Clarksville Residents Against Mortuary Def. Fund, Inc. v. Donaldson Props.

453 Md. 516

162 A.3d 929

CLARKSVILLE RESIDENTS AGAINST MORTUARY DEFENSE FUND, INC. et al.

v.DONALDSON PROPERTIES et al.

No. 70, Sept. Term, 2016

Court of Appeals of Maryland.

June 22, 2017

Argued by J. Carroll Holzer (Holzer & Lee, Towson, MD), on brief, for Petitioners.

Argued by Sang W. Oh (Talkin & Oh, LLP, Ellicott City, MD) and Barry M. Sanders, Assistant County Solicitor (Gary W. Kuc, Howard County Solicitor, Howard County Office of Law, Ellicott City, MD), on brief, for Respondents.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Hotten, J.

We consider whether the Howard County Board of Appeals ("the Board") erred in approving a conditional use application for a funeral home in Howard County's Rural Residential–Density Exchange Option zone ("RR–DEO").¹ In December 2009, Donaldson Properties, et al. ("Donaldson"), filed a conditional use application with the Board, seeking to build a funeral home and mortuary. The proposed site was a 3.207 parcel of land located on the western side of Maryland Route 108 and close to a stream system protected by the Maryland Department of the Environment ("MDE"). The proposed conditional use plan was initially denied by the Howard County Board of Appeals Hearing Examiner ("Hearing Examiner"), but Donaldson appealed de novo to the Board. The Board held public hearings spanning a total of 22 days between January, 2012 and April, 2013. After two revisions, the Board approved Donaldson's conditional use application on July 13, 2013, subject to several conditions.

On August 2, 2013, community members who participated in the public hearings filed a petition for judicial review in the circuit court. Following a hearing on March 14, 2014, the circuit court issued an order on September 15, 2014, affirming the Board's decision. The community members appealed and on July 20, 2016, the Court of Special Appeals, in an unreported decision, upheld the Board's approval of Donaldson's conditional use. Thereafter, the community members filed a petition for writ of certiorari, which we subsequently granted.

For the reasons that follow, we shall affirm the judgment of the Court of Special Appeals.

FACTS AND PROCEDURAL BACKGROUND

I. The Property

In December 2009, Donaldson filed a proposed conditional use plan ("Conditional Use Plan") for a funeral home and mortuary with the Board. The proposed site for the funeral home is a 3.207 acre parcel located at 12540 Clarksville Pike ("the Property") on the western side of Maryland Route 108 in the RR–DEO zoning district.² The Property is located in the Carroll Branch watershed with two perennial Tier II streams located along the western edge of the Property.³ The Property is bordered by St. Louis Catholic Church directly to the north, and Christ Evangelical Lutheran Church of Columbia ("Christ Lutheran Church") to the south. On the eastern side of Route 108, across from the Property, there is a two-story single family home setback 180 feet from Route 108. To the west of the Property, there is a 42.44–acre non-buildable preservation parcel owned by Howard County. Several housing developments are in the vicinity of the Property, including the Preserve of Clarksville development to the west of the non- buildable parcel, the Clarks Glen housing developments to the north of St. Louis Church, and the Clarksville Overlook housing development to the south of Christ Lutheran Church.

Donaldson proposes to construct an approximately 17,049 square foot funeral home and mortuary on the Property. The funeral home would be approximately 135 feet in length, from east to west, 70 feet wide, from north to south, and approximately 32.5 feet tall. The funeral home would be situated in the southeastern section of the Property, approximately 125 feet from Route 108 and 30 feet from the southern lot line. The funeral home is designed to be compatible in scale and character with the residential development in the vicinity.⁴ Viewings would be held on the Property between 2 p.m. and 4 p.m. and between 7 p.m. and 9 p.m., Sunday through Friday, and funeral services between 10 a.m. and 1 p.m., Monday through Saturday. Outside of those times, fewer people would be on the Property for general office and business purposes.

II. Procedural Background

Pursuant to Howard County Code ("HCC") § 16.302(a),⁵ between April 26 and October 25, 2010, the Hearing Examiner considered the Conditional Use Plan. On March 17, 2010, the Howard County Department of Planning and Zoning ("DPZ") issued their Technical Staff Report ("TSR"), recommending that the Conditional Use Plan be approved, subject to certain conditions.⁶ On November 29, 2010, the Hearing Examiner denied the Conditional Use Plan, prompting Donaldson to appeal to the Board for a de novo review.

Between January 10, 2012 and April 30, 2013, the Board held hearings on the Conditional Use Plan.⁷ Clarksville Residents Against the Mortuary, Inc., et al. ("Petitioners") participated in the proceedings as members in opposition to the Conditional Use Plan. During the proceedings, Donaldson submitted two revised proposed conditional use plans, the first on January 10, 2012, and the second on August 23, 2012 (hereinafter "Revised Plan"). The DPZ subsequently issued two addendums to its TSR, the first on February 1, 2012, and the second on August 23, 2012. The DPZ concluded in both addendums that Donaldson's proposed conditional use met the General Standards and Specific Criteria for a funeral home and mortuary conditional use, and recommended the plan be approved.

On July 3, 2013, the Board issued a Decision and Order finding that the Revised Plan met all of the legal criteria for the conditional use. The Board granted Donaldson's conditional use, subject to several conditions.⁸ In support of its decision, the Board, in relevant part, rendered the following findings of fact:

[Robert] Vogel ^[9] also stated that the [Revised] Plan is consistent with the General Plan given that legislation had recently been proposed to remove the funeral home conditional use from the RR–DEO zone, but DPZ and [the Board] recommended against its enactment. According to Mr. Vogel, this action by County planning agencies affirmed that funeral homes are important in the RR–DEO zone.

* * *

Testifying regarding potential adverse impacts, Mr. Vogel provided a lighting plan that would generate no light trespass beyond the parking lot. Mr. Vogel testified that the adverse effects of noise, dust, fumes, odors, lighting, vibrations, hazards or other physical conditions would not be greater at the Property than they would generally be elsewhere in the RR–DEO zone or applicable other zones.

* * *

Shun Lu testified that she is a resident of Clarksville, Maryland, and that she is opposed to the petition. Ms. Lu testified that persons of Asian descent have a cultural sensitivity to funeral homes and that she believed it to be bad luck to live close to a funeral home.

* * *

[Dr. Peter] Li [ ] testified that funeral homes are not compatible with nearby residences from a feng shui^[10] perspective.

* * *

Marianne Lee testified that she is a resident of Clarksville, Maryland, and that she is opposed to the petition. Ms. Lee testified that persons of Asian descent have a cultural sensitivity to funeral homes.

* * *

Anthony Redman, a professional land planner, testified that he believed the Property to be too small for the proposed use. Mr. Redman stated that he believed that MDE could require a 150 feet buffer from the stream tributary running along the west side of the Property instead of the 100 foot buffer shown on the Plan. Mr. Redman testified that the stream is a Tier II stream.

* * *Tiru Liang testified that she is a resident of Clarksville, Maryland, and that she is opposed to the petition .... Ms. Ming [sic] stated that she was also concerned with the potential environmental impacts of the Funeral Home.

Richard Klein, a professional environmental consultant, testified that he believed the Property might not be able to satisfy environmental site design standards.

* * *

On rebuttal ... Mr. Vogel stated that he visited the Property and that no wetlands or wetlands buffers existed on the Property. Regarding potential impacts to the Tier II stream, Mr. Vogel testified that the purpose of the 100 foot buffer was to protect the stream. So long as [Donaldson] complied with the imposed buffer, according to Mr. Vogel, the stream would not be adversely impacted .... Finally, Mr. Vogel testified that persons of Asian descent moved into new homes located in close proximity to two existing funeral homes on Old Columbia Pike in Ellicott City.

* * *

On rebuttal, Mark Burchick, an environmental consultant, testified that the stream buffer would be 100 feet from the unnamed tributary located at the northwest corner of the Property. [Mr.] Burchick stated that even if a temporary encroachment into the buffer was necessary during the site development process, MDE would be unlikely to impose a greater buffer from the stream tributary. Mr. Burchick testified that the 100 foot stream buffer shown on the Plan would be sufficient to prevent deleterious impacts to the stream.

* * *

On rebuttal, Jennifer Yocum, a feng shui consultant, testified that [Donaldson] incorporated into the Plan several features Ms. Yocum proposed in order to improve the feng shui of the Funeral Home. Ms. Yocum testified that she did not believe the Funeral Home would adversely impact nearby residents from a feng shui perspective.

* * *

The Board based its conclusions of law exclusively on the General Standards for Conditional Use Approval contained in Howard County Zoning Regulation ("HCZR")¹¹ § 131.B and the Specific Criteria for Funeral Homes and Mortuaries contained in HCZR § 131.N.22. In relevant part, the Board concluded that:

[Donaldson's Revised] Plan is in harmony with the land uses and policies indicated in Howard County's General Plan, PlanHoward2030, for the RR–DEO zoning district. Funeral homes and mortuaries that

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