In re Gothard

1

IN THE MATTER OF JOSEPH GOTHARD, et al.

No. 169-2023

Court of Special Appeals of Maryland

March 6, 2024

UNREPORTED ^[*]

Circuit Court for Montgomery County Case No. C-15-CV-22-004440

Wells, C.J., Ripken, Eyler, James R. (Senior Judge, Specially Assigned), JJ.

OPINION

Ripken, J.

The Board of Appeals for Montgomery County ("the Board") dismissed an administrative appeal filed by Joseph Gothard ("Gothard") upon a finding that it was filed after the applicable deadlines set forth in the Montgomery County Code ("County Code"). In addition, the Board determined that, pursuant to the County Code, the Board lacked statutory jurisdiction to review one of the three agency decisions at issue. Gothard filed a petition for judicial review in the Circuit Court for Montgomery County. The circuit court affirmed the Board's decision. This timely appeal followed. For the following reasons, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On February 12, 2020, a conditional use application was filed with the Montgomery County Office of Zoning and Administrative Hearings ("OZAH").^[1] The applicant sought approval to develop property, identified as 19105 N. Frederick Road, Gaithersburg ("Subject Property"), for use as an independent living facility for senior citizens. Gothard, who owns property adjacent to the Subject Property, participated in a public hearing on the application.^[2] On July 1, 2020, OZAH issued a written decision approving the conditional use application. The decision included a list of the parties to whom notification of the decision would be sent, which included Gothard. Also included was information regarding the 10-day right to appeal:

NOTICE OF RIGHT TO APPEAL

Any party of record may file a written request to appeal the Hearing Examiner's Decision by requesting oral argument before the Board of Appeals, within 10 days issuance of the Hearing Examiner's Report and Decision.... A person requesting an appeal, or opposing it, must send a copy of that request or opposition to the Hearing Examiner, the Board of Appeals, and all parties of record before the Hearing Examiner.

Additional procedures are specified in [Montgomery County] Zoning Ordinance §59.7.3.1.f.1[.]

The notice included the Board's address, telephone number, and website, as well as information on how to file a request for oral argument.

On April 26, 2022, the Montgomery County Department of Permitting Services ("DPS") issued a sediment control permit for the Subject Property. On May 12, 2022, DPS issued a building permit for the construction of a senior apartment building on the Subject Property.

On July 18, 2022, Gothard and his wife filed an administrative appeal with the Montgomery County Board of Appeals ("the Board"). They challenged the conditional use approval as well as the issuance of the sediment control and building permits. The appeal was consolidated with similar appeals filed by several other property owners.

Montgomery County ("the County") filed a motion for summary disposition. The County asserted that the Board had no jurisdiction to hear the appeals because they had not been filed within the time limits set forth in the County Code. The County further asserted that the Board had no jurisdiction over the issuance of sediment control permits. The County requested that the appeals be dismissed. The title owner of the Subject Property, Frederick Road 4% Owner, LLC ("Frederick Road"), which had intervened in the proceedings before the Board, filed a motion for summary disposition on similar grounds.

On October 12, 2022 a hearing was held before the Board on the motions. The County argued that the appeals were an untimely attempt to relitigate approval of the conditional use application and could not be considered by the Board. Counsel for Frederick Road concurred with the County and maintained that the Board had no authority to extend the date for filing an appeal.

Gothard testified that he had "no record or recollection" of having received notification of the hearing examiner's decision. Counsel for Frederick Road noted that Gothard had participated in the hearing, and, according to the written decision of the hearing examiner, had received notice of the decision.

On November 4, 2022, the Board issued an eight-page written opinion dismissing the appeal. The Board reasoned:

[T]here are no genuine issues of material fact to be resolved by the Board. The Board finds that the [conditional use approval] must be appealed to the Board by filing a written request to present oral argument before the Board within 10 days after OZAH issues the Hearing Examiner's report and decision, which in this case was issued on July 1, 2020. The Board further finds that Section 8-23(a) of the County Code requires that an appeal of the issuance of [a] building permit . . . be submitted to the Board within 30 days after the permit was issued, [which] in this case [was] on May 12, 20[2]2. The Board finds that it is undisputed that this appeal was filed on July 18, 2022, over two years after the Hearing Examiner's report and decision [approving the conditional use] and over 60 days after the issuance of [the] building permit [for the Subject Property]. * * *

Finally, the Board finds that it has no jurisdiction over the appeal of the issuance of a sediment control permit, which [is] governed by Chapter 19 of the County Code.... Because the Board does not have the authority to decide matters for which it has not been granted jurisdiction by statute, the Board must also dismiss the appeal of [the] sediment control permit . . . for lack of jurisdiction.

Gothard filed a motion for reconsideration of the Board's decision.^[3] The Board considered Gothard's motion at a hearing on November 16, 2022. Gothard argued that he and his neighbors were not given proper notice of the impact that the construction of the independent living facility would have on the surrounding community. He asserted that there had been in a "significant reduction" in the value of his home, and he claimed that noise from the construction exceeded permissible limits. The chairman of the Board noted that Gothard had participated in the conditional use hearing, and that he had an opportunity to appeal the OZAH decision at that time. Gothard claimed that he never received notice of the hearing examiner's decision. In a written decision, the Board denied the motion for reconsideration.

Gothard sought judicial review in the circuit court. Following a hearing, the court affirmed the decision of the Board.

ISSUES PRESENTED FOR REVIEW

In his brief, Gothard poses 21 questions, many of which are outside of the scope of our review.^[4] The narrow issue before this Court is whether the Board erred as a matter of law in determining that it lacked jurisdiction to consider Gothard's appeal from the decisions of OZAH and DPS and granting summary disposition on that basis. Because the only decision properly before this Court is the Board's decision to dismiss the appeal as a matter of law, we do not consider any questions presented in Gothard's brief that relate to the merits of the appeal, that is, whether the actions of OZAH and DPS complied with the law. Nor do we consider whether the Board erred in dismissing the administrative appeals of individuals who are not parties to this appeal.^[5]

We have carefully reviewed each of the questions presented by Gothard, and have distilled three issues that are properly before this Court in the context of this appeal:

1. Whether the Board erred in concluding that the appeal from the approval of the conditional use application was untimely.

2. Whether the Board erred in concluding that the appeal from the issuance of the building permit was untimely.

3. Whether the Board erred in concluding that it had no jurisdiction to review the issuance of the sediment control permit.

STANDARD OF REVIEW

In reviewing a circuit court decision on appeal from a decision of an administrative agency, such as a county board of appeals, this court "looks through the circuit court's . . . decision[], although applying the same standards of review, and evaluates the decision of the agency." Anne Arundel Cnty. v. 808 Bestgate Realty LLC, 479 Md. 404, 419 (2022) (quoting People's Counsel for Baltimore Cty. v. Surina, 400 Md. 662, 681 (2007)). "We review the agency's decision in the light most favorable to it, and we presume it to be valid." Id. (citing Assateague Coastal Trust, Inc. v. Schwalbach, 448 Md. 112, 124 (2016)). Our role is "limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law[.]" People's Counsel, 400 Md. at 682 (quoting Mombee TLC, Inc. v. Mayor and City Council of Balt., 165 Md.App. 42, 54 (2005)).

In this case, the agency decision at issue is the Board's order granting summary disposition. Rule 3.2.2 of the Montgomery County Board of Appeals Rules of Procedure provides as follows:

Motion for summary disposition. Any party may file a motion to dismiss any issue in a case on the grounds that the application and other supporting documentation establish that there is no genuine issue of material fact to be resolved and that dismissal or other appropriate relief should be rendered as a matter of law.

"The legal standard for granting summary disposition is the same as that for granting summary judgment under Maryland Rule 2-501(a)." Brawner Builders, Inc. v. State Highway Admin., 476 Md. 15, 31 (2021). "[S]ummary disposition is appropriate if there is no genuine issue of material fact[,] and [a] party is entitled to prevail as a matter of law." Id...