                REPORTED

 IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND


                    No. 361

           September Term, 2015

______________________________________

      FORKS OF THE PATUXENT
  IMPROVEMENT ASSOCIATION, INC.,
              ET AL.

                      v.

    NATIONAL WASTE MANAGERS/
        CHESAPEAKE TERRACE
______________________________________

  Krauser, C. J.,
  Kehoe,
  Leahy,

                  JJ.
______________________________________

            Opinion by Kehoe, J.

______________________________________



          Filed: October 25, 2016
    This judicial review action is the latest episode of a prolonged effort by National

Waste Managers/Chesapeake Terrace (“National”) to construct and operate a rubble

landfill on a large tract of land near Odenton, Maryland. In 2013, National applied for a

variance to extend the time period for obtaining construction permits for the project. The

variance application found its way to the Anne Arundel County Board of Appeals. The

Forks of the Patuxent Improvement Association, Inc. (the “Association”), as well as

several individuals, opposed the variance.

    Four members of the Board participated in the hearing. After the hearing, the Board

was evenly divided: two members of the Board (the “Approving Members”) were in

favor of granting the application and two members (the “Denying Members”) voted to

deny it. The Board concluded that the evenly-divided vote constituted a denial and

entered an administrative order to that effect.

    National filed a petition for judicial review in the Circuit Court for Anne Arundel

County. The court concluded that: (1) the evenly-divided Board decision had the effect of

denying the application; (2) the court’s focus should be on the reasoning and findings of

the Denying Members because their decision was dispositive on the application; and (3)

the Denying Members applied erroneous standards to the evidence. The court set out its

view of the appropriate legal standards, vacated the Board’s decision, and remanded the

matter to the Board for further proceedings consistent with its opinion.




                                             -1-
    The Association1 appealed the court’s judgment and poses one issue, which we have

re-worded:

       Did the Board’s evenly-divided 2-2 vote constitute a denial of National’s
       application for a variance?

National filed a cross-appeal and presents three questions, which we have consolidated

and re-phrased:

       Did the circuit court err in vacating and remanding the Board of Appeals’
       decision rather than reversing the Board’s decision and ordering the Board
       to approve the variance application?

    As we will explain, we agree with the circuit court’s conclusions that the case must

be remanded but see the relevant legal issues somewhat differently than did the circuit

court and the members of the Board. Therefore, we will vacate the court’s judgment and

remand this case for further proceedings consistent with this opinion.

                                        Background

    National owns a 481-acre tract of land in Anne Arundel County (the “Project Site”).

In 1993, National applied for and received a special exception and variances from the

Board to construct and operate a rubble landfill and a sand and gravel operation on the

Project Site. The Board’s approval was affirmed by the Court of Appeals in Halle v.

Crofton Civic Ass’n., 339 Md. 131 (1995). After obtaining the zoning approval, National

had 18 months to obtain a construction permit for the project; if it failed to do so, the


1
 Several individuals, Ulis Fleming, Catherine Fleshman, Robert Fleshman, Sr., Diana
Lane, Gregory Lane, Andrew Meyer, Sue Ellen Meyer, Michael Murphy, Stacy Murphy,
Ann Marie Thomas, and Leon Thomas, also appealed the court’s judgment. We gather
that they are members of the Association.

                                             -2-
special exception would lapse, unless it obtained a variance for an extension of time. See

Anne Arundel County Code § 18-16-405.2

    In order to obtain a construction permit from the County, National needed a solid

waste refuse disposal permit from the Maryland Department of the Environment (the

“MDE”). The MDE’s review process for such permits consists of five phases. In

summary, the phases are as follows:

       1. Phase I centers on gathering basic information, such as the project’s
       intended objectives, location, etc. This phase also gathers and compiles
       existing data about the site. The MDE circulates this information to various
       local, State, and Federal agencies for review and comment and to determine
       whether the site is suitable for the intended use. See COMAR 26.04.07.14.
       2. Phase II consists of a hydrogeological investigation. The applicant is
       required to identify and analyze groundwater and geological conditions on
       the site. This report is also sent to local, State, and Federal agencies for
       review and comment. See COMAR 26.04.07.15.


2
 The Anne Arundel County Zoning Ordinance has been amended on numerous occasions
in the years since National’s application was first granted. Neither party suggests any of
these amendments affect the appropriate legal analysis. We will refer to the current
version of the County Code.
     County Code § 18-16-405 states in pertinent part:
        § 18-16-405. Time period after which variances and special exceptions
        are void.
            (a) Expiration by operation of law. A variance or special exception
            that is not extended or tolled expires by operation of law unless the
            applicant within 18 months of the granting of the variance or special
            exception (1) obtains a building permit or (2) files an application for
            subdivision. Thereafter, the variance or special exception shall not
            expire so long as (1) construction proceeds in accordance with the
            permit . . . .
                                            ****
            (c) Extension by variance. An applicant may file an application for a
            variance to extend the time periods set forth in subsection (a).

                                            -3-
      3. Phase III entails engineering design. This phase takes all of the
      information gathered, especially the hydrogeological information from
      Phase II, and designs a landfill with these considerations in mind. See
      COMAR 26.04.07.16.
      4. Phase IV is a review stage. The MDE uses this period to review all the
      information from Phases I–III to ensure that all of the statutory and
      regulatory requirements have been met. It then begins to prepare any and all
      documents it will need to present to the public on the proposed permit.
      During this phase, the MDE also drafts a proposed permit for the site.
      5. Phase V is the public comment stage. The MDE advertises and holds a
      hearing on the draft permit and invites the public to submit comments on
      the proposal. After the public comments are received, the MDE engages in
      a final review, and then either issues the permit as is, issues it with
      modifications, or denies the permit.
    National began this process in 1991, in conjunction with its then-pending application

for a special exception. In 1994, however, the MDE suspended review because the

County had amended its Solid Waste Management Plan to omit any reference to the

Project Site.3 Litigation between National and the County on the amendment culminated

in National’s favor by means of an unreported decision of a panel of this Court in

National Waste Managers, Inc. v. Anne Arundel County, No. 810, September Term,

1997, filed March 25, 1998 (“National I”). The County then took the position that

National’s special exception permit had lapsed pursuant to a prior version of what is now

County Code § 18-16-405. This resulted in another lawsuit, which was also finally

resolved in National’s favor by our decision in National Waste Managers, Inc. v. Anne




3
  MDE may not issue a permit for a proposed landfill unless the project is consistent with
the county’s Solid Waste Management Plan. See Environmental Law Article § 9-
201(a)(3)(ii).

                                           -4-
Arundel County, 135 Md. App. 585 (2000) (“National II”).4 In National II, we held that

the 18-month time limit in what is now County Code § 18-16-405 was tolled during the

pendency of the litigation between National and the County. Id. at 614.

    In 2001, MDE resumed its process of reviewing National’s proposal. MDE was

unable to complete its review within the 18-month period set out in County Code § 18-

16-405.5 Therefore, National filed for a variance for an extension of time to begin

construction in 2003. In 2004, the variance was granted. The Board of Appeals found that

exceptional circumstances, namely MDE’s ongoing review of the Project Site, made it

impossible for National to implement the previously approved special exceptions and

variances within the allotted time and that an extension of two years was the minimum

necessary to afford relief to National.

    Between 2004 and 2013, National filed three more variance applications for

extensions of time, each based upon assertions that, although it had pursued its permit

from MDE with due diligence, the agency had been unable to complete its review and

approval process. The Board of Appeals approved the first two variance requests in 2006

and 2011. The extension granted in 2011 expired on January 3, 2013.

    In its current variance application, National sought an additional two year extension

to obtain the necessary permits. An administrative hearing officer granted the application

4
 There was additional litigation regarding National’s proposed rubble fill. It is described
in National II, 135 Md. App. at 591–97.
5
 Because of the passage of time and changing regulations, MDE required National to
perform additional geological and groundwater studies. Evidence before the Board in the
current proceeding indicated that obtaining this information took several years.

                                            -5-
after a public hearing. The County Code provides that aggrieved persons may appeal an

AHO’s decision to the Board, which conducts its own de novo proceeding. County Code

§ 18-16-402. Appellants filed such an appeal.

    The Board’s hearing in this case began on June 6, 2013 and was completed on

October 15th of that year. The Board issued an evenly divided 2-2 decision on December

27, 2013. The Approving Members voted to grant the application and the Denying

Members voted to deny it. After summarizing the evidence presented to the Board, and

explaining the differing conclusions that each group drew from that evidence, the Board

concluded:

       The legal effect of the inability of the Board to reach a majority is that
       [National] did not meet [its] burden of persuasion and the request for
       variances for time extension must be denied. When an appeal of this nature
       is placed before the Board, it is heard de novo, and the burden of proof and
       persuasion is placed upon [National]. See Montgomery County Board of
       Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1962); Lohrmann v.
       Arundel Corp., 65 Md. App. 309, 500 A.2d 344 (1985). If a majority is not
       persuaded upon substantial evidence, the application must be denied. Id.

    National filed a petition for judicial review of the Board’s decision in the circuit

court. It presented a variety of arguments to the circuit court, but only two of them are

relevant to the current appeal: (1) whether the Board’s evenly-divided vote had the legal

effect of denying National’s application; and (2) whether the Denying Members applied

the correct legal standard in assessing the evidence. On the first issue, the circuit court

concluded that the Board’s 2-2 vote constituted a denial of the application. However, on

the second issue, the court concluded that the Denying Members relied on an erroneous

legal standard. Thus, the court vacated the Board’s decision and remanded the case for


                                             -6-
reconsideration. The Association has appealed, and National cross-appealed, the circuit

court’s judgment.

                                         Analysis

                                    Standard of Review

    When this Court reviews the final decision of an administrative agency, we “look

through” the circuit court’s decision, and, although applying the same standards of

review, independently evaluate the agency decision. People’s Counsel for Baltimore

County v. Surina, 400 Md. 662, 681 (2007). In this exercise, our review 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.” Id. at 682 (citation and quotation marks

omitted). Finally, “[a] reviewing Court may not uphold the agency order unless it is

sustainable on the agency’s findings and for the reasons stated by the agency.” Eastern

Outdoor Advertising Co. v. Mayor & City Council of Baltimore, 128 Md. App. 494, 516

(1999) (quotation marks and citation omitted).

                                             I.

    The Association contends that the Board’s 2-2 evenly-divided vote on National’s

application had the legal effect of denying National’s variance application. The

Association relies on this Court’s decision in Lohrmann v. Arundel Corp., 65 Md. App.

309 (1985) for support. We agree that our prior decision is dispositive as to the legal

effect of an evenly-divided decision by an administrative agency.



                                            -7-
    Lohrmann was not a judicial review proceeding but rather was an appeal from a

declaratory judgment to the effect that an evenly-divided decision of the Anne Arundel

County Board of Appeals left the decision of the administrative hearing officer in effect.

Id. at 311–12. In our analysis, we began by noting that, pursuant to the County’s charter,

the Board of Appeals exercises original de novo jurisdiction over all matters that come

before it. Id.6 We concluded that, because the Board was exercising original jurisdiction:

       [i]t was as though the zoning officer had made no decision. In that
       situation, [the applicant] had the same burden it had before the zoning
       officer—“the burden of proof (including the burden of going forward with
       the evidence and the burden of persuasion) of all questions of fact.”
       [County Code] § 13-341.2(a) . . . . The evenly-divided Board decision
       demonstrates that it did not meet that burden. Accordingly, the effect of the
       Board’s action was to deny [the applicant’s] request for a special
       exception.

Lohrmann, 65 Md. App. at 319–20 (citation omitted, emphasis added).

    In its cross-appeal, National asserts that Lohrmann is not controlling because “the

Court of Appeals on two occasions addressed cases involving ‘split votes’ in de novo

appeals to Boards of Appeal, from decisions of zoning hearing officers.” National cites

Levy v. Seven Slade, Inc., 234 Md. 145 (1964) and Stocksdale v. Barnard, 239 Md. 541

(1965), in support of this proposition. National concedes, however, that the Lohrmann

Court distinguished both Levy and Stockdale because in neither case “was an issue raised

as to the effect of a split decision on a de novo administrative appeal. No doubt for that



6
 Section 603 of the County Charter provides, in pertinent part, that “[a]ll decisions by the
County Board of Appeals shall be made after notice and hearing de novo upon the issues
before said Board.”

                                            -8-
reason the Court of Appeals did not address that issue, instead of treating the cases as

though they involved non-de novo appeals.” Lorhmann, 65 Md. App at 316 n.3.

    Lohrmann’s scholarly and well-reasoned analysis is as cogent today as it was when

the opinion was filed more than thirty years ago. We see no reason to depart from our

long-established holding. Because the Denying Members prevailed in rendering their

decision on National’s application, it is their factual findings and conclusions of law that

we will review in determining whether the Board erred in denying the application. See

Mombee TLC, Inc. v. Mayor and City Council of Baltimore, 165 Md. App. 42 (2005)

(“[N]o principled legal distinction can be drawn between what is required of a prevailing

majority in rendering its decision and that which is required of a prevailing minority in

imposing its will . . . . Therefore, . . . just as a prevailing majority must do, a prevailing

minority must . . . issue findings of fact and conclusions of law.”).

    We now turn to what is the dispositive issue in this case, namely, whether the

Denying Members’ decision was supported by a “reasonable basis in fact” and was not

arbitrary or capricious.

                                               II.

    Our analysis begins with County Code § 3-1-207, which sets out the criteria by

which the Board is to decide whether to issue a variance. The statute states in pertinent

part:

        (a) Generally. The Board of Appeals may vary or modify the provisions of
        Article 18 of this Code when it is alleged that practical difficulties or
        unnecessary hardships prevent carrying out the strict letter of that article,
        provided the spirit of law shall be observed, public safety secured, and


                                              -9-
       substantial justice done. A variance may be granted only upon an
       affirmative finding that:
                                             ****
       (2) because of exceptional circumstances other than financial considerations, the
       grant of a variance is necessary to avoid practical difficulties or unnecessary
       hardship, and to enable the applicant to develop the lot.
                                           ****
       (e) Required findings. A variance may not be granted under subsection (a)
       or (b)[7] unless the Board finds that:
       (1) the variance is the minimum variance necessary to afford relief;
       (2) the granting of the variance will not:
       (i) alter the essential character of the neighborhood or district in which the lot is
       located;
       (ii) substantially impair the appropriate use or development of adjacent
       property;
       (iii) reduce forest cover in the limited and resource conservation areas of
       the critical area;
       (iv) be contrary to acceptable clearing and replanting practices required for
       development in the critical area or bog protection area; or
       (v) be detrimental to the public welfare.[8]

    As the applicant, National “has the burden of proof, including the burden of going

forward with the production of evidence and the burden of persuasion, on all questions of

fact.” County Code § 18-16-301.




7
 Subsection (b) sets out criteria for variances from the County’s critical area and bog
protection program.
8
  The parties do not dispute that the Board has the authority to grant a time variance. See
Lanzaron v. Anne Arundel County, 402 Md. 140, 143 (2007) (“We hold that the variance
power at issue in this case authorized the Board to issue time variances, and that under
the language used here, the general variance power found in Article 3 reaches all
provisions in Article 28 of the Anne Arundel County Code (the Zoning Code) except
where the general power is restricted by specific language limiting the general variance
power.”).
                                             - 10 -
    The Denying Members found that:

        (1) there were no “exceptional circumstances that would create practical
        difficulties or unnecessary hardship for [National] to develop the lot within the
        time frames previously granted by the Board” because National had not been
        diligent in pursuing the MDE application;
        (2) the two year variance requested by National was insufficient to complete the
        review process with MDE and obtain final County permits; and
        (3) the prolonged uncertainty created by the application, already pending for 12
        years, has negatively affected the surrounding community and “[b]y allowing
        further time extensions, this project, which has no end in sight, will continue to
        burden this community and alter the essential character and development of the
        surrounding neighborhoods.”
    In its brief, the Association asserts that Lohrmann requires reversal of the circuit

court’s judgment because “the evenly-divided Board of Appeals decision means that

[National] did not meet its burden of proof or persuasion[.]” For its part, National

contends that the Denying Members’ findings were entirely unsupported by evidence in

the record, were irrelevant, or both.

    In addressing these contentions, we will examine each of the bases that the Denying

Members relied on in arriving at their conclusion and in so doing will address: (1) the

weight the Board should give to National’s “due diligence,” or the lack thereof, in

deciding whether exceptional circumstances exist that have created practical difficulties

for National’s development of Project Site; (2) the meaning of the requirement that the

variance be the “minimum necessary to afford relief;” and (3) the proper frame of

analysis to determine whether granting the variance would either “alter the essential

character of the neighborhood,” or “substantially impair the appropriate use or

development of adjacent property[.]”


                                            - 11 -
                                          Diligence

    On January 3, 2011, the Board granted a variance which allowed National two

additional years, that is, until January 3, 2013, to obtain the necessary permits. The

Denying Members concluded that National failed to demonstrate that it would suffer

unnecessary hardship because it had failed to diligently pursue its approvals in this

period. The evidence before the Board was mixed.

    At the hearing, National called Edward Dexter, the chief of MDE’s landfill review

program, as a witness. Dexter testified that the period of time MDE took to review

landfill applications varied, “but usually . . . three to seven [years] is typical.” Although

his testimony was guarded as to the specifics, Dexter indicated that a previous

environmental consultant hired by National to coordinate its application process had not

been entirely satisfactory but that National had hired a different consultant shortly after

the Board granted the 2011 variance.

    Veronica Foster, a registered civil engineer who is the current “team leader” for

National’s efforts to obtain the MDE permits, testified that the prior team leader retired in

2011 “for a number of reasons, including his health.” A letter dated December 20, 2012

from Dexter to National’s counsel stated that “[o]ver the last year, . . . National has been

actively pursuing this application.” Foster took charge of the project in January, 2012.

Additionally, Dexter testified that National had, “generally speaking,” been diligent in

pursuing approval since 2001. With regard to the past two years, Dexter further testified

that National had “been aggressively pursuing” the project.



                                             - 12 -
    John Fury, a member of the County’s planning staff, prepared a report for the

Board’s use in the variance hearing. The report stated that “[i]t is evident that the

applicant has been diligently pursuing project approval through the [MDE] since the

original special exception and variance approvals were granted in 1993.”

    None of this evidence was contradicted or challenged by the opponents to the

variance. Even so, the Denying Members were not convinced. Their opinion identified

two reasons for their conclusions. First, the Denying Members identified what they saw

as a pattern of foot-dragging on National’s part in response to requests for additional

information from MDE:

       [National] received a letter from MDE on March 3, 2011 raising 28 specific
       items. [National] did not respond until over a year later on March 22, 2012.
       MDE responded on July 19, 2012 with a request to supplement data from
       2004. [National] did not meet with MDE until September 2012 and it took
       until March 1, 2013 to receive approvals to begin the process necessary for
       [National] to supply MDE with additional information requested.

    Second, the Denying Members referenced National’s failure to pursue the remaining

County permits while MDE’s review was on-going.

    National had the burden of production and persuasion. Our assessment of the

evidence before the Board is that National met its burden of production, but that

National’s failure to pursue the County permits at the same time as it was seeking the

MDE approvals was a basis from which a fact-finder could conceivably conclude that

National had not been diligent in pursuing the permits with MDE in 2011.

    Nonetheless, the Denying Members’ conclusion was problematic because it did not

connect any lack of diligence on National’s part with the unnecessary hardship standard


                                            - 13 -
under County Code § 3-1-207(a)(2). A lack of diligence in itself is insufficient to

conclude that National did not face an unnecessary hardship. A lack of diligence is

relevant only if National could have obtained the permits within the 2011–2013 time

period if it had acted diligently. The Denying Members did not address this issue.

                             The Minimum Variance Necessary

     The Denying Members concluded that a variance for an additional two years was not

the minimum variance necessary to grant relief to National. They reasoned that, if the

past is an accurate predictor of the future, National will have neither MDE nor final

County approval within two years. Therefore, they reasoned, the application failed to

satisfy County Code § 3-1-207(e)(1)’s requirement that the Board grant only the

minimum variance necessary to afford relief to the applicant. We disagree with the

Denying Members’ interpretation of the “minimum variance necessary” requirement and

with their application of that statutory standard to the evidence in this case.

     We will start with the evidence. Dexter, the MDE official supervising the review of

National’s application, testified that he anticipated that the MDE would complete its

Phase III review in calendar year 2013,9 and all of the remaining phases within two years.

Veronica Foster, National’s land fill design expert and the team leader for the project,

agreed. Linton Pumphrey, the Association’s expert, testified that the project also required

additional permitting from the County and that the County process would take



10
 The record indicates that Phase III is the most complex and time-consuming stage of
MDE’s review process.

                                            - 14 -
approximately three years. Finally, Fury, the representative of the County’s planning

staff, testified that he agreed with Pumphrey and that obtaining all necessary permits

could take up to four to six additional years. Nonetheless, Fury recommended that any

variance granted by the Board be for two years, to be consistent with the Board’s prior

practices. (Fury’s recommendation also had the perhaps not entirely coincidental effect of

holding National’s feet to the fire with regard to diligently pursuing the necessary

permits.) We turn to the applicable law.

    Section 3-1-207(a) authorizes the Board to grant variances to alleviate “practical

difficulties or unnecessary hardships . . . provided the spirit of law shall be observed,

public safety secured, and substantial justice done[.]” In the context of the facts before

the Board in this case, the variance can be granted only if there are “exceptional

circumstances other than financial considerations[.]” Section 3-1-207(a)(2). If these

criteria, as well as the others contained in the statute, are satisfied, then the Board may

grant a variance that is the minimum necessary to avoid the “practical difficulties or

unnecessary hardship[s]” that have been demonstrated by the applicant. In other words,

the “minimum variance necessary” provision prohibits the Board from granting more

relief than is necessary to avoid the relevant practical difficulty or relevant hardship.

    When we apply the appropriate legal test to the evidence before the Board, we

conclude that there was no evidence that the permitting process could be completed in

less than two years. But the Denying Members turned the statutory standard on its head,

concluding that the “minimum necessary” requirement was not satisfied because it was

likely that MDE would require more than two years to complete its review of the Project

                                             - 15 -
Site. This is not the proper frame of analysis, and thus the Denying Members’ denial of

the variance based on the “minimum necessary” criterion was error.

            The Essential Character of the Neighborhood / Impairing the Use and
          Development of Surrounding Properties / Detrimental to the Public Welfare

       The Denying Members concluded that granting “the requested variances to the time

limits for the implementation and completion” of the landfill project “will alter the

essential character of this neighborhood,”10 “will substantially impair the appropriate use

or development of surrounding properties,”11 and will therefore be “detrimental to the

public welfare.”12 Their reasoning for each conclusion was essentially the same

(emphasis added):

          This community has been evolving and changing in the 20 years since the
          initial grant of the special exceptions and the variances for this project. As
          such, the community has been actively awaiting the finalization of this
          project during that time frame and diligently pursued [its] status[.] By
          allowing further time extensions, this project, which has no end in sight,
          will continue to burden this community and alter the essential character
          and development of the surrounding neighborhoods.
                                              ****
          By allowing further extensions, the development of adjacent properties will
          continue to be affected as community members and developers of the area
          wonder whether or not they will eventually live near or adjacent to a
          landfill.
                                             ****
          The time extension will be detrimental to the public welfare.

       As we understand the Denying Members’ analysis, they concluded that:


10
     Section 3-1-207(e)(2)(i).
11
     Section 3-1-207(e)(2)(ii).
12
     Section 3-1-207(e)(2)(v).

                                               - 16 -
          (1) the continuing pendency of National’s rubble landfill application by itself
          would alter the essential character of the neighborhood; and

          (2) granting the variance—and thus extending the period in which National’s
          application will be pending—would be detrimental to the public welfare because
          property owners and residents of the surrounding area would remain uncertain as
          to whether the project will be constructed.

    We do not agree with the Denying Members’ logic. That the application is pending,

by itself, does not change the character of the neighborhood. We doubt that residents’

uncertainty as to whether the rubble landfill project will ever be operational is a sufficient

basis to deny the application without evidence that the uncertainty has affected property

values.

    In this context, our predecessors’ analysis in the landmark decision of Anderson v.

Sawyer, 23 Md. App. 612, 613 (1974), is instructive. In Anderson, this Court examined a

decision by the Baltimore County Planning Board denying a special exception

application to build a funeral home in an area zoned for residential use. At issue was

whether the psychologically depressing effect of living next to a funeral home, and the

potential effect that a funeral home might may have on the value of surrounding

properties, was sufficient to deny the application. Id. at 624. We determined that “the

bald allegation that a funeral home use is inherently psychologically depressing and

adversely influences adjoining property values, as well as other evidence which confirms

that generally accepted conclusion, is insufficient to overcome the presumption that such

a use promotes the general welfare of a local community.” Id. at 625.

    All pending development projects, at least projects as massive as the one proposed by

National, create uncertainty among neighboring property owners. Nonetheless, the

                                             - 17 -
County Council has authorized the Board to extend the time frame for obtaining permits

through the variance process. Anderson was a special exception case and this appeal

involves a variance, and we recognize that the statutory criteria are somewhat different.

Nonetheless, Anderson’s underlying logic remains pertinent. We conclude that

uncertainty created by National’s pending application among neighboring property

owners is not, by itself, a sufficient basis to deny the variance.

    However, we do not agree with the Approving Members’ reasoning as to the

statutory criterion that the variance must not “alter the essential character of the

neighborhood.” The Approving Members concluded that it was inappropriate to consider

whether the proposed use will adversely impact the surrounding neighborhood (emphasis

added, citation omitted):

       The granting of the requested variance to the time limits . . . will not alter
       the essential character of this neighborhood. [W]e find that the character of
       the neighborhood is that of mixed uses that range from rural residential to
       commercial resources in the Odenton community. The Petitioners have an
       approved, lawful special exception on this site. The approved use of this
       property as a sand and gravel operation and a rubble landfill is known
       within the community and, we believe is part of the character of the
       community. Our focus here is not on the special exception for the rubble
       land fill . . . but rather, on whether a variance to permit a 2 year extension
       will change the character of the neighborhood. The current variance does
       nothing more that give Petitioners additional time to finalize State approval
       and obtain County permits. Therefore, we do not find that the time
       extension will alter the essential character of the neighborhood.
                                             ****
       The time extension will not be detrimental to the public’s welfare. No traffic
       will result from the grant of the time extension. No impacts to water will
       result from the grant of the time extension. . . . The variances merely permit
       the applicant to complete the application process. . . . The original 1993
       decision determined that these uses have public benefit and are needed. We
       make no decision on the merit of the underlying special exception and
       associated variances.

                                             - 18 -
    The problem with the Approving Members’ analysis is that it treated the variance as

an end in itself and overlooked the fact that the purpose of the variance is to permit

National to build its project if it eventually obtains the necessary permits.

    From our perspective, both the Denying Members and the Approving Members

missed the proper frame of analysis for determining whether granting the variance will

alter the character of the neighborhood, adversely impact adjacent properties, or be

detrimental to the public welfare. The Denying Members noted in their opinion that the

“community has been evolving and changing in the 20 years since the initial grant of the

special exceptions and variances for this project.” The Approving Members, in effect,

concluded that changes in the neighborhood were irrelevant. Neither faction of the Board

examined whether changes in the community rendered National’s proposed use of the

Project Site as a rubble landfill incompatible with the surrounding neighborhood as it

currently exists. We conclude that this is the proper frame of analysis for deciding

whether granting the variance will alter or adversely impact the surrounding

neighborhood or be detrimental to the public welfare.

    Our conclusion is grounded in Maryland case law which requires that a special

exception only be granted when the proposed use is compatible with the use and the uses

of surrounding properties. As the Court explained in People’s Counsel for Baltimore

County v. Loyola College, 406 Md. 54, 106 (2008) (emphasis added):

       The local legislature, when it determines to adopt or amend the text of a
       zoning ordinance with regard to designating various uses as allowed only
       by special exception in various zones, considers in a generic sense that
       certain adverse effects, at least in type, potentially associated with (inherent
       to, if you will) these uses are likely to occur wherever in the particular zone

                                            - 19 -
          they may be located . . . . That is why the uses are designated special
          exception uses, not permitted uses. The inherent effects notwithstanding,
          the legislative determination necessarily is that the uses conceptually are
          compatible in the particular zone with otherwise permitted uses and with
          surrounding zones and uses already in place, provided that, at a given
          location, adduced evidence does not convince the body to whom the power
          to grant or deny individual applications is given that actual incompatibility
          would occur.

       The critical importance of compatibility between existing uses and the proposed use

is certainly reflected in Anne Arundel County’s variance criteria. An incompatible project

will “alter the essential character of the neighborhood . . . in which the lot is located,”13

and will “substantially impair the appropriate use and development of the surrounding

property.”14

       The reasoning of the Board when it granted National’s special exception application

in 1993 conformed to this principle. The judicial review proceeding arising out of the

Board’s grant of National’s special exception and variance application in 1993

culminated in Halle v. Crofton Civic Association, 339 Md. 131 (1995). In its opinion

affirming the Board’s decision, the Court commented:

          After three months of deliberation, an on-site visit by the members of the
          Board to the property, and a review of the record taken as a whole—
          consisting of more than 2,000 pages of transcribed testimony and
          voluminous documents—the Board determined that the landfill would
          advance the public welfare of the County. It recognized the need for the
          landfill, concluded that its location was well suited to the use, and
          determined that the special exception and variance proposals would benefit
          the vicinal community by reclaiming and restoring previously mined
          ravines and properties “cratered” up to the property line.

13
     BCC § 3-1-207(e)(2)(i).
14
     BCC § 3-1-207(e)(2)(ii).

                                              - 20 -
Id. at 137 (emphasis added).

    The Approving Members were concerned about the propriety of relitigating the 1993

special exception application in the 2013 variance hearing. But deciding whether the

landfill project remains compatible with the surrounding neighborhood is not an attack

upon the validity of the Board’s 1993 decision. Instead, it is a recognition that a

neighborhood may change over time and that a use that was compatible when the special

exception was originally granted may no longer be compatible when the variance to

extend the time to obtain the permits is sought.

    We conclude that the requirements for granting a variance in County Code § 3-1-207

pertaining to the surrounding neighborhood, adjacent properties, and public welfare are

intended to ensure that a variance for an extension of time should be granted only if the

previously approved special exception use continues to be compatible with the

surrounding area. The applicant bears the burden of demonstrating to the Board that its

proposed project remains compatible. To the extent that surrounding properties have been

developed in ways that may not be compatible with a rubble landfill, the validity of the

Board’s determination of compatibility is undercut. At some point, the disconnect

between what is currently in the neighborhood and what had been in the neighborhood

when the permit was granted will become significant enough that it will no longer be

appropriate to continue to extend the time for National to obtain its permits. At that

point—and sooner or later that point will be reached—it will be necessary for National to

start again from scratch. In this regard, National cannot be faulted for any delay prior to

2001 because that delay was the result of unsuccessful legal challenges mounted by the

                                            - 21 -
County. See National II, 135 Md. App. at 614. Therefore, the 20 year time-frame used by

the Denying Members was inappropriate.

       On remand, as part of its analysis of the statutory criteria15 contained in § 3-1-207(e),

the Board must consider whether there have been sufficient actual changes to the

neighborhood surrounding the Project Site that occurred during or after 2001 to render

National’s special exception no longer compatible with the current established character

of the neighborhood.

                                                III.

       In its cross-appeal, National argues that the Board’s decision constitutes an

“impermissible change of mind” from the prior decisions of the Board. We do not agree.

       The cases cited by National—Gerachis v. Montgomery County Board of Appeals,

261 Md. 153, 156 (1971); Whittle v. Board of Zoning Appeals, 211 Md. 36, 49–50


15
     County Code Section 3-1-207(e) states in pertinent part:
          (e) Required findings. A variance may not be granted . . . unless the Board
          finds that:
          (1) the variance is the minimum variance necessary to afford relief;
          (2) the granting of the variance will not:
          (i) alter the essential character of the neighborhood or district in which the lot is
          located;
          (ii) substantially impair the appropriate use or development of adjacent
          property;
          (iii) reduce forest cover in the limited and resource conservation areas of
          the critical area;
          (iv) be contrary to acceptable clearing and replanting practices required for
          development in the critical area or bog protection area; or
          (v) be detrimental to the public welfare.


                                               - 22 -
(1956); Polinger v. Briefs, 244 Md. 538, 541 (1966); and Srukovich v. Doub, 258 Md.

263, 274–75 (1970)—stand for the proposition that if a zoning board denies an

application, the principle of administrative res judicata bars the board from subsequently

granting an identical application absent a showing of changed circumstances. See, e.g.,

Gerachis, 261 Md. at 156.16

     These cases all involve situations in which the initial application was denied. In this

case, the initial applications were granted. National points no case holding that

administrative res judicata applies to such cases. Moreover, its argument overlooks the

fact that additional evidence was presented to the Board in this case by both parties.

Additionally, as we have explained, one of the issues that the Board must address is

whether the proposed rubble landfill meets the compatibility criteria of County Code

County § 3-1-207(e)(i)and (ii). In that context, administrative findings as to compatibility

made in prior variance proceedings years earlier may be stale.

                                             IV.

     In conclusion, we hold that:

     (1) The Board was correct when it concluded that the evenly-divided vote of its

members constituted a denial of National’s variance application.



16
  National also cites Gaywood Ass’n v. Metropolitan Transit Authority, 246 Md. 93
(1967), but the relevant issue in Gaywood Ass’n was whether a decision by one
administrative agency, the Public Service Commission, constituted administrative res
judicata with regard to an application made to a separate agency, the Metropolitan
Transit Authority. Id. at 100. The Court did not resolve the question because it decided
the appeal on other grounds. Id.

                                            - 23 -
    (2) The relevant period to measure National’s diligence or lack thereof is

2011–2013, which was the extension period granted by the Board’s most recent variance.

Furthermore, a finding of a lack of diligence is insufficient to deny a variance; the Board

must also find that the lack of diligence caused an undue delay in MDE’s review process.

    (3) National’s requested relief in the variance application, namely, that the Board

allow it two additional years to obtain all required permits, did not violate the “minimum

variance necessary” restriction of County Code § 3-1-207. The Denying Members’

conclusion to the contrary was legally erroneous.

    (4) Both the Denying Members and the Approving Members used incorrect legal

analyses to determine whether granting the variance application would change the

essential character of the neighborhood, impair the use and development of surrounding

properties or otherwise be detrimental to the public welfare. The proper frame of analysis

must take into account whether the special exception remains compatible with the

surrounding area as the area has changed since 2001.



            THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE
            ARUNDEL COUNTY IS VACATED AND THIS CASE IS
            REMANDED TO IT IN ORDER FOR THE CIRCUIT COURT TO
            REMAND THIS CASE TO THE BOARD FOR PROCEEDINGS
            CONSISTENT WITH THIS OPINION. APPELLEE TO PAY COSTS.




                                           - 24 -
