Moseman v. County Council of Prince George's County

• Decision Date: 01 September 1993
• Docket Number: No. 864,864
• Citation: 636 A.2d 499,99 Md.App. 258
• Parties: Richard N. MOSEMAN, et al. v. COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland, Sitting as the District Council, et al. ,
• Court: Court of Special Appeals of Maryland

Page 258

99 Md.App. 258

636 A.2d 499

Richard N. MOSEMAN, et al. v. COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland, Sitting as the District Council, et al.

No. 864, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Jan. 31, 1994.

Certiorari Denied June 24, 1994.

Robert A. Manzi (Daniel F. Lynch and Knight, Manzi, Brennan, Ostrom & Ham, P.A. on the brief), Upper Marlboro, for appellants

Joyce Birkel Nichols of Upper Marlboro, for appellee, County Council of Prince George's County.

J. Carroll Holzer (Holzer and Lee on the brief for appellee, Mattaponi Basin Citizens Ass.), Towson, for appellees.

Argued before GARRITY, ALPERT and DAVIS, JJ.

GARRITY, Judge.

This appeal arises from the April 6, 1993 Order of the Circuit Court for Prince George's County (Platt, J.) that affirmed the decision of the County Council of Prince George's County, sitting as the District Council, denying an application for Special Exception 4029, (SE 4029), seeking permission to operate a rubble fill.

FACTS

On March 4, 1991, Richard N. Moseman, Daniel Rousseau, and Blake Van Leer, appellants, filed an application for a Special Exception to operate a rubble fill pursuant to Section 27-406 of the Prince George's County Code. A portion of the property is currently being mined for sand and gravel under Special Exception 3930, (SE 3930), approved in November of 1988. The property is surrounded by undeveloped land, "scenic" property, historic sites, a rubble fill, a surface mining operation, and single family homes utilizing well and septic systems.

In 1991, both the Technical Staff and the Planning Board of the Maryland National Capital Park and Planning Commission recommended approval of the application subject to several

conditions. The Zoning Hearing Examiner, after three days of evidentiary hearings, recommended denial based upon the County Scenic Roads Study of 1984 and the adverse impact on the health, safety, and welfare of the area's residents. Appellants filed exceptions and, after oral argument, the County Council of Prince George's County, sitting as the District Council, denied the application. Upon appeal to it, the Circuit Court for Prince George's County granted a Motion To Intervene filed by six citizens who own property close to the proposed rubble fill. After oral argument and reviewing Memoranda of Law submitted by the parties, the court affirmed the District Council. Appellants present two issues for our review:

1. Whether the issue before the District Council as to the grant or denial of the special exception was fairly debatable; and

2. Whether the District Council's decision, in light of its approval of SE 3930, was arbitrary, illegal, and capricious.

DISCUSSION OF LAW

The District Council's Denial of SE 4029

The circuit court's and our own standard of review is limited to whether the administrative agency's decision is in accordance with the law or whether it is arbitrary, illegal, and capricious. Mortimer v. Howard Research, 83 Md.App. 432, 441, 575 A.2d 750, cert. denied, 321 Md. 164, 582 A.2d 499 (1990) (citations omitted). The test is whether the question before the District Council was fairly debatable, that is to say, whether the decision of the agency "is supported by substantial evidence on the record taken as a whole." Id., (citations omitted). Our role is to determine whether the circuit court erred. Id., 83 Md.App. at 442, 575 A.2d 750.

In determining whether there was substantial evidence to support the agency's decision, if there was evidence from which a reasonable person could come to different conclusions this Court will not substitute its judgment for that of the administrative agency, even if we might have reached a different conclusion independently. Eger v. Stone, 253 Md. 533, 542, 253 A.2d 372 (1969). Specifically, as to special exception proceedings:

[t]he special exception use is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception use ... delegates to an administrative board a limited authority to allow enumerated uses which the legislature had determined to be permissible absent any fact or circumstance negating the presumption.

Schultz v. Pritts, 291 Md. 1, 11, 432 A.2d 1319 (1981) (emphasis in original). Whether the presumption that the special exception use is in the interest of the general welfare is rebutted must be addressed by the District Council on a case-by-case basis. See Sharp v. Howard County Board of Appeals, 98 Md.App. 57, 86, 632 A.2d 248.

In the matter sub judice, Section 27-317(a) of the County Code requires the District Council to make certain findings in order to approve any special exception:

(1) the proposed use and site plan are in harmony with the purposes of this Subtitle; ¹

(2) the proposed use is in conformance with all the applicable requirements and regulations of this Subtitle;

(3) the proposed use will not substantially impair the integrity of any validly approved Master Plan or Functional Master Plan, or, in absence of a Master Plan or Functional Master Plan, the General Plan;

(4) the proposed use will not adversely affect the health, safety, or welfare of residents or workers in the area;

(5) the proposed use will not be detrimental to the use or development of adjacent properties or the general neighborhood; and

(6) the proposed site plan is in conformance with an approved Tree Conservation Plan.

Prince George's County Code, Subtitle 27 (Zoning Ordinance), § 27-317(a) (1990 Ed.).

To determine whether the proposed use "adversely affect[s] the health, safety, or welfare of residents," the District Council must determine whether there are facts and circumstances that show that the particular use proposed at the particular location would have any adverse affect above and beyond those inherently associated with such a special exception use irrespective of its location in the permitted zone. Schultz, 291 Md. at 15, 432 A.2d 1319.

In denying the application, the District Council made the following findings and conclusions:

1. That the neighborhood surrounding the proposed special exception is primarily rural in nature, consisting mostly of rural homes and undeveloped agricultural land.

2. That there is a rubble fill currently in operation across from the proposed rubble fill, and this existing rubble fill is allowed to operate with unlimited truck trips.

3. That, given the existence of the adjoining rubble fill currently in operation, granting the proposed rubble fill would adversely impact the surrounding properties in a manner unique and different from the adverse impact that would otherwise result if a rubble fill were located elsewhere within the O-S Zone.

4. That the proposed rubble fill and its resulting increase in heavy truck traffic, stacking of trucks, and noise and dust created by the proposed rubble fill would be an intrusion into this primarily rural neighborhood and would adversely affect the health, safety, and welfare of the residents in this area and would be detrimental to the use and/or development of adjacent properties and the general neighborhood.

5. That the proposed use is not in harmony with the purposes of the Zoning Ordinance.

6. That under the facts in the record, imposing conditions upon its approval of the proposed special exception would not adequately protect the health, safety and welfare of the residents in this area.

Appellants' basic objection to the evidence presented by opposing experts is that their testimony was not probative and therefore could not serve as a basis for substantive evidence. Appellants argue that much of that testimony was based upon miscalculation, a generalized bias against rubble landfills, and unreasonable comparisons. They further argue that any relevant opinions offered were rebutted by their experts.

Any opinion testimony is of no greater probative value than that allowed by...