Caldes v. Elm Street Development

MURPHY, J. On March 6, 2006, the County Board of Appeals of Anne Arundel County (the Board) entered an ORDER that included the following provisions: 1. [Respondent Elm Street Development’s petition for] [a] variance to the density requirements for development within the [Resource Conservation Area] of the [Chesapeake Bay] Critical Area to permit seven lots on 28 ± acres [with a street address of 481 Epping Forest Road, near Annapolis] is hereby GRANTED; and 2. Variances to permit the construction of dwellings, a road and associated facilities with disturbance to the expanded buffer and steep slopes and to permit forest clearing as well as variances to extend the time (from 1 year to 3 years) to obtain permits, and (from 2 years to 6 years) to complete construction are hereby GRANTED, subject to the following conditions: (a) No more than seven (7) houses are permitted on the property. (b) Only one lot can be cleared at any given time. The lot must be stabilized with vegetation before any subsequent lots can be cleared. ¹²⁵ (c) No vegetation shall be disturbed beyond the expanded buffer line, unless such disturbance is necessary to remedy a septic system issue.

(d) Each lot must have a “rain garden” or similar on-site stormwater management system to provide quantity and quality control for all impervious surfaces thereon. (e) The configuration of the lots as shown on the site plan (Petitioner’s Exhibits 4 and 15) shall not be modified. (f) The homes on Lots 1 and 7 shall not exceed the current footprint. (g) The homes on Lots 2, 3, 4, and 6 must be placed at the minimum building restriction line nearest to the street.

(h) The home on Lot 5 must be placed at the minimum building restriction line nearest to Lot 4. (i) Any area disturbed to permit the construction of the access road must be stabilized with a covering of mulch or similar approved stabilization method at all times and stages of construction. (j) If any of the conditions are violated, this decision reverts to a DENIAL of all the requested variances. The Board’s Order was accompanied by a twenty-three page “MEMORANDUM OF OPINION,” a three page Concurring Opinion and a nine page “DISSENT.” Petitioner Sara Caldes, along with other “protestants” in the proceeding before the Board, sought judicial review of the Board’s Order, which was affirmed by the Circuit Court for Anne Arundel County. 1 After the judgment of the Circuit Court was affirmed by the Court of Special Appeals, 2 the Petitioners ¹²⁶ requested that this Court issue a writ of certiorari to resolve the following issues: (1) Does Anne Arundel County’s lot merger law (requiring nonconforming substandard lots to be merged so as to approximate current county density limitations) override the density limitations in State and County critical area law?

(2) Does the grandfathering provision in COMAR 27.01.02.07 B allow the subject property to be developed in accordance with the density limitations applicable prior to the adoption of the critical area law? (3) Even assuming the lot merger law supplants the density limitations in State and County critical area law, can a developer rely upon nonconforming substandard lots in an old plat when that plan was abandoned and lots were subsequently sold in complete disregard of that plat? (4) Can a developer meet the standard for obtaining a variance in the critical area, and overcome the statutory presumption against development in the critical area, by simply showing that he could hypothetically develop the property in a manner that would have a greater environmental impact? We granted their petition.

Caldes v. Elm Street, 404 Md. 658 , 948 A.2d 70 (2008). For the reasons that follow, we shall affirm the judgment of the Court of Special Appeals. Background The opinion of the Court of Special Appeals includes the following factual summary: The Elm Street property that is the subject of this litigation consists of 22.196 acres on Epping Forest Road near Annapolis. The property was originally part of a subdivision known as “Epping Forest Section B.” The plat for Epping Forest was recorded in the Anne Arundel County land records in 1926.

The 1926 plat showed that the tract was at that time subdivided into approximately 500 small lots. [Today, t]he Elm Street property ... embraces ¹²⁷ 150 of the roughly 500 lots shown on the 1926 plat. The original owners of the Epping Forest tract had been Severn Shores, Inc[.]. Seve[r]n Shores, however, defaulted on its mortgage in 1930. Except for five small lots that had been sold out of the original subdivision in 1928 and 1929, the remainder of the property was sold to six separate purchasers.

The successors to two of those 1930 purchasers were 1) James L. Smith and 2) Charles A. and Renate I. Miller. Elm Street is now the owner of what had been the Smith property and the Miller property, in all[,] approximately 30% of the original Epping Forest Section B subdivision. In the years since the 150 lots were recorded in 1926, two pertinent sets of restrictions have been imposed upon the development of the property. The first set of restrictions came in 1952 with the adoption by Anne Arundel County of its first land use regulations, including a zoning code.

The Elm Street property is now zoned Rl-Residential. In an Rl-Residential District, the minimum lot size for the building of a residence is 40,000 square feet [ (approximately one acre) ]. As a straight arithmetic calculation, the Elm Street property—the original 150 lots on the 1926 plat—can only accommodate 12 lots of sufficient size to permit the building of a residence [in the Rl-Residential District]. The second set of restrictions [imposed upon the development of the property] came with the enactment by the Maryland General Assembly in 1984 (by ch. 794 of the Acts of 1984) of the Chesapeake Bay Critical Area Protection Program.

Its provisions are now codified in Maryland Code, Natural Resources Article, §§ 8-1801 through 8-1817. Section 8-1808(a) provides: (a) Local jurisdictions to implement; grants.-—(1) It is the intent of this subtitle that each local jurisdiction shall have primary responsibility for developing and implementing a program, subject to review and approval by the Commission. ¹²⁸ With respect to the Critical Area Program, we observed in Becker v. Anne Arundel County, 174 Md.App. 114, 130 , 920 A.2d 1118 (2007): 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. § 8-1801 (b)(2).

(Emphasis supplied). See also Lewis v. Department of Natural Resources, 377 Md. 382, 391-94 , 833 A.2d 563 (2003); White v. North, 356 Md. 31, 36-38 , 736 A.2d 1072 (1999) (“Section 8-1808(a)(l) requires local governments to have primary responsibility for development of programs to regulate land use in the critical area, ‘subject to review and approval by the Commission.’ ”). By 1988, Anne Arundel County had developed its implementing program for the parts of the Chesapeake Bay Critical Area lying within its boundaries with the enactment of Anne Arundel County Code (1985, as amended), Article 28, §§ 1A-102 through 1A-112. The Elm Street property in this case lies within the Critical Area generally and, more specifically, within the “Resource Conservation Area” (“RCA”), the most restrictive of the three land use categories in the Critical Area Program.

Of particular pertinence to this case is County Code, Article 28, § l-A-103(d)(2), which provides: [T]he maximum permitted density in a resource conservation area [RCA] is not more than one dwelling unit per 20 acres. Caldes v. Elm Street Dev., No. 79, September Term, 2007, unreported opinion filed January 17, 2008, pp. 1-3. ¹²⁹ The Board’s majority opinion included the following findings and conclusions: This property comprises approximately 28 acres of land on Saltworks Creek within the R1 zone and designated as Resource Conservation Area (“RCA”) in the Critical Area. The Petitioner contends that there are 12 lawful building sites (and we agree) on the property and purposes to resubdivide (at a later time) the property into seven lots. This property is significantly impacted by steep slopes, Critical Area buffer and expanded buffer, none of which can be disturbed under the County’s Critical Area Program, Title 1A of the Zoning Regulations.

Less than four acres of the property would be disturbed under this development plan. The [Respondent] has requested a variance (BA 86-04V) to exceed the permitted maximum density (one dwelling unit/20 acres) on property within the RCA of the Critical Area (the “density variance”). The [Respondent] has also requested variances to permit the construction of dwellings, a road and associated facilities with disturbance to the expanded buffer and steep slopes and to permit forest clearing as well as a variance to extend the time (from 1 year to 3 years) to obtain permits, and (from 2 years to 6 years) to complete construction of a residential subdivision (BA 6-04V) (the “infrastructure variances”). The [Respondent’s request to reduce the number of lots on site from 12 to seven appears to follow the tongue in cheek saying, “no good deed goes unpunished”.

This proposal has met with harsh opposition from some residents and support from Critical Area Commission and the Office of Planning and Zoning. Even amongst the supporters of the project[,] there is squabbling over whether a variance to the density criteria of Article 28, § 1A-I03(d)(2), which permits only one dwelling unit for each 20 acres of RCA property, is necessary. This property contains only 23 acres, all within the RCA. Therefore, only one dwelling unit would be permitted if this property had not been previously subdivided.

This proper ¹³⁰ ty was originally part of the Epping Forest Subdivision plat. The current development of Epping Forest is a charming community, well known for its waterfront cottage ambiance as well as for steep slopes, small lots and narrow streets. This property, along with Epping Forest proper, is nonconforming by today’s standards as it was subdivided in the 1920’s—long before the adoption of the first County land use regulations in 1952. Given this nonconforming scenario, this Board has heard many variance requests for development and redevelopment in this vicinity.

While it appeals to our sense of economy to dispense with this request by simply denying (as did the Administrative Hearing Officer) the request for a density variance, we feel that the variance deserves careful consideration. The [Respondent] desires to reduce the amount of density within the RCA from that permitted by required lot consolidation here. However, the [Respondent] argues that a variance is not necessary (notwithstanding the argument to the contrary, the [Respondent] has requested one). The Critical Area Commission strongly asserts that no such variance is necessary and a variance to the Critical Area criteria should be granted only when an urgent need exists.

The Commission contends that the reduction in density does not require relief and the precedence of requiring such a variance should not be established. However, we are convinced from our review of the law that the density variance request should be acted upon and granted to permit seven dwellings on this 28 ± acre parcel within the RCA. Development within the Chesapeake Bay Critical Area, being that area within 1,000 feet of the Chesapeake Bay and its tributaries, 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 ¹³¹ 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 Resource Article, Section 8-1802(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!”] A'm phasis added.

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 be met. If the applicant fails to meet just one of these 12 criteria, the variance is required to be denied. Securing the grant of a variance to the Critical Area criteria is not an easy trick— nor should it be. The property that is the subject of these appeals is a parcel within the RCA of the Critical Area.

This property is a waterfront site and contains steep slopes (lots of them) and forest. The applicant requests variances to increase the density within the RCA to seven total lots on this parcel and to build the road and infrastructure (stormwater management and septic systems). The steep slopes, tidal waters adjacent to the property and the required buffers thereto further impact development. Only a small amount of land along the roadway is outside the steep slopes (See, [Respondent's Exhibit 5).

Any access to the “donut hole” of flatter land in the center of the site would require impact ¹³² to the steep slopes. The location of the steep slopes alone would also prevent access to the “Smith lots” without the grant of a variance. These physical characteristics and the actions of the regulations limit the development potential of the site such that variances are required to use the 12 lawful (now seven requested) lots. Without variances, we are convinced that the property could not be developed with residences on the 12 permitted lots or on the seven proposed lots, for which the density variance is requested; and, therefore, there is no question that the [Respondent] would suffer an unwarranted hardship if some variances were not granted.

See, id., Section 2-107(b)(l). We find that it is exactly the unique physical conditions of the site (topo, trees and tidal waters) that require a variance to the density criteria also. If the density variance is not granted, the [Respondent] can build 12 homes, but there will be a much high negative impact to the environment. This high negative impact would result in not only an unwarranted hardship to the applicant but to the public’s welfare, in contravention of Section 2-107(e)(2)(iv).

The [Respondent] has shown that the variances requested are the minimum variance necessary to afford relief to the applicant. See, id., Section 2-107(c)(l). In White, Belvoir Farms, et al., the Court of Appeals established that, despite a profound public interest in preserving and protecting the Chesapeake Bay, property owners would, in all cases, retain an absolute right to the ‘reasonable and significant use of their property.[’] The Court’s decisions required that administrative agencies should err on the side of property owners. The decisions further examined the concept of ‘minimum necessary’ and determined that the statutory language should be considered in the context of adhering to the ‘reasonable and significant use’ standard.

With this in mind we find it inconceivable that a development plan that provides for five fewer lots than otherwise permitted, one loop road (at the minimum permitted by County standards), one stormwater outfall and only replacement septic systems ¹³³ impacting the buffer that this is not the minimum intrusion into the Critical Area. The [Respondent]^ request for infrastructure variances would permit the development of seven lots. To ensure that the facts considered by the Board in rendering this decision are not modified, we will impose several conditions on the [Respondent]. The Board will condition the grant of these variances on the development of no more than seven homes on this property.

All impervious surfaces associated with those homes, can (and must) be located outside of the buffer and expanded buffer under this plan. This proposal is the minimum when contrasted with the “current” 12 lot development potential. The currently available development contains lots with shapes similar to gerrymandered legislative districts, accessible only by more numerous streets that would impact more steep slopes, more forest and more land within the RCA. We fail to see how more impacts to the sensitive features of this site would be better.

The one loop road with reconfigured lots with homesites in the so-called “donut hole” of the road out of the waterfront area and several waterfront lots of sufficient size to permit the residences on the flatter portions of the site and outside of the protected buffer areas is the best development plan for this property in our humble, factual analysis. We feel obligated, however, to impose several conditions to ensure that the development plan represents the minimum variances necessary. If any of our imposed conditions are violated or sought to be varied in the future, we would revoke this approval. It is with that warning that we grant these variances and impose conditions.

The [Respondent] appears honest and forthright and we do not mean to disparage the applicant in any way. However, to ensure that the Protestants and other area residents are not unpleasantly surprised in the future (and they certainly seem concerned that they and we will be the victims of a bait and switch scheme), we will condition the grant of the requested variances on the exact compliance ¹³⁴ with the site plan as submitted. No changes to the lot layout or infrastructure routes are permitted. If the [Respondent] cries foul at such a condition, we find that the [Respondent] should have been fully prepared to present its plan at the time of the hearing.

If it now finds that its plans were inaccurate, the [Respondent] must live with any mistakes. The Board has based its factual determinations faithfully on these plans. With no permitted revisions to the lot layout and infrastructure location, the Board can rely fully on the evidence presented and no unintended (by this Board) result will occur. These variance requests are not the result of actions by the [Respondent] nor do they arise from conditions relating to land use on neighboring properties.

See, id., Section 2-107(b)(4)(i) and (ii). The variance requests are directly related to the topographic and site conditions of this property. But for its location adjacent to the water and the steep slopes on site, this property owner would not need to seek the variances. It is rare, in this Board’s experience, that a [Respondent] comes before this body to argue for a self-imposed limitation to its existing property rights.

It is rarer still that the [Respondent] seem to have arrived at this position through largely altruistic reflection. As the instant case consolidates BA 6-04V and BA 86-04V, the Board has held this case open for nearly 16 months during the evidentiary phase in order to allow both the Protestants and the [Respondent] sufficient opportunity to present their cases in main. From this voluminous evidence and during the extensive oral testimony, one undeniable impression emerged; to wit, the [Respondent] has consistently elected the least intrusive, most conservative development option available. Not only does the [Respondent’s plan substantially reduce the number of lots to be developed (from 12 legal lots to seven proposed building sites) but it thoughtfully situates the development away from the most sensitive and fragile areas.

Additionally, the [Respondent] has presented a series of ¹³⁵ commonsense