Cowles v. Montgomery County

EYLER, Judge. This appeal involves the propriety of Montgomery County’s issuance of a use and occupancy permit to appellee Paula Sue Heltzer for the operation of a tutoring center, pursuant to a special exception, in a residential neighborhood. Appellants 1 appealed the issuance of the permit to the Board of Appeals for Montgomery County (the Board) on the ground that the permit had been issued in violation of the County’s zoning ordinance. More specifically, appellants contended that the subject property was not in compliance with certain conditions of the special exception.

The Board denied the administrative appeal and the Circuit Court for Montgomery County affirmed. Finding no error, we affirm the judgment of the circuit court. Factual Background On December 24, 1992, Ms. Heltzer applied for a special exception to operate a private educational institution, a tutoring center, in a residential neighborhood on Falls Road in Potomac, Montgomery County, Maryland. The Board held public hearings on April 14 and May 18, 1993.

Several citizens appeared at the hearings and objected to the proposed ⁴²⁹ use. The Board granted the special exception on June 25, 1993, subject to certain conditions. Two of the conditions are pertinent to the issues before us, and appear in the Board’s opinion as follows: 1. Petitioner will be bound by all testimony and evidence in the record submitted by the petitioner. 2.

Petitioner must submit a landscape, lighting and parking plan to the technical staff at M-NCPPC [2] for review and approval. The parking area must be shifted more to the north side of the rear yard. Particular attention must be paid to screening for the parking area and along the property line between the subject property and the property to the south. Two copies of the approved plan must be submitted to the Board for its records.

Plant material must be maintained and replaced as necessary. Pursuant to the second condition, Ms. Heltzer submitted a landscape, lighting, and parking plan to the technical staff at M-NCPPC, which was approved. Subsequently, in order to comply with safety and fire codes, amended plans were submitted and approved, and these plans were then implemented. Several neighbors filed a petition for judicial review of the Board’s decision in the Circuit Court for Montgomery County.

The circuit court affirmed the Board’s decision and this Court affirmed the circuit court’s decision in an unreported opinion filed February 3, 1995. West Montgomery County Citizens Association v. Montgomery County, Maryland, No. 954, September Term, 1994. In order to operate the tutoring center, it was necessary for Ms. Heltzer to obtain a use and occupancy certificate. The certificate was issued by the Department of Permitting Services2 3 (the Department) on March 15, 1996.

Before issuing the certificate, it was necessary for the Department to conduct ⁴³⁰ inspections and determine compliance with the Montgomery County Code, including its zoning ordinance. See Montgomery County Code 1994, §§ 8-28 and 59-A-3.22. 4 Section 59-A-3.22 provides in pertinent part as follows: Before any building, structure or land can be used for or converted to a special exception use, the Director must issue a use and occupancy permit certifying compliance with the requirements, representations, and conditions contained in the opinion of the Board, the Hearing Examiner, or the District Council, as specified in § 59-G-l.l. [5] The Director must not issue a use and occupancy permit until: (a) the applicant has certified to the Department that construction or alteration has been completed and any screening or landscaping has been installed, in accordance with the opinion; and (b) the Department has determined, on the basis of a thorough final inspection, that the property conforms to the plans and conditions specified by the opinion.... Several of the neighbors, who are also appellants herein, appealed the issuance of the certificate to the Board. The Board conducted hearings on July 10 and December 10, 1996, and on March 17, 1997, affirmed the Department’s decision.

At the hearings, the Board heard testimony from the staff of the M-NCPPC and the Department’s zoning supervisor. Those witnesses testified that Ms. Heltzer had complied with the Board’s opinion granting the special exception and had complied with the plans approved by the technical staff. The witnesses acknowledged, however, that they had not reviewed the entire record of the special exception proceedings. One of the arguments made by appellants to the Board was that the issuance of the use and occupancy certificate was inconsistent with Condition No. 1 in the Board’s opinion granting the special exception.

Appellants argued that the ⁴³¹ Board, by imposing the condition, incorporated the entire record and that the Department was required to review the entire record and not rely just on the Board’s opinion issuing the special exception and the plans as approved by the technical staff. Appellants asserted that such a review would have revealed that Ms. Heltzer was not in compliance with all representations contained in that record. Specifically, according to appellants, Ms. Heltzer represented that the property would maintain its residential character and would look like a home; that it would be buffered by a full landscaping screen; that lighting would be low level; and that the exterior of the building would not be changed. Instead, appellants stated the property has a commercial appearance with a large parking lot, an absence of buffer plantings, and extensive lighting.

Further, according to appellants, changes have been made to the exterior of the building. The Board affirmed the issuance of the certificate. In doing so, the Board found that the standard steps involved in approval of a use and occupancy certificate had been followed. Specifically, the Board found that the Department’s practice of ensuring compliance with the approved plans and with the evidence and representations referenced in the Board’s opinion was sufficient.

The Board recognized that the parking lot was not located in accordance with Ms. Heltzer’s proposal in her special exception application, but noted that the Board had required it to be moved. The Board also found that the technical staff had done an excellent job of implementing the Board’s opinion with respect to the landscape, lighting, and parking plan. In short, the Board found that, as the plan for use evolved, the Department’s determination that Ms. Heltzer had complied with the special exception requirements contained in the Board’s opinion, the amended plans, and the fire and safety requirements of the County Code was supported by the evidence. The following excerpt from the Board’s opinion is particularly relevant to the issue raised by appellants on this appeal: In denying the appeal, the Board is very aware that at issue in this case is whether or not an applicant is bound by ⁴³² his testimony and representations.

The Board is clear that it is the case that an applicant is so bound as the code requires. Obviously, revisions to testimony made during the course of a hearing must be reflected in the Board’s Opinion. In the instant case, exactly that was done. Concerns about the parking lot necessitated its relocation.

The Board was clearly aware that the landscaping and lighting plan would, therefore, need revision during the M-NCPPC review. The Board specifically conditioned the original grant on that review. It is rational to expect revisions to occur based on the Board’s directive. To do otherwise would have in effect caused a separate and more serious conflict.

The County agencies were well within their authority in approving changes to the landscape plan. The Board excluded appellants’ proffer of the entire record from the special exception hearing and certain specifically identified evidence consisting of the application for special exception, a landscape plan, and excerpts of Ms. Heltzer’s testimony at the special exception hearing. The dissenting member of the Board concluded that the evidence should have been admitted and, on that basis, dissented. Appellants filed a petition for judicial review in the Circuit Court for Montgomery County.

Montgomery County, also an appellee, filed a motion to intervene in the circuit court, which was granted. The circuit court affirmed the Board’s decision, and appellants filed a timely appeal to this Court. Standard of Review In reviewing a case such as this, we essentially must repeat the circuit court’s review of the Board’s decision. Art Wood Enters. v. Wiseburg Ass’n, 88 Md.App. 723, 728 , 596 A.2d 712 (1991), cert. denied, 325 Md. 397 , 601 A.2d 130 (1992); Mortimer v. Howard Research & Dev.

Corp., 83 Md.App. 432, 442 , 575 A.2d 750 cert. denied, 321 Md. 164 , 582 A.2d 499 (1990). When conducting this review, we shall not give any deference to the Board’s conclusions of law “beyond the weight merited by the persuasive force of the reasoning employed.” Friends v. Baltimore Gas & Electric Co., 120 ⁴³³ Md.App. 444, 466 , 707 A.2d 866 , cert. granted, 350 Md. 488 , 713 A.2d 980 (1998); People’s Counsel v. Prosser Co., 119 Md.App. 150, 168 , 704 A.2d 483 , cert. denied, 349 Md. 494 , 709 A.2d 139 (1998). By contrast, we accept the Board’s findings and conclusions of fact “if they are based on substantial evidence and if reasoning minds could reach the same conclusion based on the record.” Columbia Road Citizens’ Ass’n v. Montgomery County, 98 Md.App. 695, 698 , 635 A.2d 30 (1994). See also Friends, 120 Md.App. at 465 , 707 A.2d 866 ; Prosser Co., 119 Md.App. at 167-68 , 704 A.2d 483 ; Colao v. Prince George’s County, 109 Md.App. 431, 458 , 675 A.2d 148 (1996), aff'd, 346 Md. 342 , 697 A.2d 96 (1997).

Similarly, we apply the substantial evidence test to the Board’s application of the law to the facts, a mixed question of law and fact. Friends, 120 Md.App. at 466 , 707 A.2d 866 ; Meadowridge Indus. Ctr. Ltd. Partnership v. Howard County, 109 Md.App. 410, 419-20 , 675 A.2d 138 (1996).

That is, we must affirm the Board’s conclusions if a reasoning mind could reasonably have reached the same conclusions consistent with a proper application of the controlling legal principles. Meadowridge, 109 Md.App. at 419-20 , 675 A.2d 138 . Finally, we may uphold the decision of the Board only on the basis of reasons and findings upon which the Board relied. Meadowridge, 109 Md.App. at 420 , 675 A.2d 138 .

See also United Steelworkers v. Bethlehem Steel, 298 Md. 665, 679 , 472 A.2d 62 (1984). Parties’ Contentions Appellants contend that the issue before us is purely one of law. In particular, they maintain that “the Board erred in concluding, as a matter of law, that it lacked the authority to impose a condition on the grant of the special exception requiring Ms. Heltzer to be bound by all of her representations of record.” Pertinent to appellants’ position is § 59-A-4.127, which provides: Binding testimony. Special exceptions or variances granted by the board shall be implemented in accordance with the terms and conditions set forth in the opinion of the board which conditions shall include the requirement that ⁴³⁴ the petitioner shall be bound by all of his testimony and exhibits of record, the testimony of his witnesses and representations of his attorneys, to the extent that such evidence and representations are identified in the board’s opinion granting the special exceptions or variance.

Appellants assert that the Board construed § 59-A-4.127 as precluding it from imposing a condition binding Ms. Heltzer to all representations of record and that, therefore, all representations not expressly reiterated in the opinion were not binding. For that proposition, appellants rely on a statement by the Board’s presiding officer at the December 10,1996 hearing and a statement in the Board’s opinion. The statement at the December 10,1996 hearing was as follows: I think that the fact is, in fact, that our interpretation of the Code is what governs this body and what governs the— governs Montgomery County, and we are hopeful that our interpretation is