Clarksville Residents Against Mortuary Defense Fund, Inc., et al. v. Donaldson
Properties, et al., No. 70, September Term, 2016. Opinion by Hotten, J.
STATUTES — GENERAL AND SPECIFIC STATUTES
Court of Appeals held that the Howard County Board of Appeals did not err in
consideration of the requirements contained in Howard County Zoning Regulations
(“HCZR”) §131.B and §131.N.22 because they are specific provisions governing
conditional uses; whereas, HCZR §130.C, which Petitioners contend the Board should
have considered, is a more general regulation that applies broadly to different zoning uses,
and is therefore inapplicable. See Lumberman’s Mut. Cas. Co. v. Insurance Comm’r, 302
Md. 248, 268, 487 A.2d 271, 281 (1985) (“[W]here one statutory provision specifically
addresses a matter, and another more general statutory provision also may arguably cover
the same matter, the specific statutory provision is held to be applicable and the general
provision is deemed inapplicable.”) (citations omitted).
ZONING AND PLANNING — GROUNDS FOR GRANT OR DENIAL IN
GENERAL
Court of Appeals held that to satisfy the “adverse effects” test in Schultz v. Pritts, 291 Md.
1, 432 A.2d 1319 (1981), the Board was not required to specify what adverse effects were
inherent to a funeral home before approving Donaldson’s conditional use plan because the
Howard County Council had already undergone an assessment of the inherent adverse
effects of funeral homes and determined those inherent adverse effects are compatible with
permitted uses in the RR-DEO zone.
ZONING AND PLANNING — GROUNDS FOR GRANT OR DENIAL IN
GENERAL
Court of Appeals held that the Board did not err in concluding that it was only required to
consider the enumerated considerations contained in HCZR §131.B because we give an
administrative agency’s interpretation and application of the statute which the agency
administers considerable weight and HCZR §131.B.2.a only requires the Board to consider
whether “[t]he impact of adverse effects such as noise, dust, fumes, odors, lighting,
vibrations, hazards or other physical conditions w[ould] be greater at the subject site than
it would generally be elsewhere in the zone or applicable other zones.” HCZR §131.B.2.a;
Bd. of Quality Assurance v. Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999). The Court
also concluded that because the “adverse effects” test espoused in Schultz exists within the
regulatory scheme governing conditional uses, the community members were required to
establish a substantial nexus between their asserted “cultural sensitivities” and the
enumerated conditions contained in HCZR §131.B.2.a., which they failed to do.
ZONING AND PLANNING — GROUNDS FOR GRANT OR DENIAL IN
GENERAL
Court of Appeals held that there was no merit to Petitioners’ argument that Donaldson’s
proposed conditional use intended to remove fifty feet of forest from the stream buffer in
violation of Maryland Department of the Environment requirements. The record contained
substantial evidence that the conditional use plan contemplated a stream buffer of 100 feet
and no evidence indicates that deforestation was proposed by Donaldson.
Circuit Court for Howard County
Case No. 13-C-13-095806
Argued: March 6, 2017 IN THE COURT OF APPEALS
OF MARYLAND
No. 70
September Term, 2016
__________________________________
CLARKSVILLE RESIDENTS AGAINST
MORTUARY DEFENSE FUND, INC.
et al.
v.
DONALDSON PROPERTIES et al.
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
__________________________________
Opinion by Hotten, J.
Watts, J., concurs
__________________________________
Filed: June 22, 2017
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,
1
Pursuant to Howard County Zoning Regulation (“HCZR”) §105.0 the Rural
Residential District was established
to allow low density residential development within a rural environment. The
Rural Residential District is intended for an area of the County which is
already largely committed to low density residential subdivisions. Within the
RR District, agriculture is permitted as well as residential development in
both cluster and non-cluster forms. Cluster development is permitted in order
to protect environmental and landscape resources and to preserve agricultural
land.
Pursuant to HCZR §106.0, the DEO Overlay District was established
to provide land owners in the RC and RR Districts with opportunity and
incentive to preserve significant blocks of farmland in the rural area of the
county. This district is also intended to encourage the clustering of residential
development in areas where the development will not have an adverse impact
on farm operations. To accomplish this, the DEO District allows residential
density in the RC and RR Districts to be exchanged between parcels. Density
exchanges in the District should result in large parcels being preserved in
perpetuity, while residential development is directed toward parcels which
are able to absorb the additional dwellings.
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.
FACTS AND PROCEDURAL BACKGROUND
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
2
The RR-DEO district authorizes funeral homes as a conditional use. See HCZR
§105.G.
2
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
3
The Maryland Department of the Environment defines a Tier II stream as those
streams “[w]here water quality is better than the minimum requirements specified by the
water quality standards[]” and requires that the water quality in those streams be
maintained. See COMAR 26.08.02.04-1A. Mark Burchick (“Mr. Burchick”), an
environmental consultant who testified before the Board on behalf of Donaldson, explained
that
The Maryland Department of the Environment has a Division called the
Science of Service Center, and they’ve gone out and done various exhaustive
studies related to what they call the index of biological integrity. And they
look at two parameters – fish and aquatic insects. They call those benthics
(?), and when you walk a reach of stream, and you go into the pools and up
under undercuts where the fish live and you electroshock it, and you grab the
fish, if you get just one species, a rosy side dace, that’s not necessarily a great
biological indicator of a really good stream. But if you find six or seven
species and you get a good number of those each, that kind of suggests that
that stream has a much higher water quality. Then they do the same thing for
aquatic insects. If you get just a bunch of worms, that’s not going to be too
good, but if you start getting the aquatic insects with two and three tails and
a diversity of them, that denotes relative health based on the diversity that
you’re getting. So in a Tier II stream, they get these IBI scores, Indicators of
Biological Integrity, that are really high. And one of those streams happens
to be Carrolls Branch, which is the named tributary for which this watershed,
where the Donaldson Funeral Home is, goes through.
3
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
4
John Gary, a registered architect, testified before the Board that the funeral home
is designed to appear as a one-story building from Route 108, and its scale should be taken
in context of the two large, existing churches that are to the north and south of the Property.
Mr. Gary also noted that the funeral home will contain a carport; a fireplace off the main
lobby for a sitting area; residential-type windows, small fenestrations; limited points of
entrance; hip roofs instead of flat roofs, with composition shingles; masonry consisting of
inset brick with stone; and a stone water table.
5
HCC §16.302(a) states “[e]xcept as provided in subsections (b) and (c), wherever
in this Code or the zoning regulations a matter is authorized to be heard and decided by the
Board of Appeals, the matter will first be heard and decided by a Hearing Examiner.”
4
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
6
The TSR recommended,
1. The Conditional Use shall be conducted in conformance with and shall
apply only to the Funeral Home as described in the petition and as
depicted on the Conditional Use plan submitted on February 2, 2010, and
as may be revised by the Hearing Examiner, and not to any other
activities, uses, or structures on the Property.
2. The Petitioner shall comply with all agency comments.
3. Should the Hearing Authority approve the reduced setbacks, it is
recommended that the site be specifically designed to allow for a
required six foot minimum privacy fence or masonry wall and a Type E
landscape buffer on the north side and that a minimum of a Type D
landscape buffer be required on the south side as noted above.
4. It is recommended that the proposed walkway on the south side of the
Site be eliminated.
5. It is recommended that the Petitioner specify the total hours and days of
operation for the facility, including evening activities beyond visiting
hours and the hours of use of the chapel.
7
The Board held hearings on January 10, February 28, March 1, March 8, May 3,
May 29, May 31, June 14, August 2, August 14, August 23, October 9, October 25,
November 1, November 27, and November 29, 2012; January 22, January 24, January 31,
March 5, March 14, April 4, and April 30, 2013.
5
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:
8
The Board placed the following conditions on the Revised Plan’s approval:
(1) The conditional use shall apply only to the proposed funeral home and
mortuary as described in the petition and as depicted on the Amended
Conditional Use Plan dated August 15, 2012 and not to any other
activities, uses or structures on the Property.
(2) [Donaldson] shall utilize a double-walled holding tank for embalming
fluid wastewater with double walled pipes and leak sensors for the
system.
(3) [Donaldson] shall construct (a) a deceleration lane at least 250 feet long
for vehicles entering the Property from southbound Maryland Route 108;
(b) an acceleration lane for vehicles exiting the Property in the
southbound direction; and (c) an appropriate left turn bypass lane for
northbound Maryland Route 108 in the vicinity of the proposed access
point for the Property.
(4) The Property shall not be used as a crematorium without subsequent
conditional use approval.
(5) [Donaldson] shall comply with all applicable Federal, State, and County
laws and regulations.
6
[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.
* * *
[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.
9
Robert Vogel is a civil engineer who was hired by Donaldson to create the site
plan for the proposed funeral home that accompanied Donaldson’s Conditional Use Plan.
10
The Merriam Webster Dictionary defines “feng shui” as
a Chinese geomantic practice in which a structure or site is chosen or
configured so as to harmonize with the spiritual forces that inhabit it …. [A]
Chinese system for positioning a building and the objects within a building
in a way that is thought to agree with spiritual forces and to bring health and
happiness.
MERRIAM WEBSTER DICTIONARY ONLINE, https://perma.cc/F5T8-Y8G7 (last accessed:
May 30, 2017). The Oxford English Dictionary defines “feng shui” as “(in Chines thought)
a system of laws considered to govern spatial arrangement and orientation in relation to the
flow of energy (chi), and whose [favorable] or [unfavorable] effects are taken into account
when siting and designing buildings.” OXFORD ENGLISH DICTIONARY ONLINE,
https://perma.cc/G3CE-DKB9 (last accessed: May 30, 2017).
7
* * *
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.
* * *
8
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
11
All citations to the HCZR in this opinion are based on the HCZR as it existed in
2012, when the Board considered the Revised Plan. On October 6, 2013, the Howard
County Council adopted the current version of the HCZR.
9
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.
10
STANDARD OF REVIEW
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,
11
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)).
DISCUSSION
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
12
The term “Hearing Authority” refers to both the Board and the Hearing Examiner.
See HCZR §130.A.2.
12
“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 supply such services.
8. Availability of fire-fighting equipment.
9. Decisions of the Circuit Court for Howard County and the Court of
Appeals of Maryland.
10. The effect of such use upon the peaceful enjoyment of people in their
homes.
11. The most appropriate use of land and structures.
12. The type and kind of structures in the vicinity where people are apt to
gather in large numbers such as schools, churches, theaters, hospitals and
the like.
13. The General Plan for Howard County, including, master plans for land
use, highways, recreation and parks, schools, sewers, water, conservation
and the like.
13
14. The effect of the proposed use or development on the natural,
environmental or landscape resources of the site and adjacent sites,
including such resources or features as historic resources, floodplains,
wetlands, steep slopes and vegetation.
HZCR §131 includes specific requirements the Hearing Authority must consider to
approve a conditional use. HCZR §131.A acknowledges that
Conditional uses are authorized in specified zoning districts based on the
presumption that they are generally appropriate and compatible in the
specified districts. However, uses in particular locations may have
characteristics or impacts that are not typical. Conditional uses are not
permitted automatically, but are subject to the regulations of this section and
the conditions imposed by [the Board] upon approval of the proposed
development.
The “General Standards Required for Approval” in HCZR §131.B state that
The Hearing Authority shall have the power to permit conditional uses,
provided the following general standards are met:
1. The proposed conditional use plan will be in harmony with the land uses
and policies indicated in the Howard County General Plan for the district
in which it is located. In evaluating the plan under this standard, the
Hearing Authority shall consider:
a. The nature and intensity of the use, the size of the site in relation to
the use, and the location of the site with respect to streets giving access
to the site; and
b. If a conditional use is combined with other conditional uses or
permitted uses on a site, whether the overall intensity and scale of uses
on the site is appropriate given the adequacy of proposed buffers and
setbacks.
2. The proposed use at 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 Hearing
Authority shall consider whether:
a. The impact of adverse effects such as noise, dust, fumes, odors,
lighting, vibrations, hazards or other physical conditions will be
greater at the subject site than it would generally be elsewhere in the
zone or applicable other zones.
b. The location, nature and height of structures, walls and fences, and the
nature and extent of the landscaping on the site are such that the use
14
will not hinder or discourage the development and use of adjacent land
and structures more at the subject site than it would generally in the
zone or applicable other zones.
c. Parking areas will be of adequate size for the particular use. Parking
areas, loading areas, driveways and refuse areas will be properly
located and screened from public roads and residential uses to
minimize adverse impacts on adjacent properties.
d. The ingress and egress drives will provide safe access with adequate
sight distance, based on actual conditions, and with adequate
acceleration and deceleration lanes where appropriate.
HCZR §131.N.22 specifically addresses the funeral home conditional use, and states that
A conditional use may granted in the RC, RR, R-ED or R-20 Districts for
funeral homes or mortuaries provided that:
a. The area of the lot shall be not less than three acres.
b. The site has frontage on and direct access to a collector or arterial
highway designated in the General Plan.
c. The design of new structures or additions to existing structures will be
compatible in scale and character with residential development in the
vicinity, as demonstrated by architectural elevations or rendering
submitted with the petition.
d. Buildings, parking areas and outdoor activity areas will be at least 50 feet
from adjoining residentially-zoned properties other than public road
right-of-ways. The Hearing Authority may reduce this setback to no less
than 20 feet or the minimum setback required by the zoning district,
whichever is greater, if:
(1) The adjoining land is committed to a long term institutional or open
space use that provides an equivalent or better buffer for vicinal
residential development; or
(2) The petition includes detailed plans for screening, consisting of a
combination of a solid fence or wall and landscaping, or an equivalent
combination, that presents an attractive and effective buffer for
neighboring properties.
e. At least 20 percent of the area within the building envelope shall be green
space, not used for buildings, parking area or driveways. The building
envelope is formed by the required structure setbacks from property lines
and public street right-of-way.
f. Crematoriums are permitted as accessory uses to a funeral home or
mortuary.
15
Petitioners argue that HCZR §§130.C, 131.B, and 131.N.22 should be considered a
three-part scheme the Hearing Authority must consider before granting a conditional use.
In contrast, Donaldson and the Board argue that HCZR §130.C is a general provision that
relates to “public health, safety, security or general welfare,” whereas, HCZR §131.B and
§131.N.22 provide tailored standards for approving conditional uses, and specifically
conditional use approval for a funeral home. Donaldson and the Board contend that it is a
basic principle of statutory construction that specific provisions of an enactment control
over provisions that are more general in nature; and therefore, HCZR §131 governs
consideration of conditional uses, not HCZR §130.C. We agree.
It is a well-settled principle that the primary objective of statutory interpretation is “to
ascertain and effectuate the intention of the legislature.” Dep’t of Human Resources, Balt.
City Dep’t of Social Services v. Hayward, 426 Md. 638, 649-50, 45 A.3d 224, 231 (2012)
(quoting Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995)). We examine the
plain language of the statute, and “[i]f the words of the statute, construed according to their
common and everyday meaning, are clear and unambiguous and express a plain meaning,
we will give effect to the statute as it is written.” Id. at 650, 45 A.3d at 231 (quoting Jones
v. State, 336 Md. 255, 261, 647 A.2d 1204, 1206-07 (1994)). “[W]here the statutory
language is plain and free from ambiguity, and expresses a definite and simple meaning,
courts do not normally look beyond the words of the statute itself to determine legislative
intent.” Id. (quoting Montgomery County Dep’t of Social Services v. L.D., 349 Md. 239,
264, 707 A.2d 1331, 1343 (1998)). Additionally,
16
[i]t is an often repeated principle that a specific statutory provision governs
over a general one. Thus where one statutory provision specifically addresses
a matter, and another more general statutory provision also may arguably
cover the same matter, the specific statutory provision is held to be applicable
and the general provision is deemed inapplicable.
Lumberman’s Mut. Cas. Co. v. Ins. Comm’r, 302 Md. 248, 268, 487 A.2d 271, 281 (1985);
see also Dep’t of Natural Res. v. France, 277 Md. 432, 461-62, 357 A.2d 78, 94-95 (1976)
(“[w]here there is a specific enactment and a general enactment, which, in its most
comprehensive sense, would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only such
cases within its general language as are not within the provisions of the particular
enactment.”) (citations and internal quotation marks omitted).
We have also held that “a degree of deference should often be accorded the position
of the administrative agency. Thus, an administrative agency’s interpretation and
application of the statute which the agency administers should ordinarily be given
considerable weight by reviewing courts.” Marzullo v. Kahl, 366 Md. 158, 172, 783 A.2d
169, 177 (2001) (citations omitted). We conclude the standards set forth in HCZR §130.C
do not govern the Hearing Authority’s consideration of conditional use applications. We
first note that the zoning regulation governing the RR district specifically states that the
conditional uses authorized in that zone are subject to the “detailed requirements for
conditional uses given in Section 131.” See HCZR §105.G. Additionally, the plain
language of HCZR §130, when read as whole, does not specifically address conditional
uses, except to state that the Hearing Authority has the power “[t]o approve conditional
uses as to location” pursuant to HCZR §131. See HCZR §130.B.5.
17
HCZR §130.C is a provision that relates generally to “public health, safety, security,
or general welfare” considerations that involve a broad range of concerns; whereas, HCZR
§131 specifically addresses conditional uses, and provides both general and specific
standards that govern the Hearing Authority’s approval of a conditional use. See HCZR
§§131.A, 131.B, 131.N. Because we conclude that the statutory scheme does not
contemplate the three-part scheme articulated by Petitioners, and because HCZR §131 is a
more specific statutory provision that governs the Hearing Authority’s approval of
conditional uses, the Board did not err. See Lumberman’s Mut. Cas. Co., 302 Md. at 268,
487 A.2d at 281.
II. Schultz v. Pritts “Adverse Effects” Test13
Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981), is widely considered to be the
bellwether case regarding conditional uses and special exceptions in the state of Maryland.
See Loyola Coll. in Md., 406 Md. at 87, 956 A.2d at 186; see also Trail v. Terrapin Run,
LLC, 403 Md. 523, 551, 943 A.2d 1192, 1208 (2008) (noting that “some have called
[Schultz v. Pritts] the seminal case in the Maryland law of special exceptions.”). In Schultz,
we concluded that our precedent
establish[es] that a special exception use has an adverse effect and must be
denied when it is determined from the facts and circumstances that the grant
of the requested special exception use would result in an adverse effect upon
adjoining and surrounding properties unique and different from the adverse
effect that would otherwise result from the development of such a special
exception use located anywhere within the zone.
Howard County incorporated the Schultz test in HCZR §131.B.2, which requires
13
the Board to determine that “[t]he proposed use at the proposed location will not have
adverse effects on vicinal properties above and beyond those ordinarily associated with
such uses.”
18
Schultz, 291 Md. at 15, 432 A.2d at 1327. We held that
the appropriate standard to be used in determining whether a requested
special exception use would have an adverse effect, and therefore, should be
denied is whether there are facts and circumstances that show that the
particular use proposed at the particular location proposed would have any
adverse effects above and beyond those inherently associated with such a
special exception use irrespective of its location within the zone.
Id. at 22-23, 432 A.2d at 1331 (citations omitted). In Loyola Coll. of Md., we clarified that
the language in Schultz regarding “adverse effects above and beyond those inherently
associated” with a conditional use is best understood in the context of the local legislature’s
intent. We determined that
[t]he local legislature, when it determines to adopt or amend the text of a
zoning ordinance with regard to designating various uses as allowed only by
special exception in various zones, considers in the generic sense that certain
adverse effects, at least in type, potentially associated with (inherent to, if
you will) these uses are likely to occur wherever in the particular zone they
may be located. In that sense, the local legislature puts on its ‘Sorting Hat’
and separates permitted uses, special exceptions, and all other uses. That is
why the uses are designated special exception uses, not permitted uses. The
inherent effects notwithstanding, the legislative determination necessarily is
that the uses conceptually are compatible in the particular zone with
otherwise permitted uses and with surrounding zones and uses already in
place, provided that, at a given location, adduced evidence does not convince
the body to whom the power to grant or deny individual applications is given
that actual incompatibility would occur.
Loyola Coll. in Md., 406 Md. at 105-06, 956 A.2d at 197-98 (footnotes omitted). We also
noted the alleged adverse effects “must be more than mere annoyance[]” because by
classifying such uses as special exceptions or conditional uses, the legislature assumes that
those uses will include some adverse impacts. See Mayor & Council of Rockville v. Rylyns
Enterprises, Inc., 372 Md. 514, 542, 814 A.2d 469, 485 (2002).
19
Because special exceptions and conditional uses are legislatively-created, we have
repeatedly held that “they enjoy the presumption of correctness and are an appropriate tool
for the exercise of a local government’s police powers.” Rylyns Enterprises, Inc., 272 Md.
at 542-43, 814 A.2d at 486 (citations omitted); Schultz, 291 Md. at 11, 432 A.2d at 1325;
see also Anderson v. Sawyer (“Sawyer”), 23 Md. App. 612, 617, 329 A.2d 716, 720 (1974)
(“The conditional use or special exception 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.”) (citations omitted); Mills v. Godlove, 200 Md. App. 213, 230, 26 A.3d
1034, 1044 (2011) (“Because the allowance of a special exception use is part of a
comprehensive zoning regulatory scheme that is itself accompanied by the presumption
that it promotes public safety, health, and morals, it stands to reason that this broader
presumption accompanying the zoning ordinance itself generates the specific presumption
of compatibility associated with the inclusion in the ordinance of those uses that may be
allowed through the grant of special exceptions.”) (citations and internal quotation marks
omitted).
Although there is a legislative presumption that a conditional use is valid, the
applicant still bears “both the burden of production and the burden of persuasion on the
issue of whether the [conditional use] should be granted” and must persuade the Board
“‘by a preponderance of the evidence that the special exception will conform to all
applicable requirements.’” See Attar v. DMS Tollgate, LLC, 451 Md. 272, 286, 152 A.3d
20
765, 774 (2017) (quoting Loyola Coll. in Md., 406 Md. at 109, 956 A.2d at 199).14 The
applicant is not required, however, to affirmatively establish that the proposed use will be
a benefit to the community. Schultz, 291 Md. at 11, 432 A.2d at 1325; Sawyer, 23 Md.
App. at 617, 329 A.2d at 720 (citations omitted). “If the applicant shows to the satisfaction
of the Board that the proposed use would be conducted without real detriment to the
neighborhood and would not actually adversely affect the public interest, he [or she] has
met his [or her] burden.” Schultz, 291 Md. at 11, 432 A.2d at 1325. Any harm or
disturbance to the neighboring area and uses is material, but if there is no probative
evidence of harm or disturbance, in light of the nature of the zone involved or of factors
causing disharmony to the operation of the comprehensive plan, then a denial of the
conditional use would be arbitrary, capricious, and illegal. Id.
14
We also noted in Attar that “[w]hile an applicant for a [conditional use] bears both
the burden of persuasion and of production, the concurrent presumption in favor of a
[conditional use] applicant is not a mutually exclusive evidentiary burden.” 451 Md. at
286, 152 A.3d at 774. We explained, quoting the Honorable Glenn T. Harrell, Jr.’s opinion
in Anderson v. Litzenberg, 115 Md. App. 549, 694 A.2d 150 (1997), that:
[A] presumption does not necessarily shift the burden of persuasion. Rather,
it merely satisfies the burden of going forward on a fact presumed and may
satisfy the burden of persuasion if no rebuttal evidence is introduced by the
other side. … Stated differently, the party favored by the presumption is not
relieved of the requirement of presenting evidence to establish a prima facie
case as to those issues for which he bears the burden of proof if the adverse
party sufficiently rebuts the presumption. In such instances, the presumption
merely enhances the probative value of other evidence adduced.
Attar, 451 Md. at 287, 152 A.2d at 774 (quoting Litzenberg, 115 Md. App. at 564, 694
A.2d at 157) (internal quotation marks omitted).
21
Thus, Schultz and its progeny established that if a conditional use applicant
demonstrates compliance with the prescribed standards and requirements set forth in the
relevant statute or regulation, then there is a presumption that the use is in the interest of
the general welfare, a presumption that may only be overcome by probative evidence of
unique adverse effects. Absent such probative evidence, it is arbitrary, capricious, and
illegal for the Board to deny the conditional use application. See Schultz, 291 Md. at 15,
22-23, 432 A.2d at 1327, 1331 (citations omitted).
A. The Board Is Not Required to Identify the “Ordinary or Inherent
Adverse Effects” of a Funeral Home
The second question presented for our review asks whether the Board satisfied the
Schultz “adverse effects” test “when it failed to conduct an analysis based on the ‘ordinary
or inherent adverse effects’ of a [f]uneral [h]ome[.]” Petitioners argue that to satisfy the
“adverse effects” test in Schultz, the Board was required to determine what the ordinary or
inherent adverse effects of a funeral home were. In support of this view, Petitioners rely
on the decision in Mills v. Godlove,15 where the Court of Special Appeals concluded that
the zoning board “did not sufficiently discuss the adverse effects above and beyond those
inherently associated with a storage yard.” 200 Md. App. at 239, 26 A.3d at 1049.
15
In Mills, the applicants sought a special exception and variance allowing them to
continue to park paving equipment on their property, which they had been doing for seven
years prior to filing the application without issue. 200 Md. App. at 217-18, 26 A.3d at
1036-37. The zoning board initially approved the application, but on judicial review the
circuit court reversed the board, concluding that the board’s findings were insufficient. Id.
at 220-21, 26 A.3d at 1037-38. On remand, the board again approved the applicants’
application, but on judicial review, the circuit court again reversed the board, holding that
there was insufficient analysis of the inherent adverse effects associated with an equipment
storage yard. Id. at 222-23, 26 A.3d at 1039.
22
Petitioners contend that the case at bar is analogous to Mills because the Board did not
identify or determine what the ordinary or inherent adverse effects of a funeral home might
be. Instead, Petitioners argue that the Board merely offered the general premise that it
“begin[s] 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.” Petitioners acknowledge, however, that the Board
considered “noise, dust, fumes, odors, lighting, vibrations, hazards or other physical
conditions” as “potential adverse impacts.”
In contrast, Donaldson argues that the Board properly considered the adverse impact
of the proposed funeral home, including evaluation of: (1) the noise, dust, odors, lighting,
vibrations, and fumes; (2) the adverse environmental impact; (3) the adverse impact related
to cultural sensitivities; (4) the adverse impact related to structures, walls, and fences; (5)
the adverse impact related to parking areas, loading areas, driveways, and refuse areas; and
(6) the adverse traffic impacts. See HCZR §131.B.
Donaldson also contends that Mills was not intended to create a formulaic approach
that required the Board to first identify all of the adverse impacts generally associated with
a funeral home and then systematically deconstruct or refute such adverse impacts to arrive
at the Board’s ultimate conclusion. Instead, Donaldson argues the Court’s holding in Mills
was based on its assessment that the zoning board’s conclusions “were insufficient because
it merely presented conclusions without pointing to any evidentiary basis.” 200 Md. App.
at 236, 26 A.3d at 1048. Donaldson avers that the purpose behind requiring detailed
23
findings of fact and conclusions of law in the decisions and orders of an administrative
agency is to permit a party to the proceedings “to be apprised of the facts relied upon by
the agency in reaching its decision” and to “permit meaningful judicial review of those
findings.” Harford County v. Earl E. Preston, Jr., 322 Md. 493, 505, 588 A.2d 772, 778
(1991). Donaldson argues that ultimately, the test is whether the Board’s decision
regarding adverse impacts was carefully evaluated and sufficient to permit meaningful
judicial review, which it contends, the Board did. We agree.
In Schultz, we recognized that in designating a conditional use, the local legislature
“considers the variety of possible uses available, examines the impact of uses upon the
various purposes of the zoning ordinance, determines which uses are compatible with each
other and can share reciprocal benefits, and decides which uses will provide for
coordinated, adjusted, and harmonious development of the district.” Schultz, 291 Md. at
22, 432 A.2d at 1330. Based on this balancing process,
when the legislative body determines that the beneficial purposes that certain
uses serve outweigh their possible adverse effect, such uses are designated
as permitted uses and may be developed even though a particular permitted
use at the particular location proposed would have an adverse effect above
and beyond that ordinarily associated with such uses.
* * *
When the legislative body determines that other uses are compatible with the
permitted uses in a use district, but that the beneficial purposes such other
uses serve do not outweigh their possible adverse effect, such uses are
designated as conditional or special exception uses. Such uses cannot be
developed if at the particular location proposed they have an adverse effect
above and beyond that ordinarily associated with such uses.
Id., 432 A.2d at 1330-31 (citations omitted); see also Loyola Coll. in Md., 406 Md. at 106,
956 A.2d at 197. Additionally, in Sawyer, the Court of Special Appeals concluded that
24
The presumption that the general welfare is promoted by allowing funeral
homes in a residential use district, notwithstanding their inherent depressing
effects, cannot be overcome unless there are strong and substantial existing
facts or circumstances showing that the particularized proposed use has
detrimental effects above and beyond the inherent ones ordinarily associated
with such uses[.]
23 Md. App. at 624-25, 329 A.2d at 724. The Sawyer Court also observed that:
[A]n undertaking business has an inherent depressing and disturbing
psychological effect which may adversely affect persons residing in the
immediate neighborhood in the enjoyment of their homes and which may
lessen the values thereof. Indeed, it is precisely because of such inherent
deleterious effects that the action of a local legislature in prohibiting such
uses in a given zone or zones will be regarded as promoting the general
welfare and as constitutionally sound.
Id.
Because the Howard County Council, in their capacity as a legislative body, already
undertook an assessment of the adverse effects inherent in a funeral home, and determined
that a funeral home is sufficiently compatible with the permitted uses in the RR-DEO zone
to authorize it as a conditional use, subject to the requirements contained in HCZR §131.B
and §131.N.22, it was not necessary for the Board to specify what adverse effects were
inherent in a funeral home before approving the Revised Plan.16
16
Further reinforcing this position, the Board concluded in its Decision and Order
that
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.
(continued . . .)
25
In Mills, the Court of Special Appeals reversed a zoning board’s approval of the
special exception because the Court concluded the board “made conclusions that were not
supported by sufficient factual predicate and analysis.” The Court noted that
the Zoning Board did not address the adverse effects of storing contractor's
equipment, nor did it address how appellants' storage of paving equipment
would be different. The Zoning Board should have fleshed out any adverse
effects appellants' use would have had on the neighborhood, and determined
whether those effects were above and beyond those inherently associated
with storing paving equipment. The Zoning Board, moreover, did not discuss
the neighborhood, provide an in depth analysis of the effect storing paving
equipment would have on the neighborhood, or anything else when it
concluded that the proposed use was of low intensity and compatible with
the neighborhood. Likewise, the Zoning Board merely stated, without
support, that there was no evidence in support of the notion that the
“proposed use was incompatible with the neighborhood; disruptive of
neighbors' quiet enjoyment of their properties; detrimental to surrounding
property values; generative of excessive odors, dust, gas, smoke, fumes,
vibrations, or glare; generative of traffic that would exceed the capacity of
existing infrastructure; or that the proposal was inappropriate use of land or
structure.”
200 Md. App. at 239, 24 A.3d at 1049-50. As discussed more fully, infra, the Board
presented sufficient factual findings in its Decision and Order to support its conclusion that
the proposed funeral home would not present any adverse impact above and beyond those
effects inherently associated with a funeral home, irrespective of its location. The Court’s
decision in Mills regarding adverse effects is therefore inapposite and has no bearing on
our decision.
(. . . continued)
Thus, the record reflects our determination that the Howard County Council has weighed
the inherent adverse effects of funeral homes against permitted uses in the RR-DEO zone
and determined that the adverse impacts are sufficiently compatible with the permitted uses
to continue to allow funeral homes as a conditional use.
26
B. Asian Community’s Cultural Aversion to the Death Industry
The third question presented for our review asks whether the Board satisfied the
Schultz “adverse effects” test “when it approved the [f]uneral [h]ome in spite of the
surrounding Asian community’s deep-seated cultural aversion to the death industry[.]”
Petitioners argue that “a [f]uneral [h]ome use will have an atypically adverse, disruptive
effect on the health, safety and welfare of the residential community because of its Asian
residents’ strong cultural aversion to the death industry.” Petitioners also contend that the
Board erred in concluding that HCZR §131.B allowed the Hearing Authority to only
consider “physical conditions” because, in Petitioners’ view, HCZR §131.B.2.a’s required
considerations of “noise, dust, fumes, odors, lighting, vibrations, hazards or other physical
conditions” are the minimum considerations the Board must address in approving or
denying a conditional use, not the maximum. Because Petitioners interpret the enumerated
considerations contained in HCZR §131.B.2.a to constitute a minimum set of
considerations, they argue the Board “erroneously discounted the cultural sensitivity issue
as ‘not a physical condition’ and therefore not an adverse effect to be considered.” In
further support of their view, Petitioners also note that HCZR §131.A states that “particular
uses in particular locations may have characteristics or impacts that are not typical.”
Petitioners contend that the Hearing Authority cannot address atypical “characteristics or
impacts” if it limits its inquiry to the boilerplate “physical” considerations enumerated in
HCZR §131.B.2.a.
Petitioners also rely on language in HCZR §100.A, stating that the legislative intent
of the HCZR is to “preserv[e] and promot[e] the health, safety, and welfare of the
27
community.” Petitioners argue that health is not solely impacted by physical conditions,
and that the “extraordinary adverse effect on the mental health of the Asian community not
only may be considered, but must be considered in light of the testimony and evidence
before the Board.” Petitioners aver the Board should have compared the adverse effects of
the funeral home at the proposed location with the ordinary or inherent effects of a funeral
home, including the depressive effects acknowledged in Sawyer.
Donaldson and the Board both argue that because cultural sensitivities are not a
“physical condition”, it would be impossible for Donaldson to prove the proposed funeral
home would not offend a particular person or group of people. Donaldson contends that
Petitioners’ view would require it to somehow know about and consider the “heightened,
extraordinary hypersensitivities of nearby residents, even though Donaldson (and any other
conditional use applicant) would never be able to prove that a particular use would not
offend a particular person or group of people, who … claim a heightened aversion to such
use.” Donaldson also argues it is unaware of any Maryland case addressing whether a
resident’s subjective hypersensitivity is a permissible factor to consider as part of the
Schultz test.
Donaldson analogizes the issue at bar to the law of nuisance,17 arguing that, like in
the law of nuisance, an objective standard should be applied to the Schultz test because it
17
Donaldson cites the United States Supreme Court case Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926), where the Supreme Court expressly called
for consultation to nuisance law when helpful to understand the scope of the police power
underlying zoning laws:
(continued . . .)
28
would allow the conditional use applicant, in evaluating a particular property, “to
determine whether those normal effects might be above and beyond those ordinarily
associated with the use and to mitigate any such effects to the fullest extent possible.”
Donaldson contends that if a subjective requirement – like cultural sensitivity – was
applicable, a conditional use applicant would not be able, and cannot be expected, to plan
for and mitigate impacts that might arise due to a property owner’s unknowable
hypersensitivities.
The Board and Donaldson also argue that, even if cultural sensitivities were a valid
consideration pursuant to the Schultz “adverse effects” test, the Board properly concluded
that under the “totality of the evidence,” the proposed use will not create an adverse impact
on vicinal properties above and beyond those ordinarily associated with a funeral home.
Donaldson acknowledges that testimony was presented regarding the cultural aversion to
(. . . continued)
The ordinance now under review, and all similar laws and regulations, must
find their justification in some aspect of the police power, asserted for the
public welfare. The line which in this field separates the legitimate from the
illegitimate assumption of power is not capable of precise delimitation. It
varies with circumstances and conditions. A regulatory zoning ordinance,
which would be clearly valid as applied to the great cities, might be clearly
invalid as applied to rural communities. In solving doubts, the maxim [sic
utere tuo ut alienum non laedas], which lies at the foundation of so much of
the common law of nuisances, ordinarily will furnish a fairly helpful clew.
And the law of nuisances, likewise, may be consulted, not for the purpose of
controlling, but for the helpful aid of its analogies in the process of
ascertaining the scope of, the power.
Id. at 387-88, 47 S. Ct. at 118; see also Ray v. Mayor of Baltimore, 430 Md. 74, 82, 94, 59
A.3d 545, 549, 557 (2013) (noting the law of nuisance “is the historical roots of zoning[.]”).
29
the death industry by some members of the Asian community, but argues it presented ample
rebuttal testimony, and notes the Board’s Decision and Order contained factual findings
that were derived from testimony produced by both Donaldson and the Petitioners.
Donaldson and the Board contend that while Petitioners may disagree with how the Board
weighed the evidence and reached its conclusion, the evidence presented by Donaldson
was sufficient to support the Board’s conclusion that the proposed use would not adversely
affect vicinal properties.
We ordinarily give an administrative agency’s interpretation and application of the
statute which the agency administers considerable weight. See Banks, 354 Md. at 69, 729
A.2d at 381. As noted, supra, HCZR §131.B.2.a states
2. The proposed use at 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 Hearing
Authority shall consider whether:
a. The impact of adverse effects such as noise, dust, fumes, odors,
lighting, vibrations, hazards or other physical conditions will be
greater at the subject site than it would generally be elsewhere in the
zone or applicable other zones.
In the case at bar, the Board concluded in its Decision and Order 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.
We conclude that the Board did not err in determining that HCZR §131.B, incorporating
the Schultz “adverse effects” test, only required it to consider the enumerated
30
considerations contained in the regulation because the plain language of the regulation
supports that finding and we will defer to the Board’s interpretation of its own regulation.
See Banks, 354 Md. at 69, 729 A.2d at 381. We further conclude that because the Schultz
“adverse effects” test exists within a county’s regulatory scheme governing conditional
uses, Petitioners were required to demonstrate a substantial nexus between their assertion
of a “cultural aversion to the death industry” and the enumerated considerations in HCZR
§131.B.2.a. of “noise, dust, fumes, odors, lighting, vibrations, hazards or other physical
conditions.” Because the community members failed to present substantial evidence
connecting their “cultural sensitivities” to any of the enumerated conditions contained in
HCZR §131.B.2.a, 18 we conclude the Board did not err.
18
The record reflects that multiple community members testified regarding their
cultural aversions to the proposed funeral home. For example, Peter Li shared a story about
Confucius, told to him as a child, whereby:
Confucius’ mother relocate[ed Confucius] three times. So first his family
lived next to a butcher store. And the young Confucius picked up very
quickly all the skill set for a butcher. And the mother noticed his narrow focus
on things that violent, so immediately moved the family to another location,
this time next to a funeral home. And the young Confucius now became
fascinated with playing the sad music and mimicking the weeping and
crying. One thing I do want to share with the Board member here is that
Chinese…when Chinese go to funeral, they are actually encouraged to
express their emotion openly. So you do see a lot of crying and weeping in
the ceremony like that. So it’s somewhat different. All we hear is more sad,
calm, but you don’t really see the open bursts of emotion. So when…when
the mother noticed that young Confucius became fascinated with playing the
sad music and all that weeping and all that, the mother moved the family
away again because she doesn’t really want the son to have that depressing
aspect of the nature. And this time they moved right next to a well respected
school. And then after moving, the young man now basically lost the focus
on the violence or deaths or depressing nature of side of it and got very deeply
(continued . . . )
31
(. . . continued)
into academic learning and family basically after that stay. And we all know
now that Confucius is revered for his teaching on family value, education,
and giving back to society. Many of our Asian people here in opposition to
proposed funeral home have moved to this area for this sense of community
and the environment that allows our children to focus on positives like
education and then to avoid the negatives we associate with end of the life.
Marianne Lee testified that,
I think the main reason I’ve already stated and the Board has already heard
which is really significant fact personally for me and having spoken with
other of my Asian neighbors is that you just, I personally would not want to
live near a funeral home. And it has to do with a cultural reasoning.
I came here when I was six years old and my husband was born here. But we
both grew up in the Korean American tradition and have assimilated here but
yet maintained traditions with one of them being that you don’t live near a
funeral home, a cemetery or things related to death. And I don’t want to bore
the Board but I do want to somewhat, I guess, shed light on the issue as to
why there’s such a big brouhaha in the Asian community about funeral
homes which predates, well just the historical, particularly with the Korean
Community, the Buddhist history.
That within your body you have a soul and a spirit and when you die the
spirit exits. And that there is good and bad spirits and the bad spirits will then
haunt the adjoining properties or properties further down. And so therefore
in Korea there are no funeral homes, there are no cemeteries in any residential
areas. In fact, those of my family members who are Korean are either
cremated and their ashes are thrown in the mountain or the ocean. Or they
are buried in a further site, generally in the countryside or in mountains.
And similarly that tradition has been carried over. And having talked with
my neighbors I think this is pretty much the similar reasoning for the Chinese
Community and the Indian Community. I think the Chinese Community
describes it as a feng shui. And the Indian Community is something called
vastu which is essentially that a bad omen, that bad luck, well I don’t want
to say luck, but a bad omen, that a bad thing would happen to you.
(continued . . .)
32
(. . . continued)
Shun Lu explained to the Board that
We are more sensitive to this because we feel very sad and depressed if we
see like dead person and funeral home and we just don’t live close to a funeral
home, and this is something we cannot fix. We cannot handle. So, that’s why
a lot of people here and a lot of people from the Asian population have
suffered from depression.
* * *
From, you know, ever since our childhood and, you know, we just, you know,
feel our family and – we just cannot live close to a funeral home in our
culture. We feel it’s bad luck to be so close to a funeral home. And our culture
emphasize balance. You do not put a funeral home right amid this residential
areas that mingle with so many people’s daily life. And we feel that’s not
proper.
Grace Chi stated that,
Every time since then I pass a funeral home it remind me of my father and
my grandma. It bring back the unintelligible. It’s unbearable.
If the facility is allowed to be built across from my backyard it will be a
constant reminder of the deaths of my father and my grandma and all sinners.
My bedroom, kitchen, breakfast room, family room, study, sunroom, all face
that proposed site of the funeral home.
In addition, if I am in the backyard I will not only see people coming to that
facility, I will also hear them. I have no objection to them because I know
they have lost their loved one. And I can fully relate to them and their feeling.
It is so painful to say the final goodbye.
How am I going to enjoy even my back yard or my house. I and my husband,
we are both first generation immigrants. We just invested all our life saving,
working hard in the United States, to purchase the current home without
knowing Donaldson’s plan. We like Clarksville because of the beautiful rural
surrounding. And we would like to retire there. It is our American dream.
However, for all the reasons I just mentioned our dream will be ruined.
* * *
33
Additionally, as discussed supra, the Howard County Council, in approving funeral
homes as a conditional use, already balanced the impact a funeral home would have on the
general welfare and whether the use was compatible with the permitted uses in the RR-
DEO zone. See Loyola Coll. in Md., 406 Md. at 106, 956 A.2d at 198; Schultz, 291 Md. at
11, 432 A.2d at 1325. The Board was not required, therefore, to consider the language
contained in HCZR §100.A, unless Petitioners presented evidence of a unique adverse
effect to a “physical condition[,]” which they did not do.
Accordingly, we conclude that because the community members did not provide a
substantial nexus between their “cultural aversion to the death industry” and the
enumerated considerations the Board was required to consider in HCZR §131.B.2.a, the
Board did not err in concluding that the Revised Plan would not “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.”
C. Removal of Natural Forest from Tier II Stream to Accommodate
Funeral Home Construction
Finally, the fourth question presented for our review asks whether the Board
satisfied the Schultz “adverse effects” test “when it approved the removal of a natural forest
along a Tier II stream to accommodate construction of the [f]uneral [h]ome[.]” Petitioners
argue the Board erroneously approved the Revised Plan even though, according to
Petitioners, the Revised Plan would remove a significant swath of the Property’s naturally
wooded riparian buffer. In support of its allegation that the Revised Plan calls for
deforestation, Petitioners note that the Revised Plan shows fifty feet of natural forest on
34
the western edge of the Property, whereas the preexisting naturally forested stream buffer
shown in Donaldson’s aerial map showed a width of 100 feet or more.19 Petitioners aver
the Board never acknowledged that the Revised Plan contemplated the removal of natural
forest from the riparian buffer in its Decision and Order.
As both the Board and Donaldson argue, Petitioners’ allegation is without merit. In
its Decision and Order, the Board noted that “Mr. Vogel testified that the purpose of the
100 foot buffer was to protect the stream[;]” and Mr. Burchick testified that “the stream
buffer would be 100 feet from the unnamed tributary located at the northwest corner of the
Property.” Based on this testimony, the Board concluded that
the 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.
19
The Board posits that the basis for Petitioners’ allegation is a misreading of the
aerial map, which only shows legally defined “natural forest” not all the trees that are on
the Property. Mr. Burchick testified that
The legal definition of a forest is that you have to have 100 trees per acre ….
We never had to have 100 trees per acre…. So for the purposes of a forest
stand delineation, we never had a forest. We did have specimen trees that
were 30 inches and larger but we didn’t have canopy closure and we never
met the criteria …. Most of the trees there are ornamental, not native trees,
that were part of the previous homeowner’s landscape.
The Board contends the aerial map did not show additional trees on the Property because
those trees were not part of the natural forest, but their exclusion did not mean Donaldson
intended to remove such trees or encroach on the 100-foot buffer.
35
Nothing in the record reflects that Donaldson proposed to clear fifty feet of forested stream
buffer in order to develop the funeral home. Because there is no indication from the record
that Donaldson intends to remove trees from the stream buffer, Petitioners allegations that
the Board failed to consider such action is without merit.
CONCLUSION
In summary, we hold that the Board properly analyzed Donaldson’s Revised Plan
pursuant to the specific statutory requirements contained in HCZR §131.B and §131.N.22
and was not required to consider the standards contained in the more general regulation
HCZR §130.C. We also hold that the Schultz v. Pritts “adverse effects” test does not
require the Board to initially determine what the inherent or ordinary adverse effects in a
conditional use are because those adverse effects were previously identified and weighed
by the local legislature in deciding whether the use is compatible with other permitted uses
within a given zone.
We also hold that the Board properly concluded that the evidence of “cultural
sensitivit[y]” was not sufficient relative to a denial of Donaldson’s conditional use because
the testimony provided by several members of the Asian community, explaining their
“cultural aversion to the death industry[,]” failed to provide a substantial nexus between
their “cultural sensitivities” and the conditions the Board was required to consider in
deciding to grant or deny a conditional use. See HCZR §131.B. Absent a substantial nexus
between the community members’ assertion of a “cultural aversion to the death industry”
and the enumerated considerations the Board was required to consider in HCZR §131.B,
the Board did not err in concluding that the Revised Plan would not “create an adverse
36
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.”
Finally, we conclude there is no merit to Petitioners’ argument that the Board ignored
Donaldson’s alleged intent to remove fifty feet of trees from the stream buffer because
there is no evidence Donaldson proposed to do so, and substantial evidence in the record
supports the Board’s conclusion that the Revised Plan contemplates a 100-foot stream
buffer in compliance with State requirements.
JUDGMENT OF THE COURT
OF SPECIAL APPEALS IS
AFFIRMED. COSTS TO BE
PAID BY PETITIONERS.
37
Circuit Court for Howard County
Case No. 13-C-13-095806
Argued: March 6, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 70
September Term, 2016
______________________________________
CLARKSVILLE RESIDENTS AGAINST
MORTUARY DEFENSE FUND, INC. et al.
v.
DONALDSON PROPERTIES et al.
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Concurring Opinion by Watts, J.
______________________________________
Filed: June 22, 2017
Respectfully, I concur. I am in accord with the outcome reached by the majority
opinion. I write separately, however, to explain my reasons for agreeing that an impact on
a community’s cultural sensitivities may be considered under Howard County Zoning
Regulation (“HCZR”) (2012) § 131.B.2.a.1 I agree with the majority opinion’s discussion
on cultural sensitivities, see Maj. Slip Op. at 27-34, and its conclusion that
because the community members did not provide a substantial nexus
between their “cultural aversion to the death industry” and the enumerated
considerations the Board was required to consider in HCZR §131.B.2.a, the
Board did not err in concluding that the Revised Plan would not “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.”
Maj. Slip Op. at 34. In other words, I agree with the Majority’s holding, but I write
separately to describe, from my perspective, the “substantial nexus” necessary to have an
alleged impact on cultural sensitivities considered under HCZR (2012) § 131.B.2.a.
I would hold that, under a plain reading of HCZR (2012) § 131.B.2.a, if the impact
of adverse effects such as noise, dust, fumes, odors, lighting, vibrations, hazards or other
physical conditions—i.e., the impact of adverse effects of the type identified in HCZR
(2012) § 131.B.2.a—bears on a particular community’s cultural sensitivities and the impact
of those adverse effects will be greater at the subject site than it generally would be
elsewhere due to the community’s cultural sensitivities then the Hearing Authority must
1
As the majority opinion notes, in 2013, the Howard County Council adopted the
current version of the HCZR. See Maj. Slip Op. at 9 n.11. As a result of revisions, what
was HCZR (2012) § 131.B.2.a is now HCZR § 131.B.3.a, which is substantively identical
to the prior version of the regulation. However, because the Board considered the Revised
Plan in 2012, I, like the majority opinion, will refer to the HCZR as it existed at that time.
consider the community’s cultural sensitivities in determining whether to permit the
proposed conditional use. In other words, where, due to a community’s cultural
sensitivities, the impact of adverse effects of factors such as noise, fumes, et cetera, is
greater at the subject site than it generally would be elsewhere, the Hearing Authority may
not discard the impact on the community’s cultural sensitivities in determining whether the
proposed use will have an adverse effect on vicinal properties above those ordinarily
associated with such uses.
HCZR (2012) § 131.B set forth the general standards required for approval of a
conditional use and stated, among other things, the following:
The Hearing Authority shall have the power to permit conditional uses,
provided the following general standards are met:
...
2. The proposed use at 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 Hearing Authority shall
consider whether:
a. The impact of adverse effects such as noise, dust, fumes,
odors, lighting, vibrations, hazards or other physical conditions
will be greater at the subject site than it would generally be
elsewhere in the zone or applicable other zones.
The plain language of HCZR (2012) § 131.B.2.a requires the Hearing Authority to consider
the impact of adverse effects and whether the adverse effects would be above and beyond
those ordinarily associated with the proposed use, i.e., a conditional use.
Significantly, the question before the Court is not whether cultural sensitivities is
one of the factors or conditions to be considered under HCZR (2012) § 131.B.2.a. Stated
-2-
otherwise, the question is not whether cultural sensitivities is an identified or proper factor
for consideration—i.e., an adverse effect in and of itself—akin to noise, dust, fumes, odors,
lighting, vibrations, hazards, and other physical conditions. Rather, the question is whether
the impact of factors such as noise, dust, fumes, odors, lighting, vibrations, hazards, or
other physical conditions will have an adverse effect on vicinal properties above and
beyond those ordinarily associated with the proposed conditional use. This includes
consideration of whether an adverse impact is greater due to cultural sensitivities where
such evidence is presented before the Hearing Authority.
HCZR (2012) § 131.B.2.a does not limit the Hearing Authority to merely
concluding or determining whether there will be an adverse effect of a physical type.
Indeed, it is evident that HCZR (2012) § 131.B.2.a’s provision that the “impact of adverse
effects” be considered is not limited to simply considering whether there is noise or not, or
whether there are fumes or not. Instead, consideration of the “impact of adverse effects”
must be taken into account. Under a plain reading of HCZR (2012) § 131.B.2.a, if the
impact of adverse effects such as noise or fumes— i.e., the type of adverse effects identified
in HCZR (2012) § 131.B.2.a—bears on a particular community’s cultural sensitivities and
the impact will be greater at the subject site due to those sensitivities, then the Hearing
Authority must consider the impact on the community’s cultural sensitivities in
determining whether to permit the proposed conditional use. Importantly, holding as much
would not preclude the Hearing Authority from considering the impact of physical
conditions on vicinal properties or otherwise limit or expand what the Hearing Authority
may consider as an impact.
-3-
In this case, in agreement with the Majority, I would conclude that Petitioners did
not present evidence of repercussions to their cultural sensitivities in accord with HCZR
(2012) § 131.B.2.a because they failed to tie the alleged affront to their cultural sensitivities
to the impact of adverse effects such as noise, dust, fumes, odors, lighting, vibrations,
hazards or other physical conditions. Here, as the majority opinion recounts, some
members of the community testified generally about the deep-seated cultural aversion to
the death industry that certain Asian cultures have and that they generally were opposed to
having a funeral home located so close to their residences. See Maj. Slip Op. at 31-33 n.18.
Those community members, however, failed to provide any indication that untoward
noises, dust, fumes, odors, lighting, vibrations, hazards, or other physical conditions would
have any consequence at all to their cultural sensitivities, let alone a greater impact at the
subject site due to their cultural sensitivities such that the Hearing Authority should have
considered as much when determining whether to permit the conditional use. For example,
had the community members testified that their cultural sensitivities would be impacted
due to the circumstance that they would be able to detect untoward odors emanating from
the funeral home, and that the impact at the subject site was greater than it would be
elsewhere, then the Hearing Authority would necessarily have needed to consider such an
impact under HCZR (2012) § 131.B.2.a. However, as stated, the community members in
this case testified only to a general opposition and dislike to residing near a funeral home.
Accordingly, I agree with the majority opinion’s discussion on cultural sensitivities,
see Maj. Slip Op. at 27-34, and its determination that the community members did not
provide a substantial nexus between their “cultural aversion to the death industry” and the
-4-
enumerated considerations the Board was required to consider in HCZR §131.B.2.a. Maj.
Slip Op. at 34. I write separately to define, from my view, the “substantial nexus” required
for an alleged impact on cultural sensitivities to be considered under HCZR (2012) §
131.B.2.a.
For the above reasons, respectfully, I concur.
-5-