PEOPLE'S COUNSEL FOR BALTIMORE CTY. v. Loyola College

MURPHY, Judge,

concurring.

I agree “that the Schultz analytical overlay for applications for individual special exceptions is focused entirely on the neighborhood involved in each case,” and that “the Schultz standard ... requires that the adverse effect ‘inherent’ in a proposed use be determined without recourse to a comparative geographic analysis.” I write separately, however, to emphasize that (1) the “neighborhood involved” in a particular case may well have a different zoning classification than the property that is the subject of the application, and (2) our disapproval of “language to the contrary in Holbrook, Lucas, Futoryan, Hayfields, and Mossburg ” should not be misinterpreted as a disapproval of the “bottom line” decisions made in each of those cases.

In Harris v. State, 81 Md.App. 247 , 567 A.2d 476 (1989), rev’d on other grounds, 324 Md. 490 , 597 A.2d 956 (1991), Judge Moylan stated:

The Maryland decisional law on the subject that some call “other crimes evidence” ... gives no occasion for complaint. The language and the framework of analysis used by both appellate courts of this state to describe and to explain that law, however, leave much to be desired in terms of current usage. Our decisions are better than our opinions.

Id. at 254, 567 A.2d at 479 . As the majority opinion makes clear, the same may be said about appellate opinions on the subject of special exceptions.

In Holbrook, this Court correctly upheld the conclusion of the Cecil County Board of Appeals that the applicant should not be granted a special exception to place a mobile home in a *108 particular location on his property because the presence of the mobile home at that location would have an adverse effect upon adjoining property values.

In Lucas, the Court of Special Appeals correctly upheld the conclusion of the Baltimore County Board of Appeals that the applicant should not be granted a special exception to operate an airport on his property because the operation of an airport would have a negative impact on the Greenspring Valley properties located nearby.

In Futoryan, the Court of Special Appeals correctly upheld the conclusion of the Baltimore City Board of Zoning Appeals that the applicant should not be granted a “conditional use” permit to operate an auto repair shop on property zoned as a B-3-2 Business District, surrounded on all sides by residential zoning, because the operation of an auto repair shop would be (in the words of the Board) “a detriment to the general welfare of the adjoining residential community.”

The decisions in Holbrook, Lucas and Futoryan are consistent with the majority opinion in the case at bar, as well as with this Court’s holding in Brouillett v. Eudowood Shopping Plaza Inc., supra. In that case, (1) the Baltimore County Board of Appeals denied a petition requesting a special exception for the operation of a self-service carwash on the parking lot of the Eudowood Shopping Plaza, which was zoned Business-Local, (2) the Circuit Court for Baltimore County reversed the Board, and (3) this Court reversed the Circuit Court, noting that “the proposed use would be clearly visible to a residential area [containing dwellings zoned as group houses] with home values [in 1967 and 1968] of $45,000.00 and more.” 249 Md. at 609, 241 A.2d at 405.

In Mossburg, the Court of Special Appeals correctly held that a special exception to operate a solid waste transfer station should not have been denied by the Montgomery County Board of Appeals on “speculation” that, at the particular location of the transfer station, there would be adverse impacts from (1) runoff into a tributary that ultimately drains *109 into the Chesapeake Bay, and (2) a serious traffic hazard created by truck traffic.

As to Hayfields, which involved a special exception to operate a golf course, the Court of Special Appeals remanded with directions that the Baltimore County Board of Appeals resolve certain questions relating to whether the particular location of the proposed course would adversely affect ground water in wells on or near the course. I am persuaded that the decision to remand was (1) correct, and (2) not inconsistent with the majority’s analysis of Schultz.

It may be helpful to restate the rules of engagement in special exception litigation, and review how those rules were applied in the case at bar. Although it is of no real consequence whether we say that an applicant “is entitled to a special exception, provided that,” or that an applicant “is not entitled to a special exception, unless,” the applicant for a special exception bears both the burden of production and the burden of persuasion on the issue of whether the special exception should be granted. If the zoning authority is presented with evidence that generates a genuine question of fact as to whether the grant of a special exception would violate the applicable legislation and/or the requirements of Schultz, the applicant must persuade the zoning authority by a preponderance of the evidence that the special exception will conform to all applicable requirements.

In the case at bar, the petitioners presented evidence that generated a genuine question of fact as to whether (1) an adverse “thermal” impact would result from stormwater ponds draining into a trout stream near the property, and (2) there would be an adverse “traffic impact” on the main public road used by persons traveling to and from the proposed Retreat Center. Respondent was not entitled to a special exception unless it persuaded the Board of Appeals that neither of those adverse impacts would result if the special exception was granted. The Board, applying the correct burden of persuasion, found in favor of respondent on both of these issues.

*110 Under the applicable standard of review, this Court must affirm the Board’s decision.