Posted by: Patricia Salkin | February 22, 2012

MD Appeals Court Finds Board Violated Open Meetings Law with Partially Closed Site Visit and No Record

The Board of County Commissioners of Charles County, after holding hearings and conducting a site visit to the subject property, granted a conditional special exception to WSG Holdings, allowing WSG to construct a research facility – a use not permissible in the zone district.  Municipal residents appealed this determination the Circuit Court for Charles County alleging substantive and procedural violations.  The Circuit Court remanded the case to the Board for the purpose of articulating findings on whether the facility is consistent with the county’s comprehensive plan, and otherwise affirmed.  The Board, WSG, and landowners all appealed this determination.

In October of 2008, WSG applied for a special exception to the county zoning ordinance, seeking to operate a “research facility without the processing of materials” on an 80 acre parcel.  Three public hearings were held on the application and members of the public were permitted to provide insight.  A site visit to the location was scheduled in which government officials, WSG and its attorney, as well as two representatives of the community could attend – thus it was not entirely open to the public.  No members of the opposition to the application objected to the limited representation at the site visit.  No record of the visit was kept, and following the visit, one more public hearing was held and the record was closed.  Two weeks after the visit, the opponents filed a Motion for Appropriate Relief, complaining about how the visit was closed to the public even though evidence was taken, that no record was kept, and that neighboring property owners could not attend.  This was denied.  WSG’s application was then granted on conditions designed to address the concerns of the community.  The written decision and order address the site visit.

The Court of Special Appeals reversed the decision of the Board based upon its site visit alone, not answering the other points of appeal, as they became moot.  The circuit court had previously found that any violations of the open meetings law and the party’s due process rights were not preserved for judicial review, as “the site visit issues where raised for the first time in the petition for judicial review,” that appellants did not make a record before the Board on the matter, and that “counsel for the parties were unable to agree ‘as to who said what during the event.’”  The appellate court first stated that the issue was raised earlier in the opposition’s “Motion for Appropriate Relief,” and the burden of making a record as to what was said was on the Board, not the appellants.  Thus, the open meetings and due process issues were reviewable.

In reviewing the circumstances surrounding the site visit on WSG’s property, the Court of Special Appeals found deficiencies warranting reversal of the Board’s determination.  First, the court focused on the case law surrounding site visits.  It was clear to the court that a record of the visit should be made, and if it is not made, at least a hearing should be held discussing the evidence and findings sourced during the site visit.  Not doing so would seemingly be a violation of one’s due process, and would also frustrate judicial review.  In this matter, the site visit was partially closed, no record was kept, and the evidence gather during the site visit was not later put on record.  This constituted a violation of the opposing landowners’ due process rights as they could not attempt to rebut information they had no ability to possess.

The court then addressed the open meetings law of Maryland, which provided that were a closed meeting is held, no evidence can be taken by, nor can an argument be made before, the board.  In this instance, there was a partially open, partially closed hearing, as representatives were permitted to attend, but no record or findings were made.  This was not permitted and was a violation of state law.

Since the site visit was partially closed and the Board made no record while at the site even though it made findings, the opposing land owner’s due process rights were violated and the open meetings law was also violated.  Thus, the Board’s grant of a special exception to WSG was illegal, reversed, and remanded for another hearing and decision. 

Bowie v. Board of County Commissioners of Charles County,  2012 WL 361987 (Ct. Spec. App. Md. 2/3/2012)

The opinion can be accessed at: http://mdcourts.gov/opinions/cosa/2012/0312s10.pdf


Responses

  1. Not a lawyer: reporter. The writeup is a little muddled. In Maryland there is no such thing as a “partially closed meeting.” The court noted that the general public was not allowed to accompany the board members on the tour. Since the law requires zoning matters to be in open session, this was by definition an illegally closed session. And, of course, there was none of the required documentation for either an open or closed meeting.

    Cheers — COD


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