Marzullo v. Kahl

• Decision Date: 26 December 2000
• Docket Number: No. 2301,2301
• Citation: 763 A.2d 1217,135 Md. App. 663
• Parties: Mary Pat MARZULLO, et al. v. Peter A. KAHL.
• Court: Court of Special Appeals of Maryland

763 A.2d 1217

135 Md. App. 663

Mary Pat MARZULLO, et al. v. Peter A. KAHL.

No. 2301, Sept. Term, 1999.

Court of Special Appeals of Maryland.

December 26, 2000.

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

J. Carroll Holzer (Holzer & Lee, on the brief), Towson, for Marzullo.

Michael J. Moran, Towson, and John B. Gontrum and Romadka, Gotrum & McLaughlin, P.A., on the brief, Baltimore, for appellee.

Argued before EYLER, ROBERT L. KARWACKI (Ret., specially assigned), and ROBERT F. FISCHER (Ret., specially assigned), JJ.

ROBERT F. FISCHER, Judge (Retired, specially assigned).

This is an appeal by Mary Pat Marzullo and People's Counsel for Baltimore County, appellants, from a decision by the Circuit Court for Baltimore County reversing the County Board of Appeals (Board) in a zoning matter. The circuit court held as a matter of law that a facility for the breeding, raising, and marketing of snakes, owned by Peter Kahl, appellee, was a farm within the meaning of the "RC-4", "Resource Conservation—Watershed Protection" zone.

I. Factual Background

The underlying facts are not in dispute. Appellee is an avid snake lover and successful breeder of exotic pythons and boas. At first, appellee mated his reptiles in the basement of his home. Desiring to house his snakes in less constricted quarters, appellee built a facility on his Baltimore County property to breed, raise, and market snakes and transformed what began as a hobby into a business.¹ This case arose when some of his neighbors, including Ms. Marzullo, recoiled at the facility's inhabitants.

Appellee's business, Kahl Reptiles, Incorporated, is advertised on the Internet and "conducted on an extensive international basis." Appellee has one full-time employee, Marc Spataro, who testified before the Board and has had several articles published in scientific magazines and journals that are dedicated to the study and breeding of snakes. Both individuals were considered by the Board as "experts in the field of herpetology." Appellee also has co-authored articles and testified extensively regarding the "selectivity of the breeding ... the mating process, conditions required throughout the entire process, the harvesting of eggs, the incubation process, developmental stages, and the final determination of which snakes would be trained and which would ultimately be marketed."

Appellee markets to other breeders, individuals, and institutions. While there is a market for both human consumption and manufacturing, appellee avoids selling for these purposes, except for inexpensive, subpar animals. The snakes are bred for color, pattern characteristics, and temperament. Appellee retains a significant portion of the snakes for breeding purposes. To attain these goals, appellee maintains extensive records and files on the snakes. Appellee also testified that he does not board or keep any animals for others at his facility. The Board noted that appellee's "expertise has resulted in the development of many varied strains of both Boas and Pythons relative to color and stripes and temperament."

Appellee's building is a two-level, ten thousand square foot, barn-like structure. The snakes are housed on the first floor, comprised of sixteen rooms, one of which is appellee's office. Installed in the building is an elaborate heating, cooling and ventilation system and each room is equipped with a sink, window, and radiant floor heat. The rooms are temperature controlled for optimal breeding, hatching, and growing conditions. In addition to the ordinary safety measures of locks and fire alarms, appellee's facility contains extraordinary safety measures, including an alarm system in the incubation room set to monitor the temperature and a security system that requires all the snakes' cage doors and doors to the facility to be locked before the alarm can be set or the door locked.

The snakes are normally maintained inside the facility, but they are taken outside for exercise and "sunning." Appellee also testified that the best breeding results require the females to exercise in order to maintain good muscle tone.

The barn is served by its own well and septic system that guarantees the snakes are hydrated and their cages cleansed with clean water. A compost system breaks down the snakes' waste and is used to fertilize the yard. Within the facility, appellee breeds rats and rat pups that are used to feed the snakes.

Despite the snakes' outside exercise, the Board did not find that the snakes pose any threat to the community. In fact, the Board found that this case "is not a situation of community safety, increased traffic, [or] snake security...." The Board further found that "testimony is uncontradicted that Kahl `raises, breeds, keeps and markets' these animals (snakes)."

II. Procedural History

Appellee's residence and snake breeding and raising facility are located on 4.72 acres, zoned "RC-4" or "Resource Conservation—Watershed Protection." The primary purpose of RC-4 zoning is to protect water supplies by controlling development in watershed areas. Baltimore County Zoning Regulations (BCZR) § 1A03.1 (2000).

In July 1994, appellee applied to the Baltimore County Department of Permits and Licenses for a "Holding Facility/Kennel/Wild Life" animal license for his reptile barn. This one-year license was issued on July 12, 1994.

Later in July 1994, appellee contacted Mr. Arnold Jablon, Director of the Department of Permits and Development Management, to present a plan for a barn-like structure to house snakes.²

On April 5, 1995, two months prior to the expiration of his animal license, he requested a "farm qualification" for his property from the Baltimore County Agricultural Land Preservation Advisory Board (Advisory Board). Attached to appellee's application was a map and parcel reference. Upon receiving appellee's request, Mr. Jablon requested Mr. Wallace Lippincott, program administrator of the agricultural preservation program, to verify the legitimacy of appellee's "farm qualification" request. At the Advisory Board's April 12, 1995 meeting, the "farm usage was approved and verified to Mr. Jablon by the Bureau." The Board, in its opinion, noted that the "farm qualification" request from Mr. Jablon stated:

This office is officially requesting verification of the legitimacy of a farm use on the referenced property. In the judgment of the Director and/or the Zoning Commissioner, in consideration of your findings, a special hearing may be required before the Zoning Commissioner prior to any zoning approvals. We are submitting a copy of....

In November 1996, appellee, pursuant to section 26-171(a)(7) of the Baltimore County Code, requested a limited exemption from the requirements of the building regulations. This request was granted by the Development Review Committee, Department of Permits and Development Management, by a letter from Mr. Jablon dated November 26, 1996. By virtue of this provision, appellee was exempted from both the community input meeting and the public hearing.

Appellee's first building permit was issued on February 14, 1997. Because appellee decided to add a basement to his facility, he re-applied and was issued a new permit on March 27, 1997, allowing for a 10,000 square foot facility.³

On April 16, 1997, Mr. Carl Richards, Supervisor of Baltimore County's Zoning Review Section, wrote appellee a letter informing him that there had been community complaints about his proposed usage for the barn. Mr. Richards pointed out that any citizen could file a petition for special hearing. Section 500.7 of the zoning regulations explains by whom and for what a petition for special hearing can be requested. It permits:

any interested person to petition the zoning commissioner for a public hearing after advertisement and notice to determine the existence of any purported nonconforming use on any premises or to determine any rights whatsoever of such person in any property in Baltimore County insofar as they are affected by these regulations.

BCZR § 500.7 (2000). In that same letter, however, Mr. Richards stated that his department accepted the Advisory Board's recommendation that appellee's property was a "farm" at face value and deferred to the Advisory Board's expertise and knowledge about the subject matter.

Ms. Marzullo filed a Petition for Special Hearing near the end of April 1997, arguing that appellee's facility was not a "farm" and thus not a permitted use in a RC-4 zone. Appellee was notified that appellants' petition had been filed on April 30, 1997. The Board found that at the time of the petition's filing, the reptile barn was 45% complete with its foundation laid and walls erected. The zoning commissioner heard the case on October 21, 1997, and denying appellant's petition, approved the site for the breeding, raising, and selling of reptiles.

On November 30, 1998, seeking a modern-day Phorbas,⁴ appellants appealed to the Board. The Board reversed and held that the snake facility was not a use permitted as of right in a RC-4 zoning district.

Appellee then petitioned for judicial review of the Board's ruling to the circuit court. On November 16, 1999, the circuit court reversed the Board and held that the snake breeding facility was a farming activity permitted as of right. An appeal from the Circuit Court's decision was timely filed to this court.

III. Applicable Standard of Review

Our review of an administrative agency's decision is narrow. Board of Physician Quality Assur. v. Banks, 354 Md. 59, 67, 729 A.2d 376 (1999). We will not disturb the agency's factual findings unless those findings are clearly erroneous. Pierce v. Montgomery County, 116 Md.App. 522, 529, 698 A.2d 1127 (1997) (quoting County Comm'rs of Carroll County v. Zent, 86 Md.App. 745, 752-53, 587 A.2d 1205 (1991)). In other words, we will not substitute our judgment for an agency's factual findings if the record contains substantial...