White v. North

CATHELL, Judge. Petitioners Anne and Richard White seek the reinstatement of a decision by the Anne Arundel County Board of Appeals (Board) granting their request for a zoning variance to construct an in-ground concrete swimming pool in the sloped back yard of their home. On judicial review, the Circuit Court for Anne Arundel County reversed the Board, ruling its decision was “arbitrary and capricious.” The Court of Special Appeals affirmed the circuit court. 1 Petitioners present three questions for our review: 1. Did the Decision of the Court of Special Appeals effectively render meaningless and of no practical effect the Critical Area variance provisions required by the Critical Area Act, and as set forth in Article 3, Section 2-107(b) of the Anne Arundel County Code, by concluding that “unwarranted hardship” requires that the property owner be deprived of all reasonable use of their property before a variance can be granted!?] 2.

What is the correct standard to use in evaluating the requirement of “unwarranted hardship,” as that term is used in the Critical Area variance statute!?] 3. Does the taking of private property rights, which does not result in a denial of all reasonable use of the land, constitute an unconstitutional taking of property when the ³⁶ taking fails to serve the stated public purpose or the state police power[?] We shall address questions one and two together. In light of our determination with respect to questions one and two, it is not necessary to address the third question. We vacate the judgment of the Court of Special Appeals and direct that this case be remanded to the Anne Arundel County Board of Appeals for further proceedings consistent with this opinion and our holding in Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259 , 734 A.2d 227 (1999).

I. The Chesapeake Bay Critical Area Protection Program To understand fully the legal underpinnings of this case, a brief explanation of the Chesapeake Bay Critical Area Protection Program (Critical Area Program) is in order. The Critical Area Program is codified in Maryland Code (1974, 1990 Repl.Vol., 1998 Cum.Supp.), sections 8-1801 to 8-1816 of the Natural Resources Article. Respondent is the Chairman of the Chesapeake Bay Critical Area Commission (Commission), an arm of the Department of Natural Resources with authority to enforce the Critical Area Program. Title 27 of the Code of Maryland Regulations (COMAR) consists of the Commission’s regulations.

It is important to understand the interrelationship between the State-imposed, but locally enforced, critical area prohibitions and local zoning requirements generally. Section 8-1802 of the Natural Resources Article provides: (a) Definitions. ... (ll)(i) “Project approval” means the approval of development ... in the Chesapeake Bay Critical Area by the appropriate local approval authority. (ii) “Project approval” includes: 3.

Issuance of variances, special exceptions, and conditional use permits.... ³⁷ Section 8-1808(a)(l) requires local governments to have primary responsibility for development of programs to regulate land use in the critical area, “subject to review and approval by the CommissionThe program, “[a]t a minimum,” must include “[z]oning ordinances or regulations.” § 8-1808(e). Pursuant to these provisions, the Commission oversees the local governments in the adoption of zoning regulations for the critical area, including variance provisions acceptable to the Commission. 2 Once local critical area programs are adopted and approved, the programs can, depending upon their language, impose additional or different limitations. In the ordinance at issue here, Anne Arundel County has established different criteria for variances in the critical area. 3 See Anne Arundel County Code (1996), Art. 3, § 2-107(b) (hereinafter County Code). Finally, section 8-1812 confers full standing to the Chairman of the Commission to intervene in any administrative or judicial proceeding arising out of local project approval in the critical area, subject to withdrawal if thirteen members of the Commission oppose the intervention within thirty-five days.

See North v. St. Mary’s County, 99 Md.App. 502, 508 , 638 A.2d 1175, 1178 (noting that section 8-1812 confers “unrestricted” standing upon the Commission to appeal any administrative or judicial decision impacting the Critical Area Program), ce rt. denied sub nom. Enoch v. North, 336 Md. 224 , 647 A.2d 444 (1994). Also crucial to this case is the “buffer” the Commission requires local jurisdictions to create. See COMAR 27.01.09.01.C.(1).

A buffer is defined in COMAR 27.01.09.01.A as “an existing, naturally vegetated area, or an area established in vegetation and managed to protect aquatic, wetlands, shoreline, and terrestrial environments from man-made distur ³⁸ bances.” The buffer must extend at least 100 feet from any tidal waterway, wetland, or tributary of the Chesapeake Bay, but localities must expand the buffer “to include contiguous, sensitive areas, such as steep slopes ... whose development or disturbance may impact streams, wetlands, or other aquatic environments.” COMAR 27.01.09.01.0.(1) & (7). County Code, Article 28, section 1A-I04(a)(l) states: “If there are contiguous slopes of 15% or greater, the buffer shall be expanded ... to the top of the slope ... and shall include all land within 50 feet of the top of the bank of steep slopes.” Within that buffer, the Commission bans any new development of all “impervious surfaces” that are not “water-dependent,” which includes concrete swimming pools. 4 COMAR 27.01.09.01.C.(2). The only way to build any impervious structure like petitioners’ swimming pool is to apply and qualify for a variance under local zoning ordinances.

II

Background In 1983, petitioners purchased a 1.52 acre lot in Anne Arundel County, Maryland, near Martins Cove, a waterway that ultimately flows into the Chesapeake Bay. Their property is not waterfront property and would not be within the critical area except for a determination by county authorities that it is now within the expanded buffer area. They began improvements on the lot in 1987 and began construction of their home in 1990. In its then existing, natural state, petitioners’ lot had a gradual slope of less than 15%, therefore keeping it outside the scope of Anne Arundel County’s definition of an expanded buffer zone.

When petitioners began construction of their ³⁹ house, dirt from the excavation was pushed into the rear of the lot, creating an artificial slope of greater than 15%. It is this artificially created area that is at issue here. The record is unclear as to whether this artificially created area is contiguous with any natural buffer area. It is also unclear whether the area between the artificial slope and the waterway is itself at a 15% or more grade.

Plans for the house apparently were approved by Anne Arundel County officials and, as built, complied with that approval. There is no indication in the record that any deviation from the approved plans occurred. During the planning and construction of their home, petitioners hoped to build, but never began construction of, the in-ground swimming pool, deck, and patio. Had they built the pool before the house, or at the same time as the house, it would not have been in the buffer zone.

In 1995, petitioners began planning these accessory structures. The backyard where the artificial slope had been created was chosen as the location to construct the pool. By the time permits were sought for the pool, deck, and patio, the backyard of petitioners’ property no longer had a slope of less than 15% leading down toward Martins Cove, because the slope had been increased by the petitioners during the construction of their house. Although in its preexisting natural state, the background area was not a buffer zone, it was deemed to be in the “expanded buffer” zone created by the County under the authority of the Critical Area Program because they had increased the slope.

See County Code (1998), Art. 28, § 1A-I04(a)(l). As we have indicated, however, the record is unclear as to whether the area of the slope created by the Whites’ excavation abuts on a slope that is itself at a grade of 15% or more and thus an expanded buffer zone. 5 A County ordinance required that petitioners apply for a zoning variance to site the pool behind their house. See County Code (1996), Art. 3, § 2-107. Petitioners applied ⁴⁰ for the variance, but an administrative hearing officer denied their request.

An appeal to the Board followed. 6 The Board reversed the decision of the hearing officer in a three-to-two decision. As this decision is the basis for the proceeding before us, we shall review the relevant portions of the record of this hearing. Petitioner Anne White was the first to testify. During her testimony, she revealed that originally there “was a gradual slope, but ... this 15 percent slope [was] created by the excavation” done during the approved construction of the house.

When asked about her need for the pool, she replied, ‘Well, to enjoy it. Several of my friends have pools on waterfront properties.... I have a youngster who is interested in swimming, as—just as a course of relaxation and enjoyment, and just as part of enjoying my house.” She also stated: I cannot put [the pool] in my front yard because of the covenants in our community.[ 7 ] And, from aesthetic points of view, I don’t think I’d want it there. To the east side of the house is another slope, which is even greater than the one in the back.

And it’s wooded on that side, and it’s currently a drainage anyway. So I don’t think I’d want to put it in the drainage. The back side of the house is really the only place that would accommodate it, and that’s where it was intended. Larry Hyland, the owner of the company hired to construct the pool, admitted that an in-ground pool is an impervious surface because “water does not drain through the concrete.” Mr. Hyland also recognized that the Commission has defined ⁴¹ swimming pools as impervious.

He testified that to construct the pool, his company would “actually cut into the slope and use a steel and reinforced concrete method.” Finally, he noted that the pool could feasibly be constructed in the front yard or replace one of the parking structures on the west side of the home. Daniel J. Werner, site engineer for the deck and pool projects, testified next. He, too, recognized the impervious nature of concrete swimming pools. He further testified that the whole site is created....

It’s completely cleared. It’s sparse vegetation as far as grass and weeds.... And the soils around the house and in the disturbed area were changed during the construction of the house. And the soils in this case are, I would classify them as probably sandy clay.

They’re very dense, relatively impervious. Respondent then called Lisa Hoerger, 8 an environmental specialist with the Commission. She testified during examination by the Board that “ ‘reasonable use’ has been interpreted as meaning primary residence. And a pool is an accessory structure or recreational amenity.” Ms. Hoerger testified further that granting a variance in this case would confer to petitioners a “special privilege” within the Critical Area, which the variance law did not allow.

Patricia Miley, a planner with the County Department of Planning and Code Enforcement, also testified that “[a] swimming pool is a recreational amenity, it’s an accessory structure, and they are not permitted in the buffer.” 9 Two members of the Board signed the majority opinion which stated, in relevant part: The Board finds that unique physical conditions exist on the property. This property is steeply sloped and wooded. The lot is also an irregularly shaped parcel with a pipestem ⁴² driveway located significantly within the expanded buffer to the critical area. The septic system consumes the bulk of the front yard which is the only flat area of the parcel.

The location of the septic system forced construction of the existing residence towards the rear of the lot into the area of the steep slopes____ As a result of these unique physical conditions, there is no reasonable possibility of developing the lot as proposed without a variance to the Code requirements. The testimony of one of the Petitioners indicates that the proposed swimming pool is small. The record reflects that several homes in the neighborhood have swimming pools. The proposed swimming pool would not be visible from most properties in the neighborhood due to the pipestem shape of the lot, the dense woods and its location to the rear of the house....

As a result, the Board concludes that the granting of a variance will not alter the essential character of the neighborhood or district in which the lot is located, will not substantially impair the appropriate use or development of adjacent property, and will not be detrimental to the public welfare.... Because the pool cannot be moved to the front of the property as a result of the septic system, restrictive covenants and tree cover and cannot be moved closer to the house because of the location of the deck access, the Board concludes that the variance granted is the minimum necessary to afford relief. The property is located within the critical area, therefore, consideration of environmental impacts is essential. Because of the severe location restrictions ... and inability to place a pool in the rear yard, the Board concludes that the features of this property would cause a strict implementation of the critical area program to result in an unwarranted hardship.

The Board finds that the swimming pool would not negatively impact the critical area because it acts as a catch basin for stormwater. Thus, the run-off on the steep slopes will be lessened and the slopes stabilized by the concrete. The water in the pool can freely evaporate and recharge the hydrology of the ecosystem, but will not cause ⁴³ erosion and siltation into the critical area.... As a literal interpretation of the relevant COMAR and County Code provisions would prohibit the Petitioners from constructing ... a pool as their neighbors have, the Board concludes that such an interpretation would deprive the Petitioners of rights commonly enjoyed by other property owners in the area, and within the critical area.

For the same reason, the granting of this variance will not confer on the Petitioners any special privilege that otherwise would be denied. The lot conditions that cause the unwarranted hardship were not created by the Petitioners.[ 10 ] Therefore, the request for the variance is not based on conditions or circumstances that are the result of actions by the Petitioners. Likewise, the variance request does not arise from any condition relating to land or building use on any neighboring properties. ... [T]he Board concludes that the granting of this variance will not adversely affect water quality and will be in harmony with the general spirit and intent of the critical area program. Finally, testimony indicated that the pool will be constructed on an open lawn with mowed weeds and grass.

Therefore, there is negligible habitat. Thus, the Board concludes that the proposed variance will not adversely affect fish, wildlife or plant habitat. [Emphasis added.] A third member concurred fully with this opinion, but wrote separately. Two other members of the Board dissented. Respondent sought judicial review in the Circuit Court for Anne Arundel County.

That court reversed the Board for making “arbitrary and capricious” findings. The Court of Special Appeals affirmed. White v. North, 121 Md.App. 196 , 708 A.2d 1093 (1998). We shall vacate the decisions of the Court of Special Appeals and circuit court and order that the ⁴⁴ case be remanded for reconsideration pursuant to our opinions in this case and Belvoir Farms.

Furthermore, in light of our resolution of this matter, it is unnecessary to address at this time whether the application of the zoning variance ordinance to petitioners’ variance application constituted an unconstitutional taking of petitioners’ property.

III

Standard of Review In judicial review of zoning matters, including special exceptions and variances, “the correct test to be applied is whether the issue before the administrative body is ‘fairly debatable,’ that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions.” Sembly v. County Bd. of Appeals, 269 Md. 177, 182 , 304 A.2d 814, 818 (1973). See also Board of County Comm’rs v. Holbrook, 314 Md. 210, 216-17 , 550 A.2d 664, 668 (1988); Prince George’s County v. Meininger, 264 Md. 148, 151 , 285 A.2d 649, 651 (1972); Zengerle v. Board of County Comm’rs, 262 Md. 1, 17 , 276 A.2d 646, 654 (1971); Gerachis v. Montgomery County Bd. of Appeals, 261 Md. 153, 156 , 274 A.2d 379, 381 (1971). For its conclusion to be fairly debatable, the administrative agency overseeing the variance decision must have “substantial evidence” on the record supporting its decision. See Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 395 , 396 A.2d 1080, 1087 (1979); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 706 , 376 A.2d 483, 495 (1977), cert. denied sub nom.

Funger v. Montgomery County, 434 U.S. 1067 , 98 S.Ct. 1245 , 55 L.Ed.2d 769 (1978); Agneslane, Inc. v. Lucas, 247 Md. 612, 619 , 233 A.2d 757, 761 (1967).

IV

Discussion The variance ordinance applicable to this case, County Code (1996), Article 3, section 2-107, states in relevant part: (b) For a property located in the critical area, a variance to the requirements of the County critical area program may be granted after determining that: ⁴⁵ (1) due to the features of a site or other circumstances other than financial considerations, strict implementation of the County’s critical area program would result in an unwarranted hardship to the applicant;[ 11 ] (2) a literal interpretation of