Singley v. Frederick County

943 A.2d 636 (2008) 178 Md. App. 636 Susan Lane SINGLEY, et al. v. COUNTY COMMISSIONERS OF FREDERICK COUNTY, Maryland, et al. No. 2536, Sept. Term, 2006. Court of Special Appeals of Maryland. March 4, 2008. G. Macy Nelson (Paul N. DeSantis on the brief), Towson, for Appellant.

Thomas O. Mills and Michael Chomel (John S. Mathias, County Atty. on the brief), Frederick, for Appellee. Panel: KRAUSER, C.J., DEBORAH S. EYLER and ADKINS, JJ. DEBORAH S. EYLER, Judge. The Frederick County Board of Appeals ("Board") granted a special exception to Sugarloaf Properties, LLC ("Sugarloaf") to use its 25 ± acre property ("Property") for a Commercial Greenhouse/Nursery.

The Property is situated in the Agricultural Zone. In the Circuit Court for Frederick County, Susan Singley and other neighbors of the Property ("Protestants"), a total of 54 individuals and one organization, the Eternal Springs Association, brought an action for judicial review, challenging the Board's decision. The court upheld the decision. The Protestants are the appellants in this Court.

They raise four questions for review, which we have rephrased as follows: I. Did the Board err in granting the special exception because the proposed use is not a Commercial ⁶³⁹ Greenhouse/Nursery under the Frederick County Code?

II

Did the Board err in granting the special exception because the proposed use does not meet the standard set forth in Schultz v. Pritts, 291 Md. 1 , 432 A.2d 1319 (1981)?

III

Did the Board err in granting the special exception because the requirements of Frederick County Code section 1-19-48(B) were not met?

IV

Did the Board err in granting the special exception because the proposed use does not meet the minimum road frontage requirements of Frederick County Code section 1-19-138(c)? Sugarloaf and the Frederick County Commissioners are the appellees in this Court. For the following reasons, we shall affirm the judgment of the circuit court. APPLICABLE ZONING ORDINANCE SECTIONS AND HOLDING OF SCHULTZ V. PRITTS Frederick County Code ("Code") section 1-19-48, entitled "Special Exceptions," provides, in pertinent part: (B) A grant of a special exception is basically a matter of development policy, rather than an appeal based on administrative error or on hardship in a particular case.

The Board of Appeals should consider the relation of the proposed use to the existing and future development patterns. A special exception shall be granted when the Board finds that: (1) The proposed use is consistent with the purpose and intent of the Comprehensive Development Plan and of this chapter; and (2) The nature and intensity of the operations involved in or conducted in connection with it and the size of the site in relation to it are such that the proposed use will be in harmony with the appropriate and orderly development of the neighborhood in which it is located; and (3) Operations in connection with any special exception use will not be more objectionable to nearby properties by reason of noise, fumes, vibration, or other characteristics than would be the operations of any permitted use not requiring special exception approval; and (4) Parking areas will comply with the off street parking regulations of this chapter and will be screened from adjoining residential uses, and the entrance and exit drives shall be laid out so as to achieve maximum safety. (5) The road system providing access to the proposed use is adequate to serve the site for the intended use. (C) In addition to the general requirements listed above, uses requiring a special exception shall be subject to the specific requirements for each use outlined in §§ 1-19-376 through 1-19-394 of this Code.

(D) A special exception approval may be granted in accordance with the general and specific requirements enumerated in this section. The Board of Appeals may, in addition to the other requirements imposed under this chapter[,] and is hereby authorized to[,] add to the specific requirements any additional conditions that it may deem necessary to protect adjacent properties, the general neighborhood, and its residents or workers. . . . Code section 1-19-289 permits the grant of a special exception for "Commercial ⁶⁴⁰ Greenhouses and Nurseries," in the Agricultural Zone. The seminal Maryland case about special exceptions in zoning law is Schultz v. Pritts, supra, 291 Md. 1 , 432 A.2d 1319 .

There, the Court stated: The special exception use is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception use is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any facts or circumstances negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan. Whereas, the applicant has the burden of adducing testimony which will show that his use meets the prescribed standards and requirements, he does not have the burden of establishing affirmatively that his proposed use would be a benefit to the community.

If he shows to the satisfaction of the Board that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest, he has met his burden. The extent of any harm or disturbance to the neighboring area and uses is, of course, material. If the evidence makes the question of harm and disturbance or the question of the disruption of the harmony of the comprehensive plan of zoning fairly debatable, the matter is one for the Board to decide. But if there is no probative evidence of harm or disturbance in light of the nature of the zone involved or of factors causing disharmony to the operation of the comprehensive plan, a denial of an application for a special exception use is arbitrary, capricious, and illegal.

Id. at 11-12 , 432 A.2d 1319 (emphasis in original). After reviewing the case law about adverse effect, the Schultz Court explained: [A] special exception use has an adverse effect and must be denied when it is determined from the facts and circumstances that the grant of the requested special exception use would result in an adverse effect upon adjoining and surrounding properties unique and different from the adverse effect that would otherwise result from the development of such a special exception use located anywhere within the zone. . . . [T]he appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone. Id. at 15 , 432 A.2d 1319 (emphasis added). FACTS AND PROCEEDINGS The Property is raw land, owned by Sugarloaf and leased to Holston Brothers.

On November 23, 2004, Sugarloaf filed an application for special exception with the Board, seeking to use the Property for a commercial greenhouse and nursery, with added snow removal operations off-season. On December 20, 2004, the Board conducted a site visit. Three days later, on December 23, it held a public hearing, at the conclusion of which the members voted to ⁶⁴¹ grant the special exception with 12 conditions and restrictions. [1] The Board's written opinion to that effect was issued on January 27, 2005. The Protestants challenged the Board's decision in an action for judicial review in the Circuit Court for Frederick County.

On October 6, 2005, the court issued a memorandum opinion and order vacating the Board's decision and remanding the matter to the Board for further proceedings. Specifically, the court 1) agreed with the Board's decision that the proposed use meets the definition of a "commercial greenhouse/nursery" in the Code; 2) determined that whether land used for commercial purposes had to be located on a lot abutting a paved public road for 80 feet was not an issue ripe for decision; 3) found that certain procedural issues raised before the Board lacked merit; 4) determined that, in finding that the special exception request satisfied the criteria of the Code, the Board's decision failed to articulate reasons, as required by case law; and 5) determined that the Board failed to articulate how the proposed use complies with the standard set forth in Schultz v. Pritts . On remand, the Board reviewed the transcript of, and evidence taken at, the December 23, 2004 hearing. Then, on February 23, 2006, it held a public hearing, at the conclusion of which it made findings.

On March 23, 2006, the Board issued a 10-page memorandum opinion setting forth its final decision granting the special exception. The Protestants again filed an action for judicial review on April 19, 2006. On December 28, 2006, the court issued a memorandum opinion and order affirming the Board's final decision. The Protestants noted a timely appeal.

We shall include additional facts in our discussion of the issues. DISCUSSION I. (a) In their initial action for judicial review, the Protestants argued, among other issues, that the Board's decision that the proposed use of the Property is a "Commercial Greenhouse and Nursery," within the meaning of that term in Code section 1-19-289, was legally incorrect and not supported by substantial evidence in the record. The court ruled that the Board's decision on that point was correct and was factually supported.

As noted above, the court nevertheless vacated the grant of the special exception and remanded the matter to the Board to articulate the basis for its other findings. ⁶⁴² The Protestants did not note an appeal to this Court from that part of the court's decision approving the Board's finding that the proposed use is a "Commercial Greenhouse and Nursery." In their second circuit court action for judicial review, the Protestants did not re-raise that issue, as it already was decided. Now, on appeal to this Court, the Protestants challenge the Board's decision, in the first action for judicial review, that the proposed use meets the definition of a "Commercial Greenhouse and Nursery" in the Code. Sugarloaf responds that the Protestants waived this issue for appellate review by not taking an appeal from the circuit court's ruling on the issue in 2005. It maintains that, under Schultz v. Pritts, supra , the circuit court's judgment in the first action for judicial review was a final judgment, and thus was appealable under Md.Code (1974, 2006 Repl.Vol.), section 12-301 of the Courts and Judicial Proceedings Article ("CJ"); and, therefore, by not taking an appeal at that time from the part of the judgment approving the Board's "Commercial Greenhouse and Nursery" decision, the Protestants waived any appellate challenge to that issue.

In addition to Schultz v. Pritts , Sugarloaf relies upon Murray Int'l v. Graham, 315 Md. 543 , 555 A.2d 502 (1989), and Chestnut Real Estate P'ship v. Huber, 148 Md.App. 190 , 811 A.2d 389 (2002), in support. The Board advances a similar but not identical procedural argument. It maintains that by not taking an immediate appeal from the circuit court's decision in the initial action for judicial review affirming the Board's "Commercial Greenhouse and Nursery" finding, the Protestants "abandoned" that issue for appellate review. It cites Mayor & City Council of Baltimore v. Dembo, Inc., 123 Md.App. 527 , 719 A.2d 1007 (1998), in support.

In response, the Protestants argue that, although they could have taken an appeal from the circuit court's judgment in the initial action for judicial review, they were not required to do so; and therefore they neither waived nor abandoned an appellate challenge to the circuit court's rulings in the first action for judicial review, including its approval of the "Commercial Greenhouse and Nursery" decision of the Board. They rely upon Brewster v. Woodhaven Bldg. & Dev., Inc., 360 Md. 602 , 759 A.2d 738 (2000), and cases cited therein, for support. In our view, the Protestants have the better part of this argument. In the case at bar, there are two levels of review as of right of the Board's final administrative agency decisions.

Pursuant to the Administrative Procedure Act, Md. Code (1984, 2004 Repl.Vol.), section 10-222(c) of the State Government Article ("SG"), and Rules 7-201, et seq., the circuit court has original jurisdiction to review the Board's decisions in an action for judicial review. Thereafter, this Court has appellate jurisdiction to review the judgment of the circuit court in the action for judicial review. See SG § 10-223(b). In both the circuit court action for judicial review and in this appeal from the judgment in that action the task on review is essentially the same: to determine whether the agency decision is supported by substantial evidence in the record and is legally correct.

Cinque v. Montgomery County Planning Bd., 173 Md.App. 349, 359-60 , 918 A.2d 1254 (2007). In two cases that can be analogized to the case at bar, in that they arise in the context of a two-tier review structure, the Court of Appeals has had occasion to consider whether a party's failure to immediately challenge a first-level reviewer's decision, when that reviewer affirmed in part but remanded in part the lower body's ⁶⁴³ decision, precludes a subsequent challenge, in the same case, to the first-level reviewer's decision. In Loveday v. State, 296 Md. 226 , 462 A.2d 58 (1983), a circuit court in a criminal case refused to impose what the State maintained was a mandatory 25-year sentence for the defendant's robbery conviction and instead imposed a 10-year sentence. The State appealed, and this Court, in an unreported opinion, held that a mandatory 25-year sentence was applicable.

We vacated the sentence and remanded the case to the circuit court for further sentencing proceedings. The defendant did not file an application for writ of certiorari in the Court of Appeals. On remand, the sentencing judge reluctantly imposed a 25-year sentence. The defendant noted an appeal, challenging the imposition of the 25-year sentence on several grounds.

This Court affirmed the judgment. The defendant filed a petition for certiorari, which was granted. The first question the Court of Appeals addressed was whether it was precluded from deciding the mandatory sentencing issue because the issue had been decided by this Court in the first appeal but had not been challenged thereafter by way of a petition for certiorari. The Court analyzed the issue under the law of the case doctrine, by which a decision of a superior court on an issue in a given case is binding on remand upon the lower court in the same case.

See Reier v. State Dept. of Assessments & Taxation, 397 Md. 2, 20-21 , 915 A.2d 970 (2007); Schisler v. State, 177 Md.App. 731, 742 , 938 A.2d 57 (2007). The Court concluded that that doctrine does not apply and bind it to accept a decision of this Court on an issue rendered in an earlier appeal in the same case, but not challenged by means of a petition for certiorari when made. Specifically, the Court observed that "the law of the case doctrine does not apply to" an appellate court such as itself, that "is required to review judgments of subordinate courts." Loveday, supra, 296 Md. at 234 , 462 A.2d 58 . Accordingly, it was not precluded from addressing and deciding the question whether a mandatory 25-year sentence applied to the defendant's conviction, even though the defendant had not sought Court of Appeals review of that issue when this Court first decided it, prior to the remand.

In Pub. Serv. Comm'n v. Md. People's Counsel, 309 Md. 1 , 522 A.2d 369 (1987), the Court engaged in a similar analysis. In that case, People's Counsel brought a circuit court action against the Public Service Commission ("PSC") challenging the constitutionality of certain regulations the PSC had adopted.

The action was brought pursuant to a specific statutory section of former Article 78 of the Maryland Code. The circuit court dismissed the action upon a finding that People's Counsel did not have standing to bring suit under that statutory section. People's Counsel took an appeal to this Court, which held in an unreported opinion that the circuit court's standing decision was correct but that the dismissal should have been granted with leave to amend to sue under another statutory section, which did afford standing. On remand, People's Counsel amended the complaint.

Ultimately, the circuit court ruled on the constitutional issue, deciding that the regulations violated due process. The PSC noted an appeal to this Court. Before we issued a decision, the Court of Appeals granted certiorari on its own motion. Before the Court of Appeals, the PSC argued, among other issues, that the Court of Appeals could not address the issue of standing, because People's Counsel had not sought certiorari review of this Court's ⁶⁴⁴ standing decision in the first appeal.

The Court rejected that argument, reasoning that because a judgment of this Court in a prior appeal in the same case is not the law of the case for the Court of Appeals on review of a second judgment in the same case, it could address the issue of standing. Although not analyzed in the context of the law of the case doctrine, Brewster, supra, 360 Md. at 619 , 759 A.2d 738 , also is analogous and lends strong support to the position that, in the case at bar, the "Greenhouse/Nursery" issue has not been waived or abandoned for appellate review. In Brewster , certain riparian landowners in Baltimore County sued certain businesses in Carroll County, asserting that they had polluted the common stream connecting the parties' properties, thereby damaging the landowners' riparian rights. The suit was filed in the Circuit Court for Baltimore County.

The defendant businesses moved to dismiss for lack of venue and on the doctrine of forum non conveniens. The court accepted the forum non conveniens argument and transferred the case to the Circuit Court for Carroll County. The landowners noted an appeal to this Court from the transfer order. We dismissed it on the ground that the order was not a final judgment, under CJ section 12-301, and was not otherwise appealable.

The Court of Appeals granted certiorari and reversed. It held that an order transferring venue of a case from one circuit court to another is a final judgment because it terminates the litigation in the particular transferor court; and therefore the party opposing the transfer may challenge it by way of an immediate appeal of that final judgment. The Court further held that the party opposing the transfer may wait to challenge it in an appeal from the final judgment entered at the conclusion of the litigation in the transferee court. With respect to the first aspect of its holding, that the transfer order was a final judgment, the Court of Appeals observed that a final judgment may be a judgment that terminates the litigation in a particular court or forum, notwithstanding that the litigation will continue in another court or forum.

In support, it cited three of its cases holding that a circuit court order in a judicial review action remanding the case to the agency for further proceedings is a final judgment, as it terminates the litigation in the circuit court. See E. Stainless Steel v. Nicholson, 306 Md. 492, 501-02 , 510 A.2d 248 (1986); Brown v. Baer, 291 Md. 377, 385-86 , 435 A.2d 96 (1981); Dep't of Pub. Safety & Corr. Servs. v. LeVan, 288 Md. 533, 543-44 , 419 A.2d 1052 (1980).

With respect to the second aspect of its holding, that the party opposing the transfer order may take an immediate appeal or may challenge the transfer ruling at the conclusion of the litigation in the transferee court, the Court observed: We have often permitted an appeal from a judgment ultimately disposing of a case based on an issue that could have been, but was not, made the basis of an earlier appeal. Probably the circumstances closest to the present case is when a party first contends before the trial court that it should not be ordered to arbitrate, is ordered to arbitrate, does not take an immediate appeal from that order terminating the proceeding in the trial court, submits to arbitration, and appeals the issue only after an arbitration award has been confirmed by the trial court. Brewster, supra, 360 Md. at 619 , 759 A.2d 738 (citing Curtis G. Testerman Co. v. Buck, 340 Md. 569 , 667 A.2d 649 (1995)); Bd. of Educ. for Dorchester County v. Hubbard, 305 Md. 774, 786-87 , 506 A.2d ⁶⁴⁵ 625 (1986). Finally, citing Pub.

Serv. Comm'n v. Maryland People's Counsel, supra, 309 Md. 1 , 522 A.2d 369 , and Loveday v. State, supra, 296 Md. 226 , 462 A.2d 58 , the Court pointed out that "[s]till another situation in which a party has a right to seek appellate review of a judgment deciding an issue, but may forego that right and later raise the issue by seeking appellate review of a subsequent judgment, involves review of judgments by intermediate appellate courts remanding cases." Brewster, supra, 360 Md. at 621-22 , 759 A.2d 738 . The procedural posture of the case at bar is akin to the cases discussed by the Court in Brewster. The circuit court's judgment in the initial action for judicial review approving the Board's ruling that the proposed use is a "Greenhouse/Nursery" under the Code but vacating the grant of the special exception and remanding the matter to the Board for further proceedings on other issues was a final judgment, and thus was subject to appeal when it was entered.

The appellees had the right to forego taking an appeal from the circuit court's judgment, however, and to wait until after the circuit court entered its judgment in the second action for judicial review, after the remand before the Board, to challenge the Board's "Greenhouse/Nursery" decision in this Court. Not only do Brewster and the other cases discussed above compel that holding but also the holding advances the well established Maryland policy against piecemeal appeals. See In re: Katherine C., 390 Md. 554, 558 , 890 A.2d 295 (2006). The cases that the appellees rely upon to support their waiver and abandonment arguments are distinguishable or not relevant.

Murray Int'l v. Graham, supra, 315 Md. 543 , 555 A.2d 502 , and Chestnut Real Estate P'ship v. Huber, supra, 148 Md. App. 190 , 811 A.2d 389 , concern the circumstances under which the decision of an administrative agency will have res judicata or collateral estoppel effect. Those doctrines are not in play given the posture of the case at bar, i.e., that there is but one case being litigated between the parties. Mayor & City Council of Baltimore v. Dembo, Inc., supra, 123 Md.App. 527 , 719 A.2d 1007 , holds that a party to an appeal to this Court from a circuit court action for judicial review of an agency decision may waive the party's right to argue an issue on appeal if the issue was not raised or decided by the circuit court. In the case at bar, the issue was raised in the circuit court, in the first action for judicial review.

Accordingly, the issue of whether the Board erred in ruling that the proposed use of the Property is a "Greenhouse/Nursery," as defined in the Code, is properly before us in this appeal. (b) The Protestants contend that the Board erred in ruling that Sugarloaf's proposed use of the Property is a "Commercial Greenhouse and Nursery" so as to be permitted by special exception in the Agricultural Zone, under Code section 1-19-289. They assert that the Board's ruling on this issue is purely one of law, that should be accorded no deference on review; that the various uses that will take place on the Property as proposed by Sugarloaf do not fall within the controlling definitions of "greenhouse" and "nursery"; that the Board should not have taken into account that there are other similar, though smaller, landscaping businesses that are located nearby and that were granted special exceptions; and finally that, because some of the structures Sugarloaf intends to build at the site will meet the definitions of uses under the Code that are not permitted generally or by special exception in the Agricultural Zone, for instance, a "contractor's office," the rules of statutory construction ⁶⁴⁶ compel a decision that Sugarloaf's proposed use of the Property does not fall within the meaning of "Commercial Greenhouse and Nursery." A court's role in reviewing an adjudicatory decision of an administrative agency is to determine whether there is substantial evidence in the agency record as a whole to support the agency's factual findings and conclusions and whether the agency's decision is based upon an erroneous conclusion of law. Marzullo v. Kahl, 366 Md. 158, 171 , 783 A.2d 169