Critical Area Commission v. Moreland, LLC

¹¹³ BATTAGLIA, J. In this case involving the denial of an application for variances from requirements of a local critical area program, we are asked to consider what level of detail a Board of Appeals must employ in supporting its findings with evidentiary references, in order to enable meaningful judicial review. The Anne Arundel County Board of Appeals had denied variance 1 requests of Moreland, LLC, 2 in connection with the proposed construction of two residences on Warehouse Creek in Edge-water, within the critical area buffer in Anne Arundel County. 3 The variances requested would have enabled the construction of both houses within the buffer, in contravention of Section 17-8-301(b) of the Anne Arundel County Code 4 and also ¹¹⁴ would have allowed the clearing of a greater percentage of vegetation from the sites than otherwise permitted by Section 17-8-601 (b) of the Code. 5 Initially, an administrative hearing officer had denied the variance requests, and the Board of Appeals, after conducting three nights of evidentiary hearings over the course of several months in 2006, affirmed in a fourteen-page memorandum opinion. Moreland sought judicial review in the Circuit Court for Anne Arundel County, 6 which remanded the case to the Board, having determined that the Board failed to adequately ¹¹⁵ support in its written decision any of its adverse findings with references to specific evidence. The Critical Area Commission for the Chesapeake and Atlantic Coastal Bays 7 and the South River Federation appealed, and the Court of Special Appeals, in a reported opinion, Critical Area Comm’n for the Chesapeake and Atlantic Coastal Bays v. Moreland, LLC, 191 Md.App. 260 , 991 A.2d 138 (2010), agreed with the Circuit Court.

We granted certiorari, 415 Md. 40 , 997 A.2d 790 (2010), to consider the following questions: 1. Did the Board of Appeals provide sufficient reasoning for its conclusion that the variance applicants had failed to establish that their proposed development would not adversely affect water quality and that their variances were the minimum necessary to afford the applicants relief from applicable Critical Area development restrictions, where the Board of Appeals, in a fourteen page Memorandum Opinion, summarized and repeatedly referenced expert and professional testimony regarding the adverse environmental impacts associated with the proposed development? 2. Did the Court of Special Appeals erroneously conclude that the Board of Appeals, when reviewing whether a variance to construct a home in the Critical Area buffer is the “minimum variance necessary,” must consider the size of the proposed construction relative to the size of homes on neighboring parcels, when such community comparisons are separately considered under the variance criteria? 3. Did the Court of Special Appeals incorrectly apply the presumption that construction proposed in the buffer will harm water quality?

We shall hold that the evidentiary support cited in the decision of the Anne Arundel County Board of Appeals was adequate for purposes of enabling meaningful judicial review, specifical ¹¹⁶ ly regarding the adverse impact on water quality associated with the proposed development by Moreland, and we, therefore, shall reverse the Court of Special Appeals’s decision. Because our holding regarding the first question disposes of the matter, we need not address questions 2 and 3 and shall not. In 1984, the General Assembly enacted the Chesapeake Bay Critical Area Protection Program, see Maryland Code (1973, 2000 Repl. Vol., 2005 Supp.), Sections 8-1801 to 8-1817 of the Natural Resources Article, 8 embracing several key policy choices, namely that the Chesapeake Bay and its tributaries “are natural resources of great significance to the State and the nation,” that the shoreline constitutes “a valuable, fragile, and sensitive part of this estuarine system,” that “[h]uman activity is harmful in these shoreline areas,” and that “[t]he cumulative impact of current development and of each new development activity in the buffer is inimical” to the restoration of the quality and productivity of the waters of the Bay. 9 Sections 8-1801(a)(l), (2), (4), and (9). ¹¹⁷ The Program required all local jurisdictions, under the direction of a newly created Chesapeake Bay Critical Area Commission, to formulate and implement a plan to control development in the “critical” or protected area.

Section 8-1801(b). That area generally consists of the Chesapeake Bay, its tributaries to the head of tide, 10 all designated State and private wetlands, and all land and water areas within 1,000 feet beyond the landward boundaries of designated State or private wetlands and the heads of tides of the Chesapeake Bay and its tributaries. Section 8-1807(a). The Critical Area Commission, which is comprised of twenty-nine members, including representatives from many counties, is vested with authority to adopt regulations, implement programs, and conduct hearings designed to control development and ameliorate adverse effects of human activity on, in, and near the Bay.

Sections 8-1804(a), 8-1806(a). Anne Arundel County adopted a critical area protection program, embodied in Articles 17 and 18 of the Anne Arundel County Code. Specifically, Section 17-8-301(b) prohibits the construction of “new structures” within the 100-foot buffer: (b) Prohibition and exceptions. New structures are prohibited in the 100-foot buffer and expanded buffer____ The “buffer” is defined in Section 18-13-104(a), generally, as a 100-foot strip of land near the shoreline: (a) Buffer and expanded buffer.

Except as provided in subsection (b), there shall be a minimum 100-foot buffer landward from the mean high-water line of tidal waters, tributary streams, and tidal wetlands____ Section 17-8-601(b) permits the clearing of vegetation within a limited range inside the critical area to prevent erosion and other environmental impacts: ¹¹⁸ (b) Other lots. Clearing on lots in the [Limited Development Area] and [Resource Conservation Area] other than residential lots of one-half acre or less in existence on or before December 1, 1985 may not exceed 20% of the lot, except that the Office of Planning and Zoning may approve clearing up to 30%. The County may grant variances when applicants for such meet various specific requirements detailed in Section 3-1-207 of the Code: (b) Variances in the critical area or a bog protection area. For a property located in the critical area or a bog protection area, a variance to the requirements of the County critical area program or bog protection program may be granted only upon an affirmative written finding that: (1) because of certain unique physical conditions, such as exceptional topographical conditions peculiar to and inherent in the particular lot, or irregularity, narrowness, or shallowness of lot size and shape, strict implementation of the County’s critical area program would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant; sfi * * (3) the granting of a variance will not confer on an applicant any special privilege....

(4) that the variance request: (i) is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed; and (ii) does not arise from any condition relating to land or building use on any neighboring property; (5) that the granting of the variance: ¹¹⁹ (i) will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area ...; (ii) will be in harmony -with the general spirit and intent of the County critical area protection program ...; (7) the applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, § 8-1808(d)(2), of the State Code. (c) Required findings. A variance may not be granted under subsection (a) or (b) unless the Board finds that: (1) the variance is the minimum necessary to afford relief; (2) the granting of the variance will not: (i) alter the essential character of the neighborhood or district in which the lot is located; (ii) substantially impair the appropriate use or development of adjacent property; (iii) reduce forest cover in the limited and resource conservation areas of the critical area; (iv) be contrary to acceptable clearing and replanting practices required for development in the critical area ...; or (v) be detrimental to the public welfare. Failure by the applicant to satisfy even one of the variance criteria requires the denial of the variance application.

Section 8-1808(d)(4)(ii) of the Natural Resources Article; Anne Arundel County Code, Section 3-1-207. The proponent of the variance, moreover, bears the burden of proof and persuasion to overcome the presumption that granting the variance requests does not conform to the critical area law. Section 8-1808(d)(3) of the Natural Resources Article. In 2003, Moreland purchased two pateéis, Site # 1 and Site # 2, on the north shore of Warehouse Creek in Anne Arundel County, within the critical area, upon which the developer sought to construct two single-family homes.

Thereafter, Moreland requested variances from the Anne Arundel County Office of Planning and Zoning in order to construct the houses ¹²⁰ and accompanying septic systems within the buffer and also to remove more vegetation than otherwise permitted within the buffer. In support of the variance requests, Moreland asserted that, “without variance relief from the prohibition on development within the buffer area and from tree clearing limitations, [it] [could] not build any reasonably sized home on these residentially zoned lots.” Specifically, on Site # 1, Moreland proposed to construct a single-family home, attached garage, screened porch and deck totaling 3,343 square feet. To overcome the prohibition in Section 17-8-301(b) of the Code against construction of new structures within the 100-foot buffer, the developer requested a variance of 34 feet. In addition, Moreland sought to clear more than 51 percent of the lot’s vegetation, exceeding the maximum 30 percent that the County’s Office of Planning and Zoning may approve pursuant to Section 17-8-601(b).

On Site # 2, Moreland sought to construct a home, attached garage, screened porch and uncovered deck totaling 2,615 square feet. To overcome the prohibition in Section 17-8-301(b) of the Code against construction of new structures within the 100-foot buffer, the developer requested another variance of 34 feet into the buffer. In addition, Moreland sought to clear nearly 34 percent of the total vegetation on Site # 2, exceeding the maximum permitted by Section 17-8-601(b) of the Code, and therefore requested an additional variance. An administrative hearing officer denied Moreland’s variance requests, and the Board of Appeals affirmed.

On appeal, the Circuit Court, applying Becker v. Anne Arundel County, 174 Md.App. 114 , 920 A.2d 1118 (2007), reversed, reasoning that the Board failed to make “clear findings” so as to “facilitate meaningful judicial review.” The Court of Special Appeals affirmed, also relying upon Becker , and determined that the Board failed to indicate “what specific evidence it relied upon” to reach any of its controverted findings. Moreland, 191 Md.App. at 286 , 991 A.2d at 153 . ¹²¹ The Becker opinion is obviously the fount in which this controversy rests. In Becker; our colleagues on the intermediate appellate court determined that the Board of Appeals, in denying several variance requests, failed to cite any evidence or reasonable inferences to be drawn from the evidence, to support its findings, in the context of no evidence or testimony in opposition to the variances having been adduced before the Board. In that case, William and Jane Becker had purchased two adjoining lots fronting on the Magothy River and Park Creek in Pasadena on which they sought to build a two-story, ranch-style home, consisting of 2,499 square feet of living space and a 529 square foot two-car garage, within the critical area buffer.

To do so, the Beckers requested three variances, namely a variance of 56 feet from the 100-foot critical area buffer, a variance to disturb the steep slopes on both parcels to install the septic system, and a 10-foot variance from the 25-foot rear yard requirement. Becker, 174 Md.App. at 122 , 920 A.2d at 1123 . An administrative hearing officer granted the variances, and an appeal to the Board of Appeals ensued. Id. at 119 n. 2, 920 A.2d at 1121 n. 2.

During a hearing before the Board, the Beckers presented testimony that without the variance allowing construction within the 100-foot buffer, the Beckers would not be able to build a house, that the requested variances were the minimum necessary to afford relief, and that the construction “should not have any adverse impact on water quality.” Id. at 123 , 920 A.2d at 1123 . Further, testimony was adduced by the Beckers that the granting of the variances “would not be contrary to the spirit and intent of the critical area program.” Id. No evidence was presented in opposition to the variance requests. The Board thereafter issued a memorandum opinion denying the Beckers’ application, reasoning that the Beckers had failed to demonstrate that the variances requested were the minimum necessary, because “[tjhere was no explanation of why 2,500 square feet of living area was necessary.

We are ¹²² left wondering, why not 2,490 square feet, 2,200 square feet or 600 square feet?” Id. at 125 , 920 A.2d at 1125 . The Board further found, without citing support in the record, that granting the variances would adversely affect water quality, would impair the use and development of the neighboring property, and would be detrimental to the public’s welfare, because the Beckers had failed to “convince the Board on these points.” Id. at 129 , 920 A.2d at 1127 . The Court of Special Appeals reversed. Faced with the issue of whether the Board must have made findings based upon articulated evidence, the intermediate appellate court noted that, a reviewing court may not uphold an agency’s decision if a record of the facts on which the agency acted or a statement of reasons for its actions is lacking---- Findings of fact must be meaningful and cannot simply repeat statutory criteria, broad conclusory statements, or boilerplate resolutions, id. at 138-89 , 920 A.2d at 1132-33 (citations omitted) (internal quotation marks omitted), and reasoned that there was no evidence of water quality or developmental impairment on the record before the Board: We note that we can find no evidence or reasonable inferences to be drawn from the evidence to support certain of the Board’s conclusions.

Specifically, we did not see evidence of an adverse impact on water quality, or that the use would impair the use or development of the adjacent property. Id. at 143 , 920 A.2d at 1135 . Our job, obviously in the present case, is to evaluate the Board of Appeals’s decision to determine whether it does permit meaningful judicial review and if so, should it be upheld. Our role in reviewing the final decision of an administrative agency, such as the Board of Appeals, is “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an ¹²³ erroneous conclusion of law.” Maryland Aviation Admin. v. Noland, 386 Md. 556, 571 , 873 A.2d 1145, 1154 (2005), quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 67 , 729 A.2d 376, 380 (1999).

In doing so, a reviewing court decides whether the Board’s determination was supported by “such evidence as a reasonable mind might accept as adequate to support a conclusion.” People’s Counsel for Baltimore County v. Surina, 400 Md. 662, 681 , 929 A.2d 899, 910 (2007) (citation omitted); see also Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398-99 , 396 A.2d 1080, 1089 (1979) (citation omitted) (“The heart of the fact-finding process often is the drawing of inferences made from the evidence.... The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.”). Moreover, a reviewing court “must review the agency’s decision in the light most favorable to it; ... the agency’s decision is prima facie correct and presumed valid.” Noland, 386 Md. at 571 , 873 A.2d at 1154 , quoting CBS v. Comptroller, 319 Md. 687, 698 , 575 A.2d 324, 329 (1990).

In the present case, Moreland contends that the central issue “is not whether there is substantial evidence in the record,” but rather, whether the Board of Appeals’s opinion denying the variance requests is amenable to meaningful judicial review. The rub comes from the manner of presentation of the Board of Appeals’s opinion. Moreland argues that, as in Becker , the Board of Appeals’s opinion in the present case failed to provide sufficient detail and reasoning to enable meaningful judicial review, because each of the Board’s findings was not immediately followed by supportive and specific evidentiary references. The Commission counters that the Board of Appeals’s opinion adequately reflected that substantial evidence existed in support of its penultimate finding that the proposed construction, because of the large area of impervious surface and the removal of significant amounts of vegetation, would adversely affect the ¹²⁴ water quality of Warehouse Creek.

The Commission further argues that Becker is inapposite, because in the present case, evidence was adduced in opposition to the variance requests upon which the Board explicitly relied. In denying the variance requests, the Board found that Moreland met various burdens of proof, specifically with regard to Section 3 — 1—207(b)(1) (that strict implementation of the critical area program would result in unwarranted hardship); (b)(2)(i) (that a literal interpretation of the program would deprive the applicant of rights commonly enjoyed by similarly situated property owners); (b)(8) (that granting the variance would not confer on the applicant any special privilege); (b)(4)(i) (that the hardship was non self-created); (b)(4)(ii) (that the hardship was not caused by a condition on neighboring property); (c)(2)(iii) (that granting the variance would not reduce forest cover); and (c)(2)(iv) (that granting the variance would not be contrary to replanting practices). The Board further found, however, that granting the variances would adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the critical area, in contravention of Section 3-I-207(b)(5)(i), that the variances requested were not the minimum necessary to afford relief pursuant to (c)(1), and that granting the variances would alter the essential character of the neighborhood pursuant to (c)(2)(i), substantially impair the appropriate use or development of adjacent property pursuant to (c)(2)(ii), and be detrimental to the public welfare pursuant to (c)(2)(v). The crux of all of the Board’s adverse findings was that the large area of impervious surface of the proposed construction, coupled with clearing large areas of vegetation on the sites, would contribute to excess runoff and the flow of harmful matter into Warehouse Creek.

The Board opined as follows, regarding the large area of impervious surface of the proposed construction, namely, according to the Critical Area Commission, 2,167 square feet of impervious surface on Site # 1 and 1,751 square feet of impervious surface on Site #2, adversely affecting water quality: ¹²⁵ The proposed sizes of the houses would create additional impervious surface, which would result in an adverse impact on wildlife and the plant habitat of the lots and a significant detriment to water quality of the creek____ The large amount of impervious coverage so close to the creek would reduce vegetative cover and alter the hydrology of the area. [Bjecause of the environmentally sensitive nature of the properties and the surrounding area, we believe that the addition of such large structures within the 100 foot [critical area] buffer and with the additional woodland clearing would alter the character of the surrounding neighborhood. * * * [W]e find the testimony of Mr. Flood[ 11 ] persuasive and agree that the addition of such large structures will create a significant amount of additional water quality problems that could render the creek impassable -within the coming years. * * * [H]ere we believe that the size of the proposed houses would add too much impervious surface and would cause a significant drop in the quality of the water. The Board further found that clearing of large areas of vegetation from the sites would foster erosion and excess runoff, harming the water quality of the creek: [B]ecause of the environmentally sensitive nature of the properties and the surrounding area, we believe that the addition of such large structures within the 100 foot [critical area] buffer and with the additional woodland clearing would alter the character of the surrounding neighborhood. * * * [H]ere, [Moreland] proposes to build two houses inside the 100 foot buffer and with more clearing than permitted by the Code. Allowing [Moreland] to build the houses as pro ¹²⁶ posed is not necessary to avoid denying [the developer] a reasonable and significant use of his property. Alternative plans exist that would provide for less disturbance to the [critical area].

In reaching the above findings and conclusions, the Board explicitly referred to the testimony presented by John Flood, a neighbor and long time South River resident, who was accepted by the Board as an environmental expert, albeit the summary of his testimony was in a section separate from the conclusory findings of the Board. The Board summarized Mr. Flood’s testimony as follows: The South River contains sedimentary soils that were deposited in layers. When the soils become saturated, it becomes unstable and the clay layers become mobile. Impervious surface within the 100 foot buffer contributes to the migration of nutrients from the site and into the water.

The benefits of the vegetation that is removed to provide area for impervious surface cannot be replicated by the replanting of similar vegetation. Every foot of impervious surface that is removed from the plan would reduce runoff by 6/10 of a gallon in the first one inch rain event. Unlike the subject properties, other properties in the surrounding area are buffer exempt and have been grandfathered. Comparing the subject properties to those in the surrounding community is like comparing apples to oranges.

Mr. Flood created the nonstructural erosion control (living shoreline) models that have been adopted by the County and the State. The Board also explicitly included a summary of the testimony presented by Andrew Koslow, the South Riverkeeper, 12 re ¹²⁷ garding the adverse impact of construction near Warehouse Creek, again separate from its conclusory findings expressed in its decision. The Board summarized Mr. Koslow’s testimony as follows: Mr. Andrew Koslow, the South Riverkeeper, testified that he has been conducting water quality sampling for the past three years. The water quality of Warehouse Creek is impaired.

In 2005, 50% of the water samples had dissolved oxygen levels below 5 milligrams per liter, which is considered critical to aquatic resources by the Maryland Department of Natural Resources. In 2006, the number of water samples that had dissolved oxygen levels below 5 milligrams per liter dropped to 35%. The development proposed by [Moreland] will generate significant runoff and carry nutrients and sediment into the creek, further contributing to the decline in water quality. He does not believe that [Moreland] has shown that the development would not adversely impact water quality or fish, wildlife or plant habitat within the [critical area].

The Board also found persuasive testimony