Grasslands Plantation, Inc. v. Frizz-King Enterprises, LLC

ADKINS, J. In this Queen Anne’s County zoning case, we decide how to allocate the burden of proof in a de novo review by the Board of Appeals of the Planning Commission’s decision approving a subdivision. 1 We hold that the Board erred in imposing the burden on the adjacent landowner protestant. We also address the question of whether a county ordinance passed during pendency of the protestant’s judicial appeal, which amended the standards by which the Commission is to evaluate proposed subdivisions, should be applied to this subdivision application. We hold that, under these circumstances, the new county ordinance should apply to the proceedings on remand. FACTS AND LEGAL PROCEEDINGS The respondent, Frizz-King Enterprises, LLC (“Frizz-King”), is the owner of approximately 275 acres located in an agricultural zoning district in Queen Anne’s County.

In 2004, ¹⁹⁵ Frizz-King initiated a process to construct a subdivision called “The Highlands” near Chestertown, Maryland. The proposed subdivision clusters fifty residential units within approximately 64 acres of the 275 acre property, using noncontiguous development, a permitted technique for achieving greater density in one defined area. 2 Frizz-King obtained an adequate public facilities (“APF”) study pursuant to the County’s then-in-effect Adequate Public Facilities Ordinance to determine the subdivision’s impact on water, sewer, traffic and schools. Upon receiving an approval of the APF study from the Technical Review Committee, Frizz-King submitted an application to the Commission for a subdivision with 114 lots. Frizz-King then redesigned the project into a phased project, with phase one consisting of fifty lots.

The petitioner, Grasslands Plantation, Inc. (“Grasslands”), owns a property known as “Grasslands Plantation” adjacent to the proposed subdivision property. The Planning Commission Proceedings Grasslands opposed the subdivision in a series of hearings before the Commission. In a hearing on April 13, 2006, after which the Commission granted its final approval, Grasslands challenged the proposed subdivision, principally through the oral and written testimony of Dr. Eileen McLellan, a consultant with a background in environmental science and policy. Dr. McLellan asserted that the proposed subdivision was incompatible with (1) Maryland Code (1957, 2003 RepLVol.), ¹⁹⁶ Article 66B, Sections 1.01 and 11.01, 3 (2) specific policies in the Queen Anne’s County Comprehensive Plan, and (3) provisions in Title 18 of the Queen Anne’s County Code (“QACC”).

Both Dr. McLellan and Grasslands’s counsel argued that Frizz-King’s use of the County’s noncontiguous development (“NCD”) program, was incompatible with the County’s Comprehensive Plan policy to keep rural lands rural and preserve agricultural lands, because the agricultural parcel proposed for subdivision is not located in an area designated for growth. 4 Dr. McLellan also argued the subdivision was incompatible because, inter alia, (1) the subdivision’s planned architecture, use of cul-de-sacs, and landscaping did not employ an appropriate rural design and (2) that the subdivision could be “redesigned to incorporate Low Impact Design practices rather than rely upon engineered stormwater structures.” Dr. McLellan explained that a design which locates ¹⁹⁷ homes adjacent to the existing tree line—rather than placed in the middle of an open field—would contribute to preserving the rural character of the area. Frizz-King’s counsel disputed Dr. McLellan’s contention that the area surrounding the subdivision is predominately rural. He noted that the proposed subdivision was immediately adjacent to the 900 lot Chester Harbor subdivision, that the adjacent Grasslands Plantation also contained a thirty-two lot subdivision, and that there were other subdivisions and the town of Chestertown in the immediate vicinity. He added, moreover, that the proposed subdivision was in the immediate vicinity of substantial commercial development, including the three largest car dealerships in the area.

The Commission approved the proposed subdivision without making any findings of fact. At the close of the hearing, Jeffrey Thompson, Frizz-King’s counsel, explained the need for the Commission to make findings and the Commission’s legal counsel echoed these concerns: “Without the findings, Mr. Thompson is correct, .. . [the case] will be sent back to you because it’s not clear from the record what findings that you’ve made or haven’t made.” Mr. Thompson prepared and submitted into the record proposed findings of fact. The Commission declined to make findings, however, resolving that it could grant final approval on the planning and zoning staffs recommendation: BOARD MEMBER: Staff has reviewed all these things. Staff recommends, they see nothing that would prohibit us from granting a final approval.

I’d like to make a motion that we grant final approval, final subdivision approval to [Frizz-King] to create 49 cluster lots, one open space lot, public roadwrays as outlined on the application ... with the following conditions: All required bonds and sureties and inspection fees be submitted, a maintenance inspection agreement be provided to the Public Works, all required legal documents be signed and recorded, all required signatures be obtained, and this is taking into consideration the ¹⁹⁸ recent submissions of [Grassland’s counsel] and Mr. Thompson. The Commission then approved the motion. The Board of Appeals Proceedings Grasslands appealed the Commission’s decision to the Board, listing eleven grounds. Grasslands alleged, inter alia, that the County’s NCD program did not comply with Article 66B, the subdivision approval did not comply with the County’s “Comprehensive Plan and the ‘Title 18’ zoning ordinance[,]” the Commission failed to make “written specific findings of fact and conclusions of law[,]” and the “subdivision’s open space areas are not in conformance with the applicable standards of the Queen Anne’s County Title 18.” Frizz-King filed a Motion to Compel Specific Grounds for Appeal, contending that Grasslands’s “contentions are so broadly framed as to deny [Frizz-King] the basic due process right to be apprised of the issues on appeal and to enable it to adequately prepare to present evidence and argument.” Grasslands countered with a Motion for Summary Judgment in which it contended that “there are no relevant facts in dispute—the Planning Commission failed to make the necessary findings required by law.” It argued that “even with these proceedings being de novo with respect to the issues raised, [Grasslands] cannot assert the Planning Commissioner’s errors in their entirety without knowing what the Planning Commission did and why.” The Board declined to accept Grasslands’s summary judgment motion on the ground that it “was not part of the Board’s procedures.” It then reviewed the eleven grounds and found that four were alleged with insufficient clarity, including the allegation that “[t]he subdivision approval does not comply with [the] Queen Anne’s County Comprehensive Plan and the ‘Title 18’ zoning ordinance.” According to the Board, Grasslands needed “to specify how the grant of the subdivision does not comply with the Comprehensive Plan or ¹⁹⁹ Title 18 in order for the parties to prepare intelligently.” In a supplemental notice of appeal, Grasslands alleged: The Planning Commission improperly failed to consider whether the Highlands development complies with the Comprehensive Plan in violation of Title 18. § 18:1-4 defines the purpose of Title 18 and how it to be interpreted and administered: “The purpose of Title 18 is to implement the Comprehensive Plan ...” Likewise, § 18:1-161 of Title 18 requires that “A subdivision layout shall conform to the Comprehensive Plan.” Again, the use of the word “shall” is mandatory.

At the time of the submission of the Highlands development to the Planning Commission, it was the developer’s burden of proof to establish that the development is in compliance with the Comprehensive Plan because it presented no relevant evidence or testimony. The Board held a hearing on the merits on October 26, 2006. Grasslands’s counsel questioned whether the burden of proof should rest on Grasslands, as opposed to Frizz-King, in an appeal from a Commission decision. He then argued that the Commission was required to make findings.

Dr. McLellan, again, testified on behalf of Grasslands. When Dr. McLellan attempted to offer her opinion and two exhibits stating that the Highlands did not conform to the County’s Comprehensive Plan, Frizz-King’s counsel objected on the ground that Grasslands had failed to disclose in advance of the hearing the subdivision’s “specific incompatibility” with the Comprehensive Plan. The Board sustained Frizz-King’s objection concerning one of Dr. McLellan’s exhibits, and with respect to the other, only allowed her to testify about the “general goal of a comprehensive plan” without reference to “specific application of the Comprehensive Planf.]” Dr. McLellan proceeded to testify, in general fashion, that the County’s NCD program is incompatible with the County’s Comprehensive Plan. With the exception of one item, 5 the Board denied Grasslands’s appeal “because it [did] not believe that [Grasslands] ²⁰⁰ ... met its burden of proof.” The Board found, inter alia, that (1) “[t]he County’s [NCD] program is not inconsistent with Article 66B[;]” (2) “[although they might be helpful, the ...

Commission does not have to make findings of fact and conclusions of law[;]” (3) there “is no evidence to suggest that the subdivision’s open space areas are not in conformance with applicable standards of ... Title 18[;]” and (4) “the subdivision complies with the County Adequate Public Facilities Ordinance.” According to the Board, the Commission was hot required to make findings of fact and conclusions of law “since appeals from the ... Commission go to the Board as de novo appeals instead of to the circuit court on the record.” The Board observed that under QACC Section 18:1-120, the Board “is empowered to substitute its judgment for that of the ... Commission.” The Board did not specifically address whether the subdivision approval was in compliance with the County’s Comprehensive Plan.

Court Proceedings And New County Legislation Grasslands filed a Petition for Judicial Review in the Circuit Court for Queen Anne’s County and that court affirmed the Board’s decision on June 22, 2007. Grasslands noticed an appeal to the Court of Special Appeals (“CSA”) on July 13, 2007. Just prior to oral argument in the CSA, the County enacted two ordinances pertinent to this appeal: the “Development Consistency with the Queen Anne’s County Comprehensive Plan” Act (Ordinance No. 07-42, effective on February 23, 2008, hereinafter “Conformity Ordinance”) and the “Emergency Service Protection Act” (Ordinance No. 06-103, effective March 29, 2008, hereinafter “Emergency Service Ordinance”). 6 The Conformity Ordinance added the following code section: ²⁰¹ All development shall conform to the Comprehensive Plan. The Planning Commission or Planning Director may not approve a site plan under Article XXV or a subdivision under Article XXVI unless it finds that the development conforms to the visions, objectives, and policies of the Comprehensive Plan.

QACC § 18:1-138.1. The ordinance was enacted for the stated purpose “of requiring that every site plan and subdivision proposed in Queen Anne’s County conform to the visions, objectives and policies of the Queen Anne’s County Comprehensive Plan[.]” The Emergency Service Ordinance added the following subpart, indicated in italics, to the “Objectives” section of the article addressing subdivisions: The Planning Director and Planning Commission shall encourage designs that not only meet the minimum subdivision requirements but also result in the most beneficial use of land by: K. Providing for public safety through compliance with the State Fire Code and with any applicable County or municipal Fire Codes. ²⁰² QACC § 18:1-159 (emphasis added). The ordinance also added the following language, indicated in italics, to one of the requirements for site plan approval: B. Requirements for approval. The Planning Commission may not approve any site plan unless it determines that the site plan: (7) Will not adversely affect the public welfare, and will provide for public safety through compliance ivith the State Fire Code and with any applicable County or municipal Fire Codes.

QACC § 18:1-153 (emphasis added). The ordinance’s purpose clause provides as follows: FOR. THE PURPOSE of authorizing the Queen Anne’s County Planning Commission to consider and analyze the effect of residential and commercial development on the effective and timely delivery of emergency services. AND WHEREAS, in connection with the approval of new residential and commercial development, the Queen Anne’s County Planning Commission should consider the impact of such development on the provision of emergency services and should be authorized to require, through developer exactions, restrictive covenants and other means, that any negative effects of new development on the provision of emergency services be offset and mitigated to the extent necessary[.] The CSA, in an unreported opinion, affirmed the Circuit Court on July 9, 2008.

Among a number of rulings, it held that the Commission was not required to make findings of fact and conclusions of law. The CSA determined that the Board gave each of Grasslands’s allegations explicit consideration. It also held that the Board did not improperly place on Grasslands the burden of proof. As discussed in footnote five, the CSA rejected Grasslands argument that the 2007 “Adequate ²⁰³ Public Facilities Ordinance” should be retrospectively applied, but did not address whether the Conformity Ordinance or the Emergency Service Ordinance required the case to be reversed or remanded for administrative review.

We issued a writ of certiorari to consider Grasslands’s following three questions, which we have reordered: I. Did the CSA err by sustaining the Circuit Court ratification of the Board of Appeals’s improper allocation of the burden of proof upon the appellant (as protestant to a subdivision application) instead of upon developer appellee, as required by law?

II

Did the CSA err in affirming the decisions of the Circuit Court and the Board of Appeals in light of its failure to consider intervening legislation enacted by the Queen Anne’s County commissioners that elevated the Queen Anne’s County Comprehensive Plan by “mandates of compliance” to the “level of a regulatory device”?

III

Did the CSA err by failing to remand the Highlands subdivision matter in light of the enactment of applicable local legislation prior to its decision? DISCUSSION Standard Of Review “When reviewing the decision of a local zoning body, such as the Board, we evaluate directly the agency decision, and, in so doing, we apply the same standards of review as the circuit court and intermediate appellate court.” Trinity As sembly of God of Balt. City, Inc. v. People’s Counsel for Balt. County, 407 Md. 53, 77 , 962 A.2d 404, 418 (2008).

Our role 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.” United Parcel Serv. v. People’s Counsel for Balt. County, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994). “In applying the substantial evi ²⁰⁴ dence test, we have emphasized that a ‘court should [not] substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken.’ ” Bulluck v. Pelham Wood Apartments, 283 Md. 505, 513 , 390 A.2d 1119, 1124 (1978) (citation and emphasis omitted). Our obligation is “to ‘review the agency’s decision in the light most favorable to the agency,’ since their decisions are prima facie correct. and carry with them the presumption of validity.” Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569 , 709 A.2d 749, 753 (1998) (citation omitted). “Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.” Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376, 381 (1999).

We are under no constraint, however, “to affirm an agency decision premised solely upon an erroneous conclusion of law.” Ins. Comm’r v. Engelman, 345 Md. 402, 411 , 692 A.2d 474, 479 (1997). I. The Burden Of Proof Grasslands contends that the Board improperly placed the burden of proof on it, as the appellant in the review hearing, to challenge the Commission’s approval of the Highlands subdivision. This burden of proof allocation, Grasslands argues, is unambiguously reflected in the Board’s ruling that “[t]he Board ... does not believe that the Appellant has met its burden of proof.” Grasslands asserts that the Board engaged in a de novo review of the Commission’s decision and contends, citing Board of County Commissioners for St. Mary’s County v. Southern Resources Management, Inc., 154 Md.App. 10 , 39 n. 9, 837 A.2d 1059 , 1075 n. 9 (2003), that in such a proceeding, the burden of proof remains with the applicant. ²⁰⁵ Maryland Code (1957, 2003 Repl.Vol.), Article 66B (“Art.66B”), Section 4.07(d)(1) provides authorization for the Board to “[h]ear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative officer in the enforcement of this article or of any ordinance adopted under this article!)]” Under Article 66B, Section 4.07(h)(1), the Board may wholly or partly reverse, affirm, or modify the order, requirement, decision, or determination from which the appeal is taken, as well as issue a new order, requirement, decision, or determination.

Article 66B, Section 4.07(h)(2) states that the Board “shall have all the powers of the administrative officer from whom the appeal is taken.” Article 66B, Section 4.07(c)(1) provides that the Board “shall adopt rules in accordance with the provisions of any ordinance adopted under this article.” Chapter 18:1 of the Queen Anne’s County Code, in addressing the Board’s powers, reflects Article 66B. 7 QACC Section 18:1-119(D)(2) adds that a notice of appeal shall “[s]pecify the grounds for the appeal and the relief sought.” The Board has also adopted rules governing the conduct of its hearings. Rule 4(B) provides, inter alia, that “[a]ll parties are entitled to have witnesses summoned to appear!)]” Rule 4(C) addresses documentary evidence: Documentary evidence may be produced by any party in support of his or its position.... Such documentary evidence shall become a permanent part of the record of the hearing, except that, with the permission of the Board, originals may be withdrawn upon the substitution of a photocopy[.] ... Applicant may move all marked Exhibits ²⁰⁶ into evidence at the commencement of the hearing.

Any opposition must be raised at that time. Rule 4(D) addresses the order of events at a hearing: The applicant or appellant may make a brief opening statement at the outset of the hearing and any opposing party shall be accorded the privilege. The sequence of direct and cross examination shall be the direction of the Board at the time of the hearing.... The applicant or appellant shall offer its witnesses and evidence at the outset of the hearing and at the conclusion of the applicant’s or appellant’s case, any opposing party shall offer its witnesses and evidence.

At the conclusion of all evidence, each side shall be permitted a reasonable period of time for argument. Frizz-King maintains that the Board “is free to place the burden of proof on whomsoever [it] chooses unless there is an applicable law prohibiting it from doing so” and that the County’s code and Board of Appeals Rules place the burden on the party appealing the Commission’s decision. Frizz-King asserts that the Board’s review was not of a purely de novo appeal, as in Southern Resources, but instead, was a review of a partially de novo appeal, as in Hikmat v. Howard County, 148 Md.App. 502, 526-27 , 813 A.2d 306, 320-21 (2002). According to Frizz-King, a partially de novo appeal “involves a new record that is created before the Board on the specific issues designated for appeal but, because it is presumed that the agency from which the appeal is taken decided the matter correctly,' the burden transfers to the appellant before the Board of Appeals.” Frizz-King asserts that the burden of proof was properly on Grasslands because (1) under general principles of law, “it is entirely permissible to place on the parties seeking to change the status quo the burden both to come forward with the evidence in support of its action and to persuade the trier of fact that the change is justified[,]” Baltimore Gas and Electric Company v. Everett, 61 Md.App. 288, 300 , 486 A.2d 248, 254-55 (1985), rev’d on other grounds, 307 Md. 286 , 513 A.2d 882 (1986); (2) there is “a strong presumption that public officers ²⁰⁷ properly perform their duties!,]” Lerch v. Maryland Port Authority, 240 Md. 438, 457 , 214 A.2d 761, 771 (1965); and (3) “[t]o always impose the burden of proof on the applicant, regardless of who prevailed before the initial administrative agency, would make for unduly broad and overly burdensome hearings.” According to Frizz-King, administrative" efficiencies “strongly favor allowing local jurisdictions to require the party who is alleging an error to proceed as the appellant and carry the burden of pleading with specificity and proving precisely what errors exist.” In Hikmat , a landowner in Howard County sought approval for a subdivision and filed a petition with the county’s Department of Planning and Zoning (“DPZ”) to waive a regulatory requirement in order to permit disturbance of a stream and buffer area located within the property.

By letter, the DPZ denied the request, reasoning, inter alia, that the driveway was a self-created hardship. The landowner appealed to the Board of Appeals and it reversed, granting the waiver petition. According to the Board, the DPZ’s denial was arbitrary and capricious because its “ ‘self-created hardship’ ” basis was inappropriately captioned and “ ‘not accurate when evidence was presented ... that the hardship was created by the stream and not by the creation of lotsf.]’ ” Hikmat, 148 Md.App. at 511 , 813 A.2d at 312 . The Circuit Court then reversed the Board, determining that the Board exceeded its authority “by granting the waiver based on errors in wording or captioning in' the denial letter[.]” Id. at 512 , 813 A.2d at 312 .

The court explained that the question before the Board was fairly debatable and the matter should have been remanded to the DPZ to correct its denial letter. The CSA considered “whether the Board applied the appropriate standard of review when it reviewed DPZ’s decision.” Id. at 523 , 813 A.2d at 319 . Howard County argued that the Board was “bound to a deferential standard of review” similar to the judicial standard of review. Id.

The landowner acknowledged that “the Board’s standard of review is not purely de novo in that it requires the Board to determine whether DPZ’s decision was arbitrary, capricious or contrary to law ²⁰⁸ before arriving at its own conclusions, but it [did] not agree with [Howard County’s] limited view of the Board’s powers.” Id. The Hikmat court reviewed Maryland Code (1957, 2001 Repl. Vol.), Art. 25A, Section 5(U)(“Art. 25A”); the Howard County Charter (“Charter”); the Howard County Code (“HCC”); and Howard County Zoning Regulations to conclude that the Board’s standard was “not as deferential as the judicial standard but [was] not a purely de novo proceeding.” Id. at 527 , 813 A.2d at 321 . In reaching this conclusion, the court noted, first, that Article 25A granted the Board broad powers regarding original and appellate jurisdiction.

It then observed that according to the Charter, all matters “ ‘which come before the Board pursuant to its exercise of original jurisdiction shall receive a de novo hearing on all issues!,]’ ” whereas “ ‘matters coming before the Board pursuant to an appeal from executive, administrative, or adjudicatory order wherein a formal hearing was held verbatim on the record developed shall be reviewed by the Board on the basis of the record before it.’ ” Id. at 525 , 813 A.2d at 320 . These provisions, the court explained, “are relevant in understanding the present dispute because they recognize the distinction between a de novo appeal and an appeal on the record and require that the Board’s rules of practice and procedure not be inconsistent with the requirements set forth in Maryland’s Administrative Procedure Act.” Id. The CSA then noted that the following HCC provision provided differing burden of proof allocations and standards for different types of de novo appeals: (i) In an appeal of an administrative agency’s issuance of a notice of violation of county laws and regulations, the burden of proof is upon the administrative agency (proponent) to show, by a preponderance of the evidence, that the respondent has violated the laws or regulations in question. However, it shall be the respondent’s burden to prove all affirmative defenses, including the defense of nonconforming use. ²⁰⁹ (ii) In all other de novo appeals, the burden of proof is upon the appellant to show that the action taken by the administrative agency was clearly erroneous, and/or arbitrary and capricious, and/or contrary to law.

Id. at 526 , 813 A.2d at 320 (quoting HCC § 2.210(a)(4)). The Hikmat court observed that the burden of proof provision applicable to appeals on the record, HCC Section 2.210(b), applied “the same standard applicable to de novo appeals from administrative agencies.” Id. The court then reviewed other county zoning regulations referencing the Board’s powers to hear and decide appeals where it is alleged that the DPZ has erred in the interpretation or application of any provision in the zoning regulations. The Hikmat court concluded that “the Board had the authority to grant the waiver if its own findings were sufficient to support such a conclusion.” Id. at 528 , 813 A.2d at 322 .

The court recognized that proceedings before the Board were not purely de novo in that the Board, under the Howard County Code, “was required to consider DPZ’s decision and treat it as correct unless, based on the facts found from the evidence, [it] determined that DPZ’s decision was clearly erroneous, and/or arbitrary and capricious, and/or contrary to law.” Id. at 527 , 813 A.2d at 321 . The court observed, however, that aside from this deferential standard of review, “none of the code provisions and regulations addressing the Board’s role in administrative appeals limit its powers.” Id. In explaining the Board’s breadth of authority, the court distinguished the de novo review at issue from appeals on the record and noted how the de novo proceeding offered a meaningful hearing: Notably, the County Charter distinguishes between de novo appeals and appeals on the record9 and requires that the Board’s procedures comply with the requirements of Maryland’s Administrative Procedure Act. These are important features because, when a county law provides for a hearing, due process requires that it be a meaningful hearing.

In this case, the hearing before the Board is the first hearing. Under these circumstances, the Board’s role is more akin to ²¹⁰ a second tier administrative agency, rather than a first tier judicial reviewer, as appellee suggests. This approach is also consistent with other provisions contained in section 2.210, which explain how to conduct a de novo appeal, and with section 16.301, which permits the Board to hear and decide appeals when it is alleged that DPZ committed error, without providing further limitation on the Board’s powers. 9 According to the Charter, where there is a formal hearing below and a verbatim record developed, except in certain circumstances, the Board does not hold de novo evidentiary hearings but reviews the record for error. This type of appeal on the record is clearly distinguishable from a de novo appeal.

Id. at 527-28 , 813 A.2d at 321-22 . In Southern Resources, the CSA reviewed a St. Mary’s County Board of Appeals decision reversing a Planning Commission subdivision approval. 8 Among other issues, the court considered whether the Board had incorrectly used a de novo standard in reviewing the Planning Commission’s decision. Southern Resources, 154 Md.App. at 22 , 837 A.2d at 1066 . The Circuit Court ruled, citing Hikmat , that the administrative standard of review was not a purely de novo proceeding.

The CSA ruled that the Circuit Court was “incorrect in finding that Hikmat controlled the Board’s standard of review” because the Hikmat decision was “based on an interpretation of the charter for Howard County, Howard County ordinances, and the enabling statute for charter counties, Md.Code, Art. 25A.” Southern Resources, 154 Md.App. at 30 , 837 A.2d at 1070 . The CSA explained that St. Mary’s County, as a commissioner county, is governed by Maryland Code (1957, 1998 Repl.VoL, 2002 Supp.), Article 25 and that land use provisions ²¹¹ for such counties is contained in Article 66B. The Southern Resources court noted that the St. Mary’s County Board of Appeals had a broader review standard than did the Board in Hikmat : Article 66B specifically authorizes the establishment of a Board of Appeals as an administrative body created to “[hjear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative officer in the enforcement of this article or of any ordinance adopted under this article.” Md.Code, Art. 66B, § 4.07(d). The Board’s standard of review is not directly addressed in Article 66B, but § 4.07(h)(2) provides the Board with all the powers of the administrative officer when the case is on appeal.

The Board, by statute, was given broad powers, its standard of appellate review was not restricted by statute, and it was not restricted by ordinance or rule. Consequently, unlike the Board in Hikmat , the Board’s review was appropriately de novo with respect to the issue being contested. All parties participated in the proceedings with that understanding. Id. at 31, 837 A.2d at 1071 (citation omitted).

The Southern Resources court concluded that the Board applied an arbitrary standard requiring a showing of “100 % certainty” that the property proposed for subdivision was safe for residential use and that the Board erred in failing to provide specific findings to explain why it was not convinced the property was safe. Id. at 33, 36 , 837 A.2d at 1072, 1074 . The court then explained that it “must vacate the Board’s decision and remand to the Board to either remand to the Planning Commission or to conduct further proceedings itself.” Id. at 39 , 837 A.2d at 1075 . The court directed the Board, on remand, to “determine whether the Property, or some portion of it, is suitable for residential development, and if so, to what extent and under what restrictions, applying a reasonable and non-arbitrary standard.” Id.

It added that the Board “must include specific findings of fact and conclusions in its opinion, whether it conducts the proceedings itself or on ²¹² appeal after remand to the Planning Commission.” Id. In a footnote, the court explained: “To make our holding clear, we expressly state that we are not shifting the burden of proof. The burden remains on [the subdivision approval applicant]. We are addressing the evidentiary requirements to support the Board’s decision.” Id. at 39 n. 9, 837 A.2d at 1075 n. 9 (emphasis added).

Having reviewed these decisions by our intermediate appellate court, we agree with Grasslands that the Board’s governing statutes and rules called for it to engage in a purely de novo review. Queen Anne’s County is a Code home rule county and is governed by the land use provisions of Article 66B. Queen Anne’s Conservation, Inc. v. County Comm’rs, 382 Md. 306, 320 , 855 A.2d 325, 333 (2004). As with the St. Mary’s County Board in Southern Resources, Article 66B, Section 4.07(h)(2) does not directly address the Queen Anne’s County Board’s standard of review, but provides it with all the powers of the administrative officer when the case is on appeal.

Unlike the applicable Howard County provisions in Hikmat , neither Article 66B, Section 4.07; QACC Section 18:1-120; nor the Board’s rules call for the Board to accord any deference to a decision by the Commission. Indeed, QACC Section 18:1-120(B) states that “the Board may reverse, affirm, or modify, wholly or partly, the order, requirement, decision, or determination from which the appeal is taken.” In Halle Companies v. Crofton Civic Association, 339 Md. 131 , 661 A.2d 682 (1995), we considered the nature of a de novo review by a county board of appeals to determine whether the Anne Arundel County Board of Appeals exceeded its authority by imposing a condition upon the grant of a special exception. We addressed our decisions in Daihl v. County Board of Appeals, 258 Md. 157 , 265 A.2d 227 (1970) and County Federal Savings and Loan Association v. Equitable Savings and Loan Association, Inc., 261 Md. 246 , 274 A.2d 363 (1971), in which we held that a board of appeals cannot review actions which were not appealed specifically: ²¹³ “[T]he context in which the term de novo is used ... means that on appeal there shall be a de novo hearing on those issues which have been appealed and not on every matter covered in the application. In this sense de novo means that the Board of Appeals may hear testimony and consider additional evidence pertaining to the issue or issues presented on appeal.” Halle Companies, 339 Md. at 141-42 , 661 A.2d at 687 (quoting Daihl, 258 Md. at 162 , 265 A.2d at 229 ).

These holdings, we explained, showed “that we have consistently treated de novo appeals as wholly original proceedings, with the word ‘appeal’ meaning simply that the proceedings are new and independent rather than strict review of prior proceedings.” Id. at 142, 661 A.2d at 687 . “Although the issues to be addressed on review by the Board may be limited, new and additional evidence is permitted. The proceedings, therefore, are wholly original with regard to all issues properly raised.” Id. We observed that the Anne Arundel County Board was authorized to “review the actions of the administrative officer and take any action which that officer could have taken” in the initial proceeding and that additional evidence may be presented during the Board’s de novo proceedings. Id. at 143 , 661 A.2d at 688 .

We regarded the Board’s proceedings as “appellate review mainly in the sense that a decision by the administrative hearing officer is a prerequisite to proceedings before the Board[.]” Id. Quoting Boehm v. Anne Arundel County, 54 Md.App. 497, 511 , 459 A.2d 590, 599 (1983), we indicated that the Board’s de novo hearing “ ‘is an entirely new hearing at which time all aspects of the case shoidd be heard anevo, as if no decision has been previously rendered[.] ’ ” Halle Companies, 339 Md. at 144 , 661 A.2d at 688 (emphasis in original). The Boehm court elaborated on this de novo hearing definition with the following exposition: “Thus, it is said that where a statute provides that an appeal shall be heard de novo such a hearing is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held, especially where the hearing is in a court of ²¹⁴ general, original jurisdiction. Where a statute provides for a trial de novo and does not provide that the findings of the administrative agency shall be conclusive or of any force, the whole matter is opened up for consideration on appeal as if the proceeding had been originally brought in the reviewing court.” Boehm, 54 Md.App. at 509-10 , 459 A.2d at 598 (quoting 2 Am.Jur.2d Administrative Law § 698 (1962))(emphasis omitted).

In light of the purely de novo, original, nature of the proceedings before the Board concerning the issues on appeal, it follows that the burden of proof remained on Frizz-King to establish that its proposed subdivision satisfied the requirements of the Queen Anne’s County Code. In Committee for a Rickel Alternative v. City of Linden, 111 N.J. 192 , 543 A.2d 943, 947 (1988), a variance applicant contended that “the appellant bears the burden of demonstrating entitlement to the relief sought” in a de novo proceeding before the reviewing city council. The applicant obtained approval for a use variance by the board of adjustment (“Board”). A merchants association objected to the variance in the proceedings before the Board and took an appeal to the city council (“Council”).

After a de novo review of the record made before the Board, five Council members voted to affirm the Board, five voted to reverse, and one abstained because of a conflict of interest. The Supreme Court of New Jersey considered whether, under the state’s municipal land use law, a tie vote affirms or reverses a grant of a use variance by the Board. In arguing that a tie resulted in an affirmance of the result below, the variance applicant maintained that the burden was on the appellants in the review proceeding before the Council to prove that the applicant was not entitled to the variance. The Rickel court rejected the applicant’s shifting burden argument: The argument misconstrues the nature of de novo proceedings.

We concluded in Evesham [Township Zoning Bd. of Adjustment v. Evesham Township Council] that ... gov ²¹⁵ erning bodies reviewing an action by a board of adjustment had the “authority to make a de novo review of the record established before the board and reach its own decision in the matter subject only to the requirement that its findings and conclusions are supported by the record.” 86 N.J. 295 , 430 A.2d 922 . “The governing body’s task ... is to consider the record ... and the legal arguments of