Lanzaron v. Anne Arundel County

¹⁴² CATHELL, J. Crandell Cove, Inc. (“appellee”), a non-profit corporation organized to construct a residential facility for the elderly in Anne Arundel County, applied for and received a special exception and variances enabling it to construct a nursing home. A subsection of Article 28 of the Anne Arundel County Code required the special exception and variances to be utilized within specific time frames. As a result of difficulties encountered complying with the time limitations and pursuant to a broad reading of Article 3 of the Anne Arundel County Code authorizing the granting of variances from the provisions of the zoning article (Article 28), appellee requested a time variance permitting a one-year extension to implement the use authorized by the special exception and variances or obtain a building permit, and an additional one and one-half years to complete the facility and have it fully operational. That request was initially granted by Anne Arundel County’s Administrative Hearing Officer (the “Hearing Officer”).

The Lanzarons (“appellants”), who are neighboring landowners, appealed the Hearing Officer’s approval to the Anne Arundel County Board of Appeals (the “Board”), which issued a written decision that upheld the Hearing Officer’s action and granted appellee’s time variance. 1 Appellants then filed a petition for judicial review in the Circuit Court for Anne Arundel County, which affirmed the decision of the Board. Finally, appellants noted an appeal to the Court of Special Appeals. Before the case was heard by that Court, we issued a writ of certiorari, on our own initiative, Lanzaron v. Anne Arundel County, 399 Md. 32 , 922 A.2d 573 (2007), in respect to the following issue: “Did the Anne Arundel County Code in effect at the relevant time authorize the Board to extend by variance the Code’s deadline for project implementation and completion under Crandell Cove’s previously authorized variances and special exception?” ¹⁴³ We hold that the variance power at issue in this case authorized the Board to issue time variances, and that under the language used here, the general variance power found in Article 3 reaches all provisions in Article 28 of the Anne Arundel County Code (the Zoning Code) except where the general power is restricted by specific language limiting the general variance power. I. Facts Appellee sought to construct a congregate living facility 2 in Anne Arundel County on property that was split zoned RlResidential District and OS-Open Space District.

On February 25, 2003, appellee obtained from Anne Arundel County initial zoning approval in addition to a special exception and certain variances that would allow for the development of a suitable living facility on a portion of the land. These initial approvals were appealed by appellants, but those appeals were ultimately dismissed by the Board on September 11, 2003. That decision became final after 30 days, when no petition for judicial review of the initial approvals was filed. As a result of difficulties in obtaining the necessary permits for construction under multi-tiered County and State requirements, appellee was unable to comply with the statutory time restriction applicable to the original zoning variances found in Article 28, requiring that a building permit be obtained within one year of the variance grant, and that construction be completed within two years of the grant. 3 Additionally, it was ¹⁴⁴ unable to comply with the statutory time restrictions applicable to the original special exception, which required that action to implement the use be initiated within one year of approval and that the use be completed and in operation within two years of approval. 4 Therefore, on September 10, 2004 (allowing for tolling, within one year of the date the initial approvals became final after the Board dismissed appellants’ initial appeal to the Board), appellee requested a time variance to extend the expirations of its variances and special exception under the original zoning approvals.

Appellants objected to the variances of the time restrictions and a hearing was held before the Administrative Hearing Officer of Anne Arundel County on December 9, 2004. The Hearing Officer ultimately granted the time variance, 5 and that decision was appealed by the appellants to the Board of Appeals. Accordingly, a hearing was held on June 29-30, 2005. There, appellants raised several issues, including the authority of the Board to grant such variances, the timeliness of the request for the time variances, and whether the appellees met the statutory standards set forth in the Code to grant such a variance. ¹⁴⁵ The local implementation of Md.Code (1957, 2005 Repl.Vol.), Article 25A, § 5’s grant of general authority to grant variances is found in Article 3, § 2-107 of the County Code.

It states, in relevant part: “ § 2-107. Standards for granting variance. (a) The County Board of Appeals may vary or modify the provisions of Article 28 [the Zoning Code] of this Code when it is alleged that practical difficulties or unnecessary hardships prevent carrying out the strict letter of that article, provided the spirit of law shall be observed, public safety secured, and substantial justice done.” (Alteration added.) Anne Arundel County Code (1985, 2004 Supp.), Article 3, § 2-107. On January 11, 2006, the Board issued a well-reasoned decision granting the time variance.

It considered the statutory factors found in Article 3, § 2-107 of the Code in granting the time variance, and made appropriate findings of fact. Those findings of fact are not at issue in this case. The Board made no findings as to whether it had the authority to grant the variance. While not determinative in the instant case, the County Council has since clarified its future intent whether time variances may be granted by the Board, by code amendment enacted in May 2005.

The new provision states: “ § 18-16-405. Time period after which variances and special exceptions are void. (a) Expiration by operation of law. A variance or special exception that is not extended or tolled expires by operation of law unless the applicant within 18 months of the granting of the variance or special exception (1) obtains a building permit or (2) files an application for subdivision.

Thereafter, the variance or special exception shall not expire so long as (1) construction proceeds in accordance with the permit or (2) a record plat is recorded among the land records pursuant to the application for subdivision, the applicant obtains a building permit within one year after ¹⁴⁶ recordation of the plat, and construction proceeds in accordance with the permit. (b) Extension for phasing or other good cause. In deciding an application for a special exception use, the Administrative Hearing Officer may extend the time periods set forth in subsection (a) for the use and any variance granted in connection with it when the application includes a phasing plan or sets forth facts that demonstrate other good cause why the time periods set forth in subsection (a) reasonably cannot be met. (c) Extension by variance.

An applicant may file an application for a variance to extend the time periods set forth in subsection (a). (d) Tolling. The pendency of litigation may toll the time periods set forth in subsection (a) to the extent provided by law.” Anne Arundel County Code (2005), Article 18, § 18-16-405. 6 On February 7, 2006, appellants filed a petition for judicial review challenging the Board’s decision. Anne Arundel County and appellee responded to the petition on February 14, 2006, and February 24, 2006, respectively.

Oral arguments were heard in the Circuit Court for Anne Arundel County on October 11, 2006. There, the review was primarily centered on the issue that is presently before this Court, i.e., whether the Board had the authority to grant the time variances to the expiration periods of the special exception and variances granted at the time of the original zoning approval. An order affirming the Board’s decision was issued on October 12, 2006, by the Circuit Court for Anne Arundel County. On November 2, 2006, appellants noted an appeal to ¹⁴⁷ the Court of Special Appeals.

Before the case was heard, this Court issued a writ of certiorari on May 9, 2007.

II

Standard of Review As stated above, appellants contend that the Board of Appeals had no authority to grant the time variance, and as such, their administrative decision was based on an erroneous conclusion of law. In reviewing an agency decision, this Court has stated: “[A] reviewing court may always determine whether the administrative agency made an error of law. Therefore, ordinarily, the court reviewing a final decision of an administrative agency shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision.” Baltimore Lutheran High School Ass’n, Inc. v. Employment Sec. Admin., 302 Md. 649, 662 , 490 A.2d 701, 708 (1985). More recently, we have stated that: “A court’s role 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 erroneous conclusion of law.” United Parcel Service, Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994).

See, e.g., Evans v. Burruss, 401 Md. 586 , 933 A.2d 872 (2007) (No. 1, September Term, 2007) (filed October 12, 2007), Watkins v. Sec’y, Dep’t of Pub. Safety & Corr. Serv’s, 377 Md. 34, 46 , 831 A.2d 1079, 1086 (2003), Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 568 , 709 A.2d 749, 753 (1998), Younkers v. Prince George’s County, 333 Md. 14, 19 , 633 A.2d 861, 863 (1993).

III

Discussion As indicated, the power to grant variances is set forth in the Anne Arundel County Code, Article 3, § 2-107, which specifically states: “The County Board of Appeals may vary or modify the provisions of Article 28 of this Code.... ” ¹⁴⁸ Appellants contend that the power to issue variances to the provisions of Article 28, enumerated in Article 3 of the Code, is limited by the more specific provisions found in Article 28. More specifically, they argue that certain Article 28 subsections where time limitations are discussed, 7 serve as evidence of the legislative intent to limit by time the entire variance and special exception provisions. Appellants further contend that the general language found in the special exception and variance provisions also tend to establish the legislative intent to limit the variance power of those provisions. Appellants also argue that other specific time exceptions in the Code mean that the general variance power cannot be otherwise exercised to modify the time requirements. 8 Their arguments dealing with specific exceptions to the variance and special exception provisions found in other subsections miscon ¹⁴⁹ strues the legislative intent behind those subsections, in addition to misconstruing the meaning of the plain language found in Article 3 that grants the general variance power.

In Rose v. Fox Pool Corp., we stated: “ ‘When called upon to construe a particular statute, we begin our analysis with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent.’ ” 335 Md. 351, 359 , 643 A.2d 906, 909 (1994) (citing Comptroller v. Jameson, 332 Md. 723, 732 , 633 A.2d 93, 97-98 (1993)). It is clear that there is nothing in the plain language of Article 3 that limits the ability of the Board to grant the time variances at issue in the case at bar. In the instant case, there is also nothing in the language of the time provisions of Article 28 to indicate that they were enacted to evidence an intent on the part of the County Council to further limit an already expressed general power to grant variances. To find the legislative intent put forth by appellants would require this Court to go beyond the plain language of the general variance power of the statute.

This is inconsistent with the general rules of statutory construction. “When the language of a statute is plain and clear and expresses a meaning consistent with the statute’s apparent purpose, no further analysis of legislative intent is ordinarily required.” Rose v. Fox Pool Corp., 335 Md. at 359 , 643 A.2d at 910 (citing Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 515 , 525 A.2d 628, 633 (1987)). The language of the variance power granted to the Board by Article 3, § 2-107(a) clearly states that it applies to the provisions of Article 28. That means that it applies to all of the provisions of Article 28, except as provided in Article 3. That variance power, contained in Article 3, clearly states in subsection (d) to which provisions of Article 28 it does not apply, and the provisions at issue in the case at bar are not among those listed. 9 Accord ¹⁵⁰ ingly, Article 3 applies to all of the provisions of Article 28 unless a section states specifically that such section may not be modified by the use of the general variance provision.

As the variances and special exception for which appellee seeks to obtain time variances are in Article 28 and nowhere in either Article 28 or in Article 3 is there any express statement that variances of the time requirement may not be granted, the plain language of Article 3 is clear. In Alviani v. Dixon, 365 Md. 95 , 775 A.2d 1234 (2001), while upholding a variance granted in that case, we noted a section of the general variance provisions of the Anne Arundel County Code that pointed out a specific exception, supra, of the kind that could trump the general variance provisions. In Article 3, § 2-107, where the general variance power is found, there is a specific subsection that provides, as we stated in Alviani , “ ‘(d) This section [§ 2-107] does not apply to Title IB, § 15-10]A of Article 28 of this Code.’ ” Alviani, 365 Md. at 111 , 775 A.2d at 1243 . In order for the time limitations urged by appellants to be applied in the instant case, to be that type of specific exception that would immunize the time requirements from the general variance provisions, similar language and placement would normally be required.

It simply does not exist under the language, placement and circumstances of the present case. We held in Alviani : “The Code grants the Board the authority to grant variances from sections within the code, except for the titles and sections enumerated in section 2-107(d) aforesaid. “The local legislative body clearly knew that it could except certain parts of the Code from the application of the variance provisions. [This] section ... was not one of the sections that was excepted.” Alviani, 365 Md. at 111 , 775 A.2d at 1243 . The legislative body clearly knew how to create exceptions and where to put them, i.e., normally in the same sections where the general ¹⁵¹ variance power was created—Article 3, § 2-107. The time requirements at issue in the case at bar are simply not exceptions to the general variance provisions of Article 28.

Additionally, we have long held that when a zoning decision has been made authorizing a particular action, which, by statute, must be taken by a certain time, that time, generally, does not begin (or continue) to run during a period in which opponents or other governmental agencies (or even in some cases—circumstances) have created conditions, such as permitting processes, appeals or other litigation, that block the taking of the particular action. We said in Nutter v. City of Baltimore, 230 Md. 6, 15-16 , 185 A.2d 360, 364-65 (1962), that: “The language of Sec. 44 leaves little doubt, in our view, that the period of limitations for both the obtention of a building permit or a certificate of occupancy and the exercise of the rights and privileges approved by the Board and granted by the permit or certifícate runs from the date of the final action which