REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 939
September Term, 2014
ASSATEAGUE COASTAL TRUST, INC.
v.
ROY T. SCHWALBACH, ET AL.
Hotten, Berger, Arthur,
JJ.
Opinion by Arthur, J.
Filed: July 2, 2015 The Board of Zoning Appeals for Worcester County granted a critical area
variance authorizing landowner Roy T. Schwalbach to construct a pier or walkway across
his private wetlands. The Circuit Court for Worcester County upheld the Board’s
decision after Assateague Coastal Trust, Inc. (“ACT”), a non-profit environmental
advocacy organization, petitioned for judicial review. ACT now appeals from that
judgment, and we also affirm.
F ACTUAL AND P ROCEDURAL B ACKGROUND
A. Property Subject to the Variance Request
In 2003, Schwalbach purchased a subdivided property located at 12933 Old Bridge
Road in West Ocean City. The property consists of five and one-half rectangular lots that
were originally platted in the 1930s. The Worcester County zoning classification for the
property is “R-3 Multi-Family Residential.”
The property sits immediately north of Old Bridge Road and immediately south of
the shoreline of an unnamed tributary of the Sinepuxent Bay. Because of its proximity to
this body of water, the property falls within the Atlantic Coastal Bay Critical Area. See
Md. Code (1974, 2012 Repl. Vol.), § 8-1807(b) of the Natural Resources Article. Under
critical area regulations, the location is designated as an “Intensely Developed Area,”
which is defined as an area “where residential, commercial, institutional, and/or
industrial, developed land uses predominate, and where relatively little natural habitat
occurs.” See COMAR 27.01.02.03; Worcester County Code (“WCC”) § NR 3-106(a).
The southern portion of the property includes three and one-half lots along Old Bridge Road. This portion of the property has been improved with a residence, in-ground
swimming pool, pool house, and connecting walkways.
The northern portion of the property consists of two unimproved lots bordering the
waterway. Tidal marsh extends from the improved portion of the property to the water’s
edge. The northern lots are covered entirely by tidal marsh.
B. Schwalbach’s Variance Request
Schwalbach planned to construct a pier or walkway that would extend across the
marsh to connect the improved portion of the property to a proposed dock six feet past the
shoreline. Under the County’s critical area ordinance, “[n]ew piers or docks shall not
extend more than one hundred feet in length over state or private wetlands.” WCC § NR
3-125(b)(1). To reach the shoreline, however, Schwalbach’s structure would have to
extend 180 feet across the marsh. Consequently, on August 14, 2013, he submitted an
application for a variance with the Board of Zoning Appeals for Worcester County,
requesting “[a] variance [from] the Atlantic Coastal Bays Critical Area Law to authorize a
3 foot wide by 180 foot long pier across tidal marsh.” 1
1 The word “pier” usually refers to a structure that extends from the shore over water. See, e.g., M ERRIAM-W EBSTER O NLINE D ICTIONARY, http://www.m-w.com/ dictionary/pier (last visited June 29, 2015). The structure at the subject of Schwalbach’s variance request might be more accurately described as an elevated walkway. In any event, the Worcester County critical area ordinance uses the word “pier” as a generic term that includes “[a]ny pier, wharf, dock, walkway, bulkhead, breakwater, piling or other similar structure.” WCC § NR 3-102(a). Because the parties, the Board, and the circuit court consistently referred to the structure here as a “pier,” we accept and employ that (continued...)
2 On September 22, 2013, the Board of Zoning Appeals (“the Board”) received a
staff report with comments on the variance application. The report included a letter from
the Natural Resources Administrator of the Worcester County Department of
Developmental Review and Permitting. The letter emphasized: “As the Board is aware
from previous variances to the Critical Area Law, all applicants must address six
standards. The Critical Area Law requires that each of the six standards for a variance be
met before the Board renders a decision.” 2
In Worcester County, the following standards must be satisfied before a critical
area variance may be granted:
(b) Standards. The provisions for granting such a variance shall include evidence submitted by the applicant that the following standards are met:
(1) Special conditions or circumstances exist that are peculiar to the applicant’s land or structure and a literal enforcement of provisions and requirements of the County’s Atlantic Coastal Bays Critical Area Program would result in unwarranted hardship;
(2) A literal interpretation of the provisions of the County’s Atlantic Coastal Bays Critical Area Program and related laws will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Atlantic Coastal Bays Critical Area;
(3) The granting of a variance will not confer upon an applicant any special privilege that would be denied by the County’s Atlantic Coastal
1 (...continued) designation for the remainder of this opinion. 2 The report also included a letter from the State Critical Area Commission, which stated that “applicants need to demonstrate and the Board of Appeals needs to find that each and every one of the County’s variance standards has been met[.]”
3 Bays Critical Area Program to other lands or structures within the Atlantic Coastal Bays Critical Area;
(4) The variance request is not based upon conditions or circumstances which are the result of actions by the applicant nor does the request arise from any condition relating to land or building use, either permitted or non-conforming on any neighboring property;
(5) The granting of a variance shall not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the granting of the variance will be in harmony with the general spirit and intent of the County’s Atlantic Coastal Bays Critical Area Program;
(6) (Reserved)
(7) The Board of Zoning Appeals shall not make a decision relative to a request for such a variance without reviewing the comments of the Department and finding that the applicant has satisfied each of the provisions and standards contained herein.
WCC § NR 3-111(b); see also COMAR 27.01.12.04(B).
The staff report commented that, as a result of the layout of the property,
Schwalbach would suffer an undue hardship if he were prohibited from constructing a
pier in excess of 100 feet in length. The report stated that the property included “[a] large
expanse of wetlands,” and an owner would be prevented “from reaching navigable waters
and enjoy[ing] his riparian rights” without a variance from “regulations that have been
implemented long after these lots were platted.” The report further stated that any
potential adverse environmental impact would be minimal because the structure was
modest in size, the project had been subject to extensive environmental review by the
U.S. Army Corps of Engineers and the Maryland Department of the Environment, and
4 substantial mitigation would offset any disturbance from the construction.3
The staff report concluded that Schwalbach’s application satisfied each of the
variance standards of the County’s zoning ordinance and recommended that the Board
approve the request.
C. Board’s Decision Granting Variance
Schwalbach presented his application to the Board at a hearing on October 10,
2013. Schwalbach testified that the purpose of the proposed structure was to provide
access to the navigable water at the edge of his property. His documentary submissions
included site plans from a professional surveyor who had reviewed the project. The
surveyor testified that Schwalbach would not have access to the water if he were forced to
shorten the pier to less than the proposed length.
Schwalbach also called a private environmental consultant, who had previously
worked as a Natural Resources Administrator for the County. The environmental
consultant confirmed that Schwalbach had obtained an authorization from the U.S. Army
Corps of Engineers (see generally 33 U.S.C. § 403; 33 C.F.R. § 322) and a tidal wetlands
license from the Maryland Department of the Environment. The consultant explained that
3 See WCC § NR 3-102 (defining “mitigation” as the “[c]reation, restoration or enhancement of forest or other plant communities that were or will be lost due to regulated activities”); WCC § NR 3-111(f)(1) (“[a]dverse impacts resulting from the granting of the variance shall be mitigated by the planting of trees and shrubs on the site at an amount equal to not less than three times the square footage of the area of disturbance allowed by the variance or as recommended by the Department”).
5 he had gone through extensive negotiations with those agencies “to get a configuration
that fit the property and fit the water depths and fit the channel specifically for that site.”
Based on the “stringent special conditions” with which Schwalbach would have to
comply during and after construction and while boating, he opined that the proposed pier
would have no adverse effect on water quality.4
The environmental consultant also testified that the property was located in an area
“very heavily used for boating,” with “numerous boat docks up and down the
shoreline[.]” He estimated that there were several hundred boats at nearby marinas.5 In
sum, he opined that the site plan represented the minimum possible intrusion to allow
Schwalbach to enjoy access to the water, a right enjoyed by others in the community.
The Board also received into the record a letter from ACT. Ms. Kathy Phillips, the
Assateague Coastkeeper, wrote: “Substantial research data[] and the Worcester County
Code support the conclusion that a dock or pier extending 100 feet or more over marsh
represents a change in the character of the marsh.” She further commented that “while
ACT understands and supports the concept of riparian rights, . . . very shallow bodies of
4 He further testified that he had appeared before the Worcester County Shoreline Commission and received unanimous approval for the construction permit. See WCC § NR 2-102. ACT also presented testimony at a hearing before that Commission. 5 The Schwalbach property and the nearby marinas are located south of the Route 50 drawbridge that connects the mainland to the barrier island on which Ocean City is located. Because of their location south of the drawbridge, these properties allow for easy marine access to the Atlantic Ocean via the Ocean City Inlet, which is also south of the drawbridge.
6 water [are] not capable of supporting regular motorized boat access and should be
considered lands protected by the Public Trust.” ACT requested that the Board justify its
decision in writing if it granted a variance.
At the conclusion of Schwalbach’s presentation, the Board members unanimously
voted to grant the variance. In a written decision issued on November 14, 2013, the
Board adopted and re-stated the findings of fact set forth in the staff report. As its
conclusion, the decision stated: “The Board reviewed Staff comments and the Applicant
has satisfied all standards.”
D. ACT’s Petition for Judicial Review
On November 22, 2013, ACT filed a petition for judicial review in circuit court.6
In a memorandum supporting its petition, ACT argued that Schwalbach had failed to
prove compliance with each of the individual standards of WCC § NR 3-111(b). At the
judicial review hearing, ACT further argued that the Board’s decision was “defective on
its face” because the decision did not affirmatively express whether Schwalbach had
overcome a statutory presumption that the activity subject to the variance application did
not conform to the general purpose of the critical area requirements. See WCC § NR
3-111(d)(4) (requiring that Board “shall make written findings as to whether the applicant
6 Schwalbach initially moved to dismiss the petition, arguing that ACT lacked standing to challenge the Board’s decision. The court denied the motion, citing ACT’s participation in the variance hearing and an affidavit from Ms. Phillips regarding standing. Although Schwalbach renewed his objection to ACT’s standing at the judicial review hearing, he does not raise any argument about standing in this appeal.
7 has overcome the presumption of nonconformance”).
The circuit court issued an opinion and order on June 20, 2014, affirming the
Board’s decision. The court found that there was substantial evidence in the record
supporting the Board’s findings that Schwalbach had satisfied each of the variance
standards. The court also concluded that the Board did not erroneously fail to make a
separate written finding that Schwalbach had overcome the presumption of
nonconformance.
ACT filed a timely notice of appeal from the circuit court’s judgment.
Q UESTIONS P RESENTED
ACT now presents two interconnected questions, which we quote:
I. Did the [Board] err as a matter of law in finding that [Schwalbach] had proven by competent and substantial evidence each of the six standards required for a variance under [WCC § NR 3-111] without taking into account that [Schwalbach] had the burden to overcome the presumption of nonconformance?
II. Is the [Board’s] decision erroneous as a matter of law because the [Board] never found that [Schwalbach] met his burden of proof and persuasion to overcome the presumption of nonconformance?
As discussed in this opinion, we conclude that substantial evidence in the record
supported the Board’s determination that the application satisfied each of the variance
standards. Even though the Board did not make an express written finding that the
applicant had overcome the statutory presumption of nonconformance, that omission,
under the circumstances of this case, does not require reversal or remand.
8 D ISCUSSION
A. Standards for Granting of Critical Area Variance
In 1984 the General Assembly enacted the Chesapeake and Atlantic Coastal Bays
Area Protection Program. See Md. Code (1974, 2012 Repl. Vol.), Subtitle 18 of Title 8
of the Natural Resources Article (“N.R.”). The main purpose of the program is to foster
“more sensitive development activity for certain shoreline areas” of the Chesapeake and
Atlantic Coastal Bays and their tributaries, “so as to minimize damage to water quality
and natural habitats[.]” N.R. § 8-1801(b). New development in these shoreline areas is
generally presumed to be contrary to the purposes of the critical area program. N.R. §
8-1801(a)(4).7
The critical area law is State-imposed, but locally enforced. The statute assigns
each jurisdiction with primary responsibility for developing a local critical area program,
subject to oversight from the State Critical Area Commission. See N.R. § 8-1808(a)(1).
Each local program must meet certain minimum standards, including the establishment of
procedures for the granting of variances. N.R. § 8-1808(c)(1); see also COMAR
27.01.12.
“The lodestar for [a local zoning board’s] consideration of a variance application”
7 Section 8-1801(a)(4) states that “new development of nonwater-dependent structures . . . is presumed to be contrary to the purpose of this subtitle[.]” Individual private piers installed or maintained by riparian landowners are not included in this category of “water-dependent” facilities. See COMAR 27.01.03.01(C).
9 is the unwarranted hardship standard. Chesapeake Bay Found., Inc. v. DCW Dutchship
Island, LLC, 439 Md. 588, 614 (2014). The statute provides:
(5) A variance to a local jurisdiction’s critical area program may not be granted unless:
(i) Due to special features of a site, or special conditions or circumstances peculiar to the applicant’s land or structure, a literal enforcement of the critical area program would result in unwarranted hardship to the applicant;
(ii) The local jurisdiction finds that the applicant has satisfied each one of the variance provisions; and
(iii) Without the variance, the applicant would be deprived of a use of land or a structure permitted to others in accordance with the provisions of the critical area program.
N.R. § 8-1808(d)(5).
In considering a variance application, the local zoning authority “shall presume
that the specific development activity in the critical area that is subject to the application
and for which a variance is required does not conform with the general purpose and
intent” of the Critical Area Program subtitle, its implementing regulations, and the
requirements of the local program. N.R. § 8-1808(d)(3)(ii). The applicant bears “the
burden of proof and the burden of persuasion to overcome [this] presumption[.]” N.R. §
8-1808(d)(4)(i). “Based on competent and substantial evidence, a local jurisdiction shall
make written findings as to whether the applicant has overcome the presumption[.]” N.R.
10 § 8-1808(d)(4)(ii); see also COMAR 27.01.12.04.8
The Worcester County ordinance likewise provides that the Board shall presume
that the proposed activity does not conform with the general purpose and intent of the
critical area laws and regulations; that the applicant bears the burdens of proof and
persuasion to overcome the presumption of nonconformance; and that the Board must
make written findings as to whether the applicant has overcome the presumption of
nonconformance. See WCC § NR 3-111(d).
In this appeal, ACT attacks the Board’s decision on two fronts. First, ACT
contends that Schwalbach’s application failed to satisfy some of the individual
requirements for a variance. Second, ACT asserts that the Board erred by failing to apply
the statutory presumption of nonconformance and by not making a written finding as to
whether Schwalbach met his burden to overcome that presumption. Ultimately, neither
challenge is successful.
B. Substantial Evidence Supporting the Board’s Decision
ACT argues that Schwalbach failed to present substantial evidence that his
application satisfied “five of the six standards” from the Worcester County critical area
ordinance. Because the applicant’s failure to meet any one of the standards requires the
denial of the variance application (see N.R. § 8-1808(d)(5)(ii); COMAR 27.01.12.04(B);
8 The requirements of section 8-1808(d) apply to all critical area variance applications, notwithstanding any local ordinance or the lack of a local ordinance. See N.R. § 8-1808(d)(9).
11 WCC § NR 3-111(b)(7)), we must consider each standard individually.9
In considering this challenge, we are cognizant of the limited role that the courts
must play in reviewing the decision of a local land-use board. The court’s task is to
determine whether the issue decided by the agency was at least “fairly debatable” based
on all of the evidence. See Becker v. Anne Arundel Cnty., 174 Md. App. 114, 138 (2007).
As the Court of Appeals has explained:
Our role in reviewing the final decision of an administrative agency, such as the Board of Appeals, is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law. In doing so, a reviewing court decides whether the Board’s determination was supported by such evidence as a reasonable mind might accept as adequate to support a conclusion. . . . The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness.[] Moreover, a reviewing court must review the agency’s decision in the light most favorable to it; . . . the agency’s decision is prima facie correct and presumed valid.
Critical Area Comm’n for Chesapeake & Atl. Coastal Bays v. Moreland, LLC, 418 Md.
111, 122-23 (2011) (citations and quotation marks omitted).
9 In White v. North, 356 Md. 31, 50-51 (1999), the Court of Appeals held, under a prior version of the critical area law, that the unwarranted hardship standard was the essential test, and that the other provisions provided guidance but could not be construed individually to overrule a finding of unwarranted hardship. The General Assembly amended the statute in 2002 to add the requirement that an applicant satisfy each of the individual variance provisions. See Becker v. Anne Arundel Cnty., 174 Md. App. 114, 131-32 (2007).
12 Unwarranted Hardship
Before the Board of Zoning Appeals for Worcester County may grant a critical
area variance, the applicant must produce evidence to persuade that Board that “[s]pecial
conditions or circumstances exist that are peculiar to the applicant’s land or structure and
a literal enforcement of provisions and requirements of the County’s Atlantic Coastal
Bays Critical Area Program would result in unwarranted hardship[.]” WCC § NR
3-111(b)(1). In this context, the term “unwarranted hardship” is defined as: “A situation
wherein without a variance, an applicant would be denied reasonable and significant use
of the entire parcel or lot for which the variance is requested.” WCC § NR 3-202; see
also N.R. § 8-1808(d)(1); COMAR 27.01.12.01.
Schwalbach introduced evidence, in the form of testimony and supporting
documents from an environmental consultant and a surveyor, that the features of the
property made it impossible to reach the water at the edge of the property without a pier
in excess of 100 feet. The Board credited this testimony and concluded that, as a result of
the “large expanse of wetlands” located on the property, Schwalbach would not be able to
“enjoy his riparian rights” if the zoning restrictions were strictly enforced.
In this appeal, ACT does not dispute the Board’s conclusion that Schwalbach
could not gain access to the navigable waters bounding his property without a variance.10
10 The main premise of ACT’s objection to the project was that Schwalbach should not be permitted access to the water, because, ACT argued, the body of water was “not (continued...)
13 Instead, ACT contends that the denial of riparian access is not an unwarranted hardship
because Schwalbach has already made other extensive improvements on his land.
“‘The unwarranted hardship standard, and its similar manifestations, are equivalent
to the denial of reasonable and significant use of the property.’” DCW Dutchship, 439
Md. at 619 (quoting Belvoir Farms Homeowners’ Ass’n, Inc. v. North, 355 Md. 259, 282
(1999)). In Belvoir Farms, the Court of Appeals explained that the unwarranted hardship
standard is generally stricter than a “practical difficulties” standard (id. at 266), but not as
stringent as an unconstitutional taking standard, which examines whether “a ‘regulation
denies all economically beneficial or productive use of land.’” Id. at 281-82 (quoting
Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1015 (1992)). Stated differently,
under the unwarranted hardship standard, the need for the variance “‘must be substantial
and urgent and not merely for the convenience of the applicant[.]’” Chesley v. City of
Annapolis, 176 Md. App. 413, 432 (2007) (quoting Belvoir Farms, 355 Md. at 276). The
General Assembly has since modified the definition of unwarranted hardship to clarify
that the unwarranted hardship analysis looks to the use of “the entire parcel or lot for
which the variance is requested.” N.R. § 8-1808(d)(1) (emphasis added); see Becker, 174
Md. App. at 132-33. Nevertheless, the Court of Appeals has continued to rely on Belvoir
Farms for the basic proposition that the unwarranted hardship standard is less stringent
10 (...continued) capable of supporting regular motorized boat access.”
14 that an unconstitutional takings standard. See DCW Dutchship, 439 Md. at 618-19.
In DCW Dutchship, the Court of Appeals upheld a local board’s finding that the
unwarranted hardship criterion was satisfied, where testimony showed that no dwelling
could be built on a particular property without a variance. Id. at 619 & n.25; accord
Becker, 174 Md. App. at 144 (instructing zoning board on remand to reconsider the
variance criteria, while “recognizing that [the property owners] are entitled to build some
type of reasonable structure”); id. at 141 (noting that “here, a house can be legally built on
the property in question, but not without variances, and a potential constitutional taking is
a serious concern”).
In the instant case, the right asserted is not the right to construct a residence, but
the right of access from that residence to the navigable waters bordering the property.
Neither this Court nor the Court of Appeals has decided the question of whether denying
an owner riparian access may amount to the denial of reasonable and substantial use of
the entire property.11
As Schwalbach points out, under Maryland common law a “‘riparian proprietor,
whose land is bounded by a navigable river, . . . has the right of access to the navigable
11 A number of cases have addressed, either directly or indirectly, whether the denial of other uses may constitute an unwarranted hardship. E.g., Lewis v. Dep’t of Nat’l Res., 377 Md. 382, 412-17 (2003) (hunting camp); Mastandrea v. North, 361 Md. 107, 134-37 (2000) (brick-in-sand pathway); White v. North, 356 Md. 31, 48-52 (1999) (in- ground swimming pool). These authorities, however, were decided before the General Assembly added the requirement that the reviewing body examine the use of the entire parcel or lot.
15 part of the river from the front of his lot, and the right to make a landing, wharf, or pier
for his own use[.]’” White v. Pines Cmty. Improvement Ass’n, Inc., 403 Md. 13, 16-17
(2008) (quoting Baltimore & Ohio R.R. Co. v. Chase, 43 Md. 23, 35 (1875)). These
common-law riparian rights are valuable property rights “‘of which, when once vested,
the owner can only be deprived in accordance with the law of the land, and, if necessary
that they be taken for public use, upon due compensation.’” Pines, 403 Md. at 17
(quoting Chase, 43 Md. at 35). Under the Maryland Code, an owner of property on state
or private wetlands has the right to make certain improvements to exercise riparian rights
and to preserve access to navigable water. See Md. Code (1982, 2007 Repl. Vol.), §§
16-201(a), 16-304(3) of the Environment Article (“Envir.”).
ACT points out that these riparian rights nonetheless remain “subject to such
general rules and regulations as the [l]egislature may think proper to prescribe for the
protection of the rights of the public[.]” Pines, 403 Md. at 17. But although an owner’s
riparian rights are not absolute, Schwalbach’s effort to exercise an important component
of his property rights, in a boating community where riparian access is an important
attribute of land ownership, makes his request more urgent and substantial than other
requests. He did not make his application for the sake of mere convenience or from the
desire to add a pleasant amenity. Cf. Chesley, 176 Md. App. at 435-36 (affirming denial
of variance where board reasonably concluded that proposed garage was mere
convenience for owner) (citing Citrano v. North, 123 Md. App. 234, 242 (1998)
16 (affirming determination that denial of critical area variance to construct free-standing
deck on which to enjoy view was not a hardship); North v. St. Mary’s Cnty., 99 Md. App.
502, 519 (1994) (reversing determination that denial of critical area variance to construct
gazebo on which to enjoy view amounted to hardship)).
The Board here concluded that prohibiting access from the residence to the
navigable waters bounding the property amounts to the denial of reasonable and
substantial use of the entire property. In this context, the Board’s interpretation and
application of its guiding statute is entitled to considerable weight. See DCW Dutchship,
439 Md. at 626. The Court of Appeals has emphasized: “‘Whether a property owner has
been denied reasonable and significant use of his property is a question of fact best
addressed by the expertise of the Board of Appeals, not the courts.’” Id. at 619 (quoting
Belvoir Farms, 355 Md. at 282); see DCW Dutchship, 439 Md. at 630 (“[w]hen
addressing the issue of reasonable and significant use, a substantial amount of deference
to the Board’s findings is required”) (citing White v. North, 356 Md. 31, 49-50 (1999)
(“whether a property owner is being denied a reasonable and significant use initially will
be a determination of the zoning agency, which we presume possesses the necessary
expertise to decide what is reasonable and significant”)); see also Chesley, 176 Md. App.
at 436.
In light of the considerable deference that is owed to the Board’s factual findings
and to its interpretation of the statute it is charged with implementing, we will not disturb
17 the Board’s determination as to the unwarranted hardship criterion. It was reasonable for
the Board to conclude that the need for the variance arose from special features that were
peculiar to the property. Particularly in light of the importance of riparian access in what
is essentially a boating community, with several marinas and hundreds of vessels in the
immediate vicinity, the question of whether the deprivation of riparian access amounted
to the denial of reasonable and substantial use of the entire property was properly
addressed to the expertise of the Board.12
Hardship Not Self-Created
The Board here found that Schwalbach’s application satisfied the statutory
requirement that “[t]he variance request is not based upon conditions or circumstances
which are the result of actions by the applicant nor does the request arise from any
condition relating to land or building use, either permitted or non-conforming on any
neighboring property[.]” WCC § NR 3-111(b)(4).
ACT does not directly argue that Schwalbach’s hardship was self-created. Within
its argument regarding the unwarranted hardship standard, however, ACT suggests that
12 Schwalbach argues, at some length, that without a variance he would be denied all use of the two undeveloped lots. He asserts that the undeveloped lots are separately platted and together form a separate tax parcel. Although his assertion appears to be factually correct, Schwalbach did not present this argument to the Board, and it did not form a basis for the decision. The Board granted Schwalbach’s request for a variance for the entire property, not for any individual lot or parcel. Moreover, the structure is not limited to the undeveloped lots: it begins on the developed lots. For these reasons, we have analyzed the decision by examining the use of the entire property for which the variance was requested, and not the use of the individual lots or parcels.
18 the hardship cannot be attributed to the land configuration and zoning restrictions,
because Schwalbach purchased the property “well after the enactment of the Law and
with knowledge – actual or constructive – of the restrictions imposed by the Law.” ACT
cites a passage from Cromwell v. Ward, 102 Md. App. 691, 717 (1995), in which this
Court quoted this sentence from Sibley v. Inhabitants of Town of Wells, 462 A.2d 27, 31
(Me. 1983): “[W]hen a landowner purchases land with actual or constructive knowledge
of the zoning restrictions, he may not be granted a variance on the grounds of undue
hardship.”
More recently, however, in Richard Roeser Professional Builder, Inc. v. Anne
Arundel Cnty., 368 Md. 294 (2002), the Court of Appeals held that a landowner’s
purchase of property, with knowledge that the property was located in the critical area
adjacent to wetlands (id. at 296), was not a self-created hardship that precluded the grant
of an area variance. See id. at 318-19. Consequently, Schwalbach’s knowledge that he
purchased a property subject to critical area restrictions does not prevent him from
receiving a variance here.
Deprivation of Rights Commonly Enjoyed / No Special Privilege
Under the critical area ordinance, a local board may grant a variance only if: “[a]
literal interpretation of the provisions of the County’s Atlantic Coastal Bays Critical Area
Program and related laws will deprive the applicant of rights commonly enjoyed by other
properties in similar areas within the Atlantic Coastal Bays Critical Area;” and if “[t]he
19 granting of a variance will not confer upon an applicant any special privilege that would
be denied by the County’s Atlantic Coastal Bays Critical Area Program to other lands or
structures within the Atlantic Coastal Bays Critical Area[.]” WCC § NR 3-111(b)(2)-(3).
Because these two variance standards are interrelated, they can be, and often are,
considered together. See DCW Dutchship, 439 Md. at 633.
The Board’s decision with respect to these two standards relied upon findings from
its staff report, which noted that “there are numerous properties that have piers/walkways
that cross in excess of 100' of tidal wetlands to access their water dependent facility.”
ACT challenges this finding, arguing that there was no evidence showing the number of
piers in excess of 100 feet, the lengths of those piers, whether those piers were
constructed before the adoption of the critical area law, and whether variances were
necessary for the construction of those piers.
In response, Schwalbach asserts that the Board was entitled to rely on a report
from a government agency with specialized knowledge of the critical area. Furthermore,
Schwalbach argues that he was not required to show that any others in the community had
piers or docks in excess of 100 feet. The right “commonly enjoyed by other properties”
was not the right to build a structure of 101 feet or more in length, but the general right of
access to navigable waters at the edge of private property.
The Board here stated that Schwalbach’s proposal “was not unreasonable and
seems to be very modest by providing the most direct access path to navigable waters.
20 Without this variance, it could be interpreted that the applicant would have a lessened or
reduced amount of rights enjoyed by other properties in similar areas within the Critical
Area.” This finding was supported by testimony from Schwalbach’s expert that
numerous private boat docks in the nearby area were used to gain access to the same body
of water. In light of this testimony, merely having riparian access is not a special
privilege.
We conclude that substantial evidence supported the Board’s findings that the
variance was necessary for Schwalbach to enjoy the right of riparian access commonly
enjoyed by others in the area and that granting the variance would not confer any special
privilege denied to other property owners in the area. See DCW Dutchship, 439 Md. at
633-34 (holding that substantial evidence supported zoning board’s conclusions as to
these two standards, where Board “observed that property owners throughout Critical
Area commonly enjoy a residence” and evidence showed that property owner could not
enjoy same right without variance).
Adverse Environmental Effects; Purpose and Intent of Critical Area Program
Next, ACT contends that Schwalbach’s application did not meet the standard set
forth in WCC § NR 3-111(b)(5), which requires that a variance request be denied unless
“[t]he granting of a variance shall not adversely affect water quality or adversely impact
fish, wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the
granting of the variance will be in harmony with the general spirit and intent of the
21 County’s Atlantic Coastal Bays Critical Area Program[.]” The Court of Appeals has
emphasized that determinations as to this particular standard fall within the relative
expertise of the administrative agency. See Belvoir Farms, 355 Md. at 270-71.
In addressing this standard, the Board’s decision gave weight to the approval of
the project by both the U.S. Army Corps of Engineers and the Maryland Department of
the Environment. The Board stated: “These agencies provide an extensive review of a
wide array of environmental impacts and have determined that this proposed wetland
crossing has minimized these potential impacts.” The critical area law specifically
identifies other government agencies as a potential source of substantial evidence. See
N.R. § 8-1808(d)(4); WCC § NR 3-111(d)(4) (“[w]ith due regard for the person’s
experience, technical competence, and specialized knowledge, the written findings may
be based on evidence introduced and testimony presented by . . . [a]ny agency of the
local, state or federal government; or . . . [a]ny other person deemed appropriate by the
Board of Zoning Appeals”).
ACT argues that these approvals from other agencies are legally insufficient to
satisfy the applicant’s burden, because those agencies do not apply the same criteria as the
critical area program. While we agree that the grant of a license or authorization does not
automatically establish that a proposed construction project meets critical area standards,
we reject the contention that an approval from another agency cannot amount to evidence
that the applicant has met the variance standards.
22 The record before the Board included the authorization letter from the Army Corps
of Engineers, which provided a detailed list of “activity-specific impact limits and
requirements,” including the requirements that Schwalbach “restore all preconstruction
elevations and replant impacted wetland area with native marsh species within the limits
of the disturbance upon completion of the proposed work.” Moreover, the Board was no
doubt aware that the policies governing tidal wetlands licenses from the Maryland
Department of the Environment are largely in harmony with the spirit and intent of the
critical area law. Compare Envir. § 16-102 (declaring State policy to preserve wetlands
from despoliation and destruction), and COMAR 26.24.01.01 (requiring applicants to
design projects to avoid, minimize, and mitigate any loss of tidal wetlands), with N.R. §
8-1801(a) (declaring that purposes of critical area law include minimizing damage to
water quality and natural habitats, protecting lands adjacent to shoreline from
degradation, and maintaining a buffer from tidal wetlands).
In any event, these approvals were not the only evidence regarding the absence of
environmental impact. Schwalbach’s environmental consultant opined that the
configuration of the proposed structure eliminated adverse effects on water quality. The
staff report highlighted that Schwalbach would be required to mitigate any adverse impact
with new plantings, “based on an amount equal to not less than three times the square
footage of any area buffer disturbance required for construction.” The Board also noted
that the minimal size of the proposed structure, at “only 3' in width . . . further reduces the
23 risk of any environmental degradation.”
Taking the record as a whole and drawing all reasonable inferences in favor of the
agency, we conclude that substantial evidence supported the Board’s determinations that
granting the variance would have no adverse environmental impact and would be in
harmony with the general spirit and intent of the critical area program. See DCW
Dutchship, 439 Md. at 634-37 (holding that Board’s findings as to these two criteria were
supported by substantial evidence, including expert testimony about water quality and
mitigation); see also Mastandrea v. North, 361 Md. 107, 140-42 (2000) (holding that
Board’s findings as to these two criteria were supported by substantial evidence,
including opinion of environmental consultant that proposed construction would have no
adverse effect, where Board also noted that size of project was minimal and potential
effects were easily mitigated).13
Satisfaction of Each Variance Provision
Finally, ACT contends that Schwalbach failed to satisfy WCC § NR 3-111(b)(7),
13 Applying an earlier version of the critical area law, the Court in Mastandrea, 361 Md. at 136, concluded that the local zoning board could grant a variance if the applicant would be denied development on a specific portion of the applicant’s property, rather than considering the parcel or lot as a whole. The 2002 General Assembly expressly overruled that holding. See Chesley, 176 Md. App. at 433-34. Although the legislature has abrogated much of Mastandrea’s unwarranted hardship analysis, other aspects of the opinion remain good precedent. See DCW Dutchship, 439 Md. at 629 n.33 (explaining, “[w]here applicable, we discuss the Mastandrea Court’s discussion of variance issues that did not prompt legislative supersession”); Moreland, 418 Md. at 134 (applying Mastandrea); Becker, 174 Md. App. at 144 (directing Board to reconsider decision in light of Mastandrea).
24 which states that the Board “shall not make a decision relative to a request for such a
variance without reviewing the comments of the Department and finding that the
applicant has satisfied each of the provisions and standards contained herein.” With
respect to this final criterion, ACT re-states its prior assertions that Schwalbach had not
satisfied each of the other standards. Because we reject each of ACT’s challenges as to
those individual standards, we must reject the corollary argument that he failed to satisfy
“each of the provisions and standards.”
C. Board’s Application of the Presumption of Nonconformance
In addition to its specific challenges regarding the individual variance standards,
ACT poses a more general objection to the form and substance of the decision. ACT
relies on the Board’s obligation to presume that the requested activity did “not conform
with the general purpose and intent of Natural Resources Article, Title 8, Subtitle 18,
COMAR Title 27, as from time to time amended, and the requirements of the County’s
Atlantic Coastal Bays Critical Area Program.” WCC § 3-111(d)(1); see N.R. §
8-1808(d)(3)(ii). Schwalbach bore the burdens of production and persuasion to overcome
that presumption. See WCC § NR 3-111(d); see also N.R. § 8-1808(d)(4)(i). The
presumption extends to each of the individual variance standards. See Becker, 174 Md.
App. at 143 (“it was [applicants’] burden to present evidence and overcome the
presumption as to all of the requirements”) (emphasis in original); see also DCW
Dutchship, 439 Md. at 614 (“[t]he applicant ‘bears the burden of proof and persuasion’ as
25 to each of the variance criteria”) (quoting Moreland, 418 Md. at 119).
ACT asserts: “The [Board’s] decision does not indicate that the [Board] was aware
of the presumption of nonconformance, that [Schwalbach] had the burden of proof to
overcome the presumption of nonconformance, or that [Schwalbach] had met that
burden.” ACT argues that the decision must be reversed in the absence of some
unequivocal indication that the Board applied the statutory presumption. Alternatively,
ACT asks this Court to remand with instructions that the Board reconsider the application
and make additional written findings in light of the statutory presumption.
In ACT’s interpretation, the statutory presumption creates a separate obstacle, over
and above the individual variance standards. ACT theorizes: “It is much easier for
[Schwalbach] to prove he satisfied each of the six standards than it is for [Schwalbach] to
prove he overcame a presumption of nonconformance and that he satisfied each of the six
standards.” In response, Schwalbach contends that the Board’s explicit statements that an
applicant must satisfy all six standards amount to an “obvious reference” to the burden of
overcoming the statutory presumption. Schwalbach also argues that the Board should be
deemed to understand its own procedures.
As this Court has explained, an applicant meets the burden of overcoming the
presumption that a proposal is in conflict with the critical area ordinance “‘by satisfying
fully the dictates of the statute authorizing the variance.’” Citrano, 123 Md. App. at 238
(quoting North v. St. Mary’s Cnty., 99 Md. App. at 510); see also Becker, 174 Md. App.
26 at 145-46 (“[i]f an applicant establishes compliance with the applicable criteria, the
applicant is entitled to the variance”). After the applicant produces substantial evidence,
and the Board is persuaded that the applicant has satisfied all applicable criteria, the
Board is no longer required to assume that granting the variance is inimical to the intent
of the program.
There is no reason to require that an applicant who has overcome his or her
respective burdens as to all of the variance criteria must also come forward with
additional evidence to rebut the statutory presumption. That requirement would serve no
practical purpose in the context of this particular ordinance. The Board here expressly
found that the project would “not adversely affect water quality or adversely impact fish,
wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the granting of
the variance will be in harmony with the general spirit and intent of the County’s Atlantic
Coastal Bays Critical Area Program.” See WCC § NR 3-111(b)(5).14
On this issue, we agree with the well-reasoned analysis of the circuit court:
The [Board’s] opinion expressly stated that the [Board] had reviewed the
14 This standard refers only to the general spirit and intent of the County program, but the presumption also extends to the general purpose and intent of the State critical area law and its implementing regulations. Compare WCC § NR 3-111(b)(5), with WCC § 3-111(d)(1). The County requirements, of course, are the greater that include the lesser. The local program is designed to implement and to achieve the purpose of the State law and regulations. See N.R. § 8-1808(a)(1); COMAR 27.01.12.02; WCC § NR 3-101(a). The State law establishes minimum requirements (see N.R. § 8-1808(c)(1)), and the County is permitted to “establish additional, more restrictive standards” consistent with the spirit of the State program. COMAR 27.01.12.02(B).
27 staff comments and found the applicant satisfied all standards. That finding extended to all required standards and provisions – including that part of [WCC § NR 3-111(b)(5)] which required a finding that the granting of the variance be in harmony with the general spirit and intent of the Critical Area Program. It seems clear to this court that the words in harmony with have the same meaning as the words conform with. Thus, the [Board’s] finding that the variance is in harmony with the general purpose and intent of the Critical Area Program is the same as a finding that the variance conforms with the general purpose and intent of the program. It is also the same as a finding that the applicant has overcome the presumption of nonconformance.
In the circumstances of this case, it would not be a sound use of public or private
resources to remand this case for the sole purpose of requiring the Board to go through
the sterile formality of restating what it has already said, but doing so in the language of
the ordinance itself instead of the synonymous language that it previously used.
As ACT points out, however, the statute directs that “a local jurisdiction shall
make written findings as to whether the applicant has overcome the presumption” of
nonconformance. N.R. § 8-1808(d)(4)(ii); see COMAR 27.01.12.04; WCC § NR
3-111(d)(4). In light of this directive, it might be a better practice for the Board to state
explicitly whether the applicant has overcome the presumption of nonconformance, in
addition to making express findings as to whether the applicant has satisfied his burdens
as to each of the variance provisions. Under the circumstances here, however, “we do not
think anything would be gained by remanding the case for further consideration.”
Valenzia v. Zoning Bd. of Howard Cnty., 270 Md. 478, 485 (1973).
The Board’s determinations that Schwalbach satisfied each of the variance criteria
28 and that the project was in harmony with the local critical area program (findings that we
uphold), obviate the need for any additional analysis from the Board regarding the
statutory presumption. Even assuming that the Board erred by not making this separate
written finding, that hypothetical error does not require reversal. See Gough v. Bd. of
Zoning Appeals for Calvert Cnty., 21 Md. App. 697, 699-704 (1974) (reasoning that
county board of zoning appeals should have made more explicit findings in denying
variance request, but holding that there was no fundamental error because those findings
were implicit in the actual determination); Templeton v. Cnty. Council of Prince George’s
Cnty., 21 Md. App. 636, 641-42 (1974) (holding that, although zoning body erred by
failing to make factual finding on one issue in denying request for zoning reclassification,
the error was “not of such as dimension as to require reversal” where it was clear that the
issue was not determinative).
C ONCLUSION
For the reasons stated in this opinion, we affirm the judgment of the circuit court,
which affirmed the decision of the Board of Zoning Appeals to grant the variance
application. The record as a whole included substantial evidence to support the Board’s
findings and conclusions, and the Board’s decision was not premised upon any error of
law.
JUDGMENT OF THE CIRCUIT COURT FOR WORCESTER COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.