Brandywine Senior Living at Potomac LLC v. Paul , 237 Md. App. 195 ( 2018 )

Brandywine Senior Living at Potomac LLC, et al. v. Ronald A. Paul, et al., No. 2428, Sept.
Term 2016. Opinion filed on April ____, 2018, by Berger, J.
HEADNOTES
CONDITIONAL USE APPLICATION - MODIFICATION OF PLANS DURING
HEARING - IMPARTIALITY OF TRIBUNAL
A hearing examiner did not impermissibly align himself with a conditional use applicant
by suggesting and permitting certain amendments to the conditional use application during
the hearing. Montgomery County Zoning Ordinance § 59-7.3.1.D.3., titled “Amendment
of an Application,” permits the amendment of an application prior to a hearing under
certain circumstances, but is entirely silent as to the amendment of an application during a
hearing. The statutory framework of the zoning ordinance embraces flexibility in the
conditional use approval process in order to seek compatibility between a proposed project
and the surrounding neighborhood.
CONDITIONAL USE APPLICATION - COMPATIBILITY WITH THE
SURROUNDING NEIGHBORHOOD AND CONFORMANCE WITH THE MASTER
PLAN - CONSIDERATION OF DEPARTING CONDITIONAL USE
When the zoning ordinance requires the hearing examiner to consider whether a proposed
use is “harmonious with and will not alter the character of the surrounding neighborhood
in a manner inconsistent with the plan” and requires that any proposed structure “be
compatible with the character of the residential neighborhood,” the hearing examiner does
not err by considering the specific features of the currently existing residential
neighborhood, including the departing conditional use.
CONDITIONAL USE APPLICATION - REASONING OF THE HEARING EXAMINER
- NOISE - STORMWATER DRAINAGE
A hearing examiner’s determinations with respect to noise impacts and stormwater
drainage were supported by evidence and the appellate court would not reweigh conflicting
testimony, including expert testimony, on these issues.
CONDITIONAL USE APPLICATION - UNDUE HARM TO ECONOMIC VALUE OF
NEIGHBORING PROPERTY
When a hearing examiner was required pursuant to Montgomery County Zoning Ordinance
§ 59-7.3.1.E.g.i. to analyze whether a proposed use would cause “undue harm to the
neighborhood as a result of . . . adverse effect . . . to economic value of abutting and
confronting properties,” the hearing examiner did not err by considering an existing
departing conditional use. The effect of a proposed conditional use on a neighboring
property’s value must be evaluated against the specific, actual current value of the property,
not based upon a hypothetical alternative for the proposed conditional use site.
2
Circuit Court for Montgomery County
Case Nos. 421781-V, 421782-V
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2428
September Term, 2016
______________________________________
BRANDYWINE SENIOR LIVING AT
POTOMAC LLC, ET AL.
v.
RONALD A. PAUL, ET AL.
______________________________________
Eyler, Deborah S.,
Berger,
Fader,
JJ.
______________________________________
Opinion by Berger, J.
______________________________________
Filed: April 30, 2018
This appeal arises from a decision of the Montgomery County Board of Appeals
(the “Board”) granting an application for a conditional use filed by Brandywine Senior
Living at Potomac, LLC (“Brandywine”). Brandywine received conditional use approval
for a three-story residential care facility, to be built on property located at 10800 Potomac
Tennis Lane in Potomac, Maryland (the “Property”). Ronald A. Paul and Toni H. Paul,
whose residence abuts the Property, as well as the West Montgomery County Citizens
Association (“WMCCA”), the Brickyard Coalition (“Brickyard”), and Curtis B. Uhre
(collectively, the “Neighbors”)1 filed petitions for judicial review in the Circuit Court for
Montgomery County. The circuit court affirmed in part and reversed in part the decision
of the Board and remanded to the Board for further consideration. All parties appealed.2
The parties have presented multiple issues for our consideration on appeal, which
we have consolidated and rephrased as follows:
I. Whether the hearing examiner erred by permitting
Brandywine to submit modified plans in response to
various issues raised by the opposing parties.
II. Whether the hearing examiner’s findings were
supported by substantial evidence and premised upon
accurate conclusions of law.
1
Certain arguments discussed in this appeal are advanced only by the Pauls, others
by WMCCA, Brickyard, and Mr. Uhre (but not the Pauls), and still others by all of the
Neighbors, including the Pauls. The Pauls filed one brief in this appeal, and WMCCA,
Brickyard, and Mr. Uhre filed a separate brief. Each joined certain arguments expressed
in the briefs filed by other parties.
2
The County and Brandywine are designated the appellants/cross-appellees. The
Pauls and the other Neighbors are designated the appellees/cross-appellants. The Pauls
and the other Neighbors each appealed separately.
For the foregoing reasons, we shall affirm the opinion of the Board granting the conditional
use. We, therefore, shall remand to the circuit court for the entry of an order affirming the
Board’s actions in their entirety.
FACTS AND PROCEEDINGS
The Property is a triangular 4.02-acre parcel located in the RE-2 zone,
approximately 600 feet north of the intersection of Falls Road (Maryland State Route 189)
and Potomac Tennis Lane. The RE-2 zone is zoned for large-lot residential use, with a
minimum lot size of two acres. For over forty years, the Potomac Tennis and Fitness Club
operated on the property pursuant to a conditional use approval granted in 1975. 3 The
tennis club’s use of the Property included twelve tennis courts, a two-story clubhouse, a
storage shed, and forty-nine parking spaces. During the winter months, six of the tennis
courts were enclosed in a temporary bubble structure.
The Property abuts the Falls Road Golf Course to the north and east and the Arden
Courts dementia-care assisted living facility and Manor Care of Potomac skilled nursing
home to the south. Manor Care of Potomac is a two-story, 172-bed skilled nursing home.
Arden Courts is a 52-bed dementia care assisted living facility. The Pauls’ residential
property is adjacent to the west side of the Property. The Pauls’ residence is located
approximately 155 feet from the joint property line.
3
At the time the tennis club received its approvals, the County referred to such
approvals as “special exceptions.” “Special exceptions” were renamed “conditional uses”
as part of comprehensive revisions to the Montgomery County Zoning Ordinance effective
October 30, 2014. See Montgomery County Zoning Ordinance § 59-1.4.2. For clarity, we
shall use the term “conditional use” to refer both to “conditional uses” and “special
exceptions,” regardless of the date they were approved and the term in use at that time.
2
The Staff of the Montgomery County Planning Department (the “Technical Staff”)
defined the boundaries of the Property’s surrounding neighborhood and described the area
as follows:
The neighborhood delineated for this Application (See figures
2 and 3 below) is approximately 260 acres in size and extends
out from the Subject Property by about 2,000 feet in all
directions. To the north, the neighborhood extends to the
northern property edge of the Falls Road Golf Course along
Eldwick Way and the rear of lots in the Bedfordshire
Community. The boundary then turns southwest, following
the northwestern edge of the Potomac Glen community to
South Glen Road. The southern boundary follows South Glen
Road and Democracy Boulevard, and the eastern boundary
includes the eastern boundary of the Bullis School located on
the east side of Falls Road, and then angles back to follow Falls
Road north to Eldwick Way.
The majority of the neighborhood is comprised of two
properties: the Falls Road Golf Course which is a 149 acre
property immediately adjacent to the north and east of the
Subject Property, and the Bullis School which is a K-12 private
education facility located on 100 acres southeast of the Subject
Property on the opposite side of Falls Road. The rest of the
neighborhood is primarily residential with one-family
detached houses in the Potomac Glen and Glen Falls
communities located southwest of the Site. Immediately to the
south of the Site is a Manor Care elderly care facility and
directly south of the Manor Care facility is the Normandie
Farms Restaurant and Inn. Almost all of the neighborhood is
zoned RE-2 with the exception of the lots directly fronting on
South Glen Road and Democracy Boulevard which are zoned
R-200, and the Glen Falls community which is RE-2/TDR-1.
The Technical Staff provided two aerial photographs and a map illustrating the
neighborhood. We have reproduced the figures below:
3
In Figure 1, the Property can be seen in the center of the photograph, with the golf course
to its north and east. The two large buildings making up the Manor Care/Arden Courts
complex are seen south of the Property. The Paul’s home is located on the cul-de-sac on
the left edge of the photograph, abutting the Property to the southwest. The Pauls’ home
is the only residence abutting the Property.
4
5
Figures 2 and 3 are equivalent aerial photos and maps, showing the same area. In Figure
3, the Manor Care/Arden Courts complex is represented by numeral 1 on the map. The
Falls Road Golf Course is represented by numeral 2, and the Bullis School is represented
by numeral 3. The Property is located in the triangle near the center of the map. The Pauls’
property is not identified in Figures 2 or 3.
On July 9, 2015, Brandywine submitted its conditional use application to the
Montgomery County Office of Zoning and Administrative Hearings (“OZAH”).
Brandywine sought approval for a luxury senior residential care facility with 140 beds in
120 suites (the “Project”).4 The Project includes seventy-three parking spaces, an indoor
pool, restaurant-style dining, and various other amenities. The Project further includes
extensive landscaping on the Property, including perimeter landscaping, courtyards, a
fountain, a pergola, a gazebo, and community garden space.
Pursuant to Section 59-7.3.1.D of the Montgomery County Zoning Ordinance
(2014) (“Z.O.”), OZAH referred the conditional use application to the Technical Staff for
review. On October 2, 2015, the Technical Staff issued a 31-page report recommending
approval of the Project, subject to eleven conditions. The Technical Staff also prepared a
PowerPoint presentation for its presentation on the conditional use application to the
Montgomery County Planning Board (the “Planning Board”). On October 15, the Planning
Board met and unanimously recommended approval of the application. The Planning
4
Some units would be double-occupancy.
6
Board adopted the conditions recommended by the Technical Staff and added two
additional conditions.
Thereafter, the matter was referred to the hearing examiner for the OZAH. The
hearing began on November 6, 2015, and continued for three additional days on
December 3, 2015, December 7, 2015, and January 15, 2016. Over the course of the
hearing, the hearing examiner heard testimony from Brandywine representatives,
individuals in opposition to the Project, as well as various expert witnesses in the fields of
land planning, architecture, landscape architecture, civil engineering, transportation
planning, acoustical engineering, and real estate appraisal, among others. The hearing
examiner heard testimony on issues relating to, inter alia, the Project’s conformance with
the recommendations of the applicable master plan, the effect of the Project on neighboring
properties, and the compatibility of the Project with the surrounding neighborhood.
On December 7, 2015, the Pauls testified about particular concerns relating to the
effect the Project would have on their peaceful enjoyment of their property as well as the
economic value of their property. The hearing examiner inquired as to whether
Brandywine would consider making certain modifications to improve compatibility with
the Pauls’ property, including relocating the trash enclosure to the east side of the Property,
modifying the stormwater management facility proposed along the property line between
the Property and the Pauls’ property, moving a service drive, and reducing the height of
the western facade of the building closest to the Pauls’ residence.
Subsequently, Brandywine submitted revised plans addressing many of the
concerns raised at the December 7, 2015 hearing. The trash enclosure was moved an
7
additional thirty-seven feet from the shared property line with the Pauls, the service drive
was reconfigured, and the stormwater facility was modified and relocated. Brandywine
further added a decorative masonry privacy wall and removed the third floor from the
western portion of the building closest to the Pauls’ property.
On December 15, 2015, the hearing examiner issued a notice to all parties entitled
to notice explaining that Brandywine had submitted revised plans amending its application.
The hearing examiner informed the parties that the revised plans would be evaluated at the
January 15, 2016 hearing. In addition, the hearing examiner forwarded the revised plans
to the Technical Staff. The Technical Staff reviewed the revised plans and concluded that
the revised plans were “still in conformance with the findings of the Technical Staff Report
dated October 15, 2015.”
The revisions were discussed in detail at the January 15, 2016 hearing. The Pauls
continued to express concern about the proximity of the trash enclosure to their property.
In response, Brandywine offered to relocate the trash enclosure to the northeastern side of
the Property, on the opposite side of the Property from the shared property line with the
Pauls. Brandywine submitted plans reflecting the revised location for the trash enclosure
on January 20, 2016. The Technical Staff approved the revised plans on January 29, 2016.
Thereafter, the parties were provided with an opportunity to respond to the revision and
8
the Technical Staff’s review of the revised plans.5 The administrative record was closed
on February 19, 2016.
On March 21, 2016, the hearing examiner issued a comprehensive 96-page report
and decision. The report addressed the various issues and concerns raised by the parties in
opposition. The report additionally set forth factual findings and applied the factual
findings to the various factors set forth in the applicable provisions of the zoning ordinance.
The hearing examiner granted Brandywine’s conditional use application subject to sixteen
conditions.
The Neighbors subsequently filed requests for oral argument, which Brandywine
opposed. The Board considered the hearing examiner’s report at its April 13, 2016
worksession, along with the requests for and oppositions to oral argument. On April 26,
2017, the Board issued an opinion in which it adopted the hearing examiner’s report and
decision. The Board determined that “the record compiled by the Hearing Examiner is
thorough and exhaustive, and that the Hearing Examiner’s Report [] contains clear and
detailed conditions of approval.” The Board further determined that “no further argument
is necessary for it to be able to render a decision on [Brandywine’s] application.”
The Neighbors filed a petition for judicial review of the Board’s decision in the
Circuit Court for Montgomery County on May 20, 2016.6 A hearing was held on
5
Ultimately, the hearing examiner concluded that revisions made after the final
hearing date would not be permitted, and the hearing examiner’s approval was based upon
revisions submitted up to and including December 22, 2015.
6
The Neighbors filed two separate petitions for judicial review. One petition was
filed by WMCCA, Brickyard, and Mr. Uhre. The other petition was filed by the Pauls.
9
November 4, 2016. The Neighbors raised several arguments before the circuit court. The
Neighbors asserted that the hearing examiner committed prejudicial legal error by
permitting Brandywine to amend the conditional use application after the hearing on the
application had begun and after the applicant had completed its case. The Neighbors
further argued that hearing examiner’s findings with respect to noise, adequacy of drainage,
and economic value of the Pauls’ property were not supported by substantial evidence.
The circuit court issued a memorandum opinion affirming in part and reversing in
part the hearing examiner’s decision. The circuit court determined that the hearing
examiner did not commit prejudicial legal error by permitting Brandywine to amend its
conditional use application. The circuit court further determined that the hearing
examiner’s findings with respect to noise impacts and drainage adequacy were supported
by substantial evidence.
The circuit court disagreed with other conclusions of the hearing examiner. In the
section of its memorandum opinion titled “Master Plan Compliance and Economic Value,”
the circuit court concluded that the hearing examiner erred by considering the Property’s
current use when evaluating the effect of the Project on the character of the neighborhood
and on the economic value of the Pauls’ property. The circuit court found that the hearing
examiner was required to “evaluate the proposed conditional use against the standards of
the RE-2 zone, particularly in light of the fact that the existing conditional use on site (the
Brandywine moved to consolidate the two petitions, and the circuit court granted the
motion to consolidate. The circuit court subsequently granted the County’s motion to
intervene.
10
tennis facility) will be extinguished.” The circuit court reversed and remanded the
agency’s “findings regarding Master Plan compliance and economic value . . . for further
consideration, without reference to the existing conditional use on site.” All parties noted
timely appeals.7
Additional facts shall be discussed as necessitated by our discussion of the issues
on appeal.
DISCUSSION
I. Legal Standard
A conditional use allows a particular use on a property that is not granted to a
property owner by right. Certain uses, designated conditional uses, are permitted only after
a property owner obtains conditional use approval after a reviewing body, such as the
Board, has reviewed and approved an application seeking conditional use approval. See
generally Stanley D. Abrams, Guide to Maryland Zoning.
When reviewing an administrative decision, including a local government’s
decision to approve a conditional use application, we “look[ ] through the circuit court’s . . .
decision[], although applying the same standards of review, and evaluate[ ] the decision of
the agency.” People’s Counsel v. Surina, 400 Md. 662, 681 (2007). In other words, we
7
Brandywine noted an appeal on January 25, 2017. The County noted an appeal on
February 1, 2017. Brandywine and the County are designated the Appellants/Cross-
Appellees. The Pauls noted an appeal on February 8, 2017. WMCCA, Brickyard, and Mr.
Uhre noted an appeal on February 14, 2017. The Neighbors are designated the
Appellees/Cross-Appellants. The Neighbors filed a Motion to Determine Order of Oral
Argument, seeking to be designated the Appellants/Cross-Appellees. We denied the
Neighbors’ motion.
11
“review[] the agency’s decision, not the circuit court’s decision.” Long Green Valley
Ass’n v. Prigel Family Creamery, 206 Md. App. 264, 273 (2012) (citation omitted). We
are limited to evaluating whether there is substantial evidence in the record as a whole to
support the agency’s findings and conclusions and to determining whether the
administrative decision is premised upon an erroneous conclusion of law. Hamza Halici,
et al. v. City of Gaithersburg, 180 Md. App. 238, 248 (2008) (internal quotation marks and
citations omitted).
The substantial evidence test is defined as “whether a reasoning mind reasonably
could have reached the factual conclusion the agency reached.” Layton v. Howard Cnty.
Bd. of Appeals, 399 Md. 36, 48-49 (2007) (internal quotation omitted). “In applying the
substantial evidence test . . . . [we] must review the agency’s decision in the light most
favorable to the agency, since decisions of administrative agencies are prima facie correct
and carry with them the presumption of validity.” Pollock v. Patuxent Inst. Bd. of Review,
374 Md. 463, 476-77 (2003). “Furthermore, not only is the province of the agency to
resolve conflicting evidence, but where inconsistent inferences from the same evidence can
be drawn, it is for the agency to draw the inferences.” Id. at 477 (internal quotations
omitted).
We review the Board’s conclusions of law de novo, however, “‘a degree of
deference should often be accorded the position of the administrative agency.’” Assateague
Coastkeeper v. MDE, 200 Md. App. 665, 690 (2011) (quoting Najafi v. Motor Vehicle
Admin., 418 Md. 164, 173–74 (2011)). Although “[a]n administrative agency’s
interpretation of a statute that the agency administers should ordinarily be given
12
considerable weight by reviewing courts,” Piney Orchard Cmty. Ass’n, 231 Md. App. at
92 (citation omitted), we owe no deference to an agency’s erroneous conclusions of law.
See Bd. of County Com’rs for St. Mary’s County v. S. Res. Mgmt., Inc., 154 Md. App. 10,
34 (2003) (“[W]here an administrative agency renders a decision based on an error of law,
we owe the agency’s decision no deference.”) (citations omitted). “In contrast to
administrative findings of fact, questions of law, including the proper construction of a
statute, are subject to more plenary review by the courts.” Maryland Office of People’s
Counsel v. Maryland Pub. Serv. Comm’n, 226 Md. App. 483, 501 (2016) (quoting Office
of People’s Counsel v. Maryland Pub. Serv. Comm’n, 355 Md. 1, 14 (1999)). It is the
appellant’s burden, however, to establish that the agency erred as a matter of law.
Assateague Coastkeeper, 200 Md. App. at 690.
II. Brandywine’s Amendment of the Conditional Use Application
The Pauls assert that the hearing examiner committed prejudicial legal error by
failing to conduct a fair and impartial hearing. The Pauls contend that, by inviting
Brandywine to modify their application and file new plans to respond to issues raised by
the opposition, the hearing examiner improperly aligned himself with Brandywine and
thereby violated the Pauls’ rights to due process. In our view, the Pauls mischaracterize
the nature of the hearing examiner’s conduct. As we shall explain, the hearing examiner
acted within the scope of his discretion in permitting the amended conditional use
application. We reject the Pauls’ assertion that the hearing examiner’s conduct in
suggesting and allowing the amendments was improper.
13
The Pauls acknowledge that “under appropriate circumstances . . . an application
that is subject to an administrative hearing process might be able to be amended.” They
emphasize that “[h]ere, the issue is the impropriety of the tribunal in, essentially, aligning
itself with the applicant.” First, we observe that although the Pauls challenge the hearing
examiner’s impartiality on appeal, this particular issue was not raised before the hearing
examiner. Such an allegation could have been raised through a motion for recusal. See
Regan v. State Bd. of Chiropractic Exam’rs, 355 Md. 397, 408-10 (1999) (discussing
recusal in the administrative context). The issue before the hearing examiner was whether
the amendment of the application was permissible under the zoning ordinance, not whether
the hearing examiner had aligned himself with Brandywine. Arguably, this issue is not
preserved. See Halici, supra, 180 Md. App. at 249 (“[A] party who knows or should have
known that an administrative agency has committed an error and who, despite an
opportunity to do so, fails to object in any way or at any time during the course of the
administrative proceedings, may not thereafter complain about the error at a judicial
proceeding.”) (internal quotation omitted).
Furthermore, assuming arguendo that issues relating to the hearing examiner’s
alleged bias are properly before this Court, we observe that the record as whole reflects
that the Pauls’ assertions are without merit and fail to overcome the “ strong presumption
in Maryland” that judges, as well as decision-makers in judicial or quasi-judicial
proceedings, “are impartial participants in the legal process, whose duty to preside when
qualified is as strong as their duty to refrain from presiding when not qualified.” Regan,
supra, 355 Md. at 410-11.
14
Our review of the record as a whole leads us to conclude that the hearing examiner
did not impermissibly align himself with Brandywine by suggesting and permitting the
amendments to the conditional use application, thereby depriving the Pauls of due process.
Indeed, administrative proceedings are inherently more flexible than judicial proceedings.
See Cecil Cty. Dep't of Soc. Servs. v. Russell, 159 Md. App. 594, 612–13, (2004)
(“Procedural due process in administrative law is recognized to be a matter of greater
flexibility than that of strictly judicial proceedings.”) (quotation omitted). “The concept of
due process requires that we examine ‘the totality of the procedures afforded rather than
the absence or presence of particularized factors.’” Id. (quotation omitted).
The Pauls assert that it was improper for the hearing examiner to suggest that
Brandywine make any changes to its application. The OZAH rules, however, grant the
hearing examiner the authority to “regulate the course of the hearing” and “produce
evidence when necessary.” Moreover, the zoning ordinance similarly reflects the
flexibility of the administrative proceeding, providing that the hearing examiner may
“extend the time for closing the record, either to a time certain or for a reasonable time . . .
if the [h]earing [e]xaminer finds additional information or government action is necessary
on any relevant issue.” Z.O. § 7.6.2.B.3.b.
Furthermore, we emphasize that the hearing examiner informed Brandywine that it
could choose to proceed with its original conditional use application -- which had already
been recommended for approval by the Technical Staff and the Planning Board -- or
proceed by amending the application to ameliorate the concerns raised by the Pauls at the
15
hearing.8 After electing to proceed with the amended application, Brandywine recalled its
witnesses and presented two additional witnesses to testify as to the amended plans. The
Pauls assert that the hearing examiner improperly relieved Brandywine of its burden of
proof. We disagree. Indeed, the record reflects that Brandywine propounded evidence and
appropriately bore the burden of establishing that the Project satisfied all of the applicable
standards for the approval of a conditional use.
The Pauls assert that their due process argument “is not about notice and opportunity
to be heard” but, rather, “is much more fundamental.” The crux of the Pauls’ assertion is
that the hearing examiner violated due process by suggesting Brandywine amend its
application in response to the issues raised by the Pauls. Notice and opportunity to be heard
are, however, the critical issues when determining whether a party has been deprived of
procedural due process. We have emphasized, in the context of cases considering “the
authority of administrative agencies to rely on post-hearing evidence, as long as there exists
opportunity for cross-examination and rebuttal” does “not depend upon which side the
additional evidence supports or upon the weight of the additional evidence compared with
the evidence at the initial hearing.” Maryland State Police v. Zeigler, 330 Md. 540, 561
(1993). The Pauls were provided with notice of the amended application and a full
8
The hearing examiner explained: “[Brandywine] doesn’t have to make any of these
changes, they can go forward with their plans exactly as they are and then I will have to
evaluate it in the context of all the evidence I’ve heard.”
16
opportunity to be heard.9 The Pauls, therefore, were not deprived of procedural due
process.
In addition to challenging the impartiality of the hearing examiner, the Pauls
challenge the hearing examiner’s reasoning for accepting the amended application
submitted by Brandywine.10 As we shall explain, the amendments were permissible under
the zoning ordinance and OZAH rules.
The Pauls contend that the hearing examiner improperly relied upon OZAH Rule
22.0 to support his acceptance of the amended application. The Pauls assert that the hearing
examiner’s interpretation of Rule 22.0 is inconsistent with Z.O. § 59-7.3.1.D.3.a, and that
the zoning ordinance is controlling rather than Rule 22.0. In our view, no conflict exists
between the ordinance and the rule.
9
The Pauls contend that Brandywine failed to include summaries of expert
testimony with the amendments to the application in violation of OZAH Rule 3.4.3,
depriving them of notice. Rule 3.04, however, governs only the applicant’s pre-hearing
submission which must be filed and served at least thirty days before the initial hearing
date. Furthermore, the Pauls do not -- and cannot -- dispute that they received copies of
the amendments as well as notice from the hearing examiner. The Pauls took advantage of
their opportunity to be heard by cross-examining Brandywine’s witnesses about the
amended application and by providing rebuttal testimony.
10
The Pauls repeatedly emphasize that Brandywine never formally filed a motion
to amend the conditional use application for the Project. Although the Pauls are correct
that Brandywine did not file a particular paper titled “Motion to Amend,” the record reflects
that Brandywine’s December submission of an amended application, including a detailed
cover letter and technical plans, amounted to a motion to amend and put all parties on
notice of the proposed changes. The hearing examiner did not err by treating the
amendments as a motion to amend the conditional use application. See Corapcioglu v.
Roosevelt, 170 Md. App. 572, 590 (2006) (“It is well established in Maryland law that a
court is to treat a paper filed by a party according to its substance, and not by its label.”).
17
OZAH Rule 22.0 governs modifications to a conditional use application, providing
that “[a]pplicants may modify a conditional use application before the public hearing by
filing a motion to amend the application with the [h]earing [e]xaminer.” Rule 22.3
provides that “[n]o written notice is required for amendments made during a public
hearing.”
Z.O. § 59-7.3.1.D.3., titled “Amendment of an Application,” provides:
An applicant may amend the application before the hearing if
the [h]earing [e]xaminer approves a motion to amend after
giving 10 days’ notice to all parties entitled to original notice
of filing. If an amendment would materially alter an
applicant’s proposal or evidence, the [h]earing [e]xaminer may
postpone the hearing to a date that permits all interested parties
adequate time to review the amendment.
Z.O. § 59-7.3.1.D.3 is entirely silent as to the amendment of an application during a
hearing. We reject the Pauls’ characterization of the silence of the zoning ordinance on
this issue as somehow forbidding amendment during a hearing. The statutory framework
of the zoning ordinance embraces flexibility in the conditional use approval process in
order to seek compatibility between a proposed project and the surrounding neighborhood.
See Z.O. § 59-7.3.1.F.1.a (permitting the hearing examiner to “supplement the specific
requirements of this Chapter with any other requirements necessary to protect nearby
properties and the general neighborhood”); Z.O. § 59-3.3.2.E.2.C.ii.(i) (permitting the
hearing examiner in conditional use applications for residential care facilities to “modify
any standards to maximize the compatibility of the building with the residential character
of the surrounding neighborhood.”).
18
The Pauls further assert that the hearing examiner improperly relied upon this
Court’s decision in Concerned Citizens of Great Falls, Maryland v.
Constellation-Potomac, L.L.C., 122 Md. App. 700 (1998), when he determined that the
amendment process was permissible because the parties had been given a fair opportunity
for comment and cross-examination. The Pauls assert that the holding of Constellation is
inapplicable to the instant case.
Constellation involved a petition for a special exception for the construction and
operation of a senior care home. 122 Md. App. at 704. In that case, the Board of Appeals
for Montgomery County accepted plans amended by the applicant on the final day of
hearings11 and closed the record without granting the opposing parties additional time to
respond to the amended plans. Id. at 706. We held that the Board committed prejudicial
error when it permitted the applicant to submit the amended plans and closed the record.
Id. The hearing examiner discussed our holding in Constellation, determining that
Constellation stands for the proposition that amendments to a conditional use plan during
the course of a hearing for the purpose of enhancing compatibility, with sufficient notice
to opposing parties and an opportunity to respond, is permitted. We agree that this is the
correct reading of Constellation, and we are entirely unpersuaded by the Pauls’ assertions
to the contrary.12 In the present case, unlike Constellation, the opposing parties were
11
The applicant had submitted additional revisions during the hearings, without
objection.
12
The Pauls attempt to distinguish Constellation by emphasizing that the earlier
revisions submitted in Constellation were unopposed and that the amendment on the final
day of the hearing was submitted by the applicant. The Pauls again urge that, in this case,
19
provided with sufficient notice of the revisions to Brandywine’s conditional use application
and were provided with the opportunity to respond.
The record as a whole reflects that the hearing examiner requested that Brandywine
consider amending the Project in order to assuage various concerns expressed by the parties
in opposition. The hearing examiner did not coerce Brandywine to make any changes.
After Brandywine submitted revised plans, the hearing examiner accepted the plans into
evidence after providing appropriate notice to all parties. Furthermore, the hearing
examiner provided the opposing parties the opportunity to respond to the amended
application. For these reasons, we hold that the hearing examiner did not commit
prejudicial legal error by suggesting that Brandywine make certain modifications to the
Project and thereafter permitting the amendment of Brandywine’s conditional use
application.
III. The Board’s Substantive Determinations
We next turn our attention to the hearing examiner’s application of the zoning
ordinance standards to Brandywine’s application and ultimate decision to grant the
conditional use application. The Neighbors take issue with the hearing examiner’s findings
and conclusions on the Project’s conformance with the master plan and compatibility of
the surrounding residential neighborhood, noise impacts of the Project, adequacy of storm
no motion to amend was ever filed by Brandywine, but rather that the hearing examiner
“told Brandywine what to do and it satisfied him.” Again, we reject the Pauls’
characterization of the hearing examiner’s conduct. The hearing examiner did not coerce
Brandywine to make any changes to its application. Rather, the hearing examiner made
suggestions to enhance compatibility. As we explained supra, this was not improper.
20
drainage for the Project, and the Project’s effect on the economic value of the Pauls’
property. As we shall explain, we shall hold that the hearing examiner’s findings and
conclusions were supported by substantial evidence and premised upon accurate
conclusions of law.
A. Compatibility with Surrounding Neighborhood and Conformance with
Master Plan
As discussed supra, the circuit court reversed the hearing examiner’s findings
regarding conformance with the applicable master plan, having determined that the hearing
examiner was required to “evaluate the proposed conditional use against the standards of
the RE-2 zone, particularly in light of the fact that the existing conditional use on site (the
tennis facility) will be extinguished.” On appeal, Brandywine and the County assert that
the circuit court erred and that the hearing examiner’s findings as to neighborhood impact
and master plan conformance were correct. The Neighbors contend that the hearing
examiner inappropriately considered the departing conditional use when considering
whether the Project would alter the character of the residential neighborhood. The
Neighbors further take issue with the hearing examiner’s finding that the Project
substantially conforms with the applicable master plan.
1. Residential Neighborhood
The zoning ordinance requires that the hearing examiner, in order to approve a
conditional use application, find that the proposed project “is harmonious with and will not
alter the character of the surrounding neighborhood in a manner inconsistent with the plan.”
Z.O. § 59-7.3.1.E.1.d. The zoning ordinance further requires that “[a]ny structure to be
21
constructed, reconstructed, or altered under a conditional use in a Residential Detached
zone must be compatible with the character of the residential neighborhood.” Z.O. § 59-
7.3.1.E.2.
The hearing examiner specifically addressed both of the above-referenced
provisions of the zoning ordinance. With respect to whether the Project “is harmonious
with and will not alter the character of the surrounding neighborhood in a manner
inconsistent with the plan,” see Z.O. § 59-7.3.1.E.1.d, the hearing examiner observed that
“[t]he surrounding neighborhood is by no means exclusively defined by single-family
residences.” The hearing examiner observed that “[a] tennis club and related facilities
currently sit on the subject site” and the Falls Road Golf Course, Manor Care and Arden
Courts assisted living facilities, Normandie Farms restaurant, and the Bullis School are
nearby. The hearing examiner concluded that “[a]lthough the Pauls’ residence and other
homes are within the neighborhood to the west of the [Property], the addition of the
[Project] would not be ‘alter[ing] the character of the surrounding neighborhood,’ which is
the question posed by the provision.” The hearing examiner concluded that the Project
“will be harmonious with the neighborhood.” The hearing examiner observed that this
issue “must be evaluated on a comparative basis . . . because one cannot evaluate whether
the neighborhood would be altered without considering what is presently there.” 13
13
The hearing examiner similarly concluded that whether the Project will unduly
reduce the economic value of the neighbor’s property must be measured while considering
the existing use on the Property. We discuss this issue infra.
22
The hearing examiner separately addressed whether the Project was “compatible
with the character of the residential neighborhood” as required by Z.O. § 59-7.3.1.E.2. The
examiner observed that Z.O. § 59-7.3.1.E.2 “requires an examination of the compatibility
of the [Project] with the character of the residential neighborhood in which it is located.”
The hearing examiner observed that the question is “similar to the one raised by [Z.O. §
59-7.3.1.E.1.d.], above, which asked whether the proposed use will be harmonious with
the neighborhood or would alter its character.” The hearing examiner, however,
determined that “in answering the compatibility question raised by § 59-7.3.1.E.2., the
Hearing Examiner will not consider the existing use on the site because it will be gone if
the subject application is approved.” He further emphasized that “[t]he compatibility is
not whether the proposed replacement will be more compatible than the existing use on the
site, but whether the proposed use will be compatible with the remaining neighborhood
after the existing use is replaced.”
After setting forth the issue under determination, the hearing examiner analyzed the
Project and the particular residential neighborhood in which the Property is located. The
hearing examiner observed that “[e]ven without reference to the existing tennis facility, the
particular residential neighborhood in question is somewhat unusual in that it is dominated,
at least in the immediate vicinity of the [Project], by uses that are distinctly not single-
family residential in character - a nursing home (Manor Care); and assisted living facility
(Arden Courts); and a golf course (Falls Road Golf Course). In addition, the hearing
examiner noted that “[t]wo other major non-residential uses are also in the defined
neighborhood, the Normandie Farms restaurant, just to the south of the Manor Care facility,
23
and the Bullis School, located just across Falls Road from the golf course.” The hearing
examiner emphasized that there is only one single-family residential use abutting the
Property, namely, the Pauls’ residence. The hearing examiner concluded that although “a
significant portion of the neighborhood to the west of the site is occupied by single-family
residences, they clearly are not the predominant part of the existing neighborhood
especially in the immediate vicinity of the [Property].”
With respect to the style of the Project, the hearing examiner credited the testimony
of architect Hal Bolton, who testified that the Project is “designed in an English Tudor
style . . . similar to many of the residences in the Potomac neighborhood.” Residential
features include chimney pods, a rooftop cupola, Tudor detailing, residential windows,
copper trim along the roof edge, architectural shingles, a pitched roof, dormers and
masonry fireplaces and chimneys, and stone clad exterior walls. The hearing examiner
quoted from the Technical Staff’s report, observing that “[t]hese architectural elements
wrap around the entire building facade for a cohesive look from all directions.” The
hearing examiner concluded “that the proposed use, a residential care facility designed with
residential style architecture, is not out of character with this neighborhood.”
The hearing examiner then turned his attention to whether the Project was
compatible with the immediate neighbors, specifically, the Pauls. The hearing examiner
considered testimony from the Pauls’ land planner, James Noonan, who testified that the
Project would not be compatible with the Pauls’ property. Mr. Noonan had testified that
the structure of the Project was “fairly bulky” and would be “quite easily” visible from the
Pauls’ property “during leaf-off conditions.” The hearing examiner also discussed the
24
testimony of Brandywine’s land planning expert, Joshua Sloan. Mr. Sloan testified that
the Project would be compatible with the Pauls’ property, even without considering the
subsequent revisions in which the height of the side facing the Pauls’ property was reduced
by one floor. Mr. Sloan explained that most of the homes in the area were “two and a half
stories” tall, due to their peaked roofs. The hearing examiner additionally discussed the
testimony of Brandywine’s architect, Mr. Bolton, explaining that “[m]any of the homes in
the neighborhood . . . reach up similar in height to where this building is.” The hearing
examiner also considered the Technical Staff’s evaluation of this issue, observing that
Technical Staff concluded that the Project “is compatible with the character of the
residential neighborhood.” The hearing examiner further observed that the Planning Board
“generally agreed with the analysis of compatibility in the Technical Staff report.”
With respect to the Pauls’ opposition to the Project, the hearing examiner explained
that he understood that their “opposition is heartfelt,” but “that does not mean that their
fears will be realized or that they reflect the actual impacts of the proposed structure, as
modified through the hearing process.” The hearing examiner emphasized that the Pauls’
home is “much closer” to the Arden Courts facility than it would be to the Project. The
hearing examiner also found it “worthy of note” that the Board, several years prior, “faced
the same sorts of objections to the Manor Care special exception as the ones raised in this
case . . . and found that it would be compatible with the neighborhood, even though the
Board recognized that the corner of the assisted living center would be only 60 feet from
the Pauls’ property line.” For these reasons, the hearing examiner found that the Project
was compatible with the Pauls’ property.
25
The Neighbors assert that the hearing examiner’s analysis of the compatibility of
the Project with the residential neighborhood was based upon an incorrect application of
the law. Specifically, the Neighbors contend that the hearing examiner inappropriately
considered the departing conditional use when evaluating the Project’s compatibility with
the residential neighborhood. The Neighbors cite the Zoning Ordinance’s intent statement
for the RE-2 zone, emphasizing that “[t]he intent of the RE-2 zone is to provide designated
areas of the County for large-lot residential uses. The predominant use is residential in a
detached house.” Z.O. § 59-4.4.4.A. For this reason, the Neighbors assert that the
departing use should never be considered by the hearing examiner, and, instead, the hearing
examiner should compare the compatibility of the Project with the residential
neighborhood as compared to a scenario in which the Property was redeveloped with
large-lot single-family homes. Brandywine asserts that it was proper for the hearing
examiner to evaluate Z.O. § 59-7.3.1.E.1.e taking the existing use into consideration, and
to evaluate Z.O. § 59-7.3.1.E.2 without taking the prior use into consideration.
The Neighbors attempt to apply a bright line rule forbidding any consideration of
the departing use whatsoever. They argue that comparing the departing conditional use
with its proposed successor is legal error because Z.O. § 59-7.3.1.E.2 mandates that the
proposed conditional use “be compatible with the character of the residential
neighborhood.” The Neighbors characterize this provision of the zoning ordinance as the
local incarnation of the statewide legal framework for evaluation of conditional uses set
forth in People’s Counsel for Baltimore County v. Loyola College in Maryland, 406 Md.
54 (2008). In People’s Counsel, the Court of Appeals explained that the “analytical overlay
26
for applications for individual [conditional uses] is focused entirely on the neighborhood
involved in each case.” Id. at 102. The Court reiterated the “often-quoted” standard set
forth in Schultz v. Pritts, 291 Md. 1 (1981):
We now hold that the 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.
People’s Counsel, supra, 406 Md. at 102 (quoting Schultz, supra, 291 Md. at 15). The
Court explained that “Schultz speaks pointedly to an individual case analysis focused on
the particular locality involved around the proposed site.” Id.
Nowhere in People’s Counsel, Schultz, or the Montgomery County Zoning
Ordinance is there a strict rule categorically prohibiting the consideration of a departing
conditional use in any manner whatsoever. In our view, the appropriate standard is
somewhat more nuanced. Indeed, the neighborhood in which the Property is located is
zoned R-2 residential, and the use of the Property permitted by right is large-lot, single-
family homes. While the appropriate standard is certainly not whether a proposed
conditional use is more compatible or less compatible than a departing use, the well-
established standard requires an analysis focused on a particular locality. The record in the
present case reflects that the hearing examiner properly considered the specific residential
neighborhood surrounding the Property when considering whether the Project would be
compatible with the neighborhood. As the hearing examiner explained, and as we set forth
27
supra, this particular neighborhood included a wide range of non-residential uses,
including services for the elderly, a restaurant, a school, and a golf course.
Furthermore, we agree with the hearing examiner’s recognition that
Z.O. § 59-7.3.E.1.d, the factor regarding whether a proposed use “is harmonious with and
will not alter the character of the surrounding neighborhood in a manner inconsistent with
the plan,” implicitly requires a consideration of the current state of the neighborhood.
“Alter” is defined as “to make different without changing into something else.” Alter,
Merriam–Webster, http://www.merriam-webster.com/dictionary/alter. As the hearing
examiner observed, “one cannot evaluate whether [a] neighborhood would be altered
without considering what is presently there.” The question before the examiner was
whether the Project would alter the character of the neighborhood, i.e., make the
neighborhood’s character different from what it previously was. In these circumstances,
the hearing examiner did not err in considering the existing tennis facility.
To be sure, it would be inappropriate for the hearing examiner to simply weigh a
departing conditional use against a proposed conditional use and permit any proposed
conditional use that is somehow more compatible or less adverse to the residential character
of the neighborhood than the departing use. Critically, this is not what the hearing
examiner did in this case. The hearing examiner carefully considered requirements set
forth in the zoning ordinance and applied them to the circumstances of the particular
application under consideration. Accordingly, we hold that the hearing examiner’s
findings with respect to neighborhood compatibility were supported by substantial
evidence and premised upon accurate conclusions of law.
28
2. Substantial Conformance with the Master Plan
The Neighbors further take issue with the hearing examiner’s determination that the
Project substantially conformed with the recommendations of the applicable master plan.
The applicable master plan involved in this case is the 2002 Potomac Subregion Master
Plan. The hearing examiner recognized that “the proper interpretation of the master plan
was hotly disputed in this case.”
The hearing examiner heard testimony from various witnesses about the Project’s
conformance with the master plan, much of which was summarized in the hearing
examiner’s report and decision. Various witnesses for the neighbors expressed concerns
about issues relating to the green wedge, overconcentration of conditional uses, traffic
problems and compatibility, and specific master plan references to five specific sites as
appropriate for senior housing. The hearing examiner observed that the plain language of
the master plan provides that “[s]enior housing is appropriate throughout the Subregion
wherever zoning permits this use, either by right or as a special exception use.” The hearing
examiner found that “[t]he fact that the [master p]lan also mentions five locations which it
identified as probably appropriate does not mean that it excludes other possible locations
‘throughout the Subregion.’”
The hearing examiner discussed the expert testimony presented on the issue of
master plan conformance, observing that the Neighbor’s expert land planner, James
Noonan, “did not testify with regard to [m]aster [p]lan conformity.” The hearing examiner
emphasized that, “[i]n contrast, [B]randywine’s land planner, Joshua Sloan . . . found that
the [Project] ‘was in conformance with [m]aster [p]lan recommendations.’”
29
The hearing examiner further discussed the Technical Staff’s findings with respect
to master plan conformity, and specifically, addressed the particular issues raised by the
opposition. The Technical Staff observed that the master plan “seeks to maintain the low-
density ‘green wedge’; however, as observed by [Technical] Staff, a residential care facility
is allowed as a conditional use. The proposed use meets the specified standards and
provides ample landscaping and screening from the neighboring uses.”
The hearing examiner quoted from the Technical Staff’s analysis of conditional use
policy as set forth in the master plan, observing that the Property was not a highly visible
site and that “building design, landscaping and screening . . . further complement its
surroundings.” With respect to avoiding an excessive concentration of conditional uses
along major transportation corridors, the hearing examiner observed that Technical Staff
found that “the site is not highly visible from Falls Road . . . and will not create additional
traffic burdens.” Technical Staff further addressed the master plan’s identification of
particular areas as appropriate for senior housing:
[T]he [m]aster [p]lan makes specific recommendations . . . of
the need for additional housing for the elderly to allow
residents the opportunity to age in place within the community.
The [m]aster [p]lan recognizes that “[t]he Potomac Subregion
does not fully meet its residents needs for senior housing
within its boundaries.’ It adds that this need for housing will
likely increase with time. [Technical] Staff notes that although
the [m]aster [p]lan identified prime locations for including
elderly housing, it endorses locating senior housing
“throughout the Subregion wherever zoning permits this use,
either by right or as a [conditional use].”
30
The hearing examiner found that “there [was] no expert testimony in [the] record to
contradict the findings of Technical Staff and [Brandywine’s] land planner with regard to
the [m]aster [p]lan.”
It was entirely appropriate for the hearing examiner to rely upon the Technical
Staff’s detailed analysis of master plan conformance, which had been adopted by the
Planning Board. Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292, 316 (2007),
aff’d, 405 Md. 43 (2008) (explaining that a planning board “is entitled to deference” with
respect to “interpret[ing] and appl[ying], in light of other provisions, the goals, and
limitations contained in generals plans and master plans). See also Maryland-Nat. Capital
Park & Planning Comm’n v. Greater Baden-Aquasco Citizens Ass’n, 412 Md. 73, 110
(2009) (“It is not unreasonable for the Planning Board to rely on a Staff Report . . . if the
Staff Report is thorough, well conceived, and contains adequate findings of fact.”).
In our view, there is sufficient evidence in the record which would permit “a
reasoning mind [to] reasonably . . . reach[]” the hearing examiner’s conclusion that the
Project substantially conforms with the applicable master plan. Layton v. Howard Cnty.
Bd. of Appeals, 399 Md. 36, 48-49 (2007) (internal quotation omitted). We will not
substitute our judgment for that of the hearing examiner.
B. Noise
The Neighbors assert that the hearing examiner did not correctly address the adverse
non-inherent noise impacts of the Project. Pursuant to Z.O. § 59-7.3.1.E.1.g.ii, the hearing
examiner was required to find that that Project would “not cause undue harm to the
neighborhood as a result of a non-inherent adverse effect alone or the combination of an
31
inherent and a non-inherent adverse effect [as to] noise.” The hearing examiner considered
the potential noise impact of the Project, concluding that “the proposed conditional use,
with the hours of trash pickup and food deliveries along the western driveway restricted by
a condition in Part IV of this Report and Decision, will not create undue harm to the Pauls
or any other neighbors due to noise.”
The Neighbors assert that Brandywine failed to demonstrate that the Project would
not create noise that would disturb the Pauls’ peaceful enjoyment of their property. The
Neighbors presented testimony from acoustical engineer Gerald Henning before the
hearing examiner. They contend that Mr. Henning’s testimony that the noise associated
with trash and delivery trucks would likely exceed the Montgomery County Noise
Ordinance was “uncontradicted.” The Neighbors further point to Mr. Henning’s testimony
that even noise levels which satisfy the noise limits under the ordinance would still interfere
with the Pauls’ peaceful enjoyment of their property because the noise levels would still
be substantially higher than average backyard ambient noise levels. The Neighbors
contend that there was no testimony that contradicted Mr. Henning’s testimony and
opinions, and, therefore, the hearing examiner should have denied Brandywine’s
conditional use application on this basis.
The record reflects that the hearing examiner considered the testimony of Mr.
Henning as well as the testimony of Scott Harvey, Brandywine’s acoustical engineering
expert. Mr. Harvey testified that, in his expert opinion, there would not be any significant
adverse noise impacts and that all mechanical equipment could be designed to meet noise
ordinance requirements. In addition, the hearing examiner considered and discussed the
32
Technical Staff’s noise analysis. The hearing examiner emphasized that Technical Staff
recognized that “[t]here may be potential noise impacts from deliveries and trash pick-up,”
but noted that this would be limited to three occurrences per week. Furthermore,
“evergreen trees and a stone wall enclosure [would] enhance screening already provided
by the existing trees.” The hearing examiner further explained that the Technical Staff’s
initial evaluation with respect to noise predated the December 2015 revisions to the plan
and that the revised plans included relocating the trash enclosure further from the property
line. Additionally, the revisions included a modified vehicle turn-around area “further
away from the property boundary.”
The hearing examiner considered the evidence presented with respect to the noise
impacts of the Project and weighed the conflicting expert opinions of Mr. Henning and Mr.
Harvey. “It is the province of the administrative agency, not the appellate court, to resolve
conflicting evidence and draw inferences from that evidence.” Balfour Beatty Const. v.
Maryland Dep’t of Gen. Servs., 220 Md. App. 334, 363 (2014). It is not the place of this
Court to substitute our own judgment for that of the hearing examiner and weigh the
credibility of various expert witnesses. Based upon the evidence presented to the hearing
examiner, “a reasoning mind reasonably could have reached the factual conclusion the
[hearing examiner] reached” as to noise impacts. Id. (internal quotation omitted).
Accordingly, we will not disrupt the agency’s findings as to potential noise impacts of the
Project on appeal.
33
C. Stormwater Drainage
The Pauls take further issue with the hearing examiner’s conclusions as to the
adequacy of stormwater drainage for the Project. Pursuant to Z.O. § 59-7.3.1.E.1.f, the
hearing examiner was required to find that the Project “will be served by adequate public
services and facilities including . . . storm drainage.” The Pauls assert that the hearing
examiner failed to appropriately address and credit the testimony of their expert land
planner, James Noonan, who identified a pipe system included in the plans for the Project
that would purportedly deliver water to the western portion of the Property near the
boundary with the Pauls’ property.
The hearing examiner expressly identified that “[s]tormwater management was an
issue in this case based upon the Pauls’ testimony that stormwater from the subject site
currently flows onto their land.” The hearing examiner credited the testimony of
Brandywine’s civil engineer, Donald Mitchell, who confirmed the existing drainage
problem. The hearing examiner further discussed Mr. Mitchell’s testimony about ways in
which the Project would result in improved stormwater conditions on the Pauls’ property:
According to the testimony of Mr. Mitchell, the amount
of stormwater flowing from the subject site onto the Pauls’
property will be dramatically reduced by the stormwater
management facilities provided for the new use. Mr. Mitchell
introduced a diagram to demonstrate that:
. . . in existing conditions approximately half an
acre or 20,473 square feet of surface area flows
by gravity across the ground and flows into the
Pauls’ property. In proposed condition, this
drainage area is reduced by 96.4 percent to a net
746 square feet of surface drainage area that in
34
ultimate conditions will be flowing to the Pauls’
property at this northwestern apex of the site.
Mr. Mitchell noted that these results are not only an
improvement from current conditions, but also an
improvement from that which would have been achieved under
[Brandywine’s] original plans.
(References to the administrative record omitted.) The hearing examiner further found that
Brandywine’s “engineering evidence was unrefuted at the hearing.” For these reasons, the
hearing examiner concluded “that the proposed changes will be a net benefit to the
environment and will dramatically reduce stormwater runoff from the [Property] onto the
Pauls’ property.”
On appeal, the Pauls acknowledge that they “did not challenge the accuracy of th[e]
surface area computation” credited by the hearing examiner. Instead, they argue that the
hearing examiner addressed “only one aspect of stormwater management” and that the
hearing examiner failed to discuss the pipe system identified by Mr. Noonan. The Pauls
are correct that the hearing examiner did not mention Mr. Noonan’s testimony on this topic.
Critically, although this particular testimony was not addressed in the hearing examiner’s
report, we have explained that “[t]he opportunity for ‘meaningful’ review [of an
administrative decision] is not necessarily an opportunity for exhaustive review of every
possible basis for a petitioner’s challenge.” Accokeek, Mattawoman, Piscataway Creeks
Communities Council, Inc. v. Maryland Pub. Serv. Comm’n, 227 Md. App. 265, 288, aff’d
451 Md. 1 (2016). Furthermore, Mr. Noonan did not testify as an expert in stormwater
management, and the hearing examiner specifically commented upon Mr. Noonan’s lack
35
of expertise in this area. Accordingly, we reject the Pauls’ challenge to the hearing
examiner’s finding with respect to the adequacy of stormwater drainage.
D. Undue Harm to the Economic Value of the Pauls’ Property
Last, we address the Neighbors’ challenge to the hearing examiner’s conclusion that
the Project would not cause undue harm to the economic value of the Pauls’ property. On
appeal, the Neighbors raise multiple challenges to the hearing examiner’s conclusion on
this issue. The Neighbors assert that the hearing examiner erred by considering the
presence of the tennis facility when evaluating undue harm to the economic value of the
Pauls’ property. The Neighbors further assert that the hearing examiner improperly
conflated the economic value of the Pauls’ property with the fair market value of the Pauls’
property. We are unpersuaded by either contention, but we address each in turn.
1. Consideration of Tennis Facility
The hearing examiner analyzed whether the Project would cause “undue harm to
the neighborhood as a result of . . . adverse effect” in the category of “economic value . . .
of abutting and confronting properties” as required by Z.O. § 59-7.3.1.E.g.i. The hearing
examiner observed that this analysis must be evaluated “on a comparative basis” taking
into account the existing tennis facility because a determination of “[w]hether the proposed
new use on the [Property] will unduly reduce the economic value of the neighbor’s
property, in comparison with its present economic value . . . cannot be measured without
considering the economic impact on the neighbor of the existing use.”
When considering whether the Project caused undue harm to the economic value of
the Pauls’ property, the hearing examiner considered testimony from the Pauls’ expert
36
witness, Ronald Danielian, and Brandywine’s expert witness, Donald Boucher. Mr.
Danielian, a realtor, testified that the Project would have a stronger detrimental effect on
the value of the Pauls’ property than the tennis facility had previously. Mr. Boucher
disagreed. The hearing examiner credited Mr. Boucher’s testimony, finding that “the
economic impact of the [Project] on the Pauls’ property is likely to be no greater than the
economic impacts of the existing tennis facility, the Manor Care facility and the Arden
Courts facility, all of which are already adjacent to the Pauls’ property.” The hearing
examiner explained that “[i]f there were only single-family residences adjacent to the
Pauls’ property,” his “conclusion might be been different.” The hearing examiner
explained:
[H]owever, with the already existing adjacent facilities, the
Hearing Examiner must conclude that the replacement of an
existing impactful tennis facility with the proposed facility,
designed to look residential in appearance, will not materially
change the economic impacts on the Pauls’ property.
The Neighbors assert that it was error for the hearing examiner to consider the
current economic value of the Pauls’ property, with the tennis facility next door, when
evaluating the Projects effect on the Pauls’ property’s economic value. Instead, the
Neighbors propose that the economic value of the Pauls’ property with the Project next
door should be evaluated against the economic value of the Pauls’ property with two
hypothetical detached single-family residences next door. The Neighbors assert that such
an analysis is reasonable if one assumes development of the Property “with houses as large
as any in the neighborhood, or possibly even larger, as development standards would
permit.”
37
We disagree that such a hypothetical analysis is the appropriate standard. The
zoning ordinance specifically requires an analysis of whether a proposed conditional use
will cause “undue harm to the neighborhood” by causing an “adverse effect” to the
“economic value . . . of abutting and confronting properties.” Z.O. § 59-7.3.1.E.g.i. In
order to determine whether there is likely to be an adverse effect on the economic value of
a particular property, one needs to have a baseline for comparison. Principles of
conditional use/special exception jurisprudence dictate that the analysis must consider the
proposed conditional use’s potential effects on the specific locality involved, not to a
typical neighborhood within the same zone. See, e.g., Montgomery Cty. v. Butler, 417 Md.
271, 305, 9 A.3d 824, 844 (2010) (“[I]t is for the zoning board to ascertain in each case the
adverse effects that the proposed use would have on the specific, actual surrounding area.”)
(emphasis in original).
Similarly, the effect of a proposed conditional use on a neighboring property’s value
must be evaluated against the specific, actual current value of the property, not against a
theoretical value based upon a hypothetical alternative for the proposed conditional use
site. Indeed, we have further concerns about the actual feasibility of such an analysis. The
Neighbors urge that the analysis could be undertaken by assuming development with
houses “as large as any in the neighborhood,” but the effect on an abutting property’s
economic value could vary significantly depending upon the property’s location on the lot,
landscaping, and architectural style. For these reasons, we hold that the hearing examiner
properly considered the effect of the Project on the economic value of the Pauls’ property,
taking into consideration the existing tennis facility.
38
2. Economic Value/Fair Market Value
The Pauls assert that the hearing examiner failed to recognize the distinction
between “economic value” and “fair market value” and inappropriately evaluated the
evidence with a viewpoint that the distinction between the two was “not consequential.”
The Pauls further contend that this was legal error.
The hearing examiner expressly addressed this issue in his report and decision:
There was a considerable exchange throughout the hearing as
to whether the inquiry should be addressed to economic value,
market value or fair market value, and how to factor in the
differing expertise of the competing experts (Mr. Danielian for
the opposition and Mr. Boucher for the Applicant), with the
Applicant’s expert being qualified as a real estate appraiser and
the oppositions’ expert being qualified as a realtor. For
purposes of this hearing, the distinction between these terms is
probably not consequential. Although Mr. Danielian’s
testimony may be couched in terms of market price and Mr.
Boucher’s testimony is couched in terms o[f] appraised value,
they are actually both addressing the same issue -- the potential
for adverse effects from having a conditional use next door,
which the Zoning Ordinance capsulizes in the term “economic
value.” The Hearing Examiner will evaluate the effects on
economic value because that is the standard specified in
Section 59-7.3.1.E.1.g of the Zoning Ordinance.
The Pauls contend that “economic value” is defined as “concrete purchasing power; the
specific quantity of another object for which a given object can be exchanged; a price which
can be actually obtained.” For this definition, they cite the fourteenth definition of “value”
in Webster’s New International Dictionary of the English Language, Second Edition
(G.&C. Merriam Company, Springfield, Mass. 1947). Mr. Danielian testified that unlike
a fair market value based upon an appraisal -- which is a subjective judgment based upon
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various factors -- the economic value of a property “is the actual price of the property” as
agreed by a buyer and a seller.
Although we recognize, on a theoretical level, the distinction the Pauls attempt to
draw between economic value and fair market value, we agree with the hearing examiner
that the precise distinction is not particularly relevant to the analysis. The requisite
standard under the zoning ordinance is an evaluation of the effect of a particular conditional
use on the value of an adjoining property.
Critically, the hearing examiner specifically explained that he was evaluating the
effect on the Pauls’ property’s “economic value because that is the standard specified in
Section 59-7.3.1.E.1.g of the Zoning Ordinance.” Accordingly, we reject the Pauls’
assertion that the hearing examiner failed to apply the correct standard. We, therefore,
affirm the opinion of the Montgomery County Board of Appeals and remand the case to
the circuit court for entry of an order affirming the actions of the Board.
JUDGMENT OF THE CIRCUIT COURT FOR
MONTGOMERY COUNTY AFFIRMED IN PART
AND REVERSED IN PART. CASE REMANDED
TO THE CIRCUIT COURT FOR ENTRY OF AN
ORDER AFFIRMING IN ITS ENTIRETY THE
DECISION OF THE MONTGOMERY COUNTY
BOARD OF APPEALS. COSTS TO BE PAID BY
THE APPELLEES/CROSS-APPELLANTS.
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