Angelini v. Harford County

CHARLES E. MOYLAN, Jr., Judge, retired, specially assigned. Our consideration of this appeal requires us to take a fresh look at the most rudimentary A, B, C’s of the administrative process. What, before an administrative agency, is the difference between the burden of production and the burden of persuasion? To whom is allocated the burden of persuasion?

What, if any, basis does an administrative tribunal require to justify its being unpersuaded? The appellant, Shirley Angelini, appeals from the denial by the Harford County Board of Appeals, in turn affirmed by Judge Emory A. Plitt, Jr. in the Circuit Court for Harford ³⁷² County, of her request that a B3 zoning boundary be extended for an additional one hundred feet. Harford County is the appellee. The appellant, in her capacity as trustee under her late father’s will, owns a parcel of land comprising 47.83 acres located at or near the intersection of Mountain Road (Rte.152) and Belair Road (Rte.l) in Harford County.

The property has been in her family’s ownership since the 1940’s and is “split zoned” into three categories: B-3 General Business District, R-2 Urban Residential District, and AG Agricultural District. Initially the appellant sought to extend the B-3 zone (most of which was in the parcel comprising 4.73 acres fronting on Belair Road with a narrow strip fronting on Mountain Road) into the R-2 and AG areas behind the B-3 zone. She first requested (1) a 500 foot extension based on the topography adjustment contained in § 267-10(c) of the Harford County Zoning Code (the “Code”), (2) an area variance to permit the adjusted boundary to be within 300 feet of the parcel’s boundary under § 267-11 of the Code, and (3) the extension of the B-3 zone by 100 feet under § 267-10(B) of the Code. During the course of the hearing before the Zoning Examiner, the appellant withdrew the first two requests, leaving only the request that the Board extend the B-3 district by 100 feet pursuant to § 267-10(B).

The denial of that request is the only issue before us. The Zoning Hearing Examiner recommended that the request be approved by the Harford County Council sitting as the Harford County Board of Appeals. The Board heard argument, utilizing the testimony before the Examiner, and in a written opinion denied the requested extension of the B-3 zoning boundary. The circuit court, in an opinion by Judge Plitt, affirmed the action of the Board.

Standard of Review The critical issue before us is the Board’s interpretation of a section of the Zoning Code. Our initial focus is on the appropriate standard of appellate review we should bring to ³⁷³ bear on such an interpretation. When the caselaw discusses the standard of review to be applied to a decision of an administrative agency, it generally distinguishes between 1) the agency’s findings of fact, to which great deference is due under the “clearly erroneous” standard; and 2) the agency’s rulings of law, as to which the courts do not hesitate to substitute their judgment for that of the agency. The critical agency determination in this case was not a finding of fact.

Neither was it a ruling of law in the more common sense, although it was more like the latter than like the former. It was, rather, the agency’s interpretation of a law or regulation with respect to which the agency has a special expertise. When such an interpretation is under review, judicial deference is called for. As Judge Eldridge explained for the Court of Appeals in Board of Physician Quality Assurance v. Banks, 354 Md. 59, 68-69 , 729 A.2d 376 (1999): “Despite some unfortunate language that has crept into a few of our opinions, a court’s task on review is not to “ ‘ “substitute its judgment for the expertise of those persons who constitute the administrative agency,’”” United Parcel v. People’s Counsel, supra, 336 Md. at 576-77, 650 A.2d at 230, quoting Bulluck v. Pelham Wood Apts., supra, 283 Md. [505] at 513, 390 A.2d [1119] at 1124 [1978].

Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. Lussier v. Md. Racing Commission, 343 Md. 681, 696-697 , 684 A.2d 804, 811-812 (1996), and cases there cited; McCullough v. Wittner, 314 Md. 602, 612 , 552 A.2d 881, 886 (1989) (‘The interpretation of a statute by those officials charged with administering the statute is ... entitled to weight’). Furthermore, the expertise of the agency in its own field should be respected.

Fogle v. H & G Restaurant, 337 Md. 441, 455 , 654 A.2d 449, 456 (1995); Christ [ex rel. Christ] v. Department of Natural Resources, 335 Md. 427 , ³⁷⁴ 445, 644 A.2d 34, 42 (1994) (legislative delegations of authority to administrative agencies will often include the authority to make ‘significant discretionary policy determinations’); Bd. of Ed. For Dorchester Co. v. Hubbard, 305 Md. 774, 792 , 506 A.2d 625, 634 (1986) (‘application of the State Board of Education’s expertise would clearly be desirable before a court attempts to resolve the’ legal issues).” (Emphasis supplied). In Marzullo v. Kahl, 366 Md. 158 , 783 A.2d 169 (2001), the Court of Appeals was faced with the review of precisely the type of interpretation we are reviewing in this case. Judge Cathell explained why deference is the controlling standard: In the case sub judice, the facts of the case are not in dispute; however, the Board of Appeals’ interpretation and application of the BCZR is in dispute.

As stated in Banks, even though the decision of the Board of Appeals was based on the law, its expertise should be taken into consideration and its decision should be afforded appropriate deference in our analysis of whether it was “premised upon an erroneous conclusion of law.” Banks, 354 Md. at 68 , 729 A.2d at 380 , quoting from United Parcel Service, Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994). 366 Md. at 173 , 783 A.2d 169 (emphasis supplied). See also Baltimore Gas & Elec. Co. v. Public Service Comm’n of Maryland, 305 Md. 145, 161-62 , 501 A.2d 1307 (1986); Haigley v. Dept. of Health, 128 Md.App. 194, 216-17 , 736 A.2d 1185 (1999). Accordingly, “the expertise of the [Harford County Board of Appeals] in its own field [will] be respected.” The Code Provision Section 267-10 of the Harford County Zoning Code provides in pertinent part: The Board, upon application therefor, after notice to the owners of the properties affected and public hearing, may render interpretation of the boundaries of a zoning district by: ³⁷⁵ B. Extension of a district: permitting the extension of a district if the boundary line of a district divides a parcel held in single ownership on the effective date of this Part 1, provided that such extension does not exceed one hundred (100) feet beyond the boundary line.

(Emphasis supplied). For the Harford County Board of Appeals, that provision of the Zoning Code is daily grist for its mill. The Appellant’s Satisfaction Of Her Burden of Production The appellant steadfastly asserts that she satisfied her burden of production under § 267-10B. We agree wholeheartedly.

She did. The complete satisfaction of that burden was articulately summarized by the Hearing Examiner in his recommendations to the Board: In the instant case, the Appellant has demonstrated the criteria necessary to meet the standards required by 267-10(B) as recited above. The parcel is split-zoned and such split zoning has existed in single ownership at least since the date of enactment of the Zoning Code (September 1, 1982). There was competent and unrebutted evidence that these criteria existed as early as 1957.

It is, moreover, no mean accomplishment to have satisfied a burden of production. It was enough to have activated the discretion of the Board, thereby permitting the Board, were it so inclined, to grant the extension sought by the appellant. Had the Board, in its discretion, granted the extension and had People’s Counsel ultimately appealed to us from such a grant, People’s Counsel would have little, if any, chance of overturning the Board’s decision. The appellant’s satisfaction of her burden of production would have provided the Board with a “substantial basis” for having exercised its discretion in the appellant’s favor and there would be little point in challenging it.

Conversely, had the appellant failed to satisfy her burden of production, that failure, ipso facto, would have precluded any ³⁷⁶ ruling in her favor, as a matter of law. Even had the Board of Appeals actually granted the extension and even had the circuit court affirmed the grant, we, on People’s Counsel’s hypothetical appeal, would have reversed the grant as improper because, had the burden of production not been met, the Board’s discretion to make such grants would not even have been activated. Thus, the appellant’s successful shouldering of the production burden was the indispensable first step in the process. Unfortunately from the appellant’s point of view, the satisfaction of that burden of production was the high watermark of her case.

The Appellant’s Failure to Satisfy Her Burden of Persuasion In arguing more broadly that she thereby satisfied her “burden of proof,” the appellant disingenuously blurs the critical and rudimentary distinction between a burden of production and a burden of persuasion. To satisfy the burden of production is not remotely to satisfy the burden of persuasion. To have produced enough of a case to permit the Board to extend the B-3 zoning boundary was not the end of the appellant’s persuasion process, but only its beginning. Until the burden' of production is a successful fait accompli, an effort at persuasion does not even begin.

In this case, the existing B-3 zoning boundary was the status quo. The appellant undertook to persuade the Board to alter that status quo. It was the appellant who thereby became the proponent of the proposition on the table for debate, and it was the appellant, therefore, to whom was allocated the burden of persuasion. In this case, the Board was simply not persuaded.

The requested extension that would have altered the status quo was accordingly denied. Perhaps disingenuously, the appellant seems to be operating on the assumption that the allocation of the burden of persuasion is turned in the opposite direction. As if we had stepped with Lewis Carroll Through the Looking Glass, everything in ³⁷⁷ the appellant’s world is in reverse. The Board of Appeals is chided by the appellant for not having been adequately persuaded NOT to grant the extension.

The opponents of the extension are chided by the appellant for having failed to produce “substantial evidence” to support the denial. It is never the case that the Board must be either 1) persuaded by the appellant to act or 2) persuaded by the opponents not to act. What would happen, in so Manichean a world, if the Board were not persuaded by either side? There is only one burden of persuasion, and it points in only one direction.

As a tactical matter, of course, neighbors and other interested parties will probably mount a stronger case in opposition if they actually show up and present evidence. In abstract theory, however, they are not required to do so in order to prevail. They are not required to present any evidence at all, let alone substantial