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HEADNOTE: Leland Ross Pierce v. Montgomery County, No. 1304 Sept. Term, 1996

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MODIFICATION OF SPECIAL EXCEPTION UNDER MONTGOMERY COUNTY CODE SECTION 59-G-1 AND 2: Board of Appeals not required to review an underlying special exception when there is no modification requested of that underlying use; Board may limit its review of a modification request to those aspects directly affected by the request.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1304 September Term, 1996

LELAND ROSS PIERCE

v.

MONTGOMERY COUNTY, MARYLAND et al.

Cathell, Sonner, Bishop, John J. (Ret., specially assigned), JJ. Opinion by Bishop, J. Filed: August 27, 1997

This appeal involves an order of the Circuit Court for Montgomery County, which affirmed an order of the Board of Appeals for Montgomery County granting a modification to a special exception. Appellant, Leland Ross Pierce, owns a house

adjacent to the Baptist Home for Children and Families, operated and owned by the Baptist Home and Montgomery County, appellees. Issue Pierce argues, in essence, that the trial court erred in affirming the order of the Board of Appeals, because the Board failed to determine whether the proposed modification constituted an expansion. Pierce posits that the proposed modification

unquestionably involves an expansion and argues that, because the Baptist Home does not front on a public road built to arterial or higher standards, the Board's approval was improper. merit in this argument and affirm. Facts The Baptist Home was founded in 1915 as an orphanage. In 1930, it was moved to its current location -- a 13.04 acre parcel of land in Bethesda which was later zoned R-60 for single family homes. The original building on the property housed, and We find no

still houses, 42 persons. In 1971, the Baptist Home petitioned the Board of Appeals for permission to construct two more dormitories on the property. One would house ten boys and one would house ten

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girls, thus bringing the number of children at the Home to 62. The Board granted the petition and at the same time found the Home, as a charitable or philanthropic institution, to be a special exception. A written opinion issued by the Board

recognized that the children housed at the Home "come from the Montgomery County Social Services, some from broken homes, and all are dependent." The Board further recognized that

"[c]ounselling is provided at the Home in the area of social, religion, and psychiatric." At some point after 1971, the goals of the Baptist Home evolved and the Home began accepting homeless families as well as children. In mid-1995, the Home submitted the petition in issue In the petition, the Home requested permission to

to the Board.

make modifications as follows: - Conversion of the existing boys' dormitory to [become] the Greentree Training Facility[, including a 465 square foot addition]. - Conversion of the existing girls' dormitory to a boys' dormitory. - Construction of a new girls' dormitory. - Modification to the existing shelter component to recognize that the shelter now accommodates children and adults. The Home explained in the petition that BHCF seeks Board approval to relocate some of its existing counseling programs and its education programs to the Greentree Training Facility. BHCF also seeks Board - 2 -

approval to expand its job training program at the Greentree Training Facility for all residents to include furniture refinishing, small appliance repair, computer training and a program to rehabilitate donated goods for use by the existing residents. As the new location for the Greentree Training Facility, the converted boys' dormitory will provide much-needed additional space for these important counseling and education activities. The Home also sought permission to add seven parking spaces, bringing the total number to 58. increase the number of residents. In the petition, the Home explained: The education and counseling services that BHCF has provided through the years have evolved and expanded to meet the needs of its residents. In a continuing effort to meet those needs, BHCF now seeks Board approval for an "expansion or enlargement" that, in reality, will maintain the two-dormitory housing arrangement originally approved by the Board in 1971, and will enable BHCF to have a facility, the Greentree Training Facility, large enough to continue the necessary educational and counseling services its residents require. Arguably, this Petition does not represent an expansion or enlargement at all since the number of residents will remain the same and the educational and counseling services will continue, albeit at a more centralized, better facility. In which case, no waiver is even required. The Home went on to ask that, if the Board did construe the requested modifications to be expansions, the Home be granted a waiver from a requirement that the property have direct access to a public road built to arterial or higher standards. - 3 It did not seek permission to

A hearing was held in July of 1995, and testimony was presented by both proponents and opponents of the proposal. September of 1995, the Board issued an opinion by which it granted the Home's requested modifications. Pierce appealed to In

the circuit court, and Montgomery County requested and was granted permission to intervene as an appellee. After reviewing

the record before the Board and hearing argument by the parties, the court affirmed the Board's order. This appeal followed.

Discussion Section 59-G-1.3(c) of the Montgomery County Code provides that "[t]he Board [of Appeals] is authorized to amend or modify the terms or conditions of a special exception upon the request of the special exception holder . . . ." further provides: (1) If the proposed modification is such that the terms and/or conditions could be modified without substantially changing the nature, character or intensity of the use and without substantially changing the effect on traffic or on the immediate neighborhood, the board, without the necessity of convening a public hearing to consider the proposed change, may modify such term or condition . . . . (2) If the proposed modification would alter the terms and/or conditions of the special exception in such manner as to substantially change the nature, character or intensity of use of the original grant, would result in the extension, expansion or alteration of the size, location or - 4 The section

appearance of the structure, or would intensify the impact on traffic or on the immediate neighborhood, the board shall convene a public hearing to consider the proposed modification. . . . . . . (4) The public hearing shall be limited to consideration of the proposed modifications noted in the board's notice of public hearing and to discussion of those aspects of the special exception use that are directly related to those proposals. (5) After the close of the record of the proceedings, the board shall make a determination on the issues presented. The board may reaffirm, amend, add to, delete or modify the existing terms and/or conditions of the special exception. . . . Section 59-G-2.21(g) of the Code directs: A charitable or philanthropic institution for which a petition was approved prior to August 14, 1988, is not a nonconforming use. Such special exception may be amended in accordance with the modification provisions of Section 59-G-1.3(c), subject to the following provisions: (1) Any expansion or enlargement must comply with the standards specified in paragraph[] (a) . . . above . . . . . . Section 59-G-2.21(a) reads, in pertinent part, as follows: In . . . One-Family Residential Zones regulated by Section 59-C-1.32, the development standards are as follows: (1) Minimum lot size: twice the minimum required by section . . . 59-C-1.32 . . . . . . . - 5 -

(3) Minimum side yard setback: twice the minimum required by Section . . . 59-C-1.32 . . . . (4) Minimum frontage: twice the minimum required by section . . . 59-C-1.32 . . . . (5) Minimum green area: 50 percent. (6) Maximum FAR: 0.2. (7) Maximum lot coverage: half the maximum permitted by section . . . 59-C-1.32 . . . . (8) Maximum building height: as specified in section . . . 59-C-1.32 . . . . (9) The property must front on and have direct access to a public road built to arterial or higher standards . . . . (Emphasis added.) In granting a modification to a special exception, as in making any other decision, the Board must expressly state its findings of fact and conclusions of law. Section 59-A-4.123 of

the Montgomery County Code states: "All decisions of the board shall be taken by written resolution. Each resolution shall

contain a statement of the grounds and findings forming the basis for such decisions . . . ." In Lee v. Maryland Nat'l Capital

Park and Planning Comm'n, 107 Md. App. 486, 492 (1995), cert. denied, 343 Md. 333 (1996), we explained: A court reviewing the decision of an administrative agency 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 upon an erroneous conclusion of - 6 -

law." . . . The standard of review thus depends upon the nature of the agency finding being reviewed. . . . First, the reviewing court must determine whether the agency interpreted and applied the correct principles of law governing the case and no deference is given to a decision based solely on an error of law; the court may substitute its own judgment. . . . "In regards to findings of fact, the [reviewing] court cannot substitute its own judgment for that of the agency and must accept the agency's conclusions if they are based on substantial evidence and if reasoning minds could reach the same conclusion based on the record." . . . (Citations omitted.) continued: We must, in order to assess a trial court's ruling, apply a different test. . . . "While the `clearly erroneous' standard applies to the court's findings of fact, the application of the law to the facts is judged on the abuse of discretion standard." . . . We must apply both standards: (1) the fairly debatable standard in assessing the trial court's findings in respect to the agency decision, and (2) the abuse of discretion standard in respect to the trial court's conclusions. County Comm'rs of Carroll County v. Zent, 86 Md. App. 745, 752-53 (1991) (emphasis in original; citations omitted). Whether a modification is an expansion within the meaning of

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