Chesapeake Bay Found., Inc. v. DCW Dutchship Island, LLC

• Citation: 97 A.3d 135,439 Md. 588
• Decision Date: 04 August 2014
• Docket Number: Sept. Term, 2013.,No. 77,77
• Parties: CHESAPEAKE BAY FOUNDATION, INC. and Magothy River Association, Inc., et al. v. DCW DUTCHSHIP ISLAND, LLC, et al.
• Court: Maryland Court of Appeals

439 Md. 588

97 A.3d 135

CHESAPEAKE BAY FOUNDATION, INC. and Magothy River Association, Inc., et al.

v.DCW DUTCHSHIP ISLAND, LLC, et al.

No. 77, Sept. Term, 2013.

Court of Appeals of Maryland.

Aug. 4, 2014.

Jon A. Mueller (Annapolis, MD), on brief, for Petitioners.

Paul J. Cucuzzella, Asst. Atty. Gen. (Rachel L. Eisenhauer, Asst. Atty. Gen., Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioners.

Gregory J. Swain, Sr. Asst. Co. Atty. (David A. Plymyer, Co. Atty., Annapolis, MD), on brief, for Respondents.

Robert J. Fuoco (Law Office of Robert J. Fuoco, Glen Burnie, MD; Warren Rich, Rich and Henderson, PC, Annapolis, MD), on brief, for Respondents.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.

ADKINS, J.

Roughly 35 million years ago, an asteroid over a mile wide crashed into the Earth at a speed of about 70,000 miles per hour. Hillary Mayell, Chesapeake Bay Crater Offers Clues to Ancient Cataclysm, National Geographic News, (November 13, 2001), http:// news. national geographic. com/ news/ pf/ 57998027. html. This collision created the Chesapeake Bay Crater. Id. One of the by-products of this celestial collision is the subject of this contest—Little Island in the Magothy River (“the Island”).

In 2000, DCW Dutchship Island, LLC (“DCW”), a corporation wholly owned by Daryl Wagner (“Wagner”), purchased the Island. At that time, the Island measured approximately 1.92 acres in area and was improved by a single-family house and related structures built in the 1920s.¹ Wagner demolished the house and set about building a new one. The circumstances surrounding this construction are not new to us. As we explained in McHale v. DCW Dutchship Island, LLC:

In or about 2001, Daryl Wagner, a member of DCW and a Maryland registered home builder, acting on behalf of DCW, demolished the old summer cottage and removed the debris, without the necessary permits or variances required by the Critical Area Law and County ordinances. Then, Wagner constructed the following structures or impervious surface areas on the Island: (1) a new 2,883 square foot home; (2) replacement sheds for the two preexisting sheds; (3) a 66 square foot gazebo; (4) a boat ramp and concrete driveway with approximately 2,668 square feet of surface area to accommodate his amphibious vehicle; (5) 846 square feet of sidewalks; and (6) a pool and deck totaling 1,433 square feet.

* * *

In November 2004, the County authorities discovered the construction activities on the Island and notified DCW of the numerous violations. On 28 December 2004, DCW sought variances from the unobserved requirements of the Critical Area Law for each of the structures and improvements on the Island. DCW sought also an amendment to the critical area buffer map, which prohibits most development activity within 100 feet of the shoreline.

A County Administrative Hearing Officer heard the evidence for and against

the requests for variances. The Magothy River Association (“MRA”) appeared at the variance hearings on 5 June 2005 and 20 September 2005 to oppose DCW's requests. The Hearing Officer granted some of the variances on 27 October 2005. Wagner appealed administratively the denials, and the MRA, the Chesapeake Bay Foundation (“CBF”), and the Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”) appealed the decision to grant the variances, all to the County Board of Appeals.

415 Md. 145, 151–52, 999 A.2d 969, 972–73 (2010) (footnote omitted). ² At the Anne Arundel County Board of Appeals (the “Board”) hearing, Wagner moved to dismiss MRA and CBF as parties to the administrative proceedings. The Board ultimately concluded that CBF did not have standing to appeal the granted variances because it did not participate in the hearing before the Administrative Hearing Officer (“AHO”), as required by § 3–1–104(a) of the Anne Arundel County Code (“AACC”).³ After 24 evenings of hearings on the subject, the Board revised the decision of the AHO to include certain conditions on the variances.⁴

The Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”), MRA, CBF, and Wagner all sought judicial review of the Board's decision in the Circuit Court for Anne Arundel County. These appeals were consolidated by Circuit Court order. In addition, CBF filed a “Motion for Summary Judgment” limited to the issue of whether the Board improperly excluded CBF from the variance portion of the proceedings. The court denied all motions relevant to the variance matter. The Circuit Court then affirmed the decision of the Board, observing:

The proceedings below were fair, reasonable, and in accordance with applicable law. After sorting through a tremendous volume of evidence, the Board rendered a decision supported by competent and substantial evidence. Reasonable minds will disagree, as demonstrated by the 35 pages of concurring and dissenting opinions. However, absent legal error, this Court may not substitute its own wisdom for the considered judgment of the Board and will therefore ... AFFIRM the decision of the Board of Appeals.

The Commission and CBF appealed the Circuit Court's decision to the Court of Special Appeals, arguing that the Critical Area Act ⁵ applied to the variance proceedings, that the Board erred in refusing to allow CBF to participate as a party in the administrative process, and that the Board did not base its decision on substantial evidence in the record. In an unreported opinion, the Court of Special Appeals rejectedthese arguments and affirmed the Circuit Court.

MRA and CBF (collectively “Petitioners”) ⁶ petitioned this Court for certiorari. We granted this petition to consider the following questions, which we have restated for clarity and concision:

1. Did CBF have standing to participate in the variance proceedings before the Board of Appeals on the grounds that MRA, which advocated the same position, had standing?

2. Does AACC § 3–1–104(a) violate the Express Powers Act, thus making the Board's denial of standing to CBF on the basis of it erroneous?

3. Did the Board of Appeals violate its own rules when it held that CBF could not cross-examine witnesses, resulting in CBF being denied due process?

4. Did the Board of Appeals err in granting Wagner after-the-fact variances?

For the following reasons, we answer the first three questions in the negative and the fourth in the affirmative, but only in part.

DISCUSSION

Petitioners present three arguments in support of their request that we should remand this matter to the Board so that CBF may participate in the creation of a record in the variance proceedings.⁷

CBF's Standing To Participate As A Party Before The Board Of Appeals

We first address Petitioners' argument that MRA's administrative standing before the Board confers standing on CBF. Petitioners claim that Sugarloaf Citizens' Association v. Department of Environment, 344 Md. 271, 686 A.2d 605 (1996), partially abrogated by statute, Md.Code (1982, 2013 Repl.Vol.), § 5–204(f) of the Environment Article, as stated in Patuxent Riverkeeper v. Maryland Department of Environment, 422 Md. 294, 298, 29 A.3d 584, 586 (2011), and Garner v. Archers Glen Partners, Inc., 405 Md. 43, 949 A.2d 639 (2008) stand for the proposition that if one party has standing to participate in the proceedings, so do all other parties on the same side of the case—what might be called “piggy-back” standing. Using these cases, Petitioners reason that because MRA appeared before the AHO, and the Commission had a statutory right to challenge the variances, CBF need not have appeared before the AHO, or for that matter even have been aggrieved, to have standing before the Board.

Petitioners argue that the Court of Special Appeals specifically relied on Sugarloaf for this point in a similar context. They point to the following language in a footnote in Chesapeake Bay Foundation, Inc. v. Clickner, 192 Md.App. 172, 191 n. 6, 993 A.2d 1163, 1175 n. 6 (2010): “ ‘It is a settled principle of Maryland law that, where there exists a party having standing to bring an action ... we shall not ordinarily inquire as to whether another party on the same side also has standing.’ ” (quoting Garner, 405 Md. at 54, 949 A.2d at 645–46) (internal citations omitted). CBF and MRA claim that by denying CBF “piggyback” standing, the Board erred.

Anne Arundel County (the “County”) urges us to construe Sugarloaf and Garner as reflecting considerations of judicial economy rather than administrative due process. As the County sees it, the standingrule announced in Sugarloaf “appears to be based on little more than the fact that, if one party has the standing necessary to bring a justiciable controversy before the court, it simply is unnecessary for the court to decide whether other parties on that side of the case have standing as well.” Wagner makes similar arguments, claiming both that CBF ignores the full holding of Sugarloaf, and that the Sugarloaf Court did not apply its broad standing doctrine to the administrative context.

Tracing the roots of “piggy-back” standing, we examine what People's Counsel for Baltimore County v. Crown Development Corporation, 328 Md. 303, 614 A.2d 553 (1992), Garner, and Sugarloaf say about standing. In Sugarloaf, we explained:

It is a settled principle of Maryland law that, “ ‘where there exists a party having standing to bring an action ... we shall not ordinarily inquire as to whether another party on the same side also has standing.’ ” People's Counsel v. Crown Development Corp., 328 Md. 303, 317, 614 A.2d 553, 559–60 (1992), quoting Board v. Haberlin, 320 Md. 399, 404, 578 A.2d 215, 217 (1990).

The record in the present case establishes that the Buchanans had standing to maintain this action. Consequently, it is unnecessary to determine whether any of the other plaintiffs also had standing.

344 Md. at 297, 686 A.2d at 618 (citations omitted). In ...