Little Dobbins 2014: Critical Areas Variances and the Right to an Island Driveway

Maryland’s highest court, the Court of Appeals, issued a decision on August 4, 2014 in Chesapeake Bay Foundation v. DCW Dutchship Island, LLC.  This is Little Island case in which the owner, with essentially no permits, demolished a small cottage and put up a mansion complete with a pool and lighthouse.   The new case upholds the decision to limit the variances from the 8000 square feet requested to the 3005 square feet that was granted by the Board of Appeals, and remands the case the Anne Arundel County Board of Appeals for further consideration of the boat ramp.  For additional background on the beginnings of this case, see https://www.waterfrontlaw.com/little-island-big-mess.).  The substantive portion of the decision is included below.

Mr. Anthony Lamartina, the 2008 Chairman of the Anne Arundel County Board of Appeals:, described the Little Island case in this way:

“I can unequivocally state that I have never seen, in all my 24 years on this Board, a violation of such a grand scale.  The Petitioner [Wagner] is a builder who has made his living in this County for longer than I have been with this Board.  Given all his experience, he elected to construct more than 8,000 feet of new impervious surface for his own residential use, including a pool, gazebo, walkways, driveway, without ANY permission – all entirely in the Critical Area buffer and obliterating any steep slopes and vegetation deemed unworthy by him.  Why risk his residence (or his reputation)?  He must have concluded that the positives obtained outweighed any possible negatives.”

Despite its concerns, in 2008 the Board of Appeals allowed the house to remain.  It did require “the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.”  Everyone involved appealed that decision and the case has already been through the appeals process once before.

Most of the issues addressed in this Court of Appeals decision were procedural and technical — such questions as whether CBF could participate at the Board of Appeals when it was not a party to the original hearing.  The Court did, however, reach the crucial question of whether the Anne Arundel County Board of Appeals correctly determined whether the variances to the Critical Areas restrictions were the minimum necessary to afford relief.

This 2014 Court of Appeals decision looked at the relevant factors involved in the variance approval by the Board of Appeals, and for the most part, it upheld what had been done.  It did have a question about the boat ramp/driveway into the water, that was allowed by the Board.  The Court held as follows:

“The Board implicitly concluded that the impervious surface covered by the new house could legitimately be increased beyond the footprint of the old house by demolishing pre-existing outbuildings with impervious surfaces totaling 1,094 square feet, and “transferring” or allotting part of that footage to the new house.  We do not argue with this point, and consider it a reasonable factual inference based on the evidence.  In this regard, it is meaningful that the Board did require the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.

“Had the Board stopped there, we would be affirming on this point.  Yet the Board, quite inexplicably, also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.  Similarly, the Board did not seem to consider the possibility that through alterations to his home, Wagner may have been able to keep his boat ramp and stay under the 3,005 square foot maximum.  In short, the Board must provide some reasonable justification for increasing the impervious surface over that in existence before enactment of the Critical Area Law.”

Through this point, the Court of Appeals seemed to be on track to further reduce impervious surface allowed on the Little Island to the same amount that was present before Mr. Wagner began rebuilding.  This is the result most close observers would have expected, and it is probably the result that most people would consider to be the fair result.  It is, however, the point at which things begin to get exciting — and not in a good way for the environmentally minded.

THE POTENTIAL ASSAULT VEHICLE EXCEPTION TO THE CRITICAL AREA ACT.

The global principle in the Critical Areas Law is that there should be the minimum amount of impervious surface (roofs, sheds, driveways, etc.,) in the critical area.  This restriction is the one that Mr. Wagner is seeking an exception from because the entire island is in the critical area.  The Act, however, grants a global exception to structures that are considered “water dependent” such as piers, bulkheads and stone erosion control.  Water dependent structures do not require a variance and are not considered to be impervious surface.

When Mr. Wagner was constructing the house, he built a driveway/boat ramp directly into the water so that he could bring construction materials to the island with a government surplus beach assault vehicle.  He built a similar ramp on a property in Pasadena so that he could drive from the mainland to the island.  The Board of Appeals 2008 decision allowed the boat ramp to remain, despite the fact that it added additional impervious footage.  This aspect of the decision seemed dubious at the time, but the concurring opinion from the Court of Appeals lays out the reasoning — if it is a “water dependent” stucture, then no variance is necessary.  Apparently, this reasoning was adopted by Anne Arundel County in 2006.

“[T]his Office reviewed a request to allow a 40’ long x 8’ wide driveway on the northern side of the island as a water dependent use for access to the island.  By letter dated October 31, 2006, the Planning and Zoning Officer, Joseph Rutter, indicated that vehicular access to an island cannot exist outside the Buffer and that the 40’ long driveway reflected on the site plan submitted with the letter of consideration dated October 26, 2006 is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated.”

This reasoning appears to have been adopted by the Board of Appeals.  The Court of Appeals did not go so far as to adopt this reasoning — instead remanding the question to the Board of Appeals.  Judge Watts, however wrote a concurring opinion to this decision in which he stated that he would hold that it was a water dependent facility for which no variance was required.

The driveway/boat ramp fulfills the criteria set forth in COMAR 27.01.03.03A(1)-(5), in that: (1) the development activities are water-dependent; (2) the project (i.e., the driveway/boat ramp) meets Wagner’s recognized private right to have vehicular access to his island home; (3) the adverse effects on water quality and fish, plant, and wildlife habitat are minimized, as recognized by the Majority, which holds that the Board’s findings that the requested variances would not have a negative impact on the environment are supported by substantial evidence….

This concurring opinion will certainly be studied closely by the Board of Appeals, and given what has occurred thus far, it is difficult to imagine that the reasoning will not be adopted.

The decision does beg the question: is there a “recognized private right” to have vehicular access to an island home?  The law is silent on that point.  Unless Mr. Wagner still has another boat ramp on his mainland property, how could he even make use of a driveway on his island?  If he has a driveway on his mainland property — how did that get approved?  Is there a recognized private right to have boat ramp on any property?  Can one improve ones’ access to the water with both boat ramp and a pier, as is present now?  If so, this would seem to be a major new exception to the critical areas protections.

Environmental Science Issues

For my science and engineering minded readers, I have left intact the discussion of the Adverse Environmental Effects, which led the citing of the testimony of the Developer’s paid expert Charles John Klein, III, who “testified that the development led to a net environmental enhancement on the Island.”  This position was largely adopted by planners in Anne Arundel County.  If Critical Area protection is going to work, we need legitimate scientific support and testimony for the point that shoreline in its natural state is environmentally superior to a lawn enclosed by rip rap.  This is another huge loophole for a well funded developer like Mr. Wagner.

____________________________________________

 

THE TEXT OF THE DECISION

 

(Eds. Note: I have redacted the procedural discussion as well as many of the footnotes for readability.  Significant redactions are denoted by “*  *  *”.)

 

Chesapeake Bay Foundation, Inc. and Magothy River Association, Inc. v. DCW Dutchship Island, LLC, et al., No. 77, September Term, 2013, Opinion by Adkins, J.

Roughly 35 million years ago, an asteroid over a mile wide crashed into the Earth at a speed of about 70,000 miles per hour.  Hillary Mayell, Chesapeake Bay Crater Offers Clues to Ancient Cataclysm, National Geographic News, (November 13, 2001), http://news.nationalgeographic.com/news/pf/57998027.html.  This collision created the Chesapeake Bay Crater.  Id.  One of the by-products of this celestial collision is the subject of this contest—Little Island in the Magothy River (“the Island”).

In 2000, DCW Dutchship Island, LLC (“DCW”), a corporation wholly owned by Daryl Wagner (“Wagner”), purchased the Island.  At that time, the Island measured approximately 1.92 acres in area and was improved by a single-family house and related structures built in the 1920s.1  Wagner demolished the house and set about building a new one.  The circumstances surrounding this construction are not new to us.  As we explained in McHale v. DCW Dutchship Island, LLC:

1 The Island contained the following impervious surface area: the original house, representing 1,911 square feet; concrete and wood steps, representing 45 square feet; a boat house and deck, representing 890 square feet; and two sheds, representing 159 square feet.  The Board rejected testimony that a driveway existed on the Island before Wagner’s development, and as a result, did not include that figure in its finding that the Island historically contained 3,005 square feet of impervious surface.

In or about 2001, Daryl Wagner, a member of DCW and a Maryland registered home builder, acting on behalf of DCW, demolished the old summer cottage and removed the debris, without the necessary permits or variances required by the Critical Area Law and County ordinances.  Then, Wagner constructed the following structures or impervious surface areas on the Island: (1) a new 2,883 square foot home; (2) replacement sheds for the two preexisting sheds; (3) a 66 square foot gazebo; (4) a boat ramp and concrete driveway with approximately 2,668 square feet of surface area to accommodate his amphibious vehicle; (5) 846 square feet of sidewalks; and (6) a pool and deck totaling 1,433 square feet.

    * * *

 In November 2004, the County authorities discovered the construction activities on the Island and notified DCW of the numerous violations.  On 28 December 2004, DCW sought variances from the unobserved requirements of the Critical Area Law for each of the structures and improvements on the Island.  DCW sought also an amendment to the critical area buffer map, which prohibits most development activity within 100 feet of the shoreline.

A County Administrative Hearing Officer heard the evidence for and against the requests for variances.  The Magothy River Association (“MRA”) appeared at the variance hearings on 5 June 2005 and 20 September 2005 to oppose DCW’s requests.  The Hearing Officer granted some of the variances on 27 October 2005.  Wagner appealed administratively the denials, and the MRA, the Chesapeake Bay Foundation (“CBF”), and the Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”) appealed the decision to grant the variances, all to the County Board of Appeals.

415 Md. 145, 151–52, 999 A.2d 969, 972–73 (2010) (footnote omitted).2  At the Anne Arundel County Board of Appeals (the “Board”) hearing, Wagner moved to dismiss MRA and CBF as parties to the administrative proceedings.  The Board ultimately concluded that CBF did not have standing to appeal the granted variances because it did not participate in the hearing before the Administrative Hearing Officer (“AHO”), as required by § 3-1-

 

2 Because this Court thoroughly addressed the underlying facts of this case in McHale v. DCW Dutchship Island, LLC, 415 Md. 145, 999 A.2d 969 (2010), we will keep our restatement of the relevant facts brief.  When necessary to assess the parties’ arguments, we will enrich our discussion of the facts.

 

* * *

 

THE MERITS OF THE BOARD’S DECISION

With the standing issues resolved, we now turn to the merits of the Board’s decision granting certain variances to Wagner.  Before doing so, we address the scope of our review and lay out the setting in which the Board’s decision lies.

STANDARD OF REVIEW

We recently described this Court’s role in the review of zoning board decisions in Critical Area Commission for the Chesapeake and Atlantic Coastal Bays v. Moreland, LLC:

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.”  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.”

418 Md. 111, 122–23, 12 A.3d 1223, 1230 (2011) (citations omitted) (ellipsis in original).

DISCUSSION

Background – Critical Area Law

Touching every aspect of this case is the Critical Area Law, and we start with the history and substance of that environmental protection statute.  The General Assembly enacted the Critical Area Law in 1984.  Md. Code (1973, 2012 Repl. Vol.), § 8-1801 of the Natural Resources Article (“NR”).  Based on findings concerning the importance, fragility, and documented decline in the state of the Chesapeake Bay and its tributaries, the General Assembly “establish[ed] a Resource Protection Program for the Chesapeake and the Atlantic Coastal Bays and their tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats[.]”  NR § 8-1801(a), (b)(1).

In describing the impetus for the Critical Area Law, the General Assembly highlighted the effect of recent development on the Chesapeake Bay area:

Human activity is harmful in these shoreline areas, where the new development of nonwater-dependent structures or an increase in lot coverage is presumed to be contrary to the purpose of this subtitle, because these activities may cause adverse impacts . . . to the Chesapeake and Atlantic Coastal Bays, and thus it is necessary wherever possible to maintain a buffer of at least 100 feet landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands[.]

NR § 8-1801(a)(4) (emphasis added).  NR § 8-1801(a)(4) previously phrased the presumption concerning lot coverage in terms of “impervious surface.”  Md. Code (1973, 2007 Repl. Vol.), § 8-1801(a)(4) of the Natural Resources Article (“Human activity is harmful . . . where the new development of . . . impervious surfaces is presumed to be contrary to the purpose of this subtitle[.]”) (emphasis added).  Thus, development that increases the amount of impervious surface in the critical area is a primary concern of the Critical Area Law.  Indeed, the Legislature found “a critical and substantial State interest . . . in fostering more sensitive development . . . along shoreline areas of the Chesapeake and the Atlantic Coastal Bays and their tributaries so as to minimize damage to water quality and natural habitats.”  NR § 8-1801(a)(10).

* * *

The lodestar for the Board’s consideration of a variance application is the statutory mandate that a variance can only be granted when “[d]ue to special features of a site, or special conditions or circumstances peculiar to the applicant’s land or structure, a literal enforcement of the [C]ritical [A]rea [P]rogram would result in unwarranted hardship to the applicant[.]”  NR § 8-1808(d)(5)(i);22 see also AACC § 3-1-207(b)(1) (requiring that in order to grant a variance, the Board find that “strict implementation of the County’s [C]ritical [A]rea [P]rogram would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant[.]”).  Unwarranted hardship “means that, without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.”  NR § 8-1808(d)(1).

We test the parties’ arguments against the terms of the Critical Area Law, and the County’s enactments that implemented that law.  CBF and MRA strenuously contend that the Board erred by granting Wagner “after-the-fact” variances.  The Board’s Order announced these variances, and the conditions attached to them, as follows:

 

For the reasons set forth in the foregoing Memorandum of Opinion, it is this 3rd day of Jan., 2007, by the County Board of Appeals of Anne Arundel County, ORDERED, that:

* * *

2)  A variance of 36 feet to the required 100 foot minimum buffer along the southeast shore of the island and a variance of 32 feet to the required 100 foot minimum buffer (Section 1A-104(a)(1)) along the southwest shore of the island for the construction of a residence, septic system and installation of a well is hereby GRANTED;

3)  A variance to permit the disturbance of slopes of 15% or greater as measured before development in the LDA (Section 1A-105(d)) for the installation of a septic system and related facilities is hereby GRANTED; and

4)  A variance to permit new development activities in the buffer for the construction of an 8 foot by 40 foot impervious boat ramp/driveway to the west of the pier is hereby GRANTED.

All VARIANCES being subject to the following conditions:

a) There shall be no more than 3,325 square feet of impervious surface on the lot, inclusive of the 8 by 40 foot boat ramp/driveway;

b)  The gazebo, pool, patio, sidewalks, accessory structures, and other impervious surface on site shall be removed, subject to lawfully issued permits, and the areas shall be revegetated;

c)  All disturbance in the buffer shall be revegetated at a 3 to 1 ratio, with plantings on the property of native species;

d)  The buffer on site should be planted to the extent possible, including the slopes adjoining the revetment;

e) A buffer management plan, execution of a forest conservation easement and all required mitigation will be required prior to the issuance of any permit;

f)  The shore management system (Petitioner’s Exhibit 63) for the northern and western shores of the lot must be implemented to provide appropriate sand nourishment and flora enhancement;

g)  As per the RLD regulations, a 50 foot planted buffer shall be located and maintained between the principal structure and the crest of slopes with a 25% grade or greater; and

h)  Stormwater from all impervious surfaces shall be directed to appropriate stormwater management devices for quality and quantity control.

According to Petitioners, the Board’s Order was premised on an erroneous finding that Wagner satisfied all of the requirements for a variance contained in AACC § 3-1-207.23  Specifically, CBF and MRA present seven arguments that Wagner failed to meet his burden of proof and persuasion to satisfy the variance criteria.  These arguments involve the following variance requirements, which are set forth in subsections of AACC § 3-1-207.24  These code provisions, which we have set out in the order we address them, dictate that:

(b)(4)(i) [the variance request] is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed;

(e)(1) the variance is the minimum variance necessary to afford relief;

(b)(2)(i) a literal interpretation of COMAR, Title 27, Criteria for Local Critical Area Program Development, or the County critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas[;]

(b)(3) the granting of a variance will not confer on an applicant any special privilege that would be denied by:

(i) COMAR, Title 27, or the County critical area program to other lands or structures within the County critical area;

(b)(5)(i) [the granting of the variance] will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area[;]

(b)(5)(ii) [the granting of the variance] will be in harmony with the general spirit and intent of the County critical area program[;] and

(b)(7) the applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, § 8-1808(d)(2), of the State Code.

We examine each of Petitioner’s arguments regarding these variance requirements in turn.

Unwarranted Hardship

Under AACC § 3-1-207(b)(1), variance applicants must show that due to conditions on the property, “strict implementation of the County’s [C]ritical [A]rea [P]rogram would result in an unwarranted hardship[.]”  CBF and MRA posit that the denial of a variance would not cause Wagner to suffer an unwarranted hardship.  They explain that the County’s grandfathering provisions would allow for Wagner to keep the Island’s structures as they had existed before the implementation of the Critical Area Program.  Thus, Petitioners argue, denying Wagner the ability to construct a “wonderland” is not an unwarranted hardship.  Petitioners charge that the Board failed to identify substantial evidence that limiting Wagner’s redevelopment to the pre-existing footprint would represent an unwarranted hardship.

DCW and Wagner disagree.  In their view, because the Island is a unique property, surrounded by water, almost entirely affected by the 100 foot buffer, and featuring the unusable footprint of the old house, a variance was necessary to build any house on the Island.

This Court closely examined the term “unwarranted hardship” in Belvoir Farms Homeowners Association, Inc. v. North, 355 Md. 259, 734 A.2d 227 (1999).  There, we observed that “[t]his Court has said that ‘[t]he criterion for determining unnecessary hardship is whether the applicable zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership.’”  Id. at 276, 734 A.2d at 237 (quoting Marino v. Mayor of Baltimore, 215 Md. 206, 217, 137 A.2d 198, 202 (1957)).  After surveying a number of national standards for unwarranted hardship, the Belvoir Court rejected the proposition that the unnecessary or unwarranted hardship standard was equal to the unconstitutional taking standard, and stated the following:

The unwarranted hardship standard, and its similar manifestations, are equivalent to the denial of reasonable and significant use of the property.  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.  Thus, we leave the application of this standard to petitioner’s variance application to the Board on remand.

355 Md. at 282, 734 A.2d at 240 (emphasis added).

Here, the Board found that the unwarranted hardship criterion was satisfied because “[n]o dwelling could be built without some variance.”  The Board explained that: “The lot is an island within the Magothy River and the application of the minimum 100 foot buffer leaves only a small triangle of land in the center of the island beyond the reach of the minimum required buffer.  However, since there are steep slopes on the island, the buffer must be expanded; therefore, no part of the island is left without restriction.”  With respect to the location of the dwelling, these findings were supported by substantial evidence.  As we discuss infra, however, the size of the dwelling’s footprint is another matter altogether.  Nor have we yet addressed Petitioners’ argument that the hardship is self-inflicted, an issue we take up next.

Self-Created Hardship

From Petitioners’ perspective, the actions of Wagner in building his house and other structures without permits overshadows all else.  They aver that Wagner’s request for variances arises from conditions that can only be characterized as self-created hardships that are not sufficient to justify a variance under the County Code.  They rely on AACC § 3-1-207(b)(4)(i), which states that the Board may only issue a variance upon a written finding that the variance request “is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed[.]”  CBF and MRA cast Wagner’s purported hardships as quintessential examples of self-created hardships, attributable to Wagner’s unlawful development activities, not the inherent conditions on the Island.

Petitioners challenge Wagner’s right to a variance to build a new house covering 2,883 square feet of impervious surface, when the pre-existing dwelling on the Island constituted only 1,911 square feet of impervious surface.  Positing that Wagner could have obtained a variance for the pre-existing square footage under the County’s grandfathering provision, Petitioners argue that it was only Wagner’s desire for a larger home that necessitated the variance.  As such, say Petitioners, it was a classic self-created hardship.

Petitioners also claim that the location of the requested variances was similarly based on Wagner’s unlawful excavation and grading activity.  In their view, Wagner’s decision “to proceed without variances and approved plans and excavating the bluff back to the corner of the cottage exacerbated the need for variances.”  As stated earlier, Petitioners’ civil engineering expert, Tom Heil, testified that Wagner had options apart from installing stone revetment and excavation of the bluff, and concluded that a new home could have been constructed on the pre-existing dwelling’s footprint.

CBF and MRA urge us to follow the reasoning of Cromwell v. Ward, 102 Md. App. 691, 722, 651 A.2d 424, 439–40 (1995), in which the Court of Special Appeals cautioned that “[w]ere we to hold that self-inflicted hardships in and of themselves justified variances, we would, effectively not only generate a plethora of such hardships but we would also emasculate zoning ordinances.  Zoning would become meaningless.”  In that case, the intermediate appellate court held that the Board improperly granted an after-the-fact variance sought by a landowner who had constructed a building that exceeded the zoning limit on height.  Cromwell, 102 Md. App. at 726, 651 A.2d at 441.  The court explained:

It is not the purpose of variance procedures to effect a legalization of a property owner’s intentional or unintentional violations of zoning requirements.  When administrative entities such as zoning authorities take it upon themselves to ignore the provisions of the statutes enacted by the legislative branch of government, they substitute their policies for those of the policymakers.

Id.  Petitioners ask us to reach the same conclusion regarding DCW’s after-the-fact variances.

Petitioners also draw our attention to Chesley v. City of Annapolis, 176 Md. App. 413, 933 A.2d 475 (2007).  In Chesley, the Court of Special Appeals was faced with a property owner who built a house and a pool that “eliminated the possibility of locating a garage where no variance would be required[,]” then requested a variance to build a garage.  Id. at 440, 933 A.2d at 491.  The intermediate appellate court affirmed the Board’s finding that Chesley’s claimed hardship in building a garage was self-created.  Id. at 441, 933 A.2d at 492.  The court emphasized that instead of seeking a garage variance before starting construction, or building a smaller house that would permit a detached garage on another section of the property, Chesley built the house and pool at the risk that the Board would not approve a variance for the garage.  Id. at 440–41, 933 A.2d at 491–92.

DCW and Wagner counter that their need for variances was not self-created, but was solely a result of the impact of the Critical Area regulations on the Island.  They maintain that because the entire Island was located in the 100-foot buffer, any structure on the Island—apart from a structure on the previous dwelling’s footprint—would require a variance.  Importantly, they say that the pre-existing footprint of the old house was unusable, and so a variance was absolutely required.

Fortunately, our case law has been both consistent and clear in declaring what “self-created hardship” encompasses.  This Court addressed the issue in Salisbury Board of Zoning Appeals v. Bounds, 240 Md. 547, 214 A.2d 810 (1965).  The Bounds Court first observed the general rule stated in Rathkopf’s seminal treatise, The Law of Zoning and Planning:

Ҥ 1. Hardship Caused by Affirmative Acts of Commission.

Where property, due to unique circumstances applicable to it, cannot reasonably be adopted to use in conformity with the restrictions of the zoning ordinance, hardship arises which is capable of being relieved through the grant of a variance.  The restrictions of the ordinance, taken in conjunction with the unique circumstances affecting the property must be the proximate cause of the hardship.  If the peculiar circumstances which render the property incapable of being used in accordance with the restrictions contained in the ordinance have been themselves caused or created by the property owner or his predecessor in title, the essential basis of a variance, i.e., that the hardship be caused solely through the manner of operation of the ordinance upon the particular property, is lacking.  In such case, a variance will not be granted; the hardship, arising as a result of the act of the owner or his predecessor will be regarded as having been self-created, barring relief.

This rule is simple and of general application in the several states.

There is a uniform application of the rule in those cases in which there has been an act on the part of the property owner or his predecessor which has physically so affected the property as to create a unique circumstance or which in itself created either a practical difficulty or hardship in conforming to the restrictions of the ordinance.”

240 Md. at 554–55, 214 A.2d at 814 (quoting 2 Rathkopf, The Law of Zoning and Planning, 48-1) (italics in original).  The Bounds Court affirmed the Board’s finding of a self-created hardship where the property owners created four apartments in a three-apartment dwelling, then requested a variance.  240 Md. at 555, 214 A.2d at 814.  It was clear to the Court that “the resultant hardship could have been avoided if the [property owners] had used proper diligence in ascertaining what the density requirements were for a four apartment dwelling[.]”  Id.

In Ad + Soil, Inc. v. County Commissioners of Queen Anne’s County, 307 Md. 307, 312, 513 A.2d 893, 895 (1986), property owners operated a sewage disposal business without applying for zoning approval from county authorities.  Although the property owners had enough land to comply with setback requirements under the zoning ordinance, the owners failed to comply with any of the setback requirements, and thus asked to obtain variances from these requirements.  Id. at 339–40, 513 A.2d at 909–10.  We affirmed the Board’s conclusion that, under these circumstances, “Ad + Soil’s ‘hardship’ was self-inflicted[.]”  Id. at 340, 513 A.2d at 910.

As these cases make clear, the critical issue in determining whether a hardship is self-created is whether the property owner could have avoided the need for a variance.  In other words, if a property owner has a hand in creating the “peculiar circumstances” that cause his need for a variance, the owners’ hardship is self-created.  But when the “peculiar circumstances” arise from the zoning restrictions themselves, the owners’ hardship is not self-created.  We evaluate the Board’s conclusion regarding the self-created hardship criterion with this standard in mind.

After considering the evidence in the record, the Board concluded the following:

[T]he action of the regulations on this island have eliminated the property owner’s ability to develop anything without a variance.  The island is small, surrounded on all sides with the waters of a Chesapeake Bay tributary, and contains steep slopes.  The required minimum and expanded buffer make it impossible to develop without the variances.  We specifically reject the assertion of the [Petitioners] that the previously existing house site could have been redeveloped with a residence.  The proximity of the foundation to the cliff face (and now the steep slopes behind the revetment area), the soil type and the action of the waves on this reduced island render the previous house site unbuildable.

*  *  *

We hold that these findings are supported by substantial evidence in the record.

 

*  *  *

 

We reject Petitioners’ arguments that the Board’s granting of any variances was precluded by Wagner’s “several illegal acts,” his request for “after-the-fact” variances, or the doctrine of unclean hands.  In evaluating Wagner’s variance request against the self-created hardship criterion, Wagner’s failure to obtain the proper permits or variances before construction is not relevant.  This fact would only be relevant if Wagner’s acts constituted the “peculiar circumstances” that created the need for the variances.  See supra; see also Stansbury v. Jones, 372 Md. 172, 198, 812 A.2d 312, 327 (2002) (“Traditionally, self-created hardship requires an affirmative action, exclusively by a property owner or his predecessor in title, that is itself the sole reason for the need for the variance.”).

The Board, while noting the “presumptuous bravado” of Wagner’s acts, properly cabined its evaluation of the variance criteria to the legally relevant facts.28  In doing so, the Board restrained itself and followed its interpretation of the law.29  The Board’s interpretation of AACC § 3-1-207—its guiding statute for the granting of variance—is entitled to deference.  See Grasslands Plantation, Inc. v. Frizz-King Enters., LLC, 410 Md. 191, 204, 978 A.2d 622, 629 (2009) (“[A]n administrative agency’s interpretation and

 

28 In its Memorandum of Opinion, the Board voiced its disapproval of Wagner’s activities, making the following observations: “[t]he applicant deserves no sympathy[;]” “Wagner openly and knowingly violated the laws of the County and State[;]” and “[t]he scene of this bald-faced machismo is not lost on these Board members.”

29 It also observed that, “for all the moral outrage that should and has resulted from the erection of this structure and its related facilities, we must caution that decisions regarding punishment are not within the purview of this Board of Appeals.”  The Board stated that its “careful review of these laws has revealed no mechanism by which the Board can punish bad acts and actors.  We will not exercise authority that we do not possess and will not legislate from the ‘bench’ of the Board of Appeals.”

 

application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.”).  Thus, we find no error in the Board’s conclusion that under AACC § 3-1-207(b)(4)(i), so called “after-the-fact” variances are subject to the same evaluation as “before-the-fact” variances—no more, and no less. * * * 31

31 Our holding, of course, has no impact on the County’s right to pursue fines or other recourse because of Wagner’s construction activities.

 

Our conclusion that Wagner’s unwarranted hardship is not fully self-created is subject to other mandatory variance criteria, which we discuss in the sections that follow.

Minimum Variance Necessary

Petitioners’ best argument is that the variance sought is not the minimum necessary to afford Wagner relief.  AACC § 3-1-207(e)(1) dictates that in order to grant a variance in the Critical Area, it must be shown that “the variance is the minimum variance necessary to afford relief.”  Petitioners maintain that the Board did not explain why a house covering an impervious surface markedly larger than the original residence was the minimum necessary to afford Wagner relief, as Wagner did not produce evidence as to why he needed a house of this size.  They accuse the Board of contradicting itself when it ruled that the minimum variance necessary must not exceed the Island’s pre-existing impervious surface area, but then granted Wagner a variance for total structures, including the boat ramp, having impervious surface area significantly greater than that figure.

DCW and Wagner counter that the minimum variance necessary to afford relief is a subjective finding based on the facts presented, and is for the Board to determine, not the reviewing court.  They highlight that this point was even agreed to by the Executive Director of the Critical Area Commission, who testified that “[i]f the Board believes that the reasonable redevelopment in a reasonably sized dwelling must be larger than the old house[,] it’s the Board’s discretion to make that determination.”  DCW and Wagner urge us to adopt the reasoning of the Court of Special Appeals in Becker v. Anne Arundel County, 174 Md. App. 114, 143, 920 A.2d 1118, 1135 (2007), which held that “minimum variance necessary” does not mean the absolute minimum variance possible.

As discussed earlier, Wagner bears the burden of proof on all variance criteria, and must prove that without a variance, the zoning will pose an unwarranted hardship.  Thus, with respect to the minimum variance criterion, the Board must find that the variance applicant has proven that the requested variance is the minimum necessary to afford relief such that the applicant will maintain a reasonable and significant use of the property.

This Court has not addressed the substance of the minimum necessary criterion with great particularity, but it was discussed by the Court of Special Appeals in Becker. 174 Md. App. 114, 920 A.2d 1118.  There, the intermediate appellate court was asked to evaluate the Board’s conclusion that variance applicants had not met their burden of proving that their request was the minimum necessary to afford relief.  Id. at 143, 920 A.2d at 1135.  Concluding that the Board had not adequately supported its finding that the applicants had not met their burden, the Becker Court explained:

The question of whether the variances were the minimum necessary must be considered, however, in the context of the purpose of the proposed construction, recognizing that appellants are entitled to build some type of reasonable structure.  There was no finding by the Board as to appellants’ reasonable needs, or reference to evidence, and why the proposed structure was not the minimum necessary to meet those needs.  On remand, the Board must provide an explanation.

Id. at 144, 920 A.2d at 1136 (footnote omitted).

*  *  *

We have not hesitated to be strict in requiring concrete, detailed fact findings.  In Bucktail, we reversed the Talbot County Council’s denial of a growth allocation, holding that “[f]indings of fact must be meaningful and cannot simply repeat statutory criteria, broad conclusory statements, or boilerplate resolutions.”  352 Md. at 553, 723 A.2d at 451 (citing Turner v. Hammond, 270 Md. 41, 55–56, 310 A.2d 543, 551 (1973)).  In Annapolis Market Place, we affirmed the reversal of the Board’s rezoning, agreeing that the applicant had failed to present “one scintilla of evidence that indicate[d] that schools [we]re adequate to serve the development of th[e] [P]roperty” with apartments, as the applicant had proposed.  369 Md. at 722, 802 A.2d at 1049.   *  *  *  When addressing the issue of reasonable and significant use, a substantial amount of deference to the Board’s findings is required.  See White v. North, 356 Md. 31, 50, 736 A.2d 1072, 1082–83 (1999) (“As long as evidence exists before the agency that would make its factual determination as to reasonableness and significance fairly debatable, its determination ordinarily should be upheld.”). With these cases in mind, we examine the Board’s conclusion that the granted variances represent the minimum relief necessary to afford relief.  The Board stated:

We find that the variances granted by this opinion are the minimum necessary to afford relief here because the resulting impervious surface on site will measure no more than 3,325 square feet, that is the 3,005 square feet of historically existing square footage (which could be used by right) plus a reasonably sized (8 x 40 foot) boat ramp/driveway from the water’s edge at the pier.

 

The Board implicitly concluded that the impervious surface covered by the new house could legitimately be increased beyond the footprint of the old house by demolishing pre-existing outbuildings with impervious surfaces totaling 1,094 square feet, and “transferring” or allotting part of that footage to the new house.  We do not argue with this point, and consider it a reasonable factual inference based on the evidence.  In this regard, it is meaningful that the Board did require the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.

Had the Board stopped there, we would be affirming on this point.  Yet the Board, quite inexplicably, also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.34  Similarly, the Board did not seem to consider the possibility that through alterations to his home, Wagner may have been able to keep his boat ramp and stay under the 3,005 square foot maximum.  In short, the Board must provide some reasonable justification for increasing the impervious surface over that in existence before enactment of the Critical Area Law.

One possibility is that the Board agreed with the Anne Arundel County Office of Planning and Zoning that the boat ramp constituted a “water-dependent facility”35 that did not require a variance.36  If that is the case, the Board should not have granted a variance for the boat ramp.37  Alternatively, the Board may interpret the County Critical Area Program to mean that notwithstanding designation of the boat ramp as a water-dependent facility, the variance requirements still apply, and so the impervious surface of the boat ramp must still be counted as part of the whole.  We defer to the Board for interpretation of the County’s Critical Area law.  Yet, as it stands, we cannot affirm the Board’s Order because doing so would lend our imprimatur to a variance that was either unnecessary, or not properly evaluated by the Board.

______________________

Footnotes:

34 The Board only provided the following justification for granting the boat ramp variance:

[T]he new proposed impervious surface must not exceed that which was previously on the island plus a small area to accommodate the movement of boats or other similar vehicles from the water to avoid damage to the shore.

* * *

The Petitioner should be required to install and maintain a boat ramp to prevent erosion at the water’s edge from continual scour by the access vehicle of choice.

(Emphasis added.)  For the reasons stated above, we hold that this concern does not adequately explain or justify the Board’s grant of the boat ramp variance to Wagner.

 

35 “‘Water-dependent facilities’ means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the Buffer specified in COMAR 27.01.09.”  COMAR 27.01.03.01A.  COMAR 27.01.03.01B provides that:

An activity is water-dependent if it cannot exist outside the Buffer and is dependent on the water by reason of the intrinsic nature of its operation.  These activities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas and other boat docking structures, public beaches and other public water-oriented recreation areas, and fisheries activities.

36 Suzanne Schappert, Planning Administrator of the Anne Arundel County Office of Planning and Zoning, responded to Wagner’s request for variances with a “Findings and Recommendation” report.  In that report, Schappert states that the office reviewed Wagner’s boat ramp request and “determined [it] to be water dependent and acceptable[.]”  In later testimony before the Board, Schappert suggested that because the boat ramp had been determined to be a water-dependent facility, it did not require a variance.

37 Under the Board’s current order, one remote but not entirely implausible scenario is that Wagner would either expand his current boat ramp or build another boat ramp, claiming that one was permissible as a water-dependent facility, and the other was permissible by the Board’s granted variance.  Given Wagner’s previous behavior, we are wise to guard against this possibility by requiring that the Board clarify its order.

_________________________________________________

Deprivation Of Rights Enjoyed By Others/Special Privilege

* * *

We have already said, in our “minimum variance necessary” discussion, that the Board of Appeals erred in its approval of more than 3,005 square feet of impervious surface without justification.  In light of our ruling we decline to address further Petitioner’s arguments about “special privilege.”

 

Adverse Environmental Effects

 

Petitioners’ fifth argument is that the Board erroneously concluded that under AACC § 3-1-207(b)(5)(i), granting Wagner’s variances would not harm water quality or the wildlife and plant habitat.  They claim that it was unreasonable for the Board to base its decision on the belief that Wagner’s stormwater management plan would be sufficient to protect water quality and habitat.  CBF and MRA argue that the Board did not consider the adverse environmental impact caused by the construction of the new dwelling itself.  Given that this construction involved excavating and grading the Island’s shoreline, it is obvious to Petitioners that Wagner’s activities had an adverse impact on water quality.  Petitioners aver that because it was Wagner’s burden to prove that his development would not harm water quality, and Wagner offered no credible evidence on this point, the Board’s decision that there would be no such harm is not supported by the evidence.

DCW and Wagner rejoin that there was no evidence introduced that the work encompassed by the requested variances had any negative impact on the environment.  They claim that the putative negative environmental effects were not conclusively established by CBF or MRA’s experts.  In contrast, they argue that there is ample evidence that the Island has been stabilized and is no longer eroding or depositing soil into the river, resulting in improved water quality.

In its Order, the Board stated that no storm water would be permitted to run off into the Magothy, and required that all storm water be directed to a management control system.  Moreover, the Board required that Wagner’s proposed shore management system for the north and western shores be implemented.  The Board agreed with DCW’s expert, Charles John Klein, III, that the revetment had acted to stop erosion, which had led to a decrease in turbidity in the waters surrounding the Island.  The Board further held that the reforestation at a three-to-one ratio will create a better situation on the Island than existed previously, reducing the turbidity and increasing light and plant life in the river, which will ultimately become “more conducive to the maintenance of higher life forms.”

We hold that the Board’s findings were supported by substantial evidence.  In addition to the testimony cited above, Charles John Klein, III, testified that the development led to a net environmental enhancement on the Island.  Area residents, including neighbor Thelma Hall, gave anecdotal testimony supporting the increased clarity of the water, which was further corroborated by aerial photography.  Even Petitioners’ expert, Tom Heil, testified that the revetment had mitigated erosion and helped to stabilize the Island.  MRA President, Francis Spadaro, testified that oyster beds were covered in sedimentation, but could not identify the source of sedimentation.  Another of Petitioners’ experts, Justin Reel, testified about the state of submerged aquatic vegetation during three different time periods, but was unable to draw conclusions.  In light of this scant contravening evidence, we uphold the Board’s findings as supported by substantial evidence.  This conclusion does not, however, modify our holding about the “minimum variance necessary” criterion, discussed previously.

The Purpose And Intent Of The Critical Area Program

* * * The Critical Area Program permits residential uses on property impacted by the regulations.  The residential use here will not exceed the amount of impervious surface on the island prior to development, the stormwater will be better controlled, the vegetation will be increased and enhanced with native species, a conservation easement will be in place, and sand nourishment and shore management protection will be installed.  We feel that the resulting island will be a showplace for environmental enhancement, not a scourge.

As explained supra, the Board erred in its conclusion that the residential use here will not exceed the amount of impervious surface on the island prior to redevelopment. Excepting that, in light of the evidence regarding the lack of adverse environmental effects resulting from Wagner’s development, we hold that the Board’s findings on this criterion are supported by substantial evidence.

The Presumption

Petitioners’ final argument concerns the legal presumption under AACC § 3-1-207(b)(7) and NR § 8-1808(d)(3)(ii) that building activity requiring variances is inimical to the Critical Area Program.  They claim that the Board’s conclusion that Wagner could not construct a dwelling without a variance was contradicted by the fact that a pre-existing dwelling stood on the Island for over 50 years.  In Petitioners’ view, Wagner never explained how allowing larger structures in the buffer helped foster the goals and intent of the Critical Area Program; therefore, the Board was “duty bound” to deny the variances.

DCW and Wagner frame things differently.  In their view, the presumption that Petitioners speak of only restates the law as it applies to variances in the Critical Area.  Any applicant must prove that they meet the criteria set forth in the Critical Area laws.  If one does not meet that criteria, then the variance is denied.  In their view, the Board recognized the presumption, weighed this presumption in evaluating the variance criteria, and properly determined that the presumption was overcome by the evidence.

In its Memorandum of Opinion, the Board addressed the legal presumption:

To reiterate, it is the burden of an applicant to prove that they met each and every one of the variance criteria.  The failure to meet just one of those criteria requires that this Board deny the requested variances.  For those variances requested that have been denied, the Petitioner did not meet the requirements.

For the other requested variances, the Board found that the Petitioner met its burden, and thus granted modified variances, subject to conditions.  As we have held above, the Board must re-evaluate the “minimum amount necessary” criterion.  Based on this determination, the Board will decide whether Wagner has overcome the presumption that his activities are inimical to the intent of the Critical Area Program.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND VACATED IN PART.  CASE REMANDED TO THE BOARD OF APPEALS OF ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.

Judge Harrell joins in the judgment only.

Concurring Opinion by Watts, J.

 

Respectfully, I concur.1  I would hold, however, that the Board of Appeals (“the Board”) did not err in granting Wagner after-the-fact variances and in determining that the variances granted were the minimum variances necessary.  I would hold that the grant of a variance for a 320-square-foot driveway/boat ramp was unnecessary, as the driveway/boat ramp is a water-dependent facility for which a variance is not required under the Critical Area Law.  Despite this view, I believe it reasonable to allow the Board an opportunity to explain its opinion and explicitly address whether the County’s Critical Area Program requires a variance for a water-dependent facility, and thus, I concur with the Majority’s decision to remand the case to the Board.

*  *  *

I believe that the driveway/boat ramp is a water-dependent facility that can exist in the Critical Area independent from a variance; that this is what Board of Appeals determined in its opinion; and, further, that this is the legally correct conclusion; i.e., a water-dependent facility can exist in the Critical Area independent from a variance.  My reasons are as follows.  In a letter dated October 31, 2006, Joseph Rutter, a Planning and Zoning Officer with the Anne Arundel County Office of Planning and Zoning, advised Danny G. Boyd, Wagner’s site plan designer, that the request to consider the 40-foot by 8-foot driveway/boat ramp to be a water-dependent facility pursuant to Code of Maryland Regulations (“COMAR”) 27.01.03.01A and B was acceptable.  Rutter stated:

 

Athough vehicular access to an island home site is not specifically identified in the definition, vehicular access to an island cannot exist outside the buffer.  Therefore, the driveway as reflected on the site plan . . . is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated as the site plan reflects.

(Emphasis added).

On November 13, 2006, Rutter and Suzanne Schappert, the Planning Administrator of the Anne Arundel County Office of Planning and Zoning, submitted a “Findings and Recommendation” to the Board concerning Wagner’s request for variances.  In the Findings and Recommendation, Schappert and Rutter included Rutter’s determination that the 320-square-foot driveway/boat ramp is a water-dependent facility, and stated:

[T]his Office reviewed a request to allow a 40’ long x 8’ wide driveway on the northern side of the island as a water dependent use for access to the island.  By letter dated October 31, 2006, the Planning and Zoning Officer, Joseph Rutter, indicated that vehicular access to an island cannot exist outside the Buffer and that the 40’ long driveway reflected on the site plan submitted with the letter of consideration dated October 26, 2006 is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated.

(Emphasis added).

In its Memorandum of Opinion, the Board ratified the view that the driveway/boat ramp is a water-dependent facility by granting variances that included 3,005 square feet of impervious surface “plus” the driveway/boat ramp.  Specifically, the Board stated that it granted the requested variances because the Board determined that the variances are the minimum necessary to afford relief here because the resulting impervious surface on site will measure no more than 3,325 square feet, that is the 3,005 square feet of historically existing square footage (which could be used by right) plus a reasonably sized (8 x 40 foot) boat ramp/driveway from the water’s edge at the pier. (Emphasis added).  The Board determined that the driveway/boat ramp was necessary to “a[c]commodate the movement of boats or other similar vehicles from the water to avoid damage to the shore[.]”  (Footnote omitted).  Nonetheless, after having determined the driveway/boat ramp to be a water-dependent facility in its opinion, the Board included the driveway/boat ramp as part of the variances in its order.

The Board’s inclusion of a variance for the driveway/boat ramp in its order was, from my perspective, unnecessary.  A review of the case law, statutes, and regulations demonstrates that a water-dependent facility can exist in the Critical Area independent of a variance.  COMAR 27.01.03.01, concerning criteria for local Critical Area program development and water-dependent facilities, provides the following definition for “water-dependent facilities”:

 

A. “Water-dependent facilities” means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the Buffer specified in COMAR 27.01.09.

B. An activity is water-dependent if it cannot exist outside the Buffer and is dependent on the water by reason of the intrinsic nature of its operation.  These activities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas and other boat docking structures, public beaches and other public water-oriented recreation areas, and fisheries activities.

C. Excluded from this regulation are individual private piers installed or maintained by riparian landowners, and which are not part of the subdivision which provides community piers (see Regulation .07 of this chapter).

 

In turn, COMAR 27.01.03.03 provides:

In developing their Critical Area programs, local jurisdictions shall follow these criteria when addressing water-dependent facilities:

A. Except as otherwise provided in this chapter, new or expanded development activities may be permitted in the Buffer in intensely developed and limited development areas provided that it can be shown:

(1) That they are water-dependent;

(2) That the project meets a recognized private right or public need;

(3) That adverse effects on water quality and fish, plant, and wildlife habitat are minimized;

(4) That, insofar as possible, nonwater-dependent structures or operations associated with water-dependent projects or activities are located outside the Buffer; and

(5) That the facilities are consistent with an approved local plan as set forth below.

B. Except as otherwise provided in this regulation, new or expanded development activities may not be permitted in those portions of the Buffer which occur in resource conservation areas.

Anne Arundel County Code § 17-8-301(b) states: “Development on properties containing buffers shall meet the requirements of COMAR, Title 27.”

 

In Citrano v. North, 123 Md. App. 234, 236, 717 A.2d 960, 961 (1998), the Court of Special Appeals considered an argument from Mr. and Mrs. Frank Citrano, appellants, that a variance was not required for a deck because the deck was a water-dependent facility.  Appellants purchased residential waterfront property in Anne Arundel County within the Chesapeake Bay Critical Area and, without obtaining a building permit, constructed a fifteen-by-twenty foot deck on the property, approximately twelve feet from the shoreline.  Id. at 236-37, 717 A.2d at 961.  After the fact, appellants “applied for the necessary variances to permit the deck within the 100 foot critical area, on steep

slopes in a critical area, and in the front yard 38 feet closer to the front line lot line.”  Id. at 237, 717 A.2d at 961 (footnotes omitted).  The Board denied the requested variances.  Id. at 238, 717 A.2d at 961.  In the intermediate appellate court, appellants contended that no variances were required because the deck was a water-dependent facility permitted in the buffer.  Id. at 242, 717 A.2d at 964.  Specifically, appellants argued that the deck was a water-dependent facility pursuant to the Anne Arundel County Code because it was to be used for recreational purposes and needed to be close to the shoreline.2  Citrano, 123 Md. App. at 242-43, 717 A.2d at 964.  The Court of Special Appeals disagreed that the deck was a water-dependent facility, and instead agreed with the trial court that “‘it is clear that a deck is not a water[-]dependent facility under the term’s definition.’”  Id. at 243, 717 A.2d at 964.  Significantly, the Court of Special Appeals did not indicate that a variance was required for a water-dependent facility.  No Maryland case contradicts Citrano’s logic.

An examination of the regulations, statute, and Citrano leads to the conclusion that new development is permitted in the buffer in the critical area, absent the need to obtain a variance, if the structure is a water-dependent facility, as that term is defined in COMAR 27.01.03.01, and so long as the general criteria in COMAR 27.01.03.03 are satisfied.  In other words, a variance is not required for a water-dependent facility.  This construction of the Critical Area Law comports with that advanced by Anne Arundel County.3  In its brief, Anne Arundel County discusses a pier and bulkhead constructed by Wagner and states: “Neither the pier nor the bulkhead is subject to the variance process since both are ‘water-dependent structures’ as defined under State and County critical area law.”  (Citing Anne Arundel County Code § 14-8-301; COMAR 27.01.03.1A).  The conclusion that a variance is not required for a water-dependent facility is bolstered by the circumstance that, similar to COMAR 27.01.03.03, Md. Code Ann., Nat. Res. (1973, 2012 Repl. Vol) (“NR”) § 8-1808.5, concerning community piers and noncommercial boat docking or storage facilities, states that a water-dependent facility must satisfy certain criteria, see NR § 8-1808.5(c), and that “[a] local jurisdiction may grant a variance from the provisions of th[e] section in accordance with regulations adopted by the Commission concerning variances as part of local program development set forth in COMAR 27.01.11 and notification of project applications set forth in COMAR 27.03.01.”  NR § 8-1808.5(e).  Stated otherwise, NR § 8-1808.5 generally permits, absent a variance, community piers or other noncommercial boat docking or storage facilities subject to certain criteria, but if certain criteria cannot be met, an individual is permitted to request and potentially receive a variance from the provisions contained in NR § 8-1808.5.

 

Footnote 3  At the hearing before the Board, the Chairman asked Schappert (the Planning Administrator for the Anne Arundel County Office of Planning and Zoning): “If indeed the Board were to disagree with Mr. Ru[tt]er with regards to whether or not a driveway is a water-dependent facility, would that need a variance?”  In response, Schappert testified: “It’s disturbance in the buffer.  Yes, and it’s part of the associated facilities that, you know, were referred to in the heading of the variance request.”  In other words, Schappert testified that, if the Board disagreed that the driveway/boat ramp was a water-dependent facility, then a variance would be required.  It follows that, if the Board agreed the driveway/boat ramp was a water-dependent facility, a variance would not be required.  And, the Chairman posed the question in a manner that raises an inference that the Board supports this position too.

 

Here, despite Citrano, 123 Md. App. 234, 717 A.2d 960, NR § 8-1808.5, regulations, and content of Anne Arundel County’s brief, the Majority remands because the Board either did not adequately determine that the 320-square-foot driveway/boat ramp, previously found to be a water-dependent facility, qualified for a variance, or, as stated in my opinion, granted a variance that was unnecessary.  Specifically, the Majority states that the Board “inexplicably[] also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.”  Majority Slip Op. at 45-46 (footnote omitted).  The Majority remands the matter to the Board for clarification of its opinion and a determination as to the significance of a finding that the driveway/boat ramp is a water-dependent facility.  Majority Slip Op. at 46-47.

As explained above, however, it is clear that a water-dependent facility can exist independent of any variance; i.e., a variance is not required for a water-dependent facility in the Critical Area.  I would conclude that the driveway/boat ramp is a water-dependent facility, as found by the Anne Arundel County Office of Planning and Zoning and confirmed by the Board.  A driveway/boat ramp is a structure associated with recreational water-dependent activities, such as vehicular access to an island home and boat docking, which require location at or near the shoreline within the buffer and that cannot exist outside the buffer.  See COMAR 27.01.03.01A and B.  The driveway/boat ramp fulfills the criteria set forth in COMAR 27.01.03.03A(1)-(5), in that: (1) the development activities are water-dependent; (2) the project (i.e., the driveway/boat ramp) meets Wagner’s recognized private right to have vehicular access to his island home; (3) the adverse effects on water quality and fish, plant, and wildlife habitat are minimized, as recognized by the Majority, which holds that the Board’s findings that the requested variances would not have a negative impact on the environment are supported by substantial evidence, see Majority Slip Op. at 50-51; (4) the record does not contradict that, insofar as possible, nonwater-dependent structures and operations associated with water-dependent projects or activities are located outside the buffer; and (5) the driveway/boat ramp is consistent with the approved local plan articulated by the Anne Arundel County Office of Planning and Zoning and the Board, i.e., that the driveway/boat ramp is an acceptable water-dependent facility provided that the remainder of the driveway/boat ramp shown on the site plan is removed and re-vegetated as the site plan reflects.

In sum, in my view, the record demonstrates that the Board granted variances totaling no more than 3,005 square feet of impervious space “plus” the previously determined 320-square-foot water-dependent driveway/boat ramp.  As the Majority recognizes, the grant of variances totaling 3,005 square feet of impervious surface was reasonable, given “historically existing impervious surface area[.]”  See Majority Slip Op. at 45.  In other words, the 3,005 square feet was the minimum variance necessary, and the Board did not err in so finding.  Because I believe it appropriate to allow the Board an opportunity to speak for itself and clarify any potential doubt as to whether it determined the driveway/boat ramp to be a water-dependent facility, and as such, exempt from the need for a variance, I concur with the Majority’s decision to remand.