BATTAGLIA, J.
In this case, we have been asked to consider whether the Board of Appeals for Charles County, Maryland,
WSG Holdings, LLC ("WSG"),
The Board granted WSG's application, and various individuals jointly filed a petition for judicial review in the Circuit Court for Charles County, contending among other things, that the Board conducted the visit to the subject property in a manner that was closed to the public in violation of Article 66B, the Charles County Code, and the Board Rules of Procedure.
WSG filed a Petition for a Writ of Certiorari presenting the following three questions:
We granted the Petition. 426 Md. 427, 44 A.3d 421 (2012).
We shall hold that Respondents preserved their objections to the site visit under the public meetings provisions of Section 4.07 of Article 66B, Sections 412 and 415E of Chapter 297 of the Charles County Code, as well as Rule III of the Board Rules of Procedure. We shall further hold that the site visit constituted a "meeting" which was required to be open to the public by Section 4.07(c)(4) of Article 66B, as implemented in the Charles County Code, and Rule III of the Board Rules of Procedure. Because the Board violated the open meeting provisions of Article 66B, the Charles County Code, and Rule III of its own Rules of Procedure, we shall remand the matter to the Board for a new hearing, thus affirming the Court of Special Appeals.
The property in question, described by WSG in its application for a special exception, is an 80 acre tract of land consisting of approximately 18 acres of open space and 62 acres of woodland
At the first hearing, WSG presented four witnesses who testified about the utility of the proposed site for the intended purposes, that the site would be used only for tactical research, rather than for training, and that no real biological and chemical agents would be used. Regarding the impact of the firing range and tactical driving course on the surrounding environment, neighboring landowners, and the rest of the Nanjemoy community, one of WSG's witnesses opined that the firing
Members of the public testified, but were limited by the Board to three minutes for each individual and five minutes for each group. Over the course of the first two hearings, thirty people testified, including twenty-two who opposed the facility. Some opponents asserted that the site was not fit for the facility contemplated by WSG
At the March 10, 2009 hearing, a petition containing over three hundred signatures of "citizens and residents of Nanjemoy and Charles county [sic]" was submitted to the Board, requesting that the Board deny WSG's special exception application.
The Chair, thereafter, called for a representative of the citizens to be selected and assigned Dr. Chad Stoltz to that role, apparently using some measure of applause from those present and a name shouted by an unidentified audience member:
The Chair closed the record, and also set the final hearing for April 14, 2009 at which time a vote would be taken on WSG's application. The Board never discussed that the visit to the property was subject to any public meetings provisions or procedural mandates, never took a vote to limit attendance at the property, nor does the record reflect that anyone present objected to the restrictions placed on public attendance at the visit. The motion for the visit was approved by the Board and scheduled for March 17, 2009 at 10:00 a.m.
On March 17, 2009, the Board conducted its visit. The participants included the entire Board, two representatives from WSG, including its attorney, as well as Kurt Wolfgang, counsel for Robert O'Neil
No record was kept of the March 17, 2009 visit to the property, and contentions abound as to what transpired.
After the visit, two weeks prior to the final vote by the Board, Robert O'Neil filed a "Motion for Appropriate Relief" in which he alleged that, during the trip to the property, the owner of an adjoining piece of property, Charles E. Parmley, attempted to attend and was turned away, in violation of the public meeting provisions of the Charles County Code, the Board's Rules of Procedure, and, Section 4.07(c)(4) of Article 66B. With regard to the trip to the property, Mr. O'Neil asserted that the Board held a non-public session at which it allowed WSG to introduce evidence, including testimony, without affording opponents any opportunity for review or rebuttal. Mr. O'Neil asserted that the trip to the property was not limited to observation alone, but was instead a forum for WSG to influence the Board outside the presence of the public.
In response, WSG filed a Motion of Ne Recipiatur, which urged the Board to strike Mr. O'Neil's Motion for Appropriate Relief on the grounds that it was "filed too late and not in the mode required by law and [was] insufficient in substance."
At the beginning of the April 14 hearing, the Chair denied WSG's Motion of Ne Recipiatur, and granted Mr. O'Neil's Motion for Appropriate Relief in part, by accepting Mr. O'Neil's written testimony, and denying all other relief sought by Mr. O'Neil's motion. By a majority of its members, the Board voted to approve WSG's application for a special exception.
Respondents, among others, filed a Petition for Judicial Review of the decision of the Board of Appeals and supporting memorandum in the Circuit Court for Charles County, in which they contended, among other allegations, that "[t]he decision of the Board of Appeals should be vacated because it is irrevocably tainted by the Board's denial of due process, violation of relevant state and county laws, failure to adhere to its own rules, and the absence of substantial evidentiary support." Specifically, with respect to open meetings and the site visit, the memorandum alleged that the public was denied access to the site visit conducted by the Board in violation of Section 4.07(c) of Article 66B, Section 297-412 of the Charles County Code, and the Board's Rules of Procedure.
The County responded, arguing that no procedural rules were violated because the "citizens present" at the meeting at which the Board announced it would conduct the site visit "were asked to agree on a representative [and] [t]hey selected a Dr. Chad Stoltz." WSG separately argued that the due process violation claims were baseless and not supported by the record, because no person objected either to the site visit or to the manner in which the Board selected representatives of the public prior to the visit, and therefore any objection to the visit was untimely. Furthermore, WSG argued that the exclusion of the public from the site visit was warranted because "the property is privately owned."
The Circuit Court, after a hearing, issued a written opinion which held that the Board's decision did not sufficiently address whether the proposed use was in accordance with the Charles County Comprehensive
The Respondents appealed to the Court of Special Appeals, questioning not only the open meetings decision but also whether substantial evidence supported the Board's findings. WSG and the County cross appealed, both questioning whether the Circuit Court erred in remanding, rather than affirming, the Board's decision.
The Court of Special Appeals, in a reported opinion, reversed the Circuit Court, for remand to the Board of Appeals, for another hearing and decision, on the basis that the site visit violated the open meeting requirements of Section 4.07(c) of Article 66B and Rule III of the Board Rules of Procedure. Bowie v. Bd. of County Comm'rs of Charles County, 203 Md.App. 153, 36 A.3d 1038 (2012). The Court of Special Appeals held that Respondents preserved their objection to the site visit by filing their Motion for Appropriate Relief before the Board reached its decision and held that the trip to the property was a "meeting" under Section 4.07(c) of Article 66B and Rule III of the Rules of Procedure of the Board of Appeals. Id. at 164-65, 169, 36 A.3d at 1044-45, 1047. The intermediate appellate court further held that "that the March 17, 2009 site visit violated the open meeting requirements of [section] 4.07(c)(4) and Rule III," noting that "[c]learly, the Board was transacting public business during the site visit," and "[t]he fact that the site visit occurred on private property does not transform the Board's meeting into an event exempt from open meetings requirements." Id. at 170, 36 A.3d at 1048.
Before us, WSG contends that Respondents' objections to the property visit were not preserved for appellate review. WSG argues that no one objected to the visit when it was proposed by the Board and that those who were permitted to attend made no objection to the way in which the visit was conducted. Even if the objection was preserved, however, WSG argues that what occurred at the property was a "site visit" limited to observation alone and was thus removed from the strictures of open meetings requirements. Finally, WSG argues that the Court of Special Appeals erred in failing to give guidance to the Board to conduct the new proceeding on remand, maintaining that the proper remedy was to remand with instructions to the Board as to how to proceed.
"The basic argument for open meetings is that public knowledge of the considerations upon which governmental action is based is essential to the democratic process." Note, Open Meeting Statutes: The Press Fights for the "Right to Know", 75 Harv. L.Rev. 1199, 1200 (1962). Open meetings legislation further ensures "the free flow of information to the electorate by requiring governmental bodies to hold public meetings," and "guard[s] against corruption and deceit and promote[s] public faith in government." Teresa Dale Pupillo, The Changing Weather Forecast: Government in the Sunshine in the 1990's — An Analysis of State Sunshine Laws, 71 Wash. U. L.Q. 1165, 1166 (1993). In Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla.1974), the Supreme Court of Florida succinctly and clearly described the breadth of the public deliberative process embraced by open meetings legislation:
We have consistently supported the legislative purpose of requiring strict adherence to public meetings provisions through providing notice to the public and keeping a record of the meetings, among other measures. See, e.g., City of Baltimore Development Corp. v. Carmel Realty Associates, 395 Md. 299, 321-22, 910 A.2d 406, 418-420 (2006) (describing the breadth of openness required); Community and Labor United for Baltimore Charter Committee (CLUB) v. Baltimore City Board of Elections, 377 Md. 183, 193-94, 832 A.2d 804, 809-10 (2003); Board of County Commissioners of Carroll County v. Landmark Community Newspapers of Maryland, Inc., 293 Md. 595, 599-601, 446 A.2d 63, 64-66 (1982).
The public meetings mandates that apply in the present case emanate from Section 4.07 of Article 66B,
Section 297-409 of the Charles County Code sets out the "[p]owers and duties" of the Board of Appeals, including that the Board shall hear and decide on, among other things, "[a]pplications for special exception uses and enlargements, extensions, modifications or revocations of special exceptions[.]" Charles County Code, Section 297-409(A)(2). Section 297-412 specifies the requirements that the Board hear testimony, receive evidence, and make a record of the public hearing. Section 297-415 sets out the Board's "procedures and minimum standards for the consideration and authorization of special exception uses," Section 297-415(B), and contains a notice and public meetings provision. Section 297-415(G). With regard to notice of the hearing, Section 297-411 requires notice to adjoining property owners, posted signs on the property, and, for special exceptions specifically, publication in a local newspaper of the time and place of the meeting and information regarding the special exception sought.
The Board also adopted its own rules, echoing the open meeting requirements of Article 66B and articulating the requirement that hearings shall be open to the public and be electronically recorded:
Rules of Procedure, Rule III. The Rules require the Board to keep a record of the visit, including all testimony and exhibits,
Rather, WSG argues that the Respondents had to raise their objection to the limitations of the site visit before or during the visit itself. The Circuit Court Judge agreed that Respondents had not preserved the issue.
The Court of Special Appeals disagreed, however, and determined that the
Bowie v. Bd. of County Comm'rs of Charles County, 203 Md.App. 153, 165, 36 A.3d 1038, 1045 (2012) (footnote omitted). Finally, the Court of Special Appeals noted the absurdity of WSG's argument that those allowed by the Board to attend the site visit could waive the public's objection to the visit to the property:
Id.
We agree. At the Board meeting at which the site visit was proposed, there was no discussion by any Board member of public meetings mandates, although the Board was clearly bound by the meeting mandates of Section 4.07 of Article 66B, the Charles County Code, and its own Rules of Procedure. The burden was on the Board, not those in attendance, to enforce its own strictures.
Mr. O'Neil, further, filed his Motion for Appropriate Relief with the Board two weeks before its final hearing and before a final vote was taken. He objected to the fact that the public was not permitted to attend the site visit, citing violations of public meeting procedures prescribed by Section 4.07 of Article 66B, Section 297-412 of the Charles County Code, and the Rules of Procedure of the Board of Appeals, and proposed that a record of the site visit be made and to reopen evidence to allow rebuttal of evidence erroneously secured during the visit. The Board, however, denied the Motion without any comment. These actions certainly do not support any notion that reasoned public outcry had any impact on the Board's decision-making.
In asserting that the Respondents had to interpose an objection to the visit before or during the visit, WSG relies upon In re Ryan S., 369 Md. 26, 797 A.2d 39 (2002), and Mayor and City Council of Baltimore v. Theiss, 354 Md. 234, 729 A.2d 965 (1999), but these cases are inapposite. Neither Ryan nor Theiss involved administrative agency decisions or open meetings requirements. Rather, Ryan involved the necessity of interposing an objection to permit a judge to respond in order to avoid waiver, while Theiss involved the necessity of raising an objection during the context of a deposition in order to preserve the objection.
WSG next contends that the site visit in issue was not subject to the open meetings mandates of Section 4.07(c) of Article 66B, the Charles County Code and the Rules of Procedure of the Board of Appeals, because the visit was not a meeting but merely observatory in nature and done to confirm facts already in evidence. WSG stresses that the visit by the Board was limited to "visual orientation" alone, and as such, did not need to be open to the public.
A site visit by a board has been called a "common practice" that serves to "freshen
Id. at 40-117 (footnotes omitted).
The Court of Special Appeals in the present case identified that which elevates a site visit above mere observation, noting that when a site visit "is conducted to obtain information material to issues raised in the adjudicatory proceeding, the agency should conduct the visit on the record in the presence of the parties." Bowie, 203 Md.App. 153, 167, 36 A.3d 1038, 1045 (2012) (quotation marks and citation omitted). The court further noted that reliance by the Board upon information it obtained from the site visit in the present case was improper where the Board "fai[ed] to disclose this information and to allow [Respondents] to challenge this evidence through cross-examination or other means." Id. at 170-71, 36 A.3d at 1048. Further, the Court of Special Appeals noted the importance of creating a record:
Id. at 170, 36 A.3d at 1048.
It may be true that site visits without observance of the nuances of public meetings strictures are permitted if the board limits itself to observation alone. See In re Quechee Lakes Corp., 154 Vt. 543, 580 A.2d 957, 962 (1990) (noting that site visits by a board for observational purposes are appropriate as long as those visits do not form the sole basis for the board's decision). We have held, however, that a board must make a record of its site visit if the board relies upon that visit in reaching its decision in a non-public meetings context. See, in this regard, Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 305, 49 A.2d 799, 804 (1946) (reversing the decision of a zoning appeals board granting a special exception because the board announced in its decision simply that it had "made a study of the premises" and provided no record or other evidence of what occurred at the site). In White v. North, 121 Md.App. 196, 708 A.2d 1093 (1998), vacated on other grounds, 356 Md. 31, 736 A.2d 1072 (1999), Judge Glenn T. Harrell, Jr., then writing for our intermediate appellate court in another non-public meetings case, explained the concerns that arise when a board obtains information from a site visit:
121 Md.App. at 229, 708 A.2d at 1109-10.
In the present case, the visit to the property, by any account, was not merely observatory, but participatory and influential. Albeit chaotic, it is clear that discussions among the Board members and WSG representatives occurred and that no record was kept. No public notice of the visit on March 17, 2009 was given.
With regard to what constitutes a meeting of the Board which must be open, Article 66B does not define the term. Neither the Charles County Code nor the Rules of Procedure of the Board of Appeals contain the term "meeting" but refer to a "hearing," without definition. In defining, then, whether the property visit was a meeting and a hearing, we lack statutory direction. Black's Law Dictionary defines "meeting" as "[t]he gathering of people to discuss or act on matters in which they have a common interest; esp. the convening of a deliberative assembly to transact business." Black's Law Dictionary 1072 (9th ed.2009). Hearing, in an administrative law context, as here, is defined in Black's Law Dictionary as, "Any setting in which an affected person presents arguments to a decision-maker <a hearing on zoning variations>." Id. at 788.
In the instant case, the visit to the property by the Charles County Board of Appeals constituted a meeting under the provisions of Article 66B and a hearing under the Charles County Code and the Rules of Procedure of the Board of Appeals. The Board was conducting a meeting when it was transacting public business as it visited the property under review. Board members interacted with WSG representatives and gathered information pertaining to the special exception at issue. The Board also was conducting a "hearing," because discussions occurred among Board members and WSG representatives, in contravention of the Board's own Rule that "no evidence, argument, or other matter shall be received by the Board in closed session." The Board,
WSG, however, relies on 95 Op. Att'y Gen. 129 (2010) to support its position that the site visit did not require open meeting adherence. That opinion addressed the question of whether the Saint Mary's County Board of Education could convene in closed session. The opinion notes that "county boards of education need not meet in open session when they are performing an `administrative function' and when the State education law does not otherwise require an open meeting." Id. WSG urges that the Board in the instant case was performing administrative fact finding and not conducting the visit as part of its deliberations. Ignoring the obvious incongruity of this position, namely that any facts gathered by the Board at the property would necessarily inform their ultimate decision and thus the visit was part of the Board's decision-making process and not mere administration, WSG's reliance is otherwise misplaced. In that opinion, the Attorney General concluded that the board must hold meetings open for "many, if not most, activities that would qualify as an administrative function under the State [Open Meetings Act]" because the county's own open meetings provision, governing meetings of the board in question, did not provide an exception for administrative functions. 95 Op. Att'y Gen. 129. Similarly, Section 4.07 of Article 66B recognizes no "administrative function" exception to the requirement that boards of appeals hold open meetings.
WSG further contends that the Board was not bound by open meetings strictures because "informal procedures may satisfy due process requirements where they do not create procedural unfairness." The informal procedures, WSG asserts, were the selection of "representatives" to accompany the Board on the site visit and the fact that the Board set out orally the limitations on the site visit when it was proposed. In support of this contention, WSG cites our decisions in Calvert County Planning Commission v. Howlin Realty Management, Inc., 364 Md. 301, 772 A.2d 1209 (2001), and State v. Cates, 417 Md. 678, 12 A.3d 116 (2011), for the proposition that "due process does not always require strict adherence to statutory procedures where administrative action is governed by statute." WSG's reliance is misplaced, however.
In Howlin, we concluded that although a board failed to adopt formal rules of procedure in violation of its statutory mandate, the board's process was fundamentally fair, noting that "[d]ue process is concerned with fundamental fairness in the proceeding, not with whether the agency has failed in some way to comply with a statutory requirement." 364 Md. at 322, 772 A.2d at 1221. In State v. Cates, we held that a police department did not deprive its officers of due process when it reissued speed camera tickets to them, reasoning that "[d]ue process does not require strict adherence to a statute by an administrative agency where such adherence would provide no additional guarantees of fairness, notice, or an opportunity to be heard;" Cates, 417 Md. at 701, 12 A.3d at 130 (emphasis added).
Obviously, the Board's management of the visit to the property was not fair to the public, where no sufficient notice was given, no record was kept, and members of the public were excluded. To compound matters, the Board, in its Findings of Fact and Conclusions of Law, relied upon information that it gained from the site visit. The "site visit" was then, clearly, a meeting
What remains, then, is what is the remedy for the violations of the open meetings mandates implicated in the present case? WSG argues that because the Board attempted to ensure that the public was fairly represented at the site visit, any potential violation of open meetings mandates was not "willful" under the State Open Meetings Act. Respondents, however, dispute the issue of willfulness, both in its relevance and its application and urge that the decision of the Board be voided. We need not, however, address the issue of whether the State Act applies to the instant case, because it was not raised before the Circuit Court.
The general rule when a public body acts contrary to the mandates in its charter is that its actions will be considered void ab initio. In von Lusch v. Board of County Commissioners, 268 Md. 445, 302 A.2d 4 (1973), for example, we considered whether the enactment of an amendment to the Comprehensive Zoning Ordinance for Queen Anne's County by the County Commissioners was proper, given the procedures established by Section 4.04 of Article 66B, Maryland Code (1957, 1970 Repl.Vol.), which required notice and a hearing before its passage. The County Commissioners publicized the text of the proposed amendment and held a public hearing on the matter, but, when the Commissioners rendered their decision enacting the amendment, it contained language that was materially different than that which had been published prior to the hearing. We declared "invalid and void" the amendment, because Section 21.23 of the Zoning Ordinance stated, "[n]o change in or departure from the proposed amendment as recommended by the Planning Commission shall be made unless the same be resubmitted to said Commission for its further recommendation. The Planning Commission shall file its further recommendation within thirty (30) days...." Id. at 457-58, 302 A.2d at 10. We noted that "the word `shall' is mandatory and not directory," id. at 457, 302 A.2d at 10, and that the County Commissioners had never resubmitted the proposed amendment to the Planning Commission, thus rendering void the amendment. Id. at 458, 302 A.2d at 10; see also Walker v. Board of County Commissioners of Talbot County, 208 Md. 72, 86-87, 116 A.2d 393 (1955).
In the case sub justice, each of the public meetings mandates at issue provides mandatorily that the Board "shall" hold open meetings. Specifically, Section 4.07(c) of Article 66B provides that:
As each of these Sections makes clear, the Board violated mandatory requirements of the provisions that govern its conduct, as did the public body in von Lusch. Here, the public suffered an irreparable injury when the Board conducted a visit to the property, which was more than merely observatory and for which there was not the requisite notice nor record, upon which the Board relied. The Board's decision is, thus, void ab initio.
WSG's argument that guidance upon remand is a necessity is without merit. Here, the fundamental nature of open meetings was violated so that only a process that ensures adherence to the strictures of Article 66B, the Charles County Code, and the Rules of Procedure of the Board of Appeals for Charles County can be the remedy. On remand for another hearing and decision, we agree with the Court of Special Appeals that "it would be up to the Board to decide whether to hold another site visit, one that is tightly controlled, open to the public and on the record." 203 Md.App. at 171, 36 A.3d at 1048.
McDONALD, J., concurs.
McDONALD, J., concurring.
I agree with the analysis and conclusions drawn in the majority opinion. I write only to add what I believe is a necessary clarification of the relationship of the State Open Meetings Act, Maryland Code, State Government Article ("SG"), § 10-501 et seq., to this case.
The threshold for the application of the State Open Meetings Act to a particular situation depends on affirmative answers to three questions:
1 — Is the entity a "public body" as defined by the Act? See SG § 10-502(h). The Board of Appeals fits that definition.
2 — If so, is the public body engaged in a "function" covered by the Act? The answer, in this case, is yes. See SG § 10-503(b).
3 — If so, is the gathering a "meeting" as defined by the Act — i.e., the convening of a quorum for the consideration or transaction of public business. SG § 10-502(g) (definition of "meet"). Although there is no prior case of which I am aware that analyzes the Act's definition of "meeting" in relation to site visits, I will assume that a site visit attended by a quorum of the Board of Appeals — as in this case — is a "meeting" for purposes of the Act.
Sometimes, however, another law may separately impose an open meetings requirement on a public body. Such is the case in this matter, as carefully outlined in the majority opinion, for Article 66B, § 4.07, the Charles County Code, and the Board's own rules require open meetings. When another law imposes "more stringent" requirements — i.e., requires greater openness — the Open Meetings Act defers to that law. SG § 10-504. In my view, other open meetings provisions applicable to the site visit in this case impose "more stringent" requirements related to the issues in this case and, accordingly, our opinion properly focuses on those requirements and does not fully analyze application of the Open Meetings Act here.
Unless indicated otherwise, all references to Article 66B are to Maryland Code (1957, 2003 Repl.Vol.). Section 4.07 of Article 66B has been repealed and recodified without substantive change in various sections of Title 4 of the Land Use Article, Maryland Code (2012).
Unless otherwise noted, all references to the Rules of Procedure are to the Rules of Procedure of the Board of Appeals for Charles County (May 9, 2000). The May 9, 2000 version of the Board Rules of Procedure has been superceded by a more recent version in which the relevant portions remain unchanged.
They were described in the Petition:
The Circuit Court dismissed all but the following individuals, who remain as Respondents in this action: Larry Bowie, George and Arlene Bowie, Gerald Grinder, James Cottrill, Scott Hurley, Erik Doctrow, Linda Wright, Calvin Wright, Michael and Kathleen Moreland, Kevin Metcalf, Philip Terry, Norman and Peggy Palmer, Kenneth Kraushaar, Charles E. Parmley, Randy Roe, Adam Jentilet, Chad and Jamie Stoltz, and Robert O'Neil. For the sake of brevity, we shall collectively refer to those who remain as "Respondents."
(footnotes omitted). Mr. Buchanan, the county attorney who represented the Board and attended the trip, did not contest these assertions. His only description of what occurred at the property was during the hearing before the circuit court, when he stated that Respondents' characterization of the site visit was "inaccurate" and that, "[t]here was no presentation. Nobody was under oath. Nobody did anything other than answer questions." Mr. Mudd, attorney for WSG who also attended the trip, was similarly vague as to what actually occurred, stating at the circuit court hearing only that "[the trip] was simply an orientation. It was simply — answering questions. I don't know. Assuming we're at the same meeting. Maybe there was a different one he attended. I don't recall all the things he asserted."
(footnote omitted).
