Becker v. Anne Arundel County (Ct. of Special Appeals)

Filed April 9, 2007. Opinion by Judge James R. Eyler, Jr.

From the official headnote:

ZONING – CRITICAL AREA PROGRAM

Amendments to State and county critical area laws, absent an express statement as to prospective or retrospective application, apply to matters pending and not yet decided by the agency responsible for de novo decision making.

When a board of appeals denies an application for a variance, and the property owner has a legal right to build on the property, but cannot do so without a variance, it is not sufficient for the Board to state that the owner had not met its burden of proof. The Board must explain and give reasons for its denial of the requested variance.

On appeal from the affirmation by the Anne Arundel Couty Circuit Court of the Board of Appeals' denial of variances needed to permit construction of a home by the owner ("Becker") on a waterfront parcel subject to the Critical Area Program, the Court REVERSED the decision below and REMANDED to the Circuit Court with instructions to vacate the decision of the Board and remand the case to the Board for further proceedings consistent with this opinion.

Becker applied for three variances needed to allow the construction of a proposed dwelling on a lot on the Magothy River, 97% of which was within the 100-foot critical area buffer. After taking testimony in a de novo hearing, the Anne Arundel County Board of Appeals (the "Board") denied the variances, and Becker appealed to the Circuit Court, which affirmed the Board's decision.

Upon appeal, Becker alleged that the Board applied an incorrect and illegal standard in requiring the variances to be the "absolute minimum necessary", failed to make reasonable accommodations for Mrs. Becker's physical disability, erred in ignoring the overwhelming evidence in favor of the variances, ignored the physical evidence supporting the variance criteria, and erred in "taking" Becker's property without just compensation.

The Court found that the state legislature had been very clear in strengthening the Critical Area Program by amendment, in direct response to several cases indicating some judicial leniency, allowing local implementation consistent with the state program. The Court found that a clarifying amendment enacted during the pendency of the matter at issue here did apply, and that the county enactments incorporating the amendments were effective and not preempted by the state provisions.

In reviewing the deliberations by the Board, the Court noted that the two Critical Area-related variences should have been considered separately from the setback variance, since different standards applied, and the reasons for the decision should have been stated with greater particularity, finding no evidence at all in the record to support some of the Board's findings. In context, the Court found the Board had applied the correct standard notwithstanding some language indicating otherwise. The Court also indicated taht the Board must take into account evidence of Mrs. Becker's alleged disability in its considerations. The Court was not willing to entertain Becker's taking argument, since it was not clear that the Board's decision would preclude all economically beneficial use of the property, but noted that denail of variances might, under some circumstances, constitute a taking.

Finally, the Court noted that the Board was not an administrative body which had discretion to do or not do an act, for which a mere statement that the applying party had failed to satisfy the burden of persuasion would suffice, but rather it must grant or deny varience requests, and has an obligation to explain its decision. For that reason, the Court reversed the decision below and remanded with instructions to remand to the Board for further proceedings consistent with the Court's opinion.

The opinion is available in PDF format.

Trail v. Terrapin Run, LLC (Ct. of Special Appeals)

Filed April 6, 2007. Opinion by Judge James R. Eyler, Jr.

From the official headnote:

ZONING –

Maryland Code Art. 66B, which empowers certain local jurisdictions to adopt zoning codes, does not require a special exception use to be in strict compliance with a local comprehensive plan. A local jurisdiction may require strict compliance, but if it does not, a plan functions as a guide. The local ordinances and comprehensive plan, adopted by a particular jurisdiction, must be reviewed as a whole to determine the role of the plan in a special exception analysis. Thus, the conclusion as to the plan's role does not necessarily turn on the use of a particular word or phrase at a specific location within an ordinance or a plan. If a review of the ordinances and plan as a whole lead to the conclusion that strict compliance with a plan is not
required, the phrases "conforms to," "is consistent with," and "is in harmony with," when used to describe the relationship between a special exception use and a plan, have essentially the same meaning. Held that Allegany County's plan serves as a guide, not a strict regulatory requirement.

Judgment of the Allegheny County Circuit Court denying a special exception for a large-scale planned residential development was REVERSED on appeal, and REMANDED with instructions to affirm the decision of the Board of Appeals allowing the special exception.

This case arose out of the application by the developer ("Terrapin Run") to the Board of Appeals for Allegheny County for a special exception to allow it to construct a large residential community, including community-specific retail space and wastewater treatment plant, which was a permitted use under the applicable zoning classifications requiring a special exception. The Board of Appeals granted the special exception, finding the development to be in harmony with the local comprehensive plan, and that the evidence presented by the appellants ("Trail") did not demonstrate a site-specific adverse effect. The Board also found the retail use to be accessory to the principal residential use.

Trail appealed the Board's decision to the Circuit Court, alleging the Board applied the wrong standard of review, and erred in approving the retail/commercial area and the waste water treatment plant. The trial court declined to address the latter points, but agreed with the first, and reversed the Board's grant of the special exception. On appeal, Terrapin Run suggested the proper standard had been applied below, and the approval of the retail area and the wastewater treatment plant was proper.

The Court noted that, at various places in the statutes, regulations, plans and case law, the terms "conform to", "consistent with" and "in harmony with" are used to describe the necessary relationship of the proposed special exception to the comprehensive plan. After reviewing the relevant law, the Court concluded that the enabling state law, Article 66B, grants considerable discretion to the counties in how they establish land use regulations, ranging from the comprehensive plan being anything from a mere guide to a true regulatory device, notwithstanding Article 66B's phrase "use that conforms to the plan" to describe a "special exception".

Turning to the implementation of a comprehensive plan by Allegheny County, the Court found that the county had declined to use the mandatory terms "shall" or "will", but had instead in several places referred to the plan as a "guide", and had given it little regard in the statutory zoning scheme. From this, the Court found no intent to require strict compliance with the plan, but rather an intent to give the Board wide latitude in interpreting and applying the plan when considering special exceptions.

The Court also found that neither the retail area nor the wastewater treatment plant had to be considered separately and apart from the residential development, since both were clearly incidental and accessory to the primary use, and were appropriately considered and approved with the primary residential development use.

The opinion is available in PDF format.

Comptroller of the Treasury v. Clise Coal Co., Inc. (Ct. of Special Appeals)

Filed April 5, 2007--Opinion by Judge James R. Eyler.

Clise, pursuant to Tax. Gen. 9-318, obtained a license to buy diesel fuel without paying motor fuel tax at the time of sale. Clise was required to maintain records of fuel purchased and used in Maryland and, further, was required to file monthly returns with the Comptroller's office reporting the amount of fuel used in Maryland and pay tax on the fuel used.

If a taxpayer fails to keep records required under Tax. Gen. 9-309, the Comptroller may compute the motor fuel tax by using the best information in its possession. A taxpayer may appeal to the Maryland Tax Court. The assessment is prima facie correct, and the burden is on the taxpayer to show error.

In Tax Court, after proving its assessment, the Comptroller had no duty to present evidence in support of its assessment. The burden was on Clise to show error. The question on judicial review is whether there was substantial evidence in the record as a whole to support the Tax Court's decision.

Held: Judgment of the Tax Court affirmed.

(synopsis to follow)

The full opinion is available in PDF.

Dove v. Childs (Ct. of Special Appeals)

Filed April 4, 2007--Opinion by Judge James R. Eyler.

This matter required interpretation of the Maryland Mobile Home Parks Act of 1980, Maryland Code (2003 Repl. Vol.), §§ 8A-101 to 8A-1803 of the Real Property Article, and Howard County ordinances regulating mobile home developments, specifically, § 16.516 of the Howard County Code.

The owners of a mobile home park, after giving notice to the tenants of their intention to close the park as of a certain date, sought and obtained a judgment of restitution of possession, requiring the tenants to vacate the park. The tenants appealed from that decision and contended the court erred because the owners were not in compliance with the above laws.

This Court perceived no error and affirmed the judgment.

(synopsis to follow)

The opinion is available in PDF.

Williams v. State (Ct. of Special Appeals)

Filed March 8, 2007– Opinion by Judge James R. Eyler.

Appellant was convicted in a non-jury trial by the Circuit Court of Prince George’s County on three counts of failure to return a rental vehicle. On appeal, Appellant contends the evidence was legally insufficient to sustain the convictions and that the court erroneously interpreted the statute as not requiring the requisite mens rea.

Appellant was convicted for violating C.L. § 7-205(a), which provides:

"A person who leases or rents a motor vehicle under an agreement to return the motor vehicle at the end of the leasing or rental period may not abandon the motor vehicle or refuse or wilfully neglect to return it."

The standard for reviewing the sufficiency of the evidence is whether, after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The statute requires proof that (1) he rented the vehicles under an agreement to return them at the end of the rental period, and (2) he abandoned, refused to return, or wilfully neglected to return the vehicles. Appellant argues that the State failed to produce legally sufficient evidence to support a finding as to the requisite mens rea, and the court treated the charges as strict liability offenses, thus applying the wrong legal standard.

The relevant language in the statute provides that a lessee may not "abandon" a vehicle or "refuse" or "willfully neglect" to return it. Focusing on the plain language of the statute, both parties agree that it does not create a strict liability offense and some form of scienter is required. The ordinary, dictionary definition of the terms "abandon," "refuse," and "willfully neglect" all involve knowing and voluntary conduct. Section 7-205 requires a general intent, i.e., that the acts of abandonment, refusal or willful neglect be done knowingly and voluntarily with actual knowledge of the circumstances. It does not require an intent beyond that just stated. Absent evidence that Appellant, and not one of his employees, was in physical possession of the vehicles at the end of the rental periods, the trial court, acting as trier of fact, would have had to resort to pure speculation to determine whether Appellant acted intentionally when he failed to return the vehicles.

The evidence in this case was legally insufficient to support a finding of abandonment, and no such finding was made. However, the evidence was legally sufficient to support a finding with respect to the other two modalities. Refusal requires an intent not to comply. The word neglect, standing alone, indicates the omission of a duty through inadvertence or inability. The term willful neglect requires a knowing disregard of the duty to return. "Refusal" and "willful neglect" substantially overlap, both requiring a knowing and voluntary disregard of a duty, and the evidence was sufficient to support a finding that Appellant refused or willfully neglected to return the vehicles. The evidence permitted an inference that Appellant had the ability to return the vehicles, that he had actual knowledge that the vehicles were overdue, that he had a duty to return them, and that he possessed the requisite mens rea.

Even though the evidence was legally sufficient to sustain the convictions, the Court vacated the judgments because the circuit court erroneously did not regard scienter as an element of the crime.

The full opinion is available in PDF.

Bender v. Schwartz (Ct. of Special Appeals)

Filed March 1, 2007--Opinion by Judge James R. Eyler.

This is an appeal from an order dismissing a shareholder derivative action. The action stems from a dispute between various family members who are shareholders in two corporations. One of the corporations is a Maryland corporation and the other is a Delaware corporation. The issues were tried on a documentary record and the circuit court's decision was made pursuant to Maryland Rule 2-502.

Each of the corporations in question had formed "Demand Committees" --special committees to investigate allegations made by the plaintiffs in their demand letter and in the first amended complaint filed in the action.

Held:

1. The conclusions reached by the Demand Committees must be evaluated to determine whether the their were reasonable and whether the Committees had reasonable bases for their conclusions, i.e., within the ambit of the business judgment rule. The burden to rebut the presumption that they acted in the best interests of the corporations is on the plaintiffs.

2. To require investigation by the Demand Committees, the plaintiff's claims must have been "articulated in the demand." Each claim must be articulated specifically enough to give directors a fair opportunity to initiate the action requested by appellants. With respect to the claims made by the plaintiffs, the plaintiffs did not provide sufficient allegations in their demand letter or first amended complaint to alert the Demand Committees to the existence of the claims.

3. The plaintiffs failed to rebut the presumption that the Demand Committees' investigations were reasonable and the conclusions of those Committees within the realm of sound business judgment.

4. Certain claims made by the plaintiffs were not properly brought via a derivative action, but, rather, were individual claims.

5. The Court upheld the rejection of other claims on the basis that the claims were not articulated specifically enough to give the directors a fair opportunity to initiate the action requested by the plaintiffs.

6. The plaintiffs had also made individual claims claim that the appellees (1) had a fiduciary duty to offer all stockholders the opportunity to participate in various ventures outside the corporation and (2) had a fiduciary duty to inform them of the availability of contiguous land. The Court concluded that these claims are outside the duties of majority shareholders and directors to minority shareholders and upheld the lower court's dismissal of the claims.

This is a lengthy opinion that is heavily fact-specific.

A copy of the opinion is available in PDF.

Price v. State (Ct. of Special Appeals)

Decided January 25, 2007--Opinion by Judge James R. Eyler

Price was convicted by a jury of possession of heroin, possession of cocaine, possession of marijuana, and possession of a firearm under sufficient circumstances to constitute a nexus to a drug trafficking crime. The court sentenced Price to eight years imprisonment on the heroin possession, a consecutive eight years imprisonment on the cocaine possession, two years concurrent on the marijuana possession, and another twelve years imprisonment consecutive on the possession of a firearm conviction.

Four issues were raised on appeal:

1) Whether the evidence was sufficient to sustain Price's convictions;

2) Whether the court erred by refusing to ask an impaneled juror, who was later dismissed, whether he had discussed the reason for his dismissal with any of the other jurors;

3) Whether the court erred by doubling Price’s sentences for all three drug possession convictions pursuant to Maryland Code (2002 Repl. Vol.) §5-905 of the Criminal Law ("C.L.") Article;

4) Whether the court erred by allowing the jury to convict Price of possession of a handgun in connection with trafficking, and acquit him of all other drug trafficking charges.

Held:

1) To support a conviction for the offense of simple possession, the evidence must show directly or support a rational inference that the accused did in fact exercise some dominion or control over the prohibited drugs in the sense contemplated by the statute, i.e., that the accused exercised some restraining or directing influence over it. Additionally, the accused, in order to be found guilty, must know of both the presence and the general character or illicit nature of the substance and referred to the following factors to determine the issue of possession:

(i) proximity between the Defendant and the contraband, (ii) the fact that the contraband was within the view or otherwise within the knowledge of Defendant, (iii) ownership or some possessory right in the premises or the automobile in which the contraband is found, or (iv) the presence or circumstances from which a reasonable inference could be drawn that the Defendant was participating with others in the mutual use and enjoyment of the contraband.

The evidence adduced at trial consisted mainly of testimony of the police officers who were conducting surveillance. From this testimony, the court found, the jury could have reasonably concluded that Price was in close proximity and had knowledge of the presence of the drugs, inferred that Price was participating in the sale and that the gun and money thrown by Price were instruments related to the sale of the drugs. Thus, the evidence was sufficient to support Price's possession convictions.

2) A note left by juror number 4 for the judge indicated concern by the juror of potential reprisal given that he resided within close proximity to the neighborhood where Price was arrested. Prior to dismissal of the juror, Defense argued that the juror should be questioned as to whether he explained his dismissal to other jurors, potentially tainting the jury. The court found that, on several occasions, the jurors had been admonished not to discuss the case, and the trial court did not abuse its discretion by dismissing the juror without further inquiry as to whether he had discussed with anyone his reasons for wanting to be dismissed.

3) The State contends that C.L. §5-905 authorized the court to double Price's sentences because of his status as a repeat offender. Price countered that doubling his sentences is explicitly limited to one count only. The court found the language of §5-905 ambiguous; that the language of the statute does not make clear whether an enhanced penalty can be imposed on each and every count arising out of a single course of conduct, or whether an enhanced penalty can only be imposed on one count of a multi-count charging document based on a single course of conduct. Relying on Diaz v. State, the rule of lenity applied and required vacating Price's sentences.

4) The court noted that although unexplained, inconsistent verdicts rendered by a trial judge cannot stand, inconsistent verdicts in a jury trial are generally tolerated under Maryland law. At the appellate level, the court will review such inconsistent verdicts where real prejudice is shown and the verdicts may be attributable to errors in the jury charge.

The jury, without finding Price guilty of one of the drug trafficking offenses, found him guilty of possession of a firearm with a nexus to drug trafficking. Price conceded that the jury instructions were correct and the court decided not to disturb the jury’s verdict.

A copy of the opinion is available in PDF.

Max's of Camden Yards, LLC v. A.C. Beverage (Ct. of Special Appeals)

Decided December 26, 2006 -- Opinion by Judge James R. Eyler.

Plaintiff in underlying case (Burger) brought suit for injuries he sustained when he drank beer that had been drawn through "tainted" lines at a bar. The plaintiff sued the party responsible for maintaining the lines (A.C. Beverage) and the owner of the bar (Max's). A.C. Beverage settled the case, and obtained a release for both Max's and itself. Nevertheless, Max's subsequently brought suit against A.C. Beverage seeking indemnification for the legal fees and other costs it had expended in defending the suit brought by Burger as well as in bringing the instant suit. Finally, Max's sought a declaratory judgment that A.C. Beverage would be responsible for any other injuries suffered by other patrons as a result of the tainted beer lines.

Held: Maryland recognizes the distinction between "active" and "passive" negligence. A party liable for "active" negligence cannot obtain tort indemnification regardless of whether the other party was also guilty of "active" negligence.

Maryland does recognize that, when an innocent party is forced into litigation with a third party by the wrongful conduct of another, the innocent party can recover fees and costs incurred in defending itself from the culpable party.

Despite general rule to the contrary, it is "highly doubtful" whether, and if so to what extent, Maryland would allow fees and costs as part of an indemnification claim based on the "active-passive" distinction. Generally, an alleged tortfeasor has no duty to defend another alleged tortfeasor.

Even assuming Maryland would allow costs and fees as compensable element under indemnity action based on "active-passive" distinction, they are not compensable under the facts of this case. When the implied indemnity claim is for counsel fees and costs, fees are unrecoverable when the tort plaintiff’s complaint alleged primary or active negligence, in whole or in part, against the alleged tortfeasor seeking indemnity, and the underlying case was dismissed prior to any factual findings.

Note: The Court explicitly confined its decision to the facts in this case and declined to issue any "general" rules. Thus, this decision is strictly limited to the facts of this case. For example, the outcome might have been different if the case had been tried and there were a finding of fact that Max's was only passively negligent.

The Court also declined to award the fees and costs of the present action. This would have been true even if the Court had allowed fees and expenses in the underlying case.

Finally, the Court determined that the request for declaratory judgment as to future actions did not present an actual and justiciable case in controversy. "One thing is clear, however: 'In a declaratory judgment proceeding, the court will not decide future rights in anticipation of an event which may never happen, but will wait until the event actually takes place, unless special circumstances appear which warrant an immediate decision.'"

This case is available in WPD and PDF formats.