Halle Companies v. Crofton Civic Ass'n

KARWACKI, Judge. In this case, we shall analyze the authority of the Anne Arundel County Board of Appeals to impose a condition upon the grant of a special exception when that condition was not sought during earlier proceedings before the county administrative hearing officer. I This case originated from applications filed with the Anne Arundel County Department of Planning and Code Enforcement by the Halle Companies and its totally owned enterprise, Chesapeake Terrace (referred to collectively hereafter as “Halle”). Specifically, in 1990, Halle sought administrative approval for sand and gravel landfill operations.

Those operations were to be conducted on approximately 108 acres of land located near the intersection of Routes 3 and 424, in Odenton, Maryland. 1 Of the 108 acres subject to the special exception ¹³⁵ request, only 35 acres of previously cleared property was proposed for sand and gravel extraction. Halle also sought approval for rubble landfill operations to be conducted at that same location on approximately 482 acres (including the 108 acres for the sand and gravel landfill). Of the 482 acres, only 150 acres of previously cleared property was contemplated for landfill use, to be accomplished through the sequential filling of a number of small cells on the property. Halle’s applications for special exception and variance approval were denied by Anne Arundel County’s administrative hearing officer.

Halle appealed that decision to the Anne Arundel County Board of Appeals (“the Board”), which heard the appeal de novo, pursuant to § 603 of the Anne Arundel County Charter. 2 Evidence produced at the sixteen administrative hearings held over seventeen months demonstrated that the site was within a resource extraction area on the master plan of the County, was the subject of an existing special exception granted for a sand and gravel operation, and that the subject property had been mined off and on for 40 years. The site was likened to a moonscape, and photographs of the site showed debris, deep ravines, and erosion on the property. Photographs of the property showed trees falling into eroding ravines which were 30-45 feet deep, abandoned sediment basins, and unclaimed excavation pits. Illegal dumping, target shooting, and hunting regularly occurred on the property.

After its site inspection, the Board observed that “because of previous mining which has occurred on this property, the land is cratered virtually up to the property line.” Halle offered expert testimony on subjects including traffic impact and road improvements, environmental protection and wetland preservation, hydrology and ground water contamination, land use planning and development, civil and environmen ¹³⁶ tal engineering related to landfill development, and acoustical engineering. Each expert testified at length and addressed the impact of the landfill and sand and gravel operations at the site upon vicinal properties. The County and the protestants claimed that harsh environmental impact on the Patuxent River and the surrounding wetlands and floodplain would result, and further asserted that their primary concern was traffic. Patuxent Road access required truck travel along “a bad curve ... referred to as a reverse horizontal curve,” and also “would require disturbing major wetlands.” Questions were raised as to “the relationship of the landfill to the 100 year flood plain on Patuxent Road,” and the potential threat of Patuxent Road access to residential communities north and west of the site.

Due to these concerns, Halle suggested an alternate access to the site from Conway Road at the first of the Board’s sixteen hearings. Conway Road access would alleviate both the wetlands and traffic problems raised by the County and the protestants. It was also a shorter access route, would affect fewer people overall, and would direct the traffic further from the Patuxent River. The County Department of Public Works evaluated the proposed Conway Road access and concluded that such access was preferable because it addressed the traffic and environmental concerns.

The County argued that the Board could not consider the access from Conway Road because Halle could not propose an alternative entrance after having filed the initial appeal. The Board rejected the County’s argument: “Although the County argues that the Petitioners could not suggest this alternative entrance after filing the initial appeal (an argument which this Board rejects), the County also indicated in its closing argument that the Conway Road entrance is a much better choice because it avoids the wetlands and the heavier traffic on Patuxent Road as well as directing the traffic further from the Patuxent River. This Board has often accepted modifications to an initial plan when the modifications were offered during the hearing process. There does not appear to be any reason that the ¹³⁷ proposed use of the Conway Road entrance must be rejected by this Board.” After three months of deliberation, an on-site visit by the members of the Board to the property, and a review of the record taken as a whole—consisting of more than 2,000 pages of transcribed testimony and voluminous documents—the Board determined that the landfill would advance the public welfare of the County.

It recognized the need for the landfill, concluded that its location was well suited to the use, and determined that the special exception and variance proposals would benefit the vicinal community by reclaiming and restoring previously mined ravines and properties “cratered” up to the property line. Accordingly, the Board granted the special exception and variance requests, subject to eight specific conditions. 3 Petitioners, several community associations led by the Crofton Civic Association and eighteen individual property owners, sought judicial review of the decision of the Board in the Circuit Court for Anne Arundel County. The circuit court ¹³⁸ granted Anne Arundel County’s motion to intervene and, after oral argument, reversed the decision of the Board, holding that the Board exceeded its de novo authority by imposing the Conway Road access as a condition of its special exception and variance approvals, as the Conway Road access went beyond the scope of the original application. The circuit court concluded that the condition of access from Conway Road was a “so-called” condition and not a proper one, because it in effect substantially augmented the property “touched” by Halle’s application: “The central question, then, which this Court must resolve is whether the Board had the authority under its “de novo” power to address the Conway Road access even though it was not part of the original application. * * % * * 5ÍC “[Halle] argues that the introduction of the Conway Road access was simply a new issue which the Board had every right to consider.

The Court agrees with [Halle] that the Board, pursuant to its de novo power, can address new issues. Boehm [v. Anne Arundel County, 54 Md.App. 497 , 459 A.2d 590 (1982)]. It cannot, however, indiscriminately entertain matters which in effect change the nature of the original controversy or application. In this case, the Board’s entertainment of the Conway Road access was not a mere consideration of a new issue.

It was much more. Indeed, given the amount of property affected by the Conway Road access and the intensity of the ancillary activities possibly to be performed thereon, the Board’s decision impermissibly enlarged the substance of [Halle’s] application. Therefore, it is the opinion of this Court that under the circumstances, the Board, in entertaining the Conway Road issue, expanded the scope of its inquiry to such a degree that the nature of the original application was significantly altered. In so doing, the Board exceeded the bounds of its de novo authority. “For the reasons aforementioned, this Court finds that the Board erred as a matter of law when it granted the ¹³⁹ special exceptions and variance beyond the scope of [Halle’s] original application.” (footnotes omitted).

Halle noted an appeal to the Court of Special Appeals and then filed a petition for a writ of certiorari in this Court prior to consideration of the case by the intermediate appellate court. We granted certiorari to determine whether the Board exceeded its de novo authority in requiring the Conway Road access as a condition to the grant of the special exceptions and variance. II Petitioners first point out that the Board has the authority to impose conditions to the grant of special exceptions or variances to preserve the health, safety, and welfare of the community. Further, petitioners stress that the proceedings before the Board were conducted de novo, or as if the proceedings before the administrative hearing officer had never occurred.

As the broad issue of access was before the administrative hearing officer, petitioners conclude that, pursuant to its de novo power, the Board had the authority to address the alternative access to the site. Respondents argue that Halle modified its application before the Board by proposing the alternative Conway Road access and thereby impermissibly expanded the scope of its original application. Further, respondents point out that the “amendment” for the new access road was not included in the notice of the public hearing and that Halle had not yet obtained ownership of the private access road intersecting with Conway Road. Consequently, respondents conclude that the circuit court was correct in reasoning that the proceedings before the Board of Appeals constituted an original rather than appellate proceeding regarding what was, in essence, a new application.

III Under the Express Powers Act, Md.Code (1957, 1994 Repl.Vol.), Art. 25A, § 5(U), each county is authorized to ¹⁴⁰ create a board of appeals. Anne Arundel County, by its charter, created the Board of Appeals as an independent unit of county government and vested the Board with the power to hear de novo all appeals authorized by the Express Powers Act. 4 Anne Arundel County provides for initial action upon a special exception or variance request by an administrative hearing officer. Thereafter, appeal may be taken from the decision of the hearing officer to the Board of Appeals. Anne Arundel County Charter § 603 mandates that “[a]ll decisions by the County Board of Appeals shall be made after notice and hearing de novo upon, the issues before said Board.” The Board is purely a statutory creature and may exercise only those powers expressly granted to it by law or those which can be fairly implied.

Baylis v. Mayor & City Council of Baltimore, 219 Md. 164, 168 , 148 A.2d 429, 432 (1959). The power to impose conditions upon the grant of a variance or special exception is one which is implicit in the power to grant a variance or special exception. “This is so because the whole basis for the exception is the peculiar hardship to the applicant, and the Board is justified in limiting the exception in such a way as to mitigate the effect upon neighboring property and the community at large.” Id. at 169 , 148 A.2d at 432 . See also Skipjack Cove Marina, Inc. v. Board of County Comm’rs of Cecil County, 264 Md. 381 , 287 A.2d 49 (1972); 3 Yokley, Zoning Law and Practice, § 21-12. Both a variance and a special exception authorize uses which ¹⁴¹ otherwise would not be permitted.

Having been given the power to authorize such unusual uses, the Board must also have the power to limit those uses to protect the health, safety, and welfare of the community. See Skipjack Cove Marina, Inc., 264 Md. at 386 , 287 A.2d at 51 (The board is justified in limiting the special exception in such a way as to mitigate its effect upon neighboring property and the community at large.); 3 Rathkopf, The Law of Zoning and Planning, § 40.02[3] (“Even in the absence of any specific provision therefor in the ordinance, the board would thus have inherent power to condition a variance. If this were not so, the board, for lack of such right, might be forced, at times, to deny a variance and thus perpetuate the hardship which the restrictions have imposed upon the landowner.”). IV Respondents cite the three cases in which we have previously addressed de novo review by a county board of appeals, United Parcel Serv., Inc. v. People’s Counsel for Baltimore County, 336 Md. 569 , 650 A.2d 226 (1994) (“UPS”); County Fed. Sav. & Loan Assoc. v. Equitable Sav. & Loan Assoc., Inc., 261 Md. 246 , 274 A.2d 363 (1971), and Daihl v. County Bd. of Appeals, 258 Md. 157 , 265 A.2d 227 (1970).

In the latter two of those cases, however, we addressed the Board’s jurisdiction rather than the scope of de novo review. In Daihl , we held that a board of appeals cannot review actions which were not appealed specifically: “We think that the context in which the term de novo is used in Section 501.6 and 501.3 ... 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. See Vol. 2, The Law of Zoning and Planning, Rathkopf, ch. 65-30, § 7.

The original nature of a de novo hearing with its quality of newness is in contra-distinction to a review upon the record as exists where matters are heard on ¹⁴² certiorari. 73 C.J.S. Public Administrative Bodies and Procedure, § 204.” Daihl, 258 Md. at 162 , 265 A.2d at 229 . We made a similar holding in County Federal, quoting the above language from Daihl. County Federal, 261 Md. at 253-54 , 274 A.2d at 367 . Contrary to respondents’ assertions, neither of these holdings affects the disposition in this case, as they show 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.

See also Lohrmann v. Arundel Corp., 65 Md.App. 309, 318 , 500 A.2d 344, 348 (1985) (“the use of the word ‘appeal,’ to the extent it denotes review of the action of a lower tribunal, is a misnomer, for there is no review.”); Hardy v. State, 279 Md. 489 , 369 A.2d 1043 (1977); Travelers Indemnity Co. v. Nationwide Construction Corp., 244 Md. 401 , 224 A.2d 285 (1966). 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. In UPS, we interpreted the power granted by the Express Powers Act as providing charter counties the option to vest the board of appeals with either original jurisdiction or appellate jurisdiction over any subject matter set forth therein.

UPS, 336 Md. at 588 , 650 A.2d at 236 . We concluded that it was the intent of the General Assembly that “[ujnder the Express Powers Act, a board of appeals is primarily an appellate tribunal, having only such original jurisdiction as a county’s charter and ordinances expressly grant[.j” Id. at 591 , 650 A.2d at 237 . “The protestants also rely upon People’s Counsel v. Crown Development, 328 Md. 303, 316 , 614 A.2d 553, 559 (1992), where this Court held, inter alia, that on an appeal from the decision of administrative officials granting final approval of a development plan, the Baltimore County Board of Appeals was authorized under the Express Powers Act and local law to receive and consider evidence in addition to that contained in the record before the adminis ¹⁴³ trative officials. The Crown Development case, like the Hope [v. Baltimore County, 288 Md. 656 , 421 A.2d 576 (1980) ] case, was concerned only with the appellate jurisdiction of the Board of Appeals. Our holding with regard to additional or de novo evidence before the Board of Appeals does not support the view that the Board has original jurisdiction over all subjects delineated in § 5(U).

The fact that an appellate tribunal may be authorized to receive additional evidence or hear a case de novo does not mean that it is exercising original jurisdiction. A de novo appeal is nevertheless an exercise of appellate jurisdiction rather than original jurisdiction. See Hardy v. State, 279 Md. 489, 492 , 369 A.2d 1043, 1046 (1977). Whether a tribunal’s exercise of