Citrano v. North

MOYLAN, Judge. The appellants, Frank Citrano, et ux., challenge an order issued by Judge Lawrence H. Rushworth of the Circuit Court for Anne Arundel County, affirming the Anne Arundel County Board of Appeals’s denial of the appellants’ application for a zoning variance. On appeal, the appellants contend: 1. that there was not substantial evidence before the Board of Appeals for Anne Arundel County to support its decision to deny the appellants’ application for variances to permit a deck within the 100 foot critical area, to permit the deck over steep slopes in a critical area, and to permit the deck in the front yard 38 feet closer to the front line lot line; 2. that no variance was required in this case because the deck in question is a “water dependent facility” as defined by the County Code which is permitted in the buffer; and 3. that the deck in question was an “accessory structure for waterfront lot” which is permitted in the front yard of an R-l district. In 1992, the appellants, Mr. and Mrs. Citrano, purchased a developed residential waterfront lot of approximately .83 acres (“the property”) located on the Magothy River in Pasadena, Maryland.

The property lies within the Chesapeake Bay Critical Area 1 and contains a number of steep slopes leading down to the Magothy River. ²³⁷ Prior to the appellants’ purchase of the property, Anne Arundel County mapped the property as a Limited Development Area under the Anne Arundel County Critical Area Program which establishes a minimum 100-foot buffer landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands, and provides that the buffer shall be expanded in sensitive areas such as steep slopes. 2 The buffer acts as a “setback” to protect the Bay. Generally, under the County Program, no new development activity, including structures, roads, parking and other impervious surfaces, like free-standing decks, are permitted in the buffer. 3 In April 1995, the appellants constructed a fifteen-by-twenty foot deck on their property, approximately 12 feet from the shoreline, without the benefit of a building permit. After construction of the deck was completed, the appellants then applied for the necessary variances to permit the deck within the 100 foot critical area 4 , on steep slopes in a critical area 5 , and in the front yard 38 feet closer to the front line lot line. 6 ²³⁸ The County zoning hearing officer denied the variances, and the appellants appealed to the Anne Arundel County Board of Appeals(the “Board”). On May 28, 1996, a hearing was held before the Board at which both the Critical Area Commission and the County recommended denial of the variances for the deck.

On July 27, 1996, the Board issued a Decision denying the variances, finding that the appellants had not satisfied the necessary requirements for the granting of a variance under the County Program. The appellants appealed the Board’s decision to the Circuit Court for Anne Arundel County. On May 7, 1997, Judge Lawrence H. Rushworth affirmed the Board’s decision, finding that it was supported by substantial evidence and was not premised on an error of law. The appellants then noted this timely appeal.

The standard of review in a zoning appeal was clearly stated by this Court in Meadowridge Industrial Center v. Howard County, 109 Md.App. 410 , 675 A.2d 138 (1996). “The order of a county zoning authority ‘must be upheld if it is not premised upon an error of law and if [its] conclusions reasonably may be based upon the facts proven.’ ” Id. at 419 , 675 A.2d 138 (quoting Leo J. Umerley v. People’s Counsel for Baltimore County, 108 Md.App. 497 , 672 A.2d 173 (1996)). Accordingly, a court will reverse a zoning board’s action only where there are no grounds for reasonable debate or where the action of the zoning authority has been found to be arbitrary and capricious. Hardesty v. Board of Zoning Appeals, 211 Md. 172 , 126 A.2d 621 (1956). A variance, if granted, permits a use that is normally prohibited and presumed to be in conflict with the ordinance.

North v. St. Mary’s County, 99 Md.App. 502, 510 , 638 A.2d 1175 (1994). “An applicant for a variance bears the burden of overcoming the presumption that the proposed use is unsuitable. That is done, if at all, by satisfying fully the dictates of the statute authorizing the variance.” North, 99 Md.App. at 510 , 638 A.2d 1175 . ²³⁹ In the instant case, the standards for granting a variance in the critical area are set forth in Article 3, § 2-107 of the Anne Arundel County Code. Section 2-107 provides in pertinent part: (b) For a property located in the critical area, a variance to the requirements of the County critical area program may be granted after determining that: (1) due to the features of a site or other circumstances other than financial considerations, strict implementation of the County’s critical area program would result in an unwarranted hardship; (2) a literal interpretation of the Code of Maryland Regulations, Title 27, Subtitle 01, Criteria for Local Critical Area Program Development, or the County critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the critical area of the County; (3) the granting of a variance will not confer on an applicant any special privilege that would be denied by COMAR, Title 27, Subtitle 01 or the County critical area program to other lands or structures within the County critical area; (4) the variance request: (i) is not based on conditions or circumstances that are the result of actions by the applicant; and (ii) does not arise from any condition relating to land or building use, either permitted or non-conforming, on any neighboring property; and (5) the granting of the variance: (i) will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the critical area; and (ii) will be in harmony with the general spirit and intent of the County critical program. The ordinances require an applicant to meet all of the requirements. ²⁴⁰ The Board denied the appellants’ application for a variance after determining that the appellants failed to satisfy requirements 1 through 4.

With respect to the first requirement, the Board, in a very detailed Opinion, stated: In order to grant a variance, this Board must find that there exists unique physical conditions, exceptional topographical conditions, or exceptional circumstances other than financial considerations. The lot in question is relatively long and narrow, being 100 feet wide at the water level and 80 feet wide at the road, which having side line dimensions of 410 feet on the west side and 370 feet on the east side. In addition, the lot contains steep slopes, as defined by the County Code. Thus it could be said that unique physical conditions (relative narrowness) and exceptional topographical conditions (steep slopes) both exist.

Section 2-107(b)(l) requires the Board to find that strict implementation of the critical area program would result in unwarranted hardship. Here, the Petitioners claim an unwarranted hardship exists because they are unable to have a free-standing deck in their front yard. Although such an amenity may be a pleasant addition and would allow, as the Petitioner’s say an opportunity for them to view sunsets, the Board cannot find