Lucas v. People's Counsel

• Decision Date: 26 September 2002
• Docket Number: No. 156,156
• Citation: 147 Md. App. 209,807 A.2d 1176
• Parties: Dale LUCAS, Individually, etc., v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al.
• Court: Court of Special Appeals of Maryland

807 A.2d 1176

147 Md. App. 209

Dale LUCAS, Individually, etc., v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al.

No. 156, Sept. Term, 2001.

Court of Special Appeals of Maryland.

September 26, 2002.

G. Scott Barhight (Jennifer R. Busse and Whiteford, Taylor & Preston LLP, on the brief) Towson, for appellant.

Peter Max Zimmerman (Carole S. Demilio, on the brief for appellee, People's Counsel) Towson, for appellees.

G. Macy Nelson, Towson, for other appellee.

Argued before DAVIS, KENNEY, and RAYMOND G. THIEME, JR. (Ret'd, specially assigned), JJ.

KENNEY, J.

This case involves a petition filed by Edgar Lucas,¹ for a special exception pursuant to the Baltimore County Zoning Regulations ("BCZR") for an airport. Dale Lucas (the "appellant") appeals the Circuit Court for Baltimore County's decision affirming a determination by the Baltimore County Board of Appeals (the "Board") that the proposed use did not meet the definition of an airport.² He presents the following questions for our review:³

I. Whether the Board erred as a matter of law in finding that the proposed use at Helmore Farm is not an "airport."

II. Whether the Board erred as a matter of law in ruling that the BCZR definition of "airport" does not include helicopter operations.

III. Whether the Board erred as a matter of law by utilizing an incorrect interpretation of the Special Exception Standard.

IV. Whether the Board erred as a matter of law by incorrectly analyzing the Special Exception Requirements of BCZR § 502.1.

We answer "no" to question I and affirm the judgment of the circuit court. We address the remaining questions in the interest of completeness.

I. Factual and Procedural Background

The Lucas property ("Helmore Farm") is in the Greenspring Valley area of Baltimore County, which borders Baltimore City. It is bordered by Greenspring Valley Road to the north, Hillside Valley Road to the south, Falls Road to the east, and the property of appellee Susan Immelt to the west. The property is located north of the intersection of I-83 and the Baltimore Beltway.

Helmore Farm is an eighty-seven-acre tract on which thoroughbred horses are bred, raised, and trained. In addition, the farm acts as a quasi-hospital where thoroughbred horses are "laid up" during their rehabilitation process. On the property are two primary residences, several tenant dwellings, stables, and outbuildings. It is located within a National Register Historic District and participates in Baltimore County's agricultural preservation program.

Helmore Farm, for the most part, is zoned "Resource Conservation—Agriculture," the R.C. 2 zone.⁴ The purpose of an R.C. 2 district is "to foster conditions favorable to a continued agricultural use of the productive agricultural areas of Baltimore County by preventing incompatible forms and degrees of urban uses."⁵ BCZR 1A01.1B.

Aircraft have operated,⁶ in connection with the thoroughbred business, in and out of Helmore Farm since 1956. In 1997, Edgar Lucas constructed a helicopter landing pad, in a fenced-in area, on the southwestern edge of the property, approximately twenty-three feet from the property of appellee Susan Immelt. The helicopter landing site also included a windsock, perimeter lights, a guidance beam, and an all-weather observation system. The landing pad is partially paved and its dimensions are approximately 165 feet by 172 feet.

In 1998, Martin Grass, Chairman of the Rite-Aid Corporation, and part owner of the thoroughbred business at Helmore Farm, commuted by helicopter from Helmore Farm to his office in Harrisburg, Pennsylvania.⁷ The helicopter activity caused citizen opposition and led Edgar Lucas to file a petition with the Baltimore County Zoning Commission for a special exception for operation of a landing area for both helicopters and fixed-wing aircraft at Helmore Farm. The proposed facility would consist of the existing helicopter landing pad, in addition to a separate landing strip, approximately 200 feet wide by 1,200 feet long, for fixed-wing aircraft.

Edgar Lucas filed a petition, with the Baltimore County Deputy Zoning Commission, for approval of an airport and/or helicopter operation on Helmore Farm as a legal, nonconforming use.⁸ In the alternative, he sought a special exception for an airport, pursuant to BCZR Section 1A01.2.C.1.⁹ A hearing took place before the Deputy Zoning Commissioner for Baltimore County ("Deputy Commissioner"), which highlighted the proposed use of the facility. Appellees appeared in opposition to Edgar Lucas's request for the special exception. Edgar Lucas was the only witness called to testify regarding the past usage of Helmore Farm for the landing and taking-off of fixed-wing aircraft and helicopters. The Deputy Commissioner denied his request for approval of a legal nonconforming use, concluding that his testimony was insufficient to establish the requisite prior existence of an airport or helicopter operation.

The Deputy Commissioner, however, approved the special exception. He based his decision on testimony and evidence presented both in support of and in opposition to Edgar Lucas's petition, his site visit to observe the arrival and departure of a helicopter and fixed-wing aircraft, and the inclusion of "helicopters" in the dictionary definition of the word "aircraft." The special exception, however, included several restrictions and conditions to ensure no intensified use of the facility would occur.¹⁰ People's Counsel appealed the Deputy Commissioner's decision to the Board. The Board considered two questions on appeal:

1. Is the site an airport permitted within the R.C. 2 zone; and, if so, are helipads and helistops permitted uses within the meaning and definition of an "airport"; and

2. Based on the weight of the testimony and evidence submitted at the hearings, has the Appellant met his burden that the use proposed does not produce any "adverse effects above and beyond those inherently associated with such special exception uses irrespective of its location in the zone."

On February 25, 2000, the Board issued its opinion, stating:

Since 1979, there have been significant amendments to other [provisions in] R.C. 2 zones, but no further amendments to the provisions relative to "airports," "airstrips," and helicopter uses. So, at the present time, under current BCZR regulations, we have the present status concerning where certain facilities are permitted by special exception and by right.

By special exception Airport : R.C. 2, R.C. 3, D.R. 1,[¹¹] B.R.[¹²] Airstrip : M.L.R.,[¹³] M.L.[¹⁴] Heliport, I : B.M.,[¹⁵]B.R Heliport, II : B.L.,[¹⁶]B.M., B.R., M.L.R Helistop : R.C. 3, D.R. zones By right Airport : None Airstrip : None Heliport, I : M.L., M.H.[¹⁷] Heliport, II : M.R.,[¹⁸] M.L Helistop : B.L., B.M., B.R., M.R., M.L.R.,M.L., M.H.

The Board went on to note that "certain helicopter operations are permitted as provided by Section 420 of the BCZR." ¹⁹ The Board concluded that the R.C. 2 zone permits an "airport" by special exception, but prohibits "heliports," "helistops," or "airstrips." Accordingly, the Board denied Edgar Lucas's petition for either approval of an airport and/or helistop operation as a legal nonconforming use or for a special exception for an airport pursuant to BCZR § 1A01.2.C.1.

The Board determined that the definition of "airstrip" would not include helicopter operations and that a special exception would not permit the uses proposed at Helmore Farm:

While the BCZR describes an airport as "any area of land or water designated and set aside for landing or taking off of aircraft," and a helicopter fits the definition of "any rotary aircraft," nevertheless... the legislative history and intent of the uses permitted by special exception in R.C. 2 zone[s] clearly precludes such uses by helicopters.

* * *

Had the County Council not sought to specifically separate and define helicopter uses in various zones, this Board might believe differently, and in so doing, adopt the Appellant's belief that the interpretation of an "airport" includes "heliport or helistop." That however, is not the case. Clearly the Legislative Council of Baltimore County had very narrowly addressed helicopters and uses within the various zones.

In the alternative, assuming that helicopter operations were included in the definition of "airport," the Board examined whether appellant met his burden concerning the "impact" factors required pursuant to BCZR 502.1 and in Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981). In reaching that determination, the Board used the following standard: "The question is one of whether or not the adverse effects are greater at the proposed site than they would be elsewhere in the County where they may be established, i.e., the other areas within the R.C. 2 zones." The Board noted that it believed that "the appellant has the burden of establishing that the impact factor caused by the proposed use is not greater at the site than the same use elsewhere in the zone (R.C. 2 zone)."

The Board concluded that

the impact upon the National Historic District would be greater in the Greenspring Valley than if located in other northern areas of the R.C. 2 zones. Relying considerably on the expertise of [expert witnesses] Messrs. Dillon, Solomon and Gerber, there are individual areas in the Northern part of the county that would be less impacted than at the present site. The Board concludes that it is not a matter of finding a better site for the proposed use in the R.C. 2 zone, but rather the question is one of total impact; and the Board concludes that the Appellants have not established that fact by the preponderance of the evidence to the Board's satisfaction. Acknowledging that airports and helicopter uses have inherent negative impacts, the detrimental effects upon the smaller Greenspring Valley district would clearly have a greater negative impact than if located elsewhere in the vast acreage constituting the R.C. 2...