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Clarksville Residents Against Mortuary Defense Fund, Inc. v. Donaldson Properties

Court of Appeals of Maryland

June 22, 2017


          Argued: March 6, 2017

         Circuit Court for Howard County Case No. 13-C-13-095806

          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.


         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.
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[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 satisfy the conditional use requirements of the [HCZR] are presumed to promote the general welfare of the community and the RR-DEO zoning district. Evidence was produced before the Board indicating that legislation had been proposed to remove the funeral home and mortuary conditional use from the RR-DEO zoning district. [The Board] and DPZ, however, recommended against such removal, and the legislation was not enacted. These actions by agencies charged with planning responsibilities for the County confirm that funeral homes and mortuaries are important in the County's RR-DEO zoning district and are consistent with the policy goals of the General Plan.
* * *
2. Adverse Effect: Section 131.B.2 of the [HCZR] provides, in pertinent part, the Board shall have the power to permit a conditional use provided that the proposed location will not have adverse effects on vicinal properties above and beyond those ordinarily associated with such uses. In evaluating the Plan under this standard, the Board shall consider the following four adverse effect criteria: (a) physical conditions; (b) structures, walls, fences, and landscaping; (c) parking areas, loading areas, driveways, and refuse areas; and (d) safe access.
When assessing a proposed conditional use under these criteria, the Board must begin with the realization that virtually every human activity has the potential for adverse impact. Zoning recognizes this fact and, when concerned with conditional uses, accepts some level of such impact in light of the beneficial purposes the zoning body has determined to be inherent in the use. Thus, the question before the Board is not whether the proposed use would have adverse effects in an RR-DEO zoning district. The proper question is whether those inherent adverse effects are greater at the proposed Property than they would be generally elsewhere within the RR-DEO zoning district. Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981); Mossburg v. Montgomery County, 107 Md.App. 1, 666 A.2d 1253 (1995).
* * *
Much of the testimony presented by the [Petitioners] amounted only to unsupported opinions and conclusions. Unsupported conclusions or fears of witnesses to the effect that a proposed use of property will or will not result in harm amount to nothing more than vague and general expressions of opinion that are lacking in probative value. Anderson v. Sawyer, 23 Md.App. 612, 329 A.2d 716 (1974).
* * *
[T]he [Revised] Plan complies with all legally imposed stream buffer requirements. [Petitioners] presented no credible testimony that the stream buffer would be increased, or that adverse impacts would occur to the stream irrespective of the Petitioner's adherence to the legally imposed buffer. [Donaldson's] witnesses, on the other hand, testified that the proposed use as shown on the Plan would not result in adverse impacts on the stream.
The Board further concludes that the cultural sensitivities testified to by various [Petitioners] is not a "physical condition" to be considered pursuant to [HCZR] Section 131.B.2.a. Even if it were a relevant consideration, the Board considered the totality of the evidence presented in this case and is not persuaded that the proposed use will create an adverse cultural impact on vicinal properties or that such impact will be above and beyond those ordinarily associated with funeral home and mortuary uses in the RR-DEO zoning district.
* * *

         On August 2, 2013, Petitioners filed a Petition for Judicial Review in the Circuit Court for Howard County. On March 14, 2014, the circuit court held a hearing, and on September 15, 2014, issued an order affirming the Board's decision.

         On October 15, 2014, Petitioners filed a timely appeal to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals affirmed the judgment of the circuit court. See Clarksville Residents Against Mortuary Defense Fund, Inc., et al. v. Donaldson Properties, et al., No. 1762, Sept. Term 2014 (filed July 20, 2016).

         Additional facts shall be provided, infra, to the extent they prove relevant in addressing the issues presented.


         When reviewing the final decision of an administrative agency, "we look 'through the circuit court's and intermediate appellate court's decisions, although applying the same standards of review, and evaluate[ ] the decision of the agency.'" People's Counsel for Balt. County v. Loyola Coll. of Md., 406 Md. 54, 66, 956 A.2d 166, 173 (2008) (quoting People's Counsel for Balt. County v. Surina, 400 Md. 662, 681, 929 A.2d 899, 910 (2007)). Judicial review of an administrative agency decision 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 on an erroneous conclusion of law." Bd. of Physician Quality Assur. v. Banks, 354 Md. 59, 67-68, 729 A.2d 376, 380 (1999) (quoting United Parcel v. People's Counsel, 336 Md. 569, 577, 650 A.2d 226, 230 (1994)). The "substantial evidence" test requires a reviewing court to decide "whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." Banks, 354 Md. at 68, 729 A.2d at 380 (quoting Bulluck v. Pelham Woods Apts., 283 Md. 505, 512, 390 A.2d 1119, 1123 (1978)). "In applying the substantial evidence test, we have emphasized that a 'court should [not] substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken.'" Anderson v. Dep't of Pub. Safety & Corr. Servs., 330 Md. 187, 213, 623 A.2d 198, 210 (1993) (quoting Bullock, 283 Md. at 513, 390 A.2d at 1124)). We also review "the agency's decision in the light most favorable to the agency, since decisions of administrative agencies are prima facie correct, … and carry with them the presumption of validity." Anderson, 330 Md. at 213, 623 A.2d at 210. No deference is owed, however, when the local zoning board's decisions are based on an error of law. See Loyola Coll. of Md., 406 Md. at 68, 956 A.2d at 174 (quoting Belvoir Farms Homeowners Ass'n, Inc. v. North, 355 Md. 259, 267-68, 734 A.2d 227, 232 (1999)).


         I. The Board Was Not Required to Consider the Standards Set Forth In HCZR §130.C in Approving Donaldson's Revised Plan

         The first question presented for our review asks whether the Board was "required to make the considerations set forth in [HCZR] 130.C[.]" HCZR §100.A states that the zoning regulations "are being enacted for the purpose of preserving and promoting the health, safety, and welfare of the community." Section 100.A also notes that

It is the intention of [the Board] to guide the future growth and development of the County in accordance with the General Plan which represents the most beneficial and convenient relationships among the residential, non-residential and public areas within the County considering the suitability of each area for such uses, as indicated by existing conditions, trends in the population and modes of living, and future requirements; and considering such conditions, trends and requirements, both within the County and in relationship to areas outside thereof.

HCZR §100.A. Pursuant to HCZR §130.B, "[t]he Hearing Authority[12] shall have the following powers related to zoning: … [t]o approve conditional uses as to location as provided in Section 131." HCZR §130.B.5. Additionally, HCZR §105, which governs the "RR (Rural Residential) District", also lists the various conditional uses authorized in that zoning district, including funeral homes, and states that those conditional uses are "subject to the detailed requirements for conditional uses given in Section 131." HCZR §105.G.

         HCZR §130.C sets forth standards the Hearing Authority must follow in considering and deciding certain matters within the scope of the HCZR. HCZR §130.C states that

Where in these regulations certain powers are conferred upon the Hearing Authority, or the Hearing Authority is called upon to decide certain issues, such Hearing Authority shall examine the specific property involved and the immediate neighborhood. The application shall not be approved where the Hearing Authority finds that the proposed structure, addition, extension of structure or use, use or change of use, would menace the public health, safety, security, or general welfare, or would result in dangerous traffic conditions, or would jeopardize the lives of property of people living in the neighborhood. In deciding such matters, the Hearing Authority shall give consideration, among other things, to the following:
1. The number of people residing, working or studying in the immediate areas.
2. Traffic conditions including facilities for pedestrians, such as sidewalks and safety zones and parking facilities and the access of cars to highways.
3. The orderly growth of the community.
4. The reasonable needs of the entire community and particular neighborhoods.
5. The legislative intent of these regulations as provided in Section 100.A.
6. The effect of odors, dust, gas, smoke, fumes, vibration, glare and noise upon the use of surrounding properties.
7. Facilities for sewers, water supply, solid waste collection and disposal and the ability of the County to ...

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