Becker v. Anne Arundel County

• Decision Date: 09 April 2007
• Docket Number: No. 1097, September Term, 2006.,1097, September Term, 2006.
• Citation: 174 Md. App. 114,920 A.2d 1118
• Parties: William BECKER, et ux. v. ANNE ARUNDEL COUNTY, et al.
• Court: Court of Special Appeals of Maryland

920 A.2d 1118

174 Md. App. 114

William BECKER, et ux. v. ANNE ARUNDEL COUNTY, et al.

No. 1097, September Term, 2006.

Court of Special Appeals of Maryland.

April 9, 2007.

Charles R. Schaller (Caroline L. Hecker, on the brief), Annapolis, MD, for Appellant.

Eileen E. Powers and James A. Chance (Harry C. Blumenthal, Jonathan A. Hodgson, County Attorney, on the briefs), Annapolis, MD, for Appellee.

Panel: SALMON, JAMES R. EYLER, CHARLES E. MOYLAN, JR., (Ret., specially assigned), JJ.

EYLER, JAMES R., J.

William and Jane Becker, appellants, requested three variances from the Anne Arundel County Board of Appeals (the "Board"), which variances were necessary to construct a home on their property fronting on the Magothy River and Park Creek in Pasadena. In accordance with the Anne Arundel County Charter (the "Charter"), the requests for variances were initially heard by the County's Administrative Hearing Officer,¹ and the decision was subsequently appealed to the Board.² The Board conducted a hearing de novo³ on the variance requests. In addition to appellants, participants at the hearing were Anne Arundel County, through its Office of Planning and Zoning, and protestants Richard Roeder, Jr., Alan Cohen, Ross Koch, Michael Warner, Ron Baker, Gary Koch, and James Franz, collectively appellees.⁴ The Board denied the variances, and pursuant to § 604 of the Charter, appellants timely appealed the Board's decision to the Circuit Court for Anne Arundel County. After a hearing, the circuit court, by memorandum opinion and order dated June 16, 2006, affirmed the Board's decision, denying appellants' requested variances. This appeal followed. We shall reverse the circuit court's judgment and remand to circuit court with instructions to vacate the Board's decision and remand to the Board for further proceedings consistent with this opinion.

Factual Background

In November 1998, appellants purchased two adjoining parcels of land located off of Trails End Road in Pasadena. Parcel 1 consists of 1.60 acres and is improved with a dwelling in which appellants reside. Parcel 2 consists of 0.67 acres, or 23,136 square feet, and is undeveloped. Both parcels front on the Magothy River, with a small portion of Parcel 2 fronting on Park Creek. The zoning classification of both parcels is "R2," residential, and both parcels are designated limited development areas under the County's "critical area" program. See Anne Arundel County Code (the "Code"), Art. 28.⁵ Appellants wished to build a home on Parcel 2 and, if possible, sell the existing home on Parcel 1.

Some time in 1999, appellants initiated an investigation into building a two-story ranch style home on Parcel 2. Ultimately, with the approval of the Office of Planning and Zoning, the proposed structure was to consist of 2,499 square feet of living space with 1,755 devoted to the first floor and 744 devoted to the second floor. Additionally, a 529 square foot two-car garage was proposed, bringing the total area of the house to 3,028 square feet. The interior of the house was to consist of 3 bedrooms, with 2 guest bedrooms on the second floor, and with the master bedroom and the majority of the living space on the first floor. The asserted reason for the larger first floor living space was that Mrs. Becker has Lyme Disease.

Appellants learned that Parcel 2 is a legal buildable existing lot,⁶ but that due to the property's close proximity to tidal waters, the entire parcel is within the Chesapeake Bay Critical Area, which subjects it to certain regulations. Parcel 2 is described as irregularly shaped, likened to a "pork chop." It consists of a low grassy area that is not suitable for building, a sandy beach, and a wooded area. The parcel is also affected by steep slopes adjacent to the shoreline. At its widest point, Parcel 2 is only 122 feet. Consequently, 97% of the property is located within the 100-foot critical area buffer. As there is no suitable portion of land for building outside of the buffer zone due to the topography of the land, the lot can not be developed without obtaining variances from the strict requirements of the zoning ordinance and critical area program.

After appellants purchased Parcel 2, they sought approval from the Health Department to put a septic system on it; however, Parcel 2 did not pass soil percolation tests. Percolation tests on Parcel 1 were successful, and consequently, appellants' home builder proposed using a portion of Parcel 1 for the septic disposal area. The septic system would be subject to a recorded easement, and would pump from Parcel 2 to a mound system located on Parcel 1. Pursuant to this plan, the Health Department approved construction of a house on Parcel 2, not to exceed 2,500 square feet of living area.

Due to the location of the septic system as well as a potable well located in the northwest portion of Parcel 2, the geographic constraints, and existing flood plains, appellants contend that their proposal for the placement and configuration of the house on Parcel 2 is the most reasonable option.

In 2003, before undertaking to develop Parcel 2, appellants applied for three variances seeking relief from three provisions of the Code, specifically Article 28, §§ 1A-104 (a)(1), 1A-105 (d), and 2-405(a)(3). Article 28, § 1A-104 (a)(1) provided that "there shall be a minimum 100-foot buffer landward from the mean high-water line of tidal waters, tributary streams, and tidal wetlands. . . ." Appellants' proposed dwelling would be located 44-feet from the shoreline; thus a variance of 56 feet from the critical area buffer was requested. Article 28, § 1A-105 (d) provided that "[d]evelopment on slopes of 15% or greater as measured before development is not permitted in limited and resource conservation areas unless the project is the only effective way to maintain or improve the stability of the slope. . . ." In order for appellants to install the septic system, the steep slopes on both Parcel 1 and Parcel 2 would have to be "temporarily" disturbed, requiring a variance. Article 28, § 2-405(a)(3) provided that "[e]ach lot in an R2-Residential District shall have . . . a rear yard that is at least 25 feet deep." Appellants' proposal allowed for a rear yard of 15 feet to the property line abutting Trails End Road; thus, a variance of 10 feet to the rear yard setback requirements was requested. The first two requests were for variances from the critical area program. The request for a variance from the setback requirement was a request under general zoning requirements, not a request under the critical area law.

On April 28, 2004, and September 1, 2004, the Board conducted hearings on appellants' variance requests. At the hearings, appellants presented testimony and exhibits in support of their requests for variances. A summary of the relevant evidence follows.

Mr. Becker testified that in the area surrounding Parcel 2, there are homes ranging in size from 1,700 square feet up to 9,000 square feet. He stated that there were only one or two homes in the area smaller than the home he proposed to build. On direct examination, he stated that he wanted to build a retirement home for himself and his wife, who has "chronic Lyme Disease and we wanted to have a handicap accessible home with a master bedroom on the first floor." When examined by the Board, and asked why he and his wife would not instead try to remodel the existing house on Parcel 1 to suit their needs, Mr. Becker responded "[w]ell, we really don't like the design of the house, the style of the house. It's not handicap accessible the way it is. And there's too many stairs. But primarily we just don't like the house. We'd like to build our own little dream house, if you will." Mr. Becker also testified that in 2002, both he and Mrs. Becker cleared some "sticker bushes" on their property with hand clippers.

Appellants submitted as an exhibit a "revised" floor plan that was smaller than the plan for which they had originally applied. The revised plan included a smaller garage and reduced decks. Additionally, some covered porches were removed. Mr. Becker testified that the requested variances would not substantially impair the use and development of adjacent properties because they were already developed.

Paul Miller, accepted by the Board as an expert in land surveying, testified that without the variance allowing appellants to build within the 100-foot buffer, appellants would not be able to build a house on Parcel 2. He stated that appellants requested the minimum necessary to be able to build on Parcel 2. He stated that appellants' plan should not have any adverse impact on water quality, and that it was not contrary to the intent of the critical area program. On cross-examination, Mr. Miller admitted that if the garage was removed and the first floor of the house was made smaller, there would be less of an impact to the critical area, and less of a variance would be required.

Thomas Brown, Jr., appellants' home builder, testified that a parking pad could be built in lieu of a garage and, if the house was narrowed and elongated, less of a variance would be needed.

Richard Sellers, an environmental engineer who prepared the critical area report for Parcel 2, testified that the proposed house was sited at the "proper point on the property," and the granting of the variances would not be contrary to the spirit and intent of the critical area program.

On August 17, 2005, the Board issued a memorandum opinion denying appellants' requests. In pertinent part, the opinion provided as follows.

Development within the Chesapeake Bay Critical Area . . . has been the subject of much legislative effort and protection by the General Assembly. Despite several court decisions that sought to lessen the power of the Critical Area Regulations, the General Assembly responded directly to these court decisions and in each case has subsequently strengthened the Critical Area Regulations....