Bennett v. Zelinsky

SHARER, J. In this appeal from the Circuit Court for Anne Arundel County, we are asked to review a decision of the City of Annapolis Board of Appeals (“the Board”) relating to the definition of “front lot line.” In sound bite form, the history of this litigation is: Appellant, John C. Bennett, made application for a building permit; the permit was approved by the City Planning Director; the Board overruled the Planning Director; the circuit court reversed the Board; Kara Zelinsky, 1 the current appellee, ²⁹⁴ appealed to this Court, which reversed (on grounds not involving the merits) and remanded; the circuit court, on the same evidence, affirmed the Board; and appellant has noted this appeal. FACTUAL and PROCEDURAL HISTORY Appellant is the owner of the property located at 5 Silopanna 2 Road in Annapolis, Maryland (“the Bennett Property”). Appellant’s property is characterized as a “flag lot,” defined by the Board of Appeals as a lot with a narrow width (the flag pole), bordering a street, which widens at the rear (the flag). The “flag” portion of the lot is then behind another lot, the full width of which borders on the same street.

The “pole” portion of the lot, because of side yard requirements, cannot be built upon. The portion of the Bennett Property that can be built upon (the “flag”) is located behind 7 Silopanna Road, the lot owned by appellee (“the Zelinsky Property”). The dispute originated in May 2002, when Bennett applied for a building permit to demolish a one-story structure on the “flag” portion of his property and to build in its place, on the same “footprint,” a two story house. 3 Zelinsky opposed the issuance of the permit, because a new house on the same footprint would be uncomfortably close to her house. The issue faced by the Director of Zoning and Planning was determination of the “front lot line” to accommodate the building setback requirements. 4 ²⁹⁵ On September 3, 2002, Jon Arason, Planning Director of the Department of Planning and Zoning, recommended to the Board that the permit be granted.

It was his interpretation of the zoning code that the front lot line of the Bennett Property consisted of that portion of the property that actually abuts Silopanna Road at the bottom end of the “pole.” 5 In his report to the Board, the Director stated: Flag lots, that is lots that have a narrow width accessing a street that widens at the rear, can be problematic when they develop since they are always behind another lot, meaning that the front of the house on a flag lot abuts and faces the rear of the house on the lot in front. Subject property is especially problematic to [Zelinsky] because the six foot side yard places the house to be constructed very close to [Zelinsky’s] back yard. In reviewing the plans for 5 Silopanna, staff took into consideration the location of the existing structure which was being expanded, but to a greater extent the precedent that has been established in determining yards on flag and other oddly shaped lots. On the basis of the Director’s recommendation, the permit was approved.

Zelinsky appealed the Director’s decision with respect to, inter alia, the determination of the front lot line. On September 3, 2002, a hearing was held before the Board of Appeals. The Director again explained the reasoning behind his initial recommendation: Now, the basis of my determination about the yards, if you look at the City Code, they define a front lot line, Section 21.04.405 as a boundary of a lot that’s along an existing or dedicated public street. That’s pretty easy to determine here along the street. 21.04.410 defines a rear lot line as the boundary of a lot that is more distant from or most nearly parallel to the front lot line.

And I think that that’s very obvious on this particular lot as well, what is the rear. ²⁹⁶ And then in a — one of the few instances of plain language in our entire Code, it defines a side lot line as any boundary that’s not a front or rear lot line. And that was really the basis of my determination what cbnstitutes the lot— The Board of Appeals issued an opinion on November 7, 2002, reversing the decision of the Director. 6 Bennett sought judicial review in the Circuit Court for Anne Arundel County on November 22, 2002, raising several issues in addition to the determination of the lot lines. 7 Following argument on the record, the circuit court issued its opinion on May 20, 2003. Addressing each of the issues raised by Bennett, the circuit court reversed the Board’s ruling on the front lot line question; ruled that Zelinsky’s failure to attend the hearing was fatal to her opposition; and found the final issue to be moot. Specifically, on the issue of flag lots, the circuit court held that the Board’s determination of the front lot line, absent any differentiation in the Code with regard to flag lots and other traditional lots, was arbitrary and capricious.

On the question of Zelinsky’s failure to appear, the circuit court found that, while Zelinsky attempted to create an agency relationship between herself and her then-husband, Keith Zelinsky, the Code did not provide for that type of representation at an administrative hearing. Thus, the court remanded the matter with directions to dismiss Zelinsky’s appeal. Finally, the court declined to reach the third issue involving transcripts, on mootness grounds. Zelinsky appealed to this Court, and in an unreported opinion, we remanded the case to the circuit court.

We found that Zelinsky, as a party to the administrative proceeding, was ²⁹⁷ denied due process because she had not been provided notice of the hearing. Because we reversed on procedural grounds, we did not address the merits. 8 On remand, with all parties and counsel present, the circuit court conducted another hearing on the administrative record. Following that hearing, the circuit court affirmed the Board’s reversal of the Director’s decision. Bennett noted this timely appeal, raising for our review two questions, which, as rephrased, are: 9 I. Did the Board of Appeals err in reversing the decision of the Director of Planning and Zoning?

II

Did the Board of Appeals and circuit court apply the correct standard of review to the decision of the Director of Planning and Zoning? Because we answer question I in the affirmative, we need not reach question II. 10 We shall reverse the decision of the circuit court and the Board of Appeals. DISCUSSION I. Did the Board of Appeals err in reversing the decision of the Director of Planning and Zoning? Contentions of the Parties Appellant argues that the clear and unambiguous definition of “front lot line” in the Annapolis City Code compels the ²⁹⁸ conclusion that the Planning Director’s interpretation was correct, and that the Board of Appeals and the circuit court erred.

In overruling the Planning Director, according to appellant, the Board “created a new definition for front lot lines on flag lots, when no such definition exists in the code.” Appellee takes the position that the Board of Appeals is vested with the authority to administer the Code, pointing specifically to Section 21.90.030(B) of the code, which provides that the Board may “affirm or reverse ... or may modify the order ... decision or determination or the board may issue a new ... decision ... To that end, the Board has all the powers of the officer from whom the appeal is taken.” (Emphasis in original.) The public policy underlying Maryland’s zoning law includes the promotion of “the health, safety, and general welfare of the public, and the Act vests in the counties [and municipalities] the full measure of power which the State could exercise in pursuit of this objective.” Mayor & Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 531 , 814 A.2d 469 (2002) (quoting In re Harbor Island Marina, Inc. v. Bd. of County Comm’rs of Calvert County, 286 Md. 303, 312-13 , 407 A.2d 738 (1979) (internal citation omitted)). The motives and reasoning of the legislative body, in the adoption of an original or comprehensive zoning, are entitled to a strong presumption of correctness and validity. Id. at 535-36, 814 A.2d 469 .

A reviewing court cannot substitute its judgment for that of the zoning agency and must affirm “any decision which is supported by substantial evidence and therefore fairly debatable.” Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. at 607, 639, 701 A.2d 879 (1997). In Prince George’s County v. Meininger [Meininger], 264 Md. 148, 152 , 285 A.2d 649, 651 (1972), it was explained that “substantial evidence” means a little more than a “scintilla of evidence,” and in Eger v. Stone, 253 Md. 533, 542 , 253 A.2d 372, 377 (1969), the “fairly debatable” standard was defined as follows: ²⁹⁹ We have made it quite clear that if the issue before the administrative body is “fairly debatable,” that is, that its determination involved testimony from which a reasonable man could come to different conclusions, the courts will not substitute their judgment for that of the administrative body.... Courts in Maryland tend to defer to zoning agencies because of their presumed “expertise,” and because it is thought best to allow the agency, rather than the reviewing court, to exercise the “discretion” to grant or deny an application. Richmarr, supra, 117 Md.App. at 639-40 , 701 A.2d 879 .

Upon reviewing an agency’s conclusions of law, our review is expansive, and we owe no deference. Harford County People’s Counsel v. Bel Air Realty, 148 Md.App. 244, 259 , 811 A.2d 828 (2002) (citing Harford County, Maryland v. McDonough, 74 Md.App. 119, 122 , 536 A.2d 724 (1988) quoting Gray v. Anne Arundel County, 73 Md.App. 301, 309 , 533 A.2d 1325 (1987)). Nonetheless, “the administrator’s expertise should be taken into consideration and its decision should be afforded appropriate deference in our analysis of whether it was ‘premised upon an erroneous conclusion of law.’ ” Id. at 259-60, 811 A.2d 828 (citations omitted). In its interpretation of the relevant provisions of the Annapolis City Code, the Board stated: The unusual shape of this lot, and all flag lots, makes application of these definitions[ 11 ] difficult.

The Director ³⁰⁰ took a very narrow approach to defining the front lot line as only the very narrow piece of property abutting the street at the end of the narrow access. However, taking into consideration the unique nature of flag lots and the definitions of lot lines and yards, the Board finds that for this Property, the front lot line is the property line that starts at the end of the narrow access and which runs parallel with Silopanna Road. First, a legal lot in the R2 district must be 50 feet wide. The narrow access is only 10 feet wide.

Nothing could be legally built on that portion of the lot save for a driveway, as it is clear that the sole reason for that strip is for access to the main part of the lot. Therefore, the front lot line of a flag lot must be the lot line which creates a legally conforming lot and which runs along, or parallel to, the public street. Second, if the narrow definition of the front lot fine is used, it is impossible to place the rest of the lines and the yards. Are all the other lot lines, including the sides of the narrow access, the two portions that run parallel to Silopanna, and the other lines which are not the rear line all the side lot lines?

Similarly for the yards, the side yard extends from the front yard to the rear yard. If this small access way is the front line and therefore creates the front yard, where does the side yard begin? On the contrary, if the front lot line is established as determined here, the yards can easily be established. Third, the purpose of the setbacks is to keep buildings at a distance to each other and to maintain orderly development.

Rear setbacks in the R2 zone require 30 feet, so that if two ³⁰¹ properties abut in the rear, they would have 60 feet between the main structures. The Director’s interpretation of the front lot line for this Property would permit a building on a flag lot to be as little as 6 feet off a rear or side lot line of an adjacent parcel because the portion of the flag lot that is not the tiny front access or the rear would have to be a side yard with a six foot setback. This clearly is contrary to the purpose of the Code. (Emphasis added.) In Harford County People’s Counsel v. Bel Air Realty, supra, Judge Thieme, facing an issue of