Dan's Mountain Wind Force, LLC v. Allegany Cnty. Bd. of Zoning Appeals

Panel: Meredith, Friedman, W. Michel Pierson (Specially Assigned), JJ. Friedman, J. ⁴⁸⁷ This case concerns the rejection of an application for variances to the setback and separation distance requirements for a wind farm in Allegany County. We hold that the Allegany County Board of Zoning Appeals did not properly apply the uniqueness test or the practical difficulty test necessary for an applicant to prove eligibility for a variance. We explain how such analyses should be conducted and remand for the Board to try again.

FACTS Dan's Mountain Wind Force, LLC seeks to construct 17 wind turbines and an electrical substation on leased property on Dan's Mountain. The Allegany County Code permits wind turbines as a special exception in the zoning district in which the project is proposed. 1 And, most importantly for present purposes, construction of the turbines is subject to (1) a minimum separation distance of 2000 feet from any residential structure; and (2) a minimum setback distance of no less than three times the height of the turbine. ACC § 360-92(B)(3). 2 Because the proposed sites of some of the turbines were ⁴⁸⁸ within either the setback or separation distances, or both, Wind Force sought variances. It also applied for the requisite special exception.

Critically, Wind Force enlisted the support of the neighboring property owners, ²⁵⁵ who joined Wind Force as co-applicants. The Board's opinion summarized the factual and procedural background: [Wind Force] has proposed to construct 17 wind turbines ... on leased property located on Dan's Mountain. ... The Allegany County Code requires that wind turbines have a minimum separation distance of [2000] feet from any residential structure and a [minimum] setback property line distance of "three times the height of the unit" which, in this case, is [955] feet. [T]o meet the criteria of the zoning code, a variance to the separation distance is required for [8] residences and a variance to the setback requirements are necessary at [2] locations. All of the subject property owners requesting a variance to the separation distance are co-applicants and have executed variance authorizations. ... [5] of the [8] co-applicant property owner[s'] variance requests involve residential structures within the 2000 foot separation distance of multiple wind turbines.

As such ... evidence presented indicates that the Board will have to review and grant [26] separate variances to get the project in line with the existing zoning code. At the hearing, Wind Force presented expert testimony that while Dan's Mountain is an ideal location for a wind farm, there are many factors limiting the specific locations on which turbines can be placed, including the: (1) topography of the property; (2) boundaries of Wind Force's property and that of its neighbors; (3) proximity of existing dwellings and other structures; (4) stream channels; ⁴⁸⁹ (5) habitat of the Allegheny Woodrat; 3 (6) habitat of Black-fruited Mountain Rice; 4 (7) existence, location, and extent of wetland areas; (8) prior strip mining activity; (9) communication beam paths passing over and through the properties; and (10) technical specifications of the wind turbines themselves. Thus, the thrust of Wind Force's expert testimony was that these constraints required it to propose placing the turbines in very specific locations on Dan's Mountain and that the requested variances of the minimum separation distance and setback requirements were necessary for the project. The Board was not persuaded.

The Board found that Wind Force had failed to meet its burden of proof in "three critical areas." Specifically, the Board found: ²⁵⁶ First, the Applicant failed to establish that the subject properties were sufficiently unique as to each other as to warrant a variance. Second, the Applicant failed to demonstrate that the multiple number of variances requested were in harmony with the spirit and intent of the zoning regulations. Finally, the Applicant failed to establish that any co-applicant ⁴⁹⁰ lost "reasonable use" of their respective properties. As a result, the Board denied the variance requests and, because the special exception application was premised on the variances, denied the special exception as well.

Wind Force consolidated its appeals of the Board's decisions into a single petition for judicial review. The circuit court affirmed. Wind Force noted a timely appeal. STANDARDS OF REVIEW When reviewing the decision of an administrative agency, this court "looks through the circuit court's [decision] ... and evaluates the decision of the agency." People's Counsel for Balt.

Cnty. v. Surina , 400 Md. 662 , 681, 929 A.2d 899 (2007). Thus, in the present case, we consider whether the administrative agency-the Allegany County Board of Zoning Appeals-erred. Wind Force contends that the Board erred both in its factual findings and in its legal determinations. We will, therefore, review the Board's factual findings for whether they are supported by substantial evidence in the record, and its legal conclusions without deference. 5 Md. Bd. of Pub.

Works v. K. Hovnanian's Four Seasons at Kent Island, LLC , 425 Md. 482 , 514 n.15, 42 A.3d 40 (2012). ANALYSIS Allegany County has adopted the Code Home Rule form of county government. As a result, it has been granted ⁴⁹¹ the express power to adopt zoning laws, Md. Code Local Government ("LG") § 10-324, and the express power to create an appeal board to review variance applications. LG § 10-305(a)(1).

The County Commissioners of Allegany County have adopted a zoning ordinance, which is codified in Chapter 360 (Land Development), Part 4 (Zoning) of the Allegany County Code. The Allegany County Code doesn't separately describe the procedure or standards for granting a zoning variance. Rather, the Code only mentions zoning variances in the "definitions" section: [ZONING] VARIANCE [is defined as a] change of density, bulk[,] or area requirements, [ 6 ] with respect to the location ²⁵⁷ of a building or a use on a lot of record, where the physical or natural character of the lot would otherwise preclude the use of the lot. ACC § 360-59(A)(1).

Although Allegany County could prescribe standards for variances, it has not. And, in the absence of locally adopted standards, Maryland's common law regarding variances controls. A variance "permits a use [that] is prohibited and presumed to be in conflict with [an] ordinance." North v. St. Mary's Cnty. , 99 Md. App. 502 , 510, 638 A.2d 1175 (1994). The burden rests on the applicant to overcome the presumption that the proposed use is in conflict with the ordinance.

Id. Courts have recognized a two-part test to determine whether a variance should be granted in a particular case. See, e.g. , ⁴⁹² Cromwell v. Ward , 102 Md. App. 691 , 694-95, 651 A.2d 424 (1995). The first requirement, uniqueness, 7 looks at whether: the property whereon structures are to be placed (or uses conducted) is-in and of itself-unique and unusual in a manner different from the nature of surrounding properties such that the uniqueness and peculiarity of the subject property causes the zoning provision to impact disproportionately upon that property.

Id. at 694 , 651 A.2d 424 . If the applicant successfully proves that the property in question is unique, then the reviewing body moves to the second requirement-practical difficulty or unnecessary hardship-and examines: whether practical difficulty and/or [unnecessary] hardship, resulting from the disproportionate impact of the ordinance caused by the property's uniqueness, exists. Id. at 695 , 651 A.2d 424 (emphasis omitted). This two-step process must be repeated for each variance request.

Wind Force challenges the Board's conclusions on both steps of the variance analysis: (1) uniqueness; and (2) practical difficulty or unnecessary hardship. I. UNIQUENESS The Board found that Wind Force had not satisfied its burden to demonstrate uniqueness. We will begin by discussing ⁴⁹³ the Board's uniqueness finding. We next discuss the uniqueness requirement and its requirement of nexus between the variance requested and the unique attributes of the property.

We then discuss the manner in which this analysis should be conducted. We will discuss, finally, Wind Force's argument that zoning merger should apply to this case. Because we conclude that the Board used the incorrect uniqueness analysis, we remand so that the Board may, as it deems appropriate, reopen the hearing and reconsider the applications using the analysis discussed here. ²⁵⁸ A. The Board's Uniqueness Finding The Board found that no applicant property was unique, stating that: Mining is not unusual in the western panhandle of Allegany County or in that particular area. All of the surrounding properties have similar habitat issues.

All of these properties sit similarly in relation to the communication towers. The Board considered each property, and each variance application, as separate and discrete properties, while addressing their potential uniqueness collectively. 8 With this analysis, the Board found that all of the co-applicant properties were similar to each other, and thus, not unique. It did not take into consideration the particular effects that each of Wind Force's listed factors, supra pp. 488-89, 182 A.3d at 254-56, had on the placement of turbines on each particular property, or how each factor affected each property differently. As we shall discuss, the correct test requires the Board to look at each of the factors identified by an applicant as making the property unique, and determine whether those factors, together, affect each property. ⁴⁹⁴ B. The Law of Uniqueness To receive a zoning variance, a property must be unique.

Maryland cases have used the terms "unique," "unusual," and "peculiar" to describe this step in the variance analysis. We made clear in Cromwell that these words are used more or less interchangeably to mean "unusual." 102 Md. App. at 703 , 651 A.2d 424 . The uniqueness analysis examines the unusual characteristics of a specific property in relation to the other properties in the area, and the nexus between those unusual characteristics and the application of the aspect of the zoning law from which relief is sought. See Cromwell , 102 Md. App. at 719 , 651 A.2d 424 ("[V]ariances should only be granted when the uniqueness or peculiarity of a subject property is not shared by the neighboring property and where the uniqueness of that property results in an extraordinary impact upon it by the operation of the statute.") (emphasis added).

Stated another way: Where by reason of the exceptional narrowness, shallowness, or unusual shape of a specific property, or by reason of exceptional topographic conditions or other extraordinary situations or special conditions of property the literal enforcement would make it exceptionally difficult to comply. North , 99 Md. App. at 514 -15 , 638 A.2d 1175 (cleaned up). 9 The purpose of the uniqueness or unusual element of the variance test is to determine whether the zoning law's effect on a property is particularized to that given property. We can identify three principal reasons for this requirement. First , if the allegedly restrictive effect of the zoning law is not unusual, and a characteristic ²⁵⁹ is shared by many properties, the problem ought to be addressed by legislation, not variances: ⁴⁹⁵ The claimed hardship may be caused by general neighborhood conditions that cause the property to be unusable as zoned.

If that is the basis of the owner's claim, it is unlikely that only the owner's parcel will be affected; in fact it is likely that many other parcels in the neighborhood will be affected. ... In theory, then, an owner's appropriate remedy in cases where the hardship is not unique is to seek a rezoning. 3 RATHKOPF'S THE LAW OF ZONING AND PLANNING § 58:11 (4th ed. 2017). This purpose for the uniqueness requirement has been recognized by some of our sister state courts. Arndorfer v. Sauk Cnty.

Bd. of Adjustment , 162 Wis.2d 246 , 469 N.W.2d 831 , 834 (1991) ; Clark v. Bd. of Zoning App. of Town of Hempstead , 301 N.Y. 86 , 92 N.E.2d 903 , 904 (1950) ("If there be a hardship, which ... is common to the whole neighborhood, the remedy is to seek a change in the zoning ordinance itself."). A property that is affected uniquely may be entitled to relief through a variance, while a property owner experiencing a more common problem must seek a legislative remedy. 10 Second , and similarly, the uniqueness analysis guarantees that a granted variance cannot act as a precedent in an application regarding another property. If the effects of the zoning law operate similarly to the way in which they operate on a separate applicant property, the uniqueness requirement is likely not satisfied. Finally , in an analogous situation, the Court of Appeals has noted that uniformity of the application of zoning laws-accomplished in part by requiring that properties exempt from those laws be unique-performs a "critically essential function," by "protect[ing] the landowner from favoritism towards certain landowners within a zone by the grant of less onerous restrictions than are applied to others within the same zone." Mayor and Council of Rockville v. Rylyns Enters. , 372 Md. 514 , 536, 814 A.2d 469 (2002) (discussing piecemeal zoning). ⁴⁹⁶ The circumstances of this case, and the Board's decision below, also highlight an aspect of uniqueness that was always present but which has seldom been remarked upon-the requirement of nexus.

"[The owner] must prove ... a connection between the property's inherent characteristics and the manner in which the zoning law hurts the landowner." Trinity Assembly of God of Balt. City v. People's Counsel of Balt. Cnty. , 407 Md. 53 , 82, 962 A.2d 404 (2008). That is, the unique aspect of the property must relate to-have a nexus with-the aspect of the zoning law from which a variance is sought.

Id. Without the nexus requirement, a motivated sophist could always find similarities or differences between any two properties so as to defeat or support a uniqueness finding. Every property is similar to every other property in some respects (for example, "there are some living things on this property"). And every property can be distinguished from every other property in some other respect (for example, "this property contains exactly x number of trees and y number of woodrats").

Rather than semantic tricks, the proper question is whether the property is unique in the way that this particular aspect of the zoning code applies to it. A zoning treatise illuminates the nexus requirement: Uniqueness must be related to the land .... The attribute must be related to the ²⁶⁰ application of the ordinance from which relief is sought. Thus, a minimum width requirement for a parcel makes little sense for a pie shaped lot[;] likewise for a setback regulation that puts a house into an arroyo or ravine.

Barlow Burke, UNDERSTANDING THE LAW OF ZONING AND LAND USE CONTROLS 159 (3d ed. 2013). Extending Professor Burke's examples, it would make no sense to consider the narrowness of a pie-shaped lot as a unique attribute in considering whether to waive, for example, a height or density restriction. Our cases recognize this requirement. See Trinity Assembly , 407 Md. at 82 , 962 A.2d 404 ; Cromwell , 102 Md. App. at 721 , 651 A.2d 424 ("[A] property's peculiar characteristic or unusual circumstances ... must exist in conjunction with the ordinance's ... impact on the specific property because of the ⁴⁹⁷ property's uniqueness.").

The uniqueness, then, must have a nexus with the aspect of the zoning law from which a variance is sought. C. Analysis We hold that the Board erred in its uniqueness analysis in three ways: (1) by failing to properly identify each property's unusual attributes to compare them to other properties; (2) by failing to understand the requirement of nexus; and (3) by using too generalized an analysis. We will discuss each error, and then describe the proper mode of analysis that the Board must conduct for uniqueness. First , the Board focused on comparing the co-applicant properties to each other without looking at other surrounding properties.

Whether two properties share common features cannot be determined by reference to a third property. The governing law instead requires an investigation, first, of the unusual features of the property for which the variance is sought. Then the investigator must look at surrounding properties to see if they share those same unusual features. Cromwell , 102 Md. App. at 694 , 651 A.2d 424 ("[Uniqueness] requires a finding that the property whereon