- The Enterprise
- The Recorder
Judges from the Maryland Court of Appeals, the state’s highest court, heard arguments last week on a zoning appeal dispute between a defense contractor and Nanjemoy residents.
Mark Mudd of La Plata law firm Mudd, Mudd & Fitzgerald argued on behalf of Washington Security Group, and La Plata attorney Kurt Wolfgang argued on behalf of several Nanjemoy residents.
In WSG vs. Larry Bowie et. al., Wolfgang’s clients allege that the Charles County Board of Zoning Appeals violated open meeting laws in the 2009 case involving WSG applying for a special exception for a research facility with a firing range, a vehicular testing track and an office building at its property on Liverpool Point Road in Nanjemoy.
Residents allege due process violations in the proceedings, particularly a site visit conducted March 14, 2009, by board members.
The Court of Special Appeals, the level below the Court of Appeals, ruled in February that the board violated due process laws by excluding members of the public at the site visit, not documenting the site visit and relying on information from the site visit to make its decision on the case. The Court of Special Appeals ruled for the case to be remanded back to the county board of appeals, but Mudd appealed to the Maryland Court of Appeals.
Mudd said the record was closed prior to the site visit and was not part of the fact-finding process.
“If it wasn’t part of the fact-finding process, what was it?” Judge Glenn T. Harrell Jr. asked. “They didn’t need it unless they wanted to ratify or look for things that were missed. It’s part of the fact-finding process.”
“Part of the fact-finding process, correct,” Mudd said.
“Which is part of the record,” Harrell responded, “except that it was not made part of the record.”
Mudd said the appeal of the county’s board of appeals decision dealt with the special exception and that a separate request needed to be made for due process violations in the Charles County Circuit Court.
Wolfgang argued that the site visit violated due process rights by providing no public notice, providing no documentation from the site visit and excluding members of the public from the site visit.
A quorum was present at the site visit, Wolfgang said. If a quorum, a majority of board members, meets together, it constitutes a meeting, according to the Open Meetings Act, which is the state law regarding how public bodies are to publicize and document their meetings to the public.
Wolfgang said that Article 66B, the state law governing land use proceedings, says the board of appeals cannot have closed meetings, which he argued is more stringent than the Open Meetings Act.
Regardless, Wolfgang argued that site visits need to comply with the Open Meetings Act because it is part of the public record.
“They have to have site visits in compliance with the Open Meetings Act. They have to have a fair site visit. They have to afford the opportunity for people to rebut or cross-examine the evidence presented. They have to record the site visit,” Wolfgang said.
Additional requirements would create an undue burden on boards who wish to conduct a site visit, Mudd said.
Mudd argued that the law is ambiguous about how the Open Meetings Act applies to site visits and that the board did due diligence to make sure all parties were represented at the meeting.
“The Open Meetings Act can apply to site visits but did not apply because the board took reasonable and diligent action to apply the law,” Mudd said.
Mudd argued that, for example, the board agreed to have a representative from the public and attorneys from both sides at the site visit and that the board’s chairman, Frederick Mower, explained how the site visit was to be conducted.
“Didn’t someone show up at the day of the site visit and they were excluded?” Harrell asked.
Mudd said the individual did not object to the original arrangement made by the board chairman and argued that he could view the proceedings from his adjacent property.
Judge Lynne A. Battaglia said hearing is an essential part of the Open Meetings Act and that there was an exclusion.
“That’s my problem. It was limiting access to the public,” Battaglia said.
Mudd argued that requests for due process violations needed to be filed in circuit court and were not. They were raised only after the record closed, Mudd said.
Harrell asked why Wolfgang did not immediately file a request for review on the due process issues or raise concerns at the site visit.
Wolfgang said county attorneys instructed people not to speak at the site visit and that speaking out about the proceeding’s legality did not end upon the close of the public record.
“It is illogical for it to be considered untimely because then no one would be able to complain. There is no requirement or benchmark for the time of objection,” Wolfgang said.
After the proceedings ended, lawyers from each party thought the court exercised its duties well and that their respective sides would win.
“I think the Court of Appeals accurately identified the issues before them, asked appropriate questions, and I am hopeful they will agree with me that the Court of Special Appeals erred,” Mudd said.
If the ruling is in favor of WSG, Mudd said he anticipates the case will be remanded to the Court of Specials Appeals.
Although the case has traversed many levels of the court system, “we’re optimistic that the original board of appeals’ opinion will be upheld,” Mudd said.
Wolfgang said like any performance, he felt he could have done better. He added, though, that it went well overall because the judges asked questions indicating they knew the facts and issues.
“Based on the facts, laws and issues, we should be on the winning side. I’m not exactly certain what they will decide. I strongly suspect it will be in our favor. I think the general outcome will be in our favor,” Wolfgang said.
He also commended the hard work of Nanjemoy residents who researched issues in the case.
“[The case] did establish a bar for Nanjemoy. If people put something in Nanjemoy that doesn’t belong, you better watch out. We’re three or four years into it, and they don’t give up. We keep on going,” Wolfgang said.
The next steps depend on the ruling, Wolfgang said, which could take six months to a year to complete.
After the county’s board of appeals initially approved the special exception, Wolfgang filed a lawsuit in the Charles County Circuit Court on behalf of Nanjemoy residents.
Circuit Judge Robert. C. Nalley ruled that the case be remanded to the board of appeals for a review of the plan’s congruency with the Charles County comprehensive plan.
Before the report was heard, Wolfgang appealed the case to the Maryland Court of Special Appeals.
After the Court of Special Appeals ruled to remand the case, Mudd appealed to the Court of Appeals.