Rockville Fuel & Feed Co. v. Board of Appeals of City of Gaithersburg, 227

• Decision Date: 04 March 1970
• Docket Number: No. 227,227
• Citation: 262 A.2d 499,257 Md. 183
• Parties: ROCKVILLE FUFL AND FEED COMPANY, Inc. v. BOARD OF APPEALS OF the CITY OF GAITHERSBURG.
• Court: Maryland Court of Appeals

Page 183

257 Md. 183

262 A.2d 499

ROCKVILLE FUFL AND FEED COMPANY, Inc. v. BOARD OF APPEALS OF the CITY OF GAITHERSBURG.

No. 227.

Court of Appeals of Maryland.

March 4, 1970.

James R. Miller, Jr., Rockville, for appellant.

Joe M. Kyle, Silver Spring, for appellee.

Before HAMMOND, C. J., and BARNES, FINAN, SINGLEY and DIGGES, JJ.

HAMMOND, Chief Judge.

At issue here is whether the Board of Appeals of the City of Gaithersburg properly and legally denied the application of Rockville Fuel and Feed Company, Inc. for a special exception to construct and operate a ready-mix concrete plant in a heavy industrial zone in Gaithersburg. The Board read the Gaithersburg zoning ordinance to require it, before a special exception could be granted, first to find from the evidence that the proposed facility would 'promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity or general welfare.' It could not make this finding since to it, the record before it was devoid of 'any evidence of an affirmative benefit to the community' and lacked a showing of any kind that the granting of the application 'will serve to promote the public welfare.'

The Board thought that its next task was, in the words of the ordinance, 'to determine that such a use will not unduly disturb or harmfully influence other uses in the area adjoining,' and said:

'Since the Board is unable to make the first finding under Article II, it does not reach the questions which arise under the second. Obviously, the Board must determine whether the advantages which might occur to the total community from the proposed facility outweigh the possible disturbances or harmful influences on the surrouding area. But if there is no evidence of benefit then the extent of harm or disturbance becomes immaterial, unless it is shown there would be no harm or disturbance at all.'

The Board went on to note that the weight of the evidence was that substantial harm to the adjoining area would result from 'traffic congestion created by the trucks using the proposed plant,' that air pollution from cement dust emitted by the proposed plant 'might or could result,' and that there would be an increase in volume if not in intensity of noise (findings we shall later see are unsupported by any probative evidence whatsoever). The Board finally said:

'The Board cannot escape the conclusion that these detriments to the established commercial enterprises in the immediate area would outweigh any possible showing of promotion of the general public welfare.'

We think the Board misconceived the meaning of the statute and that its denial of the application was arbitrary. The parties agree that the authority of the City of Gaithersburg to zone stems from Code (1967 Repl.Vol.), Art. 66B. Section 21 thereof gives the power to municipalities to zone 'for the purpose of promoting health, safety, morals or the general welfare of the community.' Indeed, this is a reiteration of the ultimate and general purposes of all zoning. As 8 McQuillen, Municipal Corporations (1965 Rev.Vol.), § 25.17, p. 53, well puts it:

'More specifically, the common purposes of zoning, sometimes specified by statute and in any event implicit in the concept of comprehensive zoning and reasonably related to the public safety, health, morality and convenience, include the following: Avoidance of undue concentration of population; prevention of overcrowding of land or buildings; establishment of residential districts to promote the public welfare, protect property values, advance the attractiveness of the city, and perhaps improve its esthetic features; establishment of trade and industrial districts in the interest of public health and safety and for economic reasons as well; securing of safety from fire, panic and other dangers; promotion of public sanitation; exclusion of dangerous, offensive and unwholesome trades and industries from certain districts; protection of adequate light and air; lessening of congestion in the streets; and reduction of hazards to traffic generally and to school children especially.'

See also 101 C.J.S. Zoning § 2.

Section 21(b) of Art. 66B of the Code authorizes use districts and § 21(c) expresses the purposes in so doing as follows:

'Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements.'

This Court has recognized all these fundamental principles as bases for decision. Mayor & City Council of Baltimore v. Byrd, 191 Md. 632, 637, 62 A.2d 588; Carney v. City of Baltimore, 201 Md. 130, 134-135, 93 A.2d 74; American Oil Co. v. Miller, 204 Md. 32, 43-44, 102 A.2d 727. Further, it has been recognized that zoning regulations reasonable in substance and reasonably applied do, or are presumed to, promote the public safety, health, morals, welfare and prosperity and aid in community development. County Comm'rs of Queen Anne's County v. Miles, 246 Md. 355, 364, 228 A.2d 450; Northwest Merchants Terminal, Inc. v. O'Rourke, 191 Md. 171, 190-191, 60 A.2d 743. These recognitions take the form of a strong presumption of the validity and correctness of comprehensive zoning or rezoning. Reese v. Mandel, 224 Md. 121, 128, 167 A.2d 111; Kahl v. Consolidated Gas, Elect. Lt. & Power Co., 191 Md. 249, 257, 60 A.2d 754. There cannot be validity and correctness in a comprehensive zoning plan unless it does promote the general welfare. It follows logically, as the decisions have held, that an attacker bears the heavy burden of overcoming the presumption that the legislative action was not in the interests of health, safety, morals or the general welfare. Reese v. Mandel, supra.

The conditional use or special exception, as it generally is called, is a part of comprehensive planning and shares the presumption that such a plan is in the interests of the general welfare and valid. Huff v. Board of Zoning Appeals, 214 Md. 48, 60-62, 133 A.2d 83.

In Montgomery County v. Merlands Club, Inc., 202 Md. 279, 287, 96 A.2d 261, 264 we went to some pains to stress that the special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to permit enumerated uses which the legislative body has determined can, prima facie, properly be allowed in a specified use district, absent any fact or circumstance in a particular case which would change this presumptive finding. We said: 'The duties given the Board are to judge whether the neighboring properties and the general neighborhood would be adversely affected, and whether the use, in the particular case, is in harmony with the general purpose and intent of the zoning plan.' In accord is Oursler v. Board of Zoning Appeals, 204 Md. 397, 401-402, 104 A.2d 568.

It is our view that the Gaithersburg zoning ordinance, including its concept of the special exception, is substantially that in general use in Maryland. Article III, § 1 M, covers the Heavy Industrial Zone. It recites that 'the exclusion of residential and commercial uses is intended to promote the economic welfare of the Town by reserving especially suited areas for industry and by controlling the intermingling of incompatible uses.' Uses 'permitted by right' include airplane manufacturing, breweries and distilleries, chemical manufacture, except of corrosive or other offensive acids, and a municipal sewage treatment plant and a municipal incinerator. Section 1 M then provides that:

'The following uses are permitted as special exceptions after approval by the Board of Appeals, which shall determine that such a use will not unduly disturb or harmfully influence other uses in the area adjoining.

'2. Concrete or cement products manufacture.

'8. Any other industrial use not otherwise specified, and any use which is obnoxious by reason of the emission of odors, gases, dust, noise or vibration, or by reason of danger of fire and explosion.'

(Other permitted special uses include packing houses, scrap yards and automobile wrecking yards and coal distillation plants.) Article II of the zoning ordinance defines 'Special Exception' as follows:

'A special exception is a use that would not be appropriate generally or without restriction throughout the zone, but which, if controlled as to number, area,...