In re Calvary Temple of Balt.

1

IN THE MATTER OF CALVARY TEMPLE OF BALTIMORE, INC., ET AL.

No. 160-2022

Court of Special Appeals of Maryland

August 22, 2023

UNREPORTED^[*]

IN THE APPELLATE COURT OF MARYLAND ^[**]

Circuit Court for Anne Arundel County Cases No C-02-CV-19-000170 and C-02-CV-19-00167

Nazarian, Leahy, Friedman, JJ.

OPINION

Leahy J.

This marks the second appeal taken from the decision by the Anne Arundel County Board of Appeals (the "Board") on the application for a special exception and two variances filed by Appellee, Lumenary Memory Care at St. Stephen's Church, LLC ("Lumenary"), to permit construction of a memory-care facility at the corner of Brandy Farms Lane and St. Stephen's Church Road in Millersville, Maryland. In the party's first appeal, we reversed the Circuit Court for Anne Arundel County, Maryland's decision that the Board erred in granting administrative standing to appellant, Pastor James LaRock, Sr., to appeal the decision of an administrative hearing officer granting Lumenary's requested special exception and variances. Calvary Temple of Baltimore, Inc., et al. v. Anne Arundel County, Maryland et al., ("Calvary Temple I") No. 1574, Sept. Term 2019, slip op. at 3-4 (filed Jun. 28, 2021). We explained that, because he resides on the adjacent property owned by Calvary Temple of Baltimore, Pastor LaRock had standing because he is specially aggrieved as "he possesses a significant, long-term interest in the Calvary property and lives in close proximity to the site of Lumenary's project." Id. at 4. Accordingly, we remanded the case to the circuit court to consider the merits of Pastor LaRock's petition for judicial review. Id. at 47. On remand, the circuit court affirmed the decision of the Board to grant Lumenary's requested special exception and variances. Pastor LaRock returns to this Court and presents five questions for our review, which we have condensed and reordered as follows:^[1]

I. Was the decision of the Circuit Court for Anne Arundel County upholding the grant of a special exception use to Lumenary by the Board of Appeals for an assisted-living facility erroneous as a matter of law?

II. Does Anne Arundel County Code Section 18-16-305 violate the limitations established in Section 4-206 of the Land Use Article for the granting of a variance?"

III. Was the decision of the Circuit Court for Anne Arundel County upholding the grant of a 12.79% area variance to Lumenary by the Board of Appeals for an assisted-living facility legally correct and supported by substantial evidence?"

For the reasons that follow, we hold that the Board did not err in granting the special exception and approving the variance requests, and that its findings were supported by substantial evidence in the record. Accordingly, we affirm the judgment of the circuit court.

BACKGROUND

The Application

The subject property consists of 8.709 acres of undeveloped land located at the corner of Brandy Farms Lane and St Stephen's Church Road in Millersville, Maryland. It is identified as Land Unit 2 within Lot 1 of Parcel 71 in Block 8 on Tax Map 37 in the Brandy Farms subdivision (hereinafter "the Property"). The Property is part of a larger 16.04-acre parcel that is split-zoned. The 8.709-acre Property is zoned Residential Low Density ("RLD"), on which Lumenary, the contract purchaser, proposes to construct a 75-bed assisted living facility. The remaining acreage, which has a different owner, is zoned commercial-C2.

In 2017, after purchasing the Property, Lumenary applied for a special exception, as required under the Anne Arundel County Code in order to construct a memory-care facility in an RLD zone. Lumenary also requested two variances: one from the minimum lot size of ten acres, and one to allow an eighteen-month extension of time to obtain a building permit. Lumenary's proposed facility would serve individuals suffering from various levels of memory impairment and would be constructed as a "village" geared towards providing residents with "a quality, active lifestyle." To provide a sense of community, the facility would have "75 units in a multi-family structure" with common kitchens and dining areas. A hair salon and a small convenience store would be included on the ground level of the facility for the use of the residents and their guests.

Applicable Zoning Provisions

The Anne Arundel County Code, as it was effective during the pendency of Lumenary's application, delineates the requirements for obtaining a special exception and variances.^[2] As a general matter, to obtain a special exception, an applicant must demonstrate the following:

(1) The use will not be detrimental to the public health, safety, or welfare;

(2) The location, nature, and height of each building, wall, and fence, the nature and extent of landscaping on the site, and the location, size, nature, and intensity of each phase of the use and its access roads will be compatible with the appropriate and orderly development of the district in which it is located;

(3) Operations related to the use will be no more objectionable with regard to noise, fumes, vibration, or light to nearby properties than operations in other uses allowed under this article;

(4) The proposed use will not conflict with an existing or programmed public facility, public service, school, or road;

(5) The proposed use has the written recommendations and comments of the Health Department and the Office of Planning and Zoning; (6) The applicant has presented sufficient evidence of public need for the use;

(7) The applicant has presented sufficient evidence that the use will meet and be able to maintain adherence to the criteria for the specific use;

(8) The application will conform to the critical area criteria for sites located in the critical area; and

(9) The administrative site plan demonstrates the applicant's ability to comply with the requirements of the Landscape Manual.

AA Code § 18-16-304.

More specifically, with respect to obtaining a special exception to construct an assisted living facility, the Anne Arundel County Code provides, in relevant part:

An assisted living facility shall comply with all of the following requirements.

(1) In RLD Districts, the facility shall be located on a lot of at least 10 acres. In R1 and R2 Districts, the facility shall be located on a lot of at least 10 acres, except that a facility that abuts a collector or higher classification road may be located on a lot of at least five acres. In other districts, the facility shall be located on a lot of at least five acres.

(2) For an assisted living facility in an RLD District:

(i) the property in the RLD District shall abut property that is zoned C2 or C3 and that will be part of the assisted living facility; and

(ii) the C2 or C3 property comprising part of the facility shall be served by public water and sewer.

(3) For an assisted living facility that consists of land located outside the critical area in more than one zoning district:

...

(iv) the developer shall demonstrate unified control of the entire assisted living facility and the capability to provide for completion and continuous operation and maintenance of the facility.

AA Code § 18-11-104. (Emphasis added).

Finally, to approve a variance, the Board must make affirmative findings that, inter alia, "the variance is the minimum variance necessary to afford relief' and "the granting of the variance will not alter the essential character of the neighborhood or district in which the lot is located.' AA Code § 3-1-207(e). The Board also must find that:

(1) because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape, or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility of developing the lot in strict conformance with Article 18 of this Code; or

(2) because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to develop the lot.

AA Code § 3-1-207(a).

AHO Grants the Special Exception and Variances

Applying those standards, an Administrative Hearing Officer ("AHO") granted Lumenary's request for a special exception and variances by memorandum opinion and order dated September 29, 2017, after hearings in which Pastor LaRock, on behalf of both Calvary and himself, participated. Calvary Temple I, slip op. at 2, 5 (filed Jun. 28, 2021). As we explained in Calvary Temple I, the AHO "decided that [t]he property is 87% of the 10-acre lot size required by the [AA] Code" and "given that the application meets all other requirements, the area variance will be granted.'" Id. at 6 (internal quotation marks omitted). With respect to the time variance, the AHO determined that it should be granted because "[i]t is well known that a project of this complexity can take far longer than 18 months to move through the permitting stage." Id. The AHO then addressed the special exception requirements and concluded that "Lumenary's application for special exception should be granted because it complied with all requirements, with the exception of the 10-acre lot requirement, for which a variance would be granted." Id.

Pastor LaRock Appeals to the Board and Lumenary Moves to Dismiss

Following the AHO's initial determination, "Pastor LaRock and eight other individuals timely filed a Notice of Appeal to the Board, stamped as received on October 26, 2017."^[3] Id. Calvary, however, was "not listed by name anywhere on the Notice." Id. n.8. Lumenary responded on November 13, 2017 with a motion to dismiss for lack of standing, arguing that Pastor LaRock was not aggrieved by the AHO's decision and that ...