Caldes v. Elm St. Dev.

• Decision Date: 22 July 2010
• Docket Number: 2008.,No. 12,12
• Citation: 415 Md. 122,999 A.2d 956
• Parties: Sara CALDES, et al.v.ELM STREET DEVELOPMENT, et al.
• Court: Maryland Court of Appeals

415 Md. 122

999 A.2d 956

Sara CALDES, et al.v.ELM STREET DEVELOPMENT, et al.

No. 12, Sept. Term, 2008.

Court of Appeals of Maryland.

July 22, 2010.

Michael R. McCann (Michael R. McCann, P.A. of Towson, MD), on brief, for petitioners.

Kurt J. Fischer (Melissa L. Mackiewicz of DLA Piper US LLP of Baltimore, MD; Harry C. Blumenthal and Eileen E. Powers of Blumenthal, Delavan & Williams, P.A. of Annapolis, MD), on brief, for respondents.

James A. Chance, Asst. County Atty. (Jonathan A. Hodgson, County Atty., of Annapolis, MD), on brief, for respondents.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, BARBERA and JOHN C. ELDRIDGE, (Retired, Specially Assigned), JJ.

MURPHY, J.

On March 6, 2006, the County Board of Appeals of Anne Arundel County (the Board) entered an ORDER that included the following provisions:

1. [Respondent Elm Street Development's petition for] [a] variance to the density requirements for development within the [Resource Conservation Area] of the [Chesapeake Bay] Critical Area to permit seven lots on 23 ± acres [with a street address of 481 Epping Forest Road, near Annapolis] is hereby GRANTED; and

2. Variances to permit the construction of dwellings, a road and associated facilities with disturbance to the expanded buffer and steep slopes and to permit forest clearing as well as variances to extend the time (from 1 year to 3 years) to obtain permits, and (from 2 years to 6 years) to complete construction are hereby GRANTED, subject to the following conditions:

(a) No more than seven (7) houses are permitted on the property.

(b) Only one lot can be cleared at any given time. The lot must be stabilized with vegetation before any subsequent lots can be cleared.

(c) No vegetation shall be disturbed beyond the expanded buffer line, unless such disturbance is necessary to remedy a septic system issue.

(d) Each lot must have a “rain garden” or similar on-site stormwater management system to provide quantity and quality control for all impervious surfaces thereon.

(e) The configuration of the lots as shown on the site plan (Petitioner's Exhibits 4 and 15) shall not be modified.

(f) The homes on Lots 1 and 7 shall not exceed the current footprint.

(g) The homes on Lots 2, 3, 4, and 6 must be placed at the minimum building restriction line nearest to the street.

(h) The home on Lot 5 must be placed at the minimum building restriction line nearest to Lot 4.

(i) Any area disturbed to permit the construction of the access road must be stabilized with a covering of mulch or similar approved stabilization method at all times and stages of construction.

(j) If any of the conditions are violated, this decision reverts to a DENIAL of all the requested variances.

The Board's Order was accompanied by a twenty-three page “MEMORANDUM OF OPINION,” a three page Concurring Opinion and a nine page “DISSENT.” Petitioner Sara Caldes, along with other “protestants” in the proceeding before the Board, sought judicial review of the Board's Order, which was affirmed by the Circuit Court for Anne Arundel County.¹ After the judgment of the Circuit Court was affirmed by the Court of Special Appeals, ² the Petitioners requested that this Court issue a writ of certiorari to resolve the following issues:

(1) Does Anne Arundel County's lot merger law (requiring nonconforming substandard lots to be merged so as to approximate current county density limitations) override the density limitations in State and County critical area law?

(2) Does the grandfathering provision in COMAR 27.01.02.07 B allow the subject property to be developed in accordance with the density limitations applicable prior to the adoption of the critical area law?

(3) Even assuming the lot merger law supplants the density limitations in State and County critical area law, can a developer rely upon nonconforming substandard lots in an old plat when that plan was abandoned and lots were subsequently sold in complete disregard of that plat?

(4) Can a developer meet the standard for obtaining a variance in the critical area, and overcome the statutory presumption against development in the critical area, by simply showing that he could hypothetically develop the property in a manner that would have a greater environmental impact?

We granted their petition. Caldes v. Elm Street, 404 Md. 658, 948 A.2d 70 (2008). For the reasons that follow, we shall affirm the judgment of the Court of Special Appeals.

Background

The opinion of the Court of Special Appeals includes the following factual summary:

The Elm Street property that is the subject of this litigation consists of 22.196 acres on Epping Forest Road near Annapolis. The property was originally part of a subdivision known as “Epping Forest Section B.” The plat for Epping Forest was recorded in the Anne Arundel County land records in 1926. The 1926 plat showed that the tract was at that time subdivided into approximately 500 small lots. [Today, t]he Elm Street property ... embraces

150 of the roughly 500 lots shown on the 1926 plat. The original owners of the Epping Forest tract had been Severn Shores, Inc[.]. Seve[r]n Shores, however, defaulted on its mortgage in 1930. Except for five small lots that had been sold out of the original subdivision in 1928 and 1929, the remainder of the property was sold to six separate purchasers. The successors to two of those 1930 purchasers were 1) James L. Smith and 2) Charles A. and Renate I. Miller. Elm Street is now the owner of what had been the Smith property and the Miller property, in all[,] approximately 30% of the original Epping Forest Section B subdivision.

In the years since the 150 lots were recorded in 1926, two pertinent sets of restrictions have been imposed upon the development of the property. The first set of restrictions came in 1952 with the adoption by Anne Arundel County of its first land use regulations, including a zoning code. The Elm Street property is now zoned R1-Residential. In an R1-Residential District, the minimum lot size for the building of a residence is 40,000 square feet [ (approximately one acre) ]. As a straight arithmetic calculation, the Elm Street property-the original 150 lots on the 1926 plat-can only accommodate 12 lots of sufficient size to permit the building of a residence [in the R1-Residential District].

The second set of restrictions [imposed upon the development of the property] came with the enactment by the Maryland General Assembly in 1984 (by ch. 794 of the Acts of 1984) of the Chesapeake Bay Critical Area Protection Program. Its provisions are now codified in Maryland Code, Natural Resources Article, §§ 8-1801 through 8-1817. Section 8-1808(a) provides:

(a) Local jurisdictions to implement; grants.-(1) It is the intent of this subtitle that each local jurisdiction shall have primary responsibility for developing and implementing a program, subject to review and approval by the Commission.

* * *

With respect to the Critical Area Program, we observed in Becker v. Anne Arundel County, 174 Md.App. 114, 130, 920 A.2d 1118 (2007):

The State Critical Area Program provides that its purpose is to establish a resource protection program for the Chesapeake and Atlantic Coastal Bays and their tributaries. Maryland Code (2000 Repl.Vol. & Supps.2002-2006), § 8-1801(b)(1) of the Natural Resources Article (“N.R.”). The program was implemented “ on a cooperative basis between the State and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to State criteria and oversight.” N.R. § 8-1801(b)(2).

(Emphasis supplied). See also Lewis v. Department of Natural Resources, 377 Md. 382, 391-94, 833 A.2d 563 (2003); White v. North, 356 Md. 31, 36-38, 736 A.2d 1072 (1999) (“Section 8-1808(a)(1) requires local governments to have primary responsibility for development of programs to regulate land use in the critical area, ‘subject to review and approval by the Commission.’ ”).

By 1988, Anne Arundel County had developed its implementing program for the parts of the Chesapeake Bay Critical Area lying within its boundaries with the enactment of Anne Arundel County Code (1985, as amended), Article 28, §§ 1A-102 through 1A-112. The Elm Street property in this case lies within the Critical Area generally and, more specifically, within the “Resource Conservation Area” (“RCA”), the most restrictive of the three land use categories in the Critical Area Program. Of particular pertinence to this case is County Code, Article 28, § 1-A-103(d)(2), which provides:

[T]he maximum permitted density in a resource conservation area [RCA] is not more than one dwelling unit per 20 acres.

Caldes v. Elm Street Dev., No. 79, September Term, 2007, unreported opinion filed January 17, 2008, pp. 1-3.

The Board's majority opinion included the following findings and conclusions:

This property comprises approximately 23 acres of land on Saltworks Creek within the R1 zone and designated as Resource Conservation Area (“RCA”) in the Critical Area. The Petitioner contends that there are 12 lawful building sites (and we agree) on the property and purposes to resubdivide (at a later time) the property into seven lots. This property is significantly impacted by steep slopes, Critical Area buffer and expanded buffer, none of which can be disturbed under the County's Critical Area Program, Title 1A of the Zoning Regulations. Less than four acres of the property would be disturbed under this development plan.

The [Respondent] has requested a variance (BA 86-04V) to exceed the permitted maximum density (one dwelling unit/20 acres) on property within the RCA of the Critical Area (the “density variance”). The [Respondent] has also requested variances to permit the construction of dwellings, a road and associated facilities with disturbance to the expanded buffer and steep slopes and to permit forest clearing as well as a variance to extend the time (from 1 year to 3 years) to obtain permits, and (from 2 years to 6

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