Posted by: Patricia Salkin | February 7, 2010

Burden of Proof Remains with Subdivision Applicant Before the Board of Appeals

Frizz-King Enterprises, LLC purchased 275 acres in an agricultural zoning district in Queen Anne’s County, Maryland and initiated the process to build a subdivision called “The Highlands.”  Although Frizz-King was able to obtain an adequate public facilities study pursuant to the County’s ordinance to determine the subdivision’s impact on water, sewer, traffic and schools, Grasslands Plantation, Inc, the owner of the adjacent property, continued to oppose the subdivision in a series of hearings before the Board of Appeals and Planning Commission.  Grasslands argued that the proposed subdivision was incompatible with Maryland Code provisions, the Queen Anne’s County Comprehensive Plan and provisions of the Queen Anne’s County Code.  The Commission approved the proposed subdivision and in doing so, ignoring the insistence of both parties, failed to make any findings of fact. 

Shortly before oral argument on appeal to the Court of Special Appeals, the County enacted two ordinances, the “Conformity Act” and the “Emergency Service Ordinance,” both of which imposed on the Commission a stricter standard of compliance with the County’s Comprehensive Plan when approving a subdivision.  The court affirmed the decision without consideration of the intervening legislation.  Grasslands appealed the determination, arguing that the board improperly placed the burden of proof on it as the appellant and that the newly enacted provisions should have been applied in the proceedings. 

The Court of Appeals first determined that the Board’s de novo proceedings were an “entirely new hearing at which time all aspects of the case should be heard anew, as if no decision has been previously rendered.”  The court went on to hold that in light of the purely de novo nature of the proceedings, the burden of proof should have remained on Frizz-King to establish that its proposed subdivision satisfied the requirements of the Queen Anne’s County Code.   

On the issue of the newly enacted legislation, the ­­­court determined that the ordinances should have been retrospectively applied to the development’s approval determination.  The Court held that since the Emergency Service Ordinance was substantive law it should be applied at the new hearing because it is the law in effect at the time of the hearing and does not impair vested rights.  In addition, it held that the Conformity Act, an arguable procedural law change, shall also apply, notwithstanding contrary caselaw, as the Commission’s or Board’s process of making its decision will “begin anew” for an independent reason, namely, the burden of proof.  The court reasoned that the proper analysis for determining the retroactive application of a procedural law change turns on “what aspect of the administrative/adjudication process is changed, at what point in the administrative/adjudication process the change is made, and the question presented to the reviewing court.”  The court remanded the case and directed the Board or Commission to apply the ordinances to the determination. 

Grasslands Plantation, Inc. v. Frizz-King Enterprises, LLC, 2009 WL 2591262 (Md.8/25/2009)

The opinion can be accessed at:


  1. As a self-appointed non–lawyer access to courts advocate, I think that Grasslands Plantation, Inc. v. Frizz-King Enterprises, LLC.,

    is a benchmark decision applicable to all judicial proceedings. Just read the standard afforded when land is at stake and then apply it to any constitutional privilege:

    “We are under no constraint, however, “to affirm an agency decision premised solely upon an erroneous conclusion of law.” Ins. Comm’r v. Engelman, 345 Md. 402, 411, 692 A.2d 474, 479 (1997)….

    Rule 4(B) provides, inter alia, that “[a]ll parties are entitled to have witnesses summoned to appear[.]” Rule 4(C) addresses documentary evidence: Documentary evidence may be produced by any party in support of his or its position. . . . Such documentary evidence shall become a permanent part of the record of the hearing …

    The applicant or appellant may make a brief opening statement at the outset of the hearing and any opposing party shall be accorded the privilege. The sequence of direct and cross examination shall be the direction of the Board at the time of the
    hearing. . . . The applicant or appellant shall offer its witnesses and evidence at the outset of the hearing and at the conclusion of the applicant’s or appellant’s case, any opposing party shall offer its witnesses and evidence. At the conclusion of all
    evidence, each side shall be permitted a reasonable period of time for argument. ….
    the following HCC provision provided differing burden of proof allocations and standards for different types of de novo appeals: (i) In an appeal of an administrative agency’s issuance of a notice of violation of county laws and regulations, the burden of proof is upon the administrative agency (proponent) to show, by a preponderance of the evidence, that the respondent has violated the laws or regulations in question. However, it shall be the respondent’s burden to
    prove all affirmative defenses, including the defense of nonconforming use.
    (ii) In all other de novo appeals, the burden of proof is upon the appellant to show that the action taken by the administrative agency was clearly erroneous, and/or
    arbitrary and capricious, and/or contrary to law.Id. at 526, 813 A.2d at 320 (quoting HCC § 2.210(a)(4)). The Hikmat court observed that the burden of proof provision applicable to appeals on the record, HCC Section 2.210(b), applied “the same standard applicable to de novo appeals from administrative agencies.” Id.
    The court then reviewed other county zoning regulations referencing the Board’s powers to hear and decide appeals where it is alleged that the DPZ has erred in the interpretation or application of any provision in the zoning regulations. The Hikmat court concluded that “the Board had the authority to grant the waiver if its own findings were sufficient to support such a conclusion.” Id. at 528, 813 A.2d at 322. The court recognized that proceedings before the Board were not purely de novo in that the Notably, the County Charter distinguishes between de novo
    appeals and appeals on the record9 and requires that the Board’s procedures comply with the requirements of Maryland’s Administrative Procedure Act. These are important features because, when a county law provides for a hearing, due process requires that it be a meaningful hearing … the Board erred in failing to provide specific findings … the Board “must include specific findings of fact and conclusions in its opinion, whether it conducts the proceedings itself or on appeal after remand … de novo means that the Board of Appeals may hear testimony and consider additional evidence pertaining to the issue or issues presented on appeal. … “that we have consistently treated de novo appeals as wholly original proceedings, with the word ‘appeal’ meaning simply that the proceedings are new and independent rather than strict review of prior proceedings.” Id. at
    142, 661 A.2d at 687. “Although the issues to be addressed on review by the Board may be limited, new and additional evidence is permitted. The proceedings, therefore, are wholly original with regard to all issues properly raised.” … Quoting Boehm v. Anne Arundel County, 54 Md. App. 497, 511, 459 A.2d 590, 599 (1983), we indicated that the Board’s de novo hearing “‘is an entirely new hearing at which time all aspects of the case should be heard anew, as if no decision has been previously rendered[.]’” Halle Companies, 339 Md. at 144, 661 A.2d at 688 (emphasis in original). The Boehm court elaborated on this de novo hearing definition with the following exposition: “Thus, it is said that where a statute provides that an appeal shall be heard de novo such a hearing is in no sense a review of the hearing previously held, but is a complete trial of the controversy, the same as if no previous hearing had ever been held, especially where the hearing is in a court of general, original jurisdiction. Where a statute provides for a trial de novo and does not provide that the findings of the administrative agency shall be conclusive or of any force, the whole matter is opened up for consideration on appeal as if the proceeding had been originally brought in the reviewing court.” Boehm, 54 Md. App. at 509-10, 459 A.2d at 598 (quoting 2 Am. Jur. 2d Administrative Law
    § 698 (1962)) …

    In Housing Authority of Newark v. Norfolk Realty Company, 364 A.2d 1052(1976), an eminent domain case, we explained that “[a] trial de novo means, ‘trying the matter anew, the same as if it had not been heard before and as if no decision had been previously rendered.’”

    If the matter truly is to be heard “anew, the same as if it had not been heard before,” it follows that the parties in the de novo proceeding must remain in the same procedural posture that they maintained in the initial proceeding, and that the burden of demonstrating entitlement to the relief sought remains with the
    same party — the applicant — throughout. . . . Shifting the burden to the “appellant” would ignore these basic principles, a result that we decline to adopt. We therefore hold that on an appeal .. . to a governing body from a final decision by a board of adjustment approving an application for a variance . . ., the applicant before the board retains the burden of demonstrating entitlement to the relief sought…
    Conclusion The Board erred in shifting the burden of proof from Frizz-King, the subdivision applicant, to Grasslands, the appellant in the Board’s de novo review proceeding. In this proceeding – an entirely new hearing in which all specified issues on appeal should be heard anew as if no decision had been previously rendered – the burden remained on Frizz-King to establish facts necessary to obtain approval for its proposed subdivision.”

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