Becker v. Anne Arundel County

EYLER, JAMES R., J. William and Jane Becker, appellants, requested three variances from the Anne Arundel County Board of Appeals (the “Board”), which variances were necessary to construct a home on their property fronting on the Magothy River and Park Creek in Pasadena. In accordance with the Anne Arundel County Charter (the “Charter”), the requests for variances were initially heard by the County’s Administrative Hearing Officer, 1 and the decision was subsequently appealed to the Board. 2 The Board conducted a hearing de novo 3 on the variance requests. In addition to appellants, participants at the hearing were Anne Arundel County, through its Office of Planning and Zoning, and protestants Richard Roeder, Jr., Alan Cohen, Ross Koch, Michael Warner, Ron Baker, Gary ¹²⁰ Koch, and James Franz, collectively appellees. 4 The Board denied the variances, and pursuant to § 604 of the Charter, appellants timely appealed the Board’s decision to the Circuit Court for Anne Arundel County. After a hearing, the circuit court, by memorandum opinion and order dated June 16, 2006, affirmed the Board’s decision, denying appellants’ requested variances.

This appeal followed. We shall reverse the circuit court’s judgment and remand to circuit court with instructions to vacate the Board’s decision and remand to the Board for further proceedings consistent with this opinion. Factual Background In November 1998, appellants purchased two adjoining parcels of land located off of Trails End Road in Pasadena. Parcel 1 consists of 1.60 acres and is improved with a dwelling in which appellants reside.

Parcel 2 consists of 0.67 acres, or 23,136 square feet, and is undeveloped. Both parcels front on the Magothy River, with a small portion of Parcel 2 fronting on Park Creek. The zoning classification of both parcels is “R2,” residential, and both parcels are designated limited development areas under the County’s “critical area” program. See Anne Arundel County Code (the “Code”), Art. 28. 5 Appellants wished to build a home on Parcel 2 and, if possible, sell the existing home on Parcel 1.

Some time in 1999, appellants initiated an investigation into building a two-story ranch style home on Parcel 2. Ultimately, with the approval of the Office of Planning and Zoning, the proposed structure was to consist of 2,499 square feet of living space with 1,755 devoted to the first floor and 744 devoted to the second floor. Additionally, a 529 square foot two-car garage was proposed, bringing the total area of the house to 3,028 square feet. The interior of the house was to consist of 3 bedrooms, with 2 guest bedrooms on the second floor, and with the master bedroom and the majority of the living space ¹²¹ on the first floor.

The asserted reason for the larger first floor living space was that Mrs. Becker has Lyme Disease. Appellants learned that Parcel 2 is a legal buildable existing lot, 6 but that due to the property’s close proximity to tidal waters, the entire parcel is within the Chesapeake Bay Critical Area, which subjects it to certain regulations. Parcel 2 is described as irregularly shaped, likened to a “pork chop.” It consists of a low grassy area that is not suitable for building, a sandy beach, and a wooded area. The parcel is also affected by steep slopes adjacent to the shoreline.

At its widest point, Parcel 2 is only 122 feet. Consequently, 97% of the property is located within the 100-foot critical area buffer. As there is no suitable portion of land for building outside of the buffer zone due to the topography of the land, the lot can not be developed without obtaining variances from the strict requirements of the zoning ordinance and critical area program. After appellants purchased Parcel 2, they sought approval from the Health Department to put a septic system on it; however, Parcel 2 did not pass soil percolation tests.

Percolation tests on Parcel 1 were successful, and consequently, appellants’ home builder proposed using a portion of Parcel 1 for the septic disposal area. The septic system would be subject to a recorded easement, and would pump from Parcel 2 to a mound system located on Parcel 1. Pursuant to this plan, the Health Department approved construction of a house on Parcel 2, not to exceed 2,500 square feet of living area. Due to the location of the septic system as well as a potable well located in the northwest portion of Parcel 2, the geographic constraints, and existing flood plains, appellants contend that their proposal for the placement and configuration of the house on Parcel 2 is the most reasonable option.

In 2003, before undertaking to develop Parcel 2, appellants applied for three variances seeking relief from three provi ¹²² sions of the Code, specifically Article 28, §§ 1A-104 (a)(1), 1A-105 (d), and 2-405(a)(3). Article 28, § 1A-104 (a)(1) provided that “there shall be a minimum 100-foot buffer landward from the mean high-water line of tidal waters, tributary streams, and tidal wetlands.... ” Appellants’ proposed dwelling would be located 44-feet from the shoreline; thus a variance of 56 feet from the critical area buffer was requested. Article 28, § 1A-105 (d) provided that “[djevelopment on slopes of 15% or greater as measured before development is not permitted in limited and resource conservation areas unless the project is the only effective way to maintain or improve the stability of the slope----” In order for appellants to install the septic system, the steep slopes on both Parcel 1 and Parcel 2 would have to be “temporarily” disturbed, requiring a variance. Article 28, § 2-405(a)(3) provided that “[e]aeh lot in an R2Residential District shall have ... a rear yard that is at least 25 feet deep.” Appellants’ proposal allowed for a rear yard of 15 feet to the property line abutting Trails End Road; thus, a variance of 10 feet to the rear yard setback requirements was requested.

The first two requests were for variances from the critical area program. The request for a variance from the setback requirement was a request under general zoning requirements, not a request under the critical area law. On April 28, 2004, and September 1, 2004, the Board conducted hearings on appellants’ variance requests. At the hearings, appellants presented testimony and exhibits in support of their requests for variances.

A summary of the relevant evidence follows. Mr. Becker testified that in the area surrounding Parcel 2, there are homes ranging in size from 1,700 square feet up to 9,000 square feet. He stated that there were only one or two homes in the area smaller than the home he proposed to build. On direct examination, he stated that he wanted to build a retirement home for himself and his wife, who has “chronic Lyme Disease and we wanted to have a handicap accessible home with a master bedroom on the first floor.” When examined by the Board, and asked why he and his wife would not instead try to remodel the existing house on Parcel 1 to ¹²³ suit their needs, Mr. Becker responded “[w]ell, we really don’t like the design of the house, the style of the house.

It’s not handicap accessible the way it is. And there’s too many stairs. But primarily we just don’t like the house. We’d like to build our own little dream house, if you will.” Mr. Becker also testified that in 2002, both he and Mrs. Becker cleared some “sticker bushes” on their property with hand clippers.

Appellants submitted as an exhibit a “revised” floor plan that was smaller than the plan for which they had originally applied. The revised plan included a smaller garage and reduced decks. Additionally, some covered porches were removed. Mr. Becker testified that the requested variances would not substantially impair the use and development of adjacent properties because they were already developed.

Paul Miller, accepted by the Board as an expert in land surveying, testified that without the variance allowing appellants to build within the 100-foot buffer, appellants would not be able to build a house on Parcel 2. He stated that appellants requested the minimum necessary to be able to build on Parcel 2. He stated that appellants’ plan should not have any adverse impact on water quality, and that it was not contrary to the intent of the critical area program. On cross-examination, Mr. Miller admitted that if the garage was removed and the first floor of the house was made smaller, there would be less of an impact to the critical area, and less of a variance would be required.

Thomas Brown, Jr., appellants’ home builder, testified that a parking pad could be built in lieu of a garage and, if the house was narrowed and elongated, less of a variance would be needed. Richard Sellers, an environmental engineer who prepared the critical area report for Parcel 2, testified that the proposed house was sited at the “proper point on the property,” and the granting of the variances would not be contrary to the spirit and intent of the critical area program. On August 17, 2005, the Board issued a memorandum opinion denying appellants’ requests. In pertinent part, the opinion provided as follows. ¹²⁴ Development within the Chesapeake Bay Critical Area ... has been the subject of much legislative effort and protection by the General Assembly.

Despite several court decisions that sought to lessen the power of the Critical Area Regulations, the General Assembly responded directly to these court decisions and in each case has subsequently strengthened the Critical Area Regulations. The current Critical Area variance criteria are very strict. The statute requires the Board to presume that the requested development activity does not conform to the general purpose and intent of the Critical Area Program. See, Maryland Annotated Code, Natural Resources Article, Section 8-1808(d) (2) (i).

Additionally, “unwarranted hardship” is defined as “without a variance, an applicant would be denied a reasonable and significant use of the entire parcel or lot for which the variance is requested.” Emphasis added, (emphasis added in original). To qualify for a variance to the Critical Area criteria, an applicant must meet each and every one of the variance provisions. See, id., Section 8-1808(d)(4)(ii). An applicant must also prove that if the variance were denied, the applicant would be deprived of a use or structure permitted to others in accordance with the Critical Area Program.

See, id., Section 8 — 1808(d)(4)(iii). Given these provisions of the State criteria for the grant of a variance, the burden on an applicant seeking a variance is very high. The State statute requires that local jurisdictions adopt a program to protect the Critical Area. Anne Arundel County’s local Critical Area variance program contains 12 separate criteria.

See, Code, Article 3, Board of Appeals, Section 2-107. Each of these individual criteria must he met. If the applicant fails to meet just one of these 12 criteria, the variance is required to be denied. (emphasis both added and in original).

An applicant for a variance to the Critical Area Program must meet each and every one of the variance criteria. If ¹²⁵ an application fails to meet even one of the criteria, the variance must be denied. In the instant case, we find that the [appellants] have failed to meet their burden of proof regarding several of the variance criteria.[2] 7 Thus, a variance cannot be granted in this appeal. (emphasis added).

Most significantly, the [appellants] failed to prove to this Board that the variances requested are the minimum variance necessary[3] 8 to afford relief to the applicant. See, id., Section 2-107(c)(l). The [appellants] are requesting sufficient variances to construct a home having a footprint of 1,700+ square feet____The testimony ... revealed that a 1,700 square foot house is significantly larger than the smallest house in the neighborhood. Therefore, the [appellants] proposal to construct a larger than minimal (for this neighborhood) home on this property that is consumed by sensitive environmental features.

(emphasis added). The Health Department has limited the development capability of the site to a home having no more than 2,600 square feet of living space due to the difficulties with septic capacity on this property.... Interestingly, the applicants have proposed the construction of a 2,500 square foot home. There was no explanation why 2,500 square feet of living area was necessary.

We are left wondering, why not 2,490 square feet, 2,200 square feet or 600 square feet? Additionally, why not construct a home with a footprint smaller than 1,700 square feet? If the structure had a ¹²⁶ smaller footprint, it would result in less impervious coverage on the property and less encroachment into the buffer. The [appellants] offered no probative evidence on this point.[5] 9 Since the County Code permits residential structures in the R2 district up to 35 feet or 2.5 stories tall, the [appellants] could construct a dwelling comprising 2,500 square feet over two stories with a footprint of 1,250 square feet (a decrease of more than 25%)____ The tidal waters of the Chesapeake Bay and its tributaries (and required buffer thereto) and steep slopes heavily impact this property.

With such environmentally sensitive properties, the State and County regulations require that the variance be the absolute minimum necessary to grant relief and avoid an unreasonable hardship. To obtain a variance (and, therefore, develop at all), the applicant must prove that the request is the minimum — not simply less than would be permitted on lots not impacted by the environmental factors, such as the largest house in this immediate neighborhood. The [appellants] seem to rely on several large homes in the neighborhood as evidence of the “minimal” nature of their request. We find that the existence of larger homes (in this case up to 9,000+ square feet) is not probative on this point____The evidence from the applicant was simply not satisfactory to this Board to require the conclusion that the proposal meets the minimum requirement.

As a reminder, minimum means e.g. “of, consisting of, or representing the lowest possible amount or degree permissible or attainable____” The [appellants] contend that the proposed home represents a modest request; however, the request must be the minimum necessary in order to meet the Code standard. Also, ¹²⁷ what may be a modest home on property without restrictions becomes an overwhelming proposition for this narrow, waterfront property with steep slopes and known to be inundated with water. The [appellants’] failure to adequately address this issue, results in the burden of proof not being met. We specifically reject any argument that this Board should determine the minimum variance necessary to afford relief to this or any other applicant.

It is not the burden of this Board to determine what variance would be the minimum necessary to afford relief to an applicant. The State law places this burden of proof and persuasion firmly on the shoulders of an applicant for a variance. See, Maryland Annotated Code, Natural Resources Article, Section 8-1808(d)(3). The revised State law requires the Board to presume that the requested development does not conform to the general purpose and intent of the Critical Area Program.

This presumption is a difficult burden to overcome. The [appellants] failed to present adequate testimony to convince the Board that the grant of the variance would be in harmony with the general spirit and intent of the Critical Area Program. See, [Code], Section 2 — 107(b)(5)(ii). The site plan and testimony reveal ... a house with a minimum square footage of 2,500 ... and a 22 by 22 foot garage, a parking pad, and two decks on site.

The justification for the amount of disturbance was simply that this amount would permit the [appellants] to construct the desired dwelling unit. However, this property is heavily impacted by environmental constraints that have been protected under both State and County regulations. Neither the land nor the impacting legislation require the construction of a 2,500 square foot house with two decks and a two-car garage. The [appellants] merely want these things.

The comment letter from the Critical Area Commission provided a general statement of no objection, but failed to provide any evidence that was significant to this Board. The Board finds that the variance would adversely affect ¹²⁸ water quality and adversely impact fish, wildlife or plant habitat within the Critical Area through the large amount of impact to this site. See, id., Section 2-107(b)(5)(i). Again, it is the applicant’s burden of proof to show that these points have been met.

Here, the [appellants] have simply failed to meet their burden. The [appellants] would also not be denied a right commonly enjoyed by others in the Critical Area if the variance requested were denied. See, id., Section 2 — 107(b)(2). Others do not have the right to construct a 3,000 + square foot structure and related facilities within the buffer and with related facilities within steep slopes when there is no need for such a heavy impact.

Similarly, the grant of such a large variance to permit the home the [appellants] desire would confer a special privilege on this applicant. See, id., Section 2 — 107(b)(3). The request must be minimized to avoid conferring a special privilege. We conclude that the proposed construction would substantially impair the appropriate use of development of the neighboring property.

See, id., Section 2-107(c)(2)(ii). This construction would greatly impact this property and the environment. The amount of development of this site has not been minimized. Without more evidence, we conclude that the use or development of adjoining parcels could be impaired by the grant of the variance.

Similarly, the [appellants] failed to provide adequate evidence that the granting of the requested variance would not be detrimental to the public’s welfare. See, id., Section 2-107(c)(2)(iv). As discussed in this opinion, the Board has serious concerns regarding the impacts of the requested variance on the Critical Area, adjacent properties and the public at large. The [appellants] have not sought to minimize this variance request.

The [appellants] have also failed to show that the Critical Area will not be unnecessarily impacted and that the water quality, fish, wildlife or plant habitat will not be impacted by this variance. This case is simply one of insufficient proof to show that the [appellants] have met their burden of proof. Since the [appellants] ¹²⁹ failed to convince the Board on these points, the request must be denied. To reiterate, it is the burden of an applicant to prove that they met each and every one of the variance criteria.

The failure to meet just one of those criteria requires that this Board deny the requested variance. The General Assembly has made abundantly clear, time and time again, that the Critical Area must be protected and that requests for variances have a very high standard of proof---- We shall supplement our discussion with additional facts as necessary. Contentions Appellants contend that the Board: 1) applied an incorrect and illegal standard in requiring appellants to prove that the requested variances were the “absolute minimum necessary;” 2) failed to make reasonable accommodations for Mrs. Becker’s physical disability; 3) erred in ignoring the overwhelming evidence presented by appellants in favor of the variances and interjecting its own subjective views of appellants’ proposal into its decision; 4) ignored the substantial evidence supporting each of the variance criteria rendering its decision arbitrary and capricious; and, 5) erred in “taking” appellants’ property without just compensation. The County supports appellants’ contentions except for the last one, with which it disagrees.

The County also contends the Board erred in applying the wrong law. The individual appellees, who opposed the variance applications, support the Board’s decision. ¹³⁰ Discussion 1. Applicable Law A. State Law Before we address the merits of appellants’ contentions, we shall address the County’s contention that the Board applied inapplicable law. The County asserts that the Board incorrectly applied a presumption that the requested use did not conform to the purpose and intent of the Critical Area Program because, while that presumption was added to the State law in 2004, it was not added to the Code until May 12, 2005.

Further, the County argues that the Board incorrectly stated that appellants had to satisfy each of the 12 variance criteria, as opposed to considering them as a package, pursuant to Lewis v. Dep’t of Natural Res., 377 Md. 382 , 833 A.2d 563 (2003). We disagree and shall explain. The State Critical Area Program provides that its purpose is to establish a resource protection program for the Chesapeake and Atlantic Coastal Bays and their tributaries. Maryland Code (2000 Repl.Vol. & Supps. 2002-2006), § 8-1801(b)(l) of the Natural Resources Article (“N.R.”).

The program was implemented “on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria and oversight.” N.R. § l-1801(b)(2). When the State Critical Area Program was adopted, a local jurisdiction could choose whether to adopt a local program. If it did not, the State Critical Area Commission was directed to adopt a program for that jurisdiction. In either event, the program had to comply with the criteria in N.R. § 8-1808.

See N.R. §§ 8-1809 and 8-1810. Section 8-1808(d) sets forth the requirements for granting a variance from the critical area requirements. Those requirements include a finding that a failure to grant a variance would result in unwarranted hardship to the applicant. Prior to 2002, the Court of Appeals decided Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 ¹³¹ Md. 259, 734 A.2d 227 (1999) (holding that the “unwarranted hardship” standard was less restrictive than the constitutional taking standard and meant the denial of the reasonable and significant use of the property); White v. North, 356 Md. 31 , 736 A.2d 1072 (1999) (holding that the determination of unwarranted hardship was the determinative factor in granting a variance and all other factors constituted guidance and could not be construed individually); and Mastandrea v. North, 361 Md. 107 , 760 A.2d 677 (2000) (holding that the Board did not have to consider whether denying the variance would have denied reasonable and significant use of the entire lot, but rather whether denying the variance would have denied reasonable and significant use of the buffer).

In 2002, the General Assembly amended the State law, see 2002 Laws of Maryland, chapters 431 and 432, by enacting the substance of Senate Bill 326 and House Bill 528, effective June 1, 2002. The amendments were to “be construed to apply only prospectively and may not be applied or interpreted to have any effect on or application to any variance application for which a petition for judicial review of a decision to grant or deny a variance under a local critical area program was filed before the effective date” of the Act. N.R. § 8-1808(c) sets forth the requirements for the programs adopted by local jurisdictions. Subsection (c)(xiii) provided that a program had to include provisions for granting a variance in accordance with regulations adopted by the Critical Area Commission, as set forth in COMAR 27.01.il, 10 and subsection (d).

The amendments to subsection (d) provided that, (1) in order to grant a variance, the Board had to find that the applicant had satisfied each one of the variance provisions, and (2) in order to grant a variance, the Board had to find that, without a variance, the applicant would be deprived of a use permitted to others in accordance with the provisions in the critical area program. The amendment did not change the definition of “unwarranted hardship” as defined by Belvoir Farms, White, and Mastan ¹³² drea, but it added a requirement that in considering an application for a variance, the Board should consider the reasonable use of the entire parcel or lot for which the variance is requested. The preambles to the bills expressly stated that it was the intent of the General Assembly to overrule recent decisions of the Court of Appeals, in which the Court had ruled that, (1) when determining if the denial of a variance would deny an applicant rights commonly enjoyed by others in the critical area, a board may compare it to uses or development that predated the critical area program; (2) an applicant for a variance may generally satisfy variance standards rather than satisfy all standards; and, (3) a board could grant a variance if the critical area program would deny development on a specific portion of the applicant’s property rather than considering the parcel as a whole. In 2003, the Court of Appeals decided Lewis, supra.

Lewis was decided under the law as it existed prior to the 2002 amendments, see 377 Md. at 418 , 833 A.2d 563 , and held, inter alia, that (1) with respect to variances in buffer areas, the correct standard was not whether the property owner retained reasonable and significant use of the property outside of the buffer, but whether he or she was being denied reasonable use •within the buffer, and (2) that the unwarranted hardship factor was the determinative consideration and the other factors merely provided the board with guidance. Id. at 419-23 , 833 A.2d 563 . Notwithstanding the fact that the Court of Appeals expressly stated that Lems was decided under the law as it existed prior to the 2002 amendments, in 2004 Laws of Maryland, chapter 526, the General Assembly again amended State law by enacting the substance of Senate Bill 694 and House Bill 1009. The General Assembly expressly stated that its intent in amending the law was to overrule Lewis and reestablish the understanding of unwarranted hardship that existed before being “weakened by the Court of Appeals.” In the preambles, the General Assembly recited the history of the 2002 amendments and the Lewis decision.

The amendment changed the definition of unwarranted hardship to mean that, “without a ¹³³ variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.” The amendment also created a presumption that the use for which the variance was being requested was not in conformity with the purpose and intent of the Critical Area Program. See § 8 — 1808(d)(2)(i). The amendment became effective June 1, 2004. The effective date provision simply stated that the law took effect on that date, without further comment as to its prospective or retrospective application.

B. County Code Prior to May, 2005, the County critical area law appeared in Article 28, §§ 1A-102 to 1A-112. Article 3 contained provisions applicable to the Board, including § 2-107, 11 governing variances. In the case sub judiee, the County asserts that it did not adopt the State created presumption, as outlined above, until May, 2005. 12 That is not correct. In fact, the County Council approved Bill 65-04, which was subsequently enacted on October 25, 2004.

See 2004 Laws of Anne Arundel County. The ordinance, inter alia, amended § 2-107(b) to provide: (1) unwarranted hardship is as defined in N.R. § 8-1808(d)(1), i.e., applies to the entire parcel, (2) a literal interpretation of the law will not deprive an applicant of rights commonly enjoyed by others as permitted in accordance with the provisions of the Critical Area Program within the critical area, and (3) adopted the presumption contained in N.R. § 8-1808(d)(2), i.e, the presumption that the development activity for which a