Posted by: Patricia Salkin | January 1, 2011

MD Court of Appeals Discusses Inherent and Non-Inherent Adverse Effects in Review of Special Exception Permit

Butler operated a landscape contracting business which is not permitted in the rural density transfer zone unless a special exception has been granted.  Butler began operating her business without a special exception and later tried to rectify this mistake by filing an application with the County.  After receiving public complaints and holding a public hearing, the Zoning Hearing Examiner issued a report denying Butler’s application due to the adverse consequences on other properties due in part to the noise generated by trucks delivering goods to Butler’s property. The Board of Appeals agreed with the Hearing Examiner.  Butler sought judicial review by the Circuit Court and the court reversed the Board’s decision stating that all of the reasons stated for denying the application for a special exception were inherent to the operation of a landscaping business.

On appeal, the Court’s review was focused on the Board’s determination that non-inherent adverse effects continued on Butler’s property.  Neither party disputed the definition of inherent adverse effect and non-inherent adverse effect. Rather, the dispute was over how the agency applied the statute. In determining whether there were non-inherent adverse effects, the Court used the “substantial evidence” test.

The applicable code explains that non-inherent adverse effects are a sufficient reason for denying a special exception application but inherent adverse effects are not.  Here, the Court determined that the County Code’s definitions were an appropriate exercise of legislative authority.  More specifically, the County Code allowed the board to look at any adverse effects from the characteristics of the property in question and as such, this is consistent with guiding case law.  The Court determined that the evidence for which the Board relied was substantial and that the Board’s decision to deny the application for a special exception was reasonable in this instance.  The case was reversed and remanded with the instruction that judgment was to be entered in favor of the Board.

Montgomery County v. Butler, 2010 WL 5113200 (Md. 12/16/2010)

The opinion can be accessed at: http://mdcourts.gov/opinions/coa/2010/27a10.pdf


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