Attar v. DMS Tollgate, LLC ( 2017 )

Afshin Attar, et al. v. DMS Tollgate, LLC, et al., No. 12, September Term, 2016. Opinion
by Hotten, J.
ZONING AND PLANNING — FINDINGS, REASONS, CONCLUSIONS,
MINUTES OR RECORDS: The Board of Appeals’ description of the neighborhood
impacted by a special exception must be precise enough to enable a party or appellate court
to comprehend the area that the Board of Appeals considered. The sufficiency of this
precision is determined through a review of the evidence in the record describing the
impact on the surrounding properties, as referenced within the Board’s opinion.
ZONING AND PLANNING — PRESUMPTIONS AND BURDENS OF PROOF:
While an applicant for a special exception bears both the burden of persuasion and of
production, the coexistent presumption of validity of a special exception does not shift the
burden of proof to the protestant. This presumption in favor of the applicant is not mutually
exclusive from the burdens upon the applicant, and the protestant must sufficiently rebut
the presumption in favor of the applicant. The applicant is not relieved of the requirement
of presenting evidence to establish a prima facie case as to those issues for which the
applicant bears the burdens if the protestant sufficiently rebuts the presumption. The
presumption in favor of the applicant merely enhances the probative value of other
evidence adduced.
Circuit Court for Baltimore County,
Maryland
Case No. 03-C-14007926
Argued: October 11, 2016
IN THE COURT OF APPEALS
OF MARYLAND
No. 12
September Term, 2016
______________________________________
AFSHIN ATTAR, et al.
v.
DMS TOLLGATE, LLC, et al.
______________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Hotten, J.
______________________________________
Filed: January 23, 2017
In October 2012, William and Mary Groff, the property owners, and Respondent,
DMS Tollgate, LLC (collectively “Applicants”) applied for a Petition for a Special
Exception of the Baltimore County Zoning Regulations (“BCZR”), to operate a fuel service
station with a convenience store containing a sales area larger than 1,500 square feet. The
petition requested that Tollgate be permitted to construct a Wawa on an 8.51 acre property
known as 10609 Reisterstown Road (“the property”). The property is zoned as BL-AS, or
Business Local with Automotive Services.1 The property is bordered by Reisterstown
Road, Groff Lane, and the Gwynns Falls stream.
The Office of Administrative Hearings (“OAH”) conducted a hearing in which the
Applicants appeared in support of the grant of the Special Exception. Petitioners in this
Court, Afshin Attar, Ashkan Rahmanattar, Malik Imran, and Perry S. Crowl (collectively
“Protestants”) attended in opposition. Witnesses for the Protestants testified at the hearing
as to how the proposed Wawa would cause traffic congestion, a harmful environmental
impact, and a detrimental effect upon the economic stability of the neighborhood. In its
Opinion and Order dated October 31, 2013, OAH found that “these are impacts that are
1
This zoning was obtained through the 2012 Baltimore County Comprehensive
Zoning Map Process after extensive discussions between Tollgate, several county agencies
and community groups. In exchange for the community groups granting the rezoning
request, on August 28, 2012, Tollgate entered into a “DECLARATION OF COVENANTS
AND AGREEMENTS,” which required that the property be developed “in a manner
consistent with and compl[e]mentary to the historic character of” the adjacent property.
inherent in the operation of a gasoline/convenience store[,]” and granted the Petition with
conditions. 2
The Protestants appealed to the Board of Appeals for Baltimore County (“the
Board”), which approved the conditions for the Special Exception after a de novo
evidentiary hearing. The Board noted that Tollgate
decided to proceed with the request for a Special Exception before receiving
County approval for the proposed road relocation and approval for the flood
2
The Opinion and Order of the Administrative Law Judge stated:
The relief granted herein shall be subject to the following:
1. [Applicants] may apply for appropriate permits and be granted same
upon receipt of this Order; however, [Applicants] are hereby made
aware that proceeding at this time is at their own risk until such time
as the 30-day appellate process from this Order has expired. If, for
whatever reason, this Order is reversed, [Applicants] would be
required to return, and be responsible for returning, said property to
its original condition.
2. Unless extended by subsequent order, the special exception granted
herein must be utilized within two (2) years from the date of this
Order.
3. The “special exception area” shall include the 1.70 acre (74,088 SF)
area of the proposed Wawa service station and convenience store, but
shall not include the 0.43 acre (18,628 SF) area of proposed relocated
Groff Lane.
4. Approval by Baltimore County of a landscape and light plan for the
site.
5. Approval by county, state and federal authorities of the floodplain
study and/or floodplain map amendment or revision as sought by
[Applicants].
6. Approval and issuance of all necessary permits by the State Highway
Administration.
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plain relocation from [the Federal Emergency Management Agency]. Under
the BCZR this approach is not prohibited and therefore the grant of a Special
Exception has no bearing on the approval o[r] non-approval of the foregoing
matters.
The Board granted the Special Exception “with the same conditions as those imposed by
the Administrative Law Judge below.”
The Protestants appealed for judicial review in the Circuit Court for Baltimore
County. The circuit court found that the Board’s findings: “were both reasonable and
supported by substantial evidence in the record[]” and “were premised upon the proper
application and conclusions of law[.]” The circuit court accordingly affirmed the decision
of the Board on December 19, 2014. Thereafter, the Protestants appealed to the Court of
Special Appeals. In an unreported opinion dated December 28, 2015, the Court of Special
Appeals affirmed the decision of the circuit court. We granted the Petition for Writ of
Certiorari filed by the Protestants. 447 Md. 297, 135 A.3d 416 (2016). Protestants present
two questions for our review:
1. Whether Maryland’s special exception jurisprudence requires the
Baltimore County Board of Appeals to define the boundaries of the
neighborhood of the proposed special exception before approving that
special exception and, if so, whether the Board of Appeals’ opinion satisfied
Maryland’s minimum requirements for articulating the facts found regarding
the neighborhood’s boundaries.
2. Whether the Court of Special Appeals erred when it held that the
Applicant met its burden of proof, as articulated by the concurring opinion
in People’s Counsel for Baltimore County, et al. v. Loyola College in
Maryland, 406 Md. 54, [956 A.2d 166] (2008).
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We conclude that the Board’s description of the neighborhood impacted by the special
exception was precise enough to enable a party or appellate court to comprehend the area
that the Board considered.
Secondly, we conclude that while an applicant for a special exception bears both the
burden of persuasion and production, the coexistent presumption in favor of an applicant
is not a mutually exclusive evidentiary burden. The Board correctly determined that the
Protestants failed to sufficiently rebut the presumption of validity of a special exception.
Accordingly, we affirm the judgment of the Court of Special Appeals.
Standard of Review
An appellate court reviews the decision of an administrative agency “under the same
statutory standards as the [c]ircuit [c]ourt,” meaning “we reevaluate the decision of the
agency, not the decision of the lower court.” Gigeous v. Eastern Correctional Inst., 363
Md. 481, 495–96, 769 A.2d 912, 921 (2001) (citation and footnote omitted). In reviewing
the decision of an agency, our role “is limited to determining if there is substantial evidence
in the record as a whole to support the agency’s findings and conclusions, and to determine
if the administrative decision is premised upon an erroneous conclusion of law.” United
Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577, 650 A.2d 226, 230 (1994).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Md. State Police v. Warwick Supply & Equip. Co.,
Inc., 330 Md. 474, 494, 624 A.2d 1238, 1248 (1993) (citation omitted). Further, we may
not substitute our judgment for that of the Board of Appeals unless the agency’s
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conclusions were not supported by substantial evidence or were premised on an error of
law. Stansbury v. Jones, 372 Md. 172, 182, 184, 812 A.2d 312, 318, 319 (2002).
Discussion
I. The Board’s Opinion Referenced Ample Evidence of Record Which
Sufficiently Enables Us to Comprehend the Area the Board Considered. Thus, the
Board Sufficiently Defined the Neighborhood.
The Protestants argue that the Board erred when it failed to define the boundaries of
the Wawa’s neighborhood. In support, Protestants urge that an applicant for a special
exception must establish the boundaries of the neighborhood, and the zoning tribunal’s
written decision must satisfy Maryland law’s minimum requirements for articulating the
facts found regarding the neighborhood’s boundaries.
Under BCZR § 502.1(A), a special exception use is prohibited if it is “detrimental
to the health, safety or general welfare of the locality involved.” 3 In Schultz v. Pritts, we
held that an applicant for a special exception “does not have the burden of establishing
affirmatively that his proposed use would be a benefit to the community. If he shows to the
satisfaction of the Board that the proposed use would be conducted without real detriment
to the neighborhood . . . he has met his burden.” 291 Md. 1, 11, 432 A.2d 1319, 1325
(1981).
We further held in Montgomery County v. Butler, “[t]he phrase ‘detriment to the
neighborhood’ implies necessarily that the Board’s task is to determine if there is or likely
will be a detriment to the surrounding properties.” 417 Md. 271, 305, 9 A.3d 824, 844
3
BCZR § 502.1 does not explicitly require that a neighborhood’s boundary be
specifically defined.
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(2010) (emphasis added). Thus, we held that, within the context of a special exception, the
“neighborhood” means “the surrounding properties.” Id. See also Montgomery v. Bd. of
Cty. Comm’rs for Prince George’s Cty., 263 Md. 1, 5, 280 A.2d 901, 903 (1971) (holding
that, in the rezoning context, “[t]he concept of a neighborhood is a flexible one, and will
vary according to the geographical location involved[.]”); Woodlawn Area Citizens Ass’n
v. Bd. of Cty. Comm’rs for Prince George’s Cty, 241 Md. 187, 198, 216 A.2d 149, 156
(1966) (holding that, in the rezoning context, “what constitutes a neighborhood . . . is not
and should not be precisely and rigidly defined[.]”).
In Alviani v. Dixon, we considered whether the Anne Arundel County Board of
Appeals erred when it granted variances4 to enable applicants to satisfy criteria for a special
exception, regarding the construction of an automotive service station. 365 Md. 95, 775
A.2d 1234 (2001). The protestants in Alviani specifically “allege[d] that the Board failed
to properly define the relevant neighborhood that was considered when the Board found
4
We outline infra how, for purposes of determining the sufficiency of the
description of the “neighborhood,” our rezoning jurisprudence is inapposite to our special
exception jurisprudence. Parallel to this analysis, in Alviani v. Dixon, we addressed how
our use variance jurisprudence is inapposite to our area variance jurisprudence. In Alviani
we held:
The standards applied to area variances are more relaxed than those applied
to use variances because the impact of an area variance is viewed as being
much less drastic than that of a use variance. Consequently, the cases cited
by appellants do not support their contention that the surrounding
“neighborhood” must be defined with the same precision in approving area
variances as is required in approving use variances.
365 Md. at 120, 775 A.2d at 1248 (citations and quotation omitted).
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that the variances would not affect the neighborhood.” Id. at 117, 775 A.2d at 1247. We
disagreed and found, “after examining the record, that the Board established the relevant
neighborhood[,]” as the Board’s description was “precise enough to enable a party or an
appellate court to comprehend the area that the Board considered when deciding to grant
the variances.” Id. at 117, 119, 775 A.2d at 1247, 1248.
Lucas v. People’s Counsel for Balt. Cty. involved a petition for a special exception
for an “airport” zoning special exception on a farm zoned for agriculture, located within a
National Historic District in Baltimore County. 147 Md. App. 209, 216–17, 807 A.2d 1176,
1180 (2002), disapproved of on other grounds by People’s Counsel for Balt. Cty. v. Loyola
Coll. in Md., 406 Md. 54, 956 A.2d 166 (2008). In Lucas, the Honorable James A. Kenney,
III employed the standard outlined in Alviani, and found that the Board’s definition of the
relevant area was insufficient, as it relied on only amorphous descriptions of the area to be
considered:
The Board relied on testimony regarding the adverse effect of the airport on
the “land around Helmore Farm,” on “the horse industry in the area,” on the
“historical district,” and on “Greenspring Valley.” The Board’s definition of
the relevant area does not provide the precision required for a party or an
appellate court to comprehend the adversely affected area and to determine
if the neighborhood reasonably constitutes the immediate environment of the
subject property.
147 Md. App. at 241, 807 A.2d at 1195.
In accord with our precedent in Alviani, in conjunction with the special exception
jurisprudence reflected by Schultz, Butler, and Lucas, we hold that the description of the
neighborhood impacted by the special exception must be precise enough to enable a party
or appellate court to comprehend the area that the Board considered. Precision is
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determined through a review of the evidence in the record describing the impact on the
surrounding properties, as referenced within the Board’s opinion. See also Critical Area
Comm’n for Chesapeake & Atl. Coastal Bays v. Moreland, LLC, 418 Md. 111, 135, 12
A.3d 1223, 1238 (2011) (holding that meaningful judicial review is possible when the
Board summarizes substantial evidence in support of its findings).
In the case at bar, the Board’s opinion stated in relevant part:
The [Applicants] offered into evidence the testimony of Ken Schmid, of
Traffic Concepts, Inc., who was admitted as an expert in the fields of Traffic
Engineering and Transportation Planning. Mr. Schmid opined that the
proposed use will not create congestion of the roads, streets or alleys in the
area of the subject property. The proposed relocation of Groff Lane to create
a four way signalized intersection, according to Mr. Schmid, will create a
safer and more convenient pattern of traffic circulation for the subject
property and the surrounding area.
***
The [Applicants] called Mr. Rick Richardson, of Richardson Engineering,
who was offered and accepted by the Board as an expert in the fields of civil
engineering, zoning and development.
***
Mr. Richardson testified that the proposed fuel service station is not . . .
located within a mile radius of any abandoned fuel service station(s).
***
The Protestants called to testify John Seitz, of Transportation Resource
Group, Inc. who was accepted by the Board as an expert in the area of Traffic
Engineering. Mr. Seitz testified that as a part of his investigation of the
proposed use of the subject site he evaluated the potential truck turning radius
for fuel delivery trucks entering the proposed site using a computer based
traffic modeling program and determined that a fuel delivery truck
attempting to turn into the proposed site would cause potential congestion
and traffic difficulty of Groff Mill Road because of the wide turning angle
required for such trucks.
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***
The Protestants next called Andrew Miller, PhD who was admitted as an
expert in hydrological studies. Dr. Miller testified concerning the Flood Plain
Study prepared by the [Applicants]. According to Dr. Miller the subject area
contains a portion of the existing flood plain which will be filled in to
facilitate construction of the site.
The Board’s opinion references ample evidence of record for us to appreciate the
area considered by the Board. The Board referenced testimony concerning the roads and
intersections surrounding the subject property, including: Tollgate Road, Reisterstown
Road, Groff Lane, and Reisterstown Road’s intersection with Owings Mills Boulevard.
The Board referenced testimony regarding the commercial development surrounding the
property. In accordance with BCZR § 405.3,5 the Board referenced testimony regarding
an exhibit which depicted the five gas stations contained within a one-mile radius from the
property. The Board referenced testimony regarding the flood plain surrounding the
property. Unlike in Lucas, there was ample evidence presented to the Board regarding the
immediate environs of the proposed Wawa, which the Board referenced in its opinion.
Here, the evidence presented to the Board regarding the area impacted by the special
exception, as referenced in the Board’s opinion, was precise enough to enable a party or
appellate court to comprehend the area that the Board considered. Thus, we will not disturb
the Board’s decision.
5
BCZR 405.3 “Condition for disapproving special exception[]” provides in
pertinent part “the Zoning Commissioner, prior to granting any special exception for a fuel
service station, shall consider the presence of abandoned fuel service stations in the vicinity
of the proposed site.”
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The Protestants further contend that we require a delineation of the neighborhood
in rezoning matters, and accordingly, this same requirement should be extended to apply
in special exception cases. We disagree.
Rezoning cases are inapposite to our analysis because of the respective burdens in
rezoning and special exception matters. We have stated that:
[T]here is a strong presumption of the correctness of original zoning and
comprehensive rezoning and that to sustain a piecemeal change therefrom
there must be produced strong evidence of mistake in the original zoning and
comprehensive rezoning and that to sustain a piecemeal change therefrom
there must be produced strong evidence of mistake in the original zoning or
else evidence of a change in conditions resulting in a substantial change in
the character of the neighborhood.
Heller v. Prince George’s Cty., 264 Md. 410, 412, 286 A.2d 772, 773 (1972) (citation
omitted); see also Border v. Grooms, 267 Md. 100, 110, 297 A.2d 81, 86 (1972) (holding
“that which reasonably constitutes the neighborhood of the subject property is one of the
basic facts to be established by an applicant for rezoning, and because of its fundamental
involvement in any case resting on a contention of a change in the character of the
neighborhood it must be satisfactorily shown upon the record.”) (emphasis added).
Given the heavy burden upon the party seeking a rezoning, and the strong
presumption in favor of the original zoning, “some delineation of the general boundaries
encompassed” is an apt evidentiary element in the rezoning context. Border, 267 Md. at
110, 297 A.2d at 86; see also Heller, 264 Md. at 412, 286 A.2d at 773 (holding that, in the
rezoning context, “there is a strong presumption of the correctness of the original zoning”
and “[t]he burden of proof, of course, is quite onerous and it rests squarely on the one
seeking the reclassification.”). There is an inverse evidentiary presumption, however, in
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the special exception context. A special exception is presumed to be in the interest of the
general welfare, and therefore a special exception enjoys a presumption of validity. Schultz,
291 Md. at 11, 432 A.2d at 1325. Given these conflicting presumptions, our requirement
for a precise definition of the neighborhood within rezoning matters does not extend to
special exception cases.
II. The Burden of Proof Was Not Inappropriately Assigned to the Protestants
The Protestants argue that the Board of Appeals erred when it assigned the burden
of proof to the Protestants and concluded that the Protestants’ evidence did “not rebut the
presumption of validity of the Special Exception use in this case.” We disagree. A special
exception in Baltimore County is granted pursuant BCZR § 502.1, which provides, in
pertinent part:
Before any special exception may be granted, it must appear that the use for
which the special exception is requested will not:
A. Be detrimental to the health, safety or general welfare of the locality
involved;
B. Tend to create congestion in roads, streets or alleys therein[.]
In Schultz we held:
[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.
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291 Md. at 22–23, 432 A.2d at 1331. We further held that a special exception is presumed
to be in the interest of the general welfare, and therefore a special exception enjoys a
presumption of validity. Id. at 11, 432 A.2d at 1325.
It is undisputed that “both the burden of production and the burden of persuasion on
the issue of whether the special exception should be granted[]” fall on the applicant,
whereby the applicant must persuade the Board “by a preponderance of the evidence that
the special exception will conform to all applicable requirements.” Loyola Coll. in Md.,
406 Md. at 109, 956 A.2d at 199.
The Protestants, however, assert that the Board “assigned the burden of proof to the
Protestants[]” when it stated: “The Protestants’ concerns taken from the available evidence
do not rebut the presumption of validity of the Special Exception in this case.” Directly
prior to this finding, however, the Board articulated the Schultz standard:
there is a presumption under Maryland Law that a Special Exception is in [ ]
the general interest of the jurisdiction and therefore valid and that a Special
Exception is properly denied only when there are facts and circumstances
showing the adverse impacts of the use at the particular location in question
would be above and beyond those inherently associated with the Special
Exception use.
The Board’s opinion did not improperly assign the burden of proof to the
Protestants. While an applicant for a special exception bears both the burden of persuasion
and of production, the concurrent presumption in favor of a special exception applicant is
not a mutually exclusive evidentiary burden. As the Honorable Glenn T. Harrell, Jr.
explained within the context of presumptions of civil actions under Maryland Rule 5-
301(a):
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[A] presumption does not necessarily shift the burden of persuasion. Rather,
it merely satisfies the burden of going forward on a fact presumed and may
satisfy the burden of persuasion if no rebuttal evidence is introduced by the
other side. . . . Stated differently, the party favored by the presumption is not
relieved of the requirement of presenting evidence to establish a prima facie
case as to those issues for which he bears the burden of proof if the adverse
party sufficiently rebuts the presumption. In such instances, the presumption
merely enhances the probative value of other evidence adduced.
Anderson v. Litzenberg, 115 Md. App. 549, 564, 694 A.2d 150, 157 (1997). Here, the
Protestants did not set forth sufficient evidence to indicate that the proposed fuel service
station would have any adverse effects above and beyond those inherently associated with
such use under the Schultz standard. 291 Md. at 15, 432 A.2d at 1327. Thus, the Board
simply stated that, in light of the Applicants having presented sufficient evidence
demonstrating compliance with BCZR § 502.1 and the general presumption of validity
enjoyed by special exception uses, the evidence as a whole did not warrant denial of the
petition for the special exception.. See Anderson, 115 Md. App. at 564, 694 A.2d at 157.
The Board’s opinion did not inappropriately assign the burden of proof.
III. The Evidence Presented by the Protestants Was Not Sufficient to Rebut the
Presumption of the Validity of a Special Exception.6
6
Protestants argued in their reply brief that the issue of whether there was substantial
evidence in the record to support the Board’s conclusions is not before this Court. As we
noted in Garner v. Archers Glen Partners, Inc., 405 Md. 43, 949 A.2d 639 (2008):
Since the time when this Court's jurisdiction became largely dependent upon
the issuance of a writ of certiorari, we have consistently held that, in a case
decided by an intermediate appellate court, we shall not consider an issue
unless it was raised in a certiorari petition, a cross-petition, or the order by
this Court granting certiorari. We again decline to address an issue not raised
fairly in an otherwise successful Petition for Writ of Certiorari.
405 Md. at 60–61, 949 A.2d at 649 (citations omitted). See also Md. Rule 8–131(b)
(continued . . . )
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The Protestants next argue that they presented evidence generating a genuine
question of fact as to whether the special exception will create congested roads per BCZR
§ 502.1(B), and that it will have detrimental environmental and economic impacts per
BCZR § 502.1(A).
A. Road Congestion
BCZR § 502.1(B) requires that a special exception not “[t]end to create congestion
in roads, streets or alleys therein[.]” At the hearing before the Board, the Applicants called
Ken Schmid of Traffic Concepts, Inc. as an expert in the fields of Traffic Engineering and
Transportation Planning. Mr. Schmid testified that the proposed use will not create
congestion in the roads, streets, or alleys. Mr. Schmid testified that he and his company
submitted two Traffic Impact Studies on behalf of the Applicants to the Maryland State
Highway Administration in support of the planned relocation of Groff Road. On cross-
examination, Mr. Schmid acknowledged that the planned road relocation had not yet
received approval. The Board ultimately conditioned the grant of the Special Exception
(. . . continued)
(“Unless otherwise provided by the order granting the writ of certiorari, in reviewing a
decision rendered by the Court of Special Appeals . . . the Court of Appeals ordinarily will
consider only an issue that has been raised in the petition for certiorari or any cross-petition
and that has been preserved for review by the Court of Appeals.”). This Court granted
certiorari on the question of whether the Court of Special Appeals erred when it held that
the Applicants met their burden of proof, as articulated in the concurring opinion in
People’s Counsel for Balt. Cty. v. Loyola Coll. in Md., 406 Md. 54, 135 A.3d 416 (2016).
We find that the sufficiency of the evidence in this matter is a necessary facet of the burden
of proof issue, on which this Court granted certiorari. Moreover, the Protestant’s Petition
for Writ of Certiorari argued that the Board erred because it failed to address the fact the
record contained genuine questions of fact regarding the Wawa’s effect on traffic
congestion, the Gwynns Falls stream and its flood plain, and the economic stability of the
neighborhood.
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upon approval and issuance of all necessary permits by the State Highway Administration.
In addition, the Applicants presented the testimony of Mr. Rick Richardson, who was
accepted by the Board as an expert in the fields of civil engineering, zoning and
development. Mr. Richardson testified that the Wawa will meet or surpass the requirements
of BCZR § 502.1. In rebuttal, Protestants provided testimony from John Seitz of
Transportation Resource Group to support their contention that the proposed Wawa would
result in potential congestion and traffic difficulty off Groff Mill Road as a result of turning
fuel delivery trucks.
The Schultz special exception test considers whether the proposed use will have a
greater impact here than one would ordinarily expect. The Protestants did not present “facts
and circumstances [pertaining to congestion in the roads, streets, or alleys] 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[.]”
291 Md. at 15, 432 A.2d at 1327 (emphasis added). Thus, the Protestants did not
sufficiently rebut the presumption of validity under Schultz.
B. Floodplain Relocation
The Protestants provided evidence that the Gwynns Falls floodplain may be
impacted by the construction of the Wawa. The Board, however, did not render a factual
conclusion on this issue: “The possibility of a negative impact upon the flood plain by [the
Applicants’] plans will be determined separately by way of the investigation by State and
Federal authorities and pursuant to Baltimore County Code (Section 32–8–101 [et seq.])
will only be granted when there is no adverse effect upon the safety and welfare of the
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citizenry.” Tollgate is not prevented by the BCZR from proceeding with the request for the
Special Exception before receiving approval for the proposed floodplain relocation.
Because the Board did not render, nor was it required to make, a factual conclusion on this
issue, and we cannot arrive at such a conclusion, there was no error from the Board for us
to review. See United Parcel Serv., Inc. v. People’s Counsel, 336 Md. at 577, 650 A.2d at
230 (stating that our role “is limited to determining if there is substantial evidence in the
record as a whole to support the agency’s findings and conclusions, and to determine if the
administrative decision is premised upon an erroneous conclusion of law.”).
C. Economic Impact
Lastly, Protestants argue that the Wawa will negatively impact the economic
stability of the neighborhood, as the addition of a sixth gas station in the area may result in
one of the five existing gas stations going out of business. We have held that the
“prevention of competition is not a proper element of zoning.” Kreatchman v.
Ramsburg, 224 Md. 209, 219, 167 A.2d 345, 351 (1961) (citations omitted). The economic
effects of zoning should be considered only as they affect the general welfare. Id. at 222,
167 A.2d at 352.7 The speculative testimony provided by the Protestants as to the increase
in supply in excess of demand within the fuel service station market fails to rebut the
presumption of validity under Schultz.
7
As we noted, the Board conducted an analysis of BCZR 405.3 and determined that
“[t]he evidence presented at the hearing established that there are no abandoned fuel service
stations located within either one-half mile or one-mile of the proposed site.” Contrary to
the Protestants’ contention, the Wawa may increase competition within the relevant fuel
service station marketplace, increase consumer welfare, and thus, may even increase the
general welfare of the locality.
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JUDGMENT OF THE COURT
OF SPECIAL APPEALS IS
AFFIRMED. COSTS TO BE
PAID BY PETITIONERS.
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