Wood v. Valliant

Opinion by Meredith, J. In 2002, Davis Wood, appellant, obtained a building permit from the Town of St. Michaels and began constructing an addition to a residential structure at 203 Green Street. After the addition was substantially completed in 2004, one of Mr. Wood’s neighbors complained to the Town’s Zoning Inspector that the addition appeared to violate the rear setback restriction line. At the time, James Valliant, appellee, held a life estate interest in the property at 205 Green Street. For reasons we will explain in more detail later in this opinion, the Town never initiated a zoning enforcement action against Mr. Wood.

Instead, the building passed its final inspection in 2006, and the Zoning Inspector issued Mr. Wood a temporary occupancy permit. In 2010, the Zoning Inspector determined that it would impose an undue hardship if she required the removal of the encroaching structure, and she issued Mr. Wood a final occupancy permit. Some of Mr. Wood’s neighbors, including Mr. Valliant, appealed the Zoning Inspector’s determination, and the Town’s Board of Zoning Appeals affirmed the Zoning Inspector’s action in 2013. Mr. Valliant and others then filed a petition for judicial review in the Circuit Court for Talbot County.

The circuit court’s ruling in favor of Mr. Valliant and the other petitioners in that proceeding is the subject of this appeal (although Mr. Valliant alone participated as an appellee in this Court). 1 One of the arguments made by Mr. Wood in opposition to the petition for judicial review was based upon a statutory ⁶⁸⁹ time limit that prohibits a person from initiating an action “arising out of a failure of a building or structure to comply with a setback line restriction more than 3 years after the date on which the violation first occurred.” Maryland Code (1973, 2013 Repl. Vol., 2014 Supp.), Courts and Judicial Proceedings Article (“CJP”), § 5—114(b)(1). The circuit court concluded that this statute was inapplicable to the petition seeking judicial review of the ruling of the Town’s Board of Zoning Appeals. But the circuit court acknowledged that “this action would not exist without the setback violation on Mr. Wood’s property, which occurred sometime between 2002 and 2004.” And, indeed, the only ruling as to which Mr. Valliant and the other petitioners sought relief in this case was the Town’s decision not to require Mr. Wood to remove the structure that created the setback line violation.

Consequently, we conclude that the circuit court erred in rejecting Mr. Wood’s argument that the petition for judicial review was time-barred by CJP § 5-114(b), and we will reverse the judgment of the circuit court. 2 ⁶⁹⁰ FACTS AND PROCEDURAL BACKGROUND Davis Wood owns the residential property located at 203 Green Street in St. Michaels, Maryland, In the fall of 2002, the Town of St, Michaels issued a building permit for him to renovate the existing structure and construct an addition that extended from the rear of the house. In 2002, Mr. Valliant was the owner of an interest in the property next door, at 205 Green Street. 3 In 2003, Mr. Valliant and others complained to the Zoning Inspector that the height of the foundation on Mr. Wood’s renovated building was not in accordance with the building permit. But the Zoning Inspector concluded that the elevation of the foundation was in compliance with the building permit, and that ruling was upheld by the Circuit Court for Talbot County and this Court. Construction proceeded.

By May of 2004, the footings and foundation for the addition were placed, and framing had been completed. The renovations to the pre-existing structure were completed. But, in May 2004, a new complaint was made to the Zoning-Inspector by one of Mr. Wood’s neighbors, who asserted that the addition appeared to be in violation of the applicable rear lot line setback restriction. By letter dated May 17, 2004, the Zoning Inspector advised Mr. Wood that, although the addition was in compliance with his building permit, the addition did not meet the required 25 foot rear yard setback restriction.

The Zoning Inspector suggested that Mr. Wood apply for a variance. He did so, but he was notified by letter dated October 6, 2004, that his application for a variance was denied. ⁶⁹¹ Mr. Wood began to explore options for removing the portion of the structure that violated the 25 foot setback restriction, and he worked with an architect to develop revised plans for modifying and finishing the house. On August 12, 2006, the construction on Mr. Wood’s property passed the “final” inspection required by his building permit, but the setback violation created by the addition remained unabated. On October 24, 2006, the Zoning Inspector issued Mr. Wood a temporary occupancy permit for the residence at 203 Green Street.

The Zoning Inspector extended the temporary occupancy permit eleven times. After the eleventh extension of a temporary occupancy permit was granted on April 1, 2010, the Zoning Inspector conducted a fresh review of the case to see if there was an alternative to requiring removal of the portion of the structure that violated the 25 foot setback restriction. Based upon her 2010 review of the records in the file and the Town’s zoning ordinance, she decided not to require enforcement of the setback restriction. On April 30, 2010, the Zoning Inspector issued a memorandum ruling in which she found that “an undue hardship, of the type specifically contemplated by the St. Michael’s Zoning Code, § 340-8.D, would result if the owner were required to remove the improvements constructed and completed pursuant to the legally issued building permit.” The memorandum concluded: The improvements may remain as constructed and shall be considered a legal non-conformity with respect to rear-yard setbacks, front-yard setbacks and any other matters which now or in the future may be shown to be nonconforming with respect to the addition as it was lawfully constructed pursuant to [Building] Permit No. 3226.

As a result of the above findings of this date, and as a result of my determination that all inspections have been satisfactorily issued, a final occupancy permit has been issued and any now existing non-conformity resulting from lawful construction pursuant to Permit No. 3225 shall be deemed a legal non-conformity. When Mr. Wood’s neighbors, including Mr. Valliant, received notice of this action, they filed an appeal, asking the ⁶⁹² Town’s Board of Zoning Appeals to overrule the decision of the Zoning Inspector. At the hearing before the Board, the Zoning Inspector explained that the improvements to Mr. Wood’s property had been constructed “in accordance with the plans and specifications that had been previously submitted and approved by the different reviewing agencies within the Town, including [her] predecessor in the position of Zoning Inspector/Code Enforcement Officer.” She noted: “The rear yard setback requirement violation was not noticed o[r] commented upon until after the improvements to the Wood house in violation of that requirement were completely constructed.” She confirmed that, when the application for the building permit was filed, the location of the addition was clearly shown on the plans, and, despite multiple levels of review by the zoning office and the Town’s Historic District Commission, no one had ever raised a concern about the rear yard setback. When the Town had published the required notice of issuance of the building permit in 2002, no appeal was filed.

The Zoning Inspector noted that, after construction began, the first inspection required under the building permit was for the footers, which were inspected and approved on May 29, 2003. The Zoning Inspector commented that, “[i]t is at this stage of construction that compliance with setbacks normally—generally is verified.” But no one raised any issue about the rear yard setback at that point. Noting that she had been hired as the Zoning Inspector in July 2003, the Zoning Inspector observed that the next inspection, addressing the framing, occurred on February 12, 2004, and, again, no one raised any question about compliance with the rear yard setback. The Zoning Inspector testified that, when a neighboring property owner notified the Town on May 3, 2004, that there appeared to be a violation of the rear yard setback restriction, that was “the first time any issue relative to the rear yard setback is documented in the project files.” She investigated the complaint, confirmed the setback violation, and suggested to Mr. Wood that one possible solution would be for him to seek a variance from the setback restriction.

Mr. Wood’s application for a variance was denied. ⁶⁹³ The Zoning Inspector testified that “the house was substantially completed prior to the discovery of the rear yard setback issue,” and, after the variance was denied, Mr. Wood “sought a temporary occupancy permit for that portion of the house not in conflict with the rear yard setback requirement. That request was granted on October 24, 2006.” She acknowledged that, in the spring of 2010, “the then Town Manager asked me if I would be willing to review the Town Zoning Code to see if there were any provisions in the Code which could have been considered but had not been considered during the initial process.” But, she insisted, “I reconsidered the matter on my own accord free from any outside influences.” The Zoning Inspector said she based her decision not to take action to enforce the 25 foot rear yard setback restriction, and to issue the final occupancy permit, on several factors. It appeared that the previous zoning inspector had missed the setback problem and had never discussed it with Mr. Wood or his representatives. Moreover, the Zoning Inspector stated: “I did not believe that [Mr. Wood] or any of the representatives ever deliberately tried to avoid compliance with the 25-foot rear yard setback requirement.” Further, “the improvements to the Wood residence were made in substantial compliance with all approved plans and requirements.” The Zoning Inspector found no evidence that Mr. Wood “ever tried to avoid compliance through deceit or trickery,” and, during the seven years this Zoning Inspector had been dealing with this project, “the Woods and their representative[s] ... appeared to be straight forward and forthright.” The Zoning Inspector was also influenced by her discovery that the Town’s Zoning Code had been amended in September 2003, at which time Ordinance 291 added § 340-8.D to the Code.

This provision, which provided for non-enforcement of provisions of the Zoning Code under certain circumstances to avoid “undue hardship,” had not been previously considered. Section 340-8.D of the Town’s Zoning Code provided, in part: To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction ⁶⁹⁴ was lawfully begun prior to the effective date of adoption or amendment of this chapter and upon which actual building construction has been diligently carried on. The Zoning Inspector testified: “I deemed that consideration should have been given to that provision. Clearly construction had begun and diligently been carried on prior to September 2nd, 2003,” the date on which the Town adopted this amendment to Chapter 340.

The Zoning Inspector concluded: “To require the redesign and reconstruction of the substantially completed house would impose a considerable hardship on the Woods [because] the renovations, as is apparent from the plans and visual examination of the home, were considerable, extensive and undoubtedly expensive.” For all those reasons, the Zoning Inspector testified, “I concluded that the Woods incurred a hardship and I concluded that it had not been brought about through their actions.” The Zoning Inspector said that, in issuing the final occupancy permit despite the setback violation, “I have exercised my best efforts to properly consider the various aspects of this matter in making my decision to issue the occupancy permit,” and “I tried my best to reconcile the requirements of and the rights granted by the Town Code with the facts as understood by me in reaching the decision.” Counsel for the neighbors who appealed the issuance of the final occupancy permit argued to the Board of Zoning Appeals that the Zoning Inspector did not have the legal authority to refuse to enforce a violation of the Zoning Code, and further, that § 340-8.D was not applicable to the circumstances of this case because the 25-foot rear yard setback restriction was in effect before construction began, and was not amended after construction commenced on Mr. Wood’s addition. On September 18, 2013, the Board of Zoning Appeals ruled that “the Zoning Inspector’s determination, set forth in the April 30, 2010, Memorandum, and her issuance of the Final Occupancy Permit on May 7, 2010, were not in error and therefore were not arbitrary, capricious, or illegal.” The Board explained: ⁶⁹⁵ The Board finds that in the unique circumstances of this case, and in light of all the time that passed, it would be unfair and inequitable for the Town to impose the draconian penalty of requiring Mr. Wood to tear down the rear of his house. Based on the evidence and arguments presented and the matters of record of the entire history of the proceedings concerning the Wood property, the Board finds that there was an excessive passage of time between when the Building Permit was issued in November of 2002, and when a neighboring property [sic] notified [the Zoning Inspector] of the encroachment in May of 2004. No one—not neighbors, not the Town, not the appellants [including Mr. Valli-ant]—raised the issue of the encroachment into the rear yard setback area until after footings were placed, the framing was installed, and construction of the renovations was completed.

The Board finds that Mr. Wood substantially completed the construction of his residence, and that the inspections of the footings, foundation, and framing were completed and approved before the issue of the rear yard setback was raised, for the first time, in May of 2004.... The excess passage of time between when the Building Permit was issued and when the encroachment was discovered, coupled with the totality of circumstances surrounding the discovery of the encroachment, creates a uniqueness that causes this case to be more complicated than a simple rear yard setback violation, and skews the equities in favor of the homeowner, Mr. Wood. * * * The Board finds that the facts of this case present a narrow set of circumstances and uniqueness that support the Zoning Inspector’s determination in her 2010 Memorandum and her issuance of the Final Occupancy Permit. On October 15, 2013, Mr. Valliant and two other petitioners jointly filed the petition for judicial review that is the subject of this appeal. In the supporting memorandum filed by counsel