Agenda - Planning Commission - 04/07/2011

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Zoning Bulletin Pursuant to the County Code, landscape contracting was not permit- ted as of right in the RDT zone. However, it was allowed with the grant of a special exception. Butler had not obtained a special exception prior to establishing her landscape contracting business. After receiving a No- tice of Violation from the County's Department of Permitting Services, Butler applied for a special exception in July 2007. The county zoning hearing examiner recommended Butler's special exception application be denied. The county's Board of Appeals (the "Board ") denied Butler's application. That denial was based on the find- ing that, in this particular location, Butler's landscape contracting busi- ness presented "non- inherent adverse effects sufficient to warrant denial County Code S 59 -G -1.21 required the Board to "consider the inher- ent and non - inherent adverse effects of the use on nearby properties and the general neighborhood at the proposed location." "Inherent adverse effects" were defined under the Code as those involving "the physical and operational characteristics necessarily associated with the particular use, regardless of physical size or scale of operations." "Non- inherent adverse effects" were defined as those involving "physical and opera- tional characteristics not necessarily associated with the particular use, or adverse effects created by unusual characteristics of the site." The Board had found that Butler's landscape contracting business presented non - inherent adverse effects sufficient to warrant denial be- cause (1) due to the proximity to a neighboring property owned by Cora Weeks (42 feet to Weeks' residence and 22 feet from her property line), the commercial traffic traveling on Butler's driveway would have "seri- ous adverse consequences on [Week's] property"; (2) "the noise gener- ated by trucks and Bobcats when operated in reverse, would have serious adverse consequences on both adjoining neighbors "; and (3) "the con- figuration of the lots and of the proposed use would produce traffic and noise on the property having immediate adverse effects on the adjoining neighbors." Butler appealed the Board's decision to the county circuit court. The circuit court reversed the Board's decision. The court found that all of the adverse effects noted by the Board were "inherent to the opera- tion of a landscaping business ...." It held that the inherent effects of a landscaping company operation on surrounding property do not rise to the level of non - inherent effects. As such, the court concluded that the adverse effects from Butler's landscaping business were not sufficient to deny Butler's special exception application. The county and Weeks appealed to the Court of Special Appeals. On its own initiative, the court of appeals issued a writ of certiorari and con- sidered the appeal. DECISION.: Reversed. January 25, 2011 1 Volume 51 No. 2 © 2011 Thomson Reuters 3