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Capitol Associates, LLC, J.M. Land Management Development Co. and Cunningham Sand and Gravel, Inc., the applicants, seek a special exception (2005-0278-S) to permit a modification to a previously approved special exception for a sand and gravel operation on property located along the north side of Capitol Raceway Road, north of Maryland Route 3, Crofton.
The hearing notice was posted on the County's web site in accordance with the County Code. The file contains the certification of mailing to community associations and interested persons. Each person designated in the application as owning land that is located within 175 feet of the property was notified by mail, sent to the address furnished with the application. Joy Faithful, the office manager for Cunningham Sand and Gravel, Inc., testified that the property was posted for more than 14 days prior to the hearing. I find and conclude that the requirements of public notice have been satisfied.
In Case Nos. BA 65-92-S, 66-92-S, 68-92-S and 69-92-S (December 8, 1993), the County Board of Appeals of Anne Arundel County conditionally approved special exceptions for a sand and gravel operation and a rubble landfill on property comprising 184.25 acres located 6,000 feet northwest of Maryland Route 3 and 2,400 feet north of Route 424. Condition A. 11, which is applicable to both operations, incorporated an Agreement between the Four Seasons Community Association, Inc., and Cunningham Excavation, Inc., dated September 23, 1992 (Attachment A). Paragraph 4 of the Agreement states: "[n]either the sand and gravel operation, nor the rubble landfill operation will ever be operated in the 1,000-foot setback area indicated on the Special Exception site plan."1The present request is to expand the existing mining operation (Mining Area A) into the 1,000-foot setback (Mining Area B).2 The new mining area comprises 29 acres. The entire site comprises approximately 274 acres of RA Agricultural Residential District property, identified as Tax Map 36, Block 4 and 5, Parcel 9 (129.5 acres), Parcel 10 (131.99 acres), and Parcel 239 (1.76 acres).
A sand and gravel operation is a special exception use subject to the specific criteria in Anne Arundel County Code, Article 18, Section 18-11- 113 and the general criteria in Section 18-16-304. The applicants have the burden of proof on all questions of fact. Section 18-16-301(c).
Robert Konowal, a planner with the Office of Planning and Zoning, testified that the proposal is capable of satisfying the applicable criteria. More particularly, the use is allowed within 300 feet of a dwelling, provided acceptable methods are used to screen the operation from sight and the noise at the lot lines meets the standards in the code. In this case. the applicants are proposing a combination of plantings and a berm for screening and noise attenuation. There were no adverse agency comments. By way of conclusion, Mr. Konowal supported the application, subject to proof of need, an acceptable noise study and a maximum duration of 25 years for the use. In response to my inquiry, Mr. Konowal indicated that, with the exception of Condition A. 11, the balance of the Board's conditions applicable to the sand and gravel operation are unaffected.
Timothy Martin, a land surveyor employed by the applicants, submitted a series of exhibits: color coded Overall Plan, Reclamation/Sediment and Erosion Control Plans, before and "after"3 photographs of typical winter views of the berm, tax map showing access from Capitol Raceway Road, and site photographs. The applicants are planning to expand from Mining Area A to the east, then south. Construction of the new berm - from preexisting borrow and newly excavated overburden with a six-inch cap of topsoil - would start at the same time as the new mining operation. The proposal includes adequate parking and transportation and additional fencing. There would be no impact to ground and surface waters. This is a daytime operation and there would be no lighting. With respect to the general criteria, there is no conflict with existing or programmed facilities; the use is no more objectionable than permitted uses, including an airfield or farming; the use does not conflict with existing or programmed public facilities; the property is not located in the Critical Area; and the setback exceeds the maximum buffer provided for in the County's Landscape Manual.4 Concerning the specific criteria, the reclamation activity would not increase the site grade above the grade of the surrounding undisturbed area; offsite materials would not be brought to the site; the operation would not be visible from adjacent residences due to the intervening planted berm; the sound level would be within the standard in the code; the excavation to 48 feet is consistent with Mining Area A; the new berm would be 300 feet from the nearest residence; and the area of excavation would be stabilized.
On questioning by attendees at the hearing, Mr. Martin testified that the construction of the new berm would take a year, during which time excavation is planned in Mining Area B. He believes that the proposal includes adequate controls for runoff. Finally, an existing County park property is within 500 feet of Mining Area B.
Eric See, an environmental consultant to the applicants, summarized his wetlands investigation. In brief, Mining Area B includes a small area (1,500 to 2,000 square feet) of non-tidal wetlands consisting of a man-made pond or an un-reclaimed borrow pit. The U. S. Army Corps of Engineers previously disclaimed jurisdiction. In the event the Maryland Department of the Environment (MDE) asserts jurisdiction, MDE is likely to permit excavation under a Letter of Authorization.
Ms. Faithful testified that Mining Area B would operate the same hours as Mining Area A (Monday through Friday 7 a.m. to 5 p.m., one-half day Saturday for pick-up of materials). Existing equipment would be utilized as part of a single operation, rather than the intensification of mining activity with increased traffic. Fencing, including existing damaged fencing, would be relocated closer to the eastern boundary. County inspectors would continue to have access to the site. In response to inquiry by Torrey Jacobsen. President of the Greater Crofton Council, Ms. Faithful testified that the applicants anticipate the same level of revenues going forward as they are presently earning.
Richard Peppin, a registered Professional Engineer and board certified noise control engineer employed by the applicants, summarized his environmental noise study on the basis of the worst-case scenario.5 In summary, the noise from the operation would not exceed the standards in the code. In particular, the berm would be effective in attenuating the sound from Mining Area B so long as the excavation lags the construction of the berm by 15 to 20 feet. On questioning by Lawrence Piccinini, who resides adjacent to the eastern boundary, Mr. Peppin indicated that his model does not factor noise from Capitol Raceway. Nevertheless, the result should be a reduction in the noise from Capitol Raceway.
James Cunningham testified that the site has been mined since 1974 and there is a continuing need for the materials it produces. The witness confirmed that the only access is across Capitol Raceway Road. The existing fence, which has been vandalized, undergoes regular repairs and would be relocated in an effort to keep out trespassers. Customers and over-the-road trucks would not be permitted in the mining area. The excavation would be approximately 80 to 90 feet below the elevation of the adjacent residences, taking into consideration the intervening berm. The wetlands area described by Mr. See is an old farm irrigation pond. The existing operation would be unchanged, and the existing berm would likely remain. There would be no added trucks or traffic. The mining and reclamation would occur simultaneously, with an estimated duration of up to 20 years, depending on market demand. The reclamation material would be clean fill, with no component of rubble or municipal waste. Finally, the applicants are negotiating a new agreement with the Four Seasons Community Association, Inc.
In response to inquiry by Mr. Jacobsen, Mr. Cunningham acknowledged that the new- agreement with the Four Seasons Community Association, Inc. was not yet finalized.6 He indicated that the operation generates fewer highway trucks today than 15 to 20 years ago because rubble fill is no longer being accepted. The truck traffic from the sand and gravel mine is about the same (approximately 100 trucks) or less. Finally, the use of dewatering pumps in Mining Area B would be weather dependent. In response to inquiry by George Athanasas, who also resides along the eastern boundary, Mr. Cunningham indicated that site violations issued by governmental agencies have been resolved through settlement agreements.
At this juncture, Ms. Faithful was recalled. She indicated that the business tracks tonnage rather than trucks. She anticipates supplying the same customers and tonnage as in the past 10 years. (The applicants also provided a negative traffic impact declaration.)
Mr. Jacobsen expressed concern that the request will increase the amount of truck traffic on Route 3. He also questioned the need. He opposed the expansion into the 1,000-foot setback and excavation of the area of wetlands. Should the request be approved, the berm should be completed before the excavation and the operation should be limited to weekdays.
Mr. Piccinini disputed the authority of the Four Seasons Community Association, Inc. to vary the terms of the 1992 Agreement.
Morris Hennessen, also a resident along the eastern border, opposed the application.
Boiled down to its essence, the issue in this case is whether this office is authorized to reduce the setback established by the Board of Appeals when it incorporated the 1992 Agreement by reference into the conditions of the 1993 approvals. This appears to be an issue of first impression.
A special exception use is a use that the legislative body has recognized to have no greater adverse effect at the proposed location than elsewhere in the zoning district. Schultz v. Pritts, 29 l Md. 1 ( 1981 ). The general rule is that the approving authority has broad discretion in the imposition of conditions for special exceptions in furtherance of the zoning scheme and as an assurance that the use will not be detrimental to the public welfare. Montgomery County v. Mossburg, 228 Md. 555 (1962). That is, a party may not demand an unconditional special exception. And, a party has the option to either appeal or the party accepts the approval with all its conditions. Id. at 560-561. See also, Skipjack Cove Marina Inc. v. County Commissioners for Cecil County, 252 Md. 440 (1969), indicating that a change in circumstances following an approval does not require the approval of a request for new relief.
At the time of the 1993 decision by the Board of Appeals, sand and gravel operations were permitted - just as they are today - within 1,000 feet of a dwelling so long as a host of requirements were satisfied. See, former Article 28, Section 12-212(b).7 In approving the uses, the Board of Appeals wrote:
Since the Four Seasons community is no longer in
opposition to the granting of the special exceptions because of
an agreement with the Petitioners, the Board believes that it is
also appropriate to make the adherence to the agreement one of the
conditions to the granting of the special exceptions.
Opinion at 19-20.
Thus, it is clear is that the Board of Appeals determined that the withdrawal of the opposition was so significant that the terms of the 1992 Agreement-including the 1,000-foot setback - were incorporated by reference as further conditions of the 1993 approvals. In contrast, the decision of the Board of Appeals is silent on whether it would have approved the uses absent the 1,000-foot setback. And, despite the contrary recital in the 2005 Community Benefit Agreement, the 1992 Agreement is silent on the subject of future modifications to its terms by the parties. In fact, Paragraph 11 recites that the 1992 Agreement shall survive the then current special exception "and become part of any subsequent exception."
While the matter is far from certain, my doubts about substituting the 300-foot setback for the 1,000-foot setback established by the Board of Appeals are sufficiently strong that the request will be denied.
PURSUANT to the application of Capitol Associates, LLC, J.M. Land Management Development Co. and Cunningham Sand and Gravel, Inc., petitioning for a special exception to permit a modification to a previously approved special exception for a sand and gravel operation; and
PURSUANT to the advertising, posting of the property, and public hearing and in accordance with the provisions of law, it is this 9th day of December, 2005,
ORDERED, by the Administrative Hearing Officer of Anne Arundel County that the applicants' request is denied.
Within thirty days from the date of this Decision, any person, firm, corporation, or governmental agency having an interest therein and aggrieved thereby may file a Notice of Appeal with the County Board of Appeals.
If this case is not appealed, exhibits must be claimed within 60 days of the date of this Order, otherwise that will be discarded.
1. The 1,000-foot setback generally parallels the eastern boundary of the property.
2. The letter of explanation accompany the application refers to a reduction of the setback to 300 feet from the properly boundary. The site plan shows a wooded and planted buffer measuring 200 feet and a berm with a maximum height of 35 feet between Mining Area B and the 200-foot buffer.
3. For the "after" photographs, the proposed planted berm has been digitally superimposed onto the before photographs.
4. Although the Manual is silent on the buffering required for a sand and gravel operation, the maximum buffer in the Manual is 100 feet.
5. Mr. Peppin considered the simultaneous operation of all equipment, a receiver height of 12 feet, a source height of 10 feet and gave no credit for attenuation by trees.
6. The record was left open the 30 days for the submission of the finalized agreement ("Community Benefit Agreement") between the applicants and Four Seasons Community Association, Inc. (Attachment B, submitted on November 21, 2005.) (Because the 30th day after the hearing fell on November 19, 2005, a Saturday, the time period was extended until the next business day.)
7. The same requirements are now set forth in Section 18-11- 113(13).