Chesapeake Bay Foundation, Inc. v. DCW Dutchship Island, LLC

ADKINS, J. Roughly 35 million years ago, an asteroid over a mile wide crashed into the Earth at a speed of about 70,000 miles per hour. Hillary Mayell, Chesapeake Bay Crater Offers Clues to Ancient Cataclysm, National Geographic News, (November 13, 2001), http://news.nationalgeographic.com/news/pf/ 57998027.html. This collision created the Chesapeake Bay ⁵⁹² Crater. Id.

One of the by-products of this celestial collision is the subject of this contest — Little Island in the Magothy River (“the Island”). In 2000, DCW Dutchship Island, LLC (“DCW”), a corporation wholly owned by Daryl Wagner (“Wagner”), purchased the Island. At that time, the Island measured approximately 1.92 acres in area and was improved by a single-family house and related structures built in the 1920s. 1 Wagner demolished the house and set about building a new one. The circumstances surrounding this construction are not new to us.

As we explained in McHale v. DCW Dutchship Island, LLC: In or about 2001, Daryl Wagner, a member of DCW and a Maryland registered home builder, acting on behalf of DCW, demolished the old summer cottage and removed the debris, without the necessary permits or variances required by the Critical Area Law and County ordinances. Then, Wagner constructed the following structures or impervious surface areas on the Island: (1) a new 2,883 square foot home; (2) replacement sheds for the two preexisting sheds; (3) a 66 square foot gazebo; (4) a boat ramp and concrete driveway with approximately 2,668 square feet of surface area to accommodate his amphibious vehicle; (5) 846 square feet of sidewalks; and (6) a pool and deck totaling 1,433 square feet. In November 2004, the County authorities discovered the construction activities on the Island and notified DCW of the numerous violations. On 28 December 2004, DCW sought variances from the unobserved requirements of the Critical Area Law for each of the structures and improvements on the Island.

DCW sought also an amendment to ⁵⁹³ the critical area buffer map, which prohibits most development activity within 100 feet of the shoreline. A County Administrative Hearing Officer heard the evidence for and against the requests for variances. The Magothy River Association (“MRA”) appeared at the variance hearings on 5 June 2005 and 20 September 2005 to oppose DCW’s requests. The Hearing Officer granted some of the variances on 27 October 2005.

Wagner appealed administratively the denials, and the MRA, the Chesapeake Bay Foundation (“CBF”), and the Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”) appealed the decision to grant the variances, all to the County Board of Appeals. 415 Md. 145, 151-52 , 999 A.2d 969, 972-78 (2010) (footnote omitted). 2 At the Anne Arundel County Board of Appeals (the “Board”) hearing, Wagner moved to dismiss MRA and CBF as parties to the administrative proceedings. The Board ultimately concluded that CBF did not have standing to appeal the granted variances because it did not participate in the hearing before the Administrative Hearing Officer (“AHO”), as required by § 3-1-104(a) of the Anne Arundel County Code (“AACC”). 3 After 24 evenings of hearings on the subject, the Board revised the decision of the AHO to include certain conditions on the variances. 4 ⁵⁹⁴ The Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”), MRA, CBF, and Wagner all sought judicial review of the Board’s decision in the Circuit Court for Anne Arundel County. These appeals were consolidated by Circuit Court order. In addition, CBF filed a “Motion for Summary Judgment” limited to the issue of whether the Board improperly excluded CBF from the variance portion of the proceedings.

The court denied all motions relevant to the variance matter. The Circuit Court then affirmed the decision of the Board, observing: The proceedings below were fair, reasonable, and in accordance with applicable law. After sorting through a tremendous volume of evidence, the Board rendered a decision supported by competent and substantial evidence. Reasonable minds will disagree, as demonstrated by the 35 pages of concurring and dissenting opinions.

However, absent legal error, this Court may not substitute its own wisdom for the considered judgment of the Board and will therefore ... AFFIRM the decision of the Board of Appeals. The Commission and CBF appealed the Circuit Court’s decision to the Court of Special Appeals, arguing that the Critical Area Act 5 applied to the variance proceedings, that the Board erred in refusing to allow CBF to participate as a party in the administrative process, and that the Board did not base its decision on substantial evidence in the record. In an unreported opinion, the Court of Special Appeals rejected these arguments and affirmed the Circuit Court.

MRA and CBF (collectively “Petitioners”) 6 petitioned this Court for certiorari. We granted this petition to consider the following questions, which we have restated for clarity and concision: ⁵⁹⁵ 1. Did CBF have standing to participate in the variance proceedings before the Board of Appeals on the grounds that MRA, which advocated the same position, had standing? 2. Does AACC § 3-l-104(a) violate the Express Powers Act, thus making the Board’s denial of standing to CBF on the basis of it erroneous? 3.

Did the Board of Appeals violate its own rules when it held that CBF could not cross-examine witnesses, resulting in CBF being denied due process? 4. Did the Board of Appeals err in granting Wagner after-the-fact variances? For the following reasons, we answer the first three questions in the negative and the fourth in the affirmative, but only-in part. DISCUSSION Petitioners present three arguments in support of their request that we should remand this matter to the Board so that CBF may participate in the creation of a record in the variance proceedings. 7 CBF’s Standing To Participate As A Party Before The Board Of Appeals We first address Petitioners’ argument that MRA’s administrative standing before the Board confers standing on CBF.

Petitioners claim that Sugarloaf Citizens’ Association v. Department of Environment, 344 Md. 271 , 686 A.2d 605 (1996), partially abrogated by statute, Md.Code (1982, 2013 RepLVol.), § 5 — 204(f) of the Environment Article, as stated in Patuxent Riverkeeper v. Maryland Department of Environment, 422 Md. 294, 298 , 29 A.3d 584, 586 (2011), and Garner v. Archers Glen Partners, Inc., 405 Md. 43 , 949 A.2d 639 (2008) stand for the proposition that if one party has standing to ⁵⁹⁶ participate in the proceedings, so do all other parties on the same side of the case — what might be called “piggy-back” standing. Using these cases, Petitioners reason that because MRA appeared before the AHO, and the Commission had a statutory right to challenge the variances, CBF need not have appeared before the AHO, or for that matter even have been aggrieved, to have standing before the Board. Petitioners argue that the Court of Special Appeals specifically relied on Sugarloaf for this point in a similar context. They point to the following language in a footnote in Chesapeake Bay Foundation, Inc. v. Clickner, 192 Md.App. 172 , 191 n. 6, 993 A.2d 1163 , 1175 n. 6 (2010): “ ‘It is a settled principle of Maryland law that, where there exists a party having standing to bring an action ... we shall not ordinarily inquire as to whether another party on the same side also has standing.’ ” (quoting Garner, 405 Md. at 54 , 949 A.2d at 645-46 ) (internal citations omitted).

CBF and MRA claim that by denying CBF “piggyback” standing, the Board erred. Anne Arundel County (the “County”) urges us to construe Sugarloaf and Gamer as reflecting considerations of judicial economy rather than administrative due process. As the County sees it, the standing rule announced in Sugarloaf “appears to be based on little more than the fact that, if one party has the standing necessary to bring a justiciable controversy before the court, it simply is unnecessary for the court to decide whether other parties on that side of the case have standing as well.” Wagner makes similar arguments, claiming both that CBF ignores the full holding of Sugarloaf, and that the Sugarloaf Court did not apply its broad standing doctrine to the administrative context. Tracing the roots of “piggy-back” standing, we examine what People’s Counsel for Baltimore County v. Crown Development Corporation, 328 Md. 303 , 614 A.2d 553 (1992), Garner , and Sugarloaf say about standing.

In Sugarloaf, we explained: It is a settled principle of Maryland law that, “ ‘where there exists a party having standing to bring an action ... we ⁵⁹⁷ shall not ordinarily inquire as to whether another party on the same side also has standing.’ ” People’s Counsel v. Crown Development Corp., 328 Md. 303, 317 , 614 A.2d 553, 559-60 (1992), quoting Board v. Haberlin, 320 Md. 399, 404 , 578 A.2d 215, 217 (1990). The record in the present case establishes that the Buchanans had standing to maintain this action. Consequently, it is unnecessary to determine whether any of the other plaintiffs also had standing. 344 Md. at 297 , 686 A.2d at 618 (citations omitted). In Crown Development, the limited scope of the doctrine is more readily discernable.

As the Court explained: Finally, respondent argues that the People’s Counsel for Baltimore County should not have been permitted to intervene at the circuit court level. Respondent does not, however, suggest how the presence of People’s Counsel has prejudiced it. Alison Tucker was a proper party before the circuit court, and had standing to appeal to the Court of Special Appeals and to petition this Court for certiorari. Accordingly, the presence of People’s Counsel was not required to obtain appellate review at any level in this case. 328 Md. at 317 , 614 A.2d at 559-60 (emphasis added).

Similarly, in Garner , we said: Our traditional reluctance to address issues of standing not necessary to the outcome of a case is highlighted in Sugarloaf Citizens Ass’n v. Northeast Maryland Waste Disposal Authority, 323 Md. 641 , 650 n. 6, 594 A.2d 1115 , 1119 n. 6 (1991). There we declined to address a possible standing issue because it was unnecessary, noting “[i]n light of our decision on the merits, we need not and do not reach any issue of standing.” 405 Md. at 54-55 , 949 A.2d at 646 . Nothing we said in Sugarloaf Crown Development, or Garner suggested that this “piggy-back” standing rule would apply in an administrative proceeding or trial, where different considerations abound. Indeed, if we adopted Petitioners’ ⁵⁹⁸ position, unlimited persons who held views aligned with a party — however this would be determined — could join an administrative proceeding or trial, and be accorded the right to present witnesses, cross-examine opposing witnesses, make motions, and have other rights of a party.

We can only imagine how unwieldy and even circus-like such a proceeding might be. Petitioners’ reliance on Clickner as “binding precedent” establishing CBF’s standing before the Board of Appeals does not persuade us otherwise. Clickner also involved CBF and MRA attempting to oppose variances before the Board after the AHO granted those variances. 192 Md.App. at 174 , 993 A.2d at 1165 . After a motion from the landowner, and two evenings’ worth of hearings, the Board dismissed CBF and MRA’s complaint for a lack of standing — this time because the Board found that the Petitioners were not aggrieved within the meaning of AACC § 3-l-104(a).

Id. at 181, 993 A.2d at-1169. The intermediate appellate court held that the Board applied the wrong definition of “aggrieved” for the purposes of determining whether CBF or MRA had administrative standing. Id. at 187, 993 A.2d at 1173 . The footnote relied on by Petitioners simply explained the court’s decision to remand the matter to the Board to determine “whether either party meets the correct definition of ‘aggrieved.’ ” Id. at 191 , 993 A.2d at 1175 (emphasis added).

In context, it is clear that Clickner , like this Court’s cases discussed above, was only explaining that if either party had judicial standing at the circuit court, then an appellate court would not address the issue of whether both parties had standing. None of these cases suggest that this rule of appellate procedure, designed to streamline appellate cases by avoiding unnecessary questions of standing, should be extended to administrative hearings or court or jury trials, where a primary concern is to facilitate presentation of evidence in a fair and efficient manner. Petitioners confuse a principle of appellate review concerning when this Court will address a question of standing, for a substantive holding regarding when a party has standing before an administrative body. ⁵⁹⁹ The County’s Power Under The Express Powers Act To Create Conditions Precedent For The Board Of Appeals Petitioners next argue that standing for the purpose of administrative proceedings is “more lenient than judicial standards and [is] designed to encourage citizen participation.” Certainly, as we observed in Sugarloaf, “[t]he requirements for administrative standing under Maryland law are not very strict.” 344 Md. at 286 , 686 A.2d at 613 . Yet, as we went on to explain, this leniency only exists “[a]bsent a statute or a reasonable regulation specifying criteria for administrative standing!.]” Id.

Here, there was a statute specifying criteria for administrative standing — AACC § 3-l-104(a). Thus, the issue before us turns on whether AACC § 3-l-104(a) is a permissible exercise of the County’s power. This question implicates our decisions regarding Home Rule, i.e., the powers given to counties to create laws and regulations pursuant to the Express Powers Act. The Home Rule system was enacted pursuant to a Maryland constitutional provision adopted in 1915.

See Ritchmount P’ship v. Bd. of Supervisors of Elections for Anne Arundel Cnty., 283 Md. 48, 56 , 388 A.2d 523, 528-29 (1978). The history leading up to the adoption of Home Rule via Article XI-A of the Maryland Constitution was narrated by Judge Levine in this seminal case: The waning years of the nineteenth century witnessed the birth of a national movement, the purpose of which was to restore and revitalize local government by giving citizens of counties and municipalities the power to legislate as to local matters free from undue encroachment by state legislatures. In Maryland, as elsewhere, the “Home Rule” movement was fueled by widespread public indignation over excessive legislative interference with and insensitivity toward local problems and concerns, and by a growing dissatisfaction with the enormously inefficient system of performing local law-making functions at the state level. It was this popular demand for increased local autonomy that led ulti ⁶⁰⁰ mately to the ratification of Article XI-A at the general election of November 1915.

Id. at 55-56 , 388 A.2d at 528-29 (citations omitted). As Judge Levine explained, Article XI-A of the Constitution authorized the Legislature to take steps to implement Home Rule, which it did through the Express Powers Act: Article XI-A does not in and of itself confer legislative power upon the counties. Instead it mandates that the General Assembly expressly enumerate and delegate those powers exercisable by counties electing a charter form- of government. Md. Const., Art. XI-A, § 2.

In compliance with this constitutional injunction, the Legislature enacted in 1918 the Express Powers Act, which, as amended, endows charter counties with a wide array of legislative and administrative powers over local affairs. Art. 25A, § 5. These “legislative powers” are those usually associated with the objects of government — that is, powers to legislate for the benefit of the health, safety and general welfare of the local community. Id. at 57, 388 A.2d at 529 (italics in original) (footnote omitted).

Petitioners argue that AACC § 3-l-104(a), which provides that “[a] person aggrieved by a decision of the Administrative Hearing Officer who was a party to the proceedings may appeal the decision to the Board of Appeals,” violates the Express Powers Act. Petitioners maintain that this provision exceeds the scope of the powers granted by the Act, which only confers to county governments the power to enact local laws providing: (1) [F]or the establishment of a county board of appeals ... (3) for the adoption by the board of rules of practice governing its proceedings; and (4) for the decision by the board on petition by any interested person[.] Md.Code (1957, 2011 RepLVol.), Article 25A, § 5(U). Petitioners argue that because the Express Powers Act grants a right to appeal to the Board of Appeals, and does not require that the person first have appeared before the AHO, the County has created an unauthorized obstacle to citizen participation in ⁶⁰¹ variance decisions.

Relying on our decision in Hope v. Baltimore County, 288 Md. 656 , 421 A.2d 576 (1980), which held that county provisions that exceed the limits of the Express Powers Act are invalid, Petitioners maintain that AACC § 3-l-104(a) should be stricken as an illegal law. In Hope , we considered a county law that allowed for a party aggrieved by an executive, administrative or adjudicatory county order to appeal that decision directly to the circuit court without first appealing to the county board of appeals. 288 Md. at 658-61 , 421 A.2d at 577-79 . We held that the county provision violated the Express Powers Act because creating a county board of appeals was the exclusive remedy that a county may create under the Express Powers Act. Id. at 666-67 , 421 A.2d at 582 .

Petitioners argue that by creating a condition precedent to access its Board of Appeals, Anne Arundel County similarly exceeds the powers granted to it by the Express Powers Act. The County counters that there is no conflict between the Express Powers Act 8 and the AACC. The County explains it has the authority to create a two-tiered process of review for administrative decisions. It argues that this Court explained in Ritchmount that, under Sections 1 and 1A of Article XI-A of the Maryland Constitution, a county may establish the form and structure of its government.

Thus, avers the County, it had the authority to set up the AHO, irrespective of the Express Powers Act. As the County argues, Maryland’s appellate courts have been unwilling to construe narrowly the powers delegated to counties. The County cites Prince George’s County v. Silverman, 58 Md.App. 41, 53 , 472 A.2d 104, 110 (1984) for the ⁶⁰² proposition that “where [County] legislation bears a reasonable relationship to the implementation of an enumerated power, the legislation will be upheld.” The County directs us to our decision in County Commissioners for Montgomery County v. Supervisors of Elections of Montgomery County, 192 Md. 196, 208 , 63 A.2d 735, 740 (1948), to wit, our holding that “[w]hen an apparent conflict [between Constitutional provisions] arises, it cannot be doubted but that literalism and verbalism must yield to the essential and underlying claims of the people of the State to have a reasonable and effective government.” The County concludes that “in the specific context of Local Gov’t Article, § 10-305, it was hardly unreasonable for the County, in those matters in which the first ‘tier’ of administrative review is an evidentiary hearing before the Administrative Hearing Officer, to construe ‘any interested person’ entitled to appeal to the Board of Appeals as limited to a person who was a party to the proceedings before the Administrative Hearing Officer.” We have characterized the Express Powers Act as an “expansive grant of authority.” Ritchmount, 283 Md. at 58 , 388 A.2d at 530 . As we have explained: The purpose and intent of ... the [E]xpress [P]owers Act was to take from the legislature and give to the County the exclusive power to enact local laws, and the reasons for this delegation of power, commonly called home rule, were first to reduce as far as possible the log jam of unacted on measures in the late days of the legislative session in Annapolis which had caused passage of laws that had not received careful scrutiny or due consideration and, second, “to permit local legislation to be enacted solely by those directly affected by it without interference [by] representatives [from] other sections of the State.” Scull [v. Montgomery Citizens League, 249 Md. 271, 274 , 239 A.2d 92, 94 (1968)].

Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 160 , 252 A.2d 242, 246 (1969). As we further indicated, “[gratification would not be afforded the purposes of home rule or the reasons which prompted it if the language of [the Express ⁶⁰³ Powers Act] were not to be construed as a broad grant of power to legislate on matters not specifically enumerated in Art. 25A.” Id. at 160-61 , 252 A.2d at 247 . Thus, in order to determine whether AACC § 3-l-104(a) is an appropriate exercise of the powers delegated to the County, we first must determine whether this subsection implicates a matter specifically enumerated in Title 10 of the Local Government Article. 9 Md.Code (2013, 2013 RepLVol.), § 10-305 of the Local Government Article (“LG”) provides the particulars for county boards of appeals. It states, in pertinent part: (a) Established. — A county may enact local laws to provide for: (1) the establishment of a county board of appeals, whose members shall be appointed by the county legislative body; (2) the number, qualifications, terms, and compensation of the members of the county board of appeals; (3) the adoption by the county board of appeals of rules of practice that govern its proceedings; and (4) a decision by the county board of appeals on petition of any interested person, after notice and opportunity for hearing, on the basis of a record before the board. • (b) Jurisdiction. — The county board of appeals may have original jurisdiction or jurisdiction to review the action of an administrative officer or unit of county government over matters arising under any law, ordinance, or regulation of the county council that concerns: (1) an application for a zoning variation or exception or amendment of a zoning map; (2) the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order; or ⁶⁰⁴ (3) the assessment of any special benefit tax.

(c) Decision. — When issuing a decision, the county board of appeals shall file an opinion that shall include a statement of the facts found and the grounds for the decision. (d) Judicial Review. — (1) Any person aggrieved by the decision and a party to the proceeding before the county board of appeals may seek review by the circuit court for the county. LG § 10-305 (emphasis added). To be sure, nothing in the statute as written confers to counties the power to create conditions precedent for access to a board of appeals.

Additionally, as Petitioners remind us, LG § 10-305(a)(4) mentions that the municipality, in creating a county board of appeals, may make appeal before the board available to “any interested person.” Yet, we decline to hold AACC § 3-l-104(a) to be a violation of the Express Powers Act. The County’s ability to set reasonable conditions precedent to access to its Board of Appeals is an exercise of its Home Rule. As we have explained, “the power to establish and organize local government springs directly from Article XI-A [of the Constitution] and thus lies beyond the competence of the General Assembly or any other branch -of state government to alter or erase.” Ritchmount, 283 Md. at 59 , 388 A.2d at 530 (italics in original). LG § 10-305 is part of a broader scheme allowing Maryland’s counties Home Rule.

As we explained in Scull, supra, part of the purpose of Home Rule is to allow a county to pass legislation that pertains directly to it without interference from the state government. LG § 10-305 provides a framework for creating a board of appeals, but it does not give all the necessary specifics. Filling in the gaps left by the Express Powers Act is well within the power of a county government. We have previously explained a charter county’s broad authority to establish the mechanics of operation of its board of appeals: A charter county is authorized to enact laws providing for decisions by the board of appeals “either originally or on ⁶⁰⁵ review of the action of an administrative officer or agency.” A charter county is thus given the option, as to any particular matter encompassed by § 5(U), to vest the board of appeals with original jurisdiction or with appellate jurisdiction.

United Parcel Serv., Inc. v. People’s Counsel for Balt. Cnty., 336 Md. 569, 588 , 650 A.2d 226, 236 (1994); see also Halle Cos. v. Crofton Civic Ass’n, 339 Md. 131, 142 , 661 A.2d 682, 687 (1995) (interpreting United Parcel Service as holding that charter counties may vest the board of appeals with appellate or original jurisdiction over any subject matter in the Express Powers Act). This discretion to set up either appellate or original jurisdiction is reflected in LG § 10-305(b)(l), which explicitly allows a charter county to grant appellate jurisdiction to the board of appeals for “an application for a zoning variation or exception or amendment of a zoning map.” The authority to grant appellate jurisdiction to the board of appeals regarding zoning variances necessarily presumes the authority to set up an entity charged with making initial variance determinations. We see no reason why, consistent with this power to confer appellate jurisdiction on the Board, the County should not also be allowed to require AHO participation as a prerequisite to appellate standing. 10 Indeed, were we to hold AACC § 3-l-104(a) unconstitutional, the County’s power to limit the Board to appellate jurisdiction over zoning variances would be a hollow one. 11 ⁶⁰⁶ Having resolved the issue of Home Rule, we return to Petitioners’ arguments that the Board’s decision to deny CBF standing ran afoul of our general rule that administrative standing is easy to achieve.

This argument fails because it ignores an important prerequisite to application of the general rule — that there be no specific regulation to the contrary. As we stated in Sugarloaf, “[a]bsent a statute or a reasonable regulation specifying criteria for administrative standing, one may become a party to an administrative proceeding rather easily.” 344 Md. at 286 , 686 A.2d at 613 . Here, AACC § 3-l-104(a) represents just such a statute. It is both a proper use of the County’s authority, and a reasonable condition precedent to access to the Board.

Accordingly, CBF was not improperly denied standing by the Board’s invocation of AACC § 3-l-104(a). CBF’s Due Process Rights To Cross — Examine Witnesses Before The Board Petitioners’ ultimate standing claim is that the Board denied CBF due process by not allowing it to cross-examine witnesses. They direct us to the Rules of Practice and Procedure of the Board of Appeals as found in AACC Appendix B. Board of Appeals Rule 4-104(c), provides that: The parties shall have the opportunity to cross-examine witnesses. The Chair shall permit a representative or representatives of persons in opposition the opportunity to conduct cross-examination.

Petitioners aver that a representative of CBF, who opposed the variances, was denied the opportunity to cross-examine witnesses. CBF subsequently moved to intervene in the variance portion of the case. The Board denied this motion and precluded CBF’s representative from cross-examining any witnesses in the variance action. The Board also prohibited CBF’s representative from passing notes to MRA’s representatives suggesting cross-examination questions during the variance proceedings.

Thus, Petitioners argue, regardless of their lack of standing, the Board failed to follow its own rules in terms of allowing persons in opposition to cross-examine ⁶⁰⁷ witnesses, regardless of party status. Petitioners claim this denied CBF due process. In support of CBF’s right to cross-examine witnesses, Petitioners direct our attention to Ross v. Mr. Lucky, LLC, 189 Md.App. 511 , 985 A.2d 98 (2009). In that case, an appeals board held a hearing after the Respondent, Mr. Lucky, LLC, had its site plan denied.

Id. at 517 , 985 A.2d at 96-97 . Ross, who owned a waterfront residence bordering the area Respondent proposed to convert into a seasonal outdoor tiki bar, moved to intervene as a party to the appeal. Id. at 517 , 985 A.2d at 97 . The board denied the motion.

Id. When Ross asked for permission to examine the witnesses called by the parties, this request was also denied. Id. at 517-18 , 985 A.2d at 97 . After hearing from witnesses and members of the public, the board granted Mr. Lucky’s requested variances.

Id. at 519 , 985 A.2d at 98 . The Court of Special Appeals held that “the Board’s outright denial of all right of cross-examination to Ross, in the face of his request for cross-examination, was a violation of his due process rights.” Id. at 525 , 985 A.2d at 101-02 . The intermediate appellate court explained: Under Maryland law, regardless of the language of a particular county zoning ordinance or the procedural rules for its board of appeals, due process affords interested parties a reasonable right to cross-examine witnesses in a proceeding in which an administrative agency performs adjudicatory functions. Id. at 522 , 985 A.2d at 100 (citations omitted).

The Court of Special Appeals then ordered that the decision of the Board be vacated and that the matter be remanded to the board for further proceedings. Id. at 526 , 985 A.2d at 102 . Petitioners present CBF’s right to standing as on all fours with Ross : CBF appeared before the Board to contest both the buffer map amendment and variance requests. CBF was denied party status with respect to the variance testimony and was prohibited from cross-examining any of the applicant’s witnesses.

CBF moved to intervene but was denied. These ⁶⁰⁸ rulings denied CBF due process and require that the matter be remanded to the Board. Wagner distinguishes Ross on grounds that CBF was not a party to the variance proceedings before the Board, and therefore did not have constitutionally or statutorily protected due process rights. Alternatively, Wagner argues, even if CBF was entitled to cross-examine witnesses, CBF suffered no prejudice.

In Wagner’s view, MRA and the Commission were able to cross-examine all the witnesses extensively, and therefore vacating the Board’s decision is unnecessary. Petitioners believe prejudice is not part of the equation, and that “[t]he right to cross-examine is a fundamental right that may not be abrogated unless waived.” They direct us to our decision in Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 150 , 230 A.2d 289, 297 (1967), partially abrogated by statute, Md.Code (1982, 2013 Repl.Vol.), § 5-204(f) of the Environment Article, as stated in Patuxent Riverkeeper v. Maryland Department of Environment, 422 Md. 294, 298 , 29 A.3d 584, 586 (2011), in which we held that there was a prejudicial denial of due process “by the Board’s refusal to permit cross-examination of the applicant’s witnesses^]” Petitioners ask us to follow the rule in Bryniarski and also hold that the Board’s denial of cross-examination by CBF is a due process violation necessitating a new hearing before the Board. Further, Petitioners aver, the Board’s own rule on cross-examination applies to all persons in opposition. Thus, they conclude, CBF’s lack of party status — rightly or wrongly denied — does not meaningfully distinguish Ross from the present case.

We read Bryniarski and Ross differently from Petitioners, and decline to hold that the Board denied CBF due process. This case arises from a context decidedly different from that in either Bryniarski or Ross . In both of those cases all cross-examination of the applicant’s witnesses was denied. Bryniarski, 247 Md. at 140 , 230 A.2d at 292 ; Ross, 189 Md.App. at 525 , 985 A.2d at 101 .

Because no cross-examination was allowed by any opponent, we found a denial of due process. ⁶⁰⁹ Interestingly, the Ross Court compared, with approval, the Anne Arundel County Board’s rule of procedure regarding cross-examination to the Calvert County provision at issue there. 12 The intermediate appellate court said: By contrast, the rules governing board proceedings in some other counties expressly provide for the right of cross-examination. See, e.g., Rules of Practice and Procedure of the Board of Appeals, Appendix B, Anne Arundel County Code (2005), Rule 4-104(c) (“The parties shall have the opportunity to cross-examine witnesses. The chairman shall permit a representative or representatives of persons in opposition the opportunity to conduct cross-examination.”). Ross, 189 Md.App. at 525 n. 9, 985 A.2d at 101 n. 9 (emphasis added).

Notably, this rule does not allow cross-examination by every opponent. Rather it contemplates one or more representatives of the opponents to cross-examine. Here, pursuant to the same rule, MRA was allowed full cross-examination of the witnesses for the applicant, as was the Commission. MRA, CBF, and the Commission all opposed the application for variance and make the same arguments on appeal.

MRA and CBF have filed joint briefs. Indeed, the President of MRA testified before the Board that “[i]t is [MRA’s] policy right from the very beginning that we do not support variances.... [WJe’ve always been opposed to a variance of any kind.” CBF has the same goal. 13 The rule requiring that administrative bodies ruling on zoning matters allow cross-examination will be satisfied if one ⁶¹⁰ or more representatives of the views of other opponents is permitted full cross-examination. The opponent’s right to due process in such context does not mean that every single person present has the right to cross-examine. If that were the rule, administrative hearings could be extended for unreasonable lengths of time.

Once reasonable cross-examination has occurred, it is the burden of the persons seeking additional cross-examination to show that their questions would be meaningfully different, although they must be given reasonable opportunity to do so. When queried by this Court at oral argument, Petitioners’ counsel 14 admitted that no cross-examine questions were proffered at the administrative hearing and did not, even with hindsight, articulate what cross-examination questions it would have asked. 15 Even if CBF had no opportunity to do so during the questioning, it could have sent a letter to the Board outlining the specific areas of cross-examination that were not covered. CBF’s counsel did not do this. Nor did counsel proffer the questions it would have asked in the Circuit Court or the Court of Special Appeals. 16 We are not persuaded that the dictates of due process require that we order a new administrative hearing in order that CBF, a non-party before the Board, ask cross-examination questions that, even at this late date, it has chosen not to identify.

Let us clarify what we are not saying. We do not retreat from this Court’s pronouncement over 40 years ago that the “contention that actual prejudice must be shown before denial of procedural due process can be established is without merit,” and that it would be a “mockery of justice” to so hold. Town ⁶¹¹ of Somerset v. Montgomery Cnty. Bd. of Appeals, 245 Md. 52, 66 , 225 A.2d 294, 303 (1966).

Our holding here is narrow— that a non-party in CBF’s position must at least demonstrate how cross-examination questions that it would have posed would likely have been meaningfully different than those that were asked. Such was not done at any level of this proceeding. For the reasons stated above, we decline to remand this matter to the Board for the purposes of conducting a new series of hearings in which CBF is allowed to participate in cross-examination. THE MERITS OF THE BOARD’S DECISION With the standing issues resolved, we now turn to the merits of the Board’s decision granting certain variances to Wagner.

Before doing so, we address the scope of our review and lay out the setting in which the Board’s decision lies. STANDARD OF REVIEW We recently described this Court’s role in the review of zoning board decisions in Critical Area Commission for the Chesapeake and Atlantic Coastal Bays v. Moreland, LLC: Our role in reviewing the final decision of an administrative agency, such as the Board of Appeals, is “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” In doing so, a reviewing court decides whether the Board’s determination was supported by “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Moreover, a reviewing court “must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid.” 418 Md. 111, 122-23 , 12 A.3d 1223, 1230 (2011) (citations omitted) (ellipsis in original). ⁶¹² DISCUSSION Background — Critical Area Law Touching every aspect of this case is the Critical Area Law, and we start with the history and substance of that environmental protection statute. The General Assembly enacted the Critical Area Law in 1984. Md.Code (1973, 2012 Repl.Vol.), § 8-1801 of the Natural Resources Article (“NR”).

Based on findings concerning the importance, fragility, and documented decline in the state of the Chesapeake Bay and its tributaries, the General Assembly “establish[ed] a Resource Protection Program for the Chesapeake and the Atlantic Coastal Bays and their tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats[.]” NR § 8-1801(a), (b)(1). In describing the impetus for the Critical Area Law, the General Assembly highlighted the effect of recent development on the Chesapeake Bay area: Human activity is harmful in these shoreline areas, where the new development of nonwater-dependent structures or an increase in lot coverage is presumed to be contrary to the purpose of this subtitle, because these activities may cause adverse impacts ... to the Chesapeake and Atlantic Coastal Bays, and thus it is necessary wherever possible to maintain a buffer of at least 100 feet landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands[.] NR § 8-1801(a)(4) (emphasis added). 17 NR § 8-1801(a)(4) previously phrased the presumption concerning lot coverage in terms of “impervious surface.” Md.Code (1973, 2007 Repl. ⁶¹³ Vol.), § 8-1801(a)(4) of the Natural Resources Article (“Human activity is harmful ... where the new development of ... impervious surfaces is presumed to be contrary to the purpose of this subtitle[.]”) (emphasis added). Thus, development that increases the amount of impervious surface in the critical area is a primary concern of the Critical Area Law. Indeed, the Legislature found “a critical and substantial State interest ... in fostering more sensitive development ... along shoreline areas of the Chesapeake and the Atlantic Coastal Bays and their tributaries so as to minimize damage to water quality and natural habitats.” NR § 8-1801(a)(10). 18 To accomplish the objectives of the Critical Area Law, the Legislature created the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, vesting it with broad power to carry out the purposes of the statute.

NR §§ 8— 1803, 8-1806. Yet the Legislature conferred the “primary responsibility for developing and implementing a [Critical Area] program” to each local jurisdiction in Maryland. NR § 8-1808(a). To meet the goals of the Critical Area Law, each local Critical Area Program must meet several requirements, including creating a comprehensive zoning map for the critical area, and crafting a system for the granting of variances to these zoning schemes.

NR § 8 — 1808(c)(l)(iii). As part of its Critical Area Program, Anne Arundel County promulgated specific standards and detailed criteria for granting variances to properties located in the critical area. AACC § 3-1-207. Under this scheme, the Board of Appeals must make affirmative written findings that a variance applicant has satisfied each of several particular criteria. 19 AACC § 3-1- ⁶¹⁴ 207(b); NR § 8-1808(d)(5)(ii) (stating that before granting a variance, “[t]he local jurisdiction [must find] that the applicant has satisfied each one of the variance provisions[.]”). 20 These findings must arise in a specific context.

First, the Board must “presume that the specific development activity [requested] ... does not conform with the general purpose and intent of the [the Critical Area Law and the County’s Critical Area Program.]” NR § 8-1808(d)(3)(ii) 21 ; see also AACC § 3-1-207(b)(7) (requiring that the applicant “overcome the presumption contained in [NR] § 8-1808(d)(2)[.]”). The applicant “bears the burden of proof and persuasion” as to each of the variance criteria. Moreland, 418 Md. at 119 , 12 A.3d at 1228 (citing NR § 8-1808(d)(3)). The lodestar for the Board’s consideration of a variance application is the statutory mandate that a variance can only be granted when “[d]ue to special features of a site, or special conditions or circumstances peculiar to the applicant’s land or structure, a literal enforcement of the [C]ritical [A]rea [Program would result in unwarranted hardship to the applicant[.]” NR § 8-1808(d)(5)(i); 22 see also AACC § 3-1-207(b)(1) (requiring that in order to grant a variance, the Board find that “strict implementation of the County’s [Critical [A]rea [P]rogram would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant[.]”).

Unwarranted hardship “means that, without a variance, an applicant would ⁶¹⁵ be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.” NR § 8 — 1808(d)(1). We test the parties’ arguments against the terms of the Critical Area Law, and the County’s enactments that implemented that law. CBF and MRA strenuously contend that the Board erred by granting Wagner “after-the-fact” variances. The Board’s Order announced these variances, and the conditions attached to them, as follows: For the reasons set forth in the foregoing Memorandum of Opinion, it is this 3rd day of Jan., 2007, by the County Board of Appeals of Anne Arundel County, ORDERED, that: 2) A variance of 36 feet to the required 100 foot minimum buffer along the southeast shore of the island and a variance of 32 feet to the required 100 foot minimum buffer (Section 1A-I04(a)(l)) along the southwest shore of the island for the construction of a residence, septic system and installation of a well is hereby GRANTED; 3) A variance to permit the disturbance of slopes of 15% or greater as measured before development in the LDA (Section 1A-I05(d)) for the installation of a septic system and related facilities is hereby GRANTED; and 4) A variance to permit new development activities in the buffer for the construction of an 8 foot by 40 foot impervious boat ramp/driveway to the west of the pier is hereby GRANTED.

All VARIANCES being subject to the following conditions: a) There shall be no more than 3,325 square feet of impervious surface on the lot, inclusive of the 8 by 40 foot boat ramp/driveway; b) The gazebo, pool, patio, sidewalks, accessory structures, and other impervious surface on site shall be removed, subject to lawfully issued permits, and the areas shall be revegetated; ⁶¹⁶ c) All disturbance in the buffer shall be revegetated at a 3 to 1 ratio, with plantings on the property of native species; d) The buffer on site should be planted to the extent possible, including the slopes adjoining the revetment; e) A buffer management plan, execution of a forest conservation easement and all required mitigation will be required prior to the issuance of any permit; f) The shore management system (Petitioner’s Exhibit 63) for the northern and western shores of the lot must be implemented to provide appropriate sand nourishment and flora enhancement; g) As per the RLD regulations, a 50 foot planted buffer shall be located and maintained between the principal structure and the crest of slopes with a 25% grade or greater; and h) Stormwater from all impervious surfaces shall be directed to appropriate stormwater management devices for quality and quantity control. According to Petitioners, the Board’s Order was premised on an erroneous finding that Wagner satisfied all of the requirements for a variance contained in AACC § 3-1-207. 23 Specifically, CBF and MRA present seven arguments that Wagner failed to meet his burden of proof and persuasion to satisfy the variance criteria. These arguments involve the following variance requirements, which are set forth in subsections of AACC § 3-1-207. 24 These code provisions, which we have set out in the order we address them, dictate that: ⁶¹⁷ • (b)(1) because of certain unique physical conditions, such as exceptional topographical conditions peculiar to and inherent in the particular lot ... strict implementation of the County’s critical area program would result in an unwarranted hardship]® • (b)(4)(i) [the variance request] is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed; • (e)(1) the variance is the minimum variance necessary to afford relief; • (b)(2)® a literal interpretation of COMAR, Title 27, Criteria for Local Critical Area Program Development, or the County critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas® • (b)(3) the granting of a variance will not confer on an applicant any special privilege that would be denied by: (i) COMAR, Title 27, or the County critical area program to other lands or structures within the County critical area; • (b)(5)® [the granting of the variance] will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area® • (b)(5)(h) [the granting of the variance] will be in harmony with the general spirit and intent of the County critical area program!;] and • (b)(7) the applicant, by competent and substantial evidence, has overcome the presumption contained in the ⁶¹⁸ Natural Resources Article, § 8 — 1808(d)(2), of the State Code. We examine each of Petitioner’s arguments regarding these variance requirements in turn.

Unwarranted, Hardship Under AACC § 3 — 1—207(b)(1), variance applicants must show that due to conditions on the property, “strict implementation of the County’s [Cjritical [A]rea [PJrogram would result in an unwarranted hardship[.]” CBF and MRA posit that the denial of a variance would not cause Wagner to suffer an unwarranted hardship. They explain that the County’s grandfathering provisions would allow for Wagner to keep the Island’s structures as they had existed before the implementation of the Critical Area Program. Thus, Petitioners argue, denying Wagner the ability to construct a “wonderland” is not an unwarranted hardship. Petitioners charge that the Board failed to identify substantial evidence that limiting Wagner’s redevelopment to the pre-existing footprint would represent an unwarranted hardship.

DCW and Wagner disagree. In their view, because the Island is a unique property, surrounded by water, almost entirely affected by the 100 foot buffer, and featuring the unusable footprint of the old house, a variance was necessary to build any house on the Island. This Court closely examined the term “unwarranted hardship” in Belvoir Farms Homeowners Association, Inc. v. North, 355 Md. 259 , 734 A.2d 227 (1999). There, we observed that “[t]his Court has said that ‘[t]he criterion for determining unnecessary hardship is whether the applicable zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership.’ ” Id. at 276 , 734 A.2d at 237 (quoting Marino v. Mayor of Baltimore, 215 Md. 206, 217 , 137 A.2d