Forks of Patuxent v. National Waste Managers

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 361
September Term, 2015
______________________________________
FORKS OF THE PATUXENT
IMPROVEMENT ASSOCIATION, INC.,
ET AL.
v.
NATIONAL WASTE MANAGERS/
CHESAPEAKE TERRACE
______________________________________
Krauser, C. J.,
Kehoe,
Leahy,
JJ.
______________________________________
Opinion by Kehoe, J.
______________________________________
Filed: October 25, 2016
This judicial review action is the latest episode of a prolonged effort by National
Waste Managers/Chesapeake Terrace (“National”) to construct and operate a rubble
landfill on a large tract of land near Odenton, Maryland. In 2013, National applied for a
variance to extend the time period for obtaining construction permits for the project. The
variance application found its way to the Anne Arundel County Board of Appeals. The
Forks of the Patuxent Improvement Association, Inc. (the “Association”), as well as
several individuals, opposed the variance.
Four members of the Board participated in the hearing. After the hearing, the Board
was evenly divided: two members of the Board (the “Approving Members”) were in
favor of granting the application and two members (the “Denying Members”) voted to
deny it. The Board concluded that the evenly-divided vote constituted a denial and
entered an administrative order to that effect.
National filed a petition for judicial review in the Circuit Court for Anne Arundel
County. The court concluded that: (1) the evenly-divided Board decision had the effect of
denying the application; (2) the court’s focus should be on the reasoning and findings of
the Denying Members because their decision was dispositive on the application; and (3)
the Denying Members applied erroneous standards to the evidence. The court set out its
view of the appropriate legal standards, vacated the Board’s decision, and remanded the
matter to the Board for further proceedings consistent with its opinion.
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The Association1 appealed the court’s judgment and poses one issue, which we have
re-worded:
Did the Board’s evenly-divided 2-2 vote constitute a denial of National’s
application for a variance?
National filed a cross-appeal and presents three questions, which we have consolidated
and re-phrased:
Did the circuit court err in vacating and remanding the Board of Appeals’
decision rather than reversing the Board’s decision and ordering the Board
to approve the variance application?
As we will explain, we agree with the circuit court’s conclusions that the case must
be remanded but see the relevant legal issues somewhat differently than did the circuit
court and the members of the Board. Therefore, we will vacate the court’s judgment and
remand this case for further proceedings consistent with this opinion.
Background
National owns a 481-acre tract of land in Anne Arundel County (the “Project Site”).
In 1993, National applied for and received a special exception and variances from the
Board to construct and operate a rubble landfill and a sand and gravel operation on the
Project Site. The Board’s approval was affirmed by the Court of Appeals in Halle v.
Crofton Civic Ass’n., 339 Md. 131 (1995). After obtaining the zoning approval, National
had 18 months to obtain a construction permit for the project; if it failed to do so, the
1
Several individuals, Ulis Fleming, Catherine Fleshman, Robert Fleshman, Sr., Diana
Lane, Gregory Lane, Andrew Meyer, Sue Ellen Meyer, Michael Murphy, Stacy Murphy,
Ann Marie Thomas, and Leon Thomas, also appealed the court’s judgment. We gather
that they are members of the Association.
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special exception would lapse, unless it obtained a variance for an extension of time. See
Anne Arundel County Code § 18-16-405.2
In order to obtain a construction permit from the County, National needed a solid
waste refuse disposal permit from the Maryland Department of the Environment (the
“MDE”). The MDE’s review process for such permits consists of five phases. In
summary, the phases are as follows:
1. Phase I centers on gathering basic information, such as the project’s
intended objectives, location, etc. This phase also gathers and compiles
existing data about the site. The MDE circulates this information to various
local, State, and Federal agencies for review and comment and to determine
whether the site is suitable for the intended use. See COMAR 26.04.07.14.
2. Phase II consists of a hydrogeological investigation. The applicant is
required to identify and analyze groundwater and geological conditions on
the site. This report is also sent to local, State, and Federal agencies for
review and comment. See COMAR 26.04.07.15.
2
The Anne Arundel County Zoning Ordinance has been amended on numerous occasions
in the years since National’s application was first granted. Neither party suggests any of
these amendments affect the appropriate legal analysis. We will refer to the current
version of the County Code.
County Code § 18-16-405 states in pertinent part:
§ 18-16-405. Time period after which variances and special exceptions
are void.
(a) Expiration by operation of law. A variance or special exception
that is not extended or tolled expires by operation of law unless the
applicant within 18 months of the granting of the variance or special
exception (1) obtains a building permit or (2) files an application for
subdivision. Thereafter, the variance or special exception shall not
expire so long as (1) construction proceeds in accordance with the
permit . . . .
****
(c) Extension by variance. An applicant may file an application for a
variance to extend the time periods set forth in subsection (a).
-3-
3. Phase III entails engineering design. This phase takes all of the
information gathered, especially the hydrogeological information from
Phase II, and designs a landfill with these considerations in mind. See
COMAR 26.04.07.16.
4. Phase IV is a review stage. The MDE uses this period to review all the
information from Phases I–III to ensure that all of the statutory and
regulatory requirements have been met. It then begins to prepare any and all
documents it will need to present to the public on the proposed permit.
During this phase, the MDE also drafts a proposed permit for the site.
5. Phase V is the public comment stage. The MDE advertises and holds a
hearing on the draft permit and invites the public to submit comments on
the proposal. After the public comments are received, the MDE engages in
a final review, and then either issues the permit as is, issues it with
modifications, or denies the permit.
National began this process in 1991, in conjunction with its then-pending application
for a special exception. In 1994, however, the MDE suspended review because the
County had amended its Solid Waste Management Plan to omit any reference to the
Project Site.3 Litigation between National and the County on the amendment culminated
in National’s favor by means of an unreported decision of a panel of this Court in
National Waste Managers, Inc. v. Anne Arundel County, No. 810, September Term,
1997, filed March 25, 1998 (“National I”). The County then took the position that
National’s special exception permit had lapsed pursuant to a prior version of what is now
County Code § 18-16-405. This resulted in another lawsuit, which was also finally
resolved in National’s favor by our decision in National Waste Managers, Inc. v. Anne
3
MDE may not issue a permit for a proposed landfill unless the project is consistent with
the county’s Solid Waste Management Plan. See Environmental Law Article § 9-
201(a)(3)(ii).
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Arundel County, 135 Md. App. 585 (2000) (“National II”).4 In National II, we held that
the 18-month time limit in what is now County Code § 18-16-405 was tolled during the
pendency of the litigation between National and the County. Id. at 614.
In 2001, MDE resumed its process of reviewing National’s proposal. MDE was
unable to complete its review within the 18-month period set out in County Code § 18-
16-405.5 Therefore, National filed for a variance for an extension of time to begin
construction in 2003. In 2004, the variance was granted. The Board of Appeals found that
exceptional circumstances, namely MDE’s ongoing review of the Project Site, made it
impossible for National to implement the previously approved special exceptions and
variances within the allotted time and that an extension of two years was the minimum
necessary to afford relief to National.
Between 2004 and 2013, National filed three more variance applications for
extensions of time, each based upon assertions that, although it had pursued its permit
from MDE with due diligence, the agency had been unable to complete its review and
approval process. The Board of Appeals approved the first two variance requests in 2006
and 2011. The extension granted in 2011 expired on January 3, 2013.
In its current variance application, National sought an additional two year extension
to obtain the necessary permits. An administrative hearing officer granted the application
4
There was additional litigation regarding National’s proposed rubble fill. It is described
in National II, 135 Md. App. at 591–97.
5
Because of the passage of time and changing regulations, MDE required National to
perform additional geological and groundwater studies. Evidence before the Board in the
current proceeding indicated that obtaining this information took several years.
-5-
after a public hearing. The County Code provides that aggrieved persons may appeal an
AHO’s decision to the Board, which conducts its own de novo proceeding. County Code
§ 18-16-402. Appellants filed such an appeal.
The Board’s hearing in this case began on June 6, 2013 and was completed on
October 15th of that year. The Board issued an evenly divided 2-2 decision on December
27, 2013. The Approving Members voted to grant the application and the Denying
Members voted to deny it. After summarizing the evidence presented to the Board, and
explaining the differing conclusions that each group drew from that evidence, the Board
concluded:
The legal effect of the inability of the Board to reach a majority is that
[National] did not meet [its] burden of persuasion and the request for
variances for time extension must be denied. When an appeal of this nature
is placed before the Board, it is heard de novo, and the burden of proof and
persuasion is placed upon [National]. See Montgomery County Board of
Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1962); Lohrmann v.
Arundel Corp., 65 Md. App. 309, 500 A.2d 344 (1985). If a majority is not
persuaded upon substantial evidence, the application must be denied. Id.
National filed a petition for judicial review of the Board’s decision in the circuit
court. It presented a variety of arguments to the circuit court, but only two of them are
relevant to the current appeal: (1) whether the Board’s evenly-divided vote had the legal
effect of denying National’s application; and (2) whether the Denying Members applied
the correct legal standard in assessing the evidence. On the first issue, the circuit court
concluded that the Board’s 2-2 vote constituted a denial of the application. However, on
the second issue, the court concluded that the Denying Members relied on an erroneous
legal standard. Thus, the court vacated the Board’s decision and remanded the case for
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reconsideration. The Association has appealed, and National cross-appealed, the circuit
court’s judgment.
Analysis
Standard of Review
When this Court reviews the final decision of an administrative agency, we “look
through” the circuit court’s decision, and, although applying the same standards of
review, independently evaluate the agency decision. People’s Counsel for Baltimore
County v. Surina, 400 Md. 662, 681 (2007). In this exercise, our review 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.” Id. at 682 (citation and quotation marks
omitted). Finally, “[a] reviewing Court may not uphold the agency order unless it is
sustainable on the agency’s findings and for the reasons stated by the agency.” Eastern
Outdoor Advertising Co. v. Mayor & City Council of Baltimore, 128 Md. App. 494, 516
(1999) (quotation marks and citation omitted).
I.
The Association contends that the Board’s 2-2 evenly-divided vote on National’s
application had the legal effect of denying National’s variance application. The
Association relies on this Court’s decision in Lohrmann v. Arundel Corp., 65 Md. App.
309 (1985) for support. We agree that our prior decision is dispositive as to the legal
effect of an evenly-divided decision by an administrative agency.
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Lohrmann was not a judicial review proceeding but rather was an appeal from a
declaratory judgment to the effect that an evenly-divided decision of the Anne Arundel
County Board of Appeals left the decision of the administrative hearing officer in effect.
Id. at 311–12. In our analysis, we began by noting that, pursuant to the County’s charter,
the Board of Appeals exercises original de novo jurisdiction over all matters that come
before it. Id.6 We concluded that, because the Board was exercising original jurisdiction:
[i]t was as though the zoning officer had made no decision. In that
situation, [the applicant] had the same burden it had before the zoning
officer—“the burden of proof (including the burden of going forward with
the evidence and the burden of persuasion) of all questions of fact.”
[County Code] § 13-341.2(a) . . . . The evenly-divided Board decision
demonstrates that it did not meet that burden. Accordingly, the effect of the
Board’s action was to deny [the applicant’s] request for a special
exception.
Lohrmann, 65 Md. App. at 319–20 (citation omitted, emphasis added).
In its cross-appeal, National asserts that Lohrmann is not controlling because “the
Court of Appeals on two occasions addressed cases involving ‘split votes’ in de novo
appeals to Boards of Appeal, from decisions of zoning hearing officers.” National cites
Levy v. Seven Slade, Inc., 234 Md. 145 (1964) and Stocksdale v. Barnard, 239 Md. 541
(1965), in support of this proposition. National concedes, however, that the Lohrmann
Court distinguished both Levy and Stockdale because in neither case “was an issue raised
as to the effect of a split decision on a de novo administrative appeal. No doubt for that
6
Section 603 of the County Charter provides, in pertinent part, that “[a]ll decisions by the
County Board of Appeals shall be made after notice and hearing de novo upon the issues
before said Board.”
-8-
reason the Court of Appeals did not address that issue, instead of treating the cases as
though they involved non-de novo appeals.” Lorhmann, 65 Md. App at 316 n.3.
Lohrmann’s scholarly and well-reasoned analysis is as cogent today as it was when
the opinion was filed more than thirty years ago. We see no reason to depart from our
long-established holding. Because the Denying Members prevailed in rendering their
decision on National’s application, it is their factual findings and conclusions of law that
we will review in determining whether the Board erred in denying the application. See
Mombee TLC, Inc. v. Mayor and City Council of Baltimore, 165 Md. App. 42 (2005)
(“[N]o principled legal distinction can be drawn between what is required of a prevailing
majority in rendering its decision and that which is required of a prevailing minority in
imposing its will . . . . Therefore, . . . just as a prevailing majority must do, a prevailing
minority must . . . issue findings of fact and conclusions of law.”).
We now turn to what is the dispositive issue in this case, namely, whether the
Denying Members’ decision was supported by a “reasonable basis in fact” and was not
arbitrary or capricious.
II.
Our analysis begins with County Code § 3-1-207, which sets out the criteria by
which the Board is to decide whether to issue a variance. The statute states in pertinent
part:
(a) Generally. The Board of Appeals may vary or modify the provisions of
Article 18 of this Code when it is alleged that practical difficulties or
unnecessary hardships prevent carrying out the strict letter of that article,
provided the spirit of law shall be observed, public safety secured, and
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substantial justice done. A variance may be granted only upon an
affirmative finding that:
****
(2) because of exceptional circumstances other than financial considerations, the
grant of a variance is necessary to avoid practical difficulties or unnecessary
hardship, and to enable the applicant to develop the lot.
****
(e) Required findings. A variance may not be granted under subsection (a)
or (b)[7] unless the Board finds that:
(1) the variance is the minimum variance necessary to afford relief;
(2) the granting of the variance will not:
(i) alter the essential character of the neighborhood or district in which the lot is
located;
(ii) substantially impair the appropriate use or development of adjacent
property;
(iii) reduce forest cover in the limited and resource conservation areas of
the critical area;
(iv) be contrary to acceptable clearing and replanting practices required for
development in the critical area or bog protection area; or
(v) be detrimental to the public welfare.[8]
As the applicant, National “has the burden of proof, including the burden of going
forward with the production of evidence and the burden of persuasion, on all questions of
fact.” County Code § 18-16-301.
7
Subsection (b) sets out criteria for variances from the County’s critical area and bog
protection program.
8
The parties do not dispute that the Board has the authority to grant a time variance. See
Lanzaron v. Anne Arundel County, 402 Md. 140, 143 (2007) (“We hold that the variance
power at issue in this case authorized the Board to issue time variances, and that under
the language used here, the general variance power found in Article 3 reaches all
provisions in Article 28 of the Anne Arundel County Code (the Zoning Code) except
where the general power is restricted by specific language limiting the general variance
power.”).
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The Denying Members found that:
(1) there were no “exceptional circumstances that would create practical
difficulties or unnecessary hardship for [National] to develop the lot within the
time frames previously granted by the Board” because National had not been
diligent in pursuing the MDE application;
(2) the two year variance requested by National was insufficient to complete the
review process with MDE and obtain final County permits; and
(3) the prolonged uncertainty created by the application, already pending for 12
years, has negatively affected the surrounding community and “[b]y allowing
further time extensions, this project, which has no end in sight, will continue to
burden this community and alter the essential character and development of the
surrounding neighborhoods.”
In its brief, the Association asserts that Lohrmann requires reversal of the circuit
court’s judgment because “the evenly-divided Board of Appeals decision means that
[National] did not meet its burden of proof or persuasion[.]” For its part, National
contends that the Denying Members’ findings were entirely unsupported by evidence in
the record, were irrelevant, or both.
In addressing these contentions, we will examine each of the bases that the Denying
Members relied on in arriving at their conclusion and in so doing will address: (1) the
weight the Board should give to National’s “due diligence,” or the lack thereof, in
deciding whether exceptional circumstances exist that have created practical difficulties
for National’s development of Project Site; (2) the meaning of the requirement that the
variance be the “minimum necessary to afford relief;” and (3) the proper frame of
analysis to determine whether granting the variance would either “alter the essential
character of the neighborhood,” or “substantially impair the appropriate use or
development of adjacent property[.]”
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Diligence
On January 3, 2011, the Board granted a variance which allowed National two
additional years, that is, until January 3, 2013, to obtain the necessary permits. The
Denying Members concluded that National failed to demonstrate that it would suffer
unnecessary hardship because it had failed to diligently pursue its approvals in this
period. The evidence before the Board was mixed.
At the hearing, National called Edward Dexter, the chief of MDE’s landfill review
program, as a witness. Dexter testified that the period of time MDE took to review
landfill applications varied, “but usually . . . three to seven [years] is typical.” Although
his testimony was guarded as to the specifics, Dexter indicated that a previous
environmental consultant hired by National to coordinate its application process had not
been entirely satisfactory but that National had hired a different consultant shortly after
the Board granted the 2011 variance.
Veronica Foster, a registered civil engineer who is the current “team leader” for
National’s efforts to obtain the MDE permits, testified that the prior team leader retired in
2011 “for a number of reasons, including his health.” A letter dated December 20, 2012
from Dexter to National’s counsel stated that “[o]ver the last year, . . . National has been
actively pursuing this application.” Foster took charge of the project in January, 2012.
Additionally, Dexter testified that National had, “generally speaking,” been diligent in
pursuing approval since 2001. With regard to the past two years, Dexter further testified
that National had “been aggressively pursuing” the project.
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John Fury, a member of the County’s planning staff, prepared a report for the
Board’s use in the variance hearing. The report stated that “[i]t is evident that the
applicant has been diligently pursuing project approval through the [MDE] since the
original special exception and variance approvals were granted in 1993.”
None of this evidence was contradicted or challenged by the opponents to the
variance. Even so, the Denying Members were not convinced. Their opinion identified
two reasons for their conclusions. First, the Denying Members identified what they saw
as a pattern of foot-dragging on National’s part in response to requests for additional
information from MDE:
[National] received a letter from MDE on March 3, 2011 raising 28 specific
items. [National] did not respond until over a year later on March 22, 2012.
MDE responded on July 19, 2012 with a request to supplement data from
2004. [National] did not meet with MDE until September 2012 and it took
until March 1, 2013 to receive approvals to begin the process necessary for
[National] to supply MDE with additional information requested.
Second, the Denying Members referenced National’s failure to pursue the remaining
County permits while MDE’s review was on-going.
National had the burden of production and persuasion. Our assessment of the
evidence before the Board is that National met its burden of production, but that
National’s failure to pursue the County permits at the same time as it was seeking the
MDE approvals was a basis from which a fact-finder could conceivably conclude that
National had not been diligent in pursuing the permits with MDE in 2011.
Nonetheless, the Denying Members’ conclusion was problematic because it did not
connect any lack of diligence on National’s part with the unnecessary hardship standard
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under County Code § 3-1-207(a)(2). A lack of diligence in itself is insufficient to
conclude that National did not face an unnecessary hardship. A lack of diligence is
relevant only if National could have obtained the permits within the 2011–2013 time
period if it had acted diligently. The Denying Members did not address this issue.
The Minimum Variance Necessary
The Denying Members concluded that a variance for an additional two years was not
the minimum variance necessary to grant relief to National. They reasoned that, if the
past is an accurate predictor of the future, National will have neither MDE nor final
County approval within two years. Therefore, they reasoned, the application failed to
satisfy County Code § 3-1-207(e)(1)’s requirement that the Board grant only the
minimum variance necessary to afford relief to the applicant. We disagree with the
Denying Members’ interpretation of the “minimum variance necessary” requirement and
with their application of that statutory standard to the evidence in this case.
We will start with the evidence. Dexter, the MDE official supervising the review of
National’s application, testified that he anticipated that the MDE would complete its
Phase III review in calendar year 2013,9 and all of the remaining phases within two years.
Veronica Foster, National’s land fill design expert and the team leader for the project,
agreed. Linton Pumphrey, the Association’s expert, testified that the project also required
additional permitting from the County and that the County process would take
10
The record indicates that Phase III is the most complex and time-consuming stage of
MDE’s review process.
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approximately three years. Finally, Fury, the representative of the County’s planning
staff, testified that he agreed with Pumphrey and that obtaining all necessary permits
could take up to four to six additional years. Nonetheless, Fury recommended that any
variance granted by the Board be for two years, to be consistent with the Board’s prior
practices. (Fury’s recommendation also had the perhaps not entirely coincidental effect of
holding National’s feet to the fire with regard to diligently pursuing the necessary
permits.) We turn to the applicable law.
Section 3-1-207(a) authorizes the Board to grant variances to alleviate “practical
difficulties or unnecessary hardships . . . provided the spirit of law shall be observed,
public safety secured, and substantial justice done[.]” In the context of the facts before
the Board in this case, the variance can be granted only if there are “exceptional
circumstances other than financial considerations[.]” Section 3-1-207(a)(2). If these
criteria, as well as the others contained in the statute, are satisfied, then the Board may
grant a variance that is the minimum necessary to avoid the “practical difficulties or
unnecessary hardship[s]” that have been demonstrated by the applicant. In other words,
the “minimum variance necessary” provision prohibits the Board from granting more
relief than is necessary to avoid the relevant practical difficulty or relevant hardship.
When we apply the appropriate legal test to the evidence before the Board, we
conclude that there was no evidence that the permitting process could be completed in
less than two years. But the Denying Members turned the statutory standard on its head,
concluding that the “minimum necessary” requirement was not satisfied because it was
likely that MDE would require more than two years to complete its review of the Project
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Site. This is not the proper frame of analysis, and thus the Denying Members’ denial of
the variance based on the “minimum necessary” criterion was error.
The Essential Character of the Neighborhood / Impairing the Use and
Development of Surrounding Properties / Detrimental to the Public Welfare
The Denying Members concluded that granting “the requested variances to the time
limits for the implementation and completion” of the landfill project “will alter the
essential character of this neighborhood,”10 “will substantially impair the appropriate use
or development of surrounding properties,”11 and will therefore be “detrimental to the
public welfare.”12 Their reasoning for each conclusion was essentially the same
(emphasis added):
This community has been evolving and changing in the 20 years since the
initial grant of the special exceptions and the variances for this project. As
such, the community has been actively awaiting the finalization of this
project during that time frame and diligently pursued [its] status[.] By
allowing further time extensions, this project, which has no end in sight,
will continue to burden this community and alter the essential character
and development of the surrounding neighborhoods.
****
By allowing further extensions, the development of adjacent properties will
continue to be affected as community members and developers of the area
wonder whether or not they will eventually live near or adjacent to a
landfill.
****
The time extension will be detrimental to the public welfare.
As we understand the Denying Members’ analysis, they concluded that:
10
Section 3-1-207(e)(2)(i).
11
Section 3-1-207(e)(2)(ii).
12
Section 3-1-207(e)(2)(v).
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(1) the continuing pendency of National’s rubble landfill application by itself
would alter the essential character of the neighborhood; and
(2) granting the variance—and thus extending the period in which National’s
application will be pending—would be detrimental to the public welfare because
property owners and residents of the surrounding area would remain uncertain as
to whether the project will be constructed.
We do not agree with the Denying Members’ logic. That the application is pending,
by itself, does not change the character of the neighborhood. We doubt that residents’
uncertainty as to whether the rubble landfill project will ever be operational is a sufficient
basis to deny the application without evidence that the uncertainty has affected property
values.
In this context, our predecessors’ analysis in the landmark decision of Anderson v.
Sawyer, 23 Md. App. 612, 613 (1974), is instructive. In Anderson, this Court examined a
decision by the Baltimore County Planning Board denying a special exception
application to build a funeral home in an area zoned for residential use. At issue was
whether the psychologically depressing effect of living next to a funeral home, and the
potential effect that a funeral home might may have on the value of surrounding
properties, was sufficient to deny the application. Id. at 624. We determined that “the
bald allegation that a funeral home use is inherently psychologically depressing and
adversely influences adjoining property values, as well as other evidence which confirms
that generally accepted conclusion, is insufficient to overcome the presumption that such
a use promotes the general welfare of a local community.” Id. at 625.
All pending development projects, at least projects as massive as the one proposed by
National, create uncertainty among neighboring property owners. Nonetheless, the
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County Council has authorized the Board to extend the time frame for obtaining permits
through the variance process. Anderson was a special exception case and this appeal
involves a variance, and we recognize that the statutory criteria are somewhat different.
Nonetheless, Anderson’s underlying logic remains pertinent. We conclude that
uncertainty created by National’s pending application among neighboring property
owners is not, by itself, a sufficient basis to deny the variance.
However, we do not agree with the Approving Members’ reasoning as to the
statutory criterion that the variance must not “alter the essential character of the
neighborhood.” The Approving Members concluded that it was inappropriate to consider
whether the proposed use will adversely impact the surrounding neighborhood (emphasis
added, citation omitted):
The granting of the requested variance to the time limits . . . will not alter
the essential character of this neighborhood. [W]e find that the character of
the neighborhood is that of mixed uses that range from rural residential to
commercial resources in the Odenton community. The Petitioners have an
approved, lawful special exception on this site. The approved use of this
property as a sand and gravel operation and a rubble landfill is known
within the community and, we believe is part of the character of the
community. Our focus here is not on the special exception for the rubble
land fill . . . but rather, on whether a variance to permit a 2 year extension
will change the character of the neighborhood. The current variance does
nothing more that give Petitioners additional time to finalize State approval
and obtain County permits. Therefore, we do not find that the time
extension will alter the essential character of the neighborhood.
****
The time extension will not be detrimental to the public’s welfare. No traffic
will result from the grant of the time extension. No impacts to water will
result from the grant of the time extension. . . . The variances merely permit
the applicant to complete the application process. . . . The original 1993
decision determined that these uses have public benefit and are needed. We
make no decision on the merit of the underlying special exception and
associated variances.
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The problem with the Approving Members’ analysis is that it treated the variance as
an end in itself and overlooked the fact that the purpose of the variance is to permit
National to build its project if it eventually obtains the necessary permits.
From our perspective, both the Denying Members and the Approving Members
missed the proper frame of analysis for determining whether granting the variance will
alter the character of the neighborhood, adversely impact adjacent properties, or be
detrimental to the public welfare. The Denying Members noted in their opinion that the
“community has been evolving and changing in the 20 years since the initial grant of the
special exceptions and variances for this project.” The Approving Members, in effect,
concluded that changes in the neighborhood were irrelevant. Neither faction of the Board
examined whether changes in the community rendered National’s proposed use of the
Project Site as a rubble landfill incompatible with the surrounding neighborhood as it
currently exists. We conclude that this is the proper frame of analysis for deciding
whether granting the variance will alter or adversely impact the surrounding
neighborhood or be detrimental to the public welfare.
Our conclusion is grounded in Maryland case law which requires that a special
exception only be granted when the proposed use is compatible with the use and the uses
of surrounding properties. As the Court explained in People’s Counsel for Baltimore
County v. Loyola College, 406 Md. 54, 106 (2008) (emphasis added):
The local legislature, when it determines to adopt or amend the text of a
zoning ordinance with regard to designating various uses as allowed only
by special exception in various zones, considers in a generic sense that
certain adverse effects, at least in type, potentially associated with (inherent
to, if you will) these uses are likely to occur wherever in the particular zone
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they may be located . . . . That is why the uses are designated special
exception uses, not permitted uses. The inherent effects notwithstanding,
the legislative determination necessarily is that the uses conceptually are
compatible in the particular zone with otherwise permitted uses and with
surrounding zones and uses already in place, provided that, at a given
location, adduced evidence does not convince the body to whom the power
to grant or deny individual applications is given that actual incompatibility
would occur.
The critical importance of compatibility between existing uses and the proposed use
is certainly reflected in Anne Arundel County’s variance criteria. An incompatible project
will “alter the essential character of the neighborhood . . . in which the lot is located,”13
and will “substantially impair the appropriate use and development of the surrounding
property.”14
The reasoning of the Board when it granted National’s special exception application
in 1993 conformed to this principle. The judicial review proceeding arising out of the
Board’s grant of National’s special exception and variance application in 1993
culminated in Halle v. Crofton Civic Association, 339 Md. 131 (1995). In its opinion
affirming the Board’s decision, the Court commented:
After three months of deliberation, an on-site visit by the members of the
Board to the property, and a review of the record taken as a whole—
consisting of more than 2,000 pages of transcribed testimony and
voluminous documents—the Board determined that the landfill would
advance the public welfare of the County. It recognized the need for the
landfill, concluded that its location was well suited to the use, and
determined that the special exception and variance proposals would benefit
the vicinal community by reclaiming and restoring previously mined
ravines and properties “cratered” up to the property line.
13
BCC § 3-1-207(e)(2)(i).
14
BCC § 3-1-207(e)(2)(ii).
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Id. at 137 (emphasis added).
The Approving Members were concerned about the propriety of relitigating the 1993
special exception application in the 2013 variance hearing. But deciding whether the
landfill project remains compatible with the surrounding neighborhood is not an attack
upon the validity of the Board’s 1993 decision. Instead, it is a recognition that a
neighborhood may change over time and that a use that was compatible when the special
exception was originally granted may no longer be compatible when the variance to
extend the time to obtain the permits is sought.
We conclude that the requirements for granting a variance in County Code § 3-1-207
pertaining to the surrounding neighborhood, adjacent properties, and public welfare are
intended to ensure that a variance for an extension of time should be granted only if the
previously approved special exception use continues to be compatible with the
surrounding area. The applicant bears the burden of demonstrating to the Board that its
proposed project remains compatible. To the extent that surrounding properties have been
developed in ways that may not be compatible with a rubble landfill, the validity of the
Board’s determination of compatibility is undercut. At some point, the disconnect
between what is currently in the neighborhood and what had been in the neighborhood
when the permit was granted will become significant enough that it will no longer be
appropriate to continue to extend the time for National to obtain its permits. At that
point—and sooner or later that point will be reached—it will be necessary for National to
start again from scratch. In this regard, National cannot be faulted for any delay prior to
2001 because that delay was the result of unsuccessful legal challenges mounted by the
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County. See National II, 135 Md. App. at 614. Therefore, the 20 year time-frame used by
the Denying Members was inappropriate.
On remand, as part of its analysis of the statutory criteria15 contained in § 3-1-207(e),
the Board must consider whether there have been sufficient actual changes to the
neighborhood surrounding the Project Site that occurred during or after 2001 to render
National’s special exception no longer compatible with the current established character
of the neighborhood.
III.
In its cross-appeal, National argues that the Board’s decision constitutes an
“impermissible change of mind” from the prior decisions of the Board. We do not agree.
The cases cited by National—Gerachis v. Montgomery County Board of Appeals,
261 Md. 153, 156 (1971); Whittle v. Board of Zoning Appeals, 211 Md. 36, 49–50
15
County Code Section 3-1-207(e) states in pertinent part:
(e) Required findings. A variance may not be granted . . . unless the Board
finds that:
(1) the variance is the minimum variance necessary to afford relief;
(2) the granting of the variance will not:
(i) alter the essential character of the neighborhood or district in which the lot is
located;
(ii) substantially impair the appropriate use or development of adjacent
property;
(iii) reduce forest cover in the limited and resource conservation areas of
the critical area;
(iv) be contrary to acceptable clearing and replanting practices required for
development in the critical area or bog protection area; or
(v) be detrimental to the public welfare.
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(1956); Polinger v. Briefs, 244 Md. 538, 541 (1966); and Srukovich v. Doub, 258 Md.
263, 274–75 (1970)—stand for the proposition that if a zoning board denies an
application, the principle of administrative res judicata bars the board from subsequently
granting an identical application absent a showing of changed circumstances. See, e.g.,
Gerachis, 261 Md. at 156.16
These cases all involve situations in which the initial application was denied. In this
case, the initial applications were granted. National points no case holding that
administrative res judicata applies to such cases. Moreover, its argument overlooks the
fact that additional evidence was presented to the Board in this case by both parties.
Additionally, as we have explained, one of the issues that the Board must address is
whether the proposed rubble landfill meets the compatibility criteria of County Code
County § 3-1-207(e)(i)and (ii). In that context, administrative findings as to compatibility
made in prior variance proceedings years earlier may be stale.
IV.
In conclusion, we hold that:
(1) The Board was correct when it concluded that the evenly-divided vote of its
members constituted a denial of National’s variance application.
16
National also cites Gaywood Ass’n v. Metropolitan Transit Authority, 246 Md. 93
(1967), but the relevant issue in Gaywood Ass’n was whether a decision by one
administrative agency, the Public Service Commission, constituted administrative res
judicata with regard to an application made to a separate agency, the Metropolitan
Transit Authority. Id. at 100. The Court did not resolve the question because it decided
the appeal on other grounds. Id.
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(2) The relevant period to measure National’s diligence or lack thereof is
2011–2013, which was the extension period granted by the Board’s most recent variance.
Furthermore, a finding of a lack of diligence is insufficient to deny a variance; the Board
must also find that the lack of diligence caused an undue delay in MDE’s review process.
(3) National’s requested relief in the variance application, namely, that the Board
allow it two additional years to obtain all required permits, did not violate the “minimum
variance necessary” restriction of County Code § 3-1-207. The Denying Members’
conclusion to the contrary was legally erroneous.
(4) Both the Denying Members and the Approving Members used incorrect legal
analyses to determine whether granting the variance application would change the
essential character of the neighborhood, impair the use and development of surrounding
properties or otherwise be detrimental to the public welfare. The proper frame of analysis
must take into account whether the special exception remains compatible with the
surrounding area as the area has changed since 2001.
THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE
ARUNDEL COUNTY IS VACATED AND THIS CASE IS
REMANDED TO IT IN ORDER FOR THE CIRCUIT COURT TO
REMAND THIS CASE TO THE BOARD FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION. APPELLEE TO PAY COSTS.
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