Chesapeake Bay Foundation, Inc. v. Clickner

KEHOE, Judge. The Chesapeake Bay Foundation, Inc. (“CBF”) and the Magothy River Association, Inc. (“MRA”), appellants, opposed two zoning variance applications filed by David and Diana Clickner, appellees, for property located in Anne Arundel County (the “County”). The variance applications were initially considered by a County administrative hearing officer (the “AHO”), who granted them. Appellants appealed that decision to the Anne Arundel County Board of Appeals (the “Board”).

The Board dismissed appellants’ appeal on the ¹⁷⁵ ground that appellants lacked standing to appeal. On July 14, 2008, the Circuit Court for Anne Arundel County affirmed the Board’s decision. Appellants now appeal the judgment of the circuit court. Appellants present the three issues, which we have reworded for purposes of this opinion: 1.

Did the Board apply the wrong standard for administrative standing? 2. Was the Chesapeake Bay Foundation or the Magothy River Association aggrieved by the decision of the administrative hearing officer? 3. Did the Board of Appeals err in denying intervention to an MRA member who resided in close proximity to the subject property? We will answer “yes” to the first question.

In light of our disposition of that issue, it is necessary for us to remand this case to the Board so that it can address the second question. The third issue is not preserved for appellate review. Factual and Procedural Background Appellees own Big Dobbins Island (“the Island”), which is located in the Magothy River in Anne Arundel County. The Island is located within the Chesapeake Bay Critical Area and is subject to those provisions of the Anne Arundel County Zoning Ordinance that restrict development activities in the Critical Area.

Appellees applied for variances from provisions of the County’s zoning regulations to permit them to construct a driveway, a storm water management structure, septic tanks and a well, all to be located within the Island’s shoreline buffer area 1 and to build a pier on the Island even though there was no residence on the Island. Following a hearing before the ¹⁷⁶ Office of Administrative Hearings, the presiding AHO conditionally granted the variances on December 18, 2006. Appellants appealed that decision to the Board. Prior to a hearing on the merits, appellees filed a motion to dismiss the appeal on the ground that appellants were not “aggrieved,” as that term has been defined in Maryland cases, most prominently, Bryniarski v. Montgomery Co., 247 Md. 137 , 230 A.2d 289 (1967).

Appellees contended that the Anne Arundel Code provided that only persons aggrieved by a decision of an administrative hearing officer had the right to appeal such a decision to the Board. Therefore, reasoned appellees, CBF and MRA lacked standing. The Board held an evidentiary hearing on the motion to dismiss that extended over two evenings. At the hearing, appellants advanced two arguments.

First, they contended that the “aggrievement” standard did not apply to appeals to the Board. Second, they presented evidence and argument to demonstrate that they were, in fact, aggrieved. The following pertinent evidence was adduced at the hearing. Appellees presented the testimony of Wayne A. Newton, a professional civil engineer, in support of their motion to dismiss.

Newton identified twenty-two properties located within one-half mile of the Island, located those properties on an aerial photograph and prepared a list of those properties. He testified that neither CBF nor MRA owned property located ■within one-half mile of the Island. His testimony was unrefuted. Appellants called Mark Mclnnes, a member of both CBF and MRA, who testified that he owned property located approximately 50 feet from the mainland portion of appellees’ property.

Mr. Mclnnes stated that the grant of the variances would aggrieve him because: [He and his wife] bought this custom home and paid a lot of money for it because of its view, looking out on Dobbins Island. ¹⁷⁷ [He] believe[s] that with [the] pier and [the] pontoon boat and all the other things that [appellees are] proposing doing there, [his] house could drop $200,000 in value. [He and his kids] fish in the pond there where [appellees] want[ ] to put a pier.... [T]he wildlife is there that [he and his family] bought [their] house to enjoy. [They’re] concerned about what [appellees are] going to do with the septic system. The Board sustained appellees’ objection to further testimony regarding how Mr. Mclnnes would be personally aggrieved since he was not a party to the AHO proceeding or the appeal to the Board. MRA also presented the testimony of David Radford, another member of both MRA and CBF. Mr. Radford stated that he owned property located about 10 feet from the mainland portion of appellees’ property, within sight of the Island.

Although Mr. Radford was a party to the AHO proceeding, he was not allowed to testify as to his special harm because he did not appeal the AHO’s decision, and was thus not a party to the proceeding in front of the Board. The dive coordinator of MRA’s diving team, Richard Carey, testified that, since 2000, MRA’s diving teams have planted oysters purchased by the MRA on eight oyster reefs located in the Magothy River. Carey testified that, during the summer, MRA’s divers are on the river “at least two to three times a week.” An aerial photograph was introduced, identifying specific reefs and their locations. Carey testified that significant erosion and runoff into the river would damage the oysters on the reefs.

He stated that MRA has a license from the State to sample the oyster reefs, which are otherwise closed to the harvest of oysters. On cross-examination, he admitted that MRA did not own the oyster reefs. In response to a question from a Board member, Carey stated that MRA’s oyster projects, if conducted by a commercial enterprise, would cost over one million dollars. Paul Spedero, the president of MRA, testified that MRA, working in conjunction with, among other organizations, Ma ¹⁷⁸ ryland Department of Natural Resources, is a party to a five-year plan to restore oysters in the Magothy River.

As part of this effort, the MRA negotiated an agreement with watermen to close the Magothy River to oyster harvesting. He testified that the MRA provided technical and volunteer assistance to the DNR and County agencies in order to improve water quality in the Magothy River. He testified that MRA had spent $126,990 and expended 31,212 volunteer hours in improving water quality in the Magothy River between 1992 and the date of the hearing. CBF presented testimony from three staff members and one volunteer to support its allegations of special damage to the corporation and as a representative of its members’ interests.

Amelia Koch, director of membership, testified that six CBF members live within one-half mile of the Island. The director of CBF’s oyster restoration program, Stephanie Reynolds, testified that, while CBF does not own or lease any land from the State, it has worked on four reef sites in the River. The director of education operations, Matthew Mullen, testified that CBF takes students and teachers on field trips to the River. Volunteer Karl Treff testified that CBF planted submerged grasses at two sites located approximately three fourths of a mile from the Island.

At the beginning of the second day of the hearing, August 1, 2007, Mr. Mclnnes moved to intervene in the appeal. His counsel 2 argued: [H]e relied on the Magothy River Association to represent his interest in this appeal and he entered into an agreement for this with Magothy River in the spring. However, if the challenge to the standing of the Magothy River and Chesapeake Bay Foundation is successful, that will leave his interest in the matter unprotected.... Appellees opposed the motion, arguing that it was premature because the Board had not yet determined whether MRA ¹⁷⁹ or CBF had standing.

The Board denied Mr. Mclnnes’ motion to intervene without explanation. At the close of the hearing and after discussion on the record, the Board voted four to three to dismiss the appeal for lack of standing. On November 29, 2007, the Board issued a written Memorandum Opinion setting forth its findings of fact and conclusions of law. The following findings and conclusions of the majority 3 of the Board are pertinent: The Anne Arundel County Code (the “Code”) provides that a “person aggrieved” by a decision of the Office of Planning and Zoning may appeal to this Board.

See, Code, Section 3-l-14(e) and see also Section 18-16-402. The status of aggrievement has been the subject of numerous judicial rulings, which have sought to define the term. See e.g., Bryniarski v. Montgomery Co., 247 Md. 137 , 230 A.2d 289 (1967). For an appellant to be deemed “aggrieved”, the appealed decision must affect the appellant in a personal and special way that is different from that suffered by the public generally.

DuBay v. Crane, 240 Md. 180 , 213 A.2d 487 (1965). However, an adjoining, confronting or nearby property owner is deemed, prima, facie, to be specially damaged. Bryniarski .... ❖ ❖ ❖ To challenge the fact of aggrievement of a nearby property owner, the party challenging such fact has the burden to show that the appellant is not specially aggrieved. Id.

Here, the Petitioners have convinced us that the Protestants are not prima facie aggrieved or specially aggrieved. The ¹⁸⁰ Protestants presented witnesses and evidence to show that they are each specially aggrieved; but we are not persuaded. $ $ ^ $ The subject property is an island____ We believe ... that owners of parcels within sight, sound or smell of this island would have sufficient standing to maintain an appeal ____ * # * * While acknowledging that they do not own or lease real property within sight or sound of the subject island, both the CBF and the MRA urged the Board to consider them specially aggrieved — different from the public at large. There is no question that both the CBF and the MRA have been and are engaged in oyster bed and [aquatic] grass planting activities on the Magothy____ We have assumed that the oyster and vegetation planting efforts ... occur within sight, sound[,] taste and smell of Dobbins Island. However, we do not believe that the conduct of these activities result in the Protestants[’] being aggrieved, specially, from the public at large.

Any citizen can access the waters of the Magothy. The waters surrounding this island are State owned and regulated---- So long as an individual obeys all laws and regulations, any individual has as much right to be on the Magothy, and next to this island, as the CBF or the MRA. The CBF and the MRA provide opportunities to raise and release oysters and grasses into the Magothy River. However, we fail to see how the release of items of personalty into the public waters results in the CBF and MRA being specially aggrieved by development activities on this island.

Once a grass or oyster is released into the wild (or at least State owned waters), there cannot be a continuing property interest in it. $ * * $ The Protestants’ argument that they have sufficient standing to maintain an appeal before this Board pursuant ¹⁸¹ to the principles of Sugarloaf Citizens’ Association v. Dept. of Environment, 344 Md. 271 , 686 A.2d 605 (1996) is off point. The Sugarloaf case provides that the requirements for administrative standing are relatively lenient and not very strict, but only in the absence of a statute or regulation specifying criteria for administrative standing. The Anne Arundel County Code has a clear statute that requires parties to an appeal to be aggrieved. See, Code, Section 3-l-104(c) and see also Section 18-16-402.

The Board then dismissed the appeal for lack of standing. Appellants filed a timely petition for judicial review in the Circuit Court for Anne Arundel County. At the conclusion of a hearing on July 14, 2008, the circuit court affirmed the Board’s dismissal for lack of standing. Appellants now appeal the decision of the circuit court affirming the Board’s dismissal.

We will discuss additional facts as necessary. Discussion When this Court reviews the decision of an administrative agency, such as the Board, we look through the circuit court’s decision and evaluates the decision of the agency. People’s Counsel for Balt. County v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007) (citing Mastandrea v. North, 361 Md. 107, 133 , 760 A.2d 677 (2000)).

In doing so, an appellate court “may not substitute its judgment for the administrative agency’s in matters where purely discretionary decisions are involved, particularly when the matter in dispute involves areas within that agency’s particular realm of expertise, so long as the agency’s determination is based on ‘substantial evidence.’ ” Surina, 400 Md. at 681 , 929 A.2d 899 (citing, among other cases, Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 68-69 , 729 A.2d 376 (1999); and Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398 , 396 A.2d 1080 (1979)). We will uphold the agency’s findings of fact if they are “fairly debatable” upon the evidence before the agency. ¹⁸² Surina, 400 Md. at 682 , 929 A.2d 899 ; Bd. of County Comm’rs for Cecil County v. Holbrook, 314 Md. 210, 216-17 , 550 A.2d 664 (1988). However, “ ‘[generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law.’ ” People’s Counsel for Balt. County v. Loyola College in Md., 406 Md. 54, 68 , 956 A.2d 166 (2008) (quoting Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259, 267-68 , 734 A.2d 227 (1999)).

With these principles in mind, we turn to the specific contentions raised by the parties. Before this Court, appellants argue that the Board of Appeals applied the incorrect standard for determining standing in an administrative proceeding. They contend that State law is clear that the requirements for standing for participation in administrative proceedings are relaxed and informal. They point to the Court of Appeals opinion in Sugarloaf v. Dept. of Environment, 344 Md. 271, 286-87 , 686 A.2d 605 (1996), as authority for that proposition.

They contend: To require a different standard will not only be contrary to law but also discourage citizen involvement in the administrative process. A citizen or organization needs to be able to adequately protect its personal and property rights or those of its members. ^ í íS íH Despite being advised by CBF and MRA of the ruling in Sugarloaf and the lessened standard of standing review in administrative proceedings, the Board ignored the ruling of the Court of Appeals and misapplied the law of standing. The Board held that because the Anne Arundel County Code has a statute that requires parties to an appeal to be aggrieved, Sugarloaf does not apply. The Board’s decision is incorrect.

For their part, appellees do not quarrel with appellants’ position that Sugarloaf accurately summarizes the current Maryland law on administrative standing. However, they correctly point out that the Sugarloaf opinion recognizes that ¹⁸³ a specific statute or regulation may impose a more restrictive test. See Sugarloaf, 344 Md. at 286 , 686 A.2d 605 . Appellees contend that §§ 3-l-104(a) and 18-16-402 of the County Code provide that a would-be appellant must be both “aggrieved” by the AHO’s decision as well as a party to the proceeding before the AHO.

Appellees then analyze the evidence adduced at the Board hearing to support their contention that the Board’s decision that CBF and MRA were not aggrieved by the AHO’s decision to grant the variance was based on substantial evidence. Appellees state that the analysis employed by the Court of Appeals in Bryniarski, 247 Md. at 144-5 , 230 A.2d 289 , is controlling and that the Board correctly applied it to the facts of the instant case. I. As the parties note in their briefs, Maryland land use cases draw a distinction between an “interested party” and an “aggrieved party” for purposes of standing in administrative proceedings. The Court of Appeals has explained: The requirements for administrative standing under Maryland law are not very strict.

Absent a statute or a reasonable regulation specifying criteria for administrative standing, one may become a party to an administrative proceeding rather easily. In holding that a particular individual was properly a party at an administrative hearing, Judge J. Dudley Digges for the Court in Morris v. Howard Res. & Dev. Corp., 278 Md. 417, 423 , 365 A.2d 34 (1976), explained as follows: He was present at the hearing before the Board, testified as a witness and made statements or arguments as to why the amendments to the zoning regulations should not be approved. This is far greater participation than that previously determined sufficient to establish one as a party before an administrative agency.

See, e.g., Baxter v. Montgomery County, 248 Md. 111, 113 , 235 A.2d 536 (1967) (per curiam) (submitting name in writing as a protestant); Bryniarski v. Montgomery Co., 247 Md. 137, 143 , 230 A.2d 289 , (1967) (testifying before agency); Her ¹⁸⁴ telendy v. Montgomery Cty., 245 Md. 554, 567 , 226 A.2d 672 (1967) (submitting into evidence letter of protest); DuBay v. Crane, 240 Md. 180, 184 , 213 A.2d 487 (1965) (identifying self on agency record as a party to proceedings); Brashears v. Lindenbaum, 189 Md. 619, 628 , 56 A.2d 844 (1948) (same). Bearing in mind that the format for proceedings before administrative agencies is intentionally designed to be informal so as to encourage citizen participation, we think that absent a reasonable agency or other regulation providing for a more formal method of