Ross v. Mr. Lucky, LLC

DEBORAH S. EYLER, J. This appeal concerns real property in Solomons, Calvert County, known as “the Tiki Bar.” Since 2005, the Tiki Bar property has been owned by Mr. Lucky, LLC (“Mr. Lucky”), the appellee. Ronald J. Ross, the appellant, owns residential property that borders a segment of the western boundary of the Tiki Bar property. Mr. Lucky filed a site plan application with the Calvert County Department of Planning and Zoning (“DPZ”) and the Calvert County Planning Commission (“CCPC”) reflecting planned improvements for the Tiki Bar property. After the plan was denied by an administrative officer, Mr. Lucky appealed to the Calvert County Board of Appeals (“Board”).

The matter was bifurcated. In the part of the matter we are concerned with in this appeal, the Board held a de novo hearing and made certain findings favorable to Mr. Lucky (which we shall explain below). Ross brought an action for judicial review in the Circuit Court for Calvert County, which upheld the Board’s decision. This appeal followed.

Ross poses several questions for review, which we have reordered, combined, and reworded as follows: I. Did the Board err by denying him the opportunity to cross-examine Mr. Lucky’s witnesses?

II

Did the Board have statutory authority to modify a site plan, or to permit an illegal use of a parking lot on the Tiki Bar property?

II

Did the Board err, in granting certain variances? ⁵¹⁵ IV. Must the Board’s decision be vacated because one of its members refused to recuse himself from this case? 1 For the reasons that follow, we answer Question I in the affirmative. Accordingly, we shall reverse the judgment of the circuit court and remand the case to that court with instructions to vacate the decision of the Board and remand the matter to the Board for further proceedings not inconsistent with this opinion. Our disposition of Question I makes it unnecessary to address the remaining questions.

FACTS AND PROCEEDINGS The Tiki Bar property occupies 3.26 acres zoned in the Solomons Town Center/B4 planning sub-area of Calvert County. It is comprised of an outdoor tavern (the actual Tiki Bar); a restaurant building; a long and narrow structure once used as a motel; several retail sales buildings; and numerous outbuildings and sheds. 2 ⁵¹⁶ The main structures on the TiM Bar property back up to the lot’s perimeter and face each other. Between them is a central outdoor area that is paved over for parking, although, according to some of the evidence presented, it has not been used for parking for quite some time. Rather, that central outdoor area, often called the “general patron area,” is used as an outdoor gathering place for patrons of the Tiki Bar property.

The north side of the property is bounded by Charles Street, which is an extension of Route 2 in Solomons. The west side of the property is bordered by the back yards of a number of waterfront residences, including that owned by Ross and his wife. The east side of the property is bordered by other commercial properties. A parking area occupies the south side of the property.

The Tiki Bar property first was developed as a tavern in the early 1980’s, before the 1986 enactment of the Solomons Town Center Zoning Ordinance (“SZO”). The outdoor tavern is a nonconforming use and the restaurant, outbuildings, sheds, and former motel do not meet the 50-foot setback requirements of the SZO. Many of the structures on the west side of the property are situated within that setback area. In April 2006, the Board granted Mr. Lucky’s request for an expansion of the nonconforming tavern building to allow two kiosk bars within the general patron area.

(BOA Case 06-3299.) The Board’s decision was upheld on judicial review in the Circuit Court for Calvert County. Mr. Lucky filed the site plan application at issue in this appeal in June 2006. As proposed, the site plan showed certain modifications to the physical structures on the property and to the uses for the property. Primarily, Mr. Lucky was planning to further develop the property’s “Tiki Village” theme by covering the general patron area with sand and adding wooden walkways, potted plants, and other features that would create a tropical beach setting. 3 It planned to use the motel structure for office space, to expand the restaurant ⁵¹⁷ building to include an already-existing structure next to it, to convert one of the accessory sheds into a restroom, and to use other of the outbuildings for retail uses.

The site plan application was denied by an administrative hearing officer on the ground that on its western side the Tiki Bar property was in violation of a 50-foot setback requirement of the SZO; that certain commercial uses for those buildings were in violation of the 50-foot setback restriction; that Mr. Lucky is not permitted to use adjacent Maltby Street (a public right of way) for any purpose; and that a proposed exterior accessory use on the site plan was an impermissible expansion of a nonconforming structure (the outdoor tavern). On December 21, 2006, Mr. Lucky challenged the administrative hearing officer’s decision before the Board of Appeals. The Board bifurcated the matter into Case No. 07-3403A (“Case A”) and Case No. 07-3403 (“Case B”). On February 15, 2007, the Board held a de novo hearing in Case A. The County Attorney stipulated that all the buildings shown on the site plan preexisted the enactment of the SZO, and therefore the existence of the 50-foot setback.

The Board issued its written decision in Case A on March 14, 2007, ruling, among other things, that the “sheds and accessory buildings along the west property line, behind the restaurant and toward the rear of the subject property, have been in existence prior to the adoption of the [SZO], and are therefore considered to be pre-existing, non-conforming uses.” Ross filed a petition for judicial review of that decision in the Circuit Court for Calvert County, which affirmed the Board. Ross noted an appeal to this Court. Our decision in that case is still pending. On April 12, 2007, the Board held a de novo hearing in Case B, which is the genesis of this appeal.

At the outset of the proceedings, Ross reminded the Chairman that he had filed a motion to intervene as a party. The Board voted to deny the motion. Also before the evidentiary phase of the hearing, Ross asked for, among other things, permission to examine the witnesses called by the parties. The Board denied that request and voted that the hearing would be conducted in ⁵¹⁸ accordance with the Board Rules, except that individuals wishing to make a presentation each would have five minutes to do so instead of three minutes.

Mr. Lucky called seven witnesses. The first, Dan Kelsh, is a professional engineer who testified as an expert. At the close of Kelsh’s direct examination, Ross asked permission to cross-examine the witness, and was told by the Chairman that he could not do so. The Chairman made it clear that Ross would not be permitted to cross-examine any of Mr. Lucky’s witnesses and that any further request would be futile. 4 Mr. Lucky’s second witness was Pat Donovan, one of the principals in the LLC.

The remaining witnesses for Mr. Lucky were people who lived nearby and had longtime familiarity with the Tiki Bar property and how it had been used since its inception. The Board called and asked questions of David Humphreys, the Planning Commission Administrator. It then allowed comments by members of the public. Ross spoke first.

He moved 51 documents into evidence. After his five minutes were up, he was cross-examined by counsel for Mr. Lucky. Seven additional members of the public, including Faith Ross, Ross’s wife, made comments. At the conclusion of the hearing, the record was held open for ten days for people to submit any additional written materials they wished to have considered. ⁵¹⁹ On May 3, 2007, the Board met and officially accepted into evidence the written material that had been submitted within ten days of the close of the hearing.

The Board then read into the record its decision in the case. The written decision itself was issued on May 9, 2007. The Board ruled that the proposed retail uses for the buildings in the 50-foot setback area are permitted commercial uses within the zone, for which no variance is necessary, and that, “in the interest of clarity and closure on this matter, the Board concludes that the criteria for the subject variances as set forth in Section 11-1 .OLA of the Calvert County Zoning Ordinance have been met.” With respect to the “general patron area,” the Board ruled that the entire area had been used as a congregation place beginning before the adoption of the SZO, and therefore the continued use of the entire general patron area for that purpose was not an expansion of a nonconforming use and did not require Board approval. Finally, the Board found that Mr. Lucky had not demonstrated that any proposed expansion of the nonconforming general patron area beyond the entire existing area met the criteria for expansion of a nonconforming use.

Accordingly, the Board’s order granted the variances in the 50-foot setback requirements for the nonconforming buildings along the western boundary of the property with the allowed commercial uses (even though according to the Board it was not necessary to do so), affirmed the existing area of the general outdoor patron area, and denied any expansion of that area. STANDARD OF REVIEW When reviewing an appeal from a circuit court’s judicial review of an administrative agency decision, we review the agency’s decision, applying the same standard as the circuit court. Trinity Assembly of God of Balt. City, Inc. v. People’s Counsel for Balt.

County, 407 Md. 53, 77 , 962 A.2d 404 (2008); P Overlook, LLLP v. Bd. of County Comm’rs of Wash. County, 183 Md.App. 233, 247 , 960 A.2d 1241 (2008). ⁵²⁰ As to factual determinations, we must affirm if there is substantial evidence to support the agency’s findings. Trinity Assembly, 407 Md. at 78 , 962 A.2d 404 ; P Overlook, 183 Md.App. at 247 , 960 A.2d 1241 . “Substantial evidence” is “ ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” People’s Counsel for Balt. County v. Loyola Coll. in Md., 406 Md. 54, 67 , 956 A.2d 166 (2008) (quoting People’s Counsel for Balt.

County v. Surina, 400 Md. 662, 681 , 929 A.2d 899 (2007)). We review an administrative agency’s conclusions of law de novo, although we give weight to an agency’s interpretation of a statute or ordinance it is charged with enforcing. See, e.g., Md. Aviation Admin. v. Noland, 386 Md. 556, 572 , 873 A.2d 1145 (2005) (“ ‘[A]n administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.’ ”) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69 , 729 A.2d 376 (1999)); Marzullo v. Kahl, 366 Md. 158, 172 , 783 A.2d 169 (2001) (same). See also P Overlook, 183 Md.App. at 248 , 960 A.2d 1241 (“[I]n determining whether the agency was erroneous in its legal conclusion, some deference is given to the agency and its expertise in administering the law is considered.”).

If the agency draws legal conclusions based on matters outside its area of expertise, however, we apply de novo review. Loyola Coll. in Md., 406 Md. at 67-68 , 956 A.2d 166 . When the agency acts in a discretionary matter, a more deferential standard applies. Spencer v. Md. State Bd. of Pharmacy, 380 Md. 515, 529-30 , 846 A.2d 341 (2004).

Discretionary acts of an administrative agency are reviewed under the arbitrary and capricious standard. Id. at 530-31 , 846 A.2d 341 . DISCUSSION Ross contends the Board denied him due process of law, in violation of Article 24 of the Maryland Declaration of Rights, by denying him the opportunity to cross-examine Mr. Lucky’s ⁵²¹ witnesses. 5 Mr. Lucky counters that the Board merely enforced its own rules (except that it granted Ross an additional two minutes to make his presentation), and that Ross was not entitled to cross-examine its (Mr. Lucky’s) witnesses under those rules. Ross maintains that, under Dorsey v. Bethel A.M.E. Church, 375 Md. 59 , 825 A.2d 388 (2003), he was a party to the proceeding before the Board and, as such, he was constitutionally entitled to an opportunity to cross-examine the witnesses called by Mr. Lucky, as the applicant.

In Dorsey , the Court explained that, “[ajbsent a statute or a reasonable regulation specifying criteria for administrative standing, one may become a party to an administrative proceeding rather easily.” Id. at 72 , 825 A.2d 388 (quoting Sugarloaf Citizens’ Ass’n v. Dep’t of Env’t, 344 Md. 271, 286-87 , 686 A.2d 605 (1996)). The Court listed examples of the level of participation necessary to confer standing in an administrative proceeding: submitting one’s name in writing as a protestant; testifying before