FORKS OF THE PATUXENT IMPROVEMENT ASSOCIATION, INC., ET AL.
NATIONAL WASTE MANAGERS/ CHESAPEAKE TERRACE
Krauser, C. J., Kehoe, Leahy, JJ.
judicial review action is the latest episode of a prolonged
effort by National Waste Managers/Chesapeake Terrace
("National") to construct and operate a rubble
landfill on a large tract of land near Odenton, Maryland. In
2013, National applied for a variance to extend the time
period for obtaining construction permits for the project.
The variance application found its way to the Anne Arundel
County Board of Appeals. The Forks of the Patuxent
Improvement Association, Inc. (the "Association"),
as well as several individuals, opposed the variance.
members of the Board participated in the hearing. After the
hearing, the Board was evenly divided: two members of the
Board (the "Approving Members") were in favor of
granting the application and two members (the "Denying
Members") voted to deny it. The Board concluded that the
evenly-divided vote constituted a denial and entered an
administrative order to that effect.
filed a petition for judicial review in the Circuit Court for
Anne Arundel County. The court concluded that: (1) the
evenly-divided Board decision had the effect of denying the
application; (2) the court's focus should be on the
reasoning and findings of the Denying Members because their
decision was dispositive on the application; and (3) the
Denying Members applied erroneous standards to the evidence.
The court set out its view of the appropriate legal
standards, vacated the Board's decision, and remanded the
matter to the Board for further proceedings consistent with
Association appealed the court's judgment and
poses one issue, which we have re-worded:
Did the Board's evenly-divided 2-2 vote constitute a
denial of National's application for a variance?
filed a cross-appeal and presents three questions, which we
have consolidated and re-phrased:
Did the circuit court err in vacating and remanding the Board
of Appeals' decision rather than reversing the
Board's decision and ordering the Board to approve the
will explain, we agree with the circuit court's
conclusions that the case must be remanded but see the
relevant legal issues somewhat differently than did the
circuit court and the members of the Board. Therefore, we
will vacate the court's judgment and remand this case for
further proceedings consistent with this opinion.
owns a 481-acre tract of land in Anne Arundel County (the
"Project Site"). In 1993, National applied for and
received a special exception and variances from the Board to
construct and operate a rubble landfill and a sand and gravel
operation on the Project Site. The Board's approval was
affirmed by the Court of Appeals in Halle v. Crofton
Civic Ass'n., 339 Md. 131 (1995). After obtaining
the zoning approval, National had 18 months to obtain a
construction permit for the project; if it failed to do so,
the special exception would lapse, unless it obtained a
variance for an extension of time. See Anne Arundel
County Code § 18-16-405.
order to obtain a construction permit from the County,
National needed a solid waste refuse disposal permit from the
Maryland Department of the Environment (the "MDE").
The MDE's review process for such permits consists of
five phases. In summary, the phases are as follows:
1. Phase I centers on gathering basic information, such as
the project's intended objectives, location, etc. This
phase also gathers and compiles existing data about the site.
The MDE circulates this information to various local, State,
and Federal agencies for review and comment and to determine
whether the site is suitable for the intended use.
See COMAR 26.04.07.14.
2. Phase II consists of a hydrogeological investigation. The
applicant is required to identify and analyze groundwater and
geological conditions on the site. This report is also sent
to local, State, and Federal agencies for review and comment.
See COMAR 26.04.07.15.
3. Phase III entails engineering design. This phase takes all
of the information gathered, especially the hydrogeological
information from Phase II, and designs a landfill with these
considerations in mind. See COMAR 26.04.07.16.
4. Phase IV is a review stage. The MDE uses this period to
review all the information from Phases I-III to ensure that
all of the statutory and regulatory requirements have been
met. It then begins to prepare any and all documents it will
need to present to the public on the proposed permit. During
this phase, the MDE also drafts a proposed permit for the
5. Phase V is the public comment stage. The MDE advertises
and holds a hearing on the draft permit and invites the
public to submit comments on the proposal. After the public
comments are received, the MDE engages in a final review, and
then either issues the permit as is, issues it with
modifications, or denies the permit.
began this process in 1991, in conjunction with its
then-pending application for a special exception. In 1994,
however, the MDE suspended review because the County had
amended its Solid Waste Management Plan to omit any reference
to the Project Site. Litigation between National and the County
on the amendment culminated in National's favor by means
of an unreported decision of a panel of this Court in
National Waste Managers, Inc. v. Anne Arundel
County, No. 810, September Term, 1997, filed March 25,
1998 ("National I"). The County then took
the position that National's special exception permit had
lapsed pursuant to a prior version of what is now County Code
§ 18-16-405. This resulted in another lawsuit, which was
also finally resolved in National's favor by our decision
in National Waste Managers, Inc. v. Anne Arundel
County, 135 Md.App. 585 (2000) ("National
II"). In National II, we held that the
18-month time limit in what is now County Code §
18-16-405 was tolled during the pendency of the litigation
between National and the County. Id. at 614.
2001, MDE resumed its process of reviewing National's
proposal. MDE was unable to complete its review within the
18-month period set out in County Code §
18-16-405. Therefore, National filed for a variance
for an extension of time to begin construction in 2003. In
2004, the variance was granted. The Board of Appeals found
that exceptional circumstances, namely MDE's ongoing
review of the Project Site, made it impossible for National
to implement the previously approved special exceptions and
variances within the allotted time and that an extension of
two years was the minimum necessary to afford relief to
2004 and 2013, National filed three more variance
applications for extensions of time, each based upon
assertions that, although it had pursued its permit from MDE
with due diligence, the agency had been unable to complete
its review and approval process. The Board of Appeals
approved the first two variance requests in 2006 and 2011.
The extension granted in 2011 expired on January 3, 2013.
current variance application, National sought an additional
two year extension to obtain the necessary permits. An
administrative hearing officer granted the application after
a public hearing. The County Code provides that aggrieved
persons may appeal an AHO's decision to the Board, which
conducts its own de novo proceeding. County Code
§ 18-16-402. Appellants filed such an appeal.
Board's hearing in this case began on June 6, 2013 and
was completed on October 15th of that year. The Board issued
an evenly divided 2-2 decision on December 27, 2013. The
Approving Members voted to grant the application and the
Denying Members voted to deny it. After summarizing the
evidence presented to the Board, and explaining the differing
conclusions that each group drew from that evidence, the
The legal effect of the inability of the Board to reach a
majority is that [National] did not meet [its] burden of
persuasion and the request for variances for time extension
must be denied. When an appeal of this nature is placed
before the Board, it is heard de novo, and the
burden of proof and persuasion is placed upon [National]. See
Montgomery County Board of Appeals v. Walker, 228
Md. 574, 180 A.2d 865 (1962); Lohrmann v. Arundel
Corp., 65 Md.App. 309, 500 A.2d 344 (1985). If a
majority is not persuaded upon substantial evidence, the
application must be denied. Id.
filed a petition for judicial review of the Board's
decision in the circuit court. It presented a variety of
arguments to the circuit court, but only two of them are
relevant to the current appeal: (1) whether the Board's
evenly-divided vote had the legal effect of denying
National's application; and (2) whether the Denying
Members applied the correct legal standard in assessing the
evidence. On the first issue, the circuit court concluded
that the Board's 2-2 vote constituted a denial of the
application. However, on the second issue, the court
concluded that the Denying Members relied on an erroneous
legal standard. Thus, the court vacated the Board's
decision and remanded the case for reconsideration. The
Association has appealed, and National cross-appealed, the
circuit court's judgment.
this Court reviews the final decision of an administrative
agency, we "look through" the circuit court's
decision, and, although applying the same standards of
review, independently evaluate the agency decision.
People's Counsel for Baltimore County v. Surina,
400 Md. 662, 681 (2007). In this exercise, our review 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." Id. at 682 (citation and quotation marks
omitted). Finally, "[a] reviewing Court may not uphold
the agency order unless it is sustainable on the agency's
findings and for the reasons stated by the agency."
Eastern Outdoor Advertising Co. v. Mayor & City
Council of Baltimore, 128 Md.App. 494, 516 (1999)
(quotation marks and citation omitted).
Association contends that the Board's 2-2 evenly-divided
vote on National's application had the legal effect of
denying National's variance application. The Association
relies on this Court's decision in Lohrmann v.
Arundel Corp., 65 Md.App. 309 (1985) for support. We
agree that our prior decision is dispositive as to the legal
effect of an evenly-divided decision by an administrative
was not a judicial review proceeding but rather was an appeal
from a declaratory judgment to the effect that an
evenly-divided decision of the Anne Arundel County Board of
Appeals left the decision of the administrative hearing
officer in effect. Id. at 311-12. In our analysis,
we began by noting that, pursuant to the County's
charter, the Board of Appeals exercises original de
novo jurisdiction over all matters that come before it.
Id. We concluded that, because the Board was
exercising original jurisdiction:
[i]t was as though the zoning officer had made no decision.
In that situation, [the applicant] had the same burden it had
before the zoning officer-"the burden of proof
(including the burden of going forward with the evidence and
the burden of persuasion) of all questions of fact."
[County Code] § 13-341.2(a) . . . . The
evenly-divided Board decision demonstrates that it did not
meet that burden. Accordingly, the effect of the Board's
action was to deny [the applicant's] request for a
Lohrmann, 65 Md.App. at 319-20 (citation omitted,
cross-appeal, National asserts that Lohrmann is not
controlling because "the Court of Appeals on two
occasions addressed cases involving 'split votes' in
de novo appeals to Boards of Appeal, from decisions
of zoning hearing officers." National cites Levy v.
Seven Slade, Inc., 234 Md. 145 (1964) and Stocksdale
v. Barnard, 239 Md. 541 (1965), in support of this
proposition. National concedes, however, that the
Lohrmann Court distinguished both Levy and
Stockdale because in neither case "was an issue
raised as to the effect of a split decision on a de
novo administrative appeal. No doubt for that reason the
Court of Appeals did not address that issue, instead of
treating the cases as though they involved non-de
novo appeals." Lorhmann, 65 Md.App. at 316
scholarly and well-reasoned analysis is as cogent today as it
was when the opinion was filed more than thirty years ago. We
see no reason to depart from our long-established holding.
Because the Denying Members prevailed in rendering their
decision on National's application, it is their factual
findings and conclusions of law that we will review in
determining whether the Board erred in denying the
application. See Mombee TLC, Inc. v. Mayor and City
Council of Baltimore, 165 Md.App. 42 (2005) ("[N]o
principled legal distinction can be drawn between what is
required of a prevailing majority in rendering its decision
and that which is required of a prevailing minority in
imposing its will . . . . Therefore, . . . just as a
prevailing majority must do, a prevailing minority must . . .
issue findings of fact and conclusions of law.").
turn to what is the dispositive issue in this case, namely,
whether the Denying Members' decision was supported by a
"reasonable basis in fact" and was not arbitrary or
analysis begins with County Code § 3-1-207, which sets
out the criteria by which the Board is to decide whether to
issue a variance. The statute states in pertinent part:
(a) Generally. The Board of Appeals may vary or modify the
provisions of Article 18 of this Code when it is alleged that
practical difficulties or unnecessary hardships prevent
carrying out the strict letter of that article, provided the
spirit of law shall be observed, public safety secured, and
substantial justice done. A variance may be granted only upon
an affirmative finding that:
(2) because of exceptional circumstances other than financial
considerations, the grant of a variance is necessary to avoid
practical difficulties or unnecessary hardship, and to ...