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Hunt Valley Baptist Church, Inc. v. Baltimore County

United States District Court, D. Maryland

October 17, 2017




         Plaintiff Hunt Valley Baptist Church ("HVBC" or the "Church") claims that it has been subjected to religious discrimination in connection with its zoning application for a "special exception" to construct a place of worship and related facilities on property located in Hunt Valley, Maryland. After the Board of Appeals of Baltimore County (the "Board") denied the Special Exception application, the Church filed suit in this Court against the Board and Baltimore County (the "County"), defendants.

         The Complaint (ECF 1), which is 53 pages in length, contains eight counts, as follows:[1] violations of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq. (Counts I, II, III); violation of the Free Exercise Clause of the First Amendment to the Constitution (Count IV); violation of the Equal Protection Clause (Count VI) and the Due Process Clause (Count VII) of the Fourteenth Amendment to the Constitution; violation of Article 36 of the Maryland Declaration of Rights (Count VIII); and judicial review of the "Majority Opinion and Order of the Board of Appeals for Baltimore County, dated February 22, 2017, for the matter of Hunt Valley Baptist Church, Inc. Petition for Special Hearing and Special Exception . . . ." (Count IX). The federal constitutional claims are lodged pursuant to 42 U.S.C. § 1983.

         The suit contains multiple prayers for relief (ECF 1 at 51-52), including:

1) A Declaration that the County‘s land use ordinances are unconstitutional on their face and as applied, because they violate the Free Exercise Cause of the First Amendment, the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment, and RLUIPA. ECF 1 at 51, ¶ 1.
2) A Declaration that the denial of the Church‘s land use application is unconstitutional. Id. ¶ 2.
3) An order reversing the Board and approving the Church‘s application. Id. at 52, ¶ 3.
4) An order directing the Board to reverse the denial of the special exception and to grant it. Id. ¶ 4.
5) An order enjoining defendant from violating plaintiff‘s rights. Id. ¶ 5.
6) Compensatory damages in an unspecified sum. Id. ¶ 6.; and
7) Attorneys‘ fees. Id. ¶ 7.

         Defendants have moved to dismiss for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment, pursuant to Rule 56. ECF 8. The motion is supported by a memorandum of law (ECF 8-1) (collectively, "Motion") and the administrative record of the zoning case. ECF 8-2. Plaintiff opposes the Motion (ECF 11, "Opposition"), with exhibits. ECF 11-1 thorough ECF 11-3. Defendants have replied. ECF 13 ("Reply").

         Pursuant to Fed.R.Civ.P. 21, defendants have also moved "to drop" the Board as a defendant with respect to Counts IV, VI, VII, VIII, and IX (ECF 9), supported by a memorandum of law. ECF 9-1 (collectively, "Motion to Drop"). Plaintiff opposes the Motion to Drop. ECF 10. Defendants did not reply, and the time to do so has expired. See Local Rule 105.2(a).

         The Court held a motions hearing on October 6, 2017, at which arguments were presented by counsel for the parties. For the reasons that follow, I shall grant the motions in part and deny them in part.

         I. Factual and Procedural Background[2]


         Hunt Valley Baptist Church is an independent Baptist church that was established in 2004. ECF 1, ¶ 10. The Church is one of two independent Baptist churches located in Northern Baltimore County (id. ¶ 12), and most of its congregants reside in Baltimore County. Id. ¶ 11. The Church was "founded for the purpose of establishing and maintaining religious worship, evangelizing to the unsaved by proclaiming the Gospel of the Lord Jesus Christ, the educating of believers in a manner consistent with the requirements of Holy Scripture, establishing and maintaining a ministry to help reform those with harmful addictions, and maintaining missionary activities . . . ." Id. ¶ 14. Further, the Church "believes that it has a religious obligation to evangelize to nonbelievers so that they may be saved, which is encompassed in its mission to support 'a great commission to proclaim the Gospel to all nations‘ including its local community and supporting missionaries abroad." ECF 1, ¶ 16.

         Initially, HVBC held services in a storefront located in a commercial shopping center in Timonium, Maryland. Id. ¶ 67. In 2008, the Church "began looking for a more permanent home." Id. ¶ 68. The Senior Pastor knew of the site located at 821 Shawan Road in Cockeysville, Maryland (the "Property"). Id. ¶ 69. However, the Property was not for sale in 2008. Id. ¶ 71.

         In 2009, the Church moved to its current location at 1800 Worthington Heights Parkway in Cockeysville, Maryland (id. ¶¶ 18, 76), which is about three miles from the Property. Id. ¶ 77. According to the Church, its present location "does not permit it to adequately engage in its religious exercise." Id. ¶ 19. For example, to access the Church, congregants must drive for two miles along "a dark, unlit and winding local road" (id. ¶ 21), which is "dangerous at night." Id. ¶ 22. Furthermore, the current location is difficult to find (id. ¶ 24), as the building is only visible to people in the immediate area. Id. ¶ 23. Moreover, the Church cannot "proclaim anything to those who cannot find it." Id. ¶ 32.

         HVBC also insists that its current facilities are inadequate because the building can no longer accommodate the size of the congregation and visitors. Id. ¶ 20. It explains that the current facility has seating for 350 people (id. ¶ 40), but up to 500 individuals attempt to attend religious services. Id. ¶ 41. And, the Church has only 84 parking spots, which is inadequate to meet its needs (id. ¶¶ 42-43), particularly during days of high attendance, such as Christmas and for Church events. Id. ¶ 52. The Church also hosts approximately 100 children for one week each summer for "Vacation Bible School." Id. ¶¶ 60-61. The Vacation Bible School uses the Church‘s gymnasium and all of its existing classroom space (id. ¶ 61) but, because of limitations on space, the Church has to turn away participants. Id. ¶ 62.

         In 2012, the owner of the Property agreed to sell his land to the Church for $900, 000. ECF 1 ¶ 83; ECF 8-1 at 12. The Property is 16.6 acres in size and is improved with two single-family dwellings. ECF 1, ¶ 86.[3] Baltimore County had approved a subdivision application for the Property in 2012. ECF 1, ¶¶ 110-113; see also ECF 8-1 at 11-12; ECF 13 at 12.

         The Property is bordered to the north by Shawan Road, a "busy" two lane road, which carries approximately 21, 161 cars per day. ECF 1, ¶¶ 89, 90. Interstate 83 is about a quarter-mile to the east of the Property (id.¶ 89; ECF 11 at 5) and is also close to the Hunt Valley Town Center, Hunt Valley Industrial Park, and two hotels. ECF 1, ¶¶ 95-98. Located immediately north of the Property is the Hayfields Country Club ("Hayfields"), which has an 18-hole golf course, a clubhouse, banquet facilities and other amenities, as well as residential homes, located on 475 acres. Id. ¶ 99. Immediately to the West of the Property is the St. Mary Antiochian Orthodox Church ("St. Mary‘s"), a 3.96-acre property that contains a 16, 000-square foot house of worship with 79 parking spaces. Id. ¶ 105. Also nearby are the University of Maryland Extension (id. ¶ 104), the Catholic Community of St. Francis Xavier (id), the Oregon Ridge Dinner Theatre (id. ¶ 106), and Oregon Ridge Park, with a paved lot and an outdoor pavilion for festivals and events. Id. ¶ 107.

         Notably, the Property is situated in a watershed resource conservation area and is zoned R.C.4. Id. ¶ 87.[4] However, "[u]nlike other RC-4 zoned areas of Baltimore County the immediate area around the [Property is not rural in nature. There are a significant number of commercial, institutional and governmental use properties surrounding the Subject Property." Id. And, unlike many intersections in R.C.4. zoned areas, an intersection close to the Property "was recently improved and enlarged to accommodate the increasing volume of traffic (id. ¶ 91), and the intersection is "signalized, providing further traffic control and safety." Id. ¶ 92.

         According to the Church, "God led them to the Subject Property" and "the Church is meant to be located there." ECF 1, ¶ 84. The Church‘s Senior Pastor regards the Property as "well situated for the Church‘s use, since it was on a major road, was large enough to accommodate the Church‘s ongoing growth and need for expanded facilities, was next door to another church, and was in close proximity to Interstate 83 and other existing development." Id. ¶ 70. In addition, the Church claims that the location of the Property is optimal because "it is visible to the community and would permit the Church to evangelize as it believes that it must, is central to where its members live and can accommodate their worship needs, and is of sufficient size to allow for the construction of their house of worship and related parking capacity." Id. ¶ 85. And, most of the Church‘s congregants pass the Property on their way to the Church‘s current location. Id. ¶ 80.


         Maryland "delegates to local political subdivisions significant authority to regulate land use.[ ]" County Council of Prince George's Co. v. Zimmer Dev. Co., 444 Md. 490, 503, 120 A.3d 677, 685 (2015). And, local governments "are limited to the powers granted to them by the State." Id. at 504, 120 A.3d at 685.

         Baltimore County has enacted various planning and zoning laws, pursuant to its status as a charter home rule county. Security Mgmt. Corp. v. Baltimore County, Md., 104 Md.App. 234, 236, 655 A.2d 1326, 1327 (1995) (Wilner, C.J.); see Balt. Cnty. Charter ("County Charter"), Art. I; Md. Const. Art. XI-A; Article 25A of the Annotated Code of Maryland. Every four years, the County conducts a comprehensive review of its zoning plan. See Balt. Cnty. Code ("County Code"), § 32-4-261. In addition to the quadrennial rezoning process, the County Code allows individual landowners to petition the Board for reclassification of their properties. Security Mgmt, 104 Md.App. at 237, 655 A.2d at 1327; see County Code, § 32-3-503. The Board is authorized by Md. Code (2013 Repl. Vol., 2016 Supp.), § 10-305 of the Local Government Article ("L.G.") and County Charter, Art. VI; see also Md. Code (2012), § 4-301 et seq. of the Land Use Article ("L.U.").[5]

         In 1976, the County Council established four resource conservation zones. Security Mgmt, 104 Md.App. at 237, 655 A.2d at 1327. These zones were created because the County Council "found" that

development in the rural areas of the county had been taking place at an increasing rate and without the framework of a land use plan or other planning components; that, as a result, the development "has formed very undesirable land use patterns, " that a significant amount of "urban sprawl" was occurring along highways in the rural areas as tracts immediately fronting along the highways were "lotted off;" and that such development was detrimental in a number of respects, including the loss of "critical watershed areas."

Id; see also Baltimore County Zoning Regulations ("BCZR"), §1A00.1.

         The BCZR now lists nine resource conservation zones. See BCZR §§ 1A01-1A09. Section 1A00.2 of the BCZR provides that the purpose of the resource conservation zones is to:

A. Discourage present land use patterns of development and to create a framework for planned or orderly development;
B. Provide sufficient and adequate areas for rural-suburb an and related development in selected and suitable areas;
C. Protect both natural and man-made resources from compromising effects of specific forms and densities of development;
D. Protect areas desirable for more intensive future development by regulating undesirable forms of development within these areas until such time as intensive development commences.
E. Help achieve the goals of the Chesapeake Bay Critical Area Protection Law[] by enacting land use policies to control development within the Critical Area by conserving the land and water resource base for agriculture, forestry and other natural resource uses; minimizing adverse effects on water quality; and conserving fish, wildlife and plant habitat.

         As indicated, the Property is located in the R.C.4. zone (ECF 1, ¶ 125), which is the "Watershed Protection" zone. Security Mgmt., 104 Md.App. at 237, 655 A.2d at 1327. The County Council‘s findings and legislative policy for the R.C.4. zone are set forth in BCZR § 1A03.1:

The County Council finds that major, high-quality sources of water supply for the entire Baltimore Metropolitan Area and for other neighboring jurisdictions lie within Baltimore County and that continuing development in the critical watersheds of those water supply sources is causing increased pollution and sedimentation in the impoundments, resulting in increasing water treatment costs and decreasing water storage capacity. The R.C.4 zoning classification and its regulations are established to provide for the protection of the water supplies of metropolitan Baltimore and neighboring jurisdictions by preventing contamination through unsuitable types or levels of development in their watersheds.

         Notably, in Security Mgmt., 104 Md.App. at 241, 655 A.2d at 1329, the Maryland Court of Special Appeals rejected "as absurd the contention that the creation of an RC-4 zone . . . and the inclusion within it of property in an important metropolitan watershed do not substantially advance a legitimate State interest." The court added, id. at 242, 655 A.2d at 1329: "Whether, to achieve that purpose and protect that interest, particular land in a watershed should remain free from intensive development is quintessentially a legislative judgment call."

         In enacting the BCZR, the County Council made a legislative determination that certain types of uses are permitted as of right in an R.C.4. zone. Under BCZR § 1A03.3(A) (citations omitted), they are as follows:

1. Dwellings, one-family detached [with a minimum lot size generally ranging from three to six acres per house[6].
2. Farms and limited-acreage wholesale flower farms (Section 404).
3. Open space, common.
4. Public schools.
5. Telephone, telegraph, electrical-power or other similar lines or cables, all underground; underground gas, water or sewer mains or storm drains; other underground conduits, except underground interstate and intercontinental pipelines.
6. Trailers or mobile homes, provided that any trailer or mobile home allowed under this provision must be used or stored in accordance with the provisions of Subsection B, C, E or F of Section 415.1 and Section 415.2.A.1, as applicable.
7. Antennas used by CATV systems operated by companies franchised under Article 25 of the Baltimore County Code, if situated on property owned by the county, state or federal government or by a governmental agency.
8. Transit facilities.
9. Accessory uses or structures, including, but not limited to the following:
a. Excavations, uncontrolled.
b. Farmer's roadside stand and produce stand, subject to the provisions of Section 404.4.
c. Home occupations.
d. Offices or studios of physicians, dentists, lawyers, architects, engineers, artists, musicians or other professional persons, provided that any such office or studio is established within the same building as that serving as the professional person's primary residence at the time of application; does not occupy more than 25% of the total floor area of that residence; and does not involve the employment of more than one nonresident employee.
e. Parking spaces, including recreational vehicles, subject to the provisions of Section 415A.
f. Swimming pools, tennis courts, garages, utility sheds, satellite receiving dishes (subject to Section 429) or other accessory structures or uses (subject to the height and area provisions for buildings as set forth in Section 400).
g. Signs, subject to Section 450.
10. Commercial film production, subject to Section 435.
11. Farmstead creamery, subject to the provisions of Section 404.13.

         In addition, the BCZR provides that other types of uses in the zone are permitted by special exception. BCZR § 1A03.3(B). These conditional uses include, among other things, churches; community buildings; swimming pools and other uses of a civic, social, recreational or educational nature; golf courses, country clubs, and other outdoor recreation clubs; and certain professional offices. Id. See L.U. § 1-101(p) (defining "special exception" and stating, inter alia, that it "means a grant of a specific use that: 1) would not be appropriate generally or without restriction. . . .").

         The case of Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981), is the seminal case in Maryland concerning special exceptions, sometimes called conditional uses. There, the Maryland Court of Appeals explained, id. at 11, 432 A.2d at 1325 (emphasis added):

The special exception use is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception use is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption.

Accord Attar v. DMS Tollgate, LLC, 451 Md. 272, 285, 152 A.3d 765, 772 (2017) (stating that a special exception is "presumed to be in the interest of the general welfare, and therefore a special exception enjoys a presumption of validity"); Hayfields, Inc. v. Valleys Planning Council, Inc., 122 Md.App. 616, 638, 716 A.2d 311, 322 (1998) ("Within any given zoning classification, the BCZR prescribes two types of uses: certain uses are permitted as of right and others are conditionally permissible."); see also 11126 Baltimore Blvd. v. Prince George's Cty., Md, 886 F.2d 1415, 1428 (4th Cir. 1989), rev'd on other grounds, 496 U.S. 901 (1990).

         Of relevance here, the Maryland Court of Appeals explained in People's Council for Baltimore County v. Loyola College in Maryland, 406 Md. 54, 71, 956 A.2d 166, 176 (2008): "The special exception adds flexibility to a comprehensive legislative zoning scheme by serving as a 'middle ground‘ between permitted uses and prohibited uses in a particular zone . . . . A special exception . . . is merely deemed prima facie compatible in a given zone [and] requires a case-by-case evaluation . . . according to legislatively-defined standards." The presumption in favor of a conditional use derives from the legislative policy determination that such a use is permissible so long as certain conditions are satisfied. Eastern Outdoor Advert. Co. v. Mayor & City Council of Baltimore, 128 Md.App. 494, 525, 739 A.2d 854, 870 (1999). On the other hand, if a request for a special exception will create an adverse effect upon the neighboring properties, the request must be denied. See, e.g., Halle Companies v. Crofton Civic Ass'n, 339 Md. 131, 141, 661 A.2d 682, 686 (1995); Board of County Comm'rs. v. Holbrook, 314 Md. 210, 217, 550 A.2d 664, 668 (1988); Moseman v. County Council, 99 Md.App. 258, 264, 636 A.2d 499, 502, cert. denied, 335 Md. 229, 643 A.2d 383 (1994).

         A special exception is in contrast to a variance. See L.U. §§ 1-101(s); 4-206. A variance is "'an authorization for [that] . . . which is prohibited by a zoning ordinance . . . .‘" Cromwell v. Ward, 102 Md.App. 691, 699, 651 A.2d 424 (1995) (citation omitted). Generally, "the specific need for the variance 'must be substantial and urgent and not merely for the convenience of the applicant[.]‘" Chesley v. City of Annapolis, 176 Md.App. 413, 432, 933 A.2d 475 (2007) (quoting Belvoir Farms Homeowners Ass'n, Inc. v. North, 355 Md. 259, 276, 734 A.2d 227 (1999)).

         As the Fourth Circuit recently said, "zoning 'is an inherently discretionary system.‘" Siena Corp. v. Mayor and City Council of Rockville, Md, ___ F.3d ___, 2017 WL 4557505, at *4 (4th Cir. Oct. 13, 2017) (citing Gardner v. Baltimore Mayor & City Council, 969 F.2d 63, 67 (4th Cir. 1992)). In the context of the issuance of a building permit, the Court observed that the matter is "not perfunctory, " and an application must "'fully comply‘" with applicable ordinances and regulations. Siena Corp., 2017 WL 4557505, at *4 (citing Evans v. Burruss, 401 Md. 586, 605, 933 A.2d 872, 883 (2007)).

         So too with a special exception. Despite the presumption in favor of a special exception, "'both the burden of production and the burden of persuasion on the issue of whether the special exception should be granted []‘ fall on the applicant . . . ." Attar, 451 Md. at 286, 152 A.3d at 774 (quoting People's Counsel for Baltimore Cnty. v. Loyola Coll. in Maryland, 406 Md. 54, 109, 956 A.2d 166, 199 (2008)) (alteration in Attar). The applicant "must persuade the Board 'by a preponderance of the evidence that the special exception will conform to all applicable requirements.‘" Attar, 451 Md. at 286, 152 A.3d at 773.

         In Baltimore County, a petition for special exception is governed by BCZR §§ 500.5 and 502. Section 500.5 provides that a petition for a special exception must be submitted to the Zoning Commissioner, who must "hold a public hearing thereon after giving public notice of such hearing as above provided with respect to petitions for reclassification. After such a hearing [the Zoning Commissioner] shall pass his order granting or refusing such special exception." Id. Moreover, Section 502.1 specifies particular conditions that must be satisfied to obtain a special exception, as follows:

Before any special exception may be granted, it must appear that the use for which the special exception is requested will not:
A. Be detrimental to the health, safety or general welfare of the locality involved;
B. Tend to create congestion in roads, streets or alleys therein;
C. Create a potential hazard from fire, panic or other danger;
D. Tend to overcrowd land and cause undue concentration of population;
E. Interfere with adequate provisions for schools, parks, water, sewerage, transportation or other public requirements, conveniences or improvements;
F. Interfere with adequate light and air;
G. Be inconsistent with the purposes of the property's zoning classification nor in any other way inconsistent with the spirit and intent of these Zoning Regulations;
H. Be inconsistent with the impermeable surface and vegetative retention provisions of these Zoning Regulations; nor
I. Be detrimental to the environmental and natural resources of the site and vicinity including forests, streams, wetlands, aquifers and floodplains in an R.C.2, R.C.4, R.C.5 or R.C.7 Zone.

         Notably, the Zoning Commissioner or the Board, on appeal, may impose conditions protecting surrounding properties. Section 502.2 of the BCZR states:

In granting any special exception, the Zoning Commissioner or the Board of Appeals, upon appeal, shall impose such conditions, restrictions or regulations as may be deemed necessary or advisable for the protection of surrounding and neighboring properties. The owners, lessees or tenants of the property for which a special exception is granted, if required by the Zoning Commissioner, or Board of Appeals, upon appeal, shall enter into an agreement in writing with said Zoning Commissioner and/or the County Commissioners of Baltimore County, [] stipulating the conditions, restrictions or regulations governing such special exception, the same to be recorded among the land records of Baltimore County. The cost of such agreement and the cost of recording thereof shall be borne by the party requesting such special exception. When so recorded, said agreement shall govern the exercise of the special exception as granted, as to such property, by any person, firm or corporation, regardless of subsequent sale, lease, assignment or other transfer.

         An appeal from the decision of the Zoning Commissioner is heard by the Board. County Code § 32-3-401(a) ("A person aggrieved or feeling aggrieved by a decision of the Zoning Commissioner . . . may appeal the decision or order to the Board of Appeals."). The Board consists of seven members who are appointed by the County Council. County Charter § 601. Under L.G. § 10-305(b)(1), the Board has "original jurisdiction, " inter alia, to consider a zoning "variation or exception . . . ."

         Under the County Charter, the Board must provide notice and the opportunity for a hearing prior to making a zoning decision. County Charter § 603. And, the Board‘s hearings are held de novo. Id. Thereafter, a party who is dissatisfied with the Board‘s decision may appeal to the Circuit Court for Baltimore County, which has authority "to affirm the decision of the board, or, if such decision is not in accordance with law, to modify or reverse such decision, with or without remanding the case for rehearing, as justice may require." Id. § 604; L.G. § 10-305(d); see L.U. § 4-401. And, a litigant may seek further appellate review in the Maryland Court of Special Appeals and, thereafter, certiorari to the Maryland Court of Appeals. See Md. Code (2013 Repl. Vol., 2016 Supp.), Courts and Judicial Proceedings Article ("C.J."), § 12-308 (Court of Special Appeals); C.J. § 12-201 (Court of Appeals).


         On or about March 18, 2014, the Church filed a Petition for Special Hearing and Special Exception ("Petition") with the County Office of Administrative Law.[7] See ECF 8-2 at 9-11 (Petition).[8] In the Petition, the Church stated that it was seeking a special exception to "permit the property to be used as a church pursuant to BCZR § 1A03.3.B.4, " and it sought five years in which to utilize the exception. Id. at 10. According to the Church, the Petition proposed "the construction of a 31, 500-square foot sanctuary building" (ECF 1, ¶ 162), which would afford seating for 1, 000 people, classrooms for religious education, a nursery area, a warming kitchen, and offices for staff. Id. ¶ 165. In addition, the Church sought to construct a "fellowship hall", which would serve as a gymnasium. Id. ¶ 166. In a comment dated May 30, 2014, the County Department of Planning "provided several recommended conditions, and . . . opined that if those conditions were satisfied the use would not be detrimental to the community." ECF 8-2 at 13-14 (Opinion of County Administrative Law Judge, dated Jan. 5, 2015).

         The Zoning Hearing was conducted by an Administrative Law Judge ("ALJ") in the County‘s Office of Administrative Law. See ECF 8-2 at 9. Four hearings were held between October 15, 2014, and November 21, 2014. ECF 1, ¶ 176. Five witnesses testified in support of the special exception, four of whom were expert witnesses. Id. ¶¶ 177, 179; see also ECF 8-2 at 14. Community members opposed to the special exception (the "Protestants") participated at the hearings, submitting an exhibit and cross-examining the Church‘s witnesses. ECF 8-2 at 16-17. But, the Protestants did not present any expert testimony or other witnesses. Id. at 17.

         In an Opinion and Order dated January 5, 2015, the ALJ approved the special exception. ECF 8-2 at 13-20. The ALJ noted that the Protestants had not produced "any expert testimony, documents or other evidence in their case." Id. at 18. He stated: "[G]iven the presumption under Maryland law, and the testimony of the [Church‘s] experts, I find the special exception requirements have been satisfied and the petition will be granted." Id. at 19. However, the ALJ reduced the time for construction from five years to three years. Id.

         On or about January 29, 2015, Valleys Planning Council, Inc. ("Council") noted an appeal to the Board from the ALJ‘s decision. ECF 8-2 at 22 (Notice of Appeal).[9] The Board held public hearings over seven non-consecutive days that spanned a period of nearly one year, beginning in May 2015 and concluding in April 2016. ECF 1, ¶ 184; ECF 8-2 at 8 (Board docket sheet). A total of thirty-four witnesses testified at the hearings, twenty-seven of whom were called by the Protestants, including seven expert witnesses. ECF 1, ¶ 185.

         According to the Church, counsel for the Protestants asked improper questions concerning the Church‘s religious philosophy and financial position. ECF 1, ¶¶ 187-188. The Church also claims that witnesses testified as to a variety of inappropriate and irrelevant topics, including the Church‘s religious practices. Id. ¶¶ 189-192. In addition, the Protestants campaigned against the Petition in the community, which included creating a community Facebook group called "Save Shawan" (id. ¶ 193), establishing a Twitter account with the handle ""SaveShawan" (id. ¶ 194), and circulating an online petition opposing the project. Id. ¶ 197. In the Church‘s view, community opposition to the Church‘s Petition "was substantially motivated by hostility and animus toward the Church and its religious character, practices and denomination." Id. ¶ 198.

         On February 22, 2017, some ten months after the Board‘s final hearing, the Board issued a fourteen-page Opinion and Order reversing the ALJ by a vote of 2-1. ECF 8-2 at 131-144 ("Opinion").[10] In its Opinion, the Board reviewed the nine factors outlined in BCZR § 502.1. It determined that the Church‘s proposal would not: be detrimental to the health, safety or general welfare of the locality involved (id. at 135-136); tend to create congestion in roads, streets or alleys therein (id. at 136-137); create a potential hazard from fire, panic or other danger (id. at 137); tend to overcrowd land and cause undue concentration of population (id. at 137-138); interfere with adequate provisions for schools, parks, water, sewerage, transportation or other public requirements, conveniences or improvements (id. at 138); interfere with adequate light and air (id. at 139); or otherwise be detrimental to the environmental and natural resources of the site and vicinity. Id. at 143.

         Nevertheless, the Board determined that the Church‘s proposal would "have an adverse effect in relation to the spirit and intent of the zoning regulations 'above and beyond‘ that which is inherently associated with churches . . . ." ECF 8-2 at 140. The Board majority said, id. at 138-140 (emphasis added):

HVBC seeks a special exception under Section 1A03.3.B.4 of the BCZR to use the Property as a church or other building for religious worship. Although not specifically defined in Section 101.1 of the BCZR, Webster defines "church" as "a building for public and especially Christian worship."[] The project proposed by HVBC is, however, more than just a building for Christian worship. A substantial portion of HVBCs proposed building includes a gymnasium with a basketball court and a fellowship hall. Even under the most liberal definition, it cannot seriously be contended that a gymnasium with a basketball court qualifies as a building for Christian worship and is not the type of use that the County Council approved for the R.C.4 zone by special exception.
HVBC expressly acknowledges the fact that its proposed gymnasium/ fellowship hall serves a qualitatively different purpose than that of a "church" since HVBC has planned to construct its proposed facility on the Property in two phases. The first phase of construction would include a sanctuary, classrooms, and offices, while the second phase would add the gymnasium and fellowship hall. In his testimony, Pastor Rodriguez admitted that the second phase is not critical to the operation of the church:
MR. MCCANN: Why the two phases?
PASTOR RODRIGUEZ: Again, just prudence and we want to make sure that obviously the, the main core, the main function of the church is the sanctuary and the classrooms to support the Sunday School, that's the primary purpose, that's the main focus of the operation of the church and the fellowship hall and the gymnasium is, is not critical for the operation of the church. So we could and intend to phase that because it's not, it's not critical to the operation.

(See Transcript, May, 6, 2015, at 90-91).

Because (a) HVBC seeks a special exception to use the Property as a church under BCZR § 1A03.3.B.4 and (b) the planned use of the Property presented to the Board includes more than just a church, the majority of the Board concludes that HVBC's proposal is inconsistent with the spirit and intent of the BCZR. The particular use of the Property proposed by HVBC, including a gymnasium, would thus have an adverse effect in relation to the spirit and intent of the zoning regulations “above and beyond” that which is inherently associated with churches and other buildings of religious worship in other locations in the County within the R.C.4 zone .... For this reason, HVBC's Petition for Special Exception must be denied.

         In addition, the majority determined that the proposed parking lot did not conform with the standards in the 2000 Maryland Storm Water Design Manual, which was prepared for the Maryland Department of the Environment, and that the lot was not consistent with the impermeable surface requirements of the BCZR. Id. at 140-143. The majority explained, id. (emphasis added):

Section 1A03.4.B.3 of the BCZR provides, in relevant part, that "no more than 10% of any lot in an R.C.4 Zone may be covered by impermeable surfaces (such as structures or pavement)." To meet the requirements of Section 1A03.4.B.3, HVBC's proposal includes the construction of a parking lot with porous material that will allow for the absorption of water. Whether HVBC's proposed porous pavement parking lot would allow for HVBC's proposed project to meet with the impermeable surface requirements of the BCZR comes down to a battle of expert witnesses - namely, Ken Wells on behalf of HVBC and Dan O'Leary on behalf of the Protestants.
Dan O'Leary was accepted by the Board as an expert in stormwater management, water resources, and as a professional engineer. Mr. O'Leary explained in his testimony that the efficacy of a pervious pavement parking lot, like the one proposed by HVBC, depends on the characteristics of the soil below the pavement.
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Because of the numerous indications of predominantly clay soils on the Property, and because clay soils have infiltration rates below the minimum threshold of 0.52 inches per hour, Mr. O'Leary concluded that porous pavements are not "the right application for this site." (See Prot. ...

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