Attar v. DMS Tollgate, LLC
152 A.3d 765
Md.2017Background
- Applicants (property owners and DMS Tollgate, LLC) sought a Baltimore County special exception to build a Wawa fuel station/convenience store on an 8.51-acre BL‑AS zoned parcel at 10609 Reisterstown Road.
- OAH granted the special exception with conditions after hearing testimony on traffic, floodplain, and economic impact; Protestants appealed to the County Board.
- The Board held a de novo hearing, relied on expert testimony for traffic, engineering, and hydrology, and approved the special exception with the same conditions as OAH.
- Protestants appealed to the circuit court, then the Court of Special Appeals, both of which affirmed; the Court of Appeals granted certiorari.
- Key disputed legal questions: whether the Board had to precisely define the “neighborhood” considered for the special exception, and whether the applicant met its burden given the presumption favoring special exceptions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board had to define neighborhood boundaries before granting a special exception | Protestants: Board must delineate neighborhood boundaries with precision like rezoning cases to permit meaningful review | Applicants/Board: Special exception requires less rigid neighborhood delineation; description must be precise enough to understand the area considered | Held: Board’s referenced record evidence was sufficiently precise; special‑exception context does not require rezoning‑level delineation |
| Whether the presumption in favor of a special exception shifts burden to Protestants | Protestants: Board improperly treated presumption as shifting burden to them to disprove impacts | Applicants/Board: Presumption coexists with applicant’s burden; protestants must rebut presumption with evidence | Held: Applicant retains burden of production and persuasion; presumption does not shift burden but enhances probative value and the Protestants failed to rebut it |
| Whether evidence on traffic created a genuine issue requiring denial under BCZR §502.1(B) | Protestants: Expert testimony showed likely congestion (truck turning, Groff Mill Rd impact) | Applicants: Traffic studies and expert testimony showed no congestion; conditions and required permits would address concerns | Held: Protestants’ evidence did not show adverse effects beyond those inherent to the use; Board reasonably found no rebuttal of presumption |
| Whether environmental (floodplain) and economic impacts required denial under BCZR §502.1(A) | Protestants: Floodplain filling and economic harm to existing stations would harm neighborhood welfare | Applicants/Board: Floodplain approvals are for state/federal authorities; economic competition alone is not a zoning harm | Held: Board properly left floodplain permitting to other agencies and found environmental/economic objections speculative and insufficient to rebut presumption |
Key Cases Cited
- Schultz v. Pritts, 291 Md. 1 (1981) (special exception presumed valid; denial only if use causes adverse effects beyond inherent impacts)
- Montgomery County v. Butler, 417 Md. 271 (2010) (neighborhood means surrounding properties; Board must assess detriment to surrounding properties)
- Alviani v. Dixon, 365 Md. 95 (2001) (Board’s neighborhood description must be precise enough for parties/appellate review)
- Lucas v. People’s Counsel for Balt. Cty., 147 Md. App. 209 (2002) (insufficient, amorphous neighborhood descriptions are inadequate for review)
- People’s Counsel for Balt. Cty. v. Loyola Coll. in Md., 406 Md. 54 (2008) (applicant bears burdens of production and persuasion for special exceptions)
- United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569 (1994) (appellate review of agency limited to substantial‑evidence and errors of law standards)