Swoboda v. Wilder

ADKINS, J. In this appeal from the approval of a Rodgers Forge building permit, we shall hold that determining the front, side, and rear orientation of a townhouse end unit situated at the corner of intersecting streets requires consideration of all physical characteristics of the property, not merely street address and foundation walls, and that in an appropriate case an end unit may front on a different street than the interior units in the same townhouse group. The residence at the center of this litigation is an end of group townhouse at the corner of Pinehurst and Murdock Roads. The hotly debated question in Rodgers Forge is: which of these intersecting streets does this property front? The answer mattered to appellees Charles and Brigid Wilder, 1 because it determined where the front, side, and rear yards are located on their property, and consequently, whether the renovation plans approved by the Baltimore County Board of Appeals (the Board) comply with county setback requirements.

The interior townhomes that lie between the Wilder home and the corresponding end unit of this housing group unquestionably face Murdock Road. Like these neighbors, the Wilder ⁶²⁰ home has a Murdock Road mailing address. Unlike the interior homes and the other end unit in this townhouse group, however, both the front door and the floor plan of Wilder property are oriented toward Pinehurst Road. Citing that orientation, the Department of Permits and Management, the Zoning Commissioner, and the Board concluded that the property fronts on Pinehurst Road for setback purposes.

The Circuit Court for Baltimore County affirmed the Board. Appellants are the Wilders’ neighbors and the Rodgers Forge Community Association (the Protestants). 2 They challenge the Board’s decision, decrying its precedential effect on their individual properties and their community as a whole. They raise three questions for our review, which we restate as follows: I. Did the Board err in failing to rule as a matter of law that Murdock Road is the front of the subject site?

II

Did the Board err in considering the testimony of the Wilders and their architectural expert Warren G. Nagey of Chesapeake Design Group?

III

Is the Board’s decision arbitrary and capricious in light of its “inconsistent” prior decision in Dorothy K and Cheryl A. Milligan, No. 02-519-A? We find neither error nor inconsistency, and affirm the judgment. FACTS AND LEGAL PROCEEDINGS Baltimore County Zoning Laws The setback requirements for the Wilder property are 10 feet for side yards and 50 feet for rear yards. See Baltimore ⁶²¹ County Zoning Regulations (BCZR) Art. 1B01.C. The County defines front, rear, and side yards as follows: YARD, FRONT — A yard extending across the full width of the lot, between the front lot line and the front foundation wall of the main building.

YARD, REAR — A yard extending across the full width of the lot, between the rear lot line and the rear foundation of the main building. YARD, SIDE — A yard extending from the front yard to the rear yard, between the side lot line and the side foundation wall of the main building. BCZR § 101 (emphasis added). Section 400 of the BCZR governs accessory buildings in residential zones, providing in pertinent part: 400.1 Accessory buildings in residence zones ... shall be located only in the rear yard and shall occupy not more than 40% thereof.

On corner lots they shall be located only in the third of the lot farthest removed from any street and shall occupy not more than 50% of such third.... 400.2.b For the purposes of determining required setbacks, ... alleys shall be considered the same as existing (improved) streets. The same shall apply to corner lots regarding the placement of accessory buildings .... 400.3 The height of accessory buildings ... shall not exceed 15 feet. (Emphasis added.) The Neighborhood And Property Rodgers Forge is a Baltimore County community of approximately 1,800 brick residences that were developed beginning in the late 1930’s by the James Keelty Company as a planned row house development. The neighborhood consists of six parallel streets running east-west and four intersecting streets running north-south; it lies between Bellona Avenue and York Road. ⁶²² The Wilder lot is a trapezoid shaped 0.8 acre comer lot, zoned D.R. 10.5, with its longest street frontage being 118'4" along Pinehurst Road and its shortest frontage being 31'6" along Murdock Road.

The property gradually widens from Murdock Road, to a -width of 58'3" along a 15' alley that parallels Murdock Road and intersects Pinehurst Road. Although approximately 600 homes in “the Forge” are end of group units, many of these differ from the Wilder residence in that they (a) are not located on a corner lot, (b) have their main entrances leading from the same street as all the interior homes in their housing group, (c) have only one exterior door that faces the “address” street, and/or (d) share the same roofline, footprint, and common foundation walls as the interi- or units in the same group. - Photographs show that the roofline of the Wilder residence is trussed perpendicularly to the common roof line of the interior units in the same housing group, so that the Wilder roof faces west toward Pinehurst Road rather than north toward Murdock Road. In addition, the Wilder residence has a different and larger footprint than the adjacent interior residences in the housing group. Specifically, the Wilder residence is wider and deeper than adjacent interior units, so that the east wall separating appellant Goldman’s residence from the Wilder residence is only partially shared.

Moreover, as a result of this larger footprint, the common foundation wall facing north toward Murdock Road, in which all interior units of this housing group have their front entrances, “dead ends” into the east wall of the Wilder residence, forming a 90 degree corner where Goldman’s residence intersects with the Wilder residence. Similarly, the rear foundation wall common to the interior units ends at another 90 degree corner into the alley side of the Wilders’ east wall. The floor plan of the Wilders’ home is oriented so that a centrally located entry door and hallway faces west toward Pinehurst Road. Off this foyer are a living room, dining room, and staircase.

Leading out from this door to the sidewalk along Pinehurst Road, there is an approximately 6' by 4' stone stoop and matching path. To the right and left of the door are ⁶²³ symmetrical bay windows that extrude from the 39 foot wide facia facing Pinehurst. On the second floor, centered above the door and bay windows, are three smaller windows flanked by shutters. On the third floor are three dormer windows.

The north side of the Wilder home facing Murdock Road measures only 22.5 feet in width. It has a door located to the right of a brick chimney, a shuttered window to the left of the chimney, and a raised 16' by 8' stone porch. The door from the patio leads directly into the living room. There are no steps or path leading from the porch to the sidewalk on Murdock Road.

On the second floor are two shuttered windows on either side of the chimney. On the third floor, where the pitch of the roof reduces the width of this side, two smaller and unshuttered windows flank the chimney. The south side of the property has a door leading from the kitchen to a yard. A detached 20' by 20' brick garage lies between this side of the house and the alley paralleling Murdock Road.

A gated wooden privacy fence extends from the corner of this face to the sidewalk on Pinehurst Road, then continues along that sidewalk to a gated masonry wall that separates the Wilder yard from the alley. Another wooden privacy fence separates the Wilder yard from the adjacent yard of appellant Jill Goldman. The east side of the Wilder residence separates it from the Goldman residence. As noted above, however, the Wilder’s east wall extends beyond the footprint of the Goldman residence.

Representing that the front yard of their home faces Pinehurst Road, the Wilders obtained a building permit to add a 13' by 13' one story extension to their kitchen, as well as an 8.5' by 13' covered porch connected to the kitchen addition, for a total expansion of 21.5' by 13'. If the front of the Wilder home does face toward Pinehurst Road, then the kitchen addition would be in the “alley” side yard, between the house and the garage, and therefore in compliance with the 10 foot side yard setback required under Baltimore County zoning law. If the front of the Wilder home faces Murdock Road, ⁶²⁴ however, then the proposed addition would be in the rear yard, so that a variance reducing the 50 foot setback to 29 feet would be necessary. Neighborhood Objections An anonymous complaint to zoning authorities asserted that the Wilder home fronts on Murdock rather than Pinehurst Road.

The County inspected the property, then issued a stop work order on the ground that the Wilders’ permit had been obtained through “false or misleading information” regarding the orientation of the property. The Wilders successfully challenged the stop work order, obtaining the Zoning Commissioner’s ruling that their property faces Pinehurst Road. The Protestants object that the construction of the proposed addition in the yard between the Wilder home and the alley would break up the continuity of the open yards in the rear of interior units comprising the Wilders’ townhome group. When the stop work order was rescinded, the Protestants appealed to the Board.

Asserting “a public interest in the proper definition or analysis of the situation of front, side, and rear yards in a townhouse (row) setting,” People’s Counsel for Baltimore County also filed a hearing memorandum with the Board, but did not participate in the ensuing evidentiary hearing. Counsel urged the Board to conclude that the relevant Baltimore County zoning laws were “either ambiguous or flexible,” so that “the totality of the circumstances may be taken into consideration.” Using that approach, the “preliminary view” expressed by People’s Counsel, premised upon an incomplete factual record, was that “the front yard should be determined to be consistent with the Murdock Road frontage of the other houses in the row.” The Wilders’ Case At the evidentiary hearing before the Board, Mr. Wilder testified that when he first looked at the house, he was shown a brochure with a photograph featuring the Pinehurst Road side and describing the house as an “Attached Brick Center ⁶²⁵ Hall Colonial Facing Pinehurst Road.” The brochure, along with exterior and interior photographs of the property, were introduced into evidence. Wilder explained that on the Pinehurst Road side of the house are the main entrance door, doorbell, mailbox, porch light, lamppost, and a stone walkway leading from the sidewalk to the door. This door is centrally placed between two large bay windows.

On the face of the house next to the door are house numbers and a welcome sign. The Wilder family and their visitors use the Pinehurst Road door exclusively for entry, mail, and deliveries. Just inside the Pinehurst road door, the dining room is to the right of the central hallway and staircase, while the living room is to the left. Although there is a door leading from the living room out onto the stone porch facing Murdock Road, Wilder did not have a key to that door.

Wilder was not aware of there ever having been a walkway from the sidewalk to the Murdock Road door or porch. The galley style kitchen in the house has a door leading outside to a separate garage and a 15 foot wide alley. The kitchen did not provide satisfactory room for the Wilder family, which includes three school-age daughters. After visiting other homes in the neighborhood, Wilder preferred to add a breakfast room like others he saw.

Wilder presented photographs of other end of group homes, depicting 13 of such homes with porches or additions in the analogous location proposed for the Wilder home. But Wilder did not know if variances were necessary or obtained for those additions. Mrs. Wilder testified that visitors always come to the main door facing Pinehurst, where they ring the doorbell. No one has ever come to the Murdock Road door.

Packages, mail, and the Rodgers Forge Community Association newsletter and correspondence are hand-delivered to that entrance as well. The Wilders’ contractor, Mr. Cooper, recounted that he reviewed a plat of the property with several people in the Zoning office, including Carl Richards, in order to discuss ⁶²⁶ what could be done. Cooper proceeded on the understanding that the addition could be built on the alley side of the house because the home faced Pinehurst Road. A building permit was issued on that basis.

Construction proceeded until the stop work order was issued. The Wilders also called Warren G. Nagey, of Chesapeake Design Group, who offered his expert opinion as an architect that the house fronts on Pinehurst. In his view, the house has two side yards and a front yard, with no back yard. He further opined that there was no other place to put an addition on the house, and that the proposed addition would not block the adjoining neighbor’s residence.

On cross-examination, Nagey acknowledged that the comer position of the lot means that if the Wilders wished to use the yard between their home and Murdock Road for a swing set or gazebo, that would interfere with the neighbor at 203 Murdock, whose front yard would be adjacent to such structures. Carolyn Winston, a real property assessor with the Maryland State Department of Assessments and Taxation, reported that when she visited the Wilder house to perform a tax reassessment, she went to the main door on the Pinehurst side. Two Rodgers Forge homeowners, one of whom is a licensed real estate broker, testified that they live in similar homes. Each considered the Wilder home to front on Pinehurst Road.

Neither these homeowners, nor another neighbor who lived on Murdock Road, objected to the proposed addition or felt that it would detract from neighborhood integrity or property values. The Protestants’ Case Joseph A. Segreti testified on behalf of the Board of Directors of the Rodgers Forge Community Association, which opposes the proposed addition. He asserted that property values in the neighborhood reflect the community’s strict adherence to the Keelty Company’s original concept. In his view, the Wilder addition would harm the architectural integrity of the neighborhood and reduce property values, by mixing incompatible design and materials and reducing the airflow ⁶²⁷ and sunlight through the back yards of other homes in the same housing group.

The Wilders’ next door neighbor, Jill Goldman, recounted the concerns that led her to oppose the addition. Although she initially stated in writing that she agreed to the proposal, she did so in an effort to avoid conflict with the Wilders. When she discovered that the Wilders had rerouted electrical wires and attached them to the back of her house without her knowledge or consent, she changed her mind about opposing the addition. She expressed concern that the addition would block air and light into her home and decrease the value of her property.

Rodgers Forge resident Carol Zielke, a neighbor of the Wilders, testified that other end of group homes have the same floor plan as the Wilder home. She counted the number of group homes in the neighborhood and estimated that approximately one-third of all Rodgers Forge homes could be affected by a ruling that the Wilder home faces Pinehurst Road. She did not consider the size of the existing kitchen to be a hardship, pointing out that all homes in the community have had this same size kitchen for years. Supervisor of Zoning Review Carl Richards reviews “all development proposals, permits and all information, referrals, to the zoning office.” After receiving an anonymous phone call “from the community” complaining about the Wilder addition, he visited the site on his lunch hour.

Richards identified many factors that are considered in deciding where the front of a dwelling is locating. Among these are address, neighborhood design, placement of the front door, and arrangement of kitchen and bedrooms. The process by which Richards’ office determines orientation includes “pretend[ ]ing” that “the building is in the center of a hundred acres.” After walking “around the house,” several questions arise: What looks like the front? Where are your accessory buildings?

What really physically is the physical construction of the building? What does it look like in the front? ⁶²⁸ That’s without regard to what side it faces, whether it’s front or rear. So its actual physical conditions are depended on more than anything else. The intent of the owner is not as important as physical conditions.

Richards then explained why he agrees with the Protestants that the Wilder home fronts on Murdock Road. He observed that it is not uncommon to have no entrance to the front of a home in Baltimore County. Disagreeing with the Zoning Commissioner, and noting that Baltimore County zoning regulations require garages to be in the rear yard, Richards regards the detached garage as an “elephant in the living room,” requiring the conclusion that the yard where the addition is proposed is the back yard of the Wilder property. Herbert A. Davis, a realtor, appraiser, and former member of the Board of Appeals, reported his expert opinion that the Wilder home faces Murdock Road.

He cited its “appearance,” “address at 201 Murdock Road,” and “the garage ... in the rear[,]” but acknowledged that “by definition, a center hall colonial house ... has the hall in the center,” where the front door opens. He feels that the proposed addition would negatively affect the use of adjacent properties owned by Mrs. .Goldman and others in the townhouse group. Moreover, by setting precedent for other similarly situated homes in Rodgers Forge, approval of the addition could have a significant negative effect on the value of other homes in the group and the greater community. James Keelty, grandson of the original developer of Rodgers Forge and current representative of the Keelty Company, also opposed the Wilder addition.

He recalled watching as a boy when common foundations were poured “more or less in a monolithic foundation.” Houses, garages, and alleys were built at the same time. At the time of the hearing, moreover, the Keelty Company was in the process of building townhouse groups with “the garage ... in the front of the house” on property immediately to the north of Rodgers Forge, in a development called Rodgers Choice. Keelty testified that the County had determined that an end of group home located at ⁶²⁹ One Anvil Court in that new community, which he believes is similar to the Wilder home, faced Anvil Court. The Protestants’ final witness was Jack Dillon, who testified as an expert in land use and planning.

He formerly worked for Baltimore County in that capacity. Dillon opined that the Wilder home fronts on Murdock Road. In support, he explained that townhouse groups were built to a specified design that is consistent throughout the Rodgers Forge community. Each group has continuous and common foundation walls that lie at a specific setback, with the front foundation wall running parallel to the street of its address and the rear foundation wall running parallel to the alley.

Interior walls separate each unit. Dillon construed the BCZR section 101 definition of “front yard” as “a yard extending across the full width of a lot between the front lot line and the front foundation wall of the main building” to mean that the Wilder home fronts on Murdock Road. He views this construction as consistent with the BCZR section 400.2 and 400.3 requirements governing accessory buildings such as garages, which are not permitted in side yards. Using a community map, Dillon illustrated the potential harm that a contrary ruling might have on the Rodgers Forge community, given the typicality of the Wilder home.

The Protestants also presented two memoranda from the Office of Planning to Timothy M. Kotroco, Director of the Department of Permits and Development Management, regarding the proposed addition. These reflect that County planners initially approved the Wilder addition, then opposed it, then re-approved it with conditions. 3 The later memo, ⁶³⁰ dated February 8, 2005, titled “2nd REVISED COMMENTS,” authored by Mark A. Cunningham, and signed by Section Chief Lyn Lanham, states: After further review of the [Wilders’] request, and another site visit of the subject property, the Office of Planning retracts the revised comments issued by this office dated December 2,2004. This office does not oppose the [Wilders’] request providing the following conditions are met: 1. Exterior building materials of the proposed addition shall be similar to the existing dwelling. 2.

The proposed addition shall not go beyond 1 story. 3. Submit building elevations to this office for review and approval prior to the issuance of any building permits. The Board’s Decision The Board affirmed the Zoning Commissioner’s conclusion that the Wilder residence fronts on Pinehurst Road. Acknowledging “the laudable efforts of the Rodgers Forge Community Association to maintain the architectural integrity of the neighborhood[,]” the Board pointed out that “a number of homes in Rodgers Forge, similar to that of the Wilders in the instant case, have constructed porches or additions from the side of the building where the garage is located or on the opposite side from where the garage is located.” The Board agreed with People’s Counsel that the orientation of the home is not defined as a matter of law: The Board is not inclined to rule that, as a matter of law, either Pinehurst Road or Murdock Road is the front of the property in question.

The Board considers that the law is either ambiguous or flexible in this area as noted by People’s Counsel in his Brief, and feels that the totality of the circumstances may be taken into consideration in this case. ⁶³¹ The Board then considered the BCZR definition of “front yard” and the dictionary definition of “width” as “a distance from side to side; a measure taken at right angles to length; largeness or greatness in extent and girth at the widest part.” It also “accepted] the testimony of architect Warren Nagey and the other residents” of similar end of group townhouses that certain of these corner residences in Rodgers Forge are constructed so that they face a different direction than the other units in their housing group. Collectively, the evidence and law persuaded the Board that the Wilders’ home is fronting on Pinehurst [Road]. The widest part of the building, 39 feet, fronts on Pinehurst Road. The 22.5-foot ends facing the alley and Murdock Road do not constitute the widest part of the building---[T]he main entrance to the home is through the door facing Pinehurst Road.

The home is a center-hall Colonial with a center hall beginning as one enters the door facing Pinehurst Road. The Pinehurst side of the house is the most attractive with two bay windows on either side of the door. There are no structures on the front of the house facing Pinehurst to detract from it. There is a stone walkway from the sidewalk on Pinehurst to the front door and a decorative lamppost on the corner of the walk between the front walk and the Pinehurst walkway.

The welcome mat is located at the door as well as the mailbox and doorbell. There is one door on the Murdock side of the home which goes to a stone patio. There is no walkway from the patio to the Murdock Road sidewalk, and testimony from a neighbor who has lived across the street for 43 years indicated that there never was a sidewalk from Murdock Road to the Murdock side of the Wilders’ home. As stated by Mr. Carl Richards in his testimony on behalf of the Protestants, if the Wilder home was placed in the middle of a 100-acre field, there would be no question that the front of the home was the side of the house facing Pinehurst Road. ⁶³² The Board enumerated and rejected each of the Protestants’ arguments.

As for the location of the garage and fences, the Board explained: The home was constructed in the late 1930s, long before any zoning ordinances were passed with respect to the construction of garages in the rear of homes. If anything, the garage may be a nonconforming use as it is presently located. The same can be said for the 6-foot fences which separate the Wilders’ home from their neighbor at 203 Murdock Road and also runs along the side of the property next to the alley off of Pinehurst. The Board distinguished the Keelty Company’s new construction in Rodgers Choice: The main and only entrance to the home [at One Anvil Court] faced Bellona Avenue.

The side of the house, determined by the County to be the front, had a built-in garage and one window — no door. However, the plan of the house showed the main entrance on Bellona Avenue and a small porch with steps going down the side of the porch toward Anvil Court. It was not clear if a path from the garage and driveway to the porch was to be constructed, but no stairs were shown to lead from the porch to Bellona Avenue. Therefore, even if the main entrance was on the Bellona Avenue side of the house, visitors and residents would normally come to the Anvil Court side of the house and go around to the Bellona Avenue entrance.

The Board can understand why the County determined that the Anvil Court side of the house would be the front. This does not change the position of the Board in the instant case. With respect to the effect of the Wilder addition on other properties in Rodgers Forge, the Board concluded “that allowing the construction ... would [not] affect the integrity of the other properties in Rodgers Forge.” The “conditions set forth by the Planning Office in its February 8, 2005 memo” would be sufficient to preserve and protect other properties. Moreover, “it would be far more detrimental to find that the Pinehurst Side of the Wilder home was a side yard,” because ⁶³³ that “would allow for an addition to be constructed within 10 feet of the property