Chesley v. Annapolis

• Decision Date: 27 September 2007
• Docket Number: No. 1104, September Term, 2006.,1104, September Term, 2006.
• Citation: 933 A.2d 475,176 Md. App. 413
• Parties: William F. CHESLEY, et ux. v. CITY OF ANNAPOLIS, Maryland.
• Court: Court of Special Appeals of Maryland

933 A.2d 475

176 Md. App. 413

William F. CHESLEY, et ux. v. CITY OF ANNAPOLIS, Maryland.

No. 1104, September Term, 2006.

Court of Special Appeals of Maryland.

September 27, 2007.

Sager A. Williams, Jr. (Blumenthal, Delavan & Williams, PA on the brief), Annapolis, for appellant.

Jonathan P. Kagan (Brassell, Baldwin, Kagan & May, PA., Shaem Spencer, City Attorney on the brief), Annapolis, for appellee.

Argued before DAVIS, JAMES R. EYLER, and ADKINS, JJ.

ADKINS, J.

William and Robin Chesley, appellants, challenge the denial of a front yard set-back variance that would enable them to build a one car garage within three feet of the street along their Chesapeake Bay waterfront property in Annapolis. They present two questions for our review:

I. Did the Board of Appeals err in denying the Chesleys' zoning variance because the Board's conclusions are not supported by substantial evidence and because the Board failed to apply the law correctly?

II. When the City appears as a party at a public hearing before the Board of Appeals through officials who work for the City's Planning Department, and when those City officials testify in favor of a variance application, is it improper for the City in a subsequent petition for judicial review of the Board's decision to oppose the variance by taking positions contrary to the positions City officials took before the Board?

Finding no error, substantial evidence in the administrative record to support the Board's denial of this variance, and no impropriety in the City's advocacy, we shall affirm the judgment.

City Regulations

The Annapolis City Code sets minimum setbacks of six feet for side yards and 30 feet for front yards for accessory structures in an R2 zone, such as the Chesleys' proposed garage. See Annapolis City Code § 21.18.040(C)(hereafter cited as "Code"). The Chesley property is subject to other building restrictions, however, due to its location at 15 Eastern Avenue in the Eastport section of Annapolis, on the Chesapeake Bay.

First, the approximately one-third acre lot is in the Chesapeake Bay Critical Area, and therefore all buildings on this lot must be set back at least 44 feet from the shoreline. Impervious surfaces may not cover more than fifty percent of the lot. As a result, the residence, driveway, and accessory structures may not occupy more than approximately 7,870 square feet of the Chesley property.

Second, the Chesley property lies in a Residential Conservation Overlay District, which requires formal Site Design Plan Review by the City's Department of Planning and Zoning prior to issuance of all building permits for any construction that impacts the street facade. See Code § 29.69.030. The purpose of this regulation

is to preserve patterns of design and development in residential neighborhoods characterized by a diversity of styles and to ensure the preservation of a diversity of land uses, together with the protection of buildings, structures or areas the destruction or alteration of which would disrupt the existing scale and architectural character of the neighborhood. The general purpose includes . . . . [c]ompatibility of new construction ... with the existing scale and character of surrounding properties[.]

Code § 21.69.010. The RC overlay standards encourage traditional urban design, inter alia, by permitting reduced building setbacks to the extent that the proposed new construction maintains building patterns of the neighborhood. See City of Annapolis Dep't of Planning and Zoning, The Eastport Residential Conservation Overlay District: A Guide to the Process and Design Guidelines 2.

The third and final factor affecting use of the property is that the Chesley lot lies within the Eastport Residential Conservation Overlay District. See id. Eastport originated in the late 19th century, and remained an independent town until the City of Annapolis (the City) annexed it in 1951. See id. at 8. The neighborhood is located within walking distance to downtown Annapolis and the City Dock, on the Horn Point peninsula, between Spa Creek and Back Creek, where the Severn River enters the Chesapeake Bay. See id. Eastport homes reflect that community's working-class and maritime roots, characterized architecturally by "social and physical diversity, together with its small, intimate scale" and an ambiance described as "[d]elicate, unique, special, charming, historic, quiet, [and] personal[.]" See id. To preserve that character, "all new construction, including . . . accessory structures which may be visible from the street [must] be reviewed for compliance with the guidelines in Section 21.98.050.D[.]" Id. With respect to building setbacks from the street, these must "observe the established setbacks for the block on which [the construction] is proposed, or the setback requirement of the underlying zone, whichever is less[.]" Id. at 4.

The Annapolis City Code permits the Board to grant a variance from applicable setback requirements, see Code § 21.28.040.A, upon finding that the following conditions have been satisfied:

1. Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, a particular hardship to the owner would result as distinguished from a mere inconvenience if the strict letter of the regulations were to be carried out;

2. The conditions upon which a petition for a variation is based are unique to the property for which the variance is sought, and are not applicable, generally, to other property within the same zoning classification;

3. The purpose of the variance is not based exclusively upon a desire to increase financial gain 4. The alleged difficulty or hardship is caused by this title and has not been created by any persons presently having an interest in the property;

5. The granting of the variation will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located;

6. The proposed variation will not impair an adequate supply of light and air to adjacent property, or substantially increase the congestion of the public streets, or increase the danger of fire, or endanger the public safety, or substantially diminish or impair property values with [sic] the neighborhood.

Former Code § 21.80.030(A)(1996)(emphasis added). See also Code § 21.28.050 (2005)(current variance standards and conditions are substantially the same).

The Chesleys' Development Proposals

Immediately after purchasing the property in 2000, the Chesleys consulted with the City's Department of Planning and Zoning regarding their wish to replace the existing residence with new construction, including a house with attached two car garage and a pool. As a result of negotiations over 18 months, during which the Department of Planning and Zoning (the Department) pressed for a public view corridor along the southern boundary of the property and design changes to make the new home "more Eastport-like," the Chesleys amended their plans to propose a detached two car garage.¹ The Department noted that this would require side and front yard setback variances, but told the Chesleys that the Department would "support" the request. See Code § 21.28.020.B (planning staff reviews variance applications and makes reports and recommendations to the Board).

In support of their garage variance, the Chesleys advised that when Mr. Chesley's wheelchair-bound adult son Billy visits, he uses a special van with a metal lift and ramp that becomes slippery in rain, snow, or ice. In addition, waterfront lot owners along Eastern Avenue treat their front yards as their rear yards for purposes of garages. The Chesleys contend that "[n]o waterfront property along Eastern Avenue has its water view blocked by a detached garage built between the home and the water." Moreover, the lots on each side of the Chesleys have detached garages within a few feet of the street.

The City approved plans for a new 5,000 sq. ft. residence, but concluded that further review of the pool and garage proposals was necessary. In addition to those exclusions, the City's approval was subject to specific conditions. One condition was that the Chesleys enter into a "View Cone Covenant and Agreement"² with two neighbors across the street, in order to preserve a public view to the Chesapeake Bay. They did so. These two agreements prohibit development of an 18-20 foot wide strip along the westerly side of the lot. According to Mr. Chesley, his is the only lot that the City has required a recorded view cone agreement as a condition of approval.

The Chesleys proceeded to build their house as approved by the City, i.e., without a garage. During construction, they petitioned for approval of a variance that would allow them to build a one story, two car, detached garage, within three feet of Eastern Avenue, in the location suggested by planning authorities. As promised, the Planning Department submitted a staff report supporting this request. After a public hearing, at which neighbors opposed the Chesleys' proposal, the Board unanimously denied the application on July 17, 2002.

The Chesleys completed construction of both the house and the pool, then occupied their home for the next 18 months, during which time they had a daughter.³ In 2005, the Chesleys filed a second application for a variance, this time to build a scaled-back one story, one car garage in the same location, also requiring a variance to allow a three foot setback, but no side setback variance. The garage would be custom-designed to accommodate the van used to transport Billy. The Department again supported the variance application.

At a June 7, 2005 hearing, counsel for the Chesleys proffered the testimonies and qualifications of an architect and a land planner, as well as Mr. Chesley's testimony.⁴ Two neighbors then testified for, and two against, the proposal.

On June 29, after public deliberation, the Board...