People's Counsel for Baltimore County v. Country Ridge Shopping Center, Inc.

CHARLES E. MOYLAN, Jr., Judge (Retired, Specially Assigned). The single issue before us on this zoning appeal is whether the Baltimore County Board of Appeals, on a remand to it by this Court, adequately complied with the terms of our mandate remanding for “further proceedings.” We hold that, in the procedural and factual posture of this particular case, it did. More is involved in that holding, however, than at first glance appears. It is necessary that we dissect, at the most elemental level, the very nature and the institutional characteristics of the Baltimore County Board of Appeals specifically and, arguably, of administrative boards and agencies generally.

The focus of our examination will be on the impact that periodic changes in personnel have on the institutional continuity and operational vitality of the tribunal itself. The Pawnshop’s Petition For A Special Exception One of the appellees, Southside Brokers, Inc., is the operator of a pawnshop. Prior to 1995, the pawnshop had been located at 8110 Pulaski Highway. When the lease on that property was about to expire, the pawnshop leased space in the Country Ridge Shopping Center, Inc., the other appellee, located at 1508 Back River Neck Road, and moved to the new location in May of 1996.

The shopping center was, and is, zoned B.M. (business major). Pawnshops are permitted in a B.M. zone by way of special exception. Baltimore County Zoning Regulations, §§ 436, 233.

Accordingly, the pawmshop petitioned for a special exception at its new location. ⁵⁸³ Initially the appellees ran afoul of BCZR § 436.4, which the Baltimore County Council had adopted on July 3, 1995. It provides, in pertinent part: 436.4 Special exception petition. In addition to the requirements of Section 136.3 and such other requirements of these regulations relating to a special exception petition, a pawnshop is subject to the following requirements: A. Location may not be within a one-mile radius of any other pawnshop, and no more than two pawnshops may be located in a councilmanic district. (Emphasis supplied).

Invoking that provision, the Zoning Commissioner initially denied the petition for a special exception on January 22, 1996, because the relocation site was within a one-mile radius of an existing pawnshop. On a motion for reconsideration, the Zoning Commissioner on April 19, 1996 reversed his position and granted the special exception. He realized that he had failed to take into consideration the “grandfather” provision of the 1995 bill enacting the one-mile radius limitation, which had further provided: SECTION 6. AND BE IT FURTHER ENACTED, that pawnshops lawfully in existence and operating on the effective date of this Act are not subject to the requirements of Sections 436.4.

The County Board of Appeals: Round One At that point, the appellant, People’s Counsel for Baltimore County, representing various residents of the Back River Neck Road area including the presidents of both the Rockway Beach Association and the Back River Neck Peninsula Community Association, appealed the decision of the Zoning Commissioner to the Baltimore County Board of Appeals. The Board of Appeals conducted two full days of hearings, on November 6, 1996 and March 12, 1997. A public deliberation on the matter was held on April 17, 1997. One witness, the owner of the pawnshop, testified in favor of the petition for special exception.

A number of witnesses testified against the ⁵⁸⁴ petition. On April 30, 1997, a two-to-one majority of the Board of Appeals denied the special exception. In the majority opinion, two strands of reasoning were intertwined. The ultimate outcome of this appeal may turn 1) on the extent to which those separate strands of reasoning are capable of being isolated and independently evaluated and 2) on whether they were actually so isolated and independently evaluated in the Board’s decision.

On our present reading, it seems overwhelmingly likely to us that the original majority opinion of the Board of Appeals concluded, with solid evidentiary support for so concluding, that the pawnshop had failed to showj under traditional Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981) standards, that it was entitled to the special exception. This apparent conclusion of the Board of Appeals seems to have been completely independent of any consideration of the debatable one-mile radius limitation. The Board of Appeals initially set out the test that framed its analysis. BCZR Section 502.1 sets the standards for the granting of a special exception.

In this case, the special considerations are 502.1(a) and (g): a. Be detrimental to health, safety, or general welfare of the locality involved; and g. Be inconsistent with the purposes of the zoning classification, nor in any way inconsistent with the spirit and intent of the zoning regulations. Using the standard set forth in Schultz v. Pritts, 291 Md. 1 , [ 432 A.2d 1319 ] [(]1981[)], “the test for considering a special exception is not whether the use will have an adverse effect, but whether the adverse effect at the particular location is greater than ordinarily associated with the use....

Such uses cannot be developed if at the particular location proposed they have an adverse effect above and beyond that ordinarily associated with such uses. The duties given to the Board are to judge ... whether the use in the particular case is in harmony with the general purpose and intent of the plan.” ⁵⁸⁵ Properly applying Schultz v. Pritts, the Board then concluded that the pawnshop would have an unduly adverse impact in the intended location. Using the Schultz v. Pritts standard for granting or denying a special exception—that the proposed use would have an adverse effect above and beyond what it would ordinarily have in any area—it would appear that a pawnshop would have more than the usual adverse effects in the area of the Country Ridge Shopping Center, because the location is the focus of intense efforts at revitalization. (Emphasis supplied).

The Board emphasized that the neighborhood is “the highest priority revitalization area.” Contrary to the opinion of the Zoning Commissioner, who granted this Petition, we feel compelled to recognize the qualitative judgments of the County Council and the uncontradicted testimony that this section of Essex is in the highest priority revitalization area, has the highest incidence of negative socioeconomic indicators, and has the highest incidence of major crime in the County. These adverse effects are greater in the subject neighborhood than they would be elsewhere within the zone, which is a persuasive reason for denial of the special exception for a third pawnshop in the Essex area. (Emphasis supplied). At that point, to be sure, the opinion of the Board of Appeals did not stop and announce that its reasoning to that juncture was self-sufficient to justify its decision.

Had it done so, this appeal would not now be before us. The Board added to its catalogue of reasons, seemingly as little more than a makeweight, the one-mile radius limitation. Because that locational limitation was recited as one of the factors, however, it became necessary for the Board to address the applicability of the “grandfather” provision to the relocation in this case. As the Board approached its analysis of the “grandfather” clause’s applicability, it seemed to be under some arguable misapprehension as to the scope of the ⁵⁸⁶ “grandfather” clause exemption, if applicable.

It is a plausible reading that the Board of Appeals believed that the Zoning Commissioner had erroneously deemed the “grandfather” provision to be not only an exemption from the one-mile radius limitation but, more broadly, an exemption from the required showings for a special exception generally. The Board itself made an ambiguous reference in the plural to “[1] special exception and [2] locational requirements.” In this Majority Opinion, we concur that the Council, in Section 6 of Bill No. 112-95, did exempt from the BCZR 436.4 special exception and locational requirements for pawnshops lawfully in existence and operating on the effective date of the Act. (Emphasis supplied). In any event, the Board of Appeals ruled that the “grandfather” clause exemption from § 436.4’s one-mile radius limitation applied only to pawnshops that remained in place and not to those that were being relocated.

On appeal to the Circuit Court for Baltimore County, the Board of Appeals was affirmed. The Opinion and Mandate of the Court of Special Appeals The appellees appealed the denial of the special exception to this Court. The case before us focused on whether the “grandfather” clause exemption covered a pre-existing pawnshop that was in the process of relocating. Our opinion, filed on July 21, 1999, reversed the rulings of the circuit court and of the Board of Appeals and held that the “grandfather” clause exemption from the one-mile radius limitation, indeed, applied to pawnshops that were in the process of relocating.

The backbone of our opinion was our statutory construction of Baltimore County Council Bill No. 112-95, which had, on July 3, 1995, adopted both 1) the one-mile radius limitation itself, which became BCZR § 436.4; and 2) in § 6 of the Bill, the exemption for pawnshops already in existence. We held ⁵⁸⁷ that both the Board of Appeals and the circuit court had been unduly restrictive in their construction of the exemption. We made it very clear, however, that the exemption for a preexisting and relocating pawnshop was only from the locational requirement specifically and not from the Schultz v. Pritts special exception requirements generally. Those general requirements still had to be satisfied.

This does not mean, however, that Appellant is entitled to have its special exception in this case granted, as a matter of law, on the record before us. There are other statutory requirements requiring favorable findings before a special exception may be approved. (Emphasis supplied). Our opinion then confronted the problem of how to frame an appropriate remand.

We were not sure what it was that the Board of Appeals had actually done. On the one hand, the Board of Appeals noted that the County Council had, in Bill No. 112-95, “provided a statement of purpose and a set of performance standards in regard to the situation for pawnshops” and had used such terms with respect to pawnshops as “adverse effect,” “particular location,” and “disruption of the harmony of the comprehensive plan of zoning.” Using the Schultz v. Pritts standards, the Board had then unequivocally concluded that the proposed use would have an adverse effect above and beyond what it would ordinarily have in any area-it would appear that a pawnshop would have more than the usual adverse effects in the area of the Country Ridge Shopping Center. (Emphasis supplied). After cataloguing the especially sensitive characteristics of the Back River Neck Road neighborhood, the Board, with no mention yet of the locational requirement, asserted what may well have been its dispositive conclusion.

These adverse effects are greater in the subject neighborhood than they would be elsewhere within the zone, which is ⁵⁸⁸ a persuasive reason for denial of the special exception for a third pawnshop in the Essex area. (Emphasis supplied). If, indeed, that is what the Board meant to do, its further mention of the locational requirement was both redundant and unfortunate. As a good rhetorician frequently does, however, the Board chose to unleash maximum firepower.

The barrage of persuasion included, counterproductively it turned out, a mention of the locational factor. The Board neither asserted nor disclaimed that factor as a sine qua non of its decision. This Court in its opinion opined that, if the locational factor had, indeed, influenced the Board’s decision, the Board’s decision was flawed. [A]n existing pawnshop seeking to relocate, though it must otherwise obtain a special exception as to the proposed new location, is entitled to have its special exception application evaluated free of the standards prescribed in Section 436.4. In the last analysis, however, we were not sure if the factor had played a part in the Board’s decision and we concluded, therefore, that a “new consideration” by the Board would be “necessary.” We did not presume, however, to micromanage how the Board should undertake that “new consideration.” The Board’s majority opinion addressed those other requirements somewhat, but did so in a manner that commingled its consideration of those requirements with those of Section 436.4- On remand a new consideration of Appellant’s application will be necessary.

(Emphasis supplied). Our mandate read: CASE REMANDED TO THE CIRCUIT COURT WITH DIRECTION TO REMAND TO THE BOARD OF APPEALS FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION. ⁵⁸⁹ A Complicating Factor: The Change of Personnel The Board that initially denied the special exception on April 30, 1997, consisted of three members. S. Diane Levero and Harry E. Buchheister, Jr., issued the majority opinion. Charles L. Marks was in dissent.

By the time the Board, on remand, issued the decision now under review on December 13, 2000, Ms. Levero and Mr. Buchheister were gone. They had been replaced by Donna M. Felling and Margaret Worrall. Mr. Marks remained as a holdover member of the Board. The County Board of Appeals: Round Two The two new members of the Board of Appeals “reviewed the testimony and record” of the earlier denial of the petition by the Board in 1997.

A full public deliberation was held by the Board on August 16, 2000. The detailed Minutes of that Deliberation reflect discussions among the members about 1) the opinion of the Court of Special Appeals and 2) the remand and its implied directive to examine whether the “adverse impact” in the requested location would be “greater than elsewhere in the zone.” By a two to one vote, the Board again voted to deny the special exception. The majority noted its special reliance on the testimony of Mary Emmerick, the Eastern Sector Coordinator for the Baltimore County Office of Community Conservation. The majority called attention to her testimony about 1) the neighborhood’s “having the highest crime rate in Baltimore County,” 2) the public funding that was being directed into special rehabilitation plans for the neighborhood, 3) some federally funded community “cleanup” programs “in the immediate vicinity of [the] Country Ridge Shopping Center,” and 4) the characteristics of the shopping center as “a neighbor shopping center” because “many people walk to the center because they do not have use of private transportation.” The Minutes also recited that the majority called attention to the testimony of Orlando Yarborough, who operates a nonprofit organization for at-risk families and youth located ⁵⁹⁰ across from the shopping center.

The majority called attention to the testimony of both 1) John J. Dillon, a 29-year veteran of the Office of Planning and Zoning who had been “accepted by the Board as an expert planner in Baltimore County”; and 2) Captain James Johnson of the Baltimore County Police Department and the Precinct Commander in Essex, who testified that “the area immediately around the Country Ridge Shopping Center suffers from some of the highest public safety warning indicators in all of Baltimore County—a scourge of narcotic activity, recently a rash of robberies, socioeconomic decay.” The majority members also noted reliance on “documenting materials” from the Baltimore County Council and the Baltimore County Planning Board. On December 13, 2000, the Board issued a ten-page Majority Opinion and an eight-page Dissenting Opinion by Charles L. Marks. By a vote of two to one, the special exception was again denied. On December 19, 2000, the appellees filed a Motion for Reconsideration with the Board, stressing the procedural point that a de novo hearing should have been held because two members of the Board on remand had not been members of the original 1997 Board.

On January 12, 2001, the Board unanimously denied the Motion for Reconsideration. Reversed by the Circuit Court The appellees promptly appealed both the denial of the special exception and the denial of the reconsideration to the Circuit Court for Baltimore County. The circuit court on June 13, 2001, reversed the Board of Appeals and remanded for a de novo hearing. In rendering its decision, the court stated: This Court concedes that a remand from the CSA does not automatically require the Board to hold a new hearing in every case.

This Court will also concede that a remand to a Board with two new members does not always require a de novo hearing. However, due to the totality of circumstances in this case, it is this Court’s opinion that a de novo hearing was required. Petitioner has persuaded this Court that Prosser is not applicable in this case. There, the ⁵⁹¹ remand was on a limited technical issue.

In the case sub judice, the remand is for a “new consideration” of an application for Special Exception, which unquestionably is not a limited technical issue. It is the opinion of this Court that Clark is applicable as witness credibility and demeanor is certainly an important factor in the Board’s decision to grant or deny an application. The Appealability of The Remand Order People’s Counsel has appealed to us that reversal and remand by the circuit court. With respect to the immediate appealability of such an action, Schultz v. Pritts, 291 Md. 1, 6 , 432 A.2d 1319 (1981), was clear: [A] circuit court’s order remanding a proceeding to an administrative agency is an appealable final order....

When a court remands a proceeding to an administrative agency, the matter reverts to the processes of the agency, and there is nothing further for the court to do. Such an order is an appealable final order because it terminates the judicial proceeding and denies the parties the means of further prosecuting or defending their rights in the judicial proceeding. Standard of Appellate Review Although the judicial act being appealed to us is literally the June 13, 2001 ruling of the Baltimore County Circuit Court, our review will look not so much at the circuit court action as through it to the December 13, 2000 decision of the Baltimore County Board of Appeals. As we explained in Pollard’s Towing, Inc. v. Berman’s Body Frame & Mechanical, Inc., 137 Md.App. 277, 287 , 768 A.2d 131 (2001): At the outset, let it be clear whose decision is being reviewed and by whom.

The review on the ultimate merits is now being conducted by this Court. We are not reviewing the procedural correctness of the earlier review by the circuit court. We are undertaking our own de novo review of the decision of the administrative agency. As Judge Motz explained in Department of Health and Mental Hy ⁵⁹² giene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 (1994): Moreover, it is well recognized in Maryland that, when reviewing administrative decisions, the role of an appellate court is precisely the same as that of the circuit court.

See e.g., Baltimore Lutheran High Sch. Ass’n, Inc. v. Employment Security Admin., 302 Md. 649, 662 , 490 A.2d 701 (1985) (“a reviewing court, be it a circuit court or an appellate court, shall apply the substantial evidence test”). For those reasons, rather than remanding to the circuit court for it to determine, under the correct legal standards, whether the SOPD’s decision is based on substantial evidence, we shall address the question. (Emphasis supplied).

See also Stover v. Prince George’s County, 132 Md.App. 373, 380-81 , 752 A.2d 686 (2000). The decision of the circuit court, therefore, is before us only in a pro forma capacity, as the necessary procedural conduit by which the decision of the administrative agency gets to us for our review. (Emphasis supplied). In this case, moreover, we are reviewing the Board of Appeals’s interpretation of what its own earlier action had been and what its reason had been for so acting.

That is neither a finding of first-level fact nor a ruling of law. Whether considered as something akin to “a mixed question of law and fact” or as the type of judgment call to which the abuse of discretion standard typically applies, it clearly is the kind of decision to which a reviewing court extends great deference. As Judge James Eyler explained in Powell v. Calvert County, 137 Md.App. 425, 432 , 768 A.2d 750 (2001), reversed on other grounds, 368 Md. 400 , 795 A.2d 96 (2002): An agency’s factual findings and its decisions involving mixed questions of law and fact, however, will be given deference such that we cannot substitute our judgment for that of the agency’s. Friends of the Ridge v. Baltimore Gas & Elec.

Co., 120 Md.App. 444, 465 , 707 A.2d 866 (1998), ⁵⁹³ vacated, in part by 352 Md. 645 , 724 A.2d 34 (1999). We will “accept the agency’s conclusions if they are based on substantial evidence and if reasoning minds could reach the same conclusion based on the record.” We need not necessarily agree that the Board of Appeals was correct in its interpretation of its earlier decision. We will affirm its interpretation if there was any reasonable basis that could have supported it. We now look to the Board’s response to our remand.

An Open-Ended Remand Our remand for “further proceedings” was deliberately open-ended. We reject the appellees’ argument that “further proceedings” necessarily implies a de novo hearing, with witnesses being called and arguments being made as if for the first time. “Further proceedings” could, of course, embrace such a procedure but could also embrace other less radical procedures. It was not for us to anticipate what “further proceedings” might be required. That was a determination to be made in the first instance by the Board of Appeals itself, consistent, of course, with the salient principle of law enunciated in our opinion, to wit, consistent with our statutory interpretation of § 6 of County Council Bill No. 112-95.

Beyond that, we did not presume to determine what “proceedings” were required. Theoretically, the Board could have made three or four different determinations as to what “further proceedings” might under the circumstances be appropriate. 1. The Board could have decided simply to clarify its earlier rationale that had been inadvertently ambiguous. It could have said, “We are stating unambiguously NOW what it was that we were intending to say THEN.” This would simply be a present clarification of a past decision, not a new decision.

Powell v. Calvert County, 137 Md.App. 425, 441 , 768 A.2d 750 (2001), rav’d on other grounds, 368 Md. 400 , 795 A.2d 96 (2002) (“If the court cannot tell if the administrative agency was right or wrong ... the court should remand to the agency for further proceedings.”). ⁵⁹⁴ 2. The Board could have decided to make a de novo policy decision based on, for instance, three proper factors, ignoring the fourth factor that had initially been improperly considered. The factors themselves having been correctly established, there would be no need for further fact-finding with respect to them. There remained only to make the ultimate policy determination based on a present consideration of the appropriate number of already established factors.

State Tax Comm’n v. Chesapeake & Potomac Telephone Co., 193 Md. 222, 232 , 66 A.2d 477 (1949) (“Evidence may be said to have been ‘considered’ when it has been reviewed by a court to determine whether any probative force should be given it.”); People’s Counsel v. Mockard, 73 Md.App. 340, 346-17 , 533 A.2d 1344 (1987); People’s Counsel v. Prosser Co., 119 Md.App. 150, 161-62, 180 , 704 A.2d 483 (1998). 3. The Board could have decided that the record before the Board initially was incomplete and that it would be desirable TO SUPPLEMENT that record with additional argument or additional evidence. New witnesses could be called but the old witnesses would not have to be recalled. Lawton T. Sharp Farm v. Somerlock, 52 Md.App. 207, 209-12 , 447 A.2d 500 (1982). 4.

The Board could have decided to ignore the original record and to proceed de novo with an entirely new hearing as if the first hearing had never occurred. The first two of those procedural options on remand would almost always be offered as a combined package of alternatives. Under the first optional procedure, if the Board of Appeals were to say, “We had decided and we meant to convey that the other factors, even absent the locational factor, were sufficient for us to deny the special exception,” that clarification in the affirmative would be enough and there would be no need to proceed to the second optional procedure. Conversely, if the Board of Appeals were to say, “We had decided and we meant to convey that the aggregate of all of the factors, including the locational factor, was indispensable to our decision to deny the special exception,” that clarification ⁵⁹⁵ in the negative would be enough and there would be no need to proceed to the second optional procedure.

Neither of those clarifications would represent a new decision. If, on the other hand, the Board of Appeals were to say, “We never gave any thought to what we would do, one way or the other, on the basis of less than all of the factors,” then it would be necessary for the Board of Appeals to proceed from procedural option one to procedural option two, if it should deem option two adequate for its task on remand. As we read what the Board of Appeals did on remand, especially in its denial of the appellees’ Motion for Reconsideration wherein it provided introspective insight into its own earlier thinking, we conclude that it chose to follow the first of the four procedures listed above. Alternatively, it is conceivable that it was utilizing the second procedure.

Our analysis, therefore, will consist of examining whether those two procedures were, in the circumstances of this case, within the Board’s rightful prerogative. If they were, whichever of the two alternative procedures was actually utilized is not of critical importance. Two Distinct Subissues Two subissues are intertwined. We deem it helpful to isolate, them for analysis.

The first is that of whether either or both of the procedures possibly utilized by the Board on remand would have been within its rightful prerogative if, hypothetically, there had been no change in the personnel making up the Board. The second and distinct issue will then be whether a change in a critical voting majority (or, indeed, any change) in the make-up of the Board might ipso facto render a procedure on remand illegitimate that would otherwise have been, without such a change in personnel, legitimate. Remand Procedures By An Unchanged Board Assuming, arguendo, that the members constituting the administrative tribunal remain unchanged, if an appellate court is in doubt as to why an administrative agency did what ⁵⁹⁶ it did, as we were in this case, it is appropriate to remand the case to the agency for nothing more than 1) a clarification of or 2) an amplification of its reasoning. In Powell v. Calvert County, 137 Md.App. 425, 429 , 768 A.2d 750 (2001), reversed on other grounds, 368 Md. 400 , 795 A.2d 96 (2002), we approved precisely such a procedure.

As a result of an earlier petition for judicial review, this Court, in an opinion filed on April 23, 1999, vacated the board’s approval and remanded the case to the Board for further proceedings on the ground that the reasons given by the Board were insufficient to permit appellate review. On remand, without receiving additional evidence or argument, the Board amended its opinion in response to this Court’s mandate and granted the special exception. The case is now before us as a result of a second petition for judicial review. We hold that the evidence and reasons given by the Board in its amended opinion are, as explained herein, legally sufficient to support the Board’s decision.

(Emphasis supplied). The opinion of Judge James Eyler made it very clear that an appellate court may remand to an administrative agency simply so that the agency can clarify its reasoning. A decision of an administrative agency should be upheld only if it can be sustained on the findings and reasons given. Montgomery County v. Stevens, 337 Md. 471, 482 , 654 A.2d 877 (1995); Harford County v. Preston, [Inc.,] 322 Md. 493, 505-06 , 588 A.2d 772 (1991).

If the record fails to reflect such findings or reasons, the appropriate remedy is a remand to the agency with directions to comply with the requirement. Stevens, 337 Md. at 481-82, 482 , 654 A.2d 877 . If the court cannot tell if the administrative agency was right or wrong, or to put it more accurately, whether it committed error because the court cannot discern the basis of the agency’s decision to determine if it was proper, the court should remand to the agency for further proceedings. ⁵⁹⁷ 137 Md.App. at 441, 768 A.2d 750 (emphasis supplied). See also People’s Counsel v. Mockard, 73 Md.App. 340 , 533 A.2d 1344 (1987); Mortimer v. Howard Research, 83 Md.App. 432, 442 , 575 A.2d 750 (1990).

Assuming again, arguendo, that the membership of the Board of Appeals was the same when it received the case on remand as it had been when it considered the case initially, we conclude that it would have been -within the legitimate prerogative of the Board to have proceeded under any of the four procedural options listed above. Even counsel for the pawnshop conceded as much in his final argument before the Baltimore County Circuit Court. I’ll concede that, your Honor, if there were the three original members who heard the case and that it was remanded, they could make those findings from their recollection of the witnesses and the evidence. The Board’s Action on Remand Was a Clarification Our reading of the 18-page opinion of the Board of Appeals following its consideration of the case on remand, and our further reading of the 6-page opinion of the Board in denying the appellees’ Motion for a Reconsideration, convinces us that what the Board did on remand was no more than to clarify what it had earlier done on April 30, 1997.

The Board made it clear that its initial 1997 denial of the special exception had not depended on the one-mile radius limitation and that it had not considered that limitation to be a critical factor in its decision. The December 13, 2000 opinion of the Board, to be sure, is not a model of polished appellate draftsmanship. At times, it slides into linguistic habits that are more appropriate to fact-finding. We are not unmindful, however, that even trained appellate courts also occasionally misuse the verb “find” when they