Agenda - Planning Commission - 04/04/2013

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February 10, 20131 Volume 7 1 Issue 3 Zoning Bulletin that the Board had violated the open meetings provisions of § 4.07(c) of Article 66B and Rule III of the Board's Rules of Procedure. WSG filed a Petition for a Writ of Certiorari, which was granted by the Court of Appeals. DECISION: Judgment of court of special appeals affirmed. The Court of Appeals of Maryland held that the Opponents had preserved their objections to the site visit under the public meetings provisions of § 4.07 of Article 66B, §§ 412 and 415E of Chapter 297 of the Charles County Code, as well as Rule III of the Board's Rules of Procedure. In so holding, the court noted that the burden was on the Board to enforce the open meetings mandates; it was not on the representatives of the public opponents to raise it. Moreover, two weeks before the Board's final hearing on WSG's special exception application, one of the Opponents had filed a Motion for Appropriate Relief, objecting to the fact that the public was not permitted to attend the site visit, citing violations of open meetings provision, and calling for the creation of a record of the site visit. That Motion was denied by the Board. The court further held that the site visit constituted a "meeting" which was required to be open to the public by § 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, the court remanded the matter to the Board for a new hearing. In its decision, the court acknowledged that: "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." The site visit here, however, ;> explained the court, was elevated beyond mere "observation" and required compliance with the open meetings provisions. The site visit constituted a meet- ing under the provisions of Article 66B and a hearing under the Charles County Code and the Board's Rules of Procedure. The court found that: "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.' " Moreover, said the court, because the Board relied upon information obtained from the site visit, it was required to create a record informing the parties and a reviewing court of the evidence gathered from the site visit that led the Board to credit WSG's testimony and approve its site plan. The Board's failure to keep a record of that which occurred at the site visit violated the requirements of Article 66B as well as that of § 297- 412(E) of the Charles County Code and Rule V of its own Rules of Procedure, concluded the court. The Board's violation of the mandatory open meeting provisions resulted in the Board's decision being "void ab initio" (i.e., to be treated as invalid from the outset). See also: Bowie v. Board of County Com'rs of Charles County, 203 Md. App. 153, 36 A.3d 1038 (2012), cert. granted, 426 Md. 427, 44 A.3d 421 (2012) and judgment aff'd, 2012 WL 6604519 (Md. 2012). 4 © 2013 Thomson Reuters