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Chair discloses possible ex parte comments; lawyers debate whether board has jurisdiction
Summary
At the start of deliberations Chair Gene Ryan disclosed public comments at a July 21 County Council hearing that may constitute improper ex parte communications; counsel for the protestants then argued the board lacks jurisdiction to hear the appeal while petitioner counsel urged the board to proceed de novo.
Chair Gene Ryan told the Board of Appeals on July 31 that during a July 21 County Council public hearing members of the public, including parties to BA 24‑022‑C, made remarks touching on the merits of the pending appeal and that those remarks could reasonably be construed as improper ex parte communications under Howard County section 2.204(c). Ryan told parties he had not participated in or encouraged the comments and offered the petitioner options including a continuance to review the Council hearing video, an opportunity to present rebuttal, a request that the chair or vice chair recuse, a new hearing, or proceeding immediately to closing arguments.
Petitioner's counsel elected to proceed with closing summations. Mason Nelson, attorney for the citizen protestants, responded later with a broader jurisdictional challenge: he cited a prior administrative decision (BA 7‑18‑D) and argued that where the hearing examiner did not "hear and decide" a matter the Board may lack authority to consider the appeal. He urged the board to consult its attorney and to consider dismissing for lack of jurisdiction.
Applicant counsel countered that if the hearing examiner dismissed a matter the proper judicial remedy would be a petition for judicial review in circuit court, and that the county code and the history of the hearing‑examiner legislation preserve the Board’s de novo review function. The board discussed the legal arguments at length, referred to case law, and several members said they found the protestants’ jurisdictional reading unpersuasive. After deliberation the board proceeded to consider the merits and ultimately voted to grant the conditional use with conditions.
The exchange highlights two procedural points that remained unresolved at the conclusion of the hearing: how to interpret the "heard and decided" language in the hearing examiner rules and which administrative or judicial paths are available if a hearing examiner issues a dismissal. The board recorded support for the County Council’s parallel request that the Maryland Attorney General provide an opinion on certain charter amendment questions relating to Board procedures.
