Kelso v. Smiertka

THOMAS E. KELSO, et al. v. ANTHONY SMIERTKA, et ux.

No. 1863

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

October 21, 2015

UNREPORTED

Wright, Hotten, Reed, JJ.

Opinion by Hotten, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellants, Thomas E. Kelso ("Mr. Kelso") and Lorenda L. Birch ("Ms. Birch"), appealed a decision of the Worcester County Shoreline Commission ("the Commission") approving appellees, Anthony and Barbara Smiertka's ("Mr. Smiertka and Ms. Smiertka") application to install a pier extension to their waterfront property. The Circuit Court for Worcester County affirmed the Commission's decision. This appeal followed.

Appellants present two questions for our review:

[1.] Did the [Commission] err by refusing to consider and apply Maryland law regarding riparian rights to determine whether [a]ppellees could construct the pier extension at the proposed location and whether it would interfere with the riparian rights of [a]ppellant, [Ms. Birch], and other nearby waterfront owners?

[2.] Are the [Commission's] findings that [a]ppellees' proposed pier extension would have no adverse impact on navigability in the area, would not adversely impact properties in the surrounding neighborhood, would not adversely impact the value of nearby properties and would be of commercial benefit to Worcester County supported by substantial evidence in the record?

For the reasons that follow, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL HISTORY

Appellees, owners of a single family residence located on 13106 Riggin Ridge Road, Ocean City, Maryland filed an application to install a 186-foot by 4 foot wide pier extension to an existing pier in order to access navigable water. The proposed changes were submitted for permits and approval to the Maryland Department of the Environment ("MDE") and the Army Corps of Engineers and subsequently granted. A special exception to permit the requested use was also granted by the Worcester County Board of Zoning Appeals.

Appellants, who are nearby property owners, did not challenge any of the permits or the special exception issued by the Board of Zoning Appeals, but opposed appellees' application for the pier extension that was before the Commission. On July 11, 2013 and August 15, 2013, the Commission held public hearings and considered evidence and testimony from several witnesses.

Five witnesses, including Mr. Smiertka, testified on behalf of appellees. Appellees' witnesses included Chris McCabe ("Mr. McCabe"), an independent environmental consultant; Frank G. Lynch, Jr. ("Mr. Lynch"), a licensed surveyor; Jason B. Mumford ("Mr. Mumford"), a licensed Coast Guard captain, commercial fisherman, and waterfowl guide; and Pam Greer Buckley ("Ms. Buckley"), a certified general real estate appraiser. Three witnesses, including Mr. Kelso and Ms. Birch testified on behalf of appellants. The third witness was Joy Snyder ("Ms. Snyder"), a real estate broker. Testimony and a proffer of three drawings by Charles Woodward ("Mr. Woodward"), a licensed surveyor, was also admitted into evidence on behalf of appellants.

On September 5, 2013 the Commission issued a decision approving appellees' application for the pier extension. The Commission's decision incorporated by reference a letter from Jennifer K. Burke ("Ms. Burke"), Zoning Administrator for the Worcester County Department of Development, Review and Permitting. As part of its decision, the Commission rendered specific findings of fact regarding each of six considerations pursuant to the Worcester County Code, § 2-102(f) of the Natural Resources Article ("NR"), and thereafter approved appellees' application.

Appellants subsequently appealed the Commission's decision to the Circuit Court for Worcester County.¹ On July 31, 2014, the court conducted a hearing and took judicial notice of the case file from the proceedings before the Commission.

On September 29, 2014, the circuit court issued a decision affirming the Commission. Appellants noted a timely appeal to this Court. Additional facts shall be provided, infra, to the extent they prove relevant in addressing the issues presented.

STANDARD OF REVIEW

"When reviewing the decision of an administrative agency, . . . we review the agency's decision directly, not the decision of the circuit court. A reviewing court will affirm the decision of the [agency] when it is supported by substantial evidence appearing in the record and it is not erroneous as a matter of law. Because an agency's decision is presumed prima facie correct, we review the evidence in the light most favorable to the agency. Indeed, 'it is the agency's province to resolve conflicting evidence and where inconsistent inferences can be drawn from the same evidence it is for the agency to draw the inferences.' When we review an agency decision that is a mixed question of law and fact, we apply 'the substantial evidence test, that is, the same standard of review [we] would apply to an agency factual finding.'" Thomas v. State Ret. and Pension Sys. of Md., 184Md. App. 240, 248 (2009) (internal citations omitted) (omission and alterations in original).

DISCUSSION

I. Standards for Granting a Shoreline Construction Application

The Commission was created to "regulat[e] and determin[e] 'bulkhead lines, shorelines and fill lines along the shorelines of Worcester County.'" Board of Public Works v. Larmar Corp., 262 Md. 24, 30 (1971). Established under the Worcester County Code, NR § 2-102, the Commission has authority to approve or deny applications for major or minor construction on a shoreline. Worcester County Code, NR § 2-102(e)(1)-(2). "Except in the case of routine maintenance and repair," a permit to do any major or minor construction on a shoreline must first be issued. Worcester County Code, NR § 2-102(c). To obtain a permit, "[a]n applicant . . . shall make application to the Issuing Department . . . [t]he Issuing Department shall determine whether or not the work applied for constitutes a major construction or a minor construction."² Worcester County Code, NR § 2-102(d).

In approving or denying an application to the Commission for construction along the shoreline, the Commission must make specific findings of fact regarding the following six factors:

(1) environmental impact; (2) navigational impact; (3) recreational potential; (4) commercial benefit to Worcester County; (5) the impact of the proposed construction upon the surrounding neighborhood and upon property values therein; [and] (6) such other matters as the [Commission] may consider appropriate and germane to the issue.

Worcester County Code, NR § 2-102(f). These factors collectively outline the scope of the Commission's authority.

The Commission also has authority to "grant or deny the application based upon the evidence presented [at a hearing] and upon those matters within the Commission's expertise." Worcester County Code, NR § 2-102(g). In granting any application, the Commission "may place such stipulations, conditions and requirements upon the permit as the Commission may deem necessary and appropriate to effectuate the legislative intent of this section." Worcester County Code, NR § 2-102(h).

II. Substantial Evidence Supporting the Commission's Decision

In the instant appeal, appellants aver that the Commission erred by refusing to consider the riparian rights³ of appellants and neighboring owners, and in failing to base its decision upon substantial evidence concerning factors two, four, five, and six.⁴

In addressing appellants' contentions, we remain "cognizant of the limited role that the courts must play in reviewing the decision of a local land-use [commission]." Assateague Coastal Trust, Inc. v. Schwalbach, 223 Md. App. 631, 643 (2015). SeeCremins v. County Commissioners of Washington County, 164 Md. App. 426 (2005) (holding that the agency's interpretations and applications of the statutory or regulatory provisions that it administers should be afforded considerable weight and the expertise of the agency in its own field should be respected); Assateague Coastal, 223 Md. App. at 651 (emphasizing that determinations regarding the standard for a critical area variance fell within the relative expertise of the administrative agency); Belvoir Farms Homeowners Ass'n, Inc. v. North, 355 Md. 259, 271 (1999) (reaffirming that various factors under zoning regulations had to be considered by the agency because such determinations were appropriate for administrative, not judicial, review).

Thus, the Court's first task is to determine whether the issue decided by the agency is at least "fairly debatable" based on all of the evidence. Assateague Coastal, 223 Md. App. at 643. As we explained in Assateague Coastal:

Our role in reviewing the final decision of an administrative agency, such as the [Commission], 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. In doing so, a reviewing court decides whether the [Commission's] determination was supported by such evidence as a reasonable mind might accept as adequate to support a conclusion. . . . The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.[ ] Moreover, a reviewing court must review the agency's decision in the light most favorable to it; . . . the agency's decision is prima facie correct and presumed valid.

Id. at 644 (citing Critical Area Comm'n for Chesapeake & Atl. Coastal Bays v. Moreland, LLC., 418 Md. 111, 122-23 (2011) (citations and quotation marks...