Boehm v. Anne Arundel County

Alpert, J., delivered the opinion of the Court. On April 11, 1979 the Anne Arundel County Office of Planning and Zoning ("the Zoning Office”) issued an Administrative Decision in response to an application by Louis A. Boehm, the appellant, for recognition of a nonconforming landfill on approximately 198 acres of his property. The decision granted nonconforming use for approximately 18.8 of the acres and provided for certain other conditions and restrictions of usage. Signatories to this decision were Florence Beck Kurdle, Planning and Zoning Officer, and Owen K. White, Zoning Administrator.

Apparently no one affected by the decision was satisfied. Boehm appealed to the Anne Arundel County Board of Appeals ("the Board”) as did neighboring landowners ("the protestants”). The hearing before the Board involved over forty hours of testimony from thirty-eight witnesses over a period of six hearing dates. Boehm presented evidence to support his contention that a nonconforming landfill had existed on his property prior to July 1, 1952 as required in order to establish nonconforming use status under §13-310 and §13-311 of the Anne Arundel County Code (1972).

The protestants produced witnesses whose testimony essentially attempted to refute that of the applicant. They generally ⁴⁹⁹ testified that there were no dumping and landfilling activities on the Boehm property prior to July, 1952 and that the landfilling activities had only begun in the late 1960’s and early 1970’s. According to county witnesses, the county became aware of the landfilling and dumping on the Boehm property in 1976. At this time the county had sent violation notices to Boehm requesting he apply for a nonconforming use or bring his property into compliance with the law.

In response, Boehm submitted a plat, map and several affidavits to show the limits of his operation. This plat had been the basis for the April, 1979 Zoning Office decision that limited the Boehm property to 18 acres of nonconforming use as landfill. Owen White of the Office of Planning and Zoning in his testimony before the Board indicated, however, that his initial decision was based upon vague and incomplete information. He stated that after hearing the additional testimony before the Board, he believed Boehm had not met his burden of proof on the question of prior use and implied that his initial decision appeared incorrect.

The Board issued a written Opinion and Order on October 23, 1980. The findings concluded "[t]he Board was not convinced that a landfill or excavation operation existed on the property prior to July, 1952. On the contrary, the Board is convinced by the evidence that there was no excavation and little more than sporadic dumping on a few occasions prior to July, 1952.” The Board’s Order declared the Office of Planning and Zoning decision null and void and determined that the lawful non-conforming status of the subject property was to be denied. 1 ⁵⁰⁰ Boehm appealed this decision to the Circuit Court for Anne Arundel County. Judge Raymond G. Thieme, Jr. found "ample evidence to support the Board’s findings” and affirmed the decision of the Board of Appeals.

An appeal was noted and the following three questions are placed before us: 1. Did the court commit error in refusing to allow the discovery and introduction of evidence to demonstrate that the decision of the Board of Appeals was based upon a tainted record? 2. Did the conduct of the proceedings before the Board of Appeals require that this court reverse the trial court and remand to the Board of Appeals for further proceedings? and 3. Does a review of the evidence reveal that the action of the Board of Appeals in denying appellant’s non-conforming use was arbitrary and capricious and the decision of the Board is not fairly debatable?

Perceiving no error, we shall affirm. I. The Tainted Record A. Consideration of Other Administrative Decisions Affecting Similar Issues The Circuit Court refused to permit evidence of an administrative decision issued on May 7,1979 by the Zoning Office which involved Browning Ferris Industries ("BFI”), appel ⁵⁰¹ lant’s chief landfill competitor. This decision was more favorable than that granted to appellant, who claimed that as a result of the failure to permit inquiry into this other decision, he had been deprived of a fundamentally fair hearing before the Board. Also excluded by the Circuit Court was evidence of the thought processes of White whose testimony before the Board apparently was in conflict with the granting of the nonconforming use.

We observe initially that the BFI decision was public information at the time of the Board hearing, but appellant did not raise the issue at that time. Further, it is clear that this evidence was properly excluded. In Aspen Hill Venture v. Montgomery County Council, 265 Md. 303 , 289 A.2d 303 (1972), the appellants had requested a rezoning by the District Council which was denied. Shortly thereafter, the Council granted a rezoning to a similar property in close proximity to the appellants.

In considering what additional evidence the Circuit Court may admit following an appeal from an administrative hearing, the Court of Appeals stated: This Court has many times held that upon appeal the Circuit Court in its review of the evidence is bound by the record made before the governmental body from which the appeal is taken. Suburban Properties, Inc. v. Rockville, 241 Md. 1, 6 , 215 A.2d 200 (1965); Board of Commissioners v. Meltzer, 239 Md. 144, 156 , 210 A.2d 505 (1965) and Bishop v. Board of Commissioners, 230 Md. 494, 501 , 187 A.2d 851 (1963). However, these decisions are directed to matters which would enhance or diminish the evidence supporting or challenging the application, such as evidentiary matters bearing on mistake or change or need and were not, in our opinion, intended as authority to exclude matters of public record which directly relate to the arbitrary, capricious or discriminatory quality of the conduct of the zoning authority which affects the property of the applicant. In the instant case Aspen, in ⁵⁰² proffering the Faller decisions for the consideration of the lower court, was not asking it to accept or consider additional evidence to supplement the merits of its case, which it had the burden of proving, but was asking that the validity of the District Council’s actions appealed from be considered in light of other actions by that body based on the same evidence and within the same planning area, as indicative of arbitrary and discriminatory action.

Without intending to qualify or minimize the legal effect of the cases cited above, we think that it would have been proper for the lower court to have considered the Faller decisions for the limited purpose of determining whether the District Council acted in the instant case, arbitrarily or with discrimination. The action of the District Council in denying the C-l classification to Aspen, when viewed in context with its granting of commercial zoning to the Fuller tract on basically the same evidence, becomes patently arbitrary and discriminatory. (emphasis added). Id. at 316-17, 289 A.2d at 310 .

Appellants argue that this language would allow the Circuit Court to review any evidence that would demonstrate the potential motives, bias or prejudice of any party including White’s or the administrative agency’s handling of a similar case (BFI) and the entire handling of this case by County officials who publicly opposed appellant’s operation. In the instant case this would be permitting the deposition of White as to the possible bias, prejudice and discrimination with respect to Boehm’s application. Further, appellant contends that inquiry into the BFI landfill grant would be relevant because it constitutes actions by that body based on the same evidence and within the same planning area. We view appellant’s attempt to expand Aspen Hill as both undesirable and unwise.

As the decision in BFI did not involve a comparable action by the same body, Aspen Hill would hot be applicable. Under the facts of Aspen Hill, the ⁵⁰³ Circuit Court was permitted to review comparable decisions by the same body to determine discrimination. In the instant case, appellant seeks Circuit Court review of comparable decisions that are made by different bodies, but involving the same subject. The fact that the properties were in close proximity to each other in Aspen Hill was a major factor in the Court’s determination that the zoning decision was arbitrary.

Here, there is no evidence as to the close proximity of BFI to appellant’s property. Appellant and BFI are but competitors, not owners of adjacent tracts of land. A stronger case may be made for arbitrary decision making where the properties are in close proximity to one another than when its owners are simply competitors. Thus, Aspen Hill does not support appellant’s arguments that a Circuit Court may accept additional evidence of alleged discrimination where the comparable decisions sought to be introduced were issued by different administrative zoning bodies.

As for the appellant’s attempt to explore the thought processes of White, the law is clear that it is improper to probe the mental processes of an administrator in reaching his conclusion. Those legally responsible for a decision must in fact make it, but their method of doing so is largely beyond judicial scrutiny. United States v. Morgan, 313 U.S. 409 (1941). See, B. Schwartz, Administrative Law §133 (1976).

B. Testimony of an Administrative Agent on Appeal of a Decision of That Agency As for the testimony of White before the Board, which appellant claims amounted to a reversal of the earlier administrative decision, the Circuit Court properly handled the issue. When additional facts were brought to White’s attention, he changed his conclusions as to the sufficiency of those facts to the establishment of a nonconforming use. The following excerpt from his testimony makes clear that point: Q But he did not. Mr. White, you reached the administrative decision based on the evidence that was supplied you as of that date, April 11, 1979, is that correct? ⁵⁰⁴ A That’s correct.

Q And since that time, other information has come to you — predominantly, the testimony that you have heard at these hearings, is that also correct? A No, Mr. Lechowicz, it didn’t exactly come to me; I just happened to be here to hear it. Q Again, that is part of your responsibility? A Yes. , Q And do you now believe, after having heard that testimony, that your decision is in error? * H= * THE WITNESS: Let me see if I can wiggle my way through this one.

The issues in all of these 16 to 18 hours — and all of you have sat there and heard testimony — very simply, whether a nonconforming use existed at the time of the adoption of the comprehensive zoning, first off, July 1st, 1972; secondly, going beyond that to July 1st, 1952, okay, rather that, if it was a lawful, nonconforming use, existed and operated continuously, without interruption, either under the ’72 code, which said for any reason — or the abandonment clause, that I read the definition to you under the ’52 code:— since the date of nonconformity; and, lastly, the extent of the nonconforming, if, in fact, you recognize it. Now, you have heard the testimony, as I have, and saw the affidavits of the witnesses, and I don’t know what to tell you with respect to that first part as to whether something existed on the property as of July 1st, 1952. What is suspect to me, though, is ⁵⁰⁵ whether that operation has been continuously operated over the years and up until the present time. Lastly, would be the extent of the nonconformity, which was recognized in the opinion, and we say it is 18.8 acres.

They are the issues; they are my observations as to the testimony presented to you. BY MR. LECHOWICZ: Q Was your answer yes or no? A Well, I don’t want to suppose (sic) on the Board’s judgment.

CHAIRMAN DONOVAN: You may want to repeat the question. BY MR. LECHOWICZ: Q The question was whether or not you believe, after having heard the additional evidence and testimony, that your decision of April 1979 is correct? But if you don’t want to answer it, I will not press you.

A You left it open as to correct in what regard? Q Do you believe that a lawful, nonconforming use for 18 acres, or whatever it say (sic), has been proved to have been in effect — in existence in 1952 and has continued to this date? Do you believe that burden has been met? A Overall, I would have to say no.

The admission of this testimony before the Board was proper under the circumstances. Although it was claimed that White’s testimony was tantamount to a change in decision of the Zoning Office, we disagree. White wears various hats in his capacity as Zoning Administrator. Among his responsibilities, he is part-investigator and part-advisor to Kurdle.

While he does have certain expertise in this area of administrative law, the effect of his testimony before the Board was not to change the prior decision. Rather, he ⁵⁰⁶ changed his conclusion based on a modification of the facts as he then saw them from a different perspective. The situation is analogous to an accident investigator who prepares a report, but upon learning of new facts at a trial or hearing, changes his conclusion as to the effect of the facts. White’s testimony before the Board, therefore, was not a per se reversal of the Zoning Office decision and did not taint the Board’s decision.

He was not changing the Zoning Office’s formal decision or rendering a new official opinion. His observation of the facts changed when he learned of additional different facts. However, even if White’s testimony before the Board was inadmissible, there was an abundance of other credible evidence upon which the Board could, and undoubtedly did, base its decision. Thus, any error would have been harmless.

See, Rotwein v. Bogart, 227 Md. 434, 437 , 177 A.2d 258 (1962). C. Administrative Appeal De Novo Appellant contends that the review by the Board was improper in light of its failure to give great deference to the Zoning Office decision. An administrative decision is not controlling upon the reviewing board. Richmond Corp. v. Board of County Commissioners, 254 Md. 244 , 255 A.2d 398, 408 (1969) involved an appeal from a denial of a special exception by the Prince George’s County District Council.

The Court of Appeals stated at 254 Md. at 264 , 255 A.2d at 408 : Even if the Planning Commission and the Department of Inspection and Permits had rendered an opinion that the uses, or any of them, were in harmony with the purpose and intent of the General Plan, the District Council would not have been bound by such opinions. Cf. Mayor and City Council of Baltimore v. Muller, 242 Md. 269, 279 , 219 A.2d 91, 97 (1966). Similarly in City of Baltimore v. Muller, 242 Md. 269, 279 , 219 A.2d 91, 97 (1966), the Court of Appeals discussed the effect that favorable reports of other agencies have upon the ⁵⁰⁷ Baltimore Board of Municipal and Zoning Appeals.

The Court stated, at 242 Md. at 279 , 219 A.2d at 97 : We have also held that the favorable reports of the Fire Commissioners, the Commissioner of Health and the Department of Transit and Traffic are not controlling. Shell Oil Co. v. City of Baltimore, 225 Md. 463, 472 , 171 A.2d 234, 238 (1961). Appellant contends, however, that the hearing before the Board is less than purely de novo, and that great deference must be given to the Zoning Office decision. We disagree.

The hearing before the Board is completely de novo. The Board is in no manner bound by the decision of the Zoning Office. Section 602 (a) and 602 (d) of the Anne Arundel County Charter provide for a de novo review by the Board of Appeals of the Zoning Office decision. At the time of this appeal, 2 that section provided: (a) Appeals from orders relating to zoning.

The County Board of Appeals shall have and exercise all the functions and powers of the Board of Appeals of ⁵⁰⁸ Anne Arundel County and of the County Board of Appeals described in Article 25A of the Annotated Code of Maryland as supplemented by other public general laws. All references in law to the Board of Appeals or the Board of Zoning Appeals shall be construed to refer to the County Board of Appeals created by this Article where such construction is reasonable. At the time the members of the first County Council qualify for office, the Board of Appeals and the Board of Zoning Appeals shall cease to exist. Petitions for all variances, special exceptions or reclassification of a particular piece of property, cases pending before the Board of Appeals or the County Commissioners at such time and all cases subsequently arising which otherwise would have been subject to their jurisdiction shall be heard in the fírst instance by the Zoning Hearing Officer and on appeal, de novo, by the County Board of Appeals.

In all cases heard by the County Board of Appeals, its decision shall be final unless further appeal be taken therefrom in the manner