Howard County hearing examiner allows appeal of DPZ "no violation" finding in W.R. Grace pilot-plant dispute

The Howard County Zoning Hearing Examiner on March 18 took testimony in an administrative appeal by Aidan and Sarah Morel challenging a Department of Planning and Zoning (DPZ) "no violation" letter dated Sept. 13, 2024, related to work at the W.R. Grace research site in Columbia.

The appellants and several neighbors told the hearing examiner the work described in W.R. Grace's permit applications — including installation of new equipment, a larger concrete pad and a flameless oxidizer described in state permit filings — should be treated as a new or enlarged industrial use rather than routine research-and-development activity. They asked the examiner to find the DPZ determination insufficient and to remand the matter for further analysis of nonconforming-use and neighbor-impact issues.

Why it matters: The dispute turns on whether DPZ's one-page "no violation" letter addressed only uses present at the time of inspection, or whether county reviewers should have analyzed prospective changes tied to a 2023 MDE air-permit filing and recent building-permit work at Building 30. If the work is an enlargement or different use, neighbors say it should have triggered a different zoning review and additional public process; W.R. Grace and its counsel say DPZ correctly reviewed current onsite uses and that prospective permitting by state agencies is a separate track.

At the start of the hearing, Tom Cole, counsel for interested party W.R. Grace, asked the examiner to limit the appeal to DPZ's Sept. 13, 2024 no-violation letter and to exclude an earlier DPZ communication and a 2023 permitted-use confirmation that counsel said was not timely appealed. "The rules, under the hearing examiner and the Howard County code state that an appeal of administrative action must be within 30 days of the date of that administrative decision or action," Cole said during argument on scope. The examiner declined to limit the record at that time, saying she would admit the proffered documents and hear the evidence.

Appellants' counsel, identified in the record as Mr. Gill, told the hearing examiner the core claim is that DPZ's 2024 letter "didn't really go forward with an analysis at all" and was "pro forma." Gill argued the work being done and permitted at the site — including construction of a pilot plant described in state permit materials and new rooftop equipment and doors shown in county building-permit filings — would constitute an enlargement or change of a nonconforming use that is constrained by Howard County zoning rules and by earlier conditional-use conditions attached to the property. Gill pointed to historical conditional-use language from a 1955 case that explicitly forbade pilot plants on the site and asked for, at minimum, a remand so DPZ could supply a fuller factual analysis.

W.R. Grace's counsel responded that DPZ's inspection and resulting 2024 letter addressed only ongoing uses at the time of the inspection and not prospective uses or state permitting. Richard Gold, counsel identified in the record for W.R. Grace, said a nonconforming-use confirmation is available to property owners but is not required to establish a nonconforming use and that the company has a lawful research-and-development presence in the site's planned employment (PEC) zoning. Gold argued the hearing examiner's role is appellate review for whether DPZ's action was "clearly erroneous, arbitrary and capricious, or contrary to law."

The record introduced during opening statements included: the appellants' petition and supplemental materials; an initial neighborhood complainant's letter dated Aug. 6, 2024 (listed in the record as submitted by Nana Adadeh); a Sept. 9, 2024 letter from W.R. Grace to DPZ describing the company's activities; DPZ's Sept. 13, 2024 no-violation letter; county building-permit filings for Building 30 describing enlargement of openings and concrete work; and an MDE air-permit application and supporting materials. The hearing examiner received multiple exhibits into evidence and stated she would consider testimony and the documentary record.

The hearing included technical testimony from David (Dave) Arndt, a chemical engineer, who described the W.R. Grace air-permit application as proposing a pilot scale process that uses a flameless oxidizer and other equipment he characterized as different in kind from bench-scale lab work. Arndt testified the flameless oxidizer had been treated by state reviewers as an incineration device and warned of potential emissions tied to processing mixed plastics. "Make no mistake this is an incineration process that will produce deadly compounds," Arndt said on the stand, summarizing compounds that can be associated with thermal processing of mixed plastics and additives.

Several Cedar Creek residents testified about notice and neighborhood impacts. Raja Ramadas, identified in the record as a nearby resident and engineer, criticized what he described as process-focused review without community-centered analysis: "If all you go by is a checklist or the words on paper with no consideration as to the outcome it will have for the people who ultimately care, then you're, you're essentially doing nothing," he said. Neil Tilda, the Cedar Creek homeowners association president who testified on his own behalf, told the examiner, "Grace's new project is not a continuation of prior research. It is a fundamentally different type of activity that introduces a new set of risks, infrastructure, and impacts." Other residents testified they had not received direct outreach from W.R. Grace describing the project and that the adjacent subdivision was built after earlier conditions on the property were set.

The hearing examiner denied Tom Cole's motion to limit the appeal's scope, saying she would accept the proffered documents and hear testimony from witnesses. She also advised that she could order further procedures later if warranted, but she did not at that time remand DPZ's action. The examiner set a continuation of the evidentiary hearing for April 29 at 10 a.m. and admitted multiple exhibits for consideration.

What remains to be decided is whether DPZ's Sept. 13, 2024 no-violation letter was so lacking in analysis that it was arbitrary or contrary to law, and whether the new construction and state air-permit application evidence an enlargement or change of use requiring a different zoning review. Counsel for the parties signaled they will call additional witnesses, including technical experts, at the continued hearing.

The hearing record shows the dispute mixes overlapping regulatory tracks: county zoning review (DPZ), state air permitting (MDE), and historical conditional-use conditions attached to the site. The hearing examiner can reverse, remand or affirm DPZ's action based on whether the agency's decision was legally sufficient.

The hearing was continued to April 29 for additional testimony and evidence. The examiner said she will receive further exhibits and witness testimony before issuing a final decision on whether DPZ's action should be upheld, reversed or remanded to county staff for additional analysis.