Eastern Outdoor Advertising Co. v. Mayor and City Council of Baltimore

HOLLANDER, Judge. This zoning matter is before us for the second time. The appeal concerns an application submitted by Eastern Outdoor Advertising Company (“Eastern”), appellant and cross-appel-lee, for a conditional use permit to erect a double-faced, illuminated general advertising billboard in the Mt. Vernon area of Baltimore City, a designated urban renewal district. ²⁹⁰ Ruth Wolf Rehfeld, appellee and cross-appellant, a resident of Mt.

Vernon and a member of the Mt. Vernon Belvedere Association, was permitted to intervene at the agency level to protest the erection of the billboard. Following a hearing on December 5, 2000, the Baltimore City Board of Municipal and Zoning Appeals (“BMZA” or the “Board”), appellee and cross-appellant, denied appellant’s application for the second time. Thereafter, appellant sought judicial review in the Circuit Court for Baltimore City.

That court (Cannon, J.) reversed and remanded. Although the court was satisfied that the Board was entitled to hear new evidence following an earlier remand, it concluded that the Board’s decision was not supported by adequate factual findings. Accordingly, the circuit court again remanded to the Board. From that ruling, Eastern noted this appeal, presenting the following issue for our review: In view of the Mandate of the Court of Special Appeals and the Order of Remand by the Circuit Court of Baltimore City, directing further consideration of the record, did the Board err in accepting, considering and basing its disapproval on additional testimony and evidence?

Appellees have submitted separate briefs, in which they present similar questions. In addition to asking a question akin to the one posed by appellant, they ask, in essence: Did the circuit court err in remanding the matter to the Board for a second time, when the Board’s findings of fact were sufficient to warrant denial of the application for conditional use? For the reasons that follow, we shall affirm. FACTUAL SUMMARY In late 1996, Eastern filed an application with the Board to obtain approval to erect a double-faced illuminated, general advertising sign, 14 feet by 48 feet, with a height of 90 feet, at 808 Guilford Avenue, located in the Mt.

Vernon Urban Renewal Area, a B-5-1 zoning district. The site is improved by a ²⁹¹ mini-shopping center and a parking lot. The proposed billboard was to be located in the parking lot of the strip center, in space leased by Eastern. The lot fronts on the west side of Guilford Avenue, which runs parallel to a highway known as the Jones Falls Expressway or 1-83.

One side of the proposed advertising sign would face the Jones Falls Expressway, and be visible to traffic proceeding on the highway, while the other side would face the expanse of the Mt. Vernon neighborhood. General advertising signs or billboards are permitted as conditional uses in a B-5-1 District, upon compliance with certain criteria set forth in the Baltimore City Zoning Code, and subject to approval by the Board. See Baltimore City Zoning Code 2000 (the “Ordinance”).

After the Board held a hearing on Eastern’s application on November 18, 1997, it rejected Eastern’s application on the grounds that: 1) the billboard failed to meet the conditional use standards set forth in the Zoning Code; 2) the sign was prohibited by the Mt. Vernon Urban Renewal Plan (the “Plan”), and therefore it would have had a greater adverse impact at the proposed location than it would have if placed elsewhere in the B-5 zoning district; 3)the total square footage of the billboard, which measured 1,344 square feet, exceeded the allowed maximum of 900 square feet. By Order dated July 27, 1998, the circuit court (Quarles, J.) affirmed. Appellant then lodged an appeal to this Court.

In a comprehensive opinion authored by Judge Harrell, we reversed and remanded. See Eastern Outdoor Advertising Company v. Mayor and City Council of Baltimore, 128 Md. App. 494 , 739 A.2d 854 (1999) (“Eastern I ”), cert. denied, 358 Md. 163 , 747 A.2d 644 (2000). In Eastern I, we reiterated that “a proposed conditional use is prima facie valid absent any fact or circumstance negating that presumption.” Eastern I, 128 Md.App. at 525 , 739 A.2d 854 . The Court also noted that an urban renewal plan “is merely a guiding factor, not a dispositive factor, to consider in deciding whether to grant a conditional use permit,” but Was not binding on the BMZA.

Id. at 524 , 739 A.2d 854 (citing Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607, 640 , 701 A.2d 879 ²⁹² (1997)). Thus, we ruled that the Board incorrectly determined that the restrictions in the Plan, which prohibited billboards in that area, amended the provisions of the Ordinance, which otherwise allowed billboards as a conditional use in the zoning district. Id. at 519, 739 A.2d 854 . The Court found no “mandate” in the Plan that prohibited the Board from granting a conditional use permit.

Id. at 524 , 739 A.2d 854 . Further, the Court determined that the Board’s factual findings were insufficient with respect to the matter of adverse impact. Id. at 517 , 739 A.2d 854 . In the Court’s view, the absence of adequate factual findings denied Eastern “its fundamental right to know the reasons for the denial of the conditional use permit.” Id. at 516 , 739 A.2d 854 .

Mere conclusions, “ ‘without pointing to the facts ... that form the basis for its ... conclusion,’ ” were not enough. Id. at 530 (citations omitted). In addition, the Court concluded that the circuit court improperly affirmed the Board on grounds other than the ones relied on by the Board. Therefore, the Court remanded to the Board “for further consideration of the record not inconsistent with [the Court’s] opinion.” Id. at 532 , 739 A.2d 854 .

Frank Legambi, Executive Director of the Board, subsequently wrote a letter to Eastern on February 1, 2001, stating, in part: [T]he Court’s ruling merely requires that the Board consider the record and make appropriate findings. It does not require that another hearing be held. While the City’s Petition for Certiorari was pending, it filed a motion in circuit court to stay our remand to the Board. In that motion, the City said: Pursuant to this Court’s Order and the Judgment of the Court of Special Appeals, the Board must now consider the record and set forth findings of fact based on that record.

Nevertheless, the Board subsequently scheduled a hearing for November 14, 2000, at which it planned to receive additional evidence. Through counsel, appellant responded: ²⁹³ This is a new record which the Board is now attempting to make. It is improper under the law and we would object to any testimony. We would object to anything other than what you’ve been directed to do from the Court of Special Appeals.

When the Board convened a second hearing, appellant objected to the Board’s decision to reopen the record. Eastern claimed that the new factual findings should be made on the basis of the original record. Nevertheless, the Board determined to receive additional evidence, which included letters and testimony from City officials and community associations protesting Eastern’s application. The evidence adduced at the first hearing is summarized in Eastern I and need not be repeated here at length.

In reaching its decision, the Board also considered the additional evidence adduced at the second hearing, which we will summarize below. Susan Williams, Chief of Current Planning for the Baltimore City Planning Department, testified that the proposed billboard would have a negative impact in the area. In addition to presenting slides and photographs, Williams said: First of all, the urban renewal amendment for the Mount Vernon urban renewal plan as last amended by the Mayor and City Council in 1993, does not list general advertising signs as a permitted use. The urban renewal plans, just like our zoning code, if the use is not listed, it is not allowed.

Secondly, we’d like to outline that this shopping center is a very unique case in a B-5.1 district. It is highly unusual to have a shopping center with parking in front of the stores in B-5.1, and the Planning Department staff cannot think of any other case in the B-5.1 district other than a service station or an automobile related facility that has this particular type of design with the parking essentially in the front of the building. For the record we’d also like to note in the B-5.1 district that most of the general advertising signs are affixed to the side of buildings and they are not free-standing signs that ²⁹⁴ rise way above the buildings, and that is ease is [sic] a majority of downtown. We also think it’s important for this Board to note that this particular shopping center was created as a quaint village-style shopping area.

It is primarily one-story with only one section being two-story, and I have photos of the center that ... show its unique characteristic for a downtown or urban area. Ms. Williams also expressed concern as to the precise location of the billboard, but acknowledged that there were “problems” with all locations. Further, she said that the “lights from this particular sign ... would be on all night,” disturbing a residential courtyard in the vicinity. The Board also received a letter of October 26, 2000, from Kathleen Kotarba, Executive Director of the Baltimore City Commission for Historical and Architectural Preservation (“CHAP”).

Characterizing the Washington Monument as “nationally significant,” and Mount Vernon Place and the area as “sacred,” Kotarba opposed the erection of the billboard as “detrimental to the preservation of cultural and historic landmarks in the Mount Vernon area.” The report articulated several grounds in support of CHAP’s contention that the proposed billboard violated applicable zoning regulations, including the following: 1) The proposed location of the signboard mil adversely affect histomcal and architectural preservation in the Mount Vernon Area. The proposed location is adjacent to the eastern boundary of the Mount Vernon Historic District, Baltimore’s first and premiere historic area.... The Mount Vernon area is significant for its fine architecture and public squares, and associations with historically important people and events. Mount Vernon Place is a unique American square that is distinguished in shape and design from any other urban place in the country.

Monuments, including the nationally significant Washington Monument, are part of the context and vista of this sacred area. The proposed signboard mil obscure vistas of the monuments and archi- ²⁹⁵ lecture of Mount Vernon. It will disrupt view [sic] of the historic fabric of the neighborhood and discourage appreciation of its history and culture. 2) As a structure, it is not compatible with the size, scale and quality of design of the adjacent historic buildings. The adjacent historic district contains a concentration of Baltimore’s finest nineteenth and early twentieth century structures.

Outstanding design and craftsmanship is the standard in Mount Vernon.... The proposed signboard (Ilf x ]8) is out of keeping with the character of the area due to its size, scale and shape which is unlike that of the historic surroundings. 3) This neighborhood is included in Baltimore’s Recognized Heritage Area, and the proposed signboard will impair the present and future development of the Heritage Area .... The proposed signboard, adjacent to the Target Investment Zone, will negate the efforts of the cultural and historical institutions by projecting an unsightly commercial presence that is atypical of the true qualities of the area. We are concerned that future economic development of Mount Vernon as a Cultural District may be impeded by the distraction created by a structure that is obviously out of character.

The Board also received a memorandum from Charles Graves, Director of the Baltimore City Department of Planning (“Planning”), dated August 7, 2000, updating a memorandum of January 17, 1997. Graves recommended disapproval of Eastern’s application, claiming that general advertising signs are not “permitted uses” under the Plan. Graves made numerous points; we have summarized them, using quotations as indicated. 1. “[M]ost general advertising signs in the B-5-1 zoning district are affixed to the side of a building, and are not free-standing ... [T]he freestanding nature of this proposed sign combined with the height ... makes [it] incompatible with the surrounding area.” ²⁹⁶ 2. The proposed site is “unique” because it was “designed to create a quaint ‘village-style’ shopping area.” The buildings are generally one-story, and a billboard “placed in the center” of the area would have a “significant negative impact on this ‘village style’ shopping niche.” 3.

The applicant has not shown the precise location of the proposed sign. But, if the sign is placed on one of the islands in the center of the parking lot of the shopping area, it would “either require removal of landscaping or block the pedestrian paths designed to allow people to walk safely from the parking spaces or nearby public sidewalks to the stores.” 4. The “constant lights” from such a “tall sign” will “shine into the garden area” and front windows of the adjacent residences and into the rear windows of the properties located west of the center. Charles Duff, of the Midtown Development Corporation, testified at the first hearing.

He reiterated at the second hearing that the proposed billboard would have an adverse impact on the neighborhood. Ms. Rehfeld also testified. She claimed: “The plat submitted to the BMZA for this new hearing ... is significantly different from the plat that was submitted with the original application for this conditional use.” Although the “new plat” showed that the two faces of the billboard were parallel, and presumably within two feet of each other, she maintained that the “new plat” was a “material change,” and therefore appellant had submitted a new application. Board Chairman Benjamin Neil, Esquire, indicated that the plat showing parallel faces of the signboard had been submitted as an exhibit at the first hearing for the applicant, but apparently “it was not marked previously....” In any event, the correct plat was submitted in evidence at the second hearing.

The Board “disapprove^] the application,” by a tie vote of two to two, in a decision of December 5, 2000. It found that the proposed sign was “back to back on a single pole measur ²⁹⁷ ing 14 feet by 48 feet with a total square footage of 672 feet,” and thus the size satisfied former § 10.0-3c. Nevertheless, it found “that authorizing the billboard at this particular location would be detrimental to the general welfare of the residents and business of the Mount Vernon community and would be contrary to the public interest.” In its opinion, the Board said: [T]he Board made their findings based on the record as well as additional testimony to clarify the issues of the plat/size of sign and the Mount Vernon Historic District. In compliance with the court’s request, the Board in order to clarity the dispute in the size of the sign asked the appellant’s attorney which of the Plats submitted in this case was the correct one.

The attorney identified the Plat measuring approximately 8/6 inches by 11 inches showing the faces of the sign facing directly north and south 14 feet by 48 feet on a single pole 90 feet in height with a square footage of 672 square feet. The appellant’s attorney confirmed that the testimony ... was in reference to exhibit 1 which would be the Plat as identified above as the correct Plat. It was indicated the other Plat in the file measuring 10-/6 inches x 17 inches was not exhibit 1... . The Board found that the original Plat filed was mistakenly used in. determining the square footage of the sign, and should have been disregarded and replaced with exhibit A. On the issue of whether a conditional use should be granted, the Board considered the prior record and additional testimony.

The Board specifically credited the evidence submitted by CHAP and by Planning, which discussed the unique nature of the Mt. Vernon area and the negative impact resulting from the billboard. The Board also stated that it “found persuasive” the letters and testimony from individuals and community organizations, which confirmed the unique and historic nature of the area. The Board reasoned: ²⁹⁸ For example: Ms. Kathleen G. Kotarba, Executive Director of (CHAP), stated in a letter submitted to the BMZA as follows: “Mount Vernon Place is a unique American square that is distinguished in shape and design from any other urban place in the country ...

The proposed signboard will obscure vistas of the monuments and architecture of Mount Vernon. It would disrupt view of the historic fabric of the neighborhood and discourage appreciation of its history and culture ... The proposed signboard is out of keeping with the character of the area due to its size, scale and shape which is unlike that of the historic surroundings ... We are concerned that future economic development of Mount Vernon as a Cultural District may be impeded by the distraction created by a structure that is obviously out of character.” The Baltimore City Department of Planning likewise submitted a written report that discussed the unique nature of the site and the negative impact the billboard would have on the neighborhood.

These agencies are disinterested parties who carefully considered these issues, and in this case the Board credits their testimony regarding the nature of the neighborhood. Further, the Board found persuasive the letters and testimony from individuals and community organizations from the local community who confirmed the unique historic nature of the neighborhood and the unique negative impact that a billboard would have on the aesthetic, residential, and economic enjoyment of the neighborhood. The Board believed the testimony of the many resident, businesses, community organizations and cultural institutions who have been active in the area for a long time when they testified regarding the character of the neighborhood and the impact of the proposed billboard. The Board was not swayed by the testimony and the materials from the appellants [sic], who have a clear economic self-interest that lessens their objectivity, the evidence and argument presented by the appellants were insufficient to undermine the Board’s finding that the site is in a unique historic location and that the billboard would be detrimental to the neighborhood.

The Board concluded: ²⁹⁹ The Board finds that the proposed location is in a uniquely historic setting near Mount Vernon Square, one of the most important and historic settings in the City of Baltimore. The Board concludes, after consideration of all of the criteria specified in law and based on the size of the proposed billboard, the nature of the surrounding area, the proximity of historic residences and public spaces, the value of preservation of cultural and historic landmarks, and provisions of the applicable Urban Renewal Plan, that a conditional use for the proposed billboard should not be granted. Following the denial of its application, Eastern sought review in the circuit court. On May 14, 2001, the circuit court ruled that the Board did not err or violate the instructions of the Court of Special Appeals in hearing new evidence.

In its nineteen page opinion, the court said: This Court is not persuaded that the language of the remand prohibited the Board from reopening the record. ... The board may well have decided that it needed more evidence to make the findings required by the Court of Special Appeals and [Maryland State Police v.] Zeigler [ 330 Md. 540 , 625 A.2d 914 (1993) ] clearly would have permitted it to reopen the record before issuing its first final decision, even after beginning deliberations. Nevertheless, after a thorough review of each factual finding of the Board, the circuit court determined that the Board’s findings of fact were merely conclusory, speculative, or “bald assertion[s].” It said: “The Board has once again issued a decision that is replete with conclusions, without ‘pointing to the facts found by the [Board] that form the basis for its ... conclusion^].’ ” (Citing Eastern I, 128 Md.App. at 530 , 739 A.2d 854 ). In its view, the BMZA did not perform a “ ‘proper judicial review.’ ” Id.

Therefore, the court remanded to the Board, directing it to make “specific factual findings to support the conclusions in the December 3, 2000 decision....” In doing so, however, the court expressly prohibited the Board “from [again] reopening the record.” We shall include additional facts in our discussion. ³⁰⁰ DISCUSSION I. “A proceeding on a special exception is subject to a full judicial review.” Alviani v. Dixon, 365 Md. 95, 107 , 775 A.2d 1234 (2001). However, judicial review of an administrative agency’s decision is narrow. Total Audio-Visual Systems, Inc. v. Department of Labor, Licensing and Regulation, 360 Md. 387, 394 , 758 A.2d 124 (2000); Meadows of Greenspring Homeowners Ass’n v. Foxleigh Ent. Inc., 133 Md.App. 510, 514 , 758 A.2d 611 (2000).

Moreover, because the appeal is from the decision of an administrative agency, we review the decision of the BMZA, not the decision of the circuit court. Jordan Towing, Inc. v. Hebbville Auto Repair, Inc., 369 Md. 439, 450 , 800 A.2d 768 (2002); Gigeous v. ECI, 363 Md. 481, 495-96 , 769 A.2d 912 (2001); Uninsured Employers’ Fund v. Pennel, 133 Md.App. 279, 287 , 754 A.2d 1120 (2000); Department of Labor v. Muddiman, 120 Md.App. 725, 733 , 708 A.2d 47 (1998). As to an agency’s final decision, we consider “ ‘(1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision.’ ” State Highway Admin. v. David A. Bramble, Inc., 351 Md. 226, 238 , 717 A.2d 943 (1998) (citation omitted); see Total Audio-Visual Systems, 360 Md. at 394 , 758 A.2d 124 ; Mayberry v. Bd. of Educ. Anne Arundel County, 131 Md.App. 686, 701 , 750 A.2d 677 (2000).

In White v. North, 356 Md. 31 , 736 A.2d 1072 (1999), the Court of Appeals explained the process of review applicable in the context of a special exception. It said: In judicial review of zoning matters, including special exceptions and variances, “the correct test to be applied is whether the issue before the administrative body is ‘fairly debatable,’ that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions.” For its conclusion to be fairly debatable, the administrative agency overseeing the variance decision must have “substantial evidence” on the record supporting its decision. ³⁰¹ Id. at 44 , 736 A.2d 1072 (internal citations omitted); see also Alviani, 365 Md. at 107-08 , 775 A.2d 1234 ; Mastandrea v. North, 361 Md. 107, 133-34 , 760 A.2d 677 (2000). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512 , 390 A.2d 1119 (1978); see Gigeous, 363 Md. at 497 , 769 A.2d 912 . It means “more than a ‘scintilla of evidence,’ such that a reasonable person could come to more than one conclusion.” Wisniewski v. Department of Labor, 117 Md.App. 506, 516-17 , 700 A.2d 860 (1997) (citation omitted).

In other words, the reviewing court must ask whether “reasoning minds could reach the same conclusion from the facts relied upon by the Board.” Dep’t. of Labor v. Hider, 349 Md. 71, 78 , 706 A.2d 1073 (1998). An agency’s factual findings are binding upon a reviewing court, so long as they are supported by substantial evidence in the record. United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994); Mortimer v. Howard Research, 83 Md.App. 432, 441 , 575 A.2d 750 , cert. denied, 321 Md. 164 , 582 A.2d 499 (1990). A reviewing court may not engage in judicial fact-finding.

Anderson v. Dep’t of Public Safety, 330 Md. 187, 212 , 623 A.2d 198 (1993). “Because of the deference [we must] accord [to] the expertise of an administrative agency acting within the sphere of its regulated activities, we refrain from making our own independent findings of fact or substituting our judgment for that of the agency when the record contains substantial evidence supporting the agency’s determination.” Marsheck v. Board of Trustees of Fire & Police Employees’ Retirement System of City of Baltimore, 358 Md. 393, 402 , 749 A.2d 774 (2000); see Jordan Towing, Inc., 369 Md. at 450 , 800 A.2d 768 ; Board of Physician Quality Assurance v. Banks, 354 Md. 59, 68-69 , 729 A.2d 376 (1999). Further, the tasks of drawing inferences from the evidence and resolving conflicts in the evidence are exclusively the function of the agency. Motor Vehicle Administration v. Karwacki, 340 Md. 271, 283 , 666 A.2d 511 (1995). As the ³⁰² Court said in Snowden v. Mayor and City Council of Baltimore, 224 Md. 443 , 168 A.2d 390 (1961), “ ‘The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported.

The test is reasonableness, not rightness.’ ” Id. at 448 , 168 A.2d 390 (citations omitted). In contrast, we do not defer to the agency’s legal conclusions. In other words, we are not bound by the Board’s interpretation of the law. Gigeous, 363 Md. at 496 , 769 A.2d 912 ; Baltimore Lutheran, 302 Md. at 662, 490 A.2d 701 .

Rather, “when the question before the agency involves one of statutory interpretation or an issue of law, our review is more expansive.” Muddiman, 120 Md.App. at 734 , 708 A.2d 47 . “Even with regard to some legal issues, [however,] a degree of deference should often be accorded the position of the administrative agency.” Banks, 354 Md. at 69 , 729 A.2d 376 . Therefore, “an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.” Id.

II

Appellant argues that, on remand, the Board was “plainly wrong” in receiving additional evidence, rather than confining its review to the existing record. Eastern maintains that the mandate in Eastern I , which ordered a remand “for further consideration of the record not inconsistent with this opinion,” expressly required the Board to limit its review to the original record. Eastern also rejects appellees’ contention that it benefitted from the Board’s decision to reopen the matter for new evidence, because only then was it able to establish the dimensions of the proposed billboard, to show that the sign conformed to the size set forth in the Ordinance. It asserts in its reply brief: “The Zoning Board merely corrected the record by marking as an Exhibit a drawing of the sign, which has been introduced by Appellant at the first hearing.” In ³⁰³ support of its position, appellant points to the letter of February 1, 2000, from the Board’s Executive Director; the pleading of the Board’s attorney; the timely objections of Eastern’s counsel; and the view of the Board’s chairman that the receipt of additional evidence contravened the Court’s ruling in Eastern I .

Eastern also relies on the following language from Belvoir Farms Homeowners Association, Inc. v. North, 355 Md. 259, 270 , 734 A.2d 227 (1999), to support is contention that the Board was not entitled to receive additional evidence on remand. Generally, when an administrative agency utilizes an erroneous standard and some evidence exists, however minimal, that could be considered appropriately under the correct standard, the case should be remanded so the agency can reconsider the evidence using the correct standard. The Board, in its findings, may have considered only as much of the evidence before it as necessary, in its view, to authorize the grant of a variance based upon the lesser practical difficulties standard. Additional, unconsidered evidence before the Board may have supported the grant of the variance, even under the stricter unwarranted hardship standard.

In our view, appellant’s reliance on Belvoir is misplaced. We do not construe the passage quoted above as a dictate precluding an agency from receiving additional evidence on remand. Put another way, Belvoir does not demand that, on remand, the agency must limit its review to the record already in existence. We conclude that, on remand, the BMZA was entitled to supplement the existing record with additional relevant evidence.

We explain further. In Belvoir, the Chairman of the Chesapeake Bay Critical Area Commission petitioned the circuit court for review of a decision granting a variance for additional boat slips at a community pier. The circuit court reversed. The Court of Appeals concluded that the Anne Arundel County Board of Zoning Appeals used an incorrect standard in determining ³⁰⁴ unwarranted hardship in granting a variance from critical area zoning regulations.

Id. at 282 , 734 A.2d 227 . Therefore, the Court vacated the circuit court’s ruling and remanded to the Board to reconsider the evidence. In effect, the Court agreed with the lower court’s reversal, but noted that “the more appropriate remedy would have been for the circuit court to remand the case to the Board for further review.” Id. at 270 , 734 A.2d 227 . In our research, we have failed to uncover any case that suggests that the Board could not conduct further evidentiary proceedings under the circumstances attendant here.

Ordinarily, an administrative agency has wide discretion to reopen a case even after it has begun to deliberate. In Maryland State Police v. Zeigler, 330 Md. 540, 557 , 625 A.2d 914 (1993), the Court said: [I]t is an established principle that an administrative agency has broad .discretion to consider evidence submitted after the close of an evidentiary hearing as long as there is compliance with procedural due process. # Hi * The discretion of an administrative agency to admit evidence after the hearing is arguably broader than the discretion that is generally accorded to trial judges____ We are also guided by Halle Companies v. Crofton Civic Association, 339 Md. 131 , 661 A.2d 682 (1995), although that case is distinguishable from the one sub judice. In Halle Companies , the Court recognized that the Anne Arundel County Board of Appeals engaged in de novo review of a special exception application that had previously been submitted to the County’s Department of Planning. The Court concluded that, in its de novo review, the agency was entitled to consider “new and additional evidence....” Id. at 142 , 661 A.2d 682 .

The Court reasoned: “[T]he Board conducts wholly original proceedings with regard to all issues properly before it, and may consider new and additional evidence beyond that introduced before the administrative hearing officer.” Id. at ³⁰⁵ 145, 661 A.2d 682 . See also Mary Elizabeth Ginn, et al. v. John A. Farley, 43 Md.App. 229, 236 , 403 A.2d 858 (1979) (stating that “[ a] zoning board, along with other administrative agencies, is generally not bound by the technical rules of evidence although it must observe fundamental fairness in dealing with the parties who appear before it.”) Our view that the Board had discretion to receive additional evidence upon remand, under the circumstances attendant here, is consistent with federal practice. As early as 1939, the Supreme Court said, in Ford Motor Company v. Nat’l Labor Relations Board, 305 U.S. 364 , 59 S.Ct. 301 , 83 L.Ed. 221 (1939): [I]t is well established that the court may remand the cause to the Commission for further proceedings to the end that valid and essential findings may be made ... [The remand] means simply that the case is returned to the administrative body in order that it may take further action in accordance with the applicable law.... If further evidence is necessary and available to supply the basis for findings on material points, that evidence may be taken.

Id. at 373-74 , 59 S.Ct. 301 (Internal citations omitted) (emphasis added). We are further convinced that the Board did not err in receiving additional evidence when we consider, by analogy, the discretion generally afforded to a trial court upon remand. Powell v. Maryland Aviation Administration, 336 Md. 210, 222 , 647 A.2d 437 (1994), is instructive. There, the Court said: “Ordinarily, a reversal and remand after trial for error in the trial or decision results in a retrial, unless the appellate opinion or mandate specifically limits the proceedings on remand.” Moreover, a trial judge has broad discretion to reopen a case and that discretion will not be disturbed on appeal, “ ‘except where [the judge’s] action is arbitrary and the rights of some of the parties are improperly affected.’ ” Cooper v. Sacco, 357 Md. 622, 637-38 , 745 A.2d 1074 (2000) (citation omitted). ³⁰⁶ Appellant also overlooks that in Eastern I the Court remanded, in part, because it determined that the Board’s factual findings were inadequate.

In remanding to the Board, however, we did not restrict the Board’s review to the preexisting record. The Court said: The Board’s findings of fact must be meaningful and cannot be simply broad conclusionary statements. The rationale behind this principle lies in the “fundamental right of a party to a proceeding before an administrative agency to be apprised of the facts relied upon by the agency in reaching its decision and to permit meaningful judicial review of those findings.” Eastern I, 128 Md.App. at 530 , 739 A.2d 854 (quoting Bucktail LLC v. County Council of Talbot County, 352 Md. 530, 553 , 723 A.2d 440 (1999)). Then, in our mandate, we said, in part, at 128 Md.App. at 532 , 739 A.2d 854 : CASE REMANDED TO [THE CIRCUIT] COURT WITH INSTRUCTIONS TO REVERSE THE DECISION OF THE BOARD OF MUNICIPAL AND ZONING APPEALS OF BALTIMORE CITY AND TO REMAND THE CASE TO THE BOARD FOR FURTHER CONSIDERATION OF THE RECORD NOT INCONSISTENT WITH THIS OPINION.

In Harrison v. Harrison, 109 Md.App. 652 , 675 A.2d 1003 (1996), Judge Cathell explained for this Court the procedures that apply with respect to a mandate: While the Maryland cases and rules describe generally the importance of the court’s mandate and the procedures to be followed by the trial court — i.e., “in accordance with the tenor and direction thereof’ — they have not clearly described exactly what comprises the complete “order” or “judgment” of the court. As we construe these rules, and the cases discussing them, it is apparent that, in Maryland, the opinion, at the very least, may be an integral part of the appellate court’s order or mandate when that order or mandate -provides for a remand for proceedings consistent with the opinion. Moreover, when it is apparent from the ³⁰⁷ opinion itself that a simplified “order” or mandate, e.g., “Judgment Reversed,” is ambiguous, then the opinion may be referred to and considered an integral part of that mandate. There may be, as we discuss infra, many types of unitary judgments or mandates, as opposed to multiple, severable parts of judgments, in which such a “Judgment Reversed” order or mandate would not be ambiguous and there would be no need to refer to the opinion.

Generally, however, any direction in an order or mandate that proceedings on remand are to be consistent with the opinion would necessarily require the opinion to be considered as an integral part of the judgment. This position is consistent with the law of mandates as stated by most, but not all, of the few foreign jurisdictions that have squarely addressed the issue. Id. at 665-66 , 675 A.2d 1003 (emphasis added.) See also McNeil v. State, 112 Md.App. 434, 456 , 685 A.2d 839 (1996). It is also noteworthy that, on remand, the new evidence presented to the Board was cumulative in nature.

Indeed, Eastern has not identified any portion of the evidence that differed in any significant way from the evidence presented at the first hearing. Therefore, the error, if any, was harmless. Finally, we are not persuaded by appellant’s argument that the circuit court was mindful of the “power to limit review to the record” because, in regard to the second petition for judicial review, it remanded the case to the Board with express instructions not to reopen the record for the receipt of additional evidence. That the circuit court decided after two hearings to expressly limit the record to what was already in existence does not affect our view of whether the Board erred in receiving additional evidence on remand following Eastern I .

III

Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981), is the seminal case in Maryland concerning conditional uses or ³⁰⁸ special exception uses. 1 There, the Court of Appeals explained, at 291 Md. at 11 , 432 A.2d 1319 : The special exception use is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception use is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the