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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1510 September Term, 1996

BRANDYWINE ENTERPRISES, INC.

v.

COUNTY COUNCIL FOR PRINCE GEORGE'S COUNTY, MARYLAND, SITTING AS THE DISTRICT COUNCIL, et al.

Salmon, Eyler, Sonner, JJ. Opinion by Eyler, J. Filed:

The issue presented by this appeal is whether the denial of a special exception by the County Council for Prince George's County sitting as the District Council (District Council), appellee, was arbitrary, capricious, and illegal. Brandywine

Enterprises, Inc., appellant, is the applicant, and Mattaponi Basin Citizens Association, Clark Aist, Mary Murphy, Joel Proctor, and Dorothy Proctor, appellees, are opponents. Facts Appellant is the owner of approximately 450 acres of land zoned O-S, located on the south side of Cross Road Trail approximately one mile east of its intersection with Md. Route 301. Approximately 177 acres currently are utilized as a rubble

fill approved by the District Council as a special exception on November 24, 1988, and valid through November 24, 1999. special exception in turn constituted an extension and continuation of a special exception for the operation of a rubble fill previously granted. Although the record contains some That

discrepancy regarding the date a special exception first was issued for the operation of a rubble fill on any portion of the 450 acre tract, it appears that appellant has been operating a rubble fill on the tract since at least 1982.1
1

At the time of

Two technical staff reports located in the record extract indicate that the first special exception for operation of a rubble fill was granted in 1977 and extended in 1982 until 1988. However, Brent Diltz, Chief Operating Officer for appellant, testified that the rubble fill operation did not begin until 1982 (continued...) - 1 -

the administrative hearings below, most of the 450 acre tract had been used for sand and gravel mining. In addition, the 177 acre

rubble fill included a closed section2 and an active and operating section. On April 2, 1993, appellant filed an application for a special exception for extension of its rubble fill operation onto 274 acres, immediately adjacent to the existing rubble fill, and intended to begin operating after the fill of the existing rubble fill is completed. After analysis of the Application, the

technical staff of the Maryland-National Capital Park & Planning Commission (M-NCPPC) issued its technical staff report on July 26, 1993. The technical staff recommended denial on the basis

that appellant had failed to meet its burden of proof with regard to various issues, and expressed particular concern with respect to the impact on neighboring residential properties "surrounded" by the proposed rubble fill. Subsequently, appellant amended its

application (Application) to reduce the acreage from 274 acres to 118 acres (Subject Property). According to appellant, the

reduction of acreage was in response to the technical staff's concern about the impact of the rubble fill on the neighboring (...continued) or 1983, and that the earlier special exception was for operation of a sand and gravel mine. Testimony indicated that the "closed" portion of the fill had not yet been fully capped and closed in accordance with State and County requirements. Further, testimony indicated that odors continued to emanate from the closed portion. - 2 2 1

residential properties.

A new technical staff report was issued

on January 5, 1994, recommending approval subject to certain conditions. One of the conditions was that "[t]his use shall not

commence until [the existing rubble fill approved as a special exception on Nov. 24, 1988] has been completed and closed out in accordance with all applicable State and County laws." On

February 24, 1994, the Prince George's County Planning Board of the M-NCPPC adopted the technical staff's recommendation of approval, subject to the recommended conditions. On March 3, 4, and 23, 1994, the zoning hearing examiner held hearings on the Application. On April 1, 1994, the hearing

examiner issued his decision denying the Application based upon an inadequate showing of "need" based on projected growth in the County as required by

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