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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 518 September Term, 2008

RONALD J. ROSS v. MR. LUCKY, LLC

Eyler, Deborah S., Matricciani, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

Filed: December 29, 2009

This appeal concerns real property in Solomons, Calvert County, known as "the Tiki Bar." Since 2005, the Tiki Bar property has been owned by Mr. Lucky, LLC ("Mr. Lucky"), the appellee. Ronald J. Ross, the appellant, owns residential property that borders a segment of the western boundary of the Tiki Bar property. Mr. Lucky filed a site plan application with the Calvert County Department of Planning and Zoning ("DPZ") and the Calvert County Planning Commission ("CCPC") reflecting planned improvements for the Tiki Bar property. After the plan was denied by an administrative officer, M r. Lucky appealed to the Calvert County Board of Appeals ("Board"). The matter was bifurcated. In the part of the matter we are concerned with in this appeal, the Board held a de novo hearing and made certain findings favorable to Mr. Lucky (which we shall explain below). Ross brought an action for judicial review in the Circuit Court for Calvert County, which upheld the Board's decision. This appeal followed. Ross poses several questions for review, which we have reordered, combined, and reworded as follows: I. Did the Board err by denying him the opportunity to cross-examine Mr. Lucky's witnesses? Did the Board have statutory authority to modify a site plan, or to permit an illegal use of a parking lot on the Tiki Bar property? Did the Board err in granting certain variances? Must the Board's decision be vacated because one of its members refused to recuse himself from this case? 1

II.

II. IV.

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As posed by Mr. Ross, the questions presented are: (continued...)

For the reasons that follow, we answer Question I in the affirmative. Accordingly, we shall reverse the judgment of the circuit court and remand the case to that court with instructions to vacate the decision of the Board and remand the matter to the Board for further proceedings not inconsistent with this opinion. Our disposition of Question I makes it unnecessary to address the remaining questions.

FACTS AND PROCEEDINGS

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(...continued) 1. Whether the Circuit Court for Calvert County erred in upholding the Board's decision that an asphalt parking lot on an approved site plan was really a patron area, when neither the Annotated Code of Maryland nor the Calvert County Zoning Ordinance grants the local Board of Appeals jurisdiction to modify an approved site plan? 2. Whether the Circuit Court for Calvert County erred in upholding the Board's approval of a variance which permitted consumption of alcoholic beverages on an independent patron use of the subject property when such uses are unlawful and non-permitted under the Annotated Code of Maryland and the Calvert County Zoning Ordinances? 3. Whether the circuit Court [for] Calvert County erred in upholding the variance granted by the Board when the Board, in violation of

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