Miller v. Maloney Concrete Co.

• Court: Maryland Court of Appeals
• Writing for the Court: Argued before GILBERT; WILNER
• Citation: Miller v. Maloney Concrete Co., 491 A.2d 1218, 63 Md.App. 38 (Md. App. 1984)
• Decision Date: 01 September 1984
• Docket Number: No. 845,845
• Parties: Thomas MILLER v. MALONEY CONCRETE COMPANY. ,

Page 38

63 Md.App. 38

491 A.2d 1218

Thomas MILLER v. MALONEY CONCRETE COMPANY.

No. 845, Sept. Term, 1984.

Court of Special Appeals of Maryland.

May 9, 1985.

Martin J. Hutt, Bethesda (Harry W. Lerch and Lerch, Early, Roseman & Frankel, Bethesda, Chartered on the brief), for appellant.

Stephen Swartz, Silver Springs (Charles G. Dalrymple and Linowes and Blocher, Silver Springs, on the brief), for appellee.

Argued before GILBERT, C.J., and WILNER and ROBERT M. BELL, JJ.

WILNER, Judge.

Among the powers granted to chartered counties in Maryland by the "Express Powers Act" (Md.Code Ann. art. 25A, § 5) is the power to "prevent, abate and remove nuisances." Sec. 5(J). The Act does not specify how that power may be implemented.

One of the ways that Montgomery County has chosen to implement it is by including in its zoning law a provision that "[a]ny use which is found by the [county board of appeals] to be a public nuisance, by reason of the emission of dust, fumes, gas, smoke, odor, noise, vibration or other disturbance, is expressly prohibited." Montgomery County Code, § 59-A-5.7. The validity of that provision, as applied in this case, is the subject of this appeal.

For some 45 years, Maloney Concrete Company, appellee, has operated a concrete batching plant on the southeast corner of Bethesda Avenue and Arlington Road. At least since 1962, the operation was conducted on two contiguous parcels of land, each comprising approximately 15,000 square feet. One of the parcels was owned by Thomas Miller, appellant, and was leased to Maloney.

When Maloney began its operation, and continuing into the mid-1970's, the neighborhood was industrial and the land was zoned industrial. Maloney's use of both parcels was a permitted, lawful one. Over the years, however, as the Bethesda area developed, the character of the neighborhood began to change. In 1976, the Maryland-National Capital Park and Planning Commission (Park and Planning Commission) and the Montgomery County Council, sitting as a District Council under the Park and Planning Commission law (current Md.Code Ann. art. 28, § 8-101), approved and adopted the "Bethesda Sector Plan," which recommended that the area be upgraded from industrial to retail commercial use. In accordance with that recommendation, the District Council, as part of its 1977 comprehensive rezoning, rezoned the area from industrial to general commercial. A concrete batching plant is not a permitted use in a general commercial zone, but, because it was lawfully in existence at the time of the rezoning, the Maloney plant became a lawful nonconforming use under Montgomery County Code, § 59G-4.1.

Mr. Miller owned a number of parcels along Bethesda Avenue and Arlington Road, other than that leased to Maloney. Consistent with the changing character of the neighborhood, he decided to develop his properties for retail commercial purposes. Three clusters were planned and built--Bethesda Row, located immediately adjacent to the Maloney Plant, Bethesda Avenue Row East, located across Bethesda Avenue somewhat north of the plant, and Bethesda Avenue Row West, located catercorner from the plant, on the northwest corner of the intersection. Bethesda Avenue Rows East and West were quickly and successfully leased--within two months after completion--at rentals ranging from $15 to $20 per square foot. The center immediately adjacent to the plant--Bethesda Avenue Row--took about two years to lease fully, the average rental there being about $14 per square foot.

Consistent with this development, Miller decided not to renew Maloney's lease when it expired in September, 1982. That decision necessarily required Maloney to consolidate its operation on the remaining half of its property. One result of the dislocation was the inability of Maloney to conduct its unloading operations--the delivery of dry cement from 20-ton hopper trucks--within the confines of the property itself. While the lease was in effect, the trucks parked and unloaded on the property within a fenced boundary; after September, 1982, the trucks parked along Arlington Road and pumped the cement powder into the plant through pneumatic tubes that extended from the plant to the street.

On November 12, 1982--exactly two months after termination of the Maloney lease--Mr. Miller, invoking § 59-A-5.7 of the county code, filed a petition with the county board of appeals, claiming that Maloney's operation produced dust, dirt, noise, vibration, and smoke so as to affect adversely the public health, safety, and general welfare, as well as the peaceful use, enjoyment, and value of surrounding properties. The same day, the Edgemoor Citizens Association, Inc. filed a similar petition.

The board conducted a hearing on June 16, 1983, at which ten people testified--Miller, his leasing agent, four of his tenants, two nearby residents, a nearby businesswoman, and an environmental engineer. What emerged from the lay witnesses were complaints about (1) dust emanating from the plant, (2) noise, traffic congestion, and safety hazards from the trucks, and (3) water and mud on the ramp leading from the Maloney property to the street. As noted, Miller had successfully leased his three developments, although it took a while to lease fully the project nearest the plant. None of the businesspeople indicated any loss of business by reason of the plant or the inability to conduct their respective businesses. One of the resident-witnesses complained that dust covered her porch, car, and bushes, but that was apparently a condition that long predated Maloney's loss of the leased parcel. The other resident-witness, who opposed the petitions, indicated that "apparently no one had any problem from dust, or noise, or anything, until these shops were built there, and Mr. Miller started to file complaints...."

The testimony of the engineer--Mr. Kamber--focused on noise, water quality, and air quality. The county has a noise control law, codified as ch. 31B of the county code. The law specifies certain maximum noise levels permitted from commercial property which, Kamber said, are exceeded by Maloney's operation. Mr. Kamber identified two sources of the noise--the trucks themselves and the plant. From the trucks, there came the sound of the engines, a whirring sound while the trucks were dumping, and the banging of tailgates. From the plant came the sound of the aggregate being dumped into bins. Those sounds, said Mr. Kamber "are the sounds of industrial progress" that are "characteristic of what you would expect if you were in an industrial area," but "are not particularly pleasant sounds in and around a residential area, or a commercial area."

Mr. Kamber made no independent study of the effect of the Maloney operation on water quality, but referred to county studies and records. Some of the dust, he said, ends up in the storm drainage system and is ultimately discharged into Willeck Branch. Those are not desirable substances to have discharged into the streams, he stated, but how much that runoff contributes to the poor water quality in Willeck Branch "I don't know, and I don't think even the county, with their monitoring data, really knows...." Some of the problem, he agreed, had been eliminated when Maloney stopped washing its trucks at the plant site; some of the pollution in Willeck Branch was attributable to the construction of the Metro system and not to the Maloney operation.

As to air quality, Kamber cited problems with dust and exhaust fumes emanating from the trucks. The dust, he said, "one can anticipate ... at a batching plant; that's just characteristic of those." The emissions from the trucks could be alleviated if Maloney had more room at the site.

Finally, the board admitted into evidence a letter from the chairman of the Park and Planning Commission noting that (1) as part of the 1977 comprehensive rezoning, it was recognized that the Maloney property would be "in a legal nonconforming status" and (2) Maloney had purchased land elsewhere for the purpose of relocating the plant, but the county council declined to approve the necessary zoning for that site and thus "thwarted the intended relocation...." The letter concluded:

"The Planning Board continues to believe that it is highly desirable to have such a business located in the lower county. While we agree that it must comply with relevant noise control and air pollution standards, it must be remembered that the surrounding businesses chose their locations long after the concrete plant was in operation and governmental action has made it difficult to relocate the plant.

More recently, it has been brought to my attention that the loading of trucks has been forced onto Arlington Road by virtue of the fact that a portion of the adjoining lot formerly leased for that purpose is no longer available, which has constricted the operation."

Upon this evidence, the board concluded that the batching plant operation constitutes a public nuisance, but that the

"nuisance aspects ... may be removed by Maloney in the following manner:

1. The plant shall be operated in such a fashion that noise emitted by its operation shall not exceed 62 dBA at any property line of the Maloney Concrete property.

2. The plant shall be operated in such a way that water and concrete residue shall not be discharged onto the property abutting the south property line, and concrete residue shall not be discharged into the public sewer system.

3. The plant shall be operated in such a way that smoke, soot and dust will not be discharged into the air in quantities sufficient to leave a visible film on cars parked nearby.

4. Operation of the batching plant shall be confined to property owned or leased by Maloney Concrete Company, that is to say, public property shall not be utilized on a regular basis for unloading of supply trucks from Arlington Road."

The board made no finding as to whether these conditions could, in fact, be...