BELVOIR FARMS HOMEOWNERS ASSOC. INC. v. North

• Decision Date: 02 August 1999
• Docket Number: No. 159,159
• Parties: BELVOIR FARMS HOMEOWNERS ASSOCIATION, INC. v. John C. NORTH, II, Chairman Chesapeake Bay Critical Area Commission.
• Court: Maryland Court of Appeals

734 A.2d 227

355 Md. 259

BELVOIR FARMS HOMEOWNERS ASSOCIATION, INC. v. John C. NORTH, II, Chairman Chesapeake Bay Critical Area Commission.

No. 159, Sept. Term, 1998.

Court of Appeals of Maryland.

August 2, 1999.

Sager A. Williams, Jr. and Charles F. Delavan (Eileen E. Powers, Blumenthal, Delavan & Williams, P.A., on brief), Annapolis, for petitioner.

Marianne D. Mason, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Annapolis, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL, and ROBERT L. KARWACKI (retired, specially assigned), JJ. CATHELL, Judge.

Belvoir Farms Homeowners Association, Inc., petitioner, appeals from the decision of the Circuit Court for Anne Arundel County, which, upon a Petition for Judicial Review filed by respondent John C. North, II, Chairman of the Chesapeake Bay Critical Area Commission (Commission), reversed the findings and conclusions of the Anne Arundel County Board of Appeals (Board) granting petitioner a variance from critical area zoning regulations. Petitioner presents four questions in its Petition for a Writ of Certiorari:

1. Is the "unwarranted hardship" criterion for zoning variances to critical area standards, set forth in COMAR 21.01.11.01(A)(1), the same as the traditional "unnecessary hardship" criterion for use variances?

2. Did the Critical Area Commission's promulgation of the "unwarranted hardship" criterion in COMAR 21.01.11.01(A)(1) exceed the Commission's authority under Title 8, subtitle 18 of the Natural Resources Article of the Annotated Code of Maryland, because the criterion conflicts with other State law?

3. In evaluating a variance application under the "rights commonly enjoyed" and "special privilege" criteria, set forth in COMAR 21.01.11.01(A)(2) & (3), is it permissible to compare the variance proposal to uses or property in the critical area not developed with a variance, including uses or property developed prior to adoption of the critical area law?

4. Is an administrative board's determination of whether a zoning applicant meets the critical area criteria for a variance, including the "unwarranted hardship" criterion, a question of fact or a mixed question of fact and law?¹

I. Facts

We shall summarize the facts briefly. Belvoir Farms is a ninety-lot subdivision in Anne Arundel County. Four of these lots are located in the Chesapeake Bay Critical Area within a stretch of land alongside Maynadier Creek. The property within the development that abuts the water, some of which is open space and a recreation area, is now owned by petitioner, the development's community association. In 1986, the community's developer built a private, 200 foot pier off one of the community-owned open space areas.

Subsequently, the Board granted petitioner a special exception to operate a "community pier" at the subject site and a variance to permit more than the four boat slips allowed by the critical area regulations that impose a limit on the number of boat slips. A variance to reduce the size of a common driveway also was granted. The issues before this Court relate only to the grant of the variance that allows petitioner to build fourteen more boat slips than permitted by the critical area regulations.² Respondent sought judicial review only of the Board's grant of the boat slip variance. The Circuit Court for Anne Arundel County reversed the Board, stating in regard to the standard used by the Board:

With regard to the Board's determination that failure to grant a variance would cause unwarranted hardship to the Belvoir community, both parties have cited similar language from the Board's decision:

Although Belvoir Farms has 90 platted lots, and 360 acres of area, only 4 of the lots are located on the parcel to the east of River Road. The remaining lots are on the western parcel and are not contiguous to the waterfront area. Yet these non-waterfront lots are not far removed from the waterfront property, and a strict application of the law would create practical difficulties in permitting the subdivision to obtain reasonable use of the waterfront property. [Emphasis added.]

We shall vacate the judgment of the circuit court and remand this case to that court with instructions to vacate the Board's decision and remand for further proceedings by the Board.

II. Discussion

The Board appears to have utilized the wrong standard in determining whether the variance should be issued. Although it did mention the "unwarranted hardship" standard in its conclusion, the Board stated more than once in its opinion that it was utilizing a "practical difficulties" standard:

[T]he unique physical conditions inherent in this lot, and the exceptional circumstances involving protection of the environment, make the granting of a variance necessary in order to avoid practical difficulties and to enable the Petitioner to develop this property....³

... [A] strict application of the law would create practical difficulties in permitting the subdivision to obtain reasonable use of the waterfront property.

In Anne Arundel County, under the current ordinance, the practical difficulties standard has no application in variances sought in the critical area. See Anne Arundel County Code (1996), Art. 3, § 2-107(b). In 1993, prior to the grant of the variance in this case, Anne Arundel County modified its critical area variance provisions by adding subsection (b) to section 2-107. Subsection (b), enacted at the insistence of the Commission, eliminated the practical difficulties standard for critical area variances. Thus, while section 2-107 retained a "practical difficulties or unnecessary hardship" standard in subsection (a) for property outside the critical area, that standard no longer applied in critical area variance applications.⁴ Subsection (b) substitutes different, generally stricter requirements for variances in the critical area:

(b) For a property located in the critical area, a variance to the requirements of the County critical area program may be granted after determining that:

(1) due to the features of a site or other circumstances other than financial considerations, strict implementation of the County's critical area program would result in an unwarranted hardship to the applicant;

(2) a literal interpretation of the [State critical area regulations] or the County critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the critical area of the County;

(3) the granting of a variance will not confer on an applicant any special privilege that would be denied by [State regulations] or the County critical area program to other lands or structures within the County critical area;

(4) the variance request:

(i) is not based on conditions or circumstances that are the result of actions by the applicant; and

(ii) does not arise from any condition relating to land or building use, either permitted or non-conforming, on any neighboring property; and

(5) the granting of the variance:

(i) will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County's critical area; and

(ii) will be in harmony with the general spirit and intent of the County critical area program.

Subsection (b)(1) clearly requires petitioner to prove, and the Board to find, an unwarranted hardship before any variance can be issued. The Board's application of the lesser practical difficulties standard, therefore, was an error of law.

Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law. Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569, 709 A.2d 749, 753 (1998) ("[W]e may reverse an administrative decision premised on erroneous legal conclusions." (citing People's Counsel v. Maryland Marine Mfg. Co., 316 Md. 491, 497, 560 A.2d 32, 34-35 (1989))). This Court, however, has noted that in certain situations remand, rather than reversal, is necessary for the zoning agency to review the evidence further or to take other more appropriate action:

It is a fundamental principle of administrative law that a reviewing court should not substitute its judgment for the expertise of the administrative agency from which the appeal is taken. This principle underlies the rule that if an administrative function remains to be performed after a reviewing court has determined that an administrative agency has made an error of law, the court ordinarily may not modify the agency order. Under such circumstances, the court should remand the matter to the administrative agency without modification[.]... Finally, if an administrative function remains to be performed, a reviewing court may not modify the administrative agency's action even when a statute provides that the court may "affirm, modify or set aside" because a court may not usurp administrative functions.

O'Donnell v. Bassler, 289 Md. 501, 509-11, 425 A.2d 1003, 1008 (1981) (citations omitted) (footnote omitted). In O'Donnell, we reviewed a local zoning authority's decision to grant a special exception with attached conditions to expand an airport. Upon judicial review, the circuit court modified the local zoning board's decision, ruling that the conditions were illegal. We noted, however, that "[o]nce the Circuit Court determined that the Board had committed an error of law, the Circuit Court should have remanded the matter to the Board without modification because an administrative function remained." Id. at 514, 425 A.2d at 1010. In O'Donnell, we quoted Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20-21, 73 S.Ct. 85, 87, 97 L.Ed. 15 (1952), in part:

"It is the Commission's judgment on which Congress has placed its reliance for control of licenses. When the court decided that the license should issue without the conditions, it

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