The Maryland Court of Special Appeals sent a case pitting a Washington, D.C.-based defense contractor against Nanjemoy residents back to the county Board of Appeals because the board violated due process protections and the state Open Meetings Act, according to an opinion the court filed Friday.
The opinion, penned by Judge Robert A. Zarnoch, states that the Board of Appeals violated constitutional guarantees of due process and the Open Meetings Act by “conducting a meeting closed to some members of the public at which the merits of the case were discussed, not made a part of the record, but nevertheless relied upon by the Board.”
The case involves the Board of Appeals decision on a 3-2 vote April 14, 2009, to give a special exception to Washington Security Group Holdings to build a “research facility without the processing of materials,” which would include a firing range, a vehicular test track and an office building.
During that vote, board Vice Chairman Luke Hannah and former members Kenneth W. Cross and John Pearl Yates voted for the special exception. Chairman Frederick R. Mower and former member Edwin W. Baker voted against the special exception.
Commissioner Ken Robinson (D), who was serving as an alternate on the board at the time, was not present and had previously recused himself from the case.
Nanjemoy residents have expressed opposition to the project, saying that the Charles County Zoning Ordinance does not allow “research” and “training” facilities, such as the firing range and a vehicular test track, in areas zoned agricultural conservation.
Zarnoch wrote in the opinion that the intended activities of “research” and “training” at the site, located on Liverpool Point Road near a private airfield called Washington Field, are not permitted by the county zoning ordinance, but a special exception can be granted for a “research facility without the processing of materials.”
The meeting that violated the Open Meetings Act occurred March 17, 2009, when a quorum of board members made a site visit to the property proposed for the research facilities.
Zarnoch wrote that some Nanjemoy residents were excluded from the site visit when in fact they should have been allowed to attend. In addition, the board did not record testimony from the site visit, nor did all members hear the same presentations; both are against the requirements of the Open Meetings Act.
The Board of Appeals agreed to conduct the site visit at its March 10, 2009, meeting. According to the meeting’s minutes, Mower asked that representatives from the community, the applicant and planning staff be present at the site visit.
Zarnoch also wrote that the board violated the constitutional due process rights of people opposing the project by relying on the site visit for approval without written testimony from the site visit that opponents could challenge through cross-examination and other means.
As a result, the case will now go back to the Board of Appeals for a new public hearing and decision, after WSG requests a new hearing.
The case will technically be remanded to the Charles County Circuit Court before it gets remanded back to the Board of Appeals.
The opinion also states that its ruling does not mean that the board acted in “bad faith” or “engaged in intentional wrongdoing,” as unintentional acts can violate due process and Open Meetings Act requirements.
Additional concerns, such as the omission of the first five opposing witnesses to the case, were not addressed in the written opinion.
Kurt Wolfgang, an attorney with the Law Office of Kurt Wolfgang in La Plata who represents Nanjemoy residents opposed to the project, said he was pleased that the case was coming back to the Board of Appeals.
“It’s an outstanding victory and a victory for the people of Charles County. Things were not done right in the first proceeding. I don’t think it was by design, but the rights of my clients were abridged and the Court of Special Appeals realized that. ... If the applicant continues and there is a new hearing, we feel that when we are given our rights in our new hearing, we will be able to prevail and defeat the project,” Wolfgang said.
Nanjemoy resident Ken Kraushaar said he was pleased the case was remanded back to the county.
Kraushaar said that the county should review the entire application process and address citizen concerns that the activities receiving a special exception under the label “research facility without the processing of materials” are not allowed in areas zoned agricultural conservation.
“This kind of facility is important, but putting it in the heart of Nanjemoy in a rural residential area does not match up with the 30-year Nanjemoy vision plan that citizens pulled together ... to protect and preserve Nanjemoy,” Kraushaar said.
Mark Mudd, an attorney with Mudd, Mudd & Fitzgerald in La Plata who represents WSG, said he was disappointed in the decision.
“Even a blind squirrel finds an acorn once in a while,” Mudd said.
Mudd said he needed to review the opinion thoroughly before making a decision to move forward with a new hearing before the Board of Appeals.
Since the vote was taken, three new regular members and one new alternate are now on the board. Natalie Sneed McKinney, Brendan Moon and Jean Ann Schappet are the regular members. Cindy W. Terry is the alternate, who votes only when regular members are absent.
Attempts to reach Mower and Hannah, who were on the board when the vote was taken, yielded no response.
McKinney and Schappet were unable to be reached and Moon’s phone number is unlisted.
County government spokeswoman Crystal Hunt said that the response from the county and county attorney’s office is that “the matter is between the parties involved and the county is not arguing the merits of case.”
“The county and county attorney’s office will wait on the decision of the Charles County Circuit Court and/or the Board of Appeals,” Hunt added.
“My hat goes off to the citizens who went through the legal system and prevailed. It proves that our system of checks and balances works. It also shows how important citizen activism can be,” Robinson said.
Robinson added that he believes what took place that led to the appeals process will not be repeated.
“It will be a clean process,” he said.
After the Board of Appeals initially approved the special exception, Wolfgang filed a lawsuit in the Charles County Circuit Court on behalf of Nanjemoy residents.
Circuit Judge Robert. C. Nalley ruled that the case be remanded to the Board of Appeals for a review of the plan’s congruency with the Charles County comprehensive plan.
Before the report was heard, Wolfgang appealed the case to the Maryland Court of Special Appeals.
The judges who heard the case were Zarnoch, Patrick L. Woodward and Charles E. Moyland Jr., who is retired but was specially assigned to the case.
The judges heard arguments in the case May 10 before filing their opinion.