# Schultz v. Pritts > Court of Appeals of Maryland · July 16, 1981 · 291 Md. 1 URL: https://www.frixlaw.com/law-library/cases/9634562 ## Case - **Full name:** ROGER SCHULTZ Et Al. v. ROBERT K. PRITTS Et Al. - **Court:** Court of Appeals of Maryland - **Decided:** July 16, 1981 - **Citations:** 291 Md. 1; 432 A.2d 1319; 1981 Md. LEXIS 243 - **Precedential status:** Published - **Opinion:** Concurring in part by Smith - **Judges:** Davidson, Smith - **Cited by:** 119 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9634562 ## Opinion text Smith, J., concurring in part and dissenting in part: I concur in the determination that the order of the Circuit Court for Carroll County was an appealable final order and *25 that the applicant was not denied due process of law. I dissent, however, from Part III of the opinion dealing with the cross petition. I I do not think there was sufficient evidence before the Board of Zoning Appeals for Carroll County to warrant denial of the special exception here. The Board of Appeals stated as its reason for denying the application: While the requirements of the Maryland State Highway Administration, Bureau of Engineering Access Permits could be met, expert testimony presented in opposition to the request emphasized that the characteristics of the vehicular traffic that would be generated by the funeral home, or funeral processions in particular, would result in dangerous conditions for both north and south bound traffic, as well as vehicles in such processions, because of sight distance problems resulting from the curve near the north end of the property and the hump, or vertical curve located past the southerly end of the property. Therefore, the Board finds the request to establish the funeral home as a Conditional Use must be denied. The expert’s letter to the board, upon which letter the decision was based, said, "A funeral procession requires the stopping of traffic on Washington Road for approximately five minutes or l/12th of an hour.” It obviously is this to which the majority opinion refers when it states of the expert, "He pointed out that the contract purchasers had 'indicated that typically a procession takes 5 minutes to exit from the site.’ ” Pritts, the contract purchaser, said: Well, the average I would say would probably be 12 or 15 cars and sometimes we have six cars, *26 sometimes fewer, but I would say 15 cars would probably be the average. I don’t believe it would take (if we had 30 cars, even 30 cars going) I don’t see where it would take over five minutes, at the most.... [(Emphasis added.)] It can plainly be seen that the five minute estimate was not the average nor was it typical. There was no other evidence before the board on this subject. Not only did the expert upon whom the board relied make his calculation on the basis of a figure other than the average number of cars at a funeral testified to by Mr. Pritts, but he also failed to take into consideration the traffic which might be generated by a permitted use in the area in question. We have said repeatedly, frequently in a zoning context, that an expert’s opinion is of no greater probative value than the soundness of his reasons given therefor will warrant. See, e.g., County Council v. District Land, 274 Md. 691, 704 , 337 A.2d 712 (1975); A. H. Smith Sand & Gravel v. Dep’t, 270 Md. 652, 667 , 313 A.2d 820 (1974); Surkovich v. Doub, 258 Md. 263, 272 , 265 A.2d 447 (1970); Creswell v. Baltimore Aviation, 257 Md. 712, 721 , 264 A.2d 838 (1970); Westview Park v. Hayes, 256 Md. 575, 581 , 261 A.2d 164 (1970); Hunter v. County Commissioners, 252 Md. 305, 310 , 250 A.2d 81 (1969); Smith v. Co. Comm’rs of Howard Co., 252 Md. 280, 284 , 249 A.2d 708 (1969); Dill v. The Jobar Corporation, 242 Md. 16, 23 , 217 A.2d 564 (1966); and Miller v. Abrahams, 239 Md. 263, 273 , 211 A.2d 309 (1965). The permissible basis for denial of a petition for a special exception was articulated for the Court by Chief Judge Hammond in Rockville Fuel v. Bd. of Appeals, 257 Md. 183 , 262 A.2d 499 (1970): If the evidence makes the question of harm or disturbance or the question of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the Board to decide. *27 But, if there is no probative evidence at all of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an application for a special exception is arbitrary, capricious and illegal. [Montgomery Co. v.] Merlands [Club, 202 Md. 279 , 96 A.2d 261 (1953)]. [Id. at 191.] A more recent case in which we reversed the denial of a special exception by a local board and an affirmance of that denial by the circuit court is Turner v. Hammond, 270 Md. 41 , 310 A.2d 543 (1973). Judge McWilliams concluded his opinion for the Court there by stating: We have said that substantial evidence is required to support the findings of the Board and that substantial evidence is more than a scintilla of evidence. Prince George’s County v. Meininger, 264 Md. 148, 152 , 285 A.2d 649 (1972), and Kirkman v. Montgomery County Council, 251 Md. 273, 277-78 , 247 A.2d 255 (1968). All definitions of scintilla, at least in this context, are imprecise but if we assume it takes ten gossamers to make a scintilla then the appellees’ evidence before the Board falls well short of five gossamers. [Id. at 60.] In my view the evidence of the protestants here "falls well short of five gossamers.” Thus, the special exception should have been granted. II I believe the test articulated in Gowl v. Atlantic Richfield Co., 27 Md. App. 410 , 341 A.2d 832 (1975), is a proper one to be applied in determining whether a special exception should be granted. I believe it consistent with Turner, 270 Md. 41 , and Rockville, 257 Md. 183 , and not inconsistent with other of our decisions. I recognize that, as the majority opinion asserts, no court of last resort appears to have *28 applied that standard. That does not make it wrong, however. By the same token, no court of last resort seems to have rejected the Gowl standard. Moreover, Chief Judge James Macgill of the Fifth Judicial Circuit of Maryland, whose reasoning was adopted by the Court of Special Appeals in Gowl , was regarded by such people as Chief Judge Hall Hammond of this Court in my early day on the Court as one of the outstanding authorities in Maryland on zoning. At the time of the decision in the trial court in Gowl Judge Macgill had already been a Maryland circuit judge for more than nineteen years and he was a zoning examiner in Howard County for several years prior to that. It is recognized by the majority opinion, "that 3 R. Anderson, American Law of Zoning § 19.14, p. 407 (2d ed. 1977) and 3 A. Rathkopf, The Law of Zoning and Planning § 41.10, p. 41-61 (4th ed. 1980), cited by the contract purchasers articulate a standard approximating that articulated in Gowl.” What Anderson says is, "The effect of a proposed use on its neighbors will not support a denial of a special permit unless the effect is greater than that of uses permitted in the district without special permit.” Id. at 407. Citing Turner, 270 Md. 41 , Rathkopf states, "The board must also consider uses to which the property could be put without a special exception, and the extent to which they would measure up to the criteria imposed,” Id. at 41-61 . These authorities reinforce my point of view. After all, these gentlemen are recognized in the field. There is such a thing as the law of common sense. We all agree that the board of appeals may not arbitrarily and capriciously deny a request for a special exception. The problem is against what do we measure traffic in determining that it will have an adverse effect and produce a hazard warranting rejection of an application? Surely there must be some standard. It seems to me logically that since the legislative body has determined that in the district in question "[pjrincipal permitted uses” include "[cjhurches, schools and colleges,” and "[bjuildings and properties of a cultural, civic, educational, social or community service-type such as libraries, ponds[,] .. . playgrounds [and] *29 community centers,” that it follows that in determining whether or not the board has been arbitrary one should measure the traffic to be generated by the proposed special exception against that generated by permitted uses. Why is it not arbitrary and capricious to deny permission for this funeral home on the basis of the traffic hazard when a church or certain others of the permitted uses may generate as much or more traffic? Members of some religious demoninations, e.g., the Protestant Episcopal Church, regularly have their funeral services from their church sancutuary. Thus, a church could be erected here which in the case of a funeral would generate exactly the same amount of traffic this funeral home would generate, but the church is a permitted use. Moreover, it is conceivable that after attendance at Sunday morning worship services, weddings, or other events on the church calendar the traffic which might pour out of its parking lot would be substantially in excess of that from the funeral home. A playground is a permitted use. In my part of the State the traffic which would be generated by just an average Little League baseball game would dwarf that which is suggested as the average for a funeral in this instance. A hotly contested game between two bitter rivals obviously would produce even greater traffic. A college is a permitted use. What amount of traffic might be expected to spew out of a parking lot adjacent to a college athletic field after a major football game? To hold to the Gowl rule would not mean that every application for a special exception for a funeral home would have to be granted simply because the application is made. There can be a difference in funeral homes. All are not the same, by any means. Counsel for Pritts was asked at oral argument if he could articulate circumstances warranting denial by virtue of a demonstrable adverse effect upon surrounding property. In pointing out that all funeral homes are not the same he said: *30 If a funeral home is one that does contract embalming work, for example, and has a lot of traffic in and out and has a laboratory facility, that is entirely different from the normal funeral home. If a funeral home is in the business of selling caskets to a lot of other funeral homes in the area, that is something larger than the normal funeral home. If a funeral home is in the business of selling grave markers or funeral paraphernalia, then I think in that circumstance you have something different than the normal funeral home. I have known even in a town smaller than Westminster of a very busy funeral home that sometimes had as' many as three funerals in one day. No such proposition was involved here. When, as here, the special exception is denied on the basis that operation under the granted exception would create a traffic hazard and an identical or worse traffic hazard could arise from permitted uses, I must regard the action as arbitrary and capricious, such that should not be tolerated in a free land. Ill In my view whether one proceeds upon the reasoning set forth in I or that in II we should direct that the case be remanded to the Board for the granting of the application for special exception upon such conditions and safeguards as the Board may find appropriate under the ordinance and the evidence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634562. Public record. Not legal advice.