Montgomery County v. Rotwein

KRAUSER, J. Seeking to build an enclosed, two-car garage and a walkway on her residential property, appellee Frances Rotwein applied for variances from front and side yard setbacks mandated by the Montgomery County Zoning Ordinance. When the Board of Appeals for Montgomery County (“the Board of Appeals” or “the Board”) denied that application, Rotwein filed a petition for judicial review in the Circuit Court for Montgomery County. The circuit court reversed the Board’s decision and remanded the case to the Board with instructions that it reopen the record to receive additional evidence regarding alternative locations for the garage and that it reconsider whether the property is unique in light of North v. St. Mary’s County, 99 Md.App. 502 , 638 A.2d 1175 (1994). Appealing that decision, Montgomery County presents one question for our review: Did the [Bjoard of [AJppeals properly construe the zoning ordinance to require it in reviewing an application for a variance to make findings based on the unique characteristics of the property without considering the location of existing structures on the site?

For the reasons that follow, we reverse the decision of the circuit court and remand the case to that court for it to affirm the decision of the Board of Appeals. ⁷²¹ APPLICABLE ZONING LAW The Montgomery County Zoning Ordinance authorizes the Board of Appeals to hear and decide petitions for variances. See Montgomery County Zoning Ordinance § 59-A-4.il. But it authorizes only area variances, as it expressly prohibits the Board of Appeals from granting a variance “to authorize a use of land not otherwise permitted.” § 59-G-3.1(d). To obtain an area variance, an applicant must prove by a preponderance of the evidence that (a) By reason of exceptional narrowness, shallowness, shape, topographical conditions, or other extraordinary situations or conditions peculiar to a specific parcel of property, the strict application of these regulations would result in peculiar or unusual practical difficulties to, or exceptional or undue hardship upon, the owner of such property; (b) Such variance is the minimum reasonably necessary to overcome the aforesaid exceptional conditions; (c) Such variance can be granted without substantial impairment to the intent, purpose and integrity of the general plan or any duly adopted and approved area master plan affecting the subject property; and (d) Such variance will not be detrimental to the use and enjoyment of adjoining or neighboring properties. § 59-G-3.1.

THE PROPERTY Rotwein purchased the property at 6605 Tulip Hill Terrace with her now-deceased husband, Joseph Rotwein, in 1955. The lot, which is improved with a one-story single-family house, has a total area of 31,091 square feet. The property is 83 feet wide at the front where it abuts the street, 87 feet wide at the rear, 415 feet along one side, and 325 along the other. The house sits eight feet from the right-hand side lot line and twenty-three feet from the front lot line. ⁷²² Because the property sits at a bend in the road, its front yard is deeper on the eastern side of the property than on the western side.

The lot slopes downward from east to west, and also from front to back. The next narrowest lot in the neighborhood is 98 feet wide, and other lots in the neighborhood average 108 feet in width. Rotwein has lived on the property since her house was built. The house is a one-story frame building, and the lower level of the house is a finished basement.

In the front of the house is an exposed carport with a driveway that accesses the road at two locations. In the rear are a deck, a slate patio, a pool, and a tennis court. The pool and the tennis court were added to the rear of the house in the 1970s. And, in 1983, the Rotweins obtained a variance from existing setback requirements to build a second, enclosed patio on the eastern side of their home.

Mrs. Rotwein now wishes to build an enclosed, two-car garage on the eastern corner of the front of her property, where the carport presently is. The garage, as proposed, would be constructed three feet from the eastern edge of the property, and eighteen feet from the street. But the property, as currently zoned, 1 requires a twenty-five-foot setback from the street and an eight-foot setback on each side, with the sum of the setbacks of both sides totaling at least eighteen feet. Montgomery County Code §§ 59-C-l.323(a), (b)(1).

Accordingly, Rotwein requests a variance of seven feet from the front setback and a variance of three feet from the sum of the side setbacks, because it would reduce the sum of the side yards to fifteen feet. THE BOARD OF APPEALS HEARINGS The Board of Appeals held a hearing on Rotwein’s variance application on January 21, 2004. Rotwein’s architect, Dean ⁷²³ Brenneman, testified that Rotwein, who was 84 years old, wanted to build the garage because she felt unsafe entering her house and wished to have the ability to enter and exit her house within an enclosed garage. He explained that Rotwein’s lot is much longer and narrower than the other lots in the neighborhood, and that the other neighborhood properties generally have two-car garages.

Brenneman opined that, as a result of the narrow shape of the property and the “deep” curvature at its front, the only location the garage can be placed is at the front, eastern corner of the property. If placed there, it would be set apart from the main house, but connected to it by an areaway. The Board questioned Brenneman as to whether several alternative locations and configurations for the garage, which would not require a variance, would be feasible. Brenneman rejected all of the alternatives suggested by the Board.

He stated that one alternative proposed by the Board—enclosing the existing carport—was unacceptable because the front door of the house is accessed from inside the carport, such that “if you enclose that as a garage you no longer have a front door of the house.” He also rejected the Board’s proposals that a one-car garage be built instead of a two-car garage, or that the garage be placed closer to the main house, so that it would be as large as originally proposed, but within the building envelope. He found the former unacceptable because it would reduce the value of Rotwein’s property, given “the neighborhood character of having two-car garages for houses of this size in this area,” and the latter unfeasible because it would require that the property be re-graded. The re-grading, he informed the Board, would bury the windows to the lower level of the house, necessitating “window wells” to allow light and air to enter that level. If reconfigured that way, the garage, he stated, would block the front door of the house.

Brenneman also rejected the Board’s suggestion that the garage be built behind the house, which could be entered from a road that runs along the rear edge of Rotwein’s property, stating, “that’s not really a feasible approach” because there is ⁷²⁴ “a steep drop-off and then we have mature vegetation” at the rear of the property. After Brenneman’s testimony, the hearing was continued to March 24, 2004, to allow Rotwein to submit additional materials required by § 59-A-4.22(a)(l) of the zoning ordinance. 2 When the Board reconvened on that date, Brenneman further noted that the lot was too narrow to build the garage on the side of the house. He also stated: Regarding topography, this property has a change of grade across from front to back, as well as from right to left. If we were to try and put a garage anywhere on the rear of the property or on the lower left side of the property, we would not achieve the goal of putting a garage at the main living level, which is necessary for access---- Rotwein’s son, who represented her in this matter, then asked Brenneman, “Are you familiar with any other extraordinary conditions that might exist in this situation?

And let me lead you, as such as security or accessibility that might be issues in this particular garage being built in this fashion?” When Brenneman began to talk about the elderly Rotwein’s mobility problems, Board Chairman Donald Spence interrupted, prompting the following exchange: MR. SPENCE: I mean, now we’re talking about the personal circumstances, and not dealing with the property. And as you know, counsel, that’s not relevant to this proceeding. MR.

ROTWEIN: No, I believe under your code it asks for any other extraordinary situations that might exist, such as an elderly woman. ⁷²⁵ MR. SPENCE: Relating to the property, counsel. That’s it. Board Chairman Spence asked Rotwein how the property was unique or peculiar, and Rotwein responded, “it’s the narrowest lot in the whole neighborhood .... which makes ... putting this garage a requirement of going into the side yard and front yard setbacks, because of the configuration of the lot.” A discussion by the Board of Rotwein’s application ensued.

During that discussion, the Board noted that the “uniqueness” inquiry requires comparing the subject property with adjoining properties. As to whether the property was unique, Board Chairman Spence noted that the evidence indicated that the property is “a substantial percentage more narrow” than neighboring lots. The Board also questioned whether Rotwein’s “hardship” was “self-imposed,” in that it was Rotwein’s choice to erect a carport, a tennis court, and a pool, thereby limiting potential locations for a two-car garage. Later, the Board issued an opinion denying Rotwein’s application.

Specifically, it found that Rotwein’s application did not meet the requirements of § 59-G-3.1(a) or (b). With respect to subsection (a), it opined: The petitioner contends that the requested variances are warranted because of the exceptional narrowness of the property. While the property does appear to be narrower than other lots in the neighborhood, the petitioner has failed to show how this condition results in a practical difficulty in complying with the front and side setback requirements. In this case, the petitioner’s site plan ... indicates that there is sufficient room within the building envelope of the property to locate a reasonably sized garage in the front of the house (e.g., where the carport is presently located.) The petitioner would have difficulty meeting the front and side setbacks only because she proposed to detach the garage and separate it from the house.

This is a matter of ⁷²⁶ convenience, and does not rise to the level of a practical difficulty. With respect to subsection (b), the Board found that, “because there is sufficient room within the building envelope of the property to locate a reasonably sized garage, either in front or to the rear of the house, the requested variances for the construction of a one-story addition are not the minimum reasonably necessary.” Since failure to meet any criterion enumerated in the ordinance results in denial of the variance, the Board must, it observed, deny Rotwein’s petition. On May 20, 2004, Rotwein filed a petition for judicial review in the Circuit Court for Montgomery County. On July 19, 2004, Montgomery County moved to intervene as respondent on the grounds that it had a direct interest in the case: “the proper administration and interpretation of its laws.” On August 11, 2004, the circuit court granted Montgomery County’s motion to intervene.

Following a hearing on November 3, 2004, the circuit court issued an order on November 16, 2004, reversing the decision of the Board. Then, remanding the case to the Board of Appeals, it ordered the Board of Appeals to apply the following language from North v. St. Mary’s County: “Uniqueness” of a property for zoning purposes requires that the subject property have an inherent characteristic not shared by other properties in the area, i.e., its shape, topography, subsurface condition, environmental factors, historical significance, access or non-access to navigable waters, practical restrictions imposed by abutting properties (such as obstructions) or other similar restrictions. In respect to structures, it would relate to such characteristics as unusual architectural aspects and bearing or party walls. 99 Md.App. at 514 , 638 A.2d 1175 (emphasis added). And it further ordered the Board to “consider such additional evidence, if any, presented by [Rotwein] to determine whether an unusual architectural aspect or unusual architectural aspects exist within the holding of North v. St. Mary’s County that require the Board’s consideration in determining ⁷²⁷ whether the requested variance should or should not be granted.” DISCUSSION Montgomery County contends that the Board of Appeals was correct in denying Rotwein’s application for a zoning variance.

In reviewing that determination, we apply the substantial evidence test. That test requires us to affirm an agency decision, if, after reviewing the evidence in a light most favorable to the agency, we find “a reasoning mind reasonably could have reached the factual conclusion the agency reached.” Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119 (1978) (quoting Dickinson-Tidewater v. Supervisor, 273 Md. 245, 256 , 329 A.2d 18 (1974)). Indeed, we may not substitute our judgment for that of the Board of Appeals unless the agency’s conclusions were not supported by substantial evidence or were premised on an error of law. Stansbury v. Jones, 372 Md. 172, 182, 184 , 812 A.2d 312 (2002).

And, in determining whether the agency’s conclusions were premised on an error of law, we ordinarily give “considerable weight” to “an administrative agency’s interpretation and application of the statute which the agency administers.” Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 68-69 , 729 A.2d 376 (1999). Section 59-G-3.1(a) of the Montgomery County Zoning Ordinance requires a “variance” applicant to prove that, owing to some characteristic “peculiar to a specific parcel of property, the strict application of these regulations would result in peculiar or unusual practical difficulties to, or exceptional or undue hardship upon,