Brandywine Senior Living at Potomac LLC v. Paul

Panel: Eyler, Deborah S., Berger, Fader, JJ. Berger, J. ^{52 201} This appeal arises from a decision of the Montgomery County Board of Appeals (the "Board") granting an application for a conditional use filed by Brandywine Senior Living at Potomac, LLC ("Brandywine"). Brandywine received conditional use approval for a three-story residential care facility, to be built on property located at 10800 Potomac Tennis Lane in Potomac, Maryland (the "Property"). Ronald A. Paul and Toni H. Paul, whose residence abuts the Property, as well as the West Montgomery County Citizens Association ("WMCCA"), the Brickyard Coalition ("Brickyard"), and Curtis B. Uhre (collectively, the "Neighbors") 1 filed petitions for judicial review in the Circuit Court for Montgomery County.

The circuit court affirmed in part and reversed in part the decision of the Board and remanded to the Board for further consideration. All parties appealed. 2 The parties have presented multiple issues for our consideration on appeal, which we have consolidated and rephrased as follows: ²⁰² I. Whether the hearing examiner erred by permitting Brandywine to submit modified plans in response to various issues raised by the opposing parties.

II

Whether the hearing examiner's findings were supported by substantial evidence and premised upon accurate conclusions of law. For the foregoing reasons, we shall affirm the opinion of the Board granting the conditional use. We, therefore, shall remand to the circuit court for the entry of an order affirming the Board's actions in their entirety. FACTS AND PROCEEDINGS The Property is a triangular 4.02-acre parcel located in the RE-2 zone, approximately 600 feet north of the intersection of Falls Road (Maryland State Route 189) and Potomac Tennis Lane.

The RE-2 zone is zoned for large-lot residential use, with a minimum lot size of two acres. For over forty years, the Potomac Tennis and Fitness Club operated on the property pursuant to a conditional use approval granted in 1975. 3 The tennis club's use of the Property ⁵³ included twelve tennis courts, a two-story clubhouse, a storage shed, and forty-nine parking spaces. During the winter months, six of the tennis courts were enclosed in a temporary bubble structure. The Property abuts the Falls Road Golf Course to the north and east and the Arden Courts dementia-care assisted living facility and Manor Care of Potomac skilled nursing home to the south.

Manor Care of Potomac is a two-story, 172-bed skilled nursing home. Arden Courts is a 52-bed dementia care assisted living facility. The Pauls' residential property is adjacent ²⁰³ to the west side of the Property. The Pauls' residence is located approximately 155 feet from the joint property line.

The Staff of the Montgomery County Planning Department (the "Technical Staff") defined the boundaries of the Property's surrounding neighborhood and described the area as follows: The neighborhood delineated for this Application (See figures 2 and 3 below) is approximately 260 acres in size and extends out from the Subject Property by about 2,000 feet in all directions. To the north, the neighborhood extends to the northern property edge of the Falls Road Golf Course along Eldwick Way and the rear of lots in the Bedfordshire Community. The boundary then turns southwest, following the northwestern edge of the Potomac Glen community to South Glen Road. The southern boundary follows South Glen Road and Democracy Boulevard, and the eastern boundary includes the eastern boundary of the Bullis School located on the east side of Falls Road, and then angles back to follow Falls Road north to Eldwick Way.

The majority of the neighborhood is comprised of two properties: the Falls Road Golf Course which is a 149 acre property immediately adjacent to the north and east of the Subject Property, and the Bullis School which is a K-12 private education facility located on 100 acres southeast of the Subject Property on the opposite side of Falls Road. The rest of the neighborhood is primarily residential with one-family detached houses in the Potomac Glen and Glen Falls communities located southwest of the Site. Immediately to the south of the Site is a Manor Care elderly care facility and directly south of the Manor Care facility is the Normandie Farms Restaurant and Inn. Almost all of the neighborhood is zoned RE-2 with the exception of the lots directly fronting on South Glen Road and Democracy Boulevard which are zoned R-200, and the Glen Falls community which is RE-2/TDR-1.

The Technical Staff provided two aerial photographs and a map illustrating the neighborhood. We have reproduced the figures below: ^{54 204} In Figure 1, the Property can be seen in the center of the photograph, with the golf course to its north and east. The two large buildings making up the Manor Care/Arden Courts complex are seen south of the Property. The Paul's home is located on the cul-de-sac on the left edge of the photograph, abutting the Property to the southwest.

The Pauls' home is the only residence abutting the Property. ^{55 205} Figures 2 and 3 are equivalent aerial photos and maps, showing the same area. In Figure 3, the Manor Care/Arden Courts complex is represented by numeral 1 on the map. The Falls Road Golf Course is represented by numeral 2, and the Bullis School is represented by numeral 3. The Property is located in the triangle near the center of the map.

The Pauls' property is not identified in Figures 2 or 3. On July 9, 2015, Brandywine submitted its conditional use application to the Montgomery County Office of Zoning and Administrative Hearings ("OZAH"). Brandywine sought approval for a luxury senior residential care facility with 140 ²⁰⁶ beds in 120 suites (the "Project"). 4 The Project ⁵⁶ includes seventy-three parking spaces, an indoor pool, restaurant-style dining, and various other amenities. The Project further includes extensive landscaping on the Property, including perimeter landscaping, courtyards, a fountain, a pergola, a gazebo, and community garden space.

Pursuant to Section 59-7.3.1.D of the Montgomery County Zoning Ordinance (2014) ("Z.O."), OZAH referred the conditional use application to the Technical Staff for review. On October 2, 2015, the Technical Staff issued a 31-page report recommending approval of the Project, subject to eleven conditions. The Technical Staff also prepared a PowerPoint presentation for its presentation on the conditional use application to the Montgomery County Planning Board (the "Planning Board"). On October 15, the Planning Board met and unanimously recommended approval of the application.

The Planning Board adopted the conditions recommended by the Technical Staff and added two additional conditions. Thereafter, the matter was referred to the hearing examiner for the OZAH. The hearing began on November 6, 2015, and continued for three additional days on December 3, 2015, December 7, 2015, and January 15, 2016. Over the course of the hearing, the hearing examiner heard testimony from Brandywine representatives, individuals in opposition to the Project, as well as various expert witnesses in the fields of land planning, architecture, landscape architecture, civil engineering, transportation planning, acoustical engineering, and real estate appraisal, among others.

The hearing examiner heard testimony on issues relating to, inter alia , the Project's conformance with the recommendations of the applicable master plan, the effect of the Project on neighboring properties, and the compatibility of the Project with the surrounding neighborhood. On December 7, 2015, the Pauls testified about particular concerns relating to the effect the Project would have on their ²⁰⁷ peaceful enjoyment of their property as well as the economic value of their property. The hearing examiner inquired as to whether Brandywine would consider making certain modifications to improve compatibility with the Pauls' property, including relocating the trash enclosure to the east side of the Property, modifying the stormwater management facility proposed along the property line between the Property and the Pauls' property, moving a service drive, and reducing the height of the western facade of the building closest to the Pauls' residence. Subsequently, Brandywine submitted revised plans addressing many of the concerns raised at the December 7, 2015 hearing.

The trash enclosure was moved an additional thirty-seven feet from the shared property line with the Pauls, the service drive was reconfigured, and the stormwater facility was modified and relocated. Brandywine further added a decorative masonry privacy wall and removed the third floor from the western portion of the building closest to the Pauls' property. On December 15, 2015, the hearing examiner issued a notice to all parties entitled to notice explaining that Brandywine had submitted revised plans amending its application. The hearing examiner informed the parties that the revised plans would be evaluated at the January 15, 2016 hearing.

In addition, the hearing examiner forwarded the revised plans to the Technical Staff. The Technical Staff reviewed the revised plans and concluded that the revised plans were "still in conformance with the findings of the Technical Staff Report dated October 15, 2015." The revisions were discussed in detail at the January 15, 2016 hearing. The Pauls continued to express concern about the ⁵⁷ proximity of the trash enclosure to their property. In response, Brandywine offered to relocate the trash enclosure to the northeastern side of the Property, on the opposite side of the Property from the shared property line with the Pauls.

Brandywine submitted plans reflecting the revised location for the trash enclosure on January 20, 2016. The Technical Staff ²⁰⁸ approved the revised plans on January 29, 2016. Thereafter, the parties were provided with an opportunity to respond to the revision and the Technical Staff's review of the revised plans. 5 The administrative record was closed on February 19, 2016. On March 21, 2016, the hearing examiner issued a comprehensive 96-page report and decision.

The report addressed the various issues and concerns raised by the parties in opposition. The report additionally set forth factual findings and applied the factual findings to the various factors set forth in the applicable provisions of the zoning ordinance. The hearing examiner granted Brandywine's conditional use application subject to sixteen conditions. The Neighbors subsequently filed requests for oral argument, which Brandywine opposed.

The Board considered the hearing examiner's report at its April 13, 2016 worksession, along with the requests for and oppositions to oral argument. On April 26, 2017, the Board issued an opinion in which it adopted the hearing examiner's report and decision. The Board determined that "the record compiled by the Hearing Examiner is thorough and exhaustive, and that the Hearing Examiner's Report [ ] contains clear and detailed conditions of approval." The Board further determined that "no further argument is necessary for it to be able to render a decision on [Brandywine's] application." The Neighbors filed a petition for judicial review of the Board's decision in the Circuit Court for Montgomery County on May 20, 2016. 6 A hearing was held on November 4, 2016. ²⁰⁹ The Neighbors raised several arguments before the circuit court. The Neighbors asserted that the hearing examiner committed prejudicial legal error by permitting Brandywine to amend the conditional use application after the hearing on the application had begun and after the applicant had completed its case.

The Neighbors further argued that hearing examiner's findings with respect to noise, adequacy of drainage, and economic value of the Pauls' property were not supported by substantial evidence. The circuit court issued a memorandum opinion affirming in part and reversing in part the hearing examiner's decision. The circuit court determined that the hearing examiner did not commit prejudicial legal error by permitting Brandywine to amend its conditional use application. The circuit court further determined that the hearing examiner's findings with respect to noise impacts and drainage adequacy were supported by substantial evidence.

The circuit court disagreed with other conclusions of the hearing examiner. In the section of its memorandum opinion titled "Master Plan Compliance and Economic Value," the circuit court concluded that the hearing examiner erred by considering the ⁵⁸ Property's current use when evaluating the effect of the Project on the character of the neighborhood and on the economic value of the Pauls' property. The circuit court found that the hearing examiner was required to "evaluate the proposed conditional use against the standards of the RE-2 zone, particularly in light of the fact that the existing conditional use on site (the tennis facility) will be extinguished." The circuit court reversed and remanded the agency's "findings regarding Master Plan compliance and economic value ... for further consideration, without reference to the existing conditional use on site." All parties noted timely appeals. 7 ²¹⁰ Additional facts shall be discussed as necessitated by our discussion of the issues on appeal. DISCUSSION I. Legal Standard A conditional use allows a particular use on a property that is not granted to a property owner by right.

Certain uses, designated conditional uses, are permitted only after a property owner obtains conditional use approval after a reviewing body, such as the Board, has reviewed and approved an application seeking conditional use approval. See generally Stanley D. Abrams, Guide to Maryland Zoning . When reviewing an administrative decision, including a local government's decision to approve a conditional use application, we "look[ ] through the circuit court's ... decision[ ], although applying the same standards of review, and evaluate[ ] the decision of the agency." People's Counsel v. Surina , 400 Md. 662 , 681, 929 A.2d 899 (2007). In other words, we "review[ ] the agency's decision, not the circuit court's decision." Long Green Valley Ass'n v. Prigel Family Creamery , 206 Md. App. 264 , 273, 47 A.3d 1087 (2012) (citation omitted).

We are limited to evaluating whether there is substantial evidence in the record as a whole to support the agency's findings and conclusions and to determining whether the administrative decision is premised upon an erroneous conclusion of law. Hamza Halici, et al. v. City of Gaithersburg , 180 Md. App. 238 , 248, 949 A.2d 85 (2008) (internal quotation marks and citations omitted). The substantial evidence test is defined as "whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." Layton v. Howard Cnty. Bd. of Appeals , 399 Md. 36 , 48-49, 922 A.2d 576 (2007) (internal quotation omitted).

"In ²¹¹ applying the substantial evidence test .... [we] must review the agency's decision in the light most favorable to the agency, since decisions of administrative agencies are prima facie correct and carry with them the presumption of validity." Pollock v. Patuxent Inst. Bd. of Review , 374 Md. 463 , 476-77, 823 A.2d 626 (2003 ). "Furthermore, not only is the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences." Id. at 477 , 823 A.2d 626 (internal quotations omitted). We review the Board's conclusions of law de novo , however, " 'a degree ⁵⁹ of deference should often be accorded the position of the administrative agency.' " Assateague Coastkeeper v. MDE , 200 Md. App. 665 , 690, 28 A.3d 178 (2011) (quoting Najafi v. Motor Vehicle Admin. , 418 Md. 164 , 173-74, 12 A.3d 1255 (2011) ).

Although "[a]n administrative agency's interpretation of a statute that the agency administers should ordinarily be given considerable weight by reviewing courts," Piney Orchard Cmty. Ass'n , 231 Md. App. 80 , 92, 149 A.3d 1175 (2016) (citation omitted), we owe no deference to an agency's erroneous conclusions of law. See Bd. of County Com'rs for St. Mary's County v. S. Res. Mgmt., Inc. , 154 Md. App. 10 , 34, 837 A.2d 1059 (2003) ("[W]here an administrative agency renders a decision based on an error of law, we owe the agency's decision no deference.") (citations omitted).

"In contrast to administrative findings of fact, questions of law, including the proper construction of a statute, are subject to more plenary review by the courts." Maryland Office of People's Counsel v. Maryland Pub. Serv. Comm'n , 226 Md. App. 483 , 501, 130 A.3d 1061 (2016) (quoting Office of People's Counsel v. Maryland Pub. Serv.

Comm'n , 355 Md. 1 , 14, 733 A.2d 996 (1999) ). It is the appellant's burden, however, to establish that the agency erred as a matter of law. Assateague Coastkeeper , 200 Md. App. at 690 , 28 A.3d 178 .

II

Brandywine's Amendment of the Conditional Use Application The Pauls assert that the hearing examiner committed prejudicial legal error by failing to conduct a fair and impartial ²¹² hearing. The Pauls contend that, by inviting Brandywine to modify their application and file new plans to respond to issues raised by the opposition, the hearing examiner improperly aligned himself with Brandywine and thereby violated the Pauls' rights to due process. In our view, the Pauls mischaracterize the nature of the hearing examiner's conduct. As we shall explain, the hearing examiner acted within the scope of his discretion in permitting the amended conditional use application.

We reject the Pauls' assertion that the hearing examiner's conduct in suggesting and allowing the amendments was improper. The Pauls acknowledge that "under appropriate circumstances ... an application that is subject to an administrative hearing process might be able to be amended." They emphasize that "[h]ere, the issue is the impropriety of the tribunal in, essentially, aligning itself with the applicant." First, we observe that although the Pauls challenge the hearing examiner's impartiality on appeal, this particular issue was not raised before the hearing examiner. Such an allegation could have been raised through a motion for recusal. See Regan v. State Bd. of Chiropractic Exam'rs , 355 Md. 397 , 408-10, 735 A.2d 991 (1999) (discussing recusal in the administrative context).

The issue before the hearing examiner was whether the amendment of the application was permissible under the zoning ordinance, not whether the hearing examiner had aligned himself with Brandywine. Arguably, this issue is not preserved. See Halici , supra , 180 Md. App. at 249 , 949 A.2d 85 ("[A] party who knows or should have known that an administrative agency has committed an error and who, despite an opportunity to do so, fails to object in any way or at any time during the course of the administrative proceedings, may not thereafter complain about the error at a judicial proceeding.") (internal quotation omitted). Furthermore, assuming arguendo that issues relating to the hearing examiner's alleged bias are properly before this Court, we observe that the record as whole reflects that the Pauls' assertions are without ⁶⁰ merit and fail to overcome the " strong presumption in Maryland" that judges, as well as ²¹³ decision-makers in judicial or quasi-judicial proceedings, "are impartial participants in the legal process, whose duty to preside when qualified is as strong as their duty to refrain from presiding when not qualified." Regan , supra , 355 Md. at 410-11, 735 A.2d 991 .

Our review of the record as a whole leads us to conclude that the hearing examiner did not impermissibly align himself with Brandywine by suggesting and permitting the amendments to the conditional use application, thereby depriving the Pauls of due process. Indeed, administrative proceedings are inherently more flexible than judicial proceedings. See Cecil Cty. Dep't of Soc.

Servs. v. Russell , 159 Md. App. 594 , 612-13, 861 A.2d 92 (2004) ("Procedural due process in administrative law is recognized to be a matter of greater flexibility than that of strictly judicial proceedings.") (quotation omitted). "The concept of due process requires that we examine 'the totality of the procedures afforded rather than the absence or presence of particularized factors.' " Id. (quotation omitted). The Pauls assert that it was improper for the hearing examiner to suggest that Brandywine make any changes to its application.

The OZAH rules, however, grant the hearing examiner the authority to "regulate the course of the hearing" and "produce evidence when necessary." Moreover, the zoning ordinance similarly reflects the flexibility of the administrative proceeding, providing that the hearing examiner may "extend the time for closing the record, either to a time certain or for a reasonable time ... if the [h]earing [e]xaminer finds additional information or government action is necessary on any relevant issue." Z.O. § 7.6.2.B.3.b. Furthermore, we emphasize that the hearing examiner informed Brandywine that it could choose to proceed with its original conditional use application-which had already been recommended for approval by the Technical Staff and the Planning Board-or proceed by amending the application to ²¹⁴ ameliorate the concerns raised by the Pauls at the hearing. 8 After electing to proceed with the amended application, Brandywine recalled its witnesses and presented two additional witnesses to testify as to the amended plans. The Pauls assert that the hearing examiner improperly relieved Brandywine of its burden of proof. We disagree.

Indeed, the record reflects that Brandywine propounded evidence and appropriately bore the burden of establishing that the Project satisfied all of the applicable standards for the approval of a conditional use. The Pauls assert that their due process argument "is not about notice and opportunity to be heard" but, rather, "is much more fundamental." The crux of the Pauls' assertion is that the hearing examiner violated due process by suggesting Brandywine amend its application in response to the issues raised by the Pauls. Notice and opportunity to be heard are, however, the critical issues when determining whether a party has been deprived of procedural due process. We have emphasized, in the context of cases considering "the authority of administrative agencies to rely on post-hearing evidence, as long as there exists opportunity for cross-examination and rebuttal" does "not depend upon which side the additional evidence supports or upon the weight of the additional evidence compared ⁶¹ with the evidence at the initial hearing." Maryland State Police v. Zeigler , 330 Md. 540 , 561, 625 A.2d 914 (1993).

The Pauls were provided with notice of the amended application and a full opportunity to be heard. 9 The Pauls, therefore, were not deprived of procedural due process. ²¹⁵ In addition to challenging the impartiality of the hearing examiner, the Pauls challenge the hearing examiner's reasoning for accepting the amended application submitted by Brandywine. 10 As we shall explain, the amendments were permissible under the zoning ordinance and OZAH rules. The Pauls contend that the hearing examiner improperly relied upon OZAH Rule 22.0 to support his acceptance of the amended application. The Pauls assert that the hearing examiner's interpretation of Rule 22.0 is inconsistent with Z.O. § 59-7.3.1.D.3.a, and that the zoning ordinance is controlling rather than Rule 22.0. In our view, no conflict exists between the ordinance and the rule.

OZAH Rule 22.0 governs modifications to a conditional use application, providing that "[a]pplicants may modify a conditional use application before the public hearing by filing a motion to amend the application with the [h]earing [e]xaminer." Rule 22.3 provides that "[n]o written notice is required for amendments made during a public hearing." Z.O. § 59-7.3.1.D.3., titled "Amendment of an Application," provides: An applicant may amend the application before the hearing if the [h]earing [e]xaminer approves a motion to amend after giving 10 days' notice to all parties entitled to original notice of filing. If an amendment would materially alter an applicant's proposal or evidence, the [h]earing [e]xaminer ²¹⁶ may postpone the hearing to a date that permits all interested parties adequate time to review the amendment. Z.O. § 59-7.3.1.D.3 is entirely silent as to the amendment of an application during a hearing. We reject the Pauls' characterization of the silence of the zoning ordinance on this issue as somehow forbidding amendment during a hearing.

The statutory framework of the zoning ordinance embraces flexibility in the conditional use approval process in order to seek compatibility between a proposed project and the surrounding neighborhood. See Z.O. § 59-7.3.1.F.1.a (permitting the hearing examiner to "supplement the specific requirements of this Chapter ⁶² with any other requirements necessary to protect nearby properties and the general neighborhood"); Z.O. § 59-3.3.2.E.2.C.ii.(i) (permitting the hearing examiner in conditional use applications for residential care facilities to "modify any standards to maximize the compatibility of the building with the residential character of the surrounding neighborhood."). The Pauls further assert that the hearing examiner improperly relied upon this Court's decision in Concerned Citizens of Great Falls, Maryland v. Constellation-Potomac, L.L.C. , 122 Md. App. 700 , 716 A.2d 353 (1998), when he determined that the amendment process was permissible because the parties had been given a fair opportunity for comment and cross-examination. The Pauls assert that the holding of Constellation is inapplicable to the instant case.

Constellation involved a petition for a special exception for the construction and operation of a senior care home. 122 Md. App. at 704 , 716 A.2d 353 . In that case, the Board of Appeals for Montgomery County accepted plans amended by the applicant on the final day of hearings 11 and closed the record without granting the opposing parties additional time to respond to the amended plans. Id. at 706 , 716 A.2d 353 . We held that the Board committed prejudicial error when it permitted the applicant to submit the amended plans and closed the record.

Id. The hearing examiner discussed our holding in ²¹⁷ Constellation , determining that Constellation stands for the proposition that amendments to a conditional use plan during the course of a hearing for the purpose of enhancing compatibility, with sufficient notice to opposing parties and an opportunity to respond, is permitted. We agree that this is the correct reading of Constellation , and we are entirely unpersuaded by the Pauls' assertions to the contrary. 12 In the present case, unlike Constellation , the opposing parties were provided with sufficient notice of the revisions to Brandywine's conditional use application and were provided with the opportunity to respond. The record as a whole reflects that the hearing examiner requested that Brandywine consider amending the Project in order to assuage various concerns expressed by the parties in opposition.

The hearing examiner did not coerce Brandywine to make any changes. After Brandywine submitted revised plans, the hearing examiner accepted the plans into evidence after providing appropriate notice to all parties. Furthermore, the hearing examiner provided the opposing parties the opportunity to respond to the amended application. For these reasons, we hold that the hearing examiner did not commit prejudicial legal error by suggesting that Brandywine make certain modifications to the Project and thereafter permitting the amendment of Brandywine's conditional use application. ⁶³ III.

The Board's Substantive Determinations We next turn our attention to the hearing examiner's application of the zoning ordinance standards to Brandywine's application and ultimate decision to grant the conditional use ²¹⁸ application. The Neighbors take issue with the hearing examiner's findings and conclusions on the Project's conformance with the master plan and compatibility of the surrounding residential neighborhood, noise impacts of the Project, adequacy of storm drainage for the Project, and the Project's effect on the economic value of the Pauls' property. As we shall explain, we shall hold that the hearing examiner's findings and conclusions were supported by substantial evidence and premised upon accurate conclusions of law. A. Compatibility with Surrounding Neighborhood and Conformance with Master Plan As discussed supra , the circuit court reversed the hearing examiner's findings regarding conformance with the applicable master plan, having determined that the hearing examiner was required to "evaluate the proposed conditional use against the standards of the RE-2 zone, particularly in light of the fact that the existing conditional use on site (the tennis facility) will be extinguished." On appeal, Brandywine and the County assert that the circuit court erred and that the hearing examiner's findings as to neighborhood impact and master plan conformance were correct.

The Neighbors contend that the hearing examiner inappropriately considered the departing conditional use when considering whether the Project would alter the character of the residential neighborhood. The Neighbors further take issue with the hearing examiner's finding that the Project substantially conforms with the applicable master plan. 1. Residential Neighborhood The zoning ordinance requires that the hearing examiner, in order to approve a conditional use application, find that the proposed project "is harmonious with and will not alter the character of the surrounding neighborhood in a manner inconsistent with the plan." Z.O. § 59-7.3.1.E.1.d. The zoning ordinance further requires that "[a]ny structure to be constructed, reconstructed, or altered under a conditional use in a Residential Detached zone must be compatible with the ²¹⁹ character of the residential neighborhood." Z.O. § 59-7.3.1.E.2.

The hearing examiner specifically addressed both of the above-referenced provisions of the zoning ordinance. With respect to whether the Project "is harmonious with and will not alter the character of the surrounding neighborhood in a manner inconsistent with the plan," see Z.O. § 59-7.3.1.E.1.d, the hearing examiner observed that "[t]he surrounding neighborhood is by no means exclusively defined by single-family residences." The hearing examiner observed that "[a] tennis club and related facilities currently sit on the subject site" and the Falls Road Golf Course, Manor Care and Arden Courts assisted living facilities, Normandie Farms restaurant, and the Bullis School are nearby. The hearing examiner concluded that "[a]lthough the Pauls' residence and other homes are within the neighborhood to the west of the [Property], the addition of the [Project] would not be 'alter[ing] the character of the surrounding neighborhood,' which is the question posed by the provision." The hearing examiner concluded that the Project "will be harmonious with the neighborhood." The hearing examiner observed that this issue "must be evaluated on a comparative basis ... because one cannot evaluate whether the neighborhood would be altered without considering what is ⁶⁴ presently there." 13 The hearing examiner separately addressed whether the Project was "compatible with the character of the residential neighborhood" as required by Z.O. § 59-7.3.1.E.2. The examiner observed that Z.O. § 59-7.3.1.E.2 "requires an examination of the compatibility of the [Project] with the character of the residential neighborhood in which it is located." The hearing examiner observed that the question is "similar to the one raised by [Z.O. § 59-7.3.1.E.1.d.], above, which asked whether the proposed use will be harmonious with the neighborhood ²²⁰ or would alter its character." The hearing examiner, however, determined that "in answering the compatibility question raised by § 59-7.3.1.E.2., the Hearing Examiner will not consider the existing use on the site because it will be gone if the subject application is approved." He further emphasized that "[t]he compatibility is not whether the proposed replacement will be more compatible than the existing use on the site, but whether the proposed use will be compatible with the remaining neighborhood after the existing use is replaced." After setting forth the issue under determination, the hearing examiner analyzed the Project and the particular residential neighborhood in which the Property is located.

The hearing examiner observed that "[e]ven without reference to the existing tennis facility, the particular residential neighborhood in question is somewhat unusual in that it is dominated, at least in the immediate vicinity of the [Project], by uses that are distinctly not single-family residential in character-a nursing home (Manor Care); and assisted living facility (Arden Courts); and a golf course (Falls Road Golf Course). In addition, the hearing examiner noted that "[t]wo other major non-residential uses are also in the defined neighborhood, the Normandie Farms restaurant, just to the south of the Manor Care facility, and the Bullis School, located just across Falls Road from the golf course." The hearing examiner emphasized that there is only one single-family residential use abutting the Property, namely, the Pauls' residence. The hearing examiner concluded that although "a significant portion of the neighborhood to the west of the site is occupied by single-family residences, they clearly are not the predominant part of the existing neighborhood especially in the immediate vicinity of the [Property]." With respect to the style of the Project, the hearing examiner credited the testimony of architect Hal Bolton, who testified that the Project is "designed in an English Tudor style ... similar to many of the residences in the Potomac neighborhood." Residential features include chimney pods, a rooftop cupola, Tudor detailing, residential windows, copper trim ²²¹ along the roof edge, architectural shingles, a pitched roof, dormers and masonry fireplaces and chimneys, and stone clad exterior walls. The hearing examiner quoted