Montgomery County v. Butler, 27, Sept. Term, 2010.
| Decision Date | 16 December 2010 |
| Docket Number | No. 27, Sept. Term, 2010.,27, Sept. Term, 2010. |
| Citation | 9 A.3d 824,417 Md. 271 |
| Parties | MONTGOMERY COUNTY, Maryland, et al. v. Melody BUTLER d/b/a Butler Landscape Design. |
| Court | Maryland Court of Appeals |
Karen L. Federman Henry, Division Chief (Marc P. Hansen, Acting County Attorney and Barbara L. Jay, Associate County Attorney, Rockville; Jeffrey W. Harab of Law Offices of Jeffrey W. Harab, P.C., Chevy Chase), on brief, for appellants.
Susan W. Carter (Miller, Miller & Canby, Chtd., Rockville), on brief, for appellee.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
This case invites us to revisit our modern cases exploring the essence of "special exceptions" 1 and their role in the regulatory scheme of zoning—principally starting with Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981), and running to, most recently, People's Counsel for Baltimore County v. Loyola College in Maryland, 406 Md. 54, 956 A.2d 166 (2008). We shall revisit these cases, not to reaffirm, reverse, or modify their holdings, but rather to consider the extent to which a local legislative body, in enacting amendments to its zoning ordinance, may craft those amendments so as to establish adifferent analytical template for special exception applications than was considered and discussed in those cases.2
neighbor of the subject property that is the subject of the pertinent special exception application) (collectively "Appellants") appeal from the judgment of the Circuit Court for Montgomery County, which reversed the Montgomery County Board of Appeals's ("the Board") denial of Melody Butler's, d/b/a Butler Landscape Design ("Butler" or "Appellee"), application for a special exception, the grant of which was necessary for Butler to validate the otherwise illegal operation of a landscape contractor's business that she established on her property without benefit of a special exception. In arguing that the Circuit Court's reversal of the Board's denial of the application was erroneous, Appellants posit that substantial evidence exists in the record to support the Board's denial, pursuant to the criteria of the relevant and prevailing zoning ordinance provisions. More specifically, Appellants argue that, considering the definition of "non-inherent adverse effects" stated in § 59-G-1.2.1 of the Montgomery County Code ("the County Code") 4—"physical and operationalcharacteristics not necessarily associated with a particular use, or adverse effects created by unusual characteristics of the site"—the Board concluded correctly that the configuration of Butler's property and the layout of the operation of the landscaping business on the property would create unacceptable non-inherent adverse effects (essentially noise from trucks) on neighboring properties sufficient to deny the application. In response, Butler argues that, the County Code provisions notwithstanding, the proper analysis of the evidence should be confined to what the Schultz line of cases states about the respective roles of inherent versus non-inherent adverse effects of the proposed use and how each relates to consideration of special exception applications. In effect, Butler argues that § 59-G-1.2.1 of the County Code "must be read in context and harmony with the holding in Schultz ... and its progeny from which it was derived," resulting in an affirmance of the Circuit Court's judgment. Truck noise, she claims, is an inherent adverse effect from a landscape contractor's business whenever proposed and, therefore, such noise does not undercut the presumption of compatibility enjoyed by a proposed special exception use by virtue of its inclusion in the comprehensive zoning plan, i.e., the zoning ordinance.
We hold, as explained infra, that, to the extent there is any inconsistency between the special exception standards in the prevailing County Code and the reasoning and holdings of Schultz and its progeny, the County ("District Council") was free to legislate as it did here; that is, we disagree with the notion that a local zoning ordinance's treatment of special exceptions always must "be read in context and harmony with the holding in Schultz," and we refuse to give such ordinances this "judicial gloss" when the local legislature has spoken unambiguously to the contrary. Accordingly, we shall reverse the judgment of the Circuit Court for Montgomery County and remand to that court withinstructions to affirm the decision of the Board denying Butler's special exception application, which was supported by substantial evidence.
Melody Butler operates a landscape contracting business, under the name Butler Landscape Design, at 21020 Peach Tree Road, in Dickerson, Montgomery County, Maryland. The real property on which the business operates, which Butler owns, is a 2.68-acre lot improved with a single-family residence. The lot is in an area zoned in the "Rural Density Transfer" zone.5 Pursuant to the County Code, landscape contracting is not permitted as of right in the RDT zone, but may be allowed with the grant of a special exception. See Montgomery County Code, § 59-C-9.3(c) (2009). Butler established her business without obtaining the requisite special exception first. On 27 April 2006, the County's Department of Permitting Services issued Butler a Notice of Violation. 6Thereafter, on 30 July 2007, Butler, in an effort to correct the violation and validate her business, filed an application for a special exception to operate a landscape contractor's business.
The subject property is rectangular in shape, measuring 170 feet along its sole street frontage, Peach Tree Road, as well as the rear of the lot; 682 feet along its northern side; and, 695 feet on the southern side.7 The abutting lots on either side of Butler's property (the northern of which is owned by Cora Weeks), also having Peach Tree Road as their sole street access, are approximately of similar size and shape to Butler's lot, and each lot containsan occupied residence. Peach Tree Road borders the three properties to the east (along the front of the properties), and a farm borders all three lots to the west (to the rear of the properties). The neighborhood is predominantly rural in development character, and all of the lots are zoned as RDT.
A gravel driveway on Butler's property extends from Peach Tree Road, forms a loop in front of the residence, and then runs along the northern side of the lot, forming a second loop behind the house, where Butler stores and loads contracting equipment and supplies. The edge of the driveway is approximately twenty-two feet from the northern property line, and lies about forty-two feet from Weeks's residence. Separating Butler's lot from Weeks's lot is a row of white pine trees, although many of the trees lost their lower branches by the time of the special exception hearing before the County hearing examiner.
Butler's business provides landscape services, including: mulching, planting, weeding, mowing, and tree and snow removal for both residential and commercial properties, most of which are in Montgomery County. While all of these services are conducted off-site, equipment and materials necessary to carry out these services are stored on the subject property. Stored materials, all located on the rear of the subject property, include: nursery stock, trees, plants, mulch, firewood, flagstones, and landscaping equipment. The company operates year round, with the busiest periods from March through May and October through December. During these busy seasons, the company employs seven people, working six days a week and arriving on those days at approximately 7 a.m. When employees arrive for work, they load the trucks with the stock and equipment stored on-site and then drive to the location of the work to be performed, after which departure there is little activity on-site until the end of the day. The employees return the trucks to the lot by approximately 6:00-6:30 p.m. The employees are supposed to depart the site within a half hour, but Butler admitted that this schedule is not followed uniformly. No customers visit the property, and all office-bound work is done off-site.
In her special exception application, Butler proposed to limit mulch deliveries to the site to no more than three times per week during the period of March-June, and no more than two times per week for the remainder of the year. Additionally, Butler anticipated that plant stock would be delivered no more than two times per season. An on-site dumpster will be emptied once per week during the busy season and less frequently during slower periods.
Butler's truck fleet consists of five trucks and two off-road utility vehicles (Bobcats). All of the vehicles are kept on the subject property and are picked up and returned each day. In her special exception application, Butler stated that she plans to erect a prefabricated shed behind the residence in which to store the vehicles, tools, and other equipment. Butler hoped to pave the existing gravel driveway in its present location. She also planned to install additional screening fornoise-reduction purposes, including a six-foot tall, wood-on-wood fence along the northern property line (the shared line with Weeks's lot), and white pine trees along the southern property line. 8
Neighbors, through letters to and testimony before the Board and examiner, complained about the noise created by the trucks associated with Butler's activities, including that of hydraulic lifts and the safety alert sounds when they were driven in reverse gear. One neighbor complained of an "offensive odor" perceived on the neighbor's adjacent property emanating from trash and delivery trucks on Butler's property. Finally, neighbors opined that the use of the Butler property for contracting purposes had "severely diminished" the value of their homes.
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