BRANDYWINE SENIOR LIVING AT POTOMAC LLC, ET AL.
RONALD A. PAUL, ET AL.
Circuit Court for Montgomery County Case Nos. 421781-V,
Deborah S., Berger, Fader, JJ.
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") 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.
parties have presented multiple issues for our consideration
on appeal, which we have consolidated and rephrased as
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.
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.
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. 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.
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
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.
Technical Staff provided two aerial photographs and a map
illustrating the neighborhood. We have reproduced the figures
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.
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.
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"). 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.
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
adopted the conditions recommended by the Technical Staff and
added two additional conditions.
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.
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.
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.
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."
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. The
administrative record was closed on February 19, 2016.
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.
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."
Neighbors filed a petition for judicial review of the
Board's decision in the Circuit Court for Montgomery
County on May 20, 2016. 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.
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.
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
facts shall be discussed as necessitated by our discussion of
the issues on appeal.
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
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).
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).
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.