Schultz v. Pritts

• Decision Date: 16 July 1981
• Docket Number: No. 153,153
• Citation: 291 Md. 1,432 A.2d 1319
• Parties: Roger SCHULTZ et al. v. Robert K. PRITTS et al.
• Court: Maryland Court of Appeals

Page 1

291 Md. 1

432 A.2d 1319

Roger SCHULTZ et al. v. Robert K. PRITTS et al.

No. 153.

Court of Appeals of Maryland.

July 16, 1981.

[432 A.2d 1321]

John T. Willis, Westminster (Willis & Leahy, Westminster, on brief), for appellants

William B. Dulany, Westminster (Wesley D. Blakeslee and Dulany & Davis, Westminster, on brief), for appellees.

Argued and Reargued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DAVIDSON, Judge.

This case presents three questions. The first question is whether an order of the Circuit Court for Carroll County remanding a proceeding to the Carroll County Board of Zoning Appeals (Board) was a final judgment from which an appeal may be taken under Maryland Code (1974, 1980 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article. The second question is whether the Board's consideration of written evidence filed subsequent to the close of a hearing constituted a denial of due process of law under the fourteenth amendment of the United States Constitution. The third question is whether the Board's denial of the conditional or special exception use ¹ requested in this case was arbitrary, capricious, and illegal.

The respondents, Robert and Ann Pritts, are contract purchasers of a 2.74 acre tract of land located in Carroll County, zoned R-20,000 (single-family residential development 20,000 square feet minimum lot size). These contract purchasers filed an application with the Board requesting a

special exception use to develop a funeral establishment and a variance for reduction of the minimum front yard requirements. The Board held a hearing at which the petitioners, Roger Schultz and others (protestants), appeared in opposition. After the hearing, the Board denied the requested special exception use and held that the request for the variance was moot

The contract purchasers appealed to the Circuit Court for Carroll County which determined that there had been a denial of [432 A.2d 1322] due process because the Board had considered evidence submitted after the close of the hearing. The Circuit Court reversed and remanded the matter to the Board for a new hearing. That Court specifically refused to consider the merits of the case and to decide whether a standard set forth in Gowl v. Atlantic Richfield Co., 27 Md.App. 410, 417-18, 341 A.2d 832, 836 (1975), was an appropriate standard to be applied on remand in determining whether the special exception use should be granted.

The protestants appealed to the Court of Special Appeals. The contract purchasers cross-appealed on the ground that the Circuit Court should have granted the special exception use. The Court of Special Appeals determined on its own motion that the Circuit Court's order remanding the case to the Board was not a final judgment and dismissed the appeal. That Court did not consider the merits of the case and did not decide whether the standard set forth in Gowl was an appropriate standard to be applied on remand in determining whether the special exception use should be granted.

The protestants filed a petition for a writ of certiorari, and the contract purchasers filed a cross petition. We granted both the petition and the cross petition. The case was argued on 3 June 1980. On 28 April 1981 a reargument was held limited to the following questions:

"(1) Was an appropriate standard established in Gowl ... which held that it is arbitrary, capricious and illegal for a Board of Appeals to deny an application

for a special exception when 'the potential volume of traffic under the requested use would appear to be no greater than that which would arise from permitted uses'

(2) Is the evidence sufficient when viewed in light of the standard deemed to be appropriate?"

We have determined that the standard established in Gowl is inappropriate and that in the interest of justice we shall remand the case to the Board for further proceedings without affirmance or reversal.

I

Final Judgment

The protestants contend and the contract purchasers concede that the Circuit Court's remand order was a final judgment and that the appeal should not have been dismissed. We agree.

Maryland Code (1974, 1980 Repl.Vol.) § 12-301 of the Courts and Judicial Proceedings Article provides in pertinent part:

"(A) party may appeal from a final judgment entered in a civil ... case by a circuit court."

Maryland Code § 12-101(f) of the Courts and Judicial Proceedings Article provides:

" 'Final judgment' means a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans' court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken."

The statutory definition of "final judgment" in § 12-101(f) has been explicated by case law. Fred W. Allnutt, Inc. v. Commissioner of Labor & Industry, 289 Md. 35, 40, 421 A.2d 1360, 1362-63 (1980); Warren v. State, 281 Md. 179, 183, 377 A.2d 1169, 1171 (1977). This Court has consistently stated

that a judgment or order of a court is final when it determines or concludes the rights of parties or when it denies the parties means of further prosecuting or defending their rights and interests in the subject matter of the proceeding. Fred W. Allnutt, Inc., 289 Md. at 40, 421 A.2d at 1363; Department of Pub. Safety & Correctional Servs. v. LeVan, 288 Md. 533, 542-43, 419 A.2d 1052, 1057 (1980); Boteler v. State, 7 G. & J. 109, 112-13 (1835)

More particularly, we have recently reiterated that a circuit court's order remanding a proceeding to an administrative agency is an appealable final order. LeVan, 288 Md. at 542-43, 419 A.2d at 1057; Criminal Injuries Compensation Bd. v. Remson, 282 Md. 168, 177, 384 A.2d 58, 64 (1978). See Allen v. Glenn L. Martin Co., 188 Md. 290, 294-95, 52 A.2d 605, 607 (1947). When a court remands a proceeding to an administrative agency, the matter reverts to the [432 A.2d 1323] processes of the agency, and there is nothing further for the court to do. Such an order is an appealable final order because it terminates the judicial proceeding and denies the parties means of further prosecuting or defending their rights in the judicial proceeding. Fred W. Allnutt, Inc., 289 Md. at 40, 421 A.2d at 1363.

In this case, the Circuit Court's order remanded the proceeding to the Board, a local administrative agency. As a result, the matter reverted to the Board, and there was nothing further for the Circuit Court to do. Thus, the parties were denied the means of further prosecuting or defending their rights and interests in the judicial proceeding. The Circuit Court's order was an appealable final order. ² Accordingly, we shall vacate the judgment of the Court of Special Appeals which dismissed the appeal as premature.

II

Due Process

The protestants next contend that the contract purchasers were not denied due process of law under the fourteenth amendment of the United States Constitution. ³ While they concede that the Board considered evidence received after the close of the hearing, they claim that the contract purchasers' due process rights were not violated because the contract purchasers acquiesced in the submission of the evidence and because the evidence considered was cumulative to that presented at the hearing. We agree.

In general, while administrative agencies are not bound by the technical common law rules of evidence, they must observe the basic rules of fairness as to parties appearing before them. Ottenheimer Publishers, Inc. v. Employment Sec. Admin., 275 Md. 514, 520, 340 A.2d 701, 704 (1975); Hyson v. Montgomery County Council, 242 Md. 55, 69, 217 A.2d 578, 587 (1966); Dal Maso v. Board of County Comm'rs of Prince George's County, 238 Md. 333, 337, 209 A.2d 62, 64 (1965). When an administrative agency relies upon evidence submitted after the close of a hearing, due process may be violated if no opportunity is provided to challenge the evidence by cross-examination or rebuttal. Rogers v. Radio Shack, 271 Md. 126, 129, 314 A.2d 113, 115 (1974); Temmink v. Board of Zoning Appeals for Baltimore County, 205 Md. 489, 496-97, 109 A.2d 85, 88-89 (1954). However, when an administrative agency relies upon evidence submitted after the close of a hearing, there may be no due process violation when the parties are aware that the evidence will be considered but make no objection, particularly if the evidence is duplicative in nature. Under such circumstances, the requisite procedural fairness has been accorded because there was the opportunity to challenge the original evidence by cross-examination or rebuttal or to request the opportunity

to challenge the newly acquired evidence before the agency reached its decision. Dickinson-Tidewater, Inc. v. Supervisor of Assessments of Anne Arundel County, 273 Md. 245, 254, 329 A.2d 18, 24 (1974); Montgomery County, Md. v. National Capital Realty Corp., 267 Md. 364, 375-76, 297 A.2d 675, 681-82 (1972); Birckhead v. Board of County Comm'rs for Prince George's County, 260 Md. 594, 600, 273 A.2d 133, 136 (1971); Dal Maso, 238 Md. at 337, 209 A.2d at 65

Here the record shows that the Board held a hearing on 5 January 1978. At that hearing, Mr. Stephen G. Peterson, a Traffic Planning and Engineering Consultant, qualified as a traffic expert (traffic expert), appeared and testified on behalf of the [432 A.2d 1324] protestants. He pointed out that the contract purchasers had "indicated that typically a procession takes 5 minutes to exit from the site." He then testified that based upon the contract purchasers' estimate, traffic counts, traffic flow, stop times, and the topography of the subject property, he had concluded that, under certain circumstances, collisions with vehicles waiting for a funeral procession to exit the site might occur. In addition, he testified that funeral processions would have an adverse effect upon emergency vehicles and other traffic attempting to enter or leave a medical center located...