Brandywine Senior Living at Potomac LLC v. Paul

• Decision Date: 30 April 2018
• Docket Number: No. 2428, Sept. Term, 2016,2428, Sept. Term, 2016
• Citation: 184 A.3d 48,237 Md.App. 195
• Parties: BRANDYWINE SENIOR LIVING AT POTOMAC LLC, et al. v. Ronald A. PAUL, et al.
• Court: Court of Special Appeals of Maryland

237 Md.App. 195

184 A.3d 48

BRANDYWINE SENIOR LIVING AT POTOMAC LLC, et al.

v.Ronald A. PAUL, et al.

No. 2428, Sept. Term, 2016

Court of Special Appeals of Maryland.

April 30, 2018

Argued by: Erin E. Girard (Stephen Z, Kaufman, Phillip A. Hummel, Linowes & Blocher, LLP, Bethesda, MD) Kathryn Lloyd (Marc P. Hansen, County Attorney, Edward B. Lattner, John P. Markovs, Rockville, MD), all on the brief, for Appellant

Argued by: Davis W. Brown (Knopf & Brown, Rockville, MD) William Chen, Rockville, MD, all on the brief, for Appellee

Panel: 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.

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.

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:

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.

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...