Posted by: Patricia Salkin | October 6, 2017

MD Court of Appeals Upholds Grant of a Conditional Use Application for a Funeral Home

Donaldson Properties filed a conditional use application with the Howard County Board of Appeals, to build a funeral home and mortuary. The proposed site was located 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, but Donaldson appealed de novo to the Board. After two revisions, the Board approved Donaldson’s conditional use application subject to several conditions. The community members who participated in the related public hearings filed a petition for judicial review in the circuit court, which affirmed the Board’s decision. The community members appealed, and the Court of Special Appeals upheld the Board’s approval of Donaldson’s conditional use.

The court first noted that HCZR § 131.B and § 131.N.22 provided detailed standards for approving conditional uses, and specifically conditional use approval for a funeral home, while HCZR §130.C was a general provision that related to “public health, safety, security or general welfare.” Thus, the court found that the Board did not err in applying HCZR § 131. The court further noted that if the conditional use applicant demonstrated compliance with the prescribed standards and requirements set forth in the relevant statute or regulation, then there would be a presumption that the use was in the interest of the general welfare. Here, because the Howard County Council assessed the adverse effects inherent in a funeral home, and determined that a funeral home was 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, the court held that it was not necessary for the Board to specify what adverse effects were inherent in a funeral home before approving the Revised Plan.

Petitioners next argued the Board acted unreasonably when it “approved the funeral home in spite of the surrounding Asian community’s deep-seated cultural aversion to the death industry.” The court found 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 petitioners failed to do so, the court held that 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.”

Petitioners lastly contended that the Board acted unreasonably when it approved the removal of a natural forest along a Tier II stream, which would remove a significant amount of the property’s naturally wooded riparian buffer. The court rejected this contention, however, as nothing in the record reflected that Donaldson proposed to clear fifty feet of forested stream buffer in order to develop the funeral home. Because there was no indication from the record that Donaldson intended to remove trees from the stream buffer, the court held that Petitioners allegations that the Board failed to consider such action were without merit.

Clarksville Residents Against Mortuary Defense Fund, Inc v Donaldson Properties, 2017 WL 4103706 (MD 6/22/2017)

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