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Brandywine Senior Living at Potomac LLC v. Paul

Court of Special Appeals of Maryland

April 30, 2018


          Circuit Court for Montgomery County Case Nos. 421781-V, 421782-V

          Eyler, Deborah S., Berger, Fader, JJ.


          Berger, J.

         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.

         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.


         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.

         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:

         (Image Omitted)

         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.

         (Image Omitted)

         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

         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 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 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 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 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.


         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 "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 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. ...

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