*1 ROBERT K. PRITTS SCHULTZ et ROGER et al. al. Term, 153, September 1979.] [No. July
Decided 1981. *2 reargued J., argued and before The cause was Murphy, C. and and Digges, Eldridge, Cole, Smith, Davidson JJ. Rodowsky,
Argued reargued by Willis, and John T. with whom were Leahy brief, appellants. Willis & on the Dulany, B. with whom Argued reargued by William and Wesley were D. Dulany Blakeslee and brief, & Davis on the for appellees. J., opinion Smith, J., delivered the of the Court.
Davidson, part concurs part dissents in concurring filed a dissenting opinion page infra. *3 This presents questions. question case three The first County whether an Court order the Circuit for Carroll remanding proceeding County a the Carroll Board of (Board) Zoning Appeals judgment was a final from which an (1974, appeal may Maryland taken under Code 1980 Vol.), § Repl. Proceedings 12-301 of the Courts Judicial question Article. The second is whether con the Board’s sideration of written subsequent evidence filed to the close of a hearing constituted of due process a denial of law under the fourteenth amendment of United States Constitu tion. question The third is whether the Board’s denial of the 1 special conditional or exception requested in this case was arbitrary, capricious, illegal. respondents, Pritts,
The pur- Robert and Ann are contract County, chasers of a acre in 2.74 tract of land located Carroll — R-20,000 zoned (single-family development residential size). 20,000 square pur- feet minimum lot These contract chasers an application filed with the Board requesting purposes 1. opinion, "special exception For the of this the terms use” and synonomous. Zellinger Corp., "conditional 614, are use” CRC Dev. 4, 619 n. A.2d 380 & 1967 n. 4 Rockville Fuel Feed Co. 183, 187, v. Board Gaithersburg, A.2d 502 a funeral establishment exception develop use to special require- yard of the minimum front for reduction a variance hearing petitioners, at which the Board held a ments. The (protestants), opposi- appeared and others Roger Schultz requested spe- the Board denied the hearing, tion. After request for the variance held that the exception use and cial moot. was Court for the Circuit purchasers appealed
The contract had been determined there Carroll which evi- the Board had considered process of due because denial The hearing. Circuit the close of after dence submitted Board matter to the for a remanded the reversed and Court refused to consider the hearing. specifically Court That new set standard forth and to decide whether merits of case 410, 417-18, Co., Md. App. v. Atlantic Richfield Gowl (1975), standard to be appropriate was an A.2d special determining whether remand in on applied granted. use should be exception Appeals. of Special to the Court appealed protestants The ground on the cross-appealed purchasers The contract granted Circuit Court should on its own determined Special Appeals Court of use. remanding case to Court’s order Circuit motion and dismissed judgment was a final the Board of the case the merits That did not consider Court appeal. forth Gowl the standard set not decide whether and did applied on remand standard to be appropriate special exception use should be determining whether granted. *4 certiorari, and petition a for a writ of filed protestants
The granted We petition. filed a cross purchasers the contract argued was The case petition petition. and the cross both the held April reargument on 3 June 1980. On following questions: to the limited "(1) in standard established appropriate Was an arbitrary, capricious it is which held that Gowl... appli- to an deny illegal for a Board cation a special exception when 'the potential volume under requested use would appear to be no greater than which would arise from uses’?
(2) Is evidence sufficient when viewed light of appropriate?” the standard deemed haveWe determined that the standard established Gowl inappropriate justice and that interest we shall remand the case Board for further proceedings without affirmance or reversal.
I Judgment Final protestants contend and the contract purchasers concede Circuit Court’s remand order was a final judgment and appeal should have been dis- agree. missed. We Vol.)
Maryland (1974, Repl. § Code 12-301 of the Courts Proceedings Judicial provides Article pertinent part: party
"[A] may appeal judgment from final by entered in a civil ... case a circuit court.” (f) Maryland § Code 12-101 Courts Judicial Proceedings provides: Article
" judgment’ 'Final a judgment, decree, means sentence, order, determination, decision, or other action by court, court, including an orphans’ from which appeal, application for appeal, leave to petition for may certiorari be taken.” (f) The statutory definition of "final judgment” §in 12-101 been has explicated Allnutt, case law. Fred W. Inc. v. 35, 40, 421 Commissioner of Industry, Labor & A.2d 1360, 1362-63 State, 179, 183, 377 Warren v. A.2d This consistently Court has stated *5 6 final when it deter- a court is or order of judgment
that a it denies parties or when rights mines or concludes defending their or prosecuting means of further parties proceeding. of the subject matter rights and interests 1363; 40, 421 A.2d at Inc., at Allnutt, 289 Md. Fred W. LeVan, v. Correctional Servs. Safety & of Pub. Department 1052, 1057 Boteler 542-43, v. 533, 419 A.2d Md. 288 (1835). 109, State, 112-13 7 G. & J. that a cir recently reiterated we particularly,
More to an administra remanding proceeding order cuit court’s LeVan, 288 Md. at final order. appealable is an agency tive Compensation 1057; Injuries 542-43, at Criminal 419 A.2d (1978). 58, See 168, 177, 384 A.2d 64 Remson, Md. 282 Bd. v. 290, 294-95, A.2d Co., 52 Martin Allen v. Glenn L. to an proceeding remands When a court processes administrative to the matter reverts agency, the to do. for the court nothing is further and there agency, termi final order because appealable is an an order Such means parties denies the judicial proceeding nates judi rights in the defending their or prosecuting further 40, 421 Allnutt, Inc., 289 Md. at Fred W. proceeding. cial A.2d at 1363. pro order remanded case, the Circuit Court’s
In this
As a
agency.
Board,
administrative
a local
ceeding to the
Board,
and there
to the
result,
matter
reverted
Thus,
parties
do.
Court to
for the Circuit
nothing further
defending
prosecuting
means of further
denied the
were
proceeding.
judicial
in the
and interests
rights
their
order.2 Accord
final
appealable
was an
Court’s order
Circuit
Special
Court of
judgment
we shall vacate
ingly,
appeal
premature.
which dismissed
(1955)
(per
114, 115, 117
Walker,
A.2d
Hayden
Md.
2. In
proceeding
remanding a
curiam),
court’s order
held that a circuit
this Court
LeVan, we
appealable
final order.
appeals was not an
a local board of
Schwartz,
Co. v.
only
Fire Insurance
States
United
overruled
518.
holding.”
"any
(1977),
with a similar
cases
but also
3. U.S. provides pertinent part: amend XIV life, "No deprive person liberty, property, State shall... process without due of law....” newly evidence before nity challenge acquired Dickinson-Tidewater, Inc. v. agency reached its decision. County, 273 of Anne Arundel Supervisor of Assessments (1974); County, 18, Montgomery 254, 329 A.2d Md. 364, 375-76, Md. Realty Corp., 267 Capital v. National Board of Birckhead v. 297 A.2d 681-82 594, 600, County, Md. George’s Comm’rs Prince Maso, 133, 136 (1971); Dal 238 Md. at A.2d 65. on 5 hearing that the Board held the record shows
Here Peterson, a hearing, Mr. G. January Stephen At that 1978. Consultant, as a qualified Planning Engineering Traffic (traffic and testified on appeared expert expert), that the contract pointed He out protestants. behalf of the procession takes typically purchasers had "indicated He then testified based 5 minutes to exit from site.” *7 counts, estimate, traffic traffic purchasers’ contract upon the subject times, property, flow, stop topography and the circumstances, that, colli- certain he concluded under had funeral to exit waiting procession for a sions with vehicles addition, funeral he testified that might the occur. site upon emergency have an adverse effect processions would to enter or leave attempting other vehicles and traffic pur- the site. The contract opposite center located medical by evidence cross-examination challenge this did not chasers or rebuttal. following testimony, the
During traffic expert’s place: colloquy took that attorney]: The data [protestants’
"Mr. Willis to scheme any regular collected, have does you figures total summarize you perhaps it or could them Do have you Board? to the provide you? with Yes, them. provide could I
Mr. Peterson: Would pencil. them have Mr. Willis: You figures? have those to Board desire would. We [Board member]: Mr. Ulino to them in the form put like Mr. Peterson: I would you either to or to the a brief memorandum Board. Hildenbrand, Mr. copy to
Mr. Willis: With a course. Surely.
Mr. Peterson: Hildenbrand, you do Willis: Mr.
Mr.
questions? you provide you and might
Mr. Peterson: Or I to it. can distribute attorney]: purchasers’ [contract
Mr. Hildenbrand adequate....” That would hearing, pur- contract Thus, January at the Board hearing that after close chasers knew con- written evidence to receive and consider going summary of the testifed taining compilation data time, they object, only At failed expert. the traffic January On 19 acquiesced procedure. in the but indeed to the to both the Board and expert traffic forwarded containing a com- written statement purchasers a contract expert presented at of the data that the traffic had pilation Thus, any deter- hearing. the Board had made before mination, knew contents of the purchasers the contract and that the Board had expert’s written statement Nevertheless, time the that statement. at that received objection request and did not purchasers raised no contract Board, hearing. February relying a further On 21 testimony, including his written expert’s the traffic upon *8 statement, on the requested special exception denied use dangerous condi- ground sole that would result traffic Thereafter, purchasers requested a tions. the contract rehearing that Board denied. submitted the record evidence
Here establishes hearing duplicative in nature after the close would be purchasers the contract were aware that it these circum- objection. considered but made no Under stances, requisite fairness has been accorded procedural
10 because the purchasers opportunity contract had the to chal lenge original by evidence cross-examination or rebuttal or to request opportunity to challenge the newly acquired evidence before the Board reached its decision. Moreover, circumstances, under these the Board’s denial of requested rehearing was not an abuse of its discretion.4 Thus, the purchasers contract were not denied due process of law.
Ill Cross Petition purchasers The contract contend that the Board’s decision denying the requested special exception arbitrary, use was capricious, illegal. Initially, they assert that the Board apply proper determining did not criteria in that the requested special exception dangerous use would result They traffic conditions. claim that the Board failed to take requested special into account the critical fact that exception generate use would less traffic than would be by In generated permitted support position, uses. of their Co., they rely upon v. Atlantic Richfield App. Gowl 410, 417-18, Gowl, Special Appeals the Court of reversed a Board of
Appeals’ denying requested special decision use on the ground of traffic. There that Court stated that the proper requested standard which to determine whether a ground use should be denied on the of traf- comparison problems might fic is a between requested special exception arise under the use and those that might arise under a use. It held that when potential "the requested volume of traffic under the appear greater no than that arise to be which would grant rehearing question is a matter within 4. whether Auto agency’s United States v. Pierce sound discretion. administrative Freight Express Monumental Motor Tours 515, 535, Lines, Inc., Tidewater U.S. 66 S. Ct. (D. 1968); States, 561, 566-67 Lines, Supp. Md. 278 F. Inc. v. United (D. States, Supp. F. v. United 1953) curiam). (per
11 exception use uses,” requested special the from 417-18, 341 A.2d at Gowl, App. granted. 27 must be agree. We 836. do applicable stan- expressed frequently
This Court has special or denial of a grant of the judicial review dards of the part is a special exception use exception use. The that, as sharing presumption comprehensive zoning plan welfare, and such, general of the it is the interest zoning use is a valid therefore, valid. The board a an administrative delegates to mechanism that the leg- uses which authority allow enumerated limited any fact or permissible absent has determined to be islature given The duties negating presumption. circumstance properties neighboring judge Board are to whether adversely affected and would be general neighborhood harmony with particular in the case is the use whether plan. and intent of the general purpose testi- Whereas, adducing burden of has the applicant prescribed meets the mony that his use which will show of not have the burden standards and he does requirements, use would be establishing affirmatively proposed that his of community. If he shows to the satisfaction benefit to the without the Board that the use would be conducted actually and would not neighborhood real detriment to the interest, adversely met his burden. public affect the he has neighboring The extent of harm or disturbance to is, course, If the evidence makes area and uses of material. of the question question of harm or disturbance or the harmony plan disruption comprehensive of the debatable, fairly the matter is one for the Board zoning harm or probative decide. But if there is no evidence of or of disturbance in of the nature of the zone involved light causing disharmony operation compre- factors to the excep- plan, application hensive a denial of an for a arbitrary, capricious, illegal. tion use is Turner 54-55, 543, (1973); Hammond, 41, 310 A.2d 550-51 Board of Rockville Fuel & Feed Co. v. 183, 187-88,
Gaithersburg, 257 Md. A.2d Club, Inc., (1970); Montgomery County v. Merlands 279, 287, Sawyer, Anderson v. 612, 617, *10 App. 329 A.2d These stan- dards if dictate that a requested special exception use is properly determined to have an adverse effect upon neighboring properties area, in the general it must be denied. specific
The nature requisite of the adverse effect was defined Deen v. Co., Baltimore Gas & Electric 317, 330-31, 214 A.2d There the Baltimore Gas and Electric Company requested special a exception use permit would construction of high tension transmission time, ground. lines above At that County Baltimore Zoning Regulations special stated that a exception use could not be if granted requested use would "be detrimental health, safety, general or locality welfare of the (Board) involved.” Baltimore Board Appeals granted requested special exception use for portion of the proposed transmission lines that would traverse a rural area not then by public serviced sewer or water facilities. The trial court affirmed.
On appeal, stating: this Court affirmed
"Appellants assert that it was error for the Board to fail to consider the future effects high which the health, safety tension wires would have on the and general locality welfare of the 'which could be rea- sonably anticipated in the normal course its development.’ This factor was without relevance in case, this because there produced was no evidence at hearing which would show that the effect of high health, safety tension on the future wires and welfare of any this area would be in differ- respect ent than its effect on other rural area. Section health, 502.1 implies safety the effect on or general welfare unique must be some sense or else a special exception could granted never be such an ground area for the high above location of only tension wires. The evidence as to future condi- tions testimony revealing was possibility such land but ofthis development residential future showing a close to not come alone does possibility health, public upon effect future deleterious 330-31, Deen, Md. at safety general welfare.” added). (emphasis 214 A.2d at employed analysis a similar Subsequently, 617-18, at 720. App. Sawyer, Anderson that would requested a There an owner in residential zone. home of a funeral construction permit requested to show that evidence presented Protestants congestion tend to create use would and streets neighboring roads on unsafe conditions effect that depressing psychological would have adjoining properties, enjoyment with the interfere saleable, them from prevent them less make *11 in the area. much as other homes in value as appreciating requested of the grant the The Board found would, in problems and create traffic exception use would welfare of the fact, general to the otherwise "be detrimental requested the locality involved.” It denied County reversed. Baltimore The Circuit Court for use. the order of the affirmed Special Appeals The of Court requested special of grant requiring Court Circuit agreed with Special Appeals The Court of exception use. to show probative evidence that there was no trial court alleged respect to the particularly, with adverse effect. More neighboring of enjoyment of value and depreciation it said: properties, undertaking an busi- be no doubt that
"There can disturbing depressing and ness has an inherent may adversely affect effect which psychological in neighborhood in the immediate persons residing may which lessen of their homes and enjoyment Indeed, of precisely because the values thereof. action of effects that the such inherent deleterious uses prohibiting such legislature a local regarded promoting will be given zone or zones constitutionally sound. welfare and as general legislature instant case of But Baltimore County part determined that as compre- has its plan hensive funeral homes are to be allowed in notwithstanding residential zones their inherent By deleterious effects. defining funeral home as by way use appropriate special exception, the has, legislature essence, of Baltimore uses, they satisfy declared that such if the other ordinance, specific requirements of the promote do health, safety general welfare of the com- munity. part comprehensive As zoning plan legislative this in presumption declaration shares validity and correctness which the courts will honor. presumption general that the pro- welfare is
moted
allowing funeral homes in a residential
district,
notwithstanding
use
their
inherent
effects,
depressing
cannot be overcome unless there
strong
are
and substantial existing facts or circum-
showing
particularized
stances
beyond
use has detrimental effects
above
ordinarily
inherent ones
associated with such uses.
Consequently,
allegation
the bald
that a funeral
inherently
home
psychologically
use is
depressing
values,
adversely
adjoining
influences
property
as well as other evidence which confirms that
conclusion,
generally accepted
is insufficient
presumption
overcome the
that such a
promotes
general
of a
community.
welfare
local
Because
there were neither facts nor valid
sup-
reasons to
*12
port
grant
the conclusion that the
requested
special exception
adversely
would
affect adjoining
surrounding
any way
and
in
properties
other than
would
any
result from the location of
funeral home
any
zone,
presented by
residential
the evidence
”
was,
effect,
protestants
no evidence at all.
Anderson,
624-25,
cial use that oil gallons than million of fuel storage for more ground 19 acres of land approximately to located on gasoline At a (Manufacturing-Heavy). hearing M-2 before zoned (Board), Howard there was Board of particular to that the presented much evidence show proposed at the location would have proposed particular general in the area. neighboring properties adverse effect on show, lay among other expert testimony There was things, property inadequate that the roads to the were access traffic not be dangerous and that increased could found, existing The Board accommodated on the roads. "that use would things, among other adversely surrounding properties affect the and vicinal creating congestion presently inadequate undue on a requested and hazardous road network....” It denied the use. appeal Atlantic filed an in the Court for Richfield Circuit County. opinion Howard In a memorandum filed after hearing, the respect trial court said with traffic:
"The Board the use would cre- finding of the presently congestion ate undue traffic on a *13 presents road network inadequate and hazardous before the question. evidence more serious substantial, certainly and more than was Board substantial, property, to the that the access roads state, inadequate were to service present their or, any substantial presumably, use proposed use, presence any of number and that the industrial haz- roads would create a of trailer-trucks on these ard.” essence, concluded that there was sufficient
In the trial court finding particular that the support the Board’s evidence particular proposed location would proposed beyond adverse on traffic above and an adverse effect associated with such uses. ordinarily on traffic effect effect, the of this adverse Notwithstanding the existence denial should be the Board’s trial court concluded use should be reversed and trial said: court granted. explanation, matter, pointed out counsel "The crux of the use in this is that the appellant, for the the Board insofar as evidence before instance concerned, any greater traffic not create would haz- inadequate and congestion presently on the of uses than number ardous road network right the M-l and as a matter of under instance, among For zoning M-2 classifications. in the M-l right of permitted as matter uses district, being permitted as a uses also zoning such district, are truck right zoning of in the M-2 matter houses, warehouses, mer- wholesale terminals centers, the manufacture chandise distribution In the M-2 cement, slag products. or of cinder districts, permitted as among other uses zoning manufacture or assem- right are: aircraft matter assembly food plants, bly, or truck automobile manufacturing, processing plants packing mixing plants. material Presum- bituminous road permitted as a matter ably any or all these uses pre- create right question area than same, traffic hazard greater, if not a cisely the *14 fault, any, if lies here. The question use regu- zoning with the proposed but the use with In other at this time. map effect lations and traffic, including trailer words, an increase roads, unique a factor trucks, is not inadequate on added.) (Emphasis use.” proposed to this peculiar or court, Special the Court of affirming the trial said: on out that point court] trial went
"[The possible application this because rejecting traffic, making in vehicular Board increase existing patterns traffic comparison between a undeveloped property the presently around proposed if the use that could arise patterns traffic at all permitted, considering be without were to volume of traffic than that greater that an even from facility for the could arise anticipated storage is now any property for which the several uses special exception zoned and for which no would required. present [It] noted that under the M-2 for zoning, subject premises could be used or or assembly; aircraft manufacture automobile manufacturing, truck assembly plants; food processing plants or road packing bituminous mixing plants. material
We believe it obvious that
one of these
any
permissible
premises
uses of these
could result in
greater
vehicular traffic of
volume and
increased
density
for
probable
than that which is considered
storage facility,
the bulk
and we do not believe it
arguable
that
it is
more desirable to have
mixing
past
vehicle drive
concrete or bituminous
gasoline
one’s home than a
fuel oil tank truck.
fully
[the
court]
We think it
that
trial
appropriate
proper
comparison
found the
test to be a
between
problems
might
the traffic
arise under the
use and traffic
arise
problems
could
permitted by
now
usage
premises
from the
law. We
that traffic
is a sufficient
recognize
impact
including an
deny
zoning application,
basis to
v.
special exception. Templeton
for a
application
Council,
19 exception should be uses, requested special with such granted. conclusion, only trial court cited reaching
In this 153, 330-31, the Court of 214 A.2d at and Deen, at Indeed, is no all. there authority no cited Special Appeals sup standard or applies Gowl authority that persuasive this conclusion.5 ports statutory underlying the analysis
An of the rationale as either uses are delineated by which certain scheme use leads special exception use or conditional logically is standard the Gowl to the conclusion established with the standards in conflict inconsistent and by general Anderson. The Deen and explicated in Turner as accom- guide is to and planning land adequate purpose "coordinated, harmonious adjusted, plish by any a court of purchasers not cited case decided 5. The contract They applies jurisdiction the Gowl standard. last resort have cited other by appellate only court an intermediate two cases decided by were decided applying Supreme Both of these cases the Gowl standard. Long Lighting Court, Appellate Co. Division of New York. Island 348, 351 (1947), 551, 554, 74 79 Griffin, aff'd other App. on 272 Div. N.Y.S.2d v. grounds, (1948), nonpersuasive because N.Y. N.E.2d 738 is 297 by utility public request to which the for a involves a ordinary County concerning may apply. See adverse effect standard Co., George’s Elec. Power 263 v. Potomac Council for Prince Albanese, App. 159, 176-77, 1049, 1050, Div. 2d 70 Hobbs (1979), nonpersuasive because N.Y.S.2d is, therefore, authority the Gowl standard it cites does not articulate improperly addition, misapplied. is offered for Court’s no rationale supported conclusion. 19.14,p. § Anderson, Zoning recognize American Law of We that R. 1977) 41.10, (2d Planning § Rathkopf, Zoning A. The Law of ed. and 3 (4th 1980), purchasers articulate a stan p. 41-61 the contract ed. cited However, those treatises are approximating in Gowl. dard that articulated *16 nonpersuasive not the Gowl similarly cited do because the cases articulate therefore, standard, cases are, example, misapplied. For some of the cited exception to inapposite they compare use an are because See, Gillispie, existing use, 2d a of account, permitted e.g., 60 Misc. v. to a use. Baxter not (1969). 349, 303 292, 294-96 inapposite 290, are because Others N.Y.S.2d special exception comparison and that effect of a use between the adverse appropriate to be into permitted factor taken use is considered to be determining deciding upon factor in but is not relied as the See, e.g., granted. special exception Cantelli v. should be whether the Town Bd. of (1960). 506, 126, Bay, Oyster 219 28 2d N.Y.S.2d 507 Misc. inapposite. by purchasers are All of the other cited the contract cases use, special exception They to a of compare special another use to See, Zoning permitted e.g., Phillips v. Bd. of Petroleum Co. use. 1970). (Me. Bangor, 434, 435-36 260 A.2d 20
development jurisdiction... [a] of which promote will... ... (1957,1978 [the] general Vol.), welfare.” Md. Code Repl. Art. 66B, § 3.06. Zoning is one of the important elements of land purpose. used to further this planning County is Board of Gaster, 233, 246, of Cecil v. 285 Md. Comm’rs (1979). 666, 401 A.2d purposes The various zoning of regulations, made in accordance with the plan, are: congestion streets;
"[T]o control in the to secure the public safety; health, to promote and the general welfare; provide adequate air; light and to pro- mote the conservation resources; of natural prevent pollution, environmental to avoid undue population; concentration of to facilitate adequate provision of transportation, water, schools, recreation, sewerage, parks and other pub- lic requirements. Such regulations shall be made consideration, with reasonable among things, other to the character of the district suitability and its for uses, particular and with a view to conserving the buildings value of encouraging orderly development and the appropriate most use of land 66B, throughout jurisdiction.” § Art. 4.03. Zoning provides a tool which areas general to establish or districts devoted to Mayor selected uses. Ellicott v. (1942). Baltimore, 176, 181, 180 Md. 649, 23 A.2d Indeed, very essence of zoning is the territorial division of land into use districts according to the character of the land and buildings, suitability buildings land and particular uses, uniformity of use. Harbor Island Marina, Inc. v. Board of County Comm’rs County, of Calvert 303, 312, 407 A.2d Heath Mayor v. (1946). Baltimore, 296, 305, 49 A.2d See County Comm’rs of Anne County Ward, Arundel 330, 338-39, 687-88 Generally, when established, a use district the zoning regulations prescribe that certain uses are as of right (permitted use), while other uses are permitted only (conditional under certain conditions *17 designated as use).6 be should which uses determining district, legislative a use given in a or conditional permitted available, exam variety uses possible body considers purposes various upon the impact of the uses ines zoning compatible are ordinance, which uses determines benefits, and reciprocal and can share each other with coordinated, adjusted, for provide uses will which decides Hagman, D. development of the district. and harmonious Control Law Development Land Planning and Urban § 66B, Art. 4.03. See body, reaching its determina- legislative Because may be tion, balancing certain uses process, engaged a they may not foster all of although designated permitted as indeed, and, may zoning regulations purposes these respect to some of effect with have an adverse body that Thus, legislative determines when the purposes. outweigh serve that certain uses purposes the beneficial effect, designated as uses are adverse such possible their though partic- may developed even uses and be permitted use location permitted particular ular ordinarily beyond have an adverse effect above churches and example, For associated with such uses. uses. Such generally designated permitted schools are particular at the location may although be developed, uses may on a factor such as have an adverse effect proposed they purposes served traffic, moral and educational because the outweigh particular are deemed to this adverse effect. that other uses are legislative body determines When district, in use but that compatible uses with not uses serve do purposes the beneficial such other effect, desig- such uses are outweigh possible their adverse City See nated uses. as conditional 66B, part: provides pertinent § 6. Art. 1.00 " grant specific 'Special exception’ use] of a [conditional means a appropriate generally or without restriction that would be use and shall special exceptions governing finding upon certain conditions based exist, zoning ordinance as detailed existing compatible plan with the and is the neighborhood.” conforms to Montgomery Bd. of Park v. Takoma *18 772, (1970); 619, 621, 270 A.2d County, 712, Servs., Inc., 257 Md. Aviation Creswell v. Baltimore 66B, § Art. 1.00. Such uses 264 A.2d particular proposed if the location developed be at cannot ordinarily beyond they an adverse effect above have example, For funeral estab- such uses. associated with exception designated special are generally lishments particular if developed at may uses. Such uses not be upon effect a factor they have an adverse proposed location body has determined legislative such as traffic because establishments serve that such purposes that the beneficial their adverse effects. necessarily outweigh possible do not definition, may permitted a use be particularly, More traffic though upon it has an adverse effect developed even definition, By a proposed. location particular the same adverse producing use requested special Thus, by defi- location must be denied. effect at the same if the volume of nition, may developed be even a church congestion and unsafe condi- generates traffic that it causes definition, By how- proposed. location particular tions at the ever, a funeral establishment special exception a use for therefore, and, of traffic producing the same volume particular conditions at the congestion same and unsafe It because a precisely must be denied. proposed location may though even have may developed use permitted particular proposed, location adverse effect on at may not, grant to use whereas a gener- that it ground use on the requested special exception generated by than that greater ates traffic volume no inconsistent and in conflict with logically use is Accordingly, the standard standards. previously established We now hold that inappropriate. articulated in Gowl is determining used in whether appropriate standard to be have an effect use would adverse requested special exception facts and, therefore, denied is whether there are should be particular show that and circumstances proposed location particular at the inherently beyond those asso- above and adverse effects irrespective its exception use a ciated with such 54-55, Turner, Md. at 310 A.2d the zone. location within 153; 330-31, 214 A.2d at Deen, at 550-51; at 624-25, at 617-18, Anderson, Md. App. 724. County Zoning Ordinance Carroll
Here purposes morals, health, general and the safety, promote "to are by regulating ... the location community, welfare of the air; adequate light and to buildings ... provide use of to land; crowding of and undue prevent congestion con- fire, danger; and other safety panic, secure from County Zoning Carroll property.” serve the value body, legislative § 1.0. local Ordinance engaging in a County, after Carroll Commissioners dwellings, designated single-family balancing process, *19 schools, community buildings such churches, colleges, libraries, as uses cultural and civic centers as R-20,000 County Carroll Zoning a Residence District. designation, such uses § As result of this Ordinance 7.1. they an adverse effect on developed can be if have even designated certain other traffic. The also Commissioners establishments, land, uses of funeral including R-20,000 District. Carroll exception uses Residence designa- § 7.2. As a result of this Zoning Ordinance tion, partic- developed at a funeral establishments cannot they if effect on traffic above ular location have adverse beyond ordinarily with funeral estab- that associated within the zone. Carroll irrespective lishments of location § County Zoning Ordinance 17.6. grant requested the
Here Board determined that the of funeral establishment special exception proposed use for traffic conditions at the dangerous result and, therefore, should be special exception location that However, evidence denied. here shows that the the record ques- on primarily upon by relied the Board was based did the trial court not assumptions. appeal, tionable On reasonably reasoning could decide whether mind Board, of concluded, granting as did the dangerous requested use would result erroneously Rather, court decided the trial traffic conditions. process due and reversed a denial of only that there had been hearing. Board for a new matter to the and remanded the whether, determine on refused to specifically court The trial remand, applicable. was the Gowl standard whether the Appeals did decide Special
The Court of fairly was debatable. effect on traffic of adverse question trial court’s only Rather, erroneously decided final judg- Board was not a the case to the remanding order indicating whether appeal, without' It dismissed the ment. applicable. the Gowl standard circumstances, view, all of these under In our by permitting further be advanced justice of will purposes addi- through the introduction in this case proceedings application evidence before Board tional Accordingly, opinion. forth in this set appropriate standard to without affirmance or case the Board we shall remand the with this in accordance proceedings for further reversal Md. Rule 871. opinion. Special
Judgment of the Court of vacated. to court with Case remanded judgment to vacate the directions Carroll Circuit Court for the case County and to remand that court with directions order of the Carroll vacate the *20 County Zoning Appeals Board of that to and to remand the case in further proceedings Board for opinion. with this accordance the paid equally Costs to be parties. J., part: in
Smith, concurring part dissenting I Circuit concur in the order of the the determination that order and Court for final appealable Carroll was an I of law. process denied due was not applicant dealing with however, opinion III of the dissent, from Part petition. cross I before evidence was sufficient think there I do not warrant County to for Carroll Appeals Zoning Board here. of the denial denying the for as its reason stated The Board of application: Maryland State of the requirements
While Administration, Engineering Bureau Highway met, testimony expert be could Access Permits request emphasized to the opposition presented of the vehicular the characteristics home, funeral funeral or by the generated would dangerous would result in particular, processions traffic, as bound north and south for both conditions because of processions, vehicles such well as the curve resulting from problems sight distance hump, or property north end of the near the southerly end of past curve located vertical Therefore, request Board finds the property. Conditional Use home as a the funeral establish be denied. must board, letter the deci- upon which expert’s letter to the based, said, procession requires "A funeral
sion was approximately Washington on Road stopping of traffic obviously is this hour.” It of an minutes or l/12th five when it states majority opinion refers which the had purchasers contract out that expert, pointed "He to exit takes 5 minutes procession typically 'indicated that ” Pritts, purchaser, said: from the site.’ the contract Well, 12be average say probably I would cars, we have six 15 cars and sometimes *21 26 fewer, say I would 15 cars would
sometimes
but
average.
be the
probably
(if
cars, even
I don’t believe it would take we had 30
I don’t see where it would take over
going)
30 cars
added.)]
minutes,
[(Emphasis
five
at the most....
can
seen that the five minute estimate was not
plainly
It
be
was it
There was no other evidence
average
typical.
nor
subject.
only
expert upon
Not
did the
before the board on this
his calculation on the basis of
whom the board relied make
number of cars at
figure
average
than the
a funeral
other
Pritts,
he
failed to take into
by
testified to Mr.
but
also
might
generated by
consideration the traffic which
question.
in the area in
permitted use
context,
zoning
in a
repeatedly,
frequently
We have said
than
greater probative
is of no
value
expert’s opinion
warrant.
given
the soundness of his reasons
therefor will
Land,
691, 704,
See,
County
v. District
274 Md.
e.g.,
Council
(1975);
Dep’t,
A.2d 712
A. H. Smith Sand & Gravel v.
337
Doub,
652, 667,
(1974);
270 Md.
exception was articulated for the Court Appeals, Hammond in Rockville Fuel v. Bd. of (1970): 262 A.2d question
If of harm or the evidence makes disruption or the of the question disturbance fairly zoning harmony comprehensive plan debatable, is one for the Board to decide. the matter all of harm But, evidence probative if there is no *22 of nature of the zone light in or disturbance disharmony to the causing factors involved or of a denial of an comprehensive plan, of the operation arbitrary, is exception special for a application v.] illegal. [Montgomery Co. capricious (1953)]. 279, A.2d 261 [Club, Md. 96 202 Merlands at [Id. 191.] of
A case in which we reversed denial more recent an affirmance of exception by a local board and special Hammond, 270 Md. is v. by denial the circuit court Turner (1973). 41, Judge his A.2d McWilliams concluded 310 543 by stating: for the Court there opinion is We said that substantial evidence have findings of the Board and required support to of than a scintilla that substantial evidence is more Meininger, George’s County v. 264 evidence. Prince (1972), 148, 152, Md. A.2d 649 and Kirkman 285 273, 277-78, Council, Md. Montgomery County scintilla, All of at definitions context, if least in are but we assume imprecise this it takes a scintilla then the gossamers ten make falls appellees’ before the Board well short evidence gossamers. [Id. 60.] of five here well my protestants view the evidence of the "falls Thus, of five should gossamers.” short granted. have been
II
I believe the test articulated in Gowl v. Atlantic Richfield
Co.,
(1975),
is a
one
App.
proper
We all exception. a deny request special a capriciously and traffic do we measure against what is problem produce effect and adverse that it will have an determining Surely rejection application? of an warranting a hazard that logically to me It seems there must be some standard. district that in the body has determined legislative since "[cjhurches, include uses” "[pjrincipal permitted in question of a properties and "[bjuildings colleges,” schools community ser- educational, or cultural, civic, social libraries, [and] playgrounds .. . ponds[,] as vice-type such determining centers,” that it follows community arbitrary should one has been not the board whether or generated to the traffic be measure Why uses. is by permitted generated against for this deny permission to capricious arbitrary a hazard when of the traffic the basis home on funeral may generate uses permitted others church certain traffic? much or more demoninations, e.g., Prot- religious of some Members have their funeral ser- Church, regularly Episcopal estant Thus, sancutuary. a church church could be from their vices generate would of a funeral the case here which erected funeral home would of traffic this exactly same amount Moreover, it is use. permitted is a the church generate, but Sunday morning after attendance conceivable services, other on the church weddings, or events worship lot parking of its might pour out the traffic which calendar from funeral substantially of that be in excess home. my part permitted use. the State playground
A is average generated by just would be which sug- that which is would dwarf League game Little baseball hotly in this instance. A average for a funeral gested as the obviously would between two bitter rivals game contested greater even traffic. produce might of traffic What amount college
A use. college adjacent out lot expected spew parking of a game? major after a football athletic field *24 every appli- not hold would mean To to the Gowl rule home for for a funeral cation application is made. There granted simply to be because same, homes. All are be a difference funeral can oral argument Pritts was asked at by means. Counsel for warranting denial if he articulate circumstances could surrounding upon adverse effect virtue a demonstrable all homes are not the In out that funeral property. pointing same he said: home is one that
If a funeral does contract work, embalming example, for and has a lot of traf- fic in and laboratory facility, out and has a that is entirely different from the normal funeral home. If a funeral home inis the business of selling caskets area, to a lot of other funeral homes that is something larger than the normal funeral home. If a funeral home is the business of selling grave paraphernalia, markers or funeral I then think in you circumstance have something different than the normal funeral home.
I have known even in a town smaller than Westminster of very busy funeral home that many sometimes had as' as day. three funerals in one proposition No such was involved here.
When, here, exception is denied on the basis that operation granted under the exception would create a traffic hazard and an identical or worse traffic hazard could uses, regard arise from I must the action as arbi- trary and capricious, such that should not be tolerated in a free land.
Ill my view whether one proceeds upon the reasoning set in I forth or that in II we should direct that the case be remanded to the Board for the granting application special exception upon such safeguards conditions and as the may Board find under the and the appropriate ordinance evidence.