People's Counsel v. Loyola

• Decision Date: 09 September 2008
• Docket Number: No. 137 September Term, 2007.,137 September Term, 2007.
• Citation: 406 Md. 54,956 A.2d 166
• Parties: PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al. v. LOYOLA COLLEGE IN MARYLAND.
• Court: Court of Special Appeals of Maryland

956 A.2d 166

406 Md. 54

PEOPLE'S COUNSEL FOR BALTIMORE COUNTY, et al. v. LOYOLA COLLEGE IN MARYLAND.

No. 137 September Term, 2007.

Court of Appeals of Maryland.

September 9, 2008.

Peter Max Zimmerman (Carole S. Demilio, People's Counsel for Baltimore County, Towson, MD), on brief; G. Macy Nelson (Paul N. De Santis, Towson, MD), on brief, for Petitioners.

James A. Dunbar (Arnold E. Jablon and Christopher D. Mudd of Venable, LLP, Towson, MD), on brief, for Respondent.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, JOHN C. ELDRIDGE, (Retired, Specially Assigned), and IRMA S. RAKER, (Retired, specially assigned), JJ.

HARRELL, Judge.

The legacy in Maryland land use law of Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981), has been beneficial and well-applied for the most part over the ensuing years. The synthesis of earlier cases threaded through its reasoning supplies a lucid explanation of the legislative calculus for why some land uses, at the time of original adoption or later amendment of the text of a zoning ordinance, are placed in the blessed category of permitted uses in a zone or zones while other uses in the same zone or zones receive a more measured imprimatur of presumptive compatibility as allowed only with the grant of a special exception or conditional use. Schultz also iterated how special exception uses are useful zoning tools for fleshing out the grand design of land use planning, as well as postulated an analytical paradigm for how individual special exception applications are to be evaluated. In carrying-out the latter goal, however, some of the language of Judge Davidson's opinion for the Court in Schultz occasionally has been mis-perceived by subsequent appellate courts and frequently misunderstood by some attorneys, planners, governmental authorities, and other citizens. We aim in the present case for greater clarity in explaining the proper evaluative framework for discrete special exception/conditional use applications and dispelling any lingering mis-understandings of what the Court truly intended when it filed the opinion in Schultz twenty-seven years ago.

Facts and Procedural History

In October 2001, Loyola College in Maryland ("Loyola") contracted to purchase a fifty-three acre parcel (the Property) in northern Baltimore County for the purpose of constructing several buildings to be used for weekend spiritual retreats. The Property is located in the R.C.2 (Resource Conservation) zone. According to the Baltimore County Zoning Regulations (BCZR) § 1A01.1(B), the purpose of the Resource Conservation zone is "to foster conditions favorable to a continued agricultural use of the productive agricultural areas of Baltimore County by preventing incompatible forms and degrees of urban uses." Among the permitted uses allowed as of right in the R.C.2 zone are "one-family detached" dwellings, "agricultural operations," "open space," and "public schools." BCZR § 1A01.2. BCZR § 1A01.2(C) allows "churches or other buildings for religious worship," "camps, including day camps," and "schools, including but not limited to private preparatory schools, colleges, business and trade schools, conservatories or other fine arts schools" as special exceptions in the R.C.2 zone.

In early 2004, Loyola submitted to Baltimore County a plan to develop the Property into a Retreat Center. The plan proposed development of just over ten of the fifty-three acres of the Property, leaving the balance in an "as is" state. Loyola concurrently filed a petition for special exception for the Retreat Center as a school or college, church, or camp.¹ The Baltimore County Zoning Commissioner/Hearing Officer, in April 2004, conducted a three-day hearing² on the development plan and special exception petition. The hearing officer issued an opinion and order on 10 June 2004 approving the development plan and granting the special exception. A group of citizens acting individually and collectively as Citizens Against Loyola Multi-use Center ("Citizens")³ appealed to the Baltimore County Board of Appeals (Board of Appeals).⁴ The Board of Appeals held a de novo hearing⁵ regarding the special exception and an appeal on the record regarding the development plan.⁶ The combined hearing continued over a total of six days between 15 September 2004 and 4 January 2005.⁷

Both sides presented voluminous evidence regarding the effect that the proposed special exception use would have on the surrounding neighborhood. Because Petitioners narrowed the legal issue before this Court in their Petition for Certiorari, we shall summarize only the relevant evidence presented at the hearing. Loyola produced evidence, which the Board of Appeals credited, that the impacts of the proposed use on agriculture would be minimal. Loyola pointed out that the proposed Retreat Center would occupy only 10.18 acres of land, less than twenty percent of the Property. The remainder of the Property would be used for agriculture or open space. Robert Sheelsey, an environmental consultant and licensed sanitarian, testified for Loyola that the Property is located "right on the fringe" of the agricultural zone and within the Interstate 83 corridor. Based on this evidence, the Board of Appeals concluded that the Retreat Center "will not harm agricultural activity in the vicinity." Loyola presented evidence that the outdoor lighting at the Retreat Center would be "dark skies compliant." Two additional experts testified on behalf of Loyola that the Retreat Center would not be detrimental to the neighborhood because "it was a very low intensity use" of the Property.

Substantial testimony at the hearing concerned the onsite septic system and water usage of the Retreat Center. Sheelsey testified that there are proper soils for septic discharge in the proposed septic field. He further explained that the discharge from the septic system would undergo "biological/biochemical pretreatment" prior to discharge, making the discharge "most likely 99% clear and treated." The proposed septic discharge system would contain a "flow equalization" mechanism to account for the nature of the use of the Retreat Center (heavy use for a few days followed by no use at all for the remainder of the week). Regarding water usage, Thomas Mills, an expert geologist, testified for Loyola that the "supply of groundwater was more than adequate" for the Retreat Center, even under drought scenarios, and that the Retreat Center's water usage would not affect neighboring wells.

There was controversy over the "thermal impacts" from proposed stormwater ponds at the Retreat Center. Citizens argued that discharges from the stormwater detention ponds would warm a tributary to the Fourth Mine Branch, described as a local trout stream, impairing the ability of the trout to reproduce. Professor Edward J. Bouwer of The Johns Hopkins University and Charles Gougeon of the Maryland Department of Natural Resources testified as to their belief that the run-off from the stormwater ponds would warm the tributary. Loyola countered with the testimony of an ecologist, Joseph Berg, Jr. Berg testified that the tributary would not be a sustainable habitat for trout in any event. In addition, he testified that any impact from rain run-off would be minimal. In its written opinion, the Board of Appeals stated that it "was not persuaded by the testimony of Professor Bouwer or Mr. Gougeon...."

The parties also disputed the impact of nitrogen and phosphorous discharges from the septic system. Citizens presented the testimony of Professor Brian Reed of the University of Maryland. He took the position that guidelines from the Maryland Department of the Environment required that septic systems that discharged over 5,000 gallons per day needed further study. Sheelsey, in rebuttal testimony, pointed out that, with the proposed flow equalization mechanism in place, the septic system would discharge only 2,881 gallons per day. He also identified a study that indicated that the Retreat Center's nitrogen discharge is below the threshold deemed safe for drinking water. The Board found that Loyola met its burden regarding the nitrogen and phosphorous impacts.

Petitioners described Stablersville Road, the main ingress/egress public road for the Retreat Center, as being a narrow country road with no shoulder and steep banks on both sides. It was claimed to be impossible for traffic to pass safely around slow-moving farm vehicles that used the road to move from property to property. Terrence Sawyer, Vice President of Administration at Loyola, responded with the various steps Loyola will take to minimize the traffic impact from the Retreat Center. Students will arrive in vans or buses owned by Loyola. Deliveries and pickups would be made between the hours of 7:00 A.M. and 4:00 P.M. Loyola also produced a local Traffic Impact Analysis prepared by Wes Guckert, an expert on traffic engineering. Guckert testified that, assuming a worst case traffic scenario from the Retreat Center use, local critical intersections would continue to operate "at level A service" (the best volume operation level) without any detrimental effect. The Board of Appeals found his testimony to be credible and noted that "Loyola has made a concerted effort to keep traffic to and from the site to a bare minimum."

Citizens also presented certain evidence that the Board of Appeals chose not to consider. Citizens argued that the standard established in Schultz⁸ for special exception applicants required Loyola to show that there are no other locations within the R.C.2 zone in Baltimore County where the proposed use would have less of an adverse effect than on the local neighborhood of the Property.⁹ The Board of Appeals dismissed this argument, noting:

We disagree with [Petitioners'] argument that [the Schultz] standard should be interpreted to mean that, as long as there are other locations in the zone in which certain adverse effects would be less...