The Howard County Council is considering a move to eliminate a widely used approach to challenging decisions on land use, building permits and other matters, a step some activists say sharply curtails the public's right of appeal.
At issue is whether people challenging decisions made by the county hearing examiner can get a second full hearing before the Board of Appeals, or whether that panel will only be able to review what the examiner did.
The hearing examiner's position has been in place for a decade, as an intermediate step to challenge administrative decisions. One of the goals of the job is to lighten the load for the Board of Appeals, whose decisions can only be challenged in court.
Supporters of the legislation introduced by County Executive Ken Ulman say the move would speed the process of reaching decisions.
"It would help the work volume for the Board of Appeals," said Marsha McLaughlin, director of the county Department of Planning and Zoning. She said the step is an expansion of a three-year-old policy that already limits the Board of Appeals to reviewing the record of the hearing examiner's actions in cases involving zoning-law violations.
Grace Kubofcik of Ellicott City, immediate past president of the League of Women Voters of Howard County, said she opposes the bill and plans to speak against it at a public hearing Monday. She said the law allowing new hearings before the Board of Appeals is "a mechanism that allows the citizenry to have one more shot" at having grievances heard. "Past that, you're in court."
The legislation would allow the Board of Appeals to conduct a hearing only "on the record," meaning it would restrict its review to the record of the hearing examiner's proceedings and not consider new evidence. Now, the board has the option to start anew and consider new evidence, known in legal parlance as a "hearing de novo."
The bill would apply the "on the record" approach to all matters decided by the hearing examiner, who can rule on an array of departmental decisions but devotes most of her time to questions of land use and construction projects. The move is meant to hasten the process of deciding such things as whether a homeowner can expand a garage closer to the property line than the zoning rules allow, or whether a business can erect a sign or build a gas station next to a convenience store.
Several community activists say the change would put residents challenging the hearing examiner's decisions at a disadvantage.
"This is another way of taking some opportunity away from citizens to influence land use," said Angela Beltram of Ellicott City, a former member of the Planning Board and the County Council.
She said the hearing examiner's proceedings gives residents the chance to learn the issues of a case so they can respond. Under the proposal, she said, residents would be able to consider the issues in the hearing examiner's proceedings but not respond with a full challenge to the Board of Appeals.
"Residents should be afforded the right to have their grievance heard by the full board," said Marc Norman, who lives near Ellicott City and is among those fighting a developer's proposal for two new apartment buildings at the Turf Valley development.
He said the Board of Appeals "has been known to give extensive consideration to community concerns, over and above that of the hearing examiner."
Norman noted that, unlike Board of Appeals members, the examiner does not have to be a resident of Howard County. The current examiner, Michele L. LeFaivre, lives in Baltimore City.
James Walsh, chairman of the Board of Appeals, said he had not taken a position on the bill.
"There's pros and cons, and I haven't made up my mind," said Walsh. He said the new procedure would "cut down dramatically on the time it takes" to move cases that the board hears anew, which he said can now take "eight, nine, 10 nights … over the course of a year."
He said the party bringing the appeal now has the choice of a "de novo" or "on the record" hearing before his board, but in his experience the great majority choose the full hearing.
Statistics provided by McLauglin show that only a small number of land-use matters decided by the hearing examiner are appealed. Figures for 2008 through 2010 — when the examiner decided between 37 and 56 cases — show that from 13 percent to 19 percent of rulings were appealed. This year, 28 cases have been decided by the hearing examiner, and none has been appealed.
The bill made it before the County Council, but only after member Courtney Watson's effort to kill it before it went to a public hearing failed. Watson said she was troubled not so much by the measure itself as by the way it was brought before the council. She said she was not consulted before the bill was introduced. Walsh said he was not consulted, either.
Watson said the council would typically discuss an issue like this and figure out potential solutions, especially as the Board of Appeals operates under the council's jurisdiction. The executive's bill, she said, changes a council function "out of the blue, without any process."