Agenda - Planning Commission - 04/04/2013

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Zoning Bulletin February 10, 2013 1 Volume 7 1 Issue 3 in- person inspection of the subject property of an application for a special excep- tion, allowing only two representatives from the public opposition and creating no subsequent record of the visit. The Background /Facts: WSG Holdings, LLC ( "WSG ") owned land in the community of Nanjemoy, Charles County, Maryland (the "County "). WSG intended to build a "tactical research" facility on the property, comprised of: an office building, gun range, and driving track. Because the property was zoned as an Agricultural Conservation zone, WSG's planned development was not permit- ted except by special exception. Accordingly, WSG applied to the County's Board of Appeals (the "Board ") for the required special exception. The Board held three public hearings on WSG's application for the special exception. At these hearings, more than 22 people testified in opposition to WSG's proposed facility. The Board also conducted one trip to WSG's property. For this "site visit," the Board allowed representatives from WSG, as well as two representatives of the citizens who opposed the proposed development. However, the Board prohibited any other members of the public from attending and kept no transcript or other record of that which transpired at the site visit. The Board eventually granted WSG's application for the special exception. Subsequently, various individuals (the "Opponents ") jointly filed a petition for judicial review in the Circuit Court for Charles County. Among other things, they contended that the Board conducted the visit to the subject property in a manner that was closed to the public in violation of various open meeting provi- sions, including: Maryland Code Article 66B, the Charles County Code, and Rule III of the Board's Rules of Procedure. Section 4.07 of Article 66B required that "[a]ll meetings of a board of appeals shall be open to the public." Section 4.07(c)(5) of Article 66B required that the Board "shall make a transcript of all proceedings" which "shall be a public record." Section 297- 415(G) of the Charles County Code contained a notice and pub- lic meetings provision related to consideration of special exception uses. Section 297 -411 required notice to adjoining property owners, posted signs on the prop- erty, and, for special exceptions specifically, publication in a local newspaper of the time and place of a meeting and information regarding the special exception sought. Rule III of the Board's Rules of Procedure required: "all hearings shall be held in open public session "; "[a]11 evidence shall be presented to the [Board] in hearings open to the public "; and hearings shall be "electronically recorded." WSG contended that the Opponents' objections to the site visit were not preserved for appellate review. WSG maintained this was because no one objected to the visit when it was proposed at one of the hearings, and no one at- tending the visit objected to the way in which the visit was conducted. WSG fur- ther contended that the site visit was not subject to open meetings requirements because it was limited to observation alone. The Circuit Court agreed with WSG that the Opponents had failed to preserve the open meetings issue for appellate review. The Opponents appealed. The Court of Special Appeals disagreed with the Circuit Court and WSG. It held that the Opponents had preserved the issue, and © 2013 Thomson Reuters 3