Mossburg v. Montgomery County, 58

• Citation: 107 Md.App. 1,666 A.2d 1253
• Decision Date: 01 September 1995
• Docket Number: No. 58,58
• Parties: William H. MOSSBURG, Jr., et al. v. MONTGOMERY COUNTY, Maryland, et al. ,
• Court: Court of Special Appeals of Maryland

Page 1

107 Md.App. 1

666 A.2d 1253

William H. MOSSBURG, Jr., et al. v. MONTGOMERY COUNTY, Maryland, et al.

No. 58, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Oct. 2, 1995.

Reconsideration Denied Dec. 7, 1995.

Todd D. Brown (Joseph P. Blocher and Linowes and Blocher, on the brief), Silver Spring, for appellants.

Karen L. Federman Henry, Associate County Attorney (Charles W. Thompson, Jr., County Attorney, and A. Katherine

Hart, Senior Assistant County Attorney, on the brief), Rockville, for appellee Montgomery County.

Norman G. Knopf (Dennis M. Cate and Knopf & Brown on the brief), Washington, DC, for appellees Twin Lakes, et al.

William Jensen, Rockville, on the brief, pro se.

Argued before MOYLAN, WENNER and CATHELL, JJ.

CATHELL, Judge.

William H. Mossburg Jr., et al., appeal from an order of the Circuit Court for Montgomery County that affirmed the order of the Montgomery County Board of Appeals denying appellants' request for a special exception for the operation of a solid waste transfer station in an I-2 Industrial Zone in the Southlawn Lane industrial corridor of Rockville, a zone in which such uses are permitted as special exceptions.

This case is a companion case to one also on appeal and being considered by the same panel of this Court, Mossburg v. Montgomery County [No. 57, 1995 Term], which involves the grant of declaratory and injunctive relief, foreclosing Mossburg's attempt to continue the operation of a solid waste transfer operation at another location as a legal nonconforming use. The case sub judice arises out of appellants' attempt to transfer the business from that location to the one in the instant case. In order to do so, a special exception is necessary.

There have been several judicial proceedings involving this matter. At least one has proceeded as far as the Court of Appeals. The companion case, at one point, at least facially, was subject to a compromise via a consent agreement before an administrative agency. That settlement contemplated the possible relocation of the operation. At that time, the Montgomery County zoning code did not permit such uses in any zone. The County apparently amended the code to provide for such uses in certain industrial zones. The legislative process began as an attempt to classify such uses as permitted in the designated zone. For whatever reason, by the time the process was completed, solid waste transfer uses were permitted in I-2 Industrial Zones, but only as special exceptions.

The inventory of I-2 Zones in Montgomery County is apparently extremely limited. ¹ The I-2 industrial corridor at issue here is already intensively built up with heavy industrial uses, as we shall hereafter discuss.

On this appeal, appellants present two questions:

I. Was the Board of Appeal[s]'s denial of the application on remand the result of impermissible "change of mind" conclusions and therefore arbitrary and capricious?

II. Were the reasons given by the Board of Appeals for its denial of the application supported by substantial evidence of record?

Before discussing the facts of this particular case, it may be helpful to discuss, once again, (1) how provisions for special exceptions are created in zoning codes, (2) the policy statements made by the creation of those provisions, (3) the inherent permissive nature of such exceptions, and (4) the proper focus to be utilized in determining whether a proposed special exception satisfies the conditions of the statute.

Any discussion of any zoning matter, be it, inter alia, rezoning, special exceptions/conditional uses, or variances, must always recognize that zoning is an interference (if done correctly, a permissible one) with a property owner's constitutional rights to use his own property as he sees fit. The Fifth Amendment to the United States Constitution provides, in pertinent part:

No person shall be ... deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation.

See also Article 24 of the Maryland Declaration of Rights. In Offen v. County Council, 96 Md.App. 526, 625 A.2d 424 (1993), aff'd in part, rev'd in part on other grounds, 334 Md. 499, 639 A.2d 1070 (1994), we noted that, in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1012-15, 112 S.Ct. 2886, 2892-93, 120 L.Ed.2d 798 (1992), the Supreme Court there said that, in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), the Court "had first recognized" that

[i]f ... the uses of private property were subject to unbridled, uncompensated qualification under the police power, "the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed]."

Offen, 96 Md.App. at 550-51, 625 A.2d 424. We went on, in Offen, to describe part of the history of zoning generally and its legitimate regulation of uses of private property, recognizing the awesome (but not unlimited) power of government to regulate such uses.

In that regard, we perceive no illegality, in the case sub judice, on the part of the legislative body of Montgomery County in establishing that solid waste transfer operations are permitted as special exceptions only in the I-2 Industrial Zones of Montgomery County. In fact, had that policy-making body chosen to prohibit such uses altogether, we would not be inclined to question its powers to do so unless, in so doing, it eliminated all viable economical uses of a property. ² Appellants, in the case sub judice, do not challenge the power of the County to provide for the use by way of a special exception, but question whether the body charged with administering that law, i.e., the Board, has done so properly.

Special Exceptions

We noted, in Cromwell v. Ward, 102 Md.App. 691, 701, 651 A.2d 424 (1995), citing Stacy v. Montgomery County, 239 Md. 189, 193, 210 A.2d 540 (1965), that "[a] special exception ... is expressly permissible...." See also Montgomery County v. Merlands Club, Inc., 202 Md. 279, 288, 96 A.2d 261 (1953); Cromwell, 102 Md.App. at 702, 651 A.2d 424 (citing Eberhart v. Indiana Waste Systems, Inc., 452 N.E.2d 455, 459 (Ind.App. 3 Dist.1983) ("A conditional use ³ is a desirable use which is attended with detrimental effects which require that certain conditions be met.")); Ash v. Rush County Bd. of Zoning Appeals, 464 N.E.2d 347, 350 (Ind.App. 1 Dist.1984) ("A special exception involves a use which is permitted ... once certain statutory criteria have been satisfied.").

We noted, in respect to attempts to utilize variance procedures to eliminate conditions, in the conditional use case of Chester Haven Beach Partnership v. Board of Appeals, 103 Md.App. 324, 336, 653 A.2d 532 (1995), that it is "the generally accepted proposition[ ] that, if the express conditions ... are met, it is a permitted use because the legislative body has made that policy decision." Thus, we conclude, as this Court and the Court of Appeals often have, that a special exception/conditional use in a zoning ordinance recognizes that the legislative body of a representative government has made a policy decision for all of the inhabitants of the particular governmental jurisdiction, and that the exception or use is desirable and necessary in its zoning planning provided certain standards are met.

The modern seminal case, authored by the late Judge Davidson (who had herself risen through the community organizations and the planning/zoning arena of Montgomery County), is Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981). That case, with but minor modifications, and with but one or two strained deviations, see Board of County Comm'rs v. Holbrook, 314 Md. 210, 550 A.2d 664 (1988), remains the standard by which special exception questions are resolved. After furnishing legal and historical background, Judge Davidson noted for that Court that

[w]hen the legislative body determines that other uses are compatible with the permitted uses in a use district, but that the beneficial purposes such other uses serve do not outweigh their possible adverse effect, such uses are designated as conditional or special exception uses. Such uses cannot be developed if at the particular location proposed they have an adverse effect above and beyond that ordinarily associated with such uses.

Schultz, 291 Md. at 21-22, 432 A.2d 1319 (emphasis added, citations omitted).

Thus, it is not whether a special exception/conditional use is compatible with permitted uses that is relevant in the administrative proceedings. The legislative body, by designating the special exception, has deemed it to be generally compatible with the other uses. In special exception cases, therefore, general compatibility is not normally a proper issue for the agency to consider. That issue has already been addressed and legislatively resolved. Moreover, it is not whether a use permitted by way of a special exception will have adverse effects (adverse effects are implied in the first instance by making such uses conditional uses or special exceptions rather than permitted uses), it is whether the adverse effects in a particular location would be greater than the adverse effects ordinarily associated with a particular use that is to be considered by the agency. As Judge Davidson opined in Schultz:

[T]he appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone.

Id. at 22-23, 432 A.2d 1319 (emphasis added). The question in the case sub judice, therefore, is not whether a solid waste transfer station has adverse effects. It inherently has them. The...