Posted by: Patricia Salkin | July 31, 2018

MD Court of Special Appeals Upholds Hearing Examiner’s Permitting of an Amended Conditional-Use Application Finding no Due Process Violation and Finding Conformance with the Comprehensive Plan

This post was authored by Matthew Loeser, Esq.

The Montgomery County Board of Appeals granted an application for a conditional use filed by Brandywine Senior Living at Potomac, LLC, for a three-story residential care facility to be built in Potomac, Maryland. Neighbors Ronald A. Paul and Toni H. Paul, as well as the West Montgomery County Citizens Association (“WMCCA”), the Brickyard Coalition, and Curtis B. Uhre filed petitions for judicial review in the Circuit Court for Montgomery County. The circuit court affirmed in part and reversed in part the decision of the Board and remanded the case to the Board for further consideration.

On appeal, the Pauls asserted that the hearing examiner committed prejudicial legal error by inviting Brandywine to modify their application and file new plans to respond to issues raised by the opposition, the hearing examiner improperly aligned himself with Brandywine and thereby violated the Pauls’ rights to due process. The court noted, that although the Pauls challenged the hearing examiner’s impartiality on appeal, this issue was not raised before the hearing examiner. Instead, this allegation could have been raised through a motion for recusal. Furthermore, the court found that the Pauls were provided with notice of the amended application and a full opportunity to be heard. Accordingly, the Pauls were not deprived of procedural due process.

The Neighbors next challenged the hearing examiner’s findings and conclusions on the project’s conformance with the master plan and compatibility of the surrounding residential neighborhood, noise impacts of the project, adequacy of storm drainage for the project, and the project’s effect on the economic value of the Pauls’ property. Here, however, the record reflected that the hearing examiner properly considered the specific residential neighborhood surrounding the Property when considering whether the Project would be compatible with the neighborhood. The evidence before the hearing examiner indicated that the neighborhood included a wide range of non-residential uses, including services for the elderly, a restaurant, a school, and a golf course. As such, the court held that the hearing examiner’s findings with respect to neighborhood compatibility were supported by substantial evidence.

The record also reflected that the Neighbor’s expert land planner, James Noonan, “did not testify with regard to master plan conformity.” Conversely, the hearing examiner found that Brandywine’s land planner, Joshua Sloan found that the Project was in conformance with master plan recommendations. The hearing examiner also considered the testimony of Scott Harvey, Brandywine’s acoustical engineering expert. Mr. Harvey testified that, in his expert opinion, there would not be any significant adverse noise impacts and that all mechanical equipment could be designed to meet noise ordinance requirements. The hearing examiner also credited the testimony of Brandywine’s civil engineer, Donald Mitchell, who confirmed the existing drainage problem.

The Neighbors next contended that the hearing examiner erred by considering the presence of the tennis facility when evaluating undue harm to the economic value of the Pauls’ property, and by improperly conflated the economic value of the Pauls’ property with the fair market value of the Pauls’ property. The court noted that the effect of a proposed conditional use on a neighboring property’s value must be evaluated against the specific, actual current value of the property, not against a theoretical value based upon a hypothetical alternative for the proposed conditional use site. The court therefore found that the hearing examiner properly considered the effect of the Project on the economic value of the Pauls’ property, taking into consideration the existing tennis facility. Furthermore, the hearing examiner specifically explained that he was evaluating the effect on the Pauls’ property’s “economic value because that is the standard specified in Section 59–7.3.1.E.1.g of the Zoning Ordinance.” Accordingly, the court affirmed the opinion of the Montgomery County Board of Appeals and remanded the case to the circuit court for entry of an order affirming the actions of the Board.

Brandywine Senior Living at Potomac, LLC v Paul, 237 MD App. 195 (MD 4/30/2018)

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