Assateague Coastal Trust, Inc. v. Schwalbach

• Decision Date: 23 May 2016
• Docket Number: No. 59, Sept. Term, 2015.,59, Sept. Term, 2015.
• Citation: 448 Md. 112,136 A.3d 866
• Parties: ASSATEAGUE COASTAL TRUST, INC. v. Roy T. SCHWALBACH, et al.
• Court: Court of Special Appeals of Maryland

448 Md. 112

136 A.3d 866

ASSATEAGUE COASTAL TRUST, INC.

v.Roy T. SCHWALBACH, et al.

No. 59, Sept. Term, 2015.

Court of Appeals of Maryland.

May 23, 2016.

Robin R. Cockey (Ashley A. Bosché, Cockey, Brennan & Maloney, P.C., Salisbury, MD), on brief, for Petitioner.

Hugh Cropper, IV (Brynja M. Booth, Booth, Booth, Cropper & Mariner, P.C., Ocean City, MD), on brief, for Respondents.

Argued before: BARBERA, C.J., BATTAGLIA^* , GREENE, ADKINS^** , McDONALD, WATTS, and LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

McDONALD

, J.

In the State's Critical Area law, the General Assembly has established a cooperative program with local jurisdictions to ensure that land near Chesapeake Bay and the Atlantic coastal bays has special protection against development that might cause environmental damage. Although that law allows a property owner to seek a variance from the law's restrictions, the law creates a presumption that a proposed variance does not conform to the purpose and intent of the Critical Area law and places the burden of proof on the applicant to demonstrate that all of the criteria for a variance have been met. Among other things, the applicant must show that the applicant would suffer an “unwarranted hardship” without the variance and that granting the variance will not have an adverse environmental impact.

In this case, Respondent Roy T. Schwalbach sought a variance from a provision in a Worcester County ordinance that limits piers to 100 feet in length. He needed the variance in order to build an extended pier to access navigable water from his waterfront property in a community where piers and boating are common. Mr. Schwalbach obtained necessary approvals from federal, State, and local environmental agencies. The Worcester County Board of Zoning Appeals (“Board”) granted the variance after holding an evidentiary hearing and finding that Mr. Schwalbach had borne the burden of proof on all of the requirements for a variance.

Petitioner Assateague Coastal Trust, Inc. (“ACT”), an environmental advocacy organization, sought judicial review of the grant of the variance, arguing that the Board's decision was defective for several reasons. The Circuit Court for Worcester County and the Court of Special Appeals both upheld the Board's decision in written opinions that analyzed the evidence before the Board on the criteria for a variance.

Before us, ACT focuses its contentions on three arguments. ACT argues: (1) that denial of the variance would not deny Mr. Schwalbach all reasonable and significant use of the entire property and therefore he could not establish an “unwarranted hardship”; (2) that Mr. Schwalbach did not show, and the Board did not explicitly find, that there would be no adverse environmental impact from granting the variance; and (3) that, although the Board's written decision concluded that Mr. Schwalbach had satisfied all standards for the variance, the Board did not make an explicit written finding that he had rebutted the statutory presumption of non-conformity with the Critical Area law.

We agree with the Circuit Court and Court of Special Appeals that the Board's decision should be upheld. In our view, in order to establish an “unwarranted hardship,” Mr. Schwalbach was not required to show that he would be denied all reasonable and significant use of his land without the variance—in essence, a showing of an unconstitutional taking—but rather that he would be denied a reasonable and significant use throughout the entire property. There was sufficient evidence for the Board to conclude that Mr. Schwalbach had satisfied that standard as well as the standard that there be no adverse environmental impact from granting the variance. In addition, the Board's statement that the application had “satisfied all standards” adequately expressed its determination concerning the environmental impact standard and its conclusion that the evidence presented to it had overcome the statutory presumption of non-conformity.

I

Background

A. Statutory framework

The Critical Area Program

In order to protect the Chesapeake and Atlantic coastal bays, the General Assembly has enacted the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program (“Critical Area Program”). See NR § 8–1801

(describing legislative findings and purpose of the Critical Area Program). The Critical Area Program is a cooperative program between the State and local governments that places restrictions on development in certain environmentally sensitive areas. See id.; NR § 8–1807. The Critical Area Program is designed to:

• Minimize adverse impacts on water quality as a result of pollutants discharged from structures or conveyances or run-offs from land

• Conserve fish, wildlife, and plant habitat

• Establish land use policies that accommodate growth while addressing adverse environmental impacts

NR § 8–1808(b)

. Generally speaking, the Critical Area consists of a 1000–foot swath of land adjacent to the Chesapeake Bay, the Atlantic coastal bays, and their tributaries. NR § 8–1807. Local Critical Area programs are to accord special protection to “buffer” areas along the shoreline. See, e.g., NR §§ 8–1801(a)(2), 8–1801(a)(4), 8–1806(b), 8–1808(c)(1)(iii).

Under the Critical Area Program, land within the Critical Area is divided into three categories—Intensely Developed Areas, Limited Development Areas, and Resource Conservation Areas. NR § 8–1802(a)(13), (15), (22)

. An Intensely Developed Area is defined as a part of the Critical Area where residential, commercial, institutional, or industrial developed land uses predominate, and where there is relatively little natural habitat. See COMAR 27.01.02.03. Intense development is to be directed to Intensely Developed Areas. COMAR 27.01.02.02 ; see also Mueller, Paved Intentions: Maryland's Critical Area Act, 41 Md. Bar J. 10, 12 (2008).

Restriction on Pier Length in Worcester County

Because the program is cooperative, State law creates some restrictions, and local law creates others. In Worcester County, the additional restrictions are codified in the Atlantic Coastal Bays Critical Area subtitle of the Natural Resources Article of the Worcester County Code (“WCC NR”). One restriction unique to Worcester County is that new piers or docks over State or private wetlands are limited to 100 feet in length. WCC NR § 3–125(b)(1)

.

Variances

A person seeking to develop property in a manner that would violate the Critical Area Program in Worcester County may ask for a variance. WCC NR § 3–111

. Pertinent to this case, the request for a variance must meet six requirements:

(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 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 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;

[6¹ ] The Board of Zoning Appeals shall not make a decision relative to a request for such a variance without reviewing the comments of the [County] Department [designated to enforce the Critical Area Program] and finding that the applicant has satisfied each of the provisions and standards contained herein.

WCC NR § 3–111(b)

(emphasis added); see also COMAR 27.01.12.04B (listing substantially the same requirements, although missing the last and divided differently); NR § 8–1808(d)(5)(i) (also requiring a showing of “unwarranted hardship” as a prerequisite to a variance from a local Critical Area program).

Thus, among other things, an applicant for a variance must prove that the applicant would otherwise suffer an unwarranted hardship (standard 1) and that there will not be an adverse effect on water quality or animal and plant habitat from granting the variance (standard 5). The Critical Area law defines “unwarranted hardship” to mean 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)

; COMAR 27.01.12.01 ; see also WCC NR § 3–102 (identical definition for purposes of the County law).

In general, “[i]n considering an application for a variance, a local jurisdiction 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. NR § 8–1808(d)(3)(ii)

; see also

WCC NR § 3–111(d)(1)

. “An applicant has the burden of proof and the burden of persuasion to overcome” this presumption. NR § 8–1808(d)(4)(i) ; see also WCC NR § 3–111(d)(3)

. “Based on competent and substantial evidence, a local jurisdiction shall make written findings as to whether the applicant has overcome” this presumption. NR § 8–1808(d)(4)(ii)(1) ; see also WCC NR § 3–111(d)(4).

B. Facts and Procedural History

The Schwalbach Property

The pertinent facts are uncontested. Mr. Schwalbach's property...