People's Counsel v. Country Ridge

• Decision Date: 03 June 2002
• Docket Number: No. 0952,0952
• Citation: 799 A.2d 425,144 Md. App. 580
• Parties: PEOPLE'S COUNSEL FOR BALTIMORE COUNTY v. COUNTRY RIDGE SHOPPING CENTER, INC., et al.
• Court: Court of Special Appeals of Maryland

799 A.2d 425

144 Md. App. 580

PEOPLE'S COUNSEL FOR BALTIMORE COUNTY v. COUNTRY RIDGE SHOPPING CENTER, INC., et al.

No. 0952, Sept. Term, 2001.

Court of Special Appeals of Maryland.

June 3, 2002.

Peter Max Zimmerman (Carole S. Demilio, on the brief), Towson, for appellant.

Sebastian A. Cross (Davis K. Gildea and Gildea, L.L.C., on the brief), Baltimore, for appellee, Southside Brokers.

Argued before KENNEY, SHARER, and CHARLES E. MOYLAN, Jr. (retired, specially assigned), JJ.

CHARLES E. MOYLAN, Jr., Judge (Retired, Specially Assigned).

The single issue before us on this zoning appeal is whether the Baltimore County Board of Appeals, on a remand to it by this Court, adequately complied with the terms of our mandate remanding for "further proceedings." We hold that, in the procedural and factual posture of this particular case, it did.

More is involved in that holding, however, than at first glance appears. It is necessary that we dissect, at the most elemental level, the very nature and the institutional characteristics of the Baltimore County Board of Appeals specifically and, arguably, of administrative boards and agencies generally. The focus of our examination will be on the impact that periodic changes in personnel have on the institutional continuity and operational vitality of the tribunal itself.

The Pawnshop's Petition For A Special Exception

One of the appellees, Southside Brokers, Inc., is the operator of a pawnshop. Prior to 1995, the pawnshop had been located at 8110 Pulaski Highway. When the lease on that property was about to expire, the pawnshop leased space in the Country Ridge Shopping Center, Inc., the other appellee, located at 1508 Back River Neck Road, and moved to the new location in May of 1996. The shopping center was, and is, zoned B.M. (business major). Pawnshops are permitted in a B.M. zone by way of special exception. Baltimore County Zoning Regulations, §§ 436, 233. Accordingly, the pawnshop petitioned for a special exception at its new location.

Initially the appellees ran afoul of BCZR § 436.4, which the Baltimore County Council had adopted on July 3, 1995. It provides, in pertinent part:

436.4 Special exception petition. In addition to the requirements of Section 436.3 and such other requirements of these regulations relating to a special exception petition, a pawnshop is subject to the following requirements:

A. Location may not be within a one-mile radius of any other pawnshop, and no more than two pawnshops may be located in a councilmanic district.

(Emphasis supplied).

Invoking that provision, the Zoning Commissioner initially denied the petition for a special exception on January 22, 1996, because the relocation site was within a one-mile radius of an existing pawnshop. On a motion for reconsideration, the Zoning Commissioner on April 19, 1996 reversed his position and granted the special exception. He realized that he had failed to take into consideration the "grandfather" provision of the 1995 bill enacting the one-mile radius limitation, which had further provided:

SECTION 6. AND BE IT FURTHER ENACTED, that pawnshops lawfully in existence and operating on the effective date of this Act are not subject to the requirements of Sections 436.4.

The County Board of Appeals: Round One

At that point, the appellant, People's Counsel for Baltimore County, representing various residents of the Back River Neck Road area including the presidents of both the Rockway Beach Association and the Back River Neck Peninsula Community Association, appealed the decision of the Zoning Commissioner to the Baltimore County Board of Appeals.

The Board of Appeals conducted two full days of hearings, on November 6, 1996 and March 12, 1997. A public deliberation on the matter was held on April 17, 1997. One witness, the owner of the pawnshop, testified in favor of the petition for special exception. A number of witnesses testified against the petition. On April 30, 1997, a two-to-one majority of the Board of Appeals denied the special exception. In the majority opinion, two strands of reasoning were intertwined. The ultimate outcome of this appeal may turn 1) on the extent to which those separate strands of reasoning are capable of being isolated and independently evaluated and 2) on whether they were actually so isolated and independently evaluated in the Board's decision.

On our present reading, it seems overwhelmingly likely to us that the original majority opinion of the Board of Appeals concluded, with solid evidentiary support for so concluding, that the pawnshop had failed to show, under traditional Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981) standards, that it was entitled to the special exception. This apparent conclusion of the Board of Appeals seems to have been completely independent of any consideration of the debatable one-mile radius limitation. The Board of Appeals initially set out the test that framed its analysis.

BCZR Section 502.1 sets the standards for the granting of a special exception. In this case, the special considerations are 502.1(a) and (g):

a. Be detrimental to health, safety, or general welfare of the locality involved; and

g. Be inconsistent with the purposes of the zoning classification, nor in any way inconsistent with the spirit and intent of the zoning regulations.

Using the standard set forth in Schultz v. Pritts, 291 Md. 1, [(]1981[)], "the test for considering a special exception is not whether the use will have an adverse effect, but whether the adverse effect at the particular location is greater than ordinarily associated with the use.... 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. The duties given to the Board are to judge ... whether the use in the particular case is in harmony with the general purpose and intent of the plan."

Properly applying Schultz v. Pritts, the Board then concluded that the pawnshop would have an unduly adverse impact in the intended location.

Using the Schultz v. Pritts standard for granting or denying a special exception—that the proposed use would have an adverse effect above and beyond what it would ordinarily have in any area—it would appear that a pawnshop would have more than the usual adverse effects in the area of the Country Ridge Shopping Center, because the location is the focus of intense efforts at revitalization.

(Emphasis supplied).

The Board emphasized that the neighborhood is "the highest priority revitalization area."

Contrary to the opinion of the Zoning Commissioner, who granted this Petition, we feel compelled to recognize the qualitative judgments of the County Council and the uncontradicted testimony that this section of Essex is in the highest priority revitalization area, has the highest incidence of negative socioeconomic indicators, and has the highest incidence of major crime in the County. These adverse effects are greater in the subject neighborhood than they would be elsewhere within the zone, which is a persuasive reason for denial of the special exception for a third pawnshop in the Essex area.

(Emphasis supplied).

At that point, to be sure, the opinion of the Board of Appeals did not stop and announce that its reasoning to that juncture was self-sufficient to justify its decision. Had it done so, this appeal would not now be before us. The Board added to its catalogue of reasons, seemingly as little more than a makeweight, the one-mile radius limitation.

Because that locational limitation was recited as one of the factors, however, it became necessary for the Board to address the applicability of the "grandfather" provision to the relocation in this case. As the Board approached its analysis of the "grandfather" clause's applicability, it seemed to be under some arguable misapprehension as to the scope of the "grandfather" clause exemption, if applicable. It is a plausible reading that the Board of Appeals believed that the Zoning Commissioner had erroneously deemed the "grandfather" provision to be not only an exemption from the one-mile radius limitation but, more broadly, an exemption from the required showings for a special exception generally. The Board itself made an ambiguous reference in the plural to "[1] special exception and [2] locational requirements."

In this Majority Opinion, we concur that the Council, in Section 6 of Bill No. 112-95, did exempt from the BCZR 436.4 special exception and locational requirements for pawnshops lawfully in existence and operating on the effective date of the Act.

(Emphasis supplied).

In any event, the Board of Appeals ruled that the "grandfather" clause exemption from § 436.4's one-mile radius limitation applied only to pawnshops that remained in place and not to those that were being relocated. On appeal to the Circuit Court for Baltimore County, the Board of Appeals was affirmed.

The Opinion and Mandate of the Court of Special Appeals

The appellees appealed the denial of the special exception to this Court. The case before us focused on whether the "grandfather" clause exemption covered a preexisting pawnshop that was in the process of relocating. Our opinion, filed on July 21, 1999, reversed the rulings of the circuit court and of the Board of Appeals and held that the "grandfather" clause exemption from the one-mile radius limitation, indeed, applied to pawnshops that were in the process of relocating.

The backbone of our opinion was our statutory construction of Baltimore County Council Bill No. 112-95, which had, on July 3, 1995, adopted both 1) the one-mile radius limitation itself, which became BCZR § 436.4; and 2) in § 6 of the Bill, the exemption for pawnshops already in existence. We held that both the Board of Appeals and the circuit court had been unduly restrictive in their construction of the exemption.

We made it very clear, however, that the exemption for a preexisting and...