Agenda - Planning Commission - 09/07/2017

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August 10, 2017 I Volume 11 I Issue 15 Zoning Bulletin sensitivity issue as 'not a physical condition' " to be considered under HCZR § 131.B.2. The Opponents also argued that the mental health of the Asian community should have been considered by the Board before its issuance of the CUP because the legislative intent of the HCZR was to "preserv[e] and promot[e] health, safety, and welfare of the community." DECISION: Judgment of Court of Special Appeals affirmed. The Court of Appeals of Maryland held that the Board properly analyzed Donaldson's CUP. In so holding, the court rejected all of the Opponents arguments: The court held that HCZR did not, as the Opponents had argued, contem- plate Board consideration of "a three-part scheme," including application of HCZR § 130.C, when reviewing a CUP. While HCZR § 130.0 related gener- ally to "public health, safety, security, and general welfare" considerations, the court found that HCZR § 131 "specifically addresse[d] conditional uses, and provide[d] both general and specific standards that govern[ed] the [Board's] approval of a conditional use." Thus, looking to the legislative intent of the HCZR, and the plain words of the statute, while giving a "degree of defer- ence" to the Board, the court concluded that "the standards set forth in HCZR § 130.0 do not govern the [Board's] consideration of conditional use applica- tions" because: the zoning regulation governing the relevant zoning district specifically stated that the conditional uses authorized in that zone were subject to the "detailed requirements for conditional uses given in Section 131" (see HCZR § 105.G); and "the plain language of HCZR § 130, when read as whole, d[id] not specifically address conditional uses, except to state that the [Board] ha[d] the power '[t]o approve conditional uses as to location' pursuant to HCZR § 131" (see HCZR § 130.B.5). The court also held that the Board was not required to identify ordinary or inherent adverse effects of a funeral home before approving the CUP application. The court said this was because "those adverse effects were previ- ously identified and weighed by the local legislature in deciding whether the use [was] compatible with other permitted uses within a given zone." And, the court held that "the Board properly concluded that the evidence of `cultural sensitivit[y]' was not sufficient" to deny Donaldson's CUP application. Addressing the Opponents' argument that the mental health of the Asian community should have been considered by the Board before its issu- ance of the CUP because the legislative intent of the HCZR was to "preserv[e] and promot[e] health, safety, and welfare of the community," the court reiter- ated its determination that, in approving funeral homes as a conditional use, the County Council had "already balanced the impact a funeral home would have on the general welfare and whether the use was compatible with the permitted uses in the zoning district." Furthermore, the court noted that the plain language of the zoning regulations supported the finding that the Board, in deciding to grant or deny a CUP, was only required to consider the enumer- ated conditions contained in HCZR § 131.B (e.g., physical conditions; structures, walls, fences, and landscaping; parking areas, loading areas, driveways, and refuse areas; and safe access). The court found that the testimony provided by several members of the Asian community, explaining their "cultural aversion to the death industry[,]" "failed to provide a substantial 8 © 2017 Thomson Reuters