Chester Haven Beach Partnership v. Board of Appeals

CATHELL, Judge. Appellant, Chester Haven Beach Partnership, appeals a judgment of the Circuit Court for Queen Anne’s County (Wise, J.), affirming the denial by appellee, the Queen Anne’s County Board of Appeals (Board), of appellant’s requests for a condi ³²⁷ tional use and for several variances. Appellant presents three issues: I. Whether the Board of Appeals may deny a request for (i) a variance and (ii) a conditional use approval, both under the Queen Anne’s County Zoning Ordinance, without delineating or applying any decisional standard, and even though Appellant presented uncontroverted testimony and evidence to support all statutory prerequisites with no countervailing evidence presented.

II

Whether the Board of Appeals may interpret § 5000 of the Queen Anne’s County Critical Area Ordinance in a manner at odds with the intent of the provision as manifested by the plain meaning of the ordinance, the testimony of a drafter of part of the provision from the Office of Planning and Zoning and the testimony of Appellant’s expert.

III

Whether the Board’s finding, that the Appellant had not satisfied its burden of proving that it was the owner of land subdivided and recorded as of 1959 was arbitrary, capricious and illegal in light of the evidence presented. The Facts As this case was presented to the Board, much of the information submitted on behalf of appellant was by way of an opening statement by appellant’s counsel. In his opening statement, counsel gave a history of his knowledge of certain land planning legislative processes in Queen Anne’s County and then informed the Board, while still in opening statement, of some of the history of the property, including a statement that the property at issue was subject to a prior recorded plat. Counsel then introduced (apparently in evidence) certain deeds in the chain of title to the property.

He then asked to introduce a memorandum of arguments applicant desired to present in respect to the application, stating: “[Tjhis will be my memorandum as far as the legal authority ... this has nothing to do with testimony.” The Board then introduced, as applicant’s exhibits, a copy of the sectional zoning map and a letter from a Mr. Nickerson, ³²⁸ Director of Environment Health Services. The letter, on Health Department stationery contained the following language: “There are no objections to this proposal by the ‘Approving Authority’ if the project is served by public water and public sewer.” The Board, with the concurrence of appellant’s counsel, then introduced a letter from the State Highway Administration, Engineering Access Permits Division, stating that it similarly had no objection, “as there are no State highways involved.” Also introduced was the note of the staff of the Chesapeake Bay Critical Area Commission, stating that “[t]here are no comments at this time.” Counsel, resuming his opening statement, then informed the Board that the developing coordinator for the partnership might be called upon to testify. Counsel then described the partnership to the Board and counsel’s past and present relationship to that partnership and its various partners. He then told the Board how the partnership operated.

Until this point, other than the exhibits offered, nothing was in evidence. Counsel’s opening comments, for the most part, lacked relevance in respect to the issues now asserted on appeal. Thereafter, counsel called as a witness Mr. Michael Whitehill, the branch manager of McCrone, Inc., engineers, planners, and surveyors for the project. Mr. Whitehill described, inter alia, the type of subdivision sought to be established and the history of percolation tests.

A letter dated June 7,1976, was introduced through him, informing the owners of the property of serious percolation problems and noting therein that “even though this is a subdivision of record in Queen Anne’s County, each application for a septic tank permit must be evaluated on its own merit.” Mr. WTiitehill then discussed the new developmental planning process, i.e., from an older subdivision plan to the one then being submitted. Appellant attempted to assert at oral argument that the previous recordation of a subdivision on the subject site prior to the enactment of zoning is what made this property unique ³²⁹ for variance purposes. This argument, as we shall explain, is proffered for the first time on appeal. Initially, we note that appellant’s application stated: Conditional use approval is sought to permit planned residential development in the existing NC-15 zone for Section 7203E of Q.A. Co. zoning ordinance and a variance from Section 7203E condition 1 is sought to permit more than six (6) units per “cluster” and delete conversion density percentages as being uniquely inapplicable.

No assertion was made as to any denial by zoning authorities of the claimed grandfathered density. Rather, appellant merely submitted a request to vary the percentage conversion in the code relating to planned and/or clustered development. This does not translate into any uniqueness caused by the inherent character of the property or the overall density requirement relevant thereto. In fact, as far as we can discern from the record in this case, for zoning purposes, the property, though perhaps non-conforming, has, through grandfathering, retained its density and single family lot status, i.e., an 186 lot subdivision for detached single family units.

Mr. Whitehill testified before the agency that: These were single family lots that are below the 15,000 square feet that is now called for in the current zoning.... At that time, an attempt was made in 1976 to have some percolation tests run on these lots.... [T]here were some problems with some of the areas---- At that time ... it was recommended ... that they wait for public sewer---- ... This project at one time was intended to be an adjunct type community [adjunct to White’s Heritage Continuing Care Community] which would be [a] retirement type of a project without the continuing care. They [the developers] have since changed that____ In the beginning of 1985 McCrone, Inc. did a survey ... with the intent to come up with a new development plan that would offer an alternative to this subdivision ... in hopes of taking the ³³⁰ existing subdivision and replacing it with a planned type of housing style as the new zoning was brought into place.

The idea ... was to ... hopefully get a limited development area criteria for the overall property and ... undoing the undo-able, which is a 1959 plat ... and replace[ ] it with a new zoning such as suburban estate zoning which would have allowed the planned housing styles we seek today by virtue of conditional use____ [SJuburban estate was inapplicable to a recorded subdivision. They couldn’t un-record the subdivision ... because they would not have only lost the grandfathering ... they would have ... to start over____ Professor Lichter here has wrote many letters ... trying to get that LDA designation on the property, and [it] represents one of his few failures.... [I]t was suggested ... that ... we could combine lots ... and go back and reperk the lots. So we made an application____ That was an 88 lot combination plan dated 5/16/89 which was withdrawn. I hate to lose and so I withdraw these when things are going south on me in the middle of the operation.... ...

Since that time [1976] we have been making continuous applications to the County ... to amend this property into the master water and sewer plan so we could apply for sewer for the original lots. Then the nasty, the critical areas designation of RCA ... [it] did grandfather single family lots which brings us up to our third application ... for ... retirement community rental apartments____ We submitted a concept plan ... that would take this grandfathered density of 186 single family units and convert it to a planned housing style.... We applied to the Planning Commission for approval ... and ... there was a glitch in the new critical area ordinance____ So this plan ... was withdrawn.... ... [T]he County proceeded with the rewording of that so that Section 5000 Critical Area Ordinance would be amended to include the other housing styles besides the single ³³¹ family. The subject of tonight’s hearing, now we have moved through nearly a decade of shenanigans.

Applicant’s Exhibit No. 11 is the biggy. Our application ... that we were forced to withdraw was basically subject to the conditional use____ Section 7203E. refers to ... the ... cluster____ [1] The first condition ... asks that the cluster and planned development shall be scattered within surrounding single family homes. These ... shall not consist of more than 6 units per cluster, nor more than 30% of the dwelling units in any block. This is the section from which we are seeking a variance____ [F]rom the Critical Areas perspective, ... we are only disturbing 7 acres of land....

In order to do this ... we ... requested a shore buffer reduction that was granted in a unique fashion.... So that anything we granted here would permit the development to be out where the ground is more suitable, which is higher land toward the water, but we would expand the shore buffer for the entire balance of the property.... ... The requirement of the RCA ... ties us down to 15% impervious areas in the RCA.... [T]he impervious area that we are creating is half of that which is allowed by the Critical Areas RCA designation. [Emphasis added.] At that point, Mr. Whitehill testified as to various technical aspects of the project and then presented testimony that we shall discuss elsewhere in our opinion. His testimony as to the recorded subdivision plat was merely by way of giving a historical perspective of the land and the various projects proposed therefor.

No claim was made below that these previous lots were in any way unique. Moreover, there is no indication that the density he claims was grandfathered has been denied him and, even if the authorities have chal ³³² lenged his claim as to grandfathered density—and we find no indication that they have—appellant never requested a variance from any overall density requirement. All of its variance requests concern what it perceives to be necessary to meet the requirements of a change in its development plan from single family to group or cluster living necessitated by the current demand, not of zoning codes, but of environmental regulations (and economic conditions), especially the requirements of complying with the Chesapeake Bay Critical Area regulations. We are not unsympathetic to the plight of a property owner caught between local zoning codes and environmental regulations.

We later herein suggest the correct method of addressing this issue. But, an offer to build below density, if a conditional use acceptable to environmental regulators changing the character of the use of the property is granted, does not satisfy the requirement of variance law that the land itself be inherently unique and different from the remainder of the land in the area. We now continue our discussion of what did occur below. Applicant’s Exhibit No. 11 was then introduced -with, as we have said, the comment that “No. 11 is the biggy.” It is a surveyor’s or planner’s (unrecorded) plan of the proposed project.

Thereafter, Mr. Whitehill testified, initially and apparently referring to the requirements for the granting of conditional uses under the ordinance: The first condition of that section asks that the cluster and planned development shall be scattered within surrounding single family homes. These planned developments shall not consist of more than 6 units per cluster, nor more than 30% of the dwelling units in any block. Mr. Whitehill then noted: This is the section from which we are seeking a variance. He later continued, in relevant part: So these units as you are seeing them here are essentially clustered together.

These are a planned housing style, apartments are a planned housing style, according to the zoning ordinance in Section 5105.J., that we would have to ³³³ provide in order to meet the general zoning criteria for apartments, we would have to provide a lot, if we were to put all these on one lot, that lot would only have to be 6.83 acres. But we actually have a much larger lot than that so we are actually conforming in excess of the minimum lot size that would be required under the zoning ordinance. This plan complies as a condominium project, this plan would comply with the requirements of virtually every planned housing style [and] ... as a rental project, it ... will all be privately owned and privately maintained---- Mr. Whitehill then introduced certain exhibits, not relevant to the issues on this appeal, stating that he did so “so we can go into juicier topics which are the variance and conditional use.” Then, continuing his comments, Whitehill noted: Relative to the conditional use ... this is where we run into the request for the variance [but then, addressing the conditional use requirements]. If we were doing this in Cloverfields or Harbor View [other neighborhoods] ... where there are surrounding houses that have already been built and there is an established architectural texture ... then this special condition of the conditional use would certainly be applicable.

At that point you are starting to say that if you take 30% of the dwelling units ... or 20% ... unfortunately, within this development itself, ... there is no architectural, there is nothing there ... so we find it difficult to apply that particular standard. In Condition 2 ... we certainly do comply with. Number 3, ... [s]ame sort of problem, there is nothing ... that we can compare this to____ [S]o we are actually less dense than this would permit. And that the cluster lots shall follow the same standards as village houses, we are not proposing cluster lots____ So what we have is kind of an interesting situation ____ What we find is, by not developing 102 acres, by developing only ... 7 acres ... this is certainly more environmentally sound....

The single family issue has been resolved so that the grandfathering would be allowed to take those single family lots and convert them to the multifamily and planned housing styles---- [Depending ³³⁴ on the outcome of the conditional use, [we] would like to go in and apply for our sewer.... The following exchange then occurred between Mr. Whitehill and applicant’s counsel: [APPLICANT’S COUNSEL]: ... With regard to the requirements for variances ..., can you advise the Board, in your opinion professionally, whether a literal enforcement of the ordinance would result in unnecessary hardship as a result of the specified conditions[?] [2] WHITEHILL: Yes, it would, because we have nothing to compare, we have nothing to derive both the housing style ... from, and we have nothing on the basis of the existing architecture ... in this particular instance. [APPLICANT’S COUNSEL]: Are the conditions that are present on the property peculiar to this property[?] WHITEHILL: They are very unique to this particular piece of property.