Gibson v. Talbot County Board of Zoning Appeals

Barnes, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Talbot County (Carter, C. J.), dated July 27, 1967, affirming a decision of the Talbot County Board of Zoning Appeals (Board). The Board granted the appellees, Charles F. Willis, Jr. and J. Donald Griffin, Jr., a special exception under the Talbot County Zoning Ordinance to permit the operation of a private junior college on certain land in Talbot County, known as “Kirkland Hall Farm,” subject to ten restrictions or limitations. The appellants are the owners and occupants of property adjoining Kirkland Hall.

There is no challenge of their right to appeal either to the circuit court or to this Court. The application for the special exception was filed with the Board on January 19, 1967, in accordance with Section IV of the Zoning Ordinance which permits a private school as a special exception in any zone following a public hearing by the Board. The Board may grant a special exception upon its finding that: “(a) The proposed use does not affect adversely the General Plan for the physical development of the County. “(b) The proposed use will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use or development of adjacent properties or the general neighborhood. “(c) The standards set forth in each particular use for which a special exception may be granted have been met. Where no standards have been established in the Ordinance, or where the Board of Appeals deems it is in the public interest, standards or regulations ²⁹⁵ may be established in each case by the Board of Appeals in addition to those in the Ordinance.” The Board must also find that “such use will not constitute a nuisance because of noise, sanitary conditions, or traffic, and will not affect adversely the present character or future development of the surrounding community and that such use of land will conform to the stated minimum requirements, * * The Zoning Ordinance divides Talbot County (except for certain incorporated towns and the one mile around them) into five zones: Zone A, farming-residential; Zone B, waterfront-residential (including waterfront petition); Zone C, suburban-residential ; Zone D, commercial; and, Zone E, industrial.

Most of Kirkland Hall is located in Zone B, waterfront-residential, which has a requirement of a two-acre minimum lot size. There is, however, a narrow strip on each side of Maryland Route 33, which runs through the property, in Zone C, suburban-residential, in which there is a 15,000 square foot minimum for each lot. Kirkland Hall contains approximately 357 acres, on both sides of Route 33, a two-lane hard-surfaced highway which runs between Easton and St. Michaels and then on to Claiborne. It is located approximately four miles from Easton and is bounded on the south by Moreland Creek as well as by the Wilson and “Perry Hall” properties (also owned by Willis and Griffin) and on the north by land owned by the Aveley Corporation, one of the appellants, and occupied by Gibson, also one of the appellants.

Approximately 192 acres of Kirkland Hall are wooded and this wooded area lies to the southeast of Route 33. The remaining 165 acres are located northwest of Route 33 and extend from the highway to the Miles River. Kirkland Hall has some 1.7 miles of frontage on Route 33 and has water frontage of 6,000 feet. Perry Hall, adjoining Kirkland Hall on the south, contains approximately 312 acres.

The general area surrounding Kirkland Hall is sparsely-settled, has no subdivisions, is used generally for large estates and is attractive and peaceful. The appellants have raised and argued three questions before us on this appeal: 1. Did the Board deny the appellants due process of law in re ²⁹⁶ fusing to permit unlimited cross-examination to persons at the zoning hearings not represented by counsel ? 2. Did the Board deny the appellants due process of law by not providing a hearing area at the first zoning hearing sufficiently large to accommodate all persons who wished to attend? 3.

Did the Board err in granting the special exception because there were insufficient facts to justify the Board’s action? After argument this Court concluded that all of these questions should be answered in the negative and issued a per curiam order that the trial court’s order affirming the Board would be affirmed. This was done so that the appellees could proceed in a timely fashion to publish and distribute their catalogue for the school year beginning in September, 1968. We will discuss additional facts when we consider the three questions in the order indicated. 1.

In the case before the Board the chairman at the opening of the hearing on February 6, 1967, announced that the applicants by their attorney would present their case following which those who “oppose the granting of the application who are represented by counsel, counsel will be given an opportunity to cross-examine.” The chairman then announced that counsel for the opponents would then put on their case and the applicant’s counsel would be permitted to cross-examine. Thereafter, he stated that at the conclusion of the cases of people who are represented by counsel, “all those people who are either in favor or opposed who have any additional testimony, in facts, to give the Board will be given an opportunity to do so.” He then announced that the hearing would adjourn at 10:30 p.m. approximately 2^ hours later and, if necessary, would be resumed at 8 o’clock p.m. one week later. Near the end of the first night’s hearing the chairman announced that cross-examination would be permitted only by counsel. John S. L. Yost, the person requesting the right of cross-examination, was, in fact, a member of the Bar and he was permitted to cross-examine.

At no other time was there any statement made by the chairman or other members of the Board in regard to cross-examination, nor did any one other than Mr. Yost ask permission to cross-examine. ²⁹⁷ The record of testimony taken before the Board at the first night’s hearing indicates that cross-examination by counsel of the witnesses of the applicants was searching and extensive. It appears that there was no necessity for further cross-examination and possibly for this reason no persons present requested the right to cross-examine. At the beginning of the second night’s hearing on February 13, 1967, the chairman of the Board announced that everyone would be given an opportunity to present evidence. There was no statement at that time that persons not represented by counsel would not be permitted to cross-examine.

At the second night’s hearing there was also exhaustive and extensive cross-examination of the applicants’ witnesses. Indeed the cross-examination of the witnesses for the applicants occupies twice as much space in the transcript as does the direct examination of those witnesses. In the case of Hyson v. Montgomery County Council, 242 Md. 55 , 217 A. 2d 578 (1966), this Court considered the question of the right to cross-examine at a zoning hearing. In that case an attorney representing the proponents of a rezoning application requested that the right of “cross-examination on the material that has already been presented.” When counsel was advised by the Board that it had not been the practice to permit this, counsel proceeded to offer testimony.

Chief Judge Prescott, for the Court, stated the law as follows: “The authorities seem to be in accord that when an administrative board or agency is required to hold a public hearing and to decide disputed adjudicative facts based upon evidence produced and a record made, that a reasonable right of cross-examination must be allowed the parties. * * * We have no intention of attempting to promulgate a comprehensive rule respecting the type or the amount of cross-examination that the Council must provide at hearings on applications for reclassification. The rationale of the cases and authorities is that reasonable cross-examination, which is required for a full and true disclosure of the facts, having due regard to the circumstances of each particular ²⁹⁸ case, the nature of the proceedings, and the character of the rights which may be affected by it must be permitted; and that is as far as we are required to go at this time. (Emphasis supplied).” ( 242 Md. 67 , 217 A. 2d 585 -6). In the present case, 72 of the protestants from the neighborhood were represented by counsel who exhaustively cross-examined all witnesses produced by the applicants.

There were other persons present who were not represented by counsel but they did not specifically request any right for further cross-examination (other than Mr. Yost who was granted the right), apparently being satisfied that the searching cross-examination by counsel had satisfactorily brought to light any facts relevant or helpful to the cause of the protestants. As Chief Judge Carter aptly stated in his written opinion filed in the lower court: “To hold that the Protestants present who were not represented by counsel, which probably represented a considerable number, should have each been afforded the right of further cross-examination of the several witnesses produced by the Petitioners would likely have protracted the hearings to an unreasonable extent without developing any new material facts. Certainly in the interest of orderly procedure some limitation on the right of cross-examination had to be invoked in a situation such as was here presented. We find, therefore, that the restriction of the right of cross-examination to counsel was reasonable ‘having due regard to the circumstances of (this) particular case, the nature of the proceedings, and the character of the rights which (might) be affected’ and that such restriction did not violate the fundamentals of natural justice or fair play, nor deny any Protestants present who did not have counsel the right to have full and fair disclosure of the facts testified to by witnesses for the Petitioners.” (Emphasis supplied.) Assuming, without deciding, that the protestants who were not represented by counsel were parties aggrieved who might, under certain circumstances, be entitled to cross-examine, ²⁹⁹ we are of the opinion that any such persons who did not specifically request the right to cross-examine have waived it.

Although it is true that the chairman indicated at the first hearing that cross-examination would be conducted by counsel for the parties represented by them, it is clear from the proceedings at the second hearing that the chairman did entertain a request to cross-examine and ultimately granted it to Mr. Yost. Any other persons who were not represented by counsel, or who were not themselves members of the Bar, were obligated under the circumstances of this case to request the right to cross-examine in order to preserve whatever rights they might have to cross-examine. See Bayer v. Siskind, 247 Md. 116 , 230 A. 2d 316 (1967). See also Overton v. Board of County Comm’rs of Prince George’s County, 223 Md. 141 , 162 A. 2d 457 (1960).

In our opinion, the Board did not deny due process of law to any protestants not represented by counsel so far as any right of cross-examination is concerned. 2. The appellants also urge upon us that the Board denied the appellants due process of law by not providing a hearing area at the first zoning hearing sufficiently large to accommodate all persons who wished to attend. We do not agree. The chairman of the Board testified at the hearing in the circuit court that ordinarily the Board met in a small room but that, in this case, the Board anticipated that the hearing would be larger than usual and made arrangements for a larger hearing room.

The Board did not anticipate that as large a number of persons would attend the hearing as actually did attend it. It was estimated that approximately 150 persons wished to. attend the first hearing and that a least 50 were unable to get into the hearing room because the room was not physically large-enough to hold them. There was evidence that those who could not enter the room could not hear the testimony or the questions asked by counsel. The larger room which the Board obtained contained approximately 1500 square feet and was the county auditorium.

The second hearing on February 13, 1967, and the third hearing the following day, were held in the auditorium of one of the high schools which was large enough to accommo ³⁰⁰ date the crowd. As Judge Carter pointed out in his opinion, the testimony and proceedings at all sessions were recorded on tape and this tape was available to any interested party for the proceedings held on the first meeting for a full week between the date of that hearing and the second session on February 13. This ■tape was at the reporter’s office in Easton and could have been replayed to any person wishing to hear the proceedings upon the request to the secretary or to the chairman of the Board. No one present at the first hearing made such a request.

Judge Carter properly stated in his opinion: “Measured by