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#65279 UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1881 September Term, 1999 LISA NOWAKOWSKI v. NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC Adkins, Karwacki, Robert L., (Retired, specially assigned) Fischer, Robert F., (Retired, specially assigned) JJ. Opinion by Karwacki, J. Filed: July 27, 2000 #12C99863 The narrow question presented in this appeal is whether Lisa Nowakowski, the appellant, had standing to be a party in a proceeding before the Board of Appeals by Harford County concerning the application for a special exception to a zoning use restriction. We shall hold that she had standing to protest granting of the special exception and that the denial of such standing by the Board of Appeals was erroneously affirmed by the Circuit Court for Harford County. Background On April 13, 1998, Appellee Nextel Communications of the Mid-Atlantic, Inc. (Nextel) filed an application with the Harford County Board of Appeals requesting a special exception construction and operation of a communications tower in an agricultural zone to be used in conjunction with Nextel's digital wireless phone network. Nextel proposed that the tower be erected at 2836-2838 Forge Hill Road in Bel Air, Maryland. On August 19, 1998, the Zoning Hearing Examiner for Harford County heard Nextel's case. At that hearing, appellant attempted to participate and object to the special exception. Appellant lived at 2413 Cool Spring Road in Bel Air, Maryland which was approximately 1.2 miles from the projected location of Nextel's tower. The following transpired between counsel and the Hearing Examiner at the oral hearing: [COUNSEL FOR APPELLEE: It's approximately 1.2 miles by this map. THE EXAMINER: As the crow flies or by road? [COUNSEL FOR APPELLEE: As the crow flies. THE EXAMINER: I rule there is no standing. [COUNSEL FOR APPELLANT:] I believe she would be in visual sight of the tower. THE EXAMINER: ... Many of us are in sight of the tower. I don't think it gives us standing, you know. Unfortunately, that's the rule. Certainly, your request is on the record .... [APPELLANT:] With regards to the amount of feet or the amount of distance between the proposed tower and my property, I don't think that radioactivity knows its limits. And you can't say that on a breezy day, we are not going to get more of a dose of whatever this tower is going to be dishing out than on a very clear day when there is no breeze at all. I mean, it's just another concern. On October 5, 1998, the Zoning Hearing Examiner recommended that the Board of Appeals rule that she did not have the requisite standing to object to Nextel's ability to receive a special exception. The Hearing Examiner thereafter recommended that Nextel be granted the special exception to construct the tower. On March 9, 1999, this decision was affirmed: The Harford County Council/Board of Appeals, by affirmative vote of 5-0, ratifies and adopts the Hearing Examiner's recommendation, dated October 5, 1998, to approve the requested Special Exception, finding that Lisa Nowakowski is not a person aggrieved as defined by law in Bryniarski v. Montgomery County, 247 Md. 137 (1967) and, therefore, has no standing to request final judgment. On August 31, 1999, the Circuit Court for Harford County affirmed the Board of Appeals decision. Discussion Article 25A, § 5U of the Maryland Annot. Code (1998 Repl. Vol.) authorizes charter counties, such as Harford County, to "enact local laws providing for the establishment of a county board of appeals whose members shall be appointed by the county council . . . [and] for the adoption by the board of rules of practice governing its proceedings." Pursuant to this authority, at § 267-9 of the Harford County Code (1986 ed.), the Harford County Council established a Board of Appeals, designated the members of the County Council as the Board of Appeals, and authorized it to "adopt rules and regulations governing procedure before the Board." Id. at 267-9B(2). All applications for a special exception to a zoning use restriction are heard and decided by the Board of Appeals. See § 267-9D of the Harford County Code. Rules governing procedure before the Board of Appeals have been adopted by the Board. See § A274, et seq. of the Harford County Code. Section A274-10C addresses who has standing before the Board of Appeals in an application for special exception in a zoning case. It provides: Every application [sic] and person aggrieved shall have the right of cross-examination of the witnesses who testify and shall have the right to submit rebuttal evidence. Appellee argued before the hearing examiner, the Board of Appeals, the Circuit Court and in this Court that "person aggrieved" in that rule incorporated the definition of person aggrieved used by the courts to determine who had standing to seek judicial review of an administrative decision, e.g., Bryniarski v. Montgomery Co., 247 Md. 137 (1967). (In order to have standing to seek judicial review, a person must have been a party to the proceeding before the administrative agency and must be aggrieved by the decision of the agency). We disagree with appellee's interpretation of the Board rule governing administrative standing for the reasons hereinafter set forth. The Court of Appeals has recently addressed the question of has standing to participate in a proceeding before an administrative agency in Sugarloaf v. Dept. of Environment, 344 Md (1996). The Court explained: [A] person may properly be a party to an agency hearing under Maryland's "relatively lenient standards" for administrative standing but may not have standing in court to challenge an adverse agency decision. Maryland-Nat'1 v. Smith, 333 Md. 3, 11, 633 A.2d 855, 859 (1993). See Medical Waste v. Maryland Waste, 327 Md. 596, 611-614, 612 A.2d 241, 248-250 (1992) (organization was a party at the administrative proceeding but lacked standing to maintain a judicial review action.) The requirements for administrative standing under Maryland law are not very strict. Absent a statute or a reasonable regulation specifying criteria for administrative standing, one may become a party to an administrative proceeding rather easily. In holding that a particular individual was properly a party at an administrative hearing, Judge J. Dudley Digges for the Court in Morris v. Howard Res. & Dev. Corp., 278 Md. 417, 423, 365 A.2d 34, 37 (1976), explained as follows: "He was present at the hearing before the Board, testified as a witness and made statements or arguments as to why the amendments to the zoning regulations should not be approved. This is a far greater participation than that previously determined sufficient to establish one as a party before an administrative agency. See, e. g., Baxter v. Montgomery County, 248 Md. 111, 113, 235 A.2d 536 (1967) (per curiam) (submitting name in writing as a protestant); Bryniarski v. Montgomery Co., 247 Md. 137, 143, 230 A.2d 289, 293-94 (1967) (testifying before agency); Hertelendy v. Montgomery Cty., 245 Md. 554, 567, 226 A.2d 672, 680 (1967) (submitting into evidence letter of protest); DuBay v. Crane, 240 Md. 180, 184, 213 A.2d 487, 489 (1965) (identifying self on agency record as a party to proceedings); Brashears v. Lindenbaum, 189 Md. 619, 628, 56 A.2d 844, 849 (1948) (same. Bearing in mind that the format for proceedings before administrative agencies is intentionally designed to be informal so as to encourage citizen participation, we think that absent a reasonable agency or other regulation providing for a more formal method of becoming a party, anyone clearly identifying himself to the agency for the record as having an interest in the outcome of the matter being considered by that agency, thereby becomes a party to the proceedings." Id. 344 Md. at 285-87. Under the appellee's construction of the Board's rule governing administrative standing of a party seeking to participate in a hearing on an application for a zoning special exception, § A274-10C of the Harford County Code, the Board of Appeals, on a recommendation of its hearing officer, would determine who has standing in a court to seek judicial review of whatever the Board's decision might be. Such a construction of the rule would place the rule in direct conflict with the established roles of an administrative agency and a court reviewing its action in determining who has standing to seek judicial review of an agency's decision. The Court of Appeals in Sugarloaf pointed out: Under basic principles of administrative law, as well as the separation of powers requirement set forth in Article 8 of the Maryland Declaration of Rights, it is not the proper function of an administrative official or agency in the executive branch of government to decide whether a plaintiff or potential plaintiff has standing to maintain an action in court. Id. 344 Md. at 289-90. We therefore conclude that the phrase "person aggrieved" as used in the Board rule codified as § A274-10C of the Harford County Code merely means a person interested in the subject matter of the proceedings before the Board. Our construction of the Board's rule on administrative standing is supported by provisions found in the Harford County Charter and the Harford County Code with regard to hearings before the Board of Appeals. The Charter provides: The [Harford County] Council shall reasonably employ its subpoena power to compel the attendance of witnesses and the production of evidence upon request by any applicant in a zoning case or an other interested person. Harford County, Md. Charter, Procedural Requirements In Zoning Cases, § 704(d) (1996) (emphasis added). Similarly, the Harford County Code governing procedures in zoning hearings before the Board of Appeals states: The notice of public hearing shall include a statement that any person affected by the requested relief in the application has the right to attend the hearing and to request that the Hearing Examiner reasonably use the subpoena powers of the County Council of Harford County to compel the attendance of witnesses and the production of evidence on behalf of the affected person. Code, § A274-2(B)(1), Zoning Application, Rules of procedure, Prehearing procedure (emphasis added). The appellant amply demonstrated her interest in appellee's application for a special exception to permit the erection of a communications tower visible from her residence which was within the radiation range of that tower. The Board of Appeals improperly exercised a judicial function when it determined that she would not have standing to maintain an action for judicial review of any decision by the Board. JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR HARFORD COUNTY WITH DIRECTIONS TO REVERSE THE DECISION OF THE HARFORD COUNTY BOARD OF APPEALS AND TO ORDER THE BOARD TO GRANT THE APPELLANT ADMINISTRATIVE STANDING TO PARTICIPATE IN THE PROCEEDING TO DETERMINE APPELLEE'S RIGHT TO A SPECIAL EXCEPTION. COSTS TO BE PAID BY APPELLEE.