Gray v. Anne Arundel County, 366

• Decision Date: 04 December 1987
• Docket Number: No. 366,366
• Citation: 73 Md.App. 301,533 A.2d 1325
• Parties: Dorothy GRAY et al. v. ANNE ARUNDEL COUNTY, Maryland et al. Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 301

73 Md.App. 301

533 A.2d 1325

Dorothy GRAY et al. v. ANNE ARUNDEL COUNTY, Maryland et al.

No. 366 Sept. Term 1987.

Court of Special Appeals of Maryland.

Dec. 4, 1987.

Leonard Z. Bulman, Annapolis, for appellants.

Darrell L. Henry, Joyce Causey (Stephen R. Beard, County Sol., David A. Plymyer, Deputy County Sol., Eileen E. Powers and Miller, Brassel & Baldwin, P.A., on the brief), Annapolis, for appellees.

Argued before WILNER, BISHOP and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

This is an appeal from the judgment of the Circuit Court for Anne Arundel County, affirming a decision of the Anne Arundel County Board of Appeals to uphold the issuance of a building permit to Eugene and Joyce Causey, ¹ two of the appellees herein, ² authorizing the relocation of two mooring pilings in Bear Neck Creek. Appellants, Dorothy Gray and Alice Peters, the owners of the waterfront property adjoining that owned by the Causeys, present four questions for our resolution:

1. Did the Circuit Court of [sic] Anne Arundel County in affirming the County Board of Appeals properly consider the arbitrary, capricious, unreasonable, and illegal acts of the County Board of Appeals?

2. Did the County Board of Appeals of Anne Arundel County make findings of fact upon which the circuit court could affirm its opinion and order?

3. Did the circuit court, and the County Board of Appeals of Anne Arundel County err in not finding that the Anne Arundel Code, Section 10-111(B) requires the Office of Planning and Zoning to designate the location of the pilings and in selecting the sideline location Planning and Zoning must choose the option which will cause the least interference to neighboring uses, as specifically stated in said section of the Code?

4. Did the court err in not finding that the County Board of Appeals erred in determining that it and the Office of Planning and Zoning may not consider existing admitted violations of the setback requirement in the use of the pilings and the boat slip created thereby or their authority to place conditions on the use of the pilings and boat slip?

We discern no error; therefore, we affirm. In explaining our decision, we will address the issues in an order somewhat different than that proposed by appellants.

The events giving rise to this appeal began on July 2, 1980, when the Causeys installed two mooring pilings in the water adjoining their waterfront property. Installation was made without benefit of a building permit and their subsequent application to the County for the issuance of a permit was denied. Despite the denial of the application, the pilings were not removed. The Causeys' efforts to maintain the pilings by obtaining a variance or otherwise acquiring official sanction for their continued installation, and appellants' opposition to such actions, resulted in several years of litigation, ³ which culminated when the Circuit Court for Anne Arundel County passed a judgment finding that the pilings were located too close to the center of Bear Creek in violation of § 13-300.16(a)(1) of the Anne Arundel County Code (1967). ⁴

Having been unsuccessful in their efforts to maintain the pilings as installed, the Causeys filed an application, which included a permit drawing, for a building permit to relocate the pilings consistent with the circuit court's decision. The Office of Planning and Zoning, having computed the center line and side property line setback requirements in accordance with Art. 28 § 10-111 of the Anne Arundel County Code (1985) and concluded that those requirements were met, ⁵ granted the application and issued the requested permit. Appellants appealed the issuance of the building permit to the County Board of Appeals. While that appeal was pending, appellees removed the pilings and relocated them pursuant to the building permit.

The County Board of Appeals took testimony and heard argument on appellants' appeal and issued an Opinion and Order upholding the issuance of the permit. The Board rejected appellants' interpretation of § 10-111(b) ⁶ as requiring the Office of Planning and Zoning to refuse to issue a building permit for the installation of pilings if any of the options in § 10-111(c) would cause interference to neighboring uses. Instead, the Board interpreted that section to "[require] that an option be chosen, and that the option chosen be the one which causes the least interference to neighboring uses." It then found that the option that would cause the least interference to neighboring uses was option 3, the "center of the cove" option. Having found that the location of the pilings as proposed by appellees was in compliance with the side property line setback requirement contained in subsection (c)(3), as well as the center line setback requirements of subsection (a)(1), the Board concluded that the building permit was properly issued. Finally, the Board rejected appellants' argument that it should consider and regulate the placement of boats in slips created by mooring pilings, opining:

Section 10-111 ... does not address the issue of "slips" (as defined in § 1-101 of the Code), nor does it allow for consideration of the location of vessels. The matter before the Board involves the placement of pilings in the water; it is that matter only which is the subject of this appeal.

Appellants fared no better on its appeal of the Board's decision to the circuit court. That court, having received memoranda from the parties and heard oral arguments, affirmed the decision of the County Board of Appeals, specifically adopting its interpretation of § 10-111(b) and categorically determining that the Board was correct in finding that the County Code did not authorize the regulation of boats in slips.

Interpretation and application of § 10-111(b)

The primary argument advanced by appellants is that the interpretation placed upon § 10-111 by the Board of Appeals and the circuit court is erroneous. They also contend, on a related issue, that "the Board did not consider the 'interference' matter and the appellees and the County presented no evidence on the 'interference' factors", rendering the Board's decision arbitrary, capricious, and invalid as a matter of law. We perceive these complaints to relate to the propriety of the Board's, and the court's, interpretation of § 10-111 as well as to the Board's application of the law to the facts it found. We will address each contention in turn.

The thrust of appellants' argument is that, pursuant to subsection (b), a piling must be located by the Office of Planning and Zoning so as to cause the least interference with neighboring uses. To reach this result, appellants focus primarily upon the first clause of the subsection-- "the location of a ... piling ... shall be designated by the Office of Planning and Zoning ..."--and the Webster's Dictionary definition of "designate"--"to point out the location of ...: specify". From this they reason "that Planning and Zoning need not accept, as has occurred here, the pilings' location designated by appellees, to wit, in the area adjoining the appellants' waterfront." They construe the proviso, "provided that the choice of location is limited to the option specified in subsection (c) of this section that will cause the least interference to neighboring uses", to mean that "Planning and Zoning must locate the pilings in applying the option chosen (center of cove) where they will cause the least interference to neighboring uses." In short, appellants' interpretation of subsection (b) emphasizes the location of the pilings as the critical issue in defining the nature and extent of interference to neighboring uses.

Appellees take a different view. They assert, consistent with the interpretation of the Board and the circuit court, that "[i]t is the option selected from section (c) which must cause the least interference, not the precise location of each piling." (emphasis in original) In their view, to interpret the subsection as appellants do requires that a portion of the proviso, namely, "provided that the location is limited only to the option specified in subsection (c) of this section", be deleted from consideration, thus violating a cardinal principle of statutory construction.

In order to resolve this issue, it is of course necessary that we review and apply the appropriate rules of statutory construction. Before doing so, however, we must address a threshold issue: What is the appropriate standard of judicial review of this matter?

"... [T]he order of an administrative agency, such as a county zoning Board, must be upheld on review if it is not premised upon an error of law and if the agency's conclusions 'reasonably may be based upon the facts proven.' " A.D. + Soil, Inc. v. County Commissioners, 307 Md. 307, 338, 513 A.2d 893 (1986), quoting Annapolis v Annap. Waterfront Co., 284 Md. 383, 399, 396 A.2d 1080 (1979). This is the same rule that has been enunciated and applied in connection with the decisions of the Maryland Tax Court. See Ramsay, Scarlett and Company, Inc. v. Comptroller, 02 Md. 825, 834, 490 A.2d 1296 (1985); Thames Point Associates v. Supervisor, 68 Md.App. 1, 9, 509 A.2d 1207 (1986); Comptroller v. World Book Childcraft International, Inc., 67 Md.App. 424, 438-39, 508 A.2d 148, cert. denied, 307 Md. 260, 513 A.2d 314 (1986); Matthew Bender & Company, Inc. v. Comptroller, 67 Md.App. 693, 705-06, 509 A.2d 702 (1986). The statement of the rule makes clear that the standard of review to be applied depends upon the nature of the agency finding being reviewed. Thames Point Associates, 68 Md.App. at 9, 509 A.2d 1207. It has been interpreted to require a three-step analysis, as follows:

1. First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case. The reviewing court is not constrained to affirm the agency where its order "is premised solely upon an erroneous conclusion of law." [...