Chesley v. City of Annapolis

⁴¹⁸ ADKINS, J. William and Robin Chesley, appellants, challenge the denial of a front yard setback variance that would enable them to build a one car garage within three feet of the street along their Chesapeake Bay waterfront property in Annapolis. They present two questions for our review: I. Did the Board of Appeals err in denying the Chesleys’ zoning variance because the Board’s conclusions are not supported by substantial evidence and because the Board failed to apply the law correctly?

II

When the City appears as a party at a public hearing before the Board of Appeals through officials who work for the City’s Planning Department, and when those City officials testify in favor of a variance application, is it improper for the City in a subsequent petition for judicial review of the Board’s decision to oppose the variance by taking positions contrary to the positions City officials took before the Board? Finding no error, substantial evidence in the administrative record to support the Board’s denial of this variance, and no impropriety in the City’s advocacy, we shall affirm the judgment. City Regulations The Annapolis City Code sets minimum setbacks of six feet for side yards and 30 feet for front yards for accessory structures in an R2 zone, such as the Chesleys’ proposed garage. See Annapolis City Code § 21.18.040(C)(hereafter cited as “Code”).

The Chesley property is subject to other building restrictions, however, due to its location at 15 Eastern Avenue in the Eastport section of Annapolis, on the Chesapeake Bay. First, the approximately one-third acre lot is in the Chesapeake Bay Critical Area, and therefore all buildings on this lot must be set back at least 44 feet from the shoreline. Impervious surfaces may not cover more than fifty percent of the lot. As a result, the residence, driveway, and accessory structures ⁴¹⁹ may not occupy more than approximately 7,870 square feet of the Chesley property.

Second, the Chesley property lies in a Residential Conservation Overlay District, which requires formal Site Design Plan Review by the City’s Department of Planning and Zoning prior to issuance of all building permits for any construction that impacts the street facade. See Code § 29.69.030. The purpose of this regulation is to preserve patterns of design and development in residential neighborhoods characterized by a diversity of styles and to ensure the preservation of a diversity of land uses, together with the protection of buildings, structures or areas the destruction or alteration of which would disrupt the existing scale and architectural character of the neighborhood. The general purpose includes .... [c]ompatibility of new construction ... with the existing scale and character of surrounding properties[.] Code § 21.69.010.

The RC overlay standards encourage traditional urban design, inter alia, by permitting reduced building setbacks to the extent that the proposed new construction maintains building patterns of the neighborhood. See City of Annapolis Dep’t of Planning and Zoning, The Eastport Residential Conservation Overlay District: A Guide to the Process and Design Guidelines 2. The third and final factor affecting use of the property is that the Chesley lot lies within the Eastport Residential Conservation Overlay District. See id.

Eastport originated in the late 19th century, and remained an independent town until the City of Annapolis (the City) annexed it in 1951. See id. at 8. The neighborhood is located within walking distance to downtown Annapolis and the City Dock, on the Horn Point peninsula, between Spa Creek and Back Creek, where the Severn River enters the Chesapeake Bay. See id.

Eastport homes reflect that community’s working-class and maritime roots, characterized architecturally by “social and physical diversity, together with its small, intimate scale” and an ambiance described as “[d]elicate, unique, special, charming, ⁴²⁰ historic, quiet, [and] personal[.]” See id. To preserve that character, “all new construction, including ... accessory structures which may be visible from the street [must] be reviewed for compliance with the guidelines in Section 21.98.050.D[.]” Id. With respect to building setbacks from the street, these must “observe the established setbacks for the block on which [the construction] is proposed, or the setback requirement of the underlying zone, whichever is less[J” Id. at 4. The Annapolis City Code permits the Board to grant a variance from applicable setback requirements, see Code § 21.28.040.A, upon finding that the following conditions have been satisfied: 1.

Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to the owner would result as distinguished from a mere inconvenience if the strict letter of the regulations were to be carried out; 2. The conditions upon which a petition for a variation is based are unique to the property for which the variance is sought, and are not applicable, generally, to other property within the same zoning classification; 3. The purpose of the variance is not based exclusively upon a desire to increase financial gain; 4. The alleged difficulty or hardship is caused by this title and has not been created by any persons presently having an interest in the property; 5.

The granting of the variation will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located; 6. The proposed variation will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety, or substantially diminish or impair property values with [sic] the neighborhood. ⁴²¹ Former Code § 21.80.030(A)(1996)(emphasis added). See also Code § 21.28.050 (2005)(current variance standards and conditions are substantially the same). The Chesleys’ Development Proposals Immediately after purchasing the property in 2000, the Chesleys consulted with the City’s Department of Planning and Zoning regarding their wish to replace the existing residence with new construction, including a house with attached two car garage and a pool.

As a result of negotiations over 18 months, during which the Department of Planning and Zoning (the Department) pressed for a public view corridor along the southern boundary of the property and design changes to make the new home “more Eastport-like,” the Chesleys amended their plans to propose a detached two car garage. 1 The Department noted that this would require side and front yard setback variances, but told the Chesleys that the Department would “support” the request. See Code § 21.28.020.B (planning staff reviews variance applications and makes reports and recommendations to the Board). In support of their garage variance, the Chesleys advised that when Mr. Chesley’s wheelchair-bound adult son Billy visits, he uses a special van with a metal lift and ramp that becomes slippery in rain, snow, or ice. In addition, waterfront lot owners along Eastern Avenue treat their front yards as their rear yards for purposes of garages.

The Chesleys contend that “[n]o waterfront property along Eastern Avenue has its water view blocked by a detached garage built between the home and the water.” Moreover, the lots on each side of the Chesleys have detached garages within a few feet of the street. ⁴²² The City approved plans for a new 5,000 sq. ft. residence, but concluded that further review of the pool and garage proposals was necessary. In addition to those exclusions, the City’s approval was subject to specific conditions. One condition was that the Chesleys enter into a “View Cone Covenant and Agreement” 2 with two neighbors across the street, in order to preserve a public view to the Chesapeake Bay. They did so.

These two agreements prohibit development of an 18-20 foot wide strip along the westerly side of the lot. According to Mr. Chesley, his is the only lot that the City has required a recorded view cone agreement as a condition of approval. The Chesleys proceeded to build their house as approved by the City, ie., without a garage. During construction, they petitioned for approval of a variance that would allow them to build a one story, two car, detached garage, within three feet of Eastern Avenue, in the location suggested by planning authorities.

As promised, the Planning Department submitted a staff report supporting this request. After a public hearing, at which neighbors opposed the Chesleys’ proposal, the Board unanimously denied the application on July 17, 2002. The Chesleys completed construction of both the house and the pool, then occupied their home for the next 18 months, during which time they had a daughter. 3 In 2005, the Chesleys filed a second application for a variance, this time to build a scaled-back one story, one car garage in the same location, also requiring a variance to allow a three foot setback, but no side setback variance. The garage would be custom-designed to accommodate the van used to transport Billy.

The Department again supported the variance application. ⁴²³ At a June 7, 2005 hearing, counsel for the Chesleys proffered the testimonies and qualifications of an architect and a land planner, as well as Mr. Chesley’s testimony. 4 Two neighbors then testified for, and two against, the proposal. On June 29, after public deliberation, the Board issued a written 2-1 decision denying the variance. A majority of the Board quorum 5 concluded that the Chesleys failed to satisfy the six required conditions for a setback variance. Specifically, the Board found that no hardship exists, that the claimed hardship was self-created, and that the proposed garage would have a negative impact on the neighborhood.

The Chesleys petitioned for judicial review in the Circuit Court for Anne Arundel County. The City Attorney, acting as counsel for the Board, gave notice of the Board’s intent to participate. Later, outside counsel appeared on behalf of the City. The circuit court affirmed the Board’s decision, and the Chesleys filed this timely appeal.

DISCUSSION I. Setback Variances A variance authorizes the property owner “ ‘to use his property in a manner forbidden’ ” by applicable zoning restrictions. See Cromwell v. Ward, 102 Md.App. 691, 700 , 651 A.2d 424 (1995) (citation omitted). In contrast to special exceptions, which “ ‘contemplate[] a permitted use ... [once] the prescribed conditions therefor are met[,]’ ” a variance ⁴²⁴ ‘“contemplates a departure from the terms of the [zoning] ordinance in order to preclude confiscation of the property[.]’ ” Id. at 699-700 , 651 A.2d 424 (citation omitted). Although “the purpose of a variance is to protect the landowner’s rights from the unconstitutional application of zoning law[,]” variances are frequently permitted in circumstances when application of the setback requirement would not constitute a “taking.” See Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259, 281 , 734 A.2d 227 (1999).

There are different types of variances, including the “ordinary” front yard setback variance at issue here and the variances from the setbacks established by statute for critical areas in an effort to regulate development of waterfront properties. Not surprisingly then, “there are different criteria that must be met for ‘ordinary’ or ‘general’ zoning variances and critical area variances.” Becker v. Anne Arundel County, 174 Md.App. 114, 139 , 920 A.2d 1118 (2007). The criteria for a yard setback variance are established by the City, as set forth above. The Board’s Findings During deliberations, the two Board members in the majority articulated what amounts to a “caveat builder” perspective concerning the Chesleys’ predicament.

In their view, because the Chesleys knew that they would need a front yard setback variance to build a detached garage in the location recommended by planning authorities, they should have either (a) waited to construct their home and pool until they obtained a variance for the garage, or (b) “redesigned [the house] in a way that they wouldn’t have this problem.” Referring to how the footprint of the house sits on the lot, the other Board member in the majority observed that the Chesleys could have addressed concerns about the 30 foot setback by “modif[ying] the size of the home to allow for a detached garage next to it from the opposite [side] from the view cone and they could have changed the configuration in the house.” In its written opinion, the Board concluded that the Chesleys did not satisfy the threshold requirement in the Code that there be a hardship resulting from “the particular physical ⁴²⁵ surroundings, shape or topographical conditions.” Concern regarding the large size of the house in relation to the lot is evident in the Board’s findings: Through Site Design Plan Review, the applicant established a view cone covenant along the southwestern end of the property in order to preserve the views, from the public right of way, out to the Chesapeake Bay. The Board finds as it did once before that despite the view cone restriction, there was adequate room on the property to construct a reasonable size residence with a detached or an attached garage without the need for the requested variance. The applicant chose to construct a larger home, and then request a variance rather than plan for a home when it had the space and ability to construct the garage within existing restrictions. Accordingly, the Board again finds that no hardship exists.

(Emphasis added.) With respect to the second requirement that “[t]he conditions upon which a petition for a variation is based are unique to the property[,]” the Board found “that the typical constraints of waterfront development within the critical area and the view cone covenant do not in and of themselves necessitate the requested variance.” With respect to the fourth condition that “[t]he alleged difficulty or hardship is caused by this title and has not been created by” the Chesleys, the Board ruled: Although a view cone covenant was supported by Planning and Zoning prior to the site design approval for the new residence, the applicant consented to the covenant as part of the overall redevelopment of the property and could have planned for the redevelopment with a garage and the view-cone. The Board finds that the claimed hardship has been created by the applicant. Finally, with respect to the fifth and sixth requirements that the variance “will not,” inter alia, be “injurious to other property ... in the neighborhood[,]” or “substantially diminish or impair property values with[in] the neighborhood,” the Board concluded: ⁴²⁶ Testimony was presented at the hearing about the location of the garage on that side of Eastern Avenue. Concerns were raised about the negative impact on the streetscape.

The Board finds that adding a garage at this location will contribute to the walling off of that side of Eastern Avenue with structures and create a visually unattractive streetscape. The Board finds that this would substantially diminish or impair property values in the neighborhood. (Emphasis added.) The circuit court ruled that the Chesleys cannot challenge the Board’s 2005 findings that the Chesleys did not suffer hardship and that any hardship they claim to have suffered was self-created, because they did not challenge the Board’s 2002 finding on the same questions by seeking judicial review of that decision. 6 The Chesley Challenges The Chesleys contend that “[t]he Board premised its negative findings on a misunderstanding of Maryland law applicable to the variance concepts of ‘hardship’ and ‘self-created hardship.’ ” With respect to neighborhood impact, the Chesleys assert that the Board’s negative findings are arbitrary and capricious because they are not based on any empirical data or other competent evidence that refute the undisputed evidence provided by the Chesleys’ expert witnesses and the City’s professional planners. The City contends that the Board’s decision is legally correct and supported by the record. 7 ⁴²⁷ Satisfying Conditions For Variance “The burden of showing facts to justify ... [a] variance rests upon the applicant[.]” Easter v. Mayor of Baltimore, ⁴²⁸ 195 Md. 395, 400 , 73 A.2d 491 (1950).

In cases involving critical area variances, it has been made clear by statute that applicants “have the burden of meeting all of the requirements” enumerated in the law governing such variances. See Md.Code (1973, 2000 Repl.Vol., 2006 Cum.Supp.), § 8-1808(d)(4)(ii) of the Natural Resources Article (NR)(to obtain a critical area variance, applicant must satisfy each one of the statutory conditions); Becker, 174 Md.App. at 130-32 , 920 A.2d 1118 (reviewing legislative history of criteria for critical area variances, including recent change requiring satisfaction of all statutory conditions). Whether the applicant must satisfy all of the City’s enumerated conditions for an “ordinary” front yard setback variance is less clear. In a line of critical area variance cases that prompted legislative action, the Court of Appeals held that the “determinative factor” in granting a variance was whether there is hardship, so that all other conditions for the grant of such a variance were construed as merely providing guidance and could not be individually cited as grounds to deny the variance.

In White v. North, 356 Md. 31, 50 , 736 A.2d 1072 (1999), the Court explained, using language that is arguably broad enough to encompass all types of variances, that the dispositive question is whether denial of the requested variance will create hardship: The variance provisions of the ordinance at issue include, as do most such ordinances, a list of other factors that must be considered with respect to the grant or denial of a variance. They are described as (1) a deprivation of rights commonly enjoyed by others; (2) that no special privilege will be conferred on an applicant; (3) that the need for relief not be caused by an applicant’s own acts; (4) the need for a variance does not arise from conditions on adjacent property; (5) a variance will not adversely affect water quality, fish, wildlife, or plant habitat; (6) a variance will be in harmony with the general spirit of the particular zoning regulation; (7) that the variance is the minimal necessary to afford relief; (8) the variance will not alter the essential character of a neighborhood; (9) the variance will not ⁴²⁹ impair an appropriate use of adjacent property; (10) the variance will not counter acceptable clearing and replanting requirements; and (11) the variance will not be detrimental to the public welfare. If total compliance with every specific requirement were necessary, relief would be nearly impossible and serious “taking” questions might arise. It is our view that these specifically stated requirements are to be considered in the context of the entire variance ordinance, to the end that, when interpreted as a whole, either they are or are not generally met.

Moreover, the essential determination is whether an unwarranted hardship exists. The specific factors that must be considered cannot be construed individually to overrule a finding of unwarranted hardship any more than they could overrule a finding of an unconstitutional taking of one’s property. The individual provisions that must be considered are part of the entire matrix that defines what information is necessary to reach a finding as to the existence or nonexistence of an unwarranted hardship. White, 356 Md. at 50-51 , 736 A.2d 1072 .

See also Lewis v. Dep’t of Natural Resources, 377 Md. 382, 413 , 833 A.2d 563 (2003)(“We have recently held, in White, that these criteria must be applied in total and generally, and that no individual factor is to be determinative”). In response to White , the 2002 General Assembly amended the critical area law to explicitly require compliance with all the variance conditions set by statute. See 2002 Md. Laws, ch. 431, 432; Becker, 174 Md.App. at 131-33 , 920 A.2d 1118 . There is no analogous certainty in cases involving other types of variances.

Unlike the revised critical area statute, the City’s zoning code does not specifically address whether all the enumerated variance conditions must be satisfied. Nor have we been cited to a case affirming the denial of a variance for a single reason unrelated to hardship. Cf. Stansbury v. Jones, 372 Md. 172, 204 , 812 A.2d 312 (2002)(declining to decide “whether self-created hardship alone is sufficient to deny an area variance[,]” while noting that Court of Appeals has ⁴³⁰ “assumed, without any extensive investigation of the matter, that it was sufficient”).

Here, the City did not argue to either the Board or this Court that the denial of the Chesleys’ variance application should be affirmed on the basis of non-hardship factors. Nor did the Board rest its decision solely on a negative finding regarding a single factor. For that reason, we shall address whether the Board erred in determining both that the Chesleys failed to establish a hardship that was not self-created and that the proposed garage would have a negative impact on the neighborhood. Appellate Review Of The Board’s Decision The standard governing appellate review of variance decisions is “the same whether the agency grants or denies” the application.

See Stansbury, 372 Md. at 185 , 812 A.2d 312 . “Our role in reviewing whether the Board, as an administrative agency, correctly reached the conclusions required by the Zoning Ordinance for ... a variance ... ‘is precisely the same as that of the circuit court.’ This means we must review the administrative decision itself.” Mastandrea v. North, 361 Md. 107, 133 , 760 A.2d 677 (2000) (citation omitted). Thus, we repeat the task performed by the circuit court. See Red Roof Inns, Inc. v. People’s Counsel for Baltimore County, 96 Md.App. 219, 224 , 624 A.2d 1281 (1993). Because we review the Board decision, rather than the circuit court decision, our focus is on the reasons given by the Board.

See Gigeous v. Eastern Corr. Inst., 363 Md. 481, 495-96 , 769 A.2d 912 (2001). Consequently, this Court may consider any ground cited by the Board for its decision, even if the circuit court did not reach that issue in affirming the Board. See, e.g., Md.-Nat’l Capital Park and Planning Comm’n v. Friendship Heights, 57 Md.App. 69, 83 , 468 A.2d 1353 (reviewing issue of whether there was substantial evidence to support zoning agency’s decision, after ruling that circuit court erred in deciding that it lacked jurisdiction to entertain the action for judicial review), cert. denied, 300 Md. ⁴³¹ 89, 475 A.2d 1200 (1984); Wheaton Moose Lodge No. 1775 v. Montgomery County, 41 Md.App. 401, 417-18 , 397 A.2d 250 (1979)(fact that circuit court affirmed zoning board’s denial of rezoning petition on only one of multiple issues decided by the Board did not preclude Court of Special Appeals from reviewing the sufficiency of the evidence in the administrative record for the Board’s findings on other issues).

On a legal issue, “a reviewing court is under no constraints in reversing an administrative decision which is premised solely upon an erroneous conclusion of law.” People’s Counsel for Baltimore County v. Md. Marine Mfg. Co., 316 Md. 491, 497 , 560 A.2d 32 (1989). The zoning ordinance central to this appeal is former section 21.80.030 of the Annapolis City zoning ordinance, now recodified without change material to this appeal at Code § 21.28.050. We give considerable weight to the Board’s interpretation and application of this ordinance, because of that administrative agency’s expertise in administering it.

See Marzullo v. Kahl, 366 Md. 158, 172 , 783 A.2d 169 (2001). For factual findings, “the correct test ... is whether the issue before the administrative body is ‘fairly debatable,’ that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions.” White, 356 Md. at 44 , 736 A.2d 1072 (citation omitted). If we find evidence to support the Board’s finding, we may not substitute our judgment, even if the evidence also supports different factual inferences. See Mastandrea, 361 Md. at 134 , 760 A.2d 677 .

However, when “an administrative agency’s conclusions are not supported by competent and substantial evidence, or where the agency draws impermissible or unreasonable inferences and conclusions from undisputed evidence, such decisions are due no deference.” Lewis, 377 Md. at 407 , 833 A.2d 563 . “Whether reasoning minds could reasonably reach a conclusion from facts in the record is the essential test.” Stansbnury, 372 Md. at 182 , 812 A.2d 312 . ⁴³² Hardship The Chesleys argue that the Board erred in concluding that their need for the setback variance did not result from a hardship within the meaning of established case law. We disagree. In Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259 , 734 A.2d 227 (1999), the Court of Appeals recognized that the purpose of zoning restrictions is “to prevent exceptions as far as possible,” so that the specific need for the variance “must be substantial and urgent and not merely for the convenience of the applicant[.]” Id. at 276 , 734 A.2d 227 (citing Carney v. City of Baltimore, 201 Md. 130, 137 , 93 A.2d 74 (1952)). The Belvoir Farms Court held that a variance is warranted if the “ ‘applicable zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership.’ ” Id. at 276 , 734 A.2d 227 (quoting Marino v. Mayor of Baltimore, 215 Md. 206, 217 , 137 A.2d 198 (1957)).

Alternatively, if application of the zoning ordinance would deny the property owner “a reasonable and significant use for the property,” there is also “unwarranted hardship” justifying a variance. See id. at 282 , 734 A.2d 227 . This hardship standard is “less restrictive than the unconstitutional taking standard.” See id. “Whether a property owner has been denied a reasonable and significant use of the property is a question of fact best addressed by the expertise of the Board of Appeals, not the courts.” Id. In White v. North, 356 Md. 31, 49 , 736 A.2d 1072 (1999), the Court of Appeals confirmed that “an unwarranted hardship can result from the denial of a reasonable and significant use,” and that the local zoning agency is presumed to possess the “necessary expertise to decide what is reasonable and significant.” In that case, the Court reversed judicial decisions that the local zoning board acted arbitrarily and capriciously in granting a buffer variance to construct a concrete swimming pool on a sloped lot.

See id. at 52 , 736 A.2d 1072 . The White Court emphasized that determination of whether the proposed ⁴³³ pool was a reasonable and significant use, and whether denial of a variance was an unwarranted hardship, are factual findings on which courts must give deference to the Board. See id. at 50 , 736 A.2d 1072 . The Chesleys rely on Mastandrea v. North for the proposition that their circumstances constitute a hardship.

In that case, the Court of Appeals affirmed the local board’s grant of a critical area variance to build a brick path along the waterfront of the Mastandreas’ Talbot County home, for the purpose of enabling their wheelchair-bound child to enjoy that portion of the property. See Mastandrea, 361 Md. at 143 , 760 A.2d 677 . The Court held that the Talbot County Board of Zoning Appeals “was required to (and did) consider whether the property owners, in light of their daughter’s disability, would be denied a reasonable and significant use of the waterfront of their property without the access that the path provided.” Id. at 136 , 760 A.2d 677 . After examining the administrative record, the Court concluded that there was substantial evidence “establishing that, without the path, a person in a wheelchair could not enjoy the waterfront portion of the property.” Id.

In these circumstances, the board correctly granted the variance. See id. at 143 , 760 A.2d 677 . The Chesleys argue that, like the Mastandreas, they are being denied a reasonable and significant use of their property, both to accommodate Billy’s disability and to enhance pickup and drop off for the Chesleys’ elderly mothers and young daughter. Mastandrea , however, has been largely abrogated by statutes, enacted in 2002 and 2004.

See Becker v. Anne Arundel County, 174 Md.App. 114, 131-33 , 920 A.2d 1118 (2007)(reviewing the legislative enactments). The General Assembly amended the critical area law for the explicit purpose of eliminating the “reasonable use within the buffer standard” used in Mastandrea and Lewis v. Dep’t of Natural Resources, 377 Md. 382, 419 , 833 A.2d 563 (2003). 8 As explained in Becker , the 2002 amendment ⁴³⁴ 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 .... 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. Becker, 174 Md.App. at 132 , 920 A.2d 1118 (emphasis in original).

Judge James Eyler, 'writing for this Court in Becker , explained the 2004 amendment to the critical area law: 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.” ... The amendment also created a presumption that the use for which the variance was being requested