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Land Use Tribunal Site Inspection Violates Open Meetings Law Says Maryland Appeals Court

WSG Holdings, LLC v. Bowie, 57 A 3d 463 (Md., 2012) involved a contested special exception (conditional use permit) for a gun range which was heard by the Charles County Board of Zoning Appeals.  The Board conducted a site visit accompanied by representatives of the applicant as well as two opponents.  Other opponents were barred from the site and there was no transcript of the visit.  The Board granted the application and trial court affirmed, except for a remand on some findings deficiencies.  The trial court rejected inter alia opponents’ contention that the site visit violated the state’s public meetings law.  The intermediate appellate court found such a violation and remanded the decision.  The applicant then sought review.

The decision to conduct the site visit with limited attendance was made in a public meeting and without opposition from the audience.  There was no discussion of transcription of that meeting at that time.  At the site visit, members of the Board were apparently separated into groups with applicant representative speaking to various aspects of the proposal to different subgroups of the Board.  Before the final vote, a member of the public filed a written objection to the exclusion of the general public, the lack of a transcript, as well as the inability to respond to evidence gained at the visit, requesting that the record be reopened to comply with the Maryland Public Meetings Law.  The Board accepted the applicant’s substantive testimony, but denied other relief, granting the application with findings which included references to the site visit.

The trial court found that the applicants had not preserved their public meetings objection for judicial review, given a lack of objection to the process along with its selection of two opponent representatives at an open meeting.  The intermediate court found the post-site visit objection as sufficient to preserve the public meetings contentions.  On review, the opponents contended that the public meetings law violation could not be raised by those attending the public meeting, or those who had not protested loudly enough to the objections to be recorded and that the post-site visit objection was sufficient to preserve error.

The court began its analysis with the strong commitment of the state legislature to the public meetings law, which was also reflected in the county Code and the procedural rules adopted by the Board for the conduct of its hearings (which referenced that law and provided for site visits to be recorded and for public inclusion).  Noting that neither the Board nor the parties could agree on what had happened on the site visit, the court noted the detailed post-visit objection to the alleged breach of a public meetings law, the county’s Code, and the Board’s rules of procedure which the Board had generally denied without comment.  The court observed further that, while site visits may be common, reliance on them by decision-makers implicates heightened procedural requirements and that when the visit goes beyond mere observation (as it did here) the site visits should be “on the record in the presence of the parties.”  Failing this, there should be an opportunity to challenge the evidence received in that visit by cross-examination or other means.  While the county Code of the Board’s rules refers to the conduct of a “hearing” and did not refer necessarily to “meetings,” state law does so regulate meetings and governs here.  In any event the Board violated the county’s Code and its own rules over the conduct of hearings.

The court concluded that the Board’s site visit without sufficient notice, without a record being kept, and without allowing members of the public to attend, especially where site visit information was used in the findings to justify approval, was not fair to the public.  Proceeding to the remedy, the court cataloged the violations of law and concluded that cumulatively, these violations created an irreparable injury to the opponents so that the decision was void ab initio.  The case was thus remanded for an entirely new hearing.

The efforts of the Oregon Open Meetings law are largely untested in site visit cases in this state; however, there is little reason to believe that the outcome would have been different if the same facts were presented.

WSG Holdings, LLC v. Bowie, 57 A 3d 463 (Md., 2012).

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