Mills v. Godlove

200 Md.App. 213

26 A.3d 1034

James L. MILLS, et ux.

v.Ronald GODLOVE, et al.

No. 2761

Sept. Term

2009.

Court of Special Appeals of Maryland.

July 7, 2011.Reconsideration Denied Sept. 13, 2011.

William C. Wantz, Hagerstown, MD, for appellant.Travis W. Poole (Poole & Kane, P.A., on the brief), Hagerstown, MD, for appellee.Panel: MATRICCIANI, KEHOE and HOTTEN, JJ.HOTTEN, J.

The Euclidean ¹ method of zoning is generally how municipalities divide “ ‘an area geographically into particular use districts, specifying certain uses for each district.’ ” People's Counsel for Baltimore County v. Loyola College in Maryland, 406 Md. 54, 70, 956 A.2d 166 (2008) (quoting Rouse–Fairwood Dev. Ltd. P'ship v. Supervisor of Assessments for Prince George's County, 138 Md.App. 589, 623, 773 A.2d 535 (2001)). The Euclidean method was “ ‘designed to achieve stability in land use planning and zoning and to be a comparatively inflexible, self-executing mechanism which, once in place, allows for little modification beyond self-contained procedures for predetermined exceptions or variances.’ ” Loyola, 406 Md. at 70, 956 A.2d 166 (quoting The Mayor & Council of Rockville v. Rylyns Enter.'s, 372 Md. 514, 534, 814 A.2d 469 (2002)).

In the present case, the Washington County Board of Zoning Appeals (“Zoning Board”) granted James L. Mills and Korina Mills, collectively appellants, a special exception and variance that would allow them to park paving equipment on their property. Ronald Godlove and Gail McDowell, collectively appellees, appealed and the Circuit Court for Washington County reversed the Zoning Board's decision. Appellants noted an appeal and ask us to consider the following questions:

1. Did the Circuit Court err in reversing the Board's grant of variance relief, where the variances were supported by substantial evidence of practical difficulty, and the resulting convenience to the applicant was merely incidental?

2. Did the Circuit Court err in reversing the Board's grant of special exception, where the Board determined that no adverse effect from the proposed use at the proposed location had been shown?

For the following reasons, we conclude that the circuit court did not err in its determination.

Factual and Procedural Background

Appellants own property in Washington County that is divided by Licking Creek Road. Appellants reside on the east side of the road and maintain a garage and paving equipment on the west side. After parking the paving equipment on the west side of the property without issue for seven years, a complaint was filed. As a result, appellants sought a special exception and variance to continue parking the paving equipment on their property.

On March 14, 2007, appellants appeared before the Zoning Board to request a special exception and variance. At the hearing, several people testified and submitted letters in opposition to appellants' request. Appellees wrote a joint letter objecting to appellants' request. The letter explained that their father's estate, which is adjacent to and surrounds appellants' property, would suffer a diminution in value. Moreover, the letter stated that there would be runoff into Licking Creek “from the petroleum based products.” Appellees also testified at the hearing. McDowell testified that she was concerned that the special exception would “run with the land,” and that it may affect future use, which was “still up in the air.” McDowell also feared that there would be a petroleum runoff that would “leach down” into a flood plain owned by the estate, and then into Licking Creek. Godlove testified that he opposed the special exception because he was concerned that parking paving equipment on appellants' property would be detrimental to the environment, and would affect property values in the area.

Judy Kline, the daughter of one of appellants' neighbors, testified that she opposed the special exception because they “have seven grandchildren and probably at one point we will put a residential building there.” However, Kline did not indicate when this would occur. Kline also testified that she was concerned that when her grandchildren play near Licking Creek, they would be near paving equipment.

Terry McGee, the chief engineer for Washington County, submitted a letter, which read in pertinent part:

Although the paving condition[s] of Licking Creek Road are very poor, the business as described in the request is a low traffic generator and thus our requirements regarding paving conditions do not apply. Even though this is a low volume traffic generator, our standard requirement [is] 18 foot wide paving to support all non resident development.

The current road width is generally only 16 feet wide, although several locations are less than that. As such, we do not recommend approval of the variance unless the applicant widens the road to 18 feet minimum in accordance with County policy.

Mr. Mills testified and stated that it was not his intention to contaminate Licking Creek. He further stated that appellants would have to store the paving equipment ten to twelve miles away if they were not allowed to park it on their property, which would create “[a] lot of inconvenience....”

On April 13, 2007, the Zoning Board issued an opinion and made the following findings of facts:

1. The Appellants have owned the subject property since 1999.

2. Appellants operate a paving business and wish to park their business vehicles on the property as they have been doing for the past seven years.

3. The vehicles consist of 4 dump trucks, a backhoe, and a trailer with a paver and roller.

4. The Appellants have no plans to remove any existing vegetation.

5. Several neighbors objected to the property, but the Appellants advised that those same neighbors have never before objected to the parking of the vehicles on property, as has been done for seven years.

6. Widening one-half mile of Licking Creek Road would impose significant financial burden on Appellants, and may encourage further development.

7. Received and filed with the Board was a memorandum from Terrence McGee, P.E., Chief Engineer in the Washington County Engineering Department, stating that the department does not recommend approval of the variance request unless the road is widened to the minimum 18' width required by County policy.

8. Received and filed with the Board was a memorandum from Kathy A. Kroboth, Washington County Zoning Coordinator, advising that the appeal is consistent with the Comprehensive Plan, and we find that the proposal is compatible with the neighborhood.

In its decision, the Zoning Board explained that appellants' property is “suited for the proposed use,” and that it has “been put to such use for the past seven years.” Moreover, appellants' property was unique from other lots in the area, which made strict compliance with the special exception requirements impossible. The Zoning Board then concluded that denying the requested variance “would be a substantial injustice upon [a]ppellants and that, with the appropriate conditions,² granting the variance [would] uphold the spirit of the Ordinance.” The Zoning Board ultimately granted appellants' special exception request to store contractor's equipment. It then granted a variance that reduced the three acre requirement to .12 acres; the 300 foot width requirement to ninety feet; the fifty yard setback requirements to five feet on both side yards and fifteen feet in the front yard.

Appellees submitted a petition for judicial review to the Circuit Court for Washington County. On October 11, 2007, the circuit court issued an opinion, holding that the findings articulated by the Zoning Board were insufficient. The court explained that the Zoning Board's findings did “not balance the ‘beneficial purposes' of the use with its ‘possible adverse effect,’ nor [did] they support the notion that [appellants'] use of the property [did] not ‘have an adverse effect above and beyond that ordinarily associated with such uses.’ ” The circuit court also found that there were insufficient findings of facts to establish the uniqueness of appellants' property, or that there was a practical difficulty in strictly complying with the requirements for a storage yard exception. In the end, the circuit court reversed the Zoning Board's decision and remanded for further proceedings.

On March 18, 2009, the Zoning Board held a second public hearing to address appellants' request for a special exception and variance. At the hearing, appellants attempted to clarify that the proposed use would not have adverse effects above and beyond those inherently associated with storing contractor's equipment. Appellants also explained that the configuration of their property was unique because it was triangular in shape, had a steep drop-off in the rear, was very shallow, and that no other property in the area was divided by Licking Creek. Appellants then asserted that it would be a “big hassle” to park the equipment off-site because the nearest storage area was thirty miles away.³ Appellees countered that appellants' property was not unique simply because of its size, and that their property was too small to store the number of vehicles appellants desired.

On April 16, 2009, the Zoning Board issued an opinion and rendered the following findings of facts:

1. The Board adopts those Findings of Facts set forth in its original Opinion dated April 13, 2007.

2. The property is unique in its shape and size from other properties in the neighborhood; it is smaller than most, if not all other, properties in the area, and is uniquely shaped due to its severance by Licking Creek Road and the shallowness of the lot.

3. This request for storage of equipment on the property is primarily one of convenience; Appellants have a snow removal contract with the State which requires them to be mobilized and ready to plow with only one hour's notice.

4. No truck repair or washing is, or will be done, on the...