possible runoff from the farm going into a nearby Class III trout stream.

By opinion and order dated March 25, 2010, the Board granted the Creamery's request for a special exception for a farm market, or in the alternative, for a farmer's roadside stand. The Board found that the Creamery met the special exception standards for a farm market, as the building “will not be injurious to the health safety and welfare of the public nor would it create congestion on Long Green Road or any other nearby roads.” According to the Board, the market is not expected to generate the type of traffic that comes with a grocery or convenience store.

Similarly, the Board found that the Creamery met the criteria for a farmer's roadside stand. The Board noted that the majority of the products to be sold will be dairy products from the cows on Bellevale Farm, and the non-agricultural goods “will be in the minority of products sold.” The Board further stated:

The Board does not find any merit to [appellants'] argument that the inclusion of the words “grown and produced” in the definition of farmer's roadside stand and farm market in § 101.1 of BCZR prohibits the sale of dairy products from either the market or stand. The Board construes the meaning of “grown and produced” to mean that it originates on the farm and/or that it is indigenous to the area. The Board acknowledges that both a farm market and farmer's [roadside] stand are uses which support agricultural [sic]. The [appellants'] argument is essentially that only the sale of fruits and vegetables qualifies as the product which can be sold from either a market or stand. The Board does not believe that the ...