Bowie v. Board of County Commissioners

ZARNOCH, J. In this Charles County zoning case, we are asked to consider the due process and open meetings limitations on a site visit of the affected property by members of a county board of appeals. This issue arises with respect to the 2009 grant of a special exception to appellee WSG Holdings, LLC (“WSG”), for construction of a “research facility” in Nanjemoy, in Charles County. WSG leased a piece of property in Nanjemoy with the intent to build an office building, a firing range, and a driving track, which would be used for activities alternately described as “research” and “training” related to personal security. These activities are not permissible uses for the property under the Charles County Zoning Ordinance, Chapter 297, Code of Charles Co. (1994) (“Zon.

Ord.”), but the ordinance provides that the appellee Board of Appeals (“the Board”) may grant a special exception for the operation of a research facility without the processing of materials. Zon. Ord. § 297-212 (Permissible Use No. 7.04.100). WSG’s application for a special exception was opposed by appellants, residents of Nanjemoy (Larry Bowie et al).

The Board held three hearings on the matter, taking evidence from both WSG and the opposed residents. Board members also conducted a site visit on the WSG property. Both WSG and the opponents were permitted to send representatives to the visit, but the Board prohibited ¹⁵⁷ others from attending and did not keep minutes or a transcript of the visit. The Board ultimately approved the special exception by a 3-2 vote, and imposed several conditions intended to address the opposition’s concerns regarding noise levels and environmental impact.

Appellants petitioned the Circuit Court for Charles County for review of the June 9, 2009 decision, alleging procedural and substantive deficiencies. The court held a hearing on January 5, 2010, and filed a written decision on March 26, 2010, remanding the case to the Board for further proceedings and articulation of its findings on the issue of whether the proposed facility was consistent with the Charles County Comprehensive Plan. The court otherwise affirmed all other aspects of the Board’s decision. Timely appeals were filed by the Nanjemoy residents, the WSG, and the Board. 1 FACTS AND LEGAL PROCEEDINGS On October 29, 2008, WSG applied for a special exception to the Charles County Zoning Ordinance to operate a “research facility without the processing of materials” on an 80-acre property in Nanjemoy.

Because this property was zoned “AC,” 2 such a research facility would be permitted only by special exception. See Charles County Zoning Map, Use No. 7.04.100. WSG submitted a statement in support of its request, in which it described the existing site as approximately 18 acres of open space and 62 acres of woodland, with four existing structures and a private airport. The northeastern edges of the property include a stream and wetland which was required to be surrounded by a minimum buffer of fifty feet ¹⁵⁸ (the “Resource Protection Zone”) of undeveloped land.

Zon. Ord. § 297-171. WSG proposed to operate a facility for the purpose of conducting “specialized research, development, testing, and evaluation services to ensure that the United States maintains technological superiority.” The research and development would concern “a wide variety of defense and public safety areas to include technical courses for emergency preparedness, emergency and governmental vehicle safety and dynamics, and projectile testing that includes evaluation of personal protective equipment efficiency.” To achieve these objectives, WSG sought to construct “a 50' by 75' two story building ... to house its on-site office and structures ... to conduct its research, including vehicle and firearm research.” The property would be accessed by a private driveway from a nearby public road, and it would be open dusk to dawn Monday through Friday, and 7:00 a.m. until 1:00 p.m. on Saturdays. The Board held three public hearings on WSG’s application.

The first was held on February 24, 2009, the second on March 10, 2009 and the last on April 14, 2009. After WSG presented its four witnesses, the Board permitted members of the public to testify. The Board advised the crowd to avoid repetitive and redundant testimony and, given the time constraints, placed a three-minute limit on individual testimony and a five-minute limit on testimony of those representing organizations. A brief recess was taken before the opposition witnesses began, and apparently the recording started midway through the sixth witness’s testimony.

The testimony of the first five opposition witnesses was omitted from the transcript. Including the five unrecorded witnesses, twenty six people testified in opposition to WSG’s application and one resident testified in support of WSG over two hearing dates. Groups represented included the Sierra Club and the Conservancy for Charles County, a non-profit land trust. At the end of the March 10th hearing, the Chairman of the Board moved to conduct a site visit.

The Chairman stated that the Board wanted to have a representative of the commu ¹⁵⁹ nity attend the site visit, in addition to WSG’s counsel, a member of WSG, an Assistant County Attorney, a staff member, and the Board members. At the suggestion of the County Attorney’s Office, the Chairman added that the community could send an additional representative with planning or some other expertise. The Chairman explained: But we’re not going to go down there and have another hearing with 100 people there. We want the representatives there and we want to see it ourselves, but it’s not fair for us to even see it ourselves without members of the community and members of the Applicant’s staff and that sort of thing being there present.

The motion for a site visit was unanimously approved by the Board and scheduled for March 17 at 10:00 a.m. Apparently, no members of the opposition, or other persons present, objected to the restriction placed on attendees at the site visit. However, there was no recorded vote or any recognition that the exclusion of some members of the public was subject to the procedural requirements of the State Open Meetings Law, Md.Code (1984, 2009 RepLVol.), State Government Article (“SG”), § 10-508(d). 3 There exists no transcript, minutes, or ¹⁶⁰ other official record of the site visit. 4 The Board also scheduled another hearing for April 14, 2009, and announced that the record was closed to additional evidence. Apparently two weeks after the site visit, appellants filed a Motion for Appropriate Relief complaining, among other things, that the visit was closed to the public even though material evidence was taken, that no record was kept, and that neighboring property owners were not permitted to attend. 5 In response, WSG filed a Motion of Ne Recipiatur, which the Board denied. ¹⁶¹ At the April 14 hearing, the Board’s Chairman explained that the purpose of the hearing was to allow both sides to summarize their cases without presenting additional evidence or testimony.

The Chairman of the Board appeared to indicate that appellants’ Motion for Appropriate Relief had been denied. 6 No attempt was made by anyone to rebut assertions about the conduct of the site visit made in the motion. After closing arguments, the Board approved a motion to grant the exception by a 3-2 vote, provided certain conditions were placed on the grant, including: (1) raising the berm around the firing range from eight feet to ten feet; (2) adding a ten foot berm around the driving track; (3) annual posting of environmental testing results as well as the stewardship plan on a web site; (4) requiring the special exception to run with the ownership, not the property, so, if sold, the property would have to be restored to its pre-development state; and (5) restricting operating hours to 8:30 a.m. to 5:30 p.m. on weekdays and 8:30 a.m. to 1:00 p.m. on Saturday. On June 9, 2009, the Board issued a written decision and order. It made no mention of appellants’ Motion for Appropriate Relief.

However, it did refer to the site visit and those who attended. Specifically, the decision noted: “Based upon this visit, the ¹⁶² Board found the site consistent with the applicant’s testimony and the site plan.... ” Nanjemoy residents opposing the exception promptly filed a Petition for Judicial Review in the Circuit Court for Charles County, asserting that the Board failed to follow its own procedural rules in conducting the hearing, that no reasonable person could conclude that the proposed development fit within the legal requirements for a special exception and that the Board’s site visit violated due process and open meetings requirements. After a hearing, the court, on March 29, 2010, issued a written opinion and ordered a remand of the case to the Board for further proceedings to determine whether the proposed use was in accordance with the objectives of the current Comprehensive Plan. The court further instructed the Board to articulate and explain its conclusions on that issue.

As to the other contentions, the court found that the evidence was sufficient to support the decision to grant WSG a special exception. The court rejected the allegations of procedural deficiencies in the hearings and site visit. Specifically, the circuit court indicated that the appellants had not preserved the site visit issue for review. 7 The decision was appealed by the opponents, the Board, and WSG. QUESTIONS PRESENTED Appellants present the following questions for our review: ¹⁶³ 1. [Did] the Board’s failure to adhere to applicable statutes and its own rules, its failure to permit cross-examination, its limitation of opposition witnesses to three minutes of testimony while allowing the applicant unlimited time, and its conduct of a “site visit” at which the public at large was excluded, individually and collectively constitute a denial of due process to opponents of the special exception such that the decision of the Board must be vacated? 2. [Could a reasonable mind] construe the evidence of record as supporting the Board’s determination that the WSG-proposed facility is a permitted research facility and not a prohibited training facility? 3. [Could a reasonable mind] construe the evidence of record as supporting the Board’s determination that the activities proposed by WSG would not have adverse environmental impacts? 4. [Did] the Board properly interpret[ ] the Charles County Code requirement that research permitted by special exception can be conducted in a “structure” when it held that an open area surrounded by a fence or a berm is a structure?

In their cross-appeal, appellees add the following question for review: 5. Did the lower court err in remanding for a limited purpose under the facts of this case? For the reasons discussed below, we reverse the decision of the Board on narrow grounds involving the Board’s site visit and need not resolve the other issues presented, including appellees’ cross-appeal. DISCUSSION A. Standard of Review We review the Board’s decision and not that of the circuit court.

P Overlook, LLLP v. Bd. of County Comm’rs., 183 Md.App. 233, 247 , 960 A.2d 1241 (2008). And we review that decision to determine “whether there was substantial ¹⁶⁴ evidence in the record as a whole to support the agency’s factual findings and conclusions and whether the agency’s decision is based upon an erroneous conclusion of law.” Sing-ley v. County Comm’rs, 178 Md.App. 658 , 676, 943 A.2d 636 (2008). The record must contain findings of fact that are “meaningful and [do not] simply repeat statutory criteria, broad conclusory statements, or boilerplate resolutions.” Bucktail, LLC v. County Council of Talbot County, 352 Md. 530, 553 , 723 A.2d 440 (1999). If the Board erroneously applied the law or its conclusion is not based on sufficient evidence, the decision is arbitrary and capricious and must be reversed.

Bd. of Cnty. Comm’rs for St. Mary’s Cnty. v. Southern Res. Mgmt., 154 Md.App. 10, 26 , 837 A.2d 1059 (2003). B. Open Meetings/Due Process Limitations on Site Visits Appellants contend that the Board violated due process and open meetings requirements by conducting a meeting closed to some members of the public at which the merits of the case were discussed, not made a part of the record, but nevertheless relied upon by the Board.

We agree that the Board erred. 1. Preservation Appellees argue and the circuit court found that the challenge to the site visit was not preserved for judicial review. The appellees emphasize that appellants did not object at the March 10th hearing to appointing representatives of the public. The circuit court said that 1) the site visit issues were raised for the first time in the petition for judicial review; 2) appellants did not properly make a record before the Board regarding these contentions; and, 3) counsel for the parties were unable to agree “as to who said what during the event.” Turning first to the circuit court’s conclusions, we think it is apparent that appellants raised the site visit issue in the Motion for Appropriate Relief filed approximately two weeks after the inspection and approximately two weeks be ¹⁶⁵ fore the April 14, 2009 hearing.

That motion was denied by the Board. Moreover, it was not the appellants’ obligation to make a record of what happened at the site visit. As the authorities discussed infra indicate, that burden is one for the Board to bear. 8 This is a particularly important obligation in light of the fact that in the circuit court, counsel for the parties could not agree as to what occurred during the site visit. Appellees’ preservation objections also do not pass muster.

Appellants’ counsel, by not objecting to attendance at the site visit only by representatives and to a partially closed meeting, could not possibly have made such an agreement for those members of the public in attendance at the March 10th hearing that he did not represent and for those members of the public allegedly seeking admission to the March 17th site visit. In short, we find that appellants’ objections to the site visit are preserved for our review. 2. Caselaw on Site Visits It is a “common practice” for boards of appeal to visit the property involved in applications for relief from zoning restrictions. Patricia E. Salkin, American Law of Zoning (5th ed. 2011) at § 40:88.

It is said that such visits “serve to freshen recollections and shape the board’s perception of the specific problem in issue.” Id. Nevertheless, caselaw in Maryland and elsewhere recognizes that without the exercise of caution, legal problems may arise from such visits. In Heath v. Baltimore, 187 Md. 296 , 49 A.2d 799 (1946), the Court of Appeals ordered reversal of the decision of a board of zoning appeals on a special exception application because the board “made a study of the premises and neighborhood” with no supporting evidence upon which to base its judgment. Id. at 305 , 49 A.2d 799 .

In White v. North, 121 Md.App. 196 , 708 A.2d 1093 (1998), vacated on other grounds 356 Md. 31 , 736 ¹⁶⁶ A.2d 1072 (1999), this Court said of a visit by the Anne Arundel County Board of Appeals: We speculate, based on certain of the Board’s findings and conclusions, that it may have seen conditions or things on its “on-site inspection” that affected its judgment, but which facts, information, or observations it did not include properly in the record. Obviously, we cannot consider in aid of determining whether the Board’s decision is affirmable anything that is not in the record. To the extent the Board obtains information from such an “on-site inspection,” and such information is not already a matter of record in the pending case and is material to the ordinance requirements and the Board’s decision, the Board would do well for itself and parties before it in the future to conceive of a technique to supplement the record with such evidence before rendering its decision. In doing such, the Board needs also to be mindful of the right of opposing parties to be apprised of that additional evidence, and given an opportunity to respond.

Id. at 229, 708 A.2d 1093 . 9 More recently, in Powell v. Calvert County, 137 Md.App. 425, 430 , 768 A.2d 750