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REPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1013 September Term, 2002

MARY HANDLEY, ET AL. v. OCEAN DOWNS, LLC, ET AL.

Kenney, Adkins, Thieme, Raymond G., Jr., (Retired, Specially Assigned) JJ.

Opinion by Adkins, J.

Filed: June 27, 2003

This appeal arises from the approval of a special use permit authorizing an off-track betting ("OTB") facility in Cambridge. In October 2001, Ocean Downs, LLC, appellee, filed an application for a special use permit with the Board of Zoning Appeals of the City of Cambridge ("the Board"), seeking permission to operate an OTB facility in the Cambridge Plaza Shopping Center, off U.S. Route 50. After holding a public meeting, the Board approved the special use permit. Mary Handley, Cheryl Michael, Barry Miller, and George

Wheatley, Jr., appellants, all attended the Board hearing on the OTB proposal. Appellants filed a petition for judicial review of

the Board's decision in the Circuit Court for Dorchester County, arguing, inter alia, that the Board and the Planning and Zoning Commission ("the Commission") did not follow proper procedure in reviewing and granting the permit. Board's determination. In challenging the circuit court's judgment, appellants The circuit court affirmed the

present the following issues for our review: I. Did the Commission fail to satisfy its legal obligation to undertake a study of, and to issue a report concerning, the likely effect of the proposed special use permit? II. Did the Commission and the Board violate Maryland's Open Meetings Act, and did the circuit court err in failing to address this issue? III. Regarding the merits of the Board's decision, A. Did the Board disregard its statutory

obligation to consider whether conditions or safeguards should have been imposed upon the special use permit? B. Did the Board make sufficient findings to support its decision? C. Was the Board's decision supported by substantial evidence in the record? We hold that the circuit court erred in failing to consider appellants' Open Meetings Act claims set forth in Issue II.

Accordingly, we remand this case for the circuit court to consider whether such violations occurred and, if so, the appropriate remedy. III. FACTS AND LEGAL PROCEEDINGS In early October, Ocean Downs filed its application for a special use permit authorizing the OTB facility. Thereafter, on We hold the circuit court ruled correctly on Issues I and

October 18, the application was referred to the Commission for study and report. The Commission held a public hearing on the same

day, notice of which was posted sometime that day in City Hall. The Commission considered two applications at the 40 minute meeting, one of which was Ocean Downs' application. The minutes of this meeting reveal that a Department of Planning and Zoning staff member opened the discussion by explaining the location of the proposed OTB facility, its hours of operation and proposed area, and its anticipated number of employees. The staff member reported that "[a]ll necessary utilities [were] on site," and sufficient

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parking facilities were already in existence. One of the Commission members questioned whether the remainder of the shopping center would be attractive to future tenants if an OTB facility was located there. Another Commission member

responded that the facility would likely attract more people to Cambridge and that "he could not see where an [OTB facility] would cause another business to be run down." The Commission members

also discussed the fact that the OTB facility would have to rely on outside business to be successful, and that it could not survive on local patronage alone. They commented that the City should be

encouraging new businesses to establish themselves in Cambridge. The Cambridge Mayor, who was in attendance, reported that Ocean Downs had already talked with a number of businesses about moving into the shopping center. The Commission member who ultimately

voted against the proposal expressed his concern that "the project looked too good to be true and . . . compared it to a `dangling carrot' and jumping at it too fast." An audience member commented that the Commission should

consider that "the majority of the existing businesses [were] not in favor of the project," out of a concern regarding the impact of the OTB facility on their businesses. He feared that the OTB

facility would "completely change the lifestyle of the community." At the conclusion of the October 18 hearing, the Commission, by a 4 to 1 margin, recommended approval of Ocean Downs' application.

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On October 23, 2001, the Board convened a public hearing on Ocean Downs' application.1 At the hearing, the City Planner He reported that the OTB

described the proposed special use.

facility would consist of 10,000 square feet of space, including a restaurant. Ocean Downs also requested pre-approval of a future The facility would be open from

expansion to 17,000 square feet.

11:00 a.m. to 11:00 p.m., and would employ 28 people. The City Planner also submitted to the Board the minutes of the October 18 Commission meeting, and a Department of Planning and Zoning Staff Report, which described the property.2 He announced

that the Commission had recommended approval of the special use permit by a 4 to 1 margin. The hearing then was opened for comments, beginning with the applicant's representatives. Ocean Downs' attorney questioned

William Rickman, the president of Ocean Downs, regarding the impact of the proposed OTB facility. site was surrounded by Rickman stated that the proposed predominantly zoned C-2, or

property

commercial.

According to Rickman, there were no churches or There was one day care

schools within a quarter-mile of the site.

The adequacy of the notice of the hearing before the Board is not at issue in this appeal, though it was contested below. This "staff report" was merely a short summary of the proposed facility. It reported the zoning of the area and stated that the utility and parking infrastructure existing at the shopping center was sufficient to support the OTB facility proposed. 4
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facility nearby, but it was over 1,000 feet from the proposed OTB site. Rickman testified that his plan was to purchase the entire shopping center as a real estate investment, and then re-lease the facility. At the time of the hearing, the shopping center was only 30 percent leased. In terms of the OTB facility itself, Rickman

reported that he planned to include a sit-down restaurant with a 50-person capacity. facility. Rickman stated that he did not recall his other OTB facilities having any detrimental effect on their respective communities. When asked by the Board how the proposed OTB facility might "impact and . . . benefit the community and the surrounding areas," Rickman responded that the facility would not "have a tremendous impact or a tremendous benefit . . . because it has the impact of a He had no plans to house slot machines in the

restaurant . . . or a sports bar[.]"

He stated that the biggest

impact would come if he was able to increase occupancy rates in the shopping center as a whole, and bring other new businesses into the area. He described this potential as a "win-win situation for both the community and for [him.]" Rickman stated that he expected local people to make up less than 50 percent of his patrons, but that the business would draw patrons from Salisbury and Easton. He expressed doubt that he

would go forward with purchasing the shopping center if the OTB

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facility was not approved. Rickman then took questions from audience members. When asked whether he would recommend that the Board impose a condition on its approval of the application "that there not be any other forms of gambling in this whole property," Rickman responded that he would not object to such a condition if it were imposed county-wide, rather than just on his application. Rickman stated that he felt Not

the OTB facility would help the community by creating jobs.

only would the facility itself employ 28 people, Rickman contended, many more jobs would be created if he was successful in filling up the surrounding shopping center. Many audience members expressed concern about the detrimental effects of gambling on communities. Opponents of the OTB facility

introduced into the record petitions signed by over 100 county businesses opponents that opposed the proposed about the OTB facility. of Several on An

expressed

concern

impact

gambling

children, caused by parents gambling away their paychecks.

individual from the local health system expressed concern about patients who had developed "suicidal tendencies . . . due to their gambling." One opponent, a representative of an anti-gambling advocacy group called No Casino, expressed skepticism that the Board had taken enough time to study the proposal. He also characterized OTB facilities as "open[ing] the door to slots" in Cambridge. He

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presented to the Board a packet of statistics compiled by the National Coalition Against Legalized Gambling, entitled The A, B, C and Ds of Casino Gambling. He urged the Board to consider the

"facts about addictions, bankruptcies, crime, corruption and [the way gambling] devastates families[.]" According to this No Casino

representative, "problems associated with addicted gamblers affect the entire community fraud, through credit family debt, abuse, job neglect, and even

embezzlement, suicide."

card

bankruptcy

Another opponent urged the Board to keep "in the back of [its] mind" its ability to impose conditions on Ocean Downs' application, though he did not specifically propose any such conditions. He

also submitted to the Board a two-year study published by the National Gambling Impact Study Commission in 1999. He specifically quoted several recommendations made as a result of that study, and questioned why no economic impact study had been performed on the proposed OTB facility. Near the conclusion of the comment period, appellant Handley spoke.3 She essentially summarized the concerns raised earlier in Her comments, like the clearly in indicated Cambridge her or

the hearing by opponents to the proposal. comments of to those OTB that or preceded her,

opposition

any

gambling

facility

Dorchester County, rather than to the specific facility proposed.

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None of the other appellants spoke at the October 23 hearing. 7

After the public comment phase of the hearing was closed, the Board had an off-the-record discussion. When the Board called the

meeting back to order, the Board's attorney explained that, during that discussion, the Board had asked for advice regarding the applicable law governing special use permits. He announced to the

audience the criteria the Board must use in determining whether to approve the application. The Board then resumed its on-the-record deliberations. One

Board member commented that it would be difficult to downgrade the area surrounding the OTB site because the shopping center already had a low percentage occupancy. that the project should go to Another Board member concluded referendum vote, due to the

potentially large impact it could have on the community.

At the

conclusion of the meeting, the Board voted 3 to 1, with one member abstaining, to approve the special use permit. The Board's written findings, which offered some insight into the reasons for its decision to approve the OTB facility, were filed on November 13, 2001: The Board listened to over three (3) hours of testimony for and against gambling in general and some comments as to off track betting in particular. Unfortunately the bulk of the testimony pertained to gambling in general not the particular proposal before the Board. Great concern was expressed over casino gambling and slot machines, matters not before the Board. The Board finds that the Cambridge Plaza Shopping Center and more particularly the 8

former Rite Aid site at the shopping center is an appropriate location for the [OTB] operation. The shopping center is a commercial area (C-2 zone) and has good access (just off Rt. 50 with four lane divided highway). There is ample parking, being parking for the shopping center. There are no churches, schools, or uses sensitive to the proposed use nearby. Applicant provided this information and it was not refuted by the opposition. There was mention of a day care operation nearby but no comments directly discussing impact on the day care operation were provided. The only comment that the location would not be appropriate was a quick comment that it shouldn't be so near the Hyatt. The Board notes that no opposition was presented by the Hyatt therefore it would appear that the issue is not of grave concern to the Hyatt management. The Board finds that the comments by the opposition regarding gambling in general and [off track betting] were not on point for the Board to consider. However the extensive opposition to gambling and off track betting in general concerned one Board member to the point he abstained from voting and suggested the City Council consider a referendum on the issue. Motion to approve the special use permit as requested. . . . Passed three to one and one abstention. (Emphasis added.) Displeased with the Board's decision, appellants filed a petition for judicial review in the Circuit Court for Dorchester County, challenging on several grounds the Board's authorization of the special use permit. In their argument to the court, appellants asserted that (1) the Board's notice of the public hearing was deficient because it was published 14 days, rather than 15 days, 9

before the hearing; (2) the notice of hearing before the Commission was insufficient; (3) the Commission's recommendation did not comply with the Cambridge City Code because it failed to contain a study and report on the effect of the proposed use on the

comprehensive plan and property values; and (4) the Board violated the Open Meetings Act. The circuit court affirmed the Board's decision. The court

ruled that notice was adequate because appellants' presence at the public hearing demonstrated actual notice.4 It also ruled that to

bring a claim for violation of the Open Meetings Act, appellants needed to file a separate petition, and that to assert such allegations in their petition for judicial review was insufficient. Regarding the adequacy of the Commission's review, the circuit court ruled that appellants had failed to meet their burden of demonstrating that the proposed special use would have an adverse impact on the community. The court ultimately held that there was

sufficient evidence in the record to support the Board's decision to approve the special use permit. hearing, the court asked appellants' At the conclusion of the counsel whether it had

addressed each of appellants' claims. Appellants' counsel answered in the affirmative.

It is unclear whether the court's ruling pertained to the Board notice issue, the Commission notice issue, or both. We will discuss the import of this uncertainty later in this opinion. 10

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DISCUSSION Before discussing the issues raised by appellants, we pause to consider Ocean Downs' challenge to appellants' standing to file this petition for judicial review. The circuit court assumed, Without deciding

without deciding, that appellants had standing.

whether Ocean Downs properly may assert a standing challenge before this Court when it failed to file a cross-appeal challenging the denial of its motion to dismiss for lack of standing, we hold that Miller had standing to file a petition challenging the Board's administrative action. Because Miller had standing, we need not

decide whether the remaining three appellants also had standing; even assuming they lacked standing, the viability of the petition is ensured by Miller's standing. See Bryniarski v. Montgomery We explain.

County Bd. of Appeals, 247 Md. 137, 145 (1967).

Mere presence at an administrative proceeding, without active participation, is sufficient to establish oneself as a party to the proceeding. See Sugarloaf Citizens' Ass'n v. Dep't of Env't, 344

Md. 271, 287 (1996). Ocean Downs concedes that Miller participated in the October 23 Board meeting because his signature appears on the hearing sign-in sheet. The Cambridge City Code provides that "persons jointly or severally aggrieved by any decision of the Board of Appeals, or any taxpayer . . . of the municipality" have standing to seek judicial review of that decision. Cambridge City Code

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