BATTAGLIA, J.
In this case involving the denial of an application for variances from requirements of a local critical area program, we are asked to consider what level of detail a Board of Appeals must employ in supporting its findings with evidentiary references, in order to enable meaningful judicial review. The Anne Arundel County Board of Appeals had denied variance
We shall hold that the evidentiary support cited in the decision of the Anne Arundel County Board of Appeals was adequate for purposes of enabling meaningful judicial review, specifically regarding the adverse impact on water quality associated with the proposed development by Moreland, and we, therefore, shall reverse the Court of Special Appeals's decision. Because our holding regarding the first question disposes of the matter, we need not address questions 2 and 3 and shall not.
In 1984, the General Assembly enacted the Chesapeake Bay Critical Area Protection Program, see Maryland Code (1973, 2000 Repl. Vol., 2005 Supp.), Sections 8-1801 to 8-1817 of the Natural Resources Article,
The Program required all local jurisdictions, under the direction of a newly created Chesapeake Bay Critical Area Commission, to formulate and implement a plan to control development in the "critical" or protected area. Section 8-1801(b). That area generally consists of the Chesapeake Bay, its tributaries to the head of tide,
Anne Arundel County adopted a critical area protection program, embodied in Articles 17 and 18 of the Anne Arundel County Code. Specifically, Section 17-8-301(b) prohibits the construction of "new structures" within the 100-foot buffer:
The "buffer" is defined in Section 18-13-104(a), generally, as a 100-foot strip of land near the shoreline:
Section 17-8-601(b) permits the clearing of vegetation within a limited range inside the critical area to prevent erosion and other environmental impacts:
The County may grant variances when applicants for such meet various specific requirements detailed in Section 3-1-207 of the Code:
Failure by the applicant to satisfy even one of the variance criteria requires the denial of the variance application. Section 8-1808(d)(4)(ii) of the Natural Resources Article; Anne Arundel County Code, Section 3-1-207. The proponent of the variance, moreover, bears the burden of proof and persuasion to overcome the presumption that granting the variance requests does not conform to the critical area law. Section 8-1808(d)(3) of the Natural Resources Article.
In 2003, Moreland purchased two parcels, Site # 1 and Site # 2, on the north shore of Warehouse Creek in Anne Arundel County, within the critical area, upon which the developer sought to construct two single-family homes. Thereafter, Moreland requested variances from the Anne Arundel County Office of Planning and Zoning in order to construct the houses and accompanying septic systems within the buffer and also to remove more vegetation than otherwise permitted within the buffer. In support of the variance requests, Moreland asserted that, "without variance relief from the prohibition on development within the buffer area and from tree clearing limitations, [it] [could] not build any reasonably sized home on these residentially zoned lots."
Specifically, on Site # 1, Moreland proposed to construct a single-family home, attached garage, screened porch and deck totaling 3,343 square feet. To overcome the prohibition in Section 17-8-301(b) of the Code against construction of new structures within the 100-foot buffer, the developer requested a variance of 34 feet. In addition, Moreland sought to clear more than 51 percent of the lot's vegetation, exceeding the maximum 30 percent that the County's Office of Planning and Zoning may approve pursuant to Section 17-8-601(b).
On Site # 2, Moreland sought to construct a home, attached garage, screened porch and uncovered deck totaling 2,615 square feet. To overcome the prohibition in Section 17-8-301(b) of the Code against construction of new structures within the 100-foot buffer, the developer requested another variance of 34 feet into the buffer. In addition, Moreland sought to clear nearly 34 percent of the total vegetation on Site # 2, exceeding the maximum permitted by Section 17-8-601(b) of the Code, and therefore requested an additional variance.
An administrative hearing officer denied Moreland's variance requests, and the Board of Appeals affirmed. On appeal, the Circuit Court, applying Becker v. Anne Arundel County, 174 Md.App. 114, 920 A.2d 1118
The Becker opinion is obviously the fount in which this controversy rests. In Becker, our colleagues on the intermediate appellate court determined that the Board of Appeals, in denying several variance requests, failed to cite any evidence or reasonable inferences to be drawn from the evidence, to support its findings, in the context of no evidence or testimony in opposition to the variances having been adduced before the Board.
In that case, William and Jane Becker had purchased two adjoining lots fronting on the Magothy River and Park Creek in Pasadena on which they sought to build a two-story, ranch-style home, consisting of 2,499 square feet of living space and a 529 square foot two-car garage, within the critical area buffer. To do so, the Beckers requested three variances, namely a variance of 56 feet from the 100-foot critical area buffer, a variance to disturb the steep slopes on both parcels to install the septic system, and a 10-foot variance from the 25-foot rear yard requirement. Becker, 174 Md.App. at 122, 920 A.2d at 1123. An administrative hearing officer granted the variances, and an appeal to the Board of Appeals ensued. Id. at 119 n. 2, 920 A.2d at 1121 n. 2.
During a hearing before the Board, the Beckers presented testimony that without the variance allowing construction within the 100-foot buffer, the Beckers would not be able to build a house, that the requested variances were the minimum necessary to afford relief, and that the construction "should not have any adverse impact on water quality." Id. at 123, 920 A.2d at 1123. Further, testimony was adduced by the Beckers that the granting of the variances "would not be contrary to the spirit and intent of the critical area program." Id. No evidence was presented in opposition to the variance requests.
The Board thereafter issued a memorandum opinion denying the Beckers' application, reasoning that the Beckers had failed to demonstrate that the variances requested were the minimum necessary, because "[t]here was no explanation of why 2,500 square feet of living area was necessary. We are left wondering, why not 2,490 square feet, 2,200 square feet or 600 square feet?" Id. at 125, 920 A.2d at 1125. The Board further found, without citing support in the record, that granting the variances would adversely affect water quality, would impair the use and development of the neighboring property, and would be detrimental to the public's welfare, because the Beckers had failed to "convince the Board on these points." Id. at 129, 920 A.2d at 1127.
The Court of Special Appeals reversed. Faced with the issue of whether the Board must have made findings based upon articulated evidence, the intermediate appellate court noted that,
id. at 138-39, 920 A.2d at 1132-33 (citations omitted) (internal quotation marks
Id. at 143, 920 A.2d at 1135. Our job, obviously in the present case, is to evaluate the Board of Appeals's decision to determine whether it does permit meaningful judicial review and if so, should it be upheld.
Our role in reviewing the final decision of an administrative agency, such as the Board of Appeals, is "limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." Maryland Aviation Admin. v. Noland, 386 Md. 556, 571, 873 A.2d 1145, 1154 (2005), quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 67, 729 A.2d 376, 380 (1999). In doing so, a reviewing court decides whether the Board's determination was supported by "such evidence as a reasonable mind might accept as adequate to support a conclusion." People's Counsel for Baltimore County v. Surina, 400 Md. 662, 681, 929 A.2d 899, 910 (2007) (citation omitted); see also Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398-99, 396 A.2d 1080, 1089 (1979) (citation omitted) ("The heart of the fact-finding process often is the drawing of inferences made from the evidence.... The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness."). Moreover, a reviewing court "must review the agency's decision in the light most favorable to it; ... the agency's decision is prima facie correct and presumed valid." Noland, 386 Md. at 571, 873 A.2d at 1154, quoting CBS v. Comptroller, 319 Md. 687, 698, 575 A.2d 324, 329 (1990).
In the present case, Moreland contends that the central issue "is not whether there is substantial evidence in the record," but rather, whether the Board of Appeals's opinion denying the variance requests is amenable to meaningful judicial review. The rub comes from the manner of presentation of the Board of Appeals's opinion.
Moreland argues that, as in Becker, the Board of Appeals's opinion in the present case failed to provide sufficient detail and reasoning to enable meaningful judicial review, because each of the Board's findings was not immediately followed by supportive and specific evidentiary references. The Commission counters that the Board of Appeals's opinion adequately reflected that substantial evidence existed in support of its penultimate finding that the proposed construction, because of the large area of impervious surface and the removal of significant amounts of vegetation, would adversely affect the water quality of Warehouse Creek. The Commission further argues that Becker is inapposite, because in the present case, evidence was adduced in opposition to the variance requests upon which the Board explicitly relied.
In denying the variance requests, the Board found that Moreland met various
The Board opined as follows, regarding the large area of impervious surface of the proposed construction, namely, according to the Critical Area Commission, 2,167 square feet of impervious surface on Site # 1 and 1,751 square feet of impervious surface on Site # 2, adversely affecting water quality:
The Board further found that clearing of large areas of vegetation from the sites
In reaching the above findings and conclusions, the Board explicitly referred to the testimony presented by John Flood, a neighbor and long time South River resident, who was accepted by the Board as an environmental expert, albeit the summary of his testimony was in a section separate from the conclusory findings of the Board. The Board summarized Mr. Flood's testimony as follows:
The Board also explicitly included a summary of the testimony presented by Andrew Koslow, the South Riverkeeper,
The Board also found persuasive testimony presented by several neighbors of the tracts, regarding the removal of large amounts of vegetation from the parcels causing erosion and contributing to the decline in water quality of the creek, albeit, again, the following summaries were separate from the Board's conclusory findings in its decision:
In the present case, the Board of Appeals's opinion contained clear adverse findings, as well as summaries of substantial evidence supporting those findings, in contrast with the Board's opinion in Becker, in which the Board failed to articulate any evidence supporting its adverse findings. Here, the Board referred to the testimony of John Flood and others supporting the findings that the removal of large amounts of vegetation, despite proposed replantings,
Moreland's assertion that the Board of Appeals must describe the evidentiary foundation for each of its findings, immediately following each finding, to enable meaningful judicial review does not have a
We granted certiorari prior to any proceedings in the intermediate appellate court and reversed, reasoning that the relevant findings were merely "conclusory statements" and failed to advise the developer, "in terms of the facts and circumstances of the record," the manner in which the application failed, thereby evading "meaningful judicial review." Id. at 558, 723 A.2d at 453. We emphasized that because the "planning staff and the Planning Commission ha[d] recommended approval of Bucktail's project and found that it complie[d] with all applicable requirements, it [wa]s not sufficient for the Council simply to express conclusions, without pointing to the facts found by the Council that form[ed] the basis for its contrary conclusion." Id. at 558, 723 A.2d at 453.
In Annapolis Market Place LLC v. Parker, 369 Md. 689, 802 A.2d 1029 (2002), Annapolis Market Place, LLC, owned about 33 acres of land in Annapolis and sought to build a "novel mix[ed]-use" development that would integrate residential, commercial, and retail spaces. In order to do so, the company filed an application to rezone the property to C3-Commercial, which would permit such mixed-use development. The relevant provision of the county code provided that the rezoning could not be granted, however, "except on the basis of an affirmative finding that," inter alia:
Id. at 698, 802 A.2d at 1034. An administrative hearing officer denied the company's application, and Annapolis Market Place appealed the decision to the Board of Appeals. In the hearing before the Board, the company presented evidence regarding water supply systems, on-site storm drainage systems, sewerage systems, and roads. No evidence was presented, however, regarding the impact of the proposed development on existing fire suppression facilities, off-site storm drainage systems, or schools. The Board, nevertheless, found that Annapolis Market Place "had presented sufficient evidence to meet the standards for the requested rezoning." Id. at 699, 802 A.2d at 1035. Thereafter, the Circuit Court reversed the order of the Board, reasoning that "no storm water management plan was ever presented to the Board" and "no showing was made that the schools in the area were adequate" under the requested zoning classification, such that there was no evidentiary basis for the Board's finding; the Court of Special Appeals affirmed. Id. at 701, 802 A.2d at 1036.
We affirmed, reasoning that there was no evidentiary basis for the Board's findings regarding the adequacy of the fire suppression facilities, storm drainage systems, or schools, to support the zoning reclassification. Most notably, we emphasized that the company failed to present "one scintilla of evidence that indicate[d] that the schools [we]re adequate to serve the development" of the property with apartments, as Annapolis Marketplace had proposed. Id. at 722, 802 A.2d at 1049 (alteration in original).
Similarly, in Mastandrea v. North, 361 Md. 107, 760 A.2d 677 (2000), superceded by statute on other grounds as stated in Chesley v. City of Annapolis, 176 Md.App. 413, 933 A.2d 475 (2007), the Mastandreas purchased land to which they made substantial improvements, including pathways to accommodate their disabled daughter's wheelchair. A portion of the pathways were placed within the critical area buffer, although the Mastandreas failed to apply for the requisite variances from the requirements of the Talbot County critical area program. Id. at 113, 760 A.2d at 680. Discovery by the authorities of the unauthorized installation led, among other things, to the Mastandreas filing a variance application with the Board in an effort to validate the pathways inside the buffer. At the Board's hearing, the Mastandreas, in support of their principal argument that "the variance should be granted as a reasonable accommodation of [their daughter] Leah's disability so that she could access the pier and enjoy the shoreline of Glebe Creek," offered testimony and exhibits:
Id. at 115-16, 760 A.2d at 681-82. The Mastandreas also presented testimony by an environmental consultant, accepted as an expert by the Board, that the brick-in-sand construction of the pathways actually reduced the runoff of harmful materials into the creek:
Id. at 116-17, 760 A.2d at 682 (footnotes omitted). The Board granted legitimizing variances for the existing pathways, reasoning that the paths provided reasonable access to the waterfront, accommodating Leah's disability, and also found persuasive testimony presented regarding the permeability enhancement of the brick-in-sand pathway. The Circuit Court reversed, determining that Leah's disability was not an appropriate consideration under the local critical area law, and that the Mastandreas had failed to satisfy the pertinent variance criteria.
We granted certiorari prior to any proceedings in the intermediate appellate court and reversed, determining that the Board had clearly articulated evidence in support of its finding that granting the variances conformed with the local critical area law and provided a reasonable accommodation of Leah's disability. We emphasized that the Board had recognized, based upon the Mastandreas's expert's testimony, that the brick-in-sand path dramatically improved permeability, safeguarding the water quality and wildlife of Glebe Creek. Id. at 142, 760 A.2d at 696.
In Alviani v. Dixon, 365 Md. 95, 775 A.2d 1234 (2001), Phyllis Dixon and Jonathan Aaron requested a special exception and variances from applicable zoning ordinances in order to construct an automotive service facility in Anne Arundel County, near Route 50. An administrative hearing officer denied the special exception and variance requests, and the Board of Appeals reversed, finding that the applicants had satisfied the various zoning criteria. Specifically, the Board determined that the variances "would not alter the essential character of the area as the neighborhood is mixed with residential and commercial uses and is impacted by its proximity to
Before us, several neighbors protesting the granting of the special exception and variance requests asserted that the Board of Appeals "failed to make the necessary findings required in order to grant a variance," alleging that the Board failed to properly define the relevant neighborhood that was considered when the Board determined that the variances would not affect the neighborhood. Id. at 117, 775 A.2d at 1247. We disagreed, reasoning that the Board amply described the neighborhood as "developed with a mix of residential and commercial uses" and "heavily impacted" by its close proximity to Route 50. Id. at 119, 775 A.2d at 1248. The Board's description, we reasoned, was "precise enough to enable a party or an appellate court to comprehend the area that the Board considered when deciding to grant the variances." Id.
When the Board of Appeals merely states conclusions, without pointing to the evidentiary bases for those conclusions, such findings are not amenable to meaningful judicial review and a remand is warranted, as we determined in Bucktail and Annapolis Market Place. In contrast, our discussions in Mastandrea and Alviani make clear, that when the Board of Appeals refers to evidence in the record in support of its findings, meaningful judicial review is possible. The present case falls within the ambit of the latter cases, because, in its determination that the Moreland variances should be denied, the Board explicitly summarized evidence presented by several witnesses supporting its conclusions, albeit in a separate section, enabling meaningful judicial review. That evidence, intellectually and logically, can be viewed only as bearing on what persuaded the Board to conclude as it did.
We obviously differ from our Circuit Court and Court of Special Appeals colleagues in their decisions that the separation of the findings from the evidence in the present case obviated meaningful judicial review. We can discern no statutory or jurisprudential basis for the conclusion that summarizing the evidence in a separate section deprived the Board's conclusory findings of adequate evidentiary support. Semantically, on this record, to find the organizational structure of the Board's written decision defective or incomprehensible would be to elevate form over substance. Rather, the Board clearly articulated the evidence in support of its findings, referring to the testimony presented by John Flood, as well as others, regarding detriment to the water quality of Warehouse Creek posed by the construction.
In sum, meaningful judicial review was possible in the present case, because the Board of Appeals summarized substantial evidence in support of its conclusory findings. Because the Board marshaled the evidence in its written decision in support of its conclusion, at least, that Moreland failed to carry the day as to the requirements in Sections 3-1-207(b)(5)(i) and (c)(2)(v), the Board's decision should be affirmed.
The Association contended that it was "an interested person through its members Ross Voorhees and Peter Quirk," who had offered testimony before the Board of Appeals. Similarly, Kenneth Malley, a neighbor of the property, also filed a "Notice of Intent to Participate" pursuant to Rule 7-204(a).
Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, Bay Smart, A Citizen's Guide to Maryland's Critical Area Program, 47-50, (Dec.2008), http://www.dnr.state.md.us/criticalarea/download/baysmart.pdf.
