# Lewis v. Department of Natural Resources > Court of Appeals of Maryland · October 10, 2003 · 377 Md. 382 URL: https://www.frixlaw.com/law-library/cases/9634202 ## Case - **Full name:** Edwin H. LEWIS v. DEPARTMENT OF NATURAL RESOURCES - **Court:** Court of Appeals of Maryland - **Decided:** October 10, 2003 - **Citations:** 377 Md. 382; 833 A.2d 563; 2003 Md. LEXIS 700 - **Precedential status:** Published - **Opinion:** Dissent by Wilner - **Judges:** Cathell, Raker, Wilner, Battaglia - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by statute, as recognized in Bereano v. State Ethics Commission. - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9634202 ## How later opinions describe it (automated extraction) - stating that application of the incorrect legal standard renders a decision arbitrary and capricious - noting that the Board should have issued specific findings of fact when it issued its opinion, and its failure to do so constituted legal error ## Opinion text WILNER, Judge, dissenting. I do not, as a rule, write to protest the denial of a motion for reconsideration, even when I dissented from the original decision. Indeed, I cannot immediately recall any instance in my 26 years as an appellate judge when I have done so. If I have expressed my disagreement with the decision and set out the *465 reasons for it in a dissenting opinion, my point has been made, and if it remains unpersuasive to my colleagues, there is nothing more to do. This case is different. This was not just a disagreement over a point of law. In my view, notwithstanding the explanations offered in the opinion denying the motion for reconsideration, the majority Opinion was deliberately designed, and, unless the General Assembly acts swiftly and decisively, may be effective, not only to dismantle the critical areas program but to seriously weaken fundamental zoning and land use controls generally. This case has a triple significance. The first is in its substantive effect on those programs. The Court’s Opinion is not a narrow one, as the Court now suggests, simply examining, in a neutral way, whether the evidence produced before the Wicomico County Board of Zoning Appeals was legally sufficient to support its denial of Lewis’s belated demand to build six hunting cabins in a legally created buffer zone. It seems clear to me that both the holding of the Court and the language used to justify it attack the very heart of land use controls, and specifically the critical areas program. They are an invitation to the very kind of lawless behavior that occurred in this case — ignore the law, destroy the habitat and build where the law does not permit, do it all in secret, and then claim hardship. Second, in its determination to cripple the critical areas program by overturning a perfectly rational and well-supported administrative decision, the Court has not just ignored, but has, in fact, mutilated, fundamental principles of administrative law well established in our case law and in the case law throughout the country. The unsupported and wholly unprecedented statements made by the Court regarding the need for “empirical evidence” to combat testimony offered by the party having the burden of proof which the agency simply found non-credible and unpersuasive will come back to haunt the Court in other administrative law cases, having nothing to do with land use issues. I expect that, when that happens, the *466 Court will quickly retreat and disavow what it has said in this case, but, in the meanwhile, it has thrown a major part of basic administrative law into a cocked hat. The Court continues to maintain that, if an applicant having the burden of proof produces evidence that is perhaps legally sufficient, the opponents must rebut that evidence, even when the agency finds that the applicant’s evidence is unpersuasive. That is simply not the law. The applicant has the burden of both production and persuasion, and, even if he met the former in this case, he clearly did not meet the latter. Without explanation, the Court continues to ignore that very basic premise of administrative law. The third significance is a jurisprudential one — a “political” one in the broad, non-partisan, sense of the term. The Court’s decision purports to rest on three earlier decisions that (1) as noted in my earlier dissent, do not support the result reached in this case, and (2) in 2002, the General Assembly specifically declared, in duly enacted legislation, were no longer the law of Maryland. In confirming the findings it initially made in 1984, the Legislature declared that those decisions were “contrary to the intent of the General Assembly in enacting the Chesapeake Bay Critical Area Program” and that it was the Legislature’s intent “to overrule these recent decisions ... regarding variances to Critical Area regulations.” Even if the substantive provisions of the 2002 law are not applicable to this case, the Court should not be extending those cases in light of the Legislative declaration that they were contrary to the General Assembly’s intent. In relying on those cases, as though they were still valid, the Court, is in effect, thumbing its nose at the General Assembly. The issues before us were not Constitutional ones, although the Court now hints that some Constitutional defect may lurk somewhere. Lewis never claimed a Constitutional right to build six hunting cabins in a protected buffer zone, and, if, on the facts of this case, he did so, the assertion would carry the concept of chutzpah to a new plateau. The issues were ones of statutory construction and basic administrative and land use law, as to which the Legislature’s pointed statement, made in statutory form, was entitled to respect and deference. *467 The motion for reconsideration filed by the Department of Natural Resources, formally supported by Anne Arundel, Har-ford, Montgomery, and Worcester Counties, the Chairs of the Legislature’s Joint Committee on the Chesapeake and Atlantic Coastal Bays Critical Area, and the Chesapeake Bay Foundation, and no doubt being watched with both hope and alarm by virtually every person and organization knowledgeable and concerned about the health and viability of the Chesapeake Bay and its tributaries, gives the Court an opportunity to recognize that it was wrong — that it went too far, that its ruling is not only an embarrassment but may have caused great harm and will undoubtedly create unnecessary friction with the Legislature. The motion should be granted. The Court should withdraw its Opinion, act responsibly, and affirm the judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9634202. Public record. Not legal advice.