Assateague Coastal Trust, Inc. v. Schwalbach

ARTHUR, J. The Board of Zoning Appeals for Worcester County granted a critical area variance authorizing landowner Roy T. Schwal-bach to construct a pier or walkway across his private wetlands. The Circuit Court for Worcester County upheld the Board’s decision after Assateague Coastal Trust, Inc. (“ACT”), a non-profit environmental advocacy organization, petitioned for judicial review. ACT now appeals from that judgment, and we also affirm. Factual and Procedural Background A. Property Subject to the Variance Request In 2003, Schwalbach purchased a subdivided property located at 12933 Old Bridge Road in West Ocean City.

The ⁶³⁵ property consists of five and one-half rectangular lots that were originally platted in the 1930s. The Worcester County zoning classification for the property is “R-3 Multi-Family Residential.” The property sits immediately north of Old Bridge Road and immediately south of the shoreline of an unnamed tributary of the Sinepuxent Bay. Because of its proximity to this body of water, the property falls within the Atlantic Coastal Bay Critical Area. See Md. Code (1974, 2012 Repl.

Vol.), § 8-1807(b) of the Natural Resources Article. Under critical area regulations, the location is designated as an “Intensely Developed Area,” which is defined as an area “where residential, commercial, institutional, and/or industrial, developed land uses predominate, and where relatively little natural habitat occurs.” See COMAR 27.01.02.03; Worcester County Code CWCC”) § NR 3-106(a). The southern portion of the property includes three and one-half lots along Old Bridge Road. This portion of the property has been improved with a residence, in-ground swimming pool, pool house, and connecting walkways.

The northern portion of the property consists of two unimproved lots bordering the waterway. Tidal marsh extends from the improved portion of the property to the water’s edge. The northern lots are covered entirely by tidal marsh. B. Schwalbach’s Variance Request Schwalbach planned to construct a pier or walkway that would extend across the marsh to connect the improved portion of the property to a proposed dock six feet past the shoreline.

Under the County’s critical area ordinance, “[n]ew piers or docks shall not extend more than one hundred feet in length over state or private wetlands.” WCC § NR 3-125(b)(1). To reach the shoreline, however, Schwalbach’s structure would have to extend 180 feet across the marsh. Consequently, on August 14, 2013, he submitted an application for a variance with the Board of Zoning Appeals for Worcester County, requesting “[a] variance [from] the Atlantic Coastal ⁶³⁶ Bays Critical Area Law to authorize a 3 foot wide by 180 foot long pier across tidal marsh.” 1 On September 22, 2013, the Board of Zoning Appeals (“the Board”) received a staff report with comments on the variance application. The report included a letter from the Natural Resources Administrator of the Worcester County Department of Developmental Review and Permitting.

The letter emphasized: “As the Board is aware from previous variances to the Critical Area Law, all applicants must address six standards. The Critical Area Law requires that each of the six standards for a variance be met before the Board renders a decision.” 2 In Worcester County, the following standards must be satisfied before a critical area variance may be granted: (b) Standards. The provisions for granting such a variance shall include evidence submitted by the applicant that the following standards are met: (1) Special conditions or circumstances exist that are peculiar to the applicant’s land or structure and a literal enforcement of provisions and requirements of the County’s Atlantic Coastal Bays Critical Area Program would result in unwarranted hardship; (2) A literal interpretation of the provisions of the County’s Atlantic Coastal Bays Critical Area Program and re ⁶³⁷ lated laws will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Atlantic Coastal Bays Critical Area; (3) The granting of a variance will not confer upon an applicant any special privilege that would be denied by the County’s Atlantic Coastal Bays Critical Area Program to other lands or structures within the Atlantic Coastal Bays Critical Area; (4) The variance request is not based upon conditions or circumstances which are the result of actions by the applicant nor does the request arise from any condition relating to land or building use, either permitted or non-conforming on any neighboring property; (5) The granting of a variance shall not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the granting of the variance will be in harmony with the general spirit and intent of the County’s Atlantic Coastal Bays Critical Area Program; (6) (Reserved) (7) The Board of Zoning Appeals shall not make a decision relative to a request for such a variance without reviewing the comments of the Department and finding that the applicant has satisfied each of the provisions and standards contained herein. WCC § NR 3—111(b); see also COMAR 27.01.12.04(B).

The staff report commented that, as a result of the layout of the property, Schwalbach would suffer an undue hardship if he were prohibited from constructing a pier in excess of 100 feet in length. The report stated that the property included “[a] large expanse of wetlands,” and an owner would be prevented “from reaching navigable waters and enjoy[ing] his riparian rights” without a variance from “regulations that have been implemented long after these lots were platted.” The report further stated that any potential adverse environmental impact would be minimal because the structure was modest in size, the project had been subject to extensive environmental ⁶³⁸ review by the U.S. Army Corps of Engineers and the Maryland Department of the Environment, and substantial mitigation would offset any disturbance from the construction. 3 The staff report concluded that Schwalbach’s application satisfied each of the variance standards of the County’s zoning ordinance and recommended that the Board approve the request. C. Board’s Decision Granting Variance Schwalbach presented his application to the Board at a hearing on October 10, 2013. Schwalbach testified that the purpose of the proposed structure was to provide access to the navigable water at the edge of his property.

His documentary submissions included site plans from a professional surveyor who had reviewed the project. The surveyor testified that Schwalbach would not have access to the water if he were forced to shorten the pier to less than the proposed length. Schwalbach also called a private environmental consultant, who had previously worked as a Natural Resources Administrator for the County. The environmental consultant confirmed that Schwalbach had obtained an authorization from the U.S. Army Corps of Engineers (see generally 33 U.S.C. § 403 ; 33 C.F.R. § 322 ) and a tidal wetlands license from the Maryland Department of the Environment.

The consultant explained that he had gone through extensive negotiations with those agencies “to get a configuration that fit the property and fit the water depths and fit the channel specifically for that site.” Based on the “stringent special conditions” with which Schwalbach would have to comply during and after ⁶³⁹ construction and while boating, he opined that the proposed pier would have no adverse effect on water quality. 4 The environmental consultant also testified that the property was located in an area “very heavily used for boating,” with “numerous boat docks up and down the shoreline[.]” He estimated that there were several hundred boats at nearby marinas. 5 In sum, he opined that the site plan represented the minimum possible intrusion to allow Schwalbach to enjoy access to the water, a right enjoyed by others in the community- The Board also received into the record a letter from ACT. Ms. Kathy Phillips, the Assateague Coastkeeper, wrote: “Substantial research data[] and the Worcester County Code support the conclusion that a dock or pier extending 100 feet or more over marsh represents a change in the character of the marsh.” She further commented that “while ACT understands and supports the concept of riparian rights, ... very shallow bodies of water [are] not capable of supporting regular motorized boat access and should be considered lands protected by the Public Trust.” ACT requested that the Board justify its decision in writing if it granted a variance. At the conclusion of Schwalbach’s presentation, the Board members unanimously voted to grant the variance. In a written decision issued on November 14, 2013, the Board adopted and re-stated the findings of fact set forth in the staff report.

As its conclusion, the decision stated: “The Board reviewed Staff comments and the Applicant has satisfied all standards.” ⁶⁴⁰ D. ACT’s Petition for Judicial Review On November 22, 2013, ACT filed a petition for judicial review in circuit court. 6 In a memorandum supporting its petition, ACT argued that Schwalbach had failed to prove compliance with each of the individual standards of WCC § NR 3-111(b). At the judicial review hearing, ACT further argued that the Board’s decision was “defective on its face” because the decision did not affirmatively express whether Schwalbach had overcome a statutory presumption that the activity subject to the variance application did not conform to the general purpose of the critical area requirements. See WCC § NR 3-lll(d)(4) (requiring that Board “shall make written findings as to whether the applicant has overcome the presumption of nonconformance”). The circuit court issued an opinion and order on June 20, 2014, affirming the Board’s decision.

The court found that there was substantial evidence in the record supporting the Board’s findings that Schwalbach had satisfied each of the variance standards. The court also concluded that the Board did not erroneously fail to make a separate written finding that Schwalbach had overcome the presumption of nonconfor-mance. ACT filed a timely notice of appeal from the circuit court’s judgment. Questions Presented ACT now presents two interconnected questions, which we quote: I. Did the [Board] err as a matter of law in finding that [Schwalbach] had proven by competent and substantial evidence each of the six standards required for a vari- ⁶⁴¹ anee under [WCC § NR 3-111] without taking into account that [Schwalbach] had the burden to overcome the presumption of nonconformance?

II

Is the [Board’s] decision erroneous as a matter of law because the [Board] never found that [Schwalbach] met his burden of proof and persuasion to overcome the presumption of nonconformance? As discussed in this opinion, we conclude that substantial evidence in the record supported the Board’s determination that the application satisfied each of the variance standards. Even though the Board did not make an express written finding that the applicant had overcome the statutory presumption of nonconformance, that omission, under the circumstances of this case, does not require reversal or remand. Discussion A. Standards for Granting of Critical Area Variance In 1984 the General Assembly enacted the Chesapeake and Atlantic Coastal Bays Area Protection Program.

See Md. Code (1974, 2012 Repl. Vol.), Subtitle 18 of Title 8 of the Natural Resources Article (“N.R.”). The main purpose of the program is to foster “more sensitive development activity for certain shoreline areas” of the Chesapeake and Atlantic Coastal Bays and their tributaries, “so as to minimize damage to water quality and natural habitats[.]” N.R. § 8—1801(b). New development in these shoreline areas is generally presumed to be contrary to the purposes of the critical area program.

N.R. § 8-1801(a)(4). 7 The critical area law is State-imposed, but locally enforced. The statute assigns each jurisdiction with primary responsibility for developing a local critical area program, subject to oversight from the State Critical Area Commission. See N.R. ⁶⁴² § 8-1808(a)(l). Each local program must meet certain minimum standards, including the establishment of procedures for the granting of variances.

N.R. § 8—1808(c)(1); see also CO-MAR 27.01.12. “The lodestar for [a local zoning board’s] consideration of a variance application” is the unwarranted hardship standard. Chesapeake Bay Found., Inc. v. DCW Dutchship Island, LLC, 439 Md. 588, 614 , 97 A.3d 135 (2014). The statute provides: (5) A variance to a local jurisdiction’s critical area program may not be granted unless: (i) Due to special features of a site, or special conditions or circumstances peculiar to the applicant’s land or structure, a literal enforcement of the critical area program would result in unwarranted hardship to the applicant; (ii) The local jurisdiction finds that the applicant has satisfied each one of the variance provisions; and (iii) Without the variance, the applicant would be deprived of a use of land or a structure permitted to others in accordance with the provisions of the critical area program. N.R. § 8-1808(d)(5).

In considering a variance application, the local zoning authority “shall presume that the specific development activity in the critical area that is subject to the application and for which a variance is required does not conform with the general purpose and intent” of the Critical Area Program subtitle, its implementing regulations, and the requirements of the local program. N.R. § 8-1808(d)(3)(ii). The applicant bears “the burden of proof and the burden of persuasion to overcome [this] presumption[.]” N.R. § 8-1808(d)(4)(i). “Based on competent and substantial evidence, a local jurisdiction shall make written findings as to whether the applicant has overcome the presumption[.]” N.R. § 8—1808(d)(4)(ii); see also COMAR 27.01.12.04. 8 ⁶⁴³ The Worcester County ordinance likewise provides that the Board shall presume that the proposed activity does not conform with the general purpose and intent of the critical area laws and regulations; that the applicant bears the burdens of proof and persuasion to overcome the presumption of nonconformance; and that the Board must make written findings as to whether the applicant has overcome the presumption of nonconformance. See WCC § NR 3-111(d).

In this appeal, ACT attacks the Board’s decision on two fronts. First, ACT contends that Sehwalbach’s application failed to satisfy some of the individual requirements for a variance. Second, ACT asserts that the Board erred by failing to apply the statutory presumption of nonconformance and by not making a written finding as to whether Schwalbach met his burden to overcome that presumption. Ultimately, neither challenge is successful.

B. Substantial Evidence Supporting the Board’s Decision ACT argues that Schwalbach failed to present substantial evidence that his application satisfied “five of the six standards” from the Worcester County critical area ordinance. Because the applicant’s failure to meet any one of the standards requires the denial of the variance application (see N.R. § 8—1808(d)(5)(ii); COMAR 27.01.12.04(B); WCC § NR 3-111(b)(7)), we must consider each standard individually. 9 In considering this challenge, we are cognizant of the limited role that the courts must play in reviewing the decision of a local land-use board. The court’s task is to determine whether the issue decided by the agency was at least “fairly ⁶⁴⁴ debatable” based on all of the evidence. See Becker v. Anne Arundel Cnty., 174 Md.App. 114, 138 , 920 A.2d 1118 (2007).

As the Court of Appeals has explained: Our role in reviewing the final decision of an administrative agency, such as the Board of Appeals, is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law. In doing so, a reviewing court decides whether the Board’s determination was supported by such evidence as a reasonable mind might accept as adequate to support a conclusion.... The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness. [] Moreover, a reviewing court must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid.

Critical Area Comm’n for Chesapeake & Atl. Coastal Bays v. Moreland, LLC, 418 Md. 111, 122-23 , 12 A.3d 1223 (2011) (citations and quotation marks omitted). Unwarranted Hardship Before the Board of Zoning Appeals for Worcester County may grant a critical area variance, the applicant must produce evidence to persuade that Board that “[sjpecial conditions or circumstances exist that are peculiar to the applicant’s land or structure and a literal enforcement of provisions and requirements of the County’s Atlantic Coastal Bays Critical Area Program would result in unwarranted hardship[.]” WCC § NR 3-lll(b)(l). In this context, the term “unwarranted hardship” is defined as: “A situation wherein without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.” WCC § NR 3-202; see also N.R. § 8-1808(d)(l); COMAR 27.01.12.01.

Schwalbach introduced evidence, in the form of testimony and supporting documents from an environmental consultant ⁶⁴⁵ and a surveyor, that the features of the property made it impossible to reach the water at the edge of the property without a pier in excess of 100 feet. The Board credited this testimony and concluded that, as a result of the “large expanse of wetlands” located on the property, Schwalbach would not be able to “enjoy his riparian rights” if the zoning restrictions were strictly enforced. In this appeal, ACT does not dispute the Board’s conclusion that Schwalbach could not gain access to the navigable waters bounding his property without a variance. 10 Instead, ACT contends that the denial of riparian access is not an unwarranted hardship because Schwalbach has already made other extensive improvements on his land. “ ‘The unwarranted hardship standard, and its similar manifestations, are equivalent to the denial of reasonable and significant use of the property.’ ” DCW Dutchship, 439 Md. at 619 , 97 A.3d 135 (quoting Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259, 282 , 734 A.2d 227 (1999)). In Belvoir Farms, the Court of Appeals explained that the unwarranted hardship standard is generally stricter than a “practical difficulties” standard (id. at 266, 734 A.2d 227 ), but not as stringent as an unconstitutional taking standard, which examines whether “a ‘regulation denies all economically beneficial or productive use of land.’ ” Id. at 281-82 , 734 A.2d 227 (quoting Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1015 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992)).

Stated differently, under the unwarranted hardship standard, the need for the variance “ ‘must be substantial and urgent and not merely for the convenience of the applicant[.]’ ” Chesley v. City of Annapolis, 176 Md.App. 413, 432 , 933 A.2d 475 (2007) (quoting Belvoir Farms, 355 Md. at 276 , 734 A.2d 227 ). The General Assembly has since modified the definition of unwarranted hardship to clarify that the unwarranted hardship analysis ⁶⁴⁶ looks to the use of “the entire parcel or lot for which the variance is requested.” N.R. § 8—1808(d)(1) (emphasis added); see Becker, 174 Md.App. at 132-33 , 920 A.2d 1118 . Nevertheless, the Court of Appeals has continued to rely on Belvoir Farms for the basic proposition that the unwarranted hardship standard is less stringent that an unconstitutional takings standard. See DCW Dutchship, 439 Md. at 618-19 , 97 A.3d 135 .

In DCW Dutchship , the Court of Appeals upheld a local board’s finding that the unwarranted hardship criterion was satisfied, where testimony showed that no dwelling could be built on a particular property without a variance. Id. at 619 & n. 25, 97 A.3d 135 ; accord Becker, 174 Md.App. at 144 , 920 A.2d 1118 (instructing zoning board on remand to reconsider the variance criteria, while “recognizing that [the property owners] are entitled to build some type of reasonable structure”); id. at 141 , 920 A.2d 1118 (noting that “here, a house can be legally built on the property in question, but not without variances, and a potential constitutional taking is a serious concern”). In the instant case, the right asserted is not the right to construct a residence, but the right of access from that residence to the navigable waters bordering the property. Neither this Court nor the Court of Appeals has decided the question of whether denying an owner riparian access may amount to the denial of reasonable and substantial use of the entire property. 11 As Schwalbach points out, under Maryland common law a “ ‘riparian proprietor, whose land is bounded by a navigable ⁶⁴⁷ river, ... has the right of access to the navigable part of the river from the front of his lot, and the right to make a landing, wharf, or pier for his own use[.]’ ” White v. Pines Cmty.

Improvement Ass’n, Inc., 403 Md. 13, 16-17 , 939 A.2d 165 (2008) (quoting Baltimore & Ohio R.R. Co. v. Chase, 43 Md. 23, 35 (1875)). These common-law riparian rights are valuable property rights “ ‘of which, when once vested, the owner can only be deprived in accordance with the law of the land, and, if necessary that they be taken for public use, upon due compensation.’ ” Pines, 403 Md. at 17 , 939 A.2d 165 (quoting Chase, 43 Md. at 35 ). Under the Maryland Code, an owner of property on state or private wetlands has the right to make certain improvements to exercise riparian rights and to preserve access to navigable water. See Md. Code (1982, 2007 Repl.

Vol.), §§ 16-201(a), 16-304(3) of the Environment Article (“Envir.”). ACT points out that these riparian rights nonetheless remain “subject to such general rules and regulations as the [[legislature may think proper to prescribe for the protection of the rights of the public[.]” Pines, 403 Md. at 17 , 939 A.2d 165 . But although an owner’s riparian rights are not absolute, Schwalbach’s effort to exercise an important component of his property rights, in a boating community where riparian access is an important attribute of land ownership, makes his request more urgent and substantial than other requests. He did not make his application for the sake of mere convenience or from the desire to add a pleasant amenity.

Cf. Chesley, 176 Md. App. at 435-36 , 933 A.2d 475 (affirming denial of variance where board reasonably concluded that proposed garage was mere convenience for owner) (citing Citrano v. North, 123 Md.App. 234, 242 , 717 A.2d 960 (1998) (affirming determination that denial of critical area variance to construct freestanding deck on which to enjoy view was not a hardship); North v. St. Mary’s Cnty., 99 Md.App. 502, 519 , 638 A.2d 1175 (1994) (reversing determination that denial of critical area variance to construct gazebo on which to enjoy view amounted to hardship)). ⁶⁴⁸ The Board here concluded that prohibiting access from the residence to the navigable waters bounding the property-amounts to the denial of reasonable and substantial use of the entire property. In this context, the Board’s interpretation and application of its guiding statute is entitled to considerable weight. See DCW Dutchship, 439 Md. at 626 , 97 A.3d 135 .

The Court of Appeals has emphasized: “ ‘Whether a property owner has been denied reasonable and significant use of his property is a question of fact best addressed by the expertise of the Board of Appeals, not the courts.’ ” Id. at 619 , 97 A.3d 135 (quoting Belvoir Farms, 355 Md. at 282 , 734 A.2d 227 ); see DCW Dutchship, 439 Md. at 630 , 97 A.3d 135 (“[w]hen addressing the issue of reasonable and significant use, a substantial amount of deference to the Board’s findings is required”) (citing White v. North, 356 Md. 31, 49-50 , 736 A.2d 1072 (1999) (“whether a property owner is being denied a reasonable and significant use initially will be a determination of the zoning agency, which we presume possesses the necessary expertise to decide what is reasonable and significant”)); see also Chesley, 176 Md.App. at 436 , 933 A.2d 475 . In light of the considerable deference that is owed to the Board’s factual findings and to its interpretation of the statute it is charged with implementing, we will not disturb the Board’s determination as to the unwarranted hardship criterion. It was reasonable for the Board to conclude that the need for the variance arose from special features that were peculiar to the property. Particularly