AFSHIN ATTAR, et al.
DMS TOLLGATE, LLC, et al.
Argued: October 11, 2016
Court for Baltimore County, Maryland Case No. 03-C-14007926
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
October 2012, William and Mary Groff, the property owners,
and Respondent, DMS Tollgate, LLC (collectively
"Applicants") applied for a Petition for a Special
Exception of the Baltimore County Zoning Regulations
("BCZR"), to operate a fuel service station with a
convenience store containing a sales area larger than 1, 500
square feet. The petition requested that Tollgate be
permitted to construct a Wawa on an 8.51 acre property known
as 10609 Reisterstown Road ("the property"). The
property is zoned as BL-AS, or Business Local with Automotive
Services. The property is bordered by Reisterstown
Road, Groff Lane, and the Gwynns Falls stream.
Office of Administrative Hearings ("OAH") conducted
a hearing in which the Applicants appeared in support of the
grant of the Special Exception. Petitioners in this Court,
Afshin Attar, Ashkan Rahmanattar, Malik Imran, and Perry S.
Crowl (collectively "Protestants") attended in
opposition. Witnesses for the Protestants testified at the
hearing as to how the proposed Wawa would cause traffic
congestion, a harmful environmental impact, and a detrimental
effect upon the economic stability of the neighborhood. In
its Opinion and Order dated October 31, 2013, OAH found that
"these are impacts that are inherent in the operation of
a gasoline/convenience store[, ]" and granted the
Petition with conditions. 
Protestants appealed to the Board of Appeals for Baltimore
County ("the Board"), which approved the conditions
for the Special Exception after a de novo
evidentiary hearing. The Board noted that Tollgate
decided to proceed with the request for a Special Exception
before receiving County approval for the proposed road
relocation and approval for the flood plain relocation from
[the Federal Emergency Management Agency]. Under the BCZR
this approach is not prohibited and therefore the grant of a
Special Exception has no bearing on the approval o[r]
non-approval of the foregoing matters.
Board granted the Special Exception "with the same
conditions as those imposed by the Administrative Law Judge
Protestants appealed for judicial review in the Circuit Court
for Baltimore County. The circuit court found that the
Board's findings: "were both reasonable and
supported by substantial evidence in the record" and
"were premised upon the proper application and
conclusions of law[.]" The circuit court accordingly
affirmed the decision of the Board on December 19, 2014.
Thereafter, the Protestants appealed to the Court of Special
Appeals. In an unreported opinion dated December 28, 2015,
the Court of Special Appeals affirmed the decision of the
circuit court. We granted the Petition for Writ of Certiorari
filed by the Protestants. 447 Md. 297, 135 A.3d 416 (2016).
Protestants present two questions for our review:
1. Whether Maryland's special exception jurisprudence
requires the Baltimore County Board of Appeals to define the
boundaries of the neighborhood of the proposed special
exception before approving that special exception and, if so,
whether the Board of Appeals' opinion satisfied
Maryland's minimum requirements for articulating the
facts found regarding the neighborhood's boundaries.
2. Whether the Court of Special Appeals erred when it held
that the Applicant met its burden of proof, as articulated by
the concurring opinion in People's Counsel for
Baltimore County, et al. v. Loyola College in Maryland,
406 Md. 54');">406 Md. 54, [956 A.2d 166] (2008).
conclude that the Board's description of the neighborhood
impacted by the special exception was precise enough to
enable a party or appellate court to comprehend the area that
the Board considered.
we conclude that while an applicant for a special exception
bears both the burden of persuasion and production, the
coexistent presumption in favor of an applicant is not a
mutually exclusive evidentiary burden. The Board correctly
determined that the Protestants failed to sufficiently rebut
the presumption of validity of a special exception.
Accordingly, we affirm the judgment of the Court of Special
appellate court reviews the decision of an administrative
agency "under the same statutory standards as the
[c]ircuit [c]ourt, " meaning "we reevaluate the
decision of the agency, not the decision of the lower
court." Gigeous v. Eastern Correctional Inst.,
363 Md. 481, 495-96, 769 A.2d 912, 921 (2001) (citation and
footnote omitted). In reviewing the decision of an agency,
our role "is limited to determining if there is
substantial evidence in the record as a whole to support the
agency's findings and conclusions, and to determine if
the administrative decision is premised upon an erroneous
conclusion of law." United Parcel Serv., Inc. v.
People's Counsel, 336 Md. 569, 577, 650 A.2d 226,
230 (1994). Substantial evidence is "such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion." Md. State Police v. Warwick
Supply & Equip. Co., Inc., 330 Md. 474, 494, 624
A.2d 1238, 1248 (1993) (citation omitted). Further, we may
not substitute our judgment for that of the Board of Appeals
unless the agency's conclusions were not supported by
substantial evidence or were premised on an error of law.
Stansbury v. Jones, 372 Md. 172, 182, 184, 812 A.2d
312, 318, 319 (2002).
The Board's Opinion Referenced Ample Evidence of Record
Which Sufficiently Enables Us to Comprehend the Area the
Board Considered. Thus, the Board Sufficiently Defined the
Protestants argue that the Board erred when it failed to
define the boundaries of the Wawa's neighborhood. In
support, Protestants urge that an applicant for a special
exception must establish the boundaries of the neighborhood,
and the zoning tribunal's written decision must satisfy
Maryland law's minimum requirements for articulating the
facts found regarding the neighborhood's boundaries.
BCZR § 502.1(A), a special exception use is prohibited
if it is "detrimental to the health, safety or general
welfare of the locality involved." In Schultz v.
Pritts, we held that an applicant for a special
exception "does not have the burden of establishing
affirmatively that his proposed use would be a benefit to the
community. If he shows to the satisfaction of the Board that
the proposed use would be conducted without real
detriment to the neighborhood . . . he has met his
burden." 291 Md. 1, 11, 432 A.2d 1319, 1325 (1981).
further held in Montgomery County v. Butler,
"[t]he phrase 'detriment to the neighborhood'
implies necessarily that the Board's task is to determine
if there is or likely will be a detriment to the
surrounding properties." 417 Md. 271, 305, 9 A.3d
824, 844 (2010) (emphasis added). Thus, we held that, within
the context of a special exception, the
"neighborhood" means "the surrounding
properties." Id. See also Montgomery v. Bd.
of Cty. Comm'rs for Prince George's Cty., 263
Md. 1, 5, 280 A.2d 901, 903 (1971) (holding that, in the
rezoning context, "[t]he concept of a neighborhood is a
flexible one, and will vary according to the geographical
location involved[.]"); Woodlawn Area Citizens
Ass'n v. Bd. of Cty. Comm'rs for Prince George's
Cty, 241 Md. 187, 198, 216 A.2d 149, 156 (1966) (holding
that, in the rezoning context, "what constitutes a
neighborhood . . . is not and should not be precisely and
Alviani v. Dixon, we considered whether the Anne
Arundel County Board of Appeals erred when it granted
variances to enable applicants to satisfy criteria
for a special exception, regarding the construction of an
automotive service station. 365 Md. 95, 775 A.2d 1234 (2001).
The protestants in Alviani specifically
"allege[d] that the Board failed to properly define the
relevant neighborhood that was considered when the Board
found that the variances would not affect the
neighborhood." Id. at 117, 775 A.2d at 1247. We
disagreed and found, "after examining the record, that
the Board established the relevant neighborhood[, ]" as
the Board's description was "precise enough to
enable a party or an appellate court to comprehend the area
that the Board considered when deciding to grant the
variances." Id. at 117, 119, 775 A.2d at 1247,
v. People's Counsel for Balt. Cty. involved a
petition for a special exception for an "airport"
zoning special exception on a farm zoned for agriculture,
located within a National Historic District in Baltimore
County. 147 Md.App. 209, 216-17, 807 A.2d 1176, 1180 (2002),
disapproved of on other grounds by People's Counsel
for Balt. Cty. v. Loyola Coll. in Md., 406 Md.
54, 956 A.2d 166 (2008). In Lucas, the Honorable
James A. Kenney, III employed the standard outlined in
Alviani, and found that the Board's definition
of the relevant area was insufficient, as it relied on only
amorphous descriptions of the area to be considered:
The Board relied on testimony regarding the adverse effect of
the airport on the "land around Helmore Farm, " on
"the horse industry in the area, " on the
"historical district, " and on "Greenspring
Valley." The Board's definition of the relevant area
does not provide the precision required for a party or an
appellate court to comprehend the adversely affected area and
to determine if the neighborhood ...