North v. St. Mary's County

CATHELL, Judge. Appellant, John C. North, II, Chairman of the Chesapeake Bay Critical Area Commission (Chairman), appeals from a decision of the Circuit Court for St. Mary’s County affirming a decision of the St. Mary’s County Board of Appeals, granting a variance from the provisions of the St. Mary’s County Critical Area Program which prohibits the use requested, except as a variance, in the critical area buffer zone. Mr. ⁵⁰⁵ John T. Enoch and the Board of County Commissioners of St. Mary’s County are the appellees. Appellant poses two questions: 1.

Was there substantial evidence before the Board to support its decision to grant the variance? 2. Is the Board’s decision supported by lawfully sufficient findings of fact and conclusions of law? In addressing this case, it is important to recognize what it is and what it is not. Though appellant extensively refers to the public policy behind Maryland’s Chesapeake Bay Critical Area legislation, this is not a case involving any interpretation or review of that legislation.

The time for review and challenges to that legislation were: (1) when it was adopted, (2) subsequently when St. Mary’s County adopted its program pursuant to the requirements of the state legislation, or (3) by a direct constitutional challenge to the state and county legislation when the case was heard below. No such challenge was made below in the case at bar. This case is, thus, a simple zoning variance case. Facts Mr. Enoch, appellee, owns a 4.3 acre parcel of land adjacent to Cuckold Creek in St. Mary’s County.

The parcel is within the County’s critical area, i.e., within 1,000 feet beyond the landward boundaries of wetlands and the heads of tides. It is partially within the County’s critical area buffer. Part of the parcel is already developed with a ranch home and outbuildings. The structure at issue here is a proposed gazebo to be built within twenty-five feet 1 from the mean high water mark of the creek.

Mr. Enoch’s purpose in building the gazebo, it is alleged, is to have a place to contemplate, read and enjoy the view. ⁵⁰⁶ The existing ranch house backs up to the waters of the creek. Attached to the rear of the house is a network of exterior decking extending twenty to thirty feet out over the steep shore, which extends twenty feet or more to the waters of the creek. The water view from the deck is unobstructed. A walkway leads from the decks down the creek bank to a pier that extends out into the creek.

The gazebo is not a permitted use under the County’s program. Mr. Enoch, therefore, applied for a variance from the provisions of the code to enable him to construct the gazebo. The County’s Department of Planning and Zoning informed the Board of Appeals that Mr. Enoch did not meet the requirements entitling him to a variance because there were no special circumstances existing which established that Mr. Enoch had an unwarranted hardship. Mr. Enoch admitted at the hearing before the Board of Appeals that: I think that if we’re not permitted to use this point for a scenic view, that it would be a deprivation of the rights of the property owner, maybe not a great deprivation.... ...

The whole purpose ... is ... to be able to walk out ... and observe that view.... I have a little bench ..., a couple chairs and a table where I sit out there [the point] and read.... [T]his gazebo ... would permit a better access to this. [Emphasis added.] Standing Before addressing the questions raised by appellant, it is necessary to resolve an issue raised by appellee Enoch. He asserts that: The Commission has no standing to assert non-environmental features of the St. Mary’s County program, such as “unwarranted hardship.” He argues: Enoch respectfully asserts that the standing conferred upon the Chairman under § 8-1812 of the Natural Resources ⁵⁰⁷ Article must be interpreted as limited to the State’s interest in overseeing the resource protection program for the Bay and its tributaries; i.e. the State only has standing on variance approval issues to the extent they are based on adverse impact to water quality, wildlife or natural habitat of the adjacent shoreline. The Commission has no more standing to argue “unwarranted hardship,” in the face of an undisputed finding that this gazebo will have no adverse environmental impact, than it would to argue that the variance must be denied because Enoch did not pay the County’s application fee.

In this case the Commission concedes that if the Planting Agreement is implemented at the time of the gazebo construction, the granting of the variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat.... Wholly apart from environmental concerns, the State now sees itself as the dictator of what is a luxury and what is a hardship with respect to the use of Enoch’s property. Gazebos, says the Commission, are luxuries that the State can deny property owners even in the absence of adverse environmental consequences. Enoch disagrees.

The Court should dismiss the appeal as it contains no justifiable issue that the Commission, or its Chairman, can lawfully assert. We found it unnecessary to address a similar issue in The Wharf at Handy’s Point, Inc. v. Department of Natural Resources, 92 Md.App. 659 , 610 A.2d 314 (1992), where we based our decision on a failure to exhaust administrative remedies. It is now necessary for this issue of standing to be resolved. As we perceive the pertinent statutory provisions, the only limit on the Chairman’s right, or standing, to appeal the issuance of variances is that provision found in Md.Nat.Res.

Code Ann. § 8-1812(a) (1990 Repl.Vol.) where it provides that the Chairman must withdraw [the appeal] “if, within 35 days ... at least 13 members [of the Commission] indicate disap ⁵⁰⁸ proval.... ” There is no evidence that the Chairman’s authority was so withdrawn. The statutes addressing his right to appeal state: After the Commission has approved ... a program, the chairman ... has standing and the right and authority to ... appeal ... concerning a project approval in the Chesapeake Bay Critical Area. Id. The chairman may appeal an action or decision even if the chairman was not a party to or is not specifically aggrieved by the action or decision.

Id. at section 8-1812(c) (emphasis added). Additionally, COMAR 27.01.11C, the State regulations authorizing local programs to contain variance provisions, states: Appeals ... shall be taken in accordance with all applicable laws and procedures of each local jurisdiction for variances .... [T]he Chairman may appeal an action or decision even if the Chairman was not a party to or is not specifically aggrieved by the action or decision. [Emphasis added]. It is clear to us that the Chairman’s (thus, the Commission’s) right to appeal a decision of the Board is unrestricted. We, therefore, reject Enoch’s claim that the Commission has no standing to assert non-environmental features of the St. Mary’s County’s ordinance enacted pursuant to the dictates of the Natural Resources Article.

We are concerned that the Commission initially offered no evidence, nor did anyone, of any environmental damage that might occur if this gazebo were to be built. 2 As we perceive the general thrust of the state and local legislation, the Commission was included as an unlimited litigant in order to permit it to fully guard the environmental interests it was ⁵⁰⁹ created to protect. The local ordinance, and the state legislation, authorize the Chairman to be a full litigant. We are thus constrained to permit the Chairman to litigate all issues. As we noted in Green v. Bair, 77 Md.App. 144, 152 , 549 A.2d 762 (1988), cert. denied, 315 Md. 307 , 554 A.2d 393 (1989), quoting the trial court: It is not for the court to decide the wisdom, vel non, of the zoning code, as adopted by the Mayor and common council [of St. Mary’s County], but rather to enforce it as it is written. 1.

Was there substantial evidence before the Board to support its decision to grant a variance? The Law We said in Enviro-Gro Technologies v. Bockelmann, 88 Md.App. 323, 335, 594 A.2d 1190 , cert. denied, 325 Md. 94 , 599 A.2d 447 (1991): We, in discussing the law relative to rezoning, have stated that the courts may not substitute their judgment for that of the legislative agency, if the issue is rendered fairly debatable. The basic reason for the “fairly debatable” rule is that zoning matters are, first of all, legislative functions and, absent arbitrary and capricious actions, are presumptively correct if based upon substantial evidence; even if substantial evidence to the contrary exists. [Emphasis added, citations omitted.] See also Luxmanor Citizen’s Assoc., Inc. v. Burkart, 266 Md. 631, 647 , 296 A.2d 403 (1972); Chesapeake Ranch Club, Inc. v. Fulcher, 48 Md.App. 223, 227-28 , 426 A.2d 428 (1981). We also stated in Neuman v. Mayor & City Council, 23 Md.App. 13, 14 , 325 A.2d 146 (1974), that “where the action of the Board is not supported by substantial evidence the board’s decision cannot be said to be ‘fairly debatable.’ Under those circumstances the board’s finding falls into the category of being arbitrary, capricious and a denial of due process of law.” See also Red Roof Inns, Inc. v. People’s Counsel, 96 Md.App. ⁵¹⁰ 219, 224, 624 A.2d 1281 (1993); County Comm’rs v. Zent, 86 Md.App. 745, 752-53 , 587 A.2d 1205 (1991).

Discussion We first point out that in zoning law a variance, if granted (unlike a special exception), 3 permits a use which is prohibited and presumed to be in conflict with the ordinance. 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. Anderson v. Board of Appeals, Town of Chesapeake Beach, 22 Md.App. 28 , 322 A.2d 220 (1974), also involved a set back restriction, ie., the distance between buildings.

In Anderson , there was testimony that the property in question was unique because it was L-shaped, with the southern portion being considerably narrower than the north portion. It was contended that “there is no other way for us to locate that building.” Id. at 33 , 322 A.2d 220 . The applicant noted that ⁵¹¹ unless the variance was granted “our people wouldn’t even have any view of the water.” Id. We noted that the location of the building for which the variance was sought “was chosen to maximize the residents’ view of the water....” Id.

Experts testifying for the applicant noted that the property had “ ‘intriguing natural beauty’ with distinct contours and vegetation which should not be disturbed---- [T]he buildings are located ... to enhance the view from the bay toward the project.” Id. at 34 , 322 A.2d 220 . The circuit court, in affirming the grant of the variances, noted that the Board had taken the position that special topographic features existed, that existing buildings on the property and the property’s relation to the Chesapeake Bay entitled the applicants to consideration. We discussed Chesapeake Beach’s variance provisions noting that, unlike pure area (as opposed to use) variances, which are permitted if strict compliance with the regulations would result in practical difficulties or unreasonable hardship, 4 Chesapeake Beach’s ordinance provided that area variances could only be granted if strict application of the regulations “would result in practical difficulty and unnecessary hardship depriving the owner of the reasonable use of land____” Id. at 40 , 322 A.2d 220 . We then opined: Not only does it [the variance provision] express the criteria of practical difficulty and unnecessary hardship in the conjunctive, but it also independently requires that no area variance be granted unless it is shown that strict application of the regulations will deprive the applicant of the reasonable use of his land and that the grant of the variance is necessary for the reasonable use of the land.

It defines the hardship which must be shown as the equivalent of a ⁵¹² constitutional taking, and utilizes the same criteria employed by the Court of Appeals for establishing undue hardship.... ' [A]n area variance can be granted only if there is proof that the strict application :.. would result in an unnecessary hardship which deprives the owner of the reasonable use of his land. Id. at 41 , 322 A.2d 220 . See also Green, 77 Md.App. at 152 , 549 A.2d 762 . The St. Mary’s County variance provision at issue here, likewise, provides: [W]hen, owing to special features of the site or circumstances, the literal enforcement ... result[s] in unwarranted hardship....

In granting variances the county must: 1. Find that special conditions or circumstances exist that are peculiar to the land ... and that a literal enforcement ... would result in unwarranted hardship; 2. That a literal interpretation ... will deprive the land owner of rights commonly enjoyed by other properties in similar areas ... 3. That the granting of a variance will not confer upon a land owner any special privilege ... 4.

That the variance request is not ... the result of actions by the land owner, nor that the request arises from any condition relating to land or building use, either permitted or non-conforming, on any neighboring property; 5. That the granting of the variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat.... [Emphasis added.] The ordinance requires an applicant to meet all of the requirements. Thus, though it may be argued that this is an area variance and that under most zoning codes the applicant’s burden would be limited to showing practical difficulty, the statute at issue here is mandatory and requires not an either/or showing but the satisfying of all of the requirements, ⁵¹³ i e., the showing of an “unwarranted hardship,” and special features of the site and special conditions and circumstances, and deprivation of rights enjoyed by others in the neighborhood if the application is not granted. Additionally, if all of the above is established by substantial evidence, an applicant must additionally show, also by substantial evidence, that if the variance is granted the applicant will not receive a special privilege and that the variance request does not result from the action of the landowner and, that the request does not result from any condition relating to permitted or non-conforming buildings or uses on neighboring property and that the variance, if granted, will not have adverse environmental impact.

The St. Mary’s County ordinance, especially in light of the Commission’s approval function, is as strict as can be imagined. We have seen none tougher. In essence, the developmental/environmental battle must, of necessity, be fought by the developmental or County interests during the County program’s adoption. If the battle was fought in St. Mary’s County, it was lost or won then.

Once an ordinance such as that in the case sub judice becomes effective, an applicant’s burden cannot generally be met by references to Thoreau’s hut on Walden Pond. 5 Once these types of variance provisions are enacted, the result is generally that any project that does not cause damage to the environment will also be of such an inconsequential nature that it will not constitute an unwarranted hardship for it to be denied. Appellee Enoch, in his letter of application for a variance dated July 10, 1991, gave part of his reason for the request: “[Tjhis point would be an ideal location to construct a gazebo for the purpose of utilizing the beautiful view that is found on that point.” He then made a general claim that “[a] strict construction of the regulation would not merely result in an inconvenience but actually create a serious and unnecessary hardship” because he had “hoped to develop[ ] the point.” ⁵¹⁴ He asserts that the land conditions are unique because “only a small portion of [the land] has