United States District Court, D. Maryland
AMENDED MEMORANDUM OPINION [*]
Lipton Hollander United States District Judge.
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
Complaint (ECF 1), which is 53 pages in length, contains
eight counts, as follows: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. §
suit contains multiple prayers for relief (ECF 1 at 51-52),
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.
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
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).
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.
Factual and Procedural Background
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.
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.
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.
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.
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. 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.
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.
the Property is situated in a watershed resource conservation
area and is zoned R.C.4. Id. ¶
However, “[u]nlike other RC-4 zoned areas of Baltimore
County the immediate area around the [P]roperty 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.
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.
“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
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.”).
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.
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
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-suburban
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
D. Protect areas desirable for more intensive future
development by regulating undesirable forms of development
within these areas until such time as intensive development
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
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 §
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.
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
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
2. Farms and limited-acreage wholesale flower farms (Section
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
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. . . .”).
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
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
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).
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)).
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)).
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.
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
A. Be detrimental to the health, safety or general welfare of
the locality involved;
B. Tend to create congestion in roads, streets or alleys
C. Create a potential hazard from fire, panic or other
D. Tend to overcrowd land and cause undue concentration of
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;
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.
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.
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
. . . .”
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).
about March 18, 2014, the Church filed a Petition for Special
Hearing and Special Exception (“Petition”) with
the County Office of Administrative Law. See ECF
8-2 at 9-11 (Petition). 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).
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.
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.
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). 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.
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.
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”). 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
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
HVBC's 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
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.
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
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.
* * *
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. Ex. 62 at D.13.2 and Transcript, November
17, 2015, at 83).
Ken Wells is a professional land surveyor and is certified to
devise and submit storm water management plans. Mr. Wells
opined that the Property was suitable for the installation of
a porous paving parking lot and that soils thereon would
satisfy the minimum infiltration requirements set forth
above. In his testimony, Mr. Wells testified that the soil
borings included on Protestants' Exhibit 67, taken from
the Property in 2008, indicate an average infiltration rate
of 3.63 inches per ...