Chesapeake Bay Found., Inc. v. DCW Dutchship Island, LLC

CHESAPEAKE BAY FOUNDATION, INC.AND MAGOTHY RIVER ASSOCIATION, INC. et al. v. DCW DUTCHSHIP ISLAND, LLC, et al.

No. 77

COURT OF APPEALS OF MARYLAND

Argued: April 4, 2014

September Term, 2013

August 4, 2014

ADMINISTRATIVE LAW — STANDING TO PARTICIPATE BEFORE COUNTY BOARD OF APPEALS: A person or group does not have standing to appeal an administrative agency's decision solely because a person or group with similar interests in the litigation is also participating in the administrative appeal.

MD. CODE (2013, 2013 REPL. VOL.), § 10-305 OF THE LOCAL GOVERNMENT ARTICLE — EXPRESS POWERS ACT — HOME RULE COUNTY POWER TO CREATE RULES OF PROCEDURE FOR BOARD OF APPEALS: The Express Powers Act's broad grant of power to Home Rule counties to create a Board of Appeals and grant original or appellate jurisdiction to that board allows the county to create reasonable rules of procedure for that board. This includes the ability to create rules of appellate standing and set conditions precedent to access to a board of appeals that is given appellate jurisdiction. Thus, the Anne Arundel County Board of Appeals rule requiring that persons be aggrieved and have participated in the hearing before the Administrative Hearing Officer does not exceed the Express Powers Act's broad grant of authority.

ADMINISTRATIVE LAW — DUE PROCESS — RIGHT TO CROSS-EXAMINE WITNESSES: The rule requiring that administrative bodies ruling on zoning matters allow cross-examination will be satisfied if one or more representatives of the views of parties adverse to the witness is permitted full cross-examination. When presenting a due process challenge, a non-party must at least demonstrate how cross-examination questions that it would have posed would have been meaningfully different than those that were asked.

ZONING LAW — COUNTY BOARD OF APPEALS — APPLICATION FOR VARIANCE: The Anne Arundel County Board of Appeals ("the Board") erred in determining that the granted variance was the minimum necessary to afford an applicant relief, when the Board awarded the applicant a variance for 320 square feet of impervious surface for a boat ramp without adequately considering whether this ramp was necessary to the applicant's reasonable and significant use of the property.

Circuit Court for Anne Arundel County

Case No. 02-C-07-119778AA

Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts, JJ.

Opinion by Adkins, J.

Harrell, J., joins in judgment only.

Watts, J., concurs.

Roughly 35 million years ago, an asteroid over a mile wide crashed into the Earth at a speed of about 70,000 miles per hour. Hillary Mayell, Chesapeake Bay Crater Offers Clues to Ancient Cataclysm, National Geographic News, (November 13, 2001), http://news.nationalgeographic.com/news/pf/57998027.html. This collision created the Chesapeake Bay Crater. Id. One of the by-products of this celestial collision is the subject of this contest—Little Island in the Magothy River ("the Island").

In 2000, DCW Dutchship Island, LLC ("DCW"), a corporation wholly owned by Daryl Wagner ("Wagner"), purchased the Island. At that time, the Island measured approximately 1.92 acres in area and was improved by a single-family house and related structures built in the 1920s.¹ Wagner demolished the house and set about building a new one. The circumstances surrounding this construction are not new to us. As we explained in McHale v. DCW Dutchship Island, LLC:

In or about 2001, Daryl Wagner, a member of DCW and a Maryland registered home builder, acting on behalf of DCW, demolished the old summer cottage and removed the debris, without the necessary permits or variances required by the Critical Area Law and County ordinances. Then, Wagner constructed the following structures or impervious surface areas on the Island: (1) a new 2,883 square foot home; (2) replacement sheds for the two preexisting sheds; (3) a 66 square foot gazebo; (4) a boat ramp and concrete driveway with approximately 2,668 square feet of surface area toaccommodate his amphibious vehicle; (5) 846 square feet of sidewalks; and (6) a pool and deck totaling 1,433 square feet.

* * *

In November 2004, the County authorities discovered the construction activities on the Island and notified DCW of the numerous violations. On 28 December 2004, DCW sought variances from the unobserved requirements of the Critical Area Law for each of the structures and improvements on the Island. DCW sought also an amendment to the critical area buffer map, which prohibits most development activity within 100 feet of the shoreline.

A County Administrative Hearing Officer heard the evidence for and against the requests for variances. The Magothy River Association ("MRA") appeared at the variance hearings on 5 June 2005 and 20 September 2005 to oppose DCW's requests. The Hearing Officer granted some of the variances on 27 October 2005. Wagner appealed administratively the denials, and the MRA, the Chesapeake Bay Foundation ("CBF"), and the Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the "Commission") appealed the decision to grant the variances, all to the County Board of Appeals.

415 Md. 145, 151-52, 999 A.2d 969, 972-73 (2010) (footnote omitted).² At the Anne Arundel County Board of Appeals (the "Board") hearing, Wagner moved to dismiss MRA and CBF as parties to the administrative proceedings. The Board ultimately concluded that CBF did not have standing to appeal the granted variances because it did not participate in the hearing before the Administrative Hearing Officer ("AHO"), as required by § 3-1-104(a) of the Anne Arundel County Code ("AACC").³ After 24 evenings of hearings on the subject, the Board revised the decision of the AHO to include certain conditions on the variances.⁴

The Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the "Commission"), MRA, CBF, and Wagner all sought judicial review of the Board's decision in the Circuit Court for Anne Arundel County. These appeals were consolidated by Circuit Court order. In addition, CBF filed a "Motion for Summary Judgment" limited to the issue of whether the Board improperly excluded CBF from the variance portion of the proceedings. The court denied all motions relevant to the variance matter. The Circuit Court then affirmed the decision of the Board, observing:

The proceedings below were fair, reasonable, and in accordance with applicable law. After sorting through a tremendous volume of evidence, the Board rendered a decision supported by competent and substantial evidence. Reasonable minds will disagree, as demonstrated by the 35 pages of concurring and dissenting opinions. However, absent legal error, this Court may not substitute its own wisdom for the considered judgment of the Board and will therefore . . . AFFIRM the decision of the Board of Appeals.

The Commission and CBF appealed the Circuit Court's decision to the Court of Special Appeals, arguing that the Critical Area Act⁵ applied to the variance proceedings, that the Board erred in refusing to allow CBF to participate as a party in the administrative process, and that the Board did not base its decision on substantial evidence in the record. In an unreported opinion, the Court of Special Appeals rejected these arguments and affirmed the Circuit Court.

MRA and CBF (collectively "Petitioners")⁶ petitioned this Court for certiorari. We granted this petition to consider the following questions, which we have restated for clarity and concision:

1. Did CBF have standing to participate in the variance proceedings before the Board of Appeals on the grounds that MRA, which advocated the same position, had standing?

2. Does AACC § 3-1-104(a) violate the Express Powers Act, thus making the Board's denial of standing to CBF on the basis of it erroneous?

3. Did the Board of Appeals violate its own rules when it held that CBF could not cross-examine witnesses, resulting in CBF being denied due process?

4. Did the Board of Appeals err in granting Wagner after-the-fact variances?

For the following reasons, we answer the first three questions in the negative and the fourth in the affirmative, but only in part.

DISCUSSION

Petitioners present three arguments in support of their request that we should remand this matter to the Board so that CBF may participate in the creation of a record in the variance proceedings.⁷

CBF's Standing To Participate As A Party Before The Board Of Appeals

We first address Petitioners' argument that MRA's administrative standing before the Board confers standing on CBF. Petitioners claim that Sugarloaf Citizens' Association v. Department of Environment, 344 Md. 271, 686 A.2d 605 (1996), partially abrogated by statute, Md. Code (1982, 2013 Repl. Vol.), § 5-204(f) of the Environment Article, as stated in Patuxent Riverkeeper v. Maryland Department of Environment, 422 Md. 294, 298, 29 A.3d 584, 586 (2011), and Garner v. Archers Glen Partners, Inc., 405 Md. 43, 949 A.2d 639 (2008) stand for the proposition that if one party has standing to participate in the proceedings, so do all other parties on the same side of the case—what might be called "piggy-back" standing. Using these cases, Petitioners reason that because MRA appeared before the AHO, and the Commission had a statutory right to challenge the variances, CBF need not have appeared before the AHO, or for that matter even have been aggrieved, to have standing before the Board.

Petitioners argue that the Court of Special Appeals specifically relied on Sugarloaf for this point in a similar context. They point to the following language in a footnote in Chesapeake Bay Foundation, Inc. v. Clickner, 192 Md. App. 172, 191 n.6, 993 A.2d 1163,1175 n.6 (2010): "'It is a settled principle of Maryland law that, where there exists a party having standing to bring an action . . . we shall not ordinarily inquire as to whether another party on the same side also has standing.'" (quoting Garner, 405 Md. at 54, 949 A.2d at 645-46) (internal citations omitted). CBF and...