Hikmat v. Howard County

Decision Date04 December 2002
Docket NumberNo. 2515,2515
Citation813 A.2d 306,148 Md. App. 502
PartiesJacob HIKMAT, v. HOWARD COUNTY, Maryland, et al.
CourtCourt of Special Appeals of Maryland

Cynthia Hitt Kent, Owings Mills, for appellant.

Paul T. Johnson, Deputy County Solicitor, Ellicott City, for appellee, Howard County.

Jennifer Bean-Dempsey (Ronald Dempsey, on the brief), Ellicott City, for appellees, Intervenors pro se.

Argued before DAVIS, JAMES R. EYLER, and PAUL E. ALPERT (Ret., specially assigned), JJ. JAMES R. EYLER, Judge.

RAFAT, Inc., appellant,1 filed a petition with the Howard County Department of Planning and Zoning ("DPZ") to waive a requirement contained in the Howard County Subdivision and Land Development Regulations ("HCSLDR") in order to permit disturbance of a stream and buffer area located within its property. The request was denied by DPZ, and appellant appealed to the Board of Appeals ("Board"). The Board reversed, granting appellant's waiver petition, and Howard County, ("the County"), appellee, on behalf of DPZ, filed a petition for judicial review in the Circuit Court for Howard County. The circuit court reversed, and appellant noted an appeal to this Court. The primary task facing this Court is to determine whether the Board committed any errors of law or acted arbitrarily or capriciously. We hold that it did not commit any errors of law, but that its decision granting the waiver cannot be sustained because the findings and conclusions contained in its opinion are inadequate.

In addition, we are presented with the question of whether the circuit court erred in granting a motion to intervene filed by several community members, additional appellees. We shall hold that the circuit court did not err.

Factual Background

Appellant owns a 6.9 acre parcel of land, zoned R-20, in Howard County. A small stream crosses the property in a north-south direction with approximately two-thirds of the property lying on one side of the stream. In February 1997, appellant sought approval from DPZ to subdivide the property into 12 lots and open space. The proposed subdivision reflected 4 lots on the one-third portion of the property, accessed by a use-in-common driveway crossing the stream.

DPZ initially approved appellant's sketch plan, and later its preliminary plan, but by letter dated February 11, 1999, DPZ rescinded the approval. The letter explained that at the time the sketch plan was approved, DPZ regarded the disturbance needed to construct the proposed driveway as necessary because it was to be placed over an existing steel pipe, and the embankment would be part of an in-stream storm water management pond. By the time of the preliminary plan, however, the driveway was no longer located at the site of the existing pipe, and the embankment no longer played a role in storm water management. Due to the changed circumstances, DPZ requested a revised preliminary plan and further stated, "[i]f you intend to pursue the current design which includes residential Lots 10-13, you must submit a formal waiver petition for relief from Subdivision Regulations, Section 16.116(a), to allow the disturbance within the environmental buffers needed to construct the proposed use-in-common driveway designed to serve as access for those lots."2

On June 1, 1999, appellant filed a waiver petition, pursuant to HCSLDR section 16.104, seeking permission to grade and remove vegetative cover for the purpose of constructing the use-in-common driveway. Section 16.104(a), in pertinent part, provides:

So that substantial justice may be done and the public interest secured, the Department of Planning and Zoning may grant waivers of the requirements of [the HCSLDR] in situations where the Department finds that extraordinary hardships or practical difficulties may result from strict compliance with [the HCSLDR] or determines that the purposes of this Subtitle may be served to a greater extent by an alternative proposal.

Subsection (b) further requires that the developer demonstrate "the desirability" of a waiver and that the waiver must not have the effect of "nullifying the intent and purpose" of the HCSLDR.

Appellant, in its waiver petition, asserted the following as justification for its request: (1) strict compliance with the regulations would result in extraordinary hardship and practical difficulties because one-third of the buildable property would be unusable, thereby prohibitively increasing the development cost per lot and preventing a "credible" builder from pursuing the project, (2) all alternatives were considered and appellant chose the most feasible alternative, (3) the waiver would not be detrimental to the public interest because (a) the crossing would not be noticeable from Gwynn Park Drive, (b) the crossing would have no flooding impact on upstream properties, (c) the crossing was more than 600 feet from the downstream property, (d) erosion and sediment control measures would be provided, and (e) granting the waiver would control 100 year storms, a benefit greater than that required by the regulations, and (4) approval of the waiver would not nullify the intent of the regulations because it would minimize the impact on the stream while allowing development in accordance with zoning regulations.

By letter dated July 27, 1999, DPZ denied the waiver request, providing the following reasons for the denial:

1. Nullifies the Intent of the Regulations

Effective August 19, 1999, no forest conservation easements will be allowed on residential lots less than 10 acres in size, unless the preliminary plan has signature approval by that date. Per Section 16.1205(a), (d), & (e), subdivision, site development, and grading shall leave forested stream buffers, steep slopes, and areas contiguous with those sensitive areas in an undisturbed condition and protected by inclusion as part of the forest conservation easement area. Steeply wooded slopes and stream buffers are proposed to be disturbed on this site for the purpose of providing the access which would allow creation of 4 lots. In addition, priority tree save areas adjacent to the stream and its buffers would have to be disturbed to accommodate the development of the 4 lots. This Division will not accept fee-in-lieu or off-site easements as an alternative to protection of the priority wooded areas unless the applicant has demonstrated that reasonable efforts to protect that priority forest have been taken; that the plan cannot be reasonably altered to include protection of the priority forest; or that a specific alternative offsite location has been identified where forest planting would have a greater environmental benefit than on this site. The applicant has failed to provide such justification.

2. Self-Created Hardship

Per Section 16.116(c), the applicant has attempted to establish that the driveway crossing is essential for the creation of 4 of the 12 lots and has shown the disturbance (conceptual grading) necessary for placing a driveway across the environmental area, which wold allow development of those 4 lots across the stream. The applicant has stated that no other reasonable alternative access points are available through the adjacent lots or elsewhere on the site to the 1.3 acre piece of land on the other side of the stream and that development of the 4 lots is not possible except by crossing the stream and grading for the crossing by a use-in-common driveway.

However, there is no guarantee of lot yield in the R-20 zoned district. The applicant has failed to demonstrate that the proposal would not nullify the purpose of the Regulations, which is to protect environmental buffers and steep slopes on the site for the purpose of preserving water quality and vegetative cover on erodible soils. The applicant has not shown that reasonable use of the 6.7 acre site is dependent on realizing the density proposed (i.e., 12 lots on 6.9 acres). Without the stream crossing, the developer can create 8 residential lots.

3. Detrimental to the Public Interest The lot and use-in-common driveway layout proposed as justification for the stream crossing is a forced design, shoe-horning minimum-sized (14,000 sf.) lots into the narrow wooded stream valley adjacent to existing residential backyards. One lot is encumbered by a drainage structure; another lot is encumbered with the paving for the use-in-common driveway to be 7 feet from the house; a third lot has questionable driveway access into the garage. The use-in-common driveway itself has no flexibility in design. It requires wholesale removal of priority forest adjacent to the 50-foot stream buffer and construction of retaining walls to create a bench for construction. In order to accommodate lots in compliance with the minimum building envelopes required by Zoning, the driveway must be located as far as possible uphill and adjacent to the neighboring properties, leaving limited room for the required landscape buffer.

On August 5, 1999, DPZ sent a letter to appellant requesting a revised subdivision plan. On September 14, 1999, appellant submitted a revised plan which reflected a 1.9 acre lot, in lieu of four lots, and without a stream crossing. On October 14, 1999, DPZ approved the plan.

Appellant noted an appeal to the Board, challenging DPZ's denial of its waiver request and DPZ's requirement for a new plan. In pertinent part, appellant asserted that DPZ erred by (1) referencing law not yet in effect, (2) referencing disturbance of steep slopes that do not exist, (3) referencing a distance of 8' from the use-in-common driveway to adjacent properties while the proposal was 10', and (4) other factual errors.

The Board heard testimony on October 19, 1999, December 2, 1999, February 22, 2000, and June 8, 2000. Cindy Hamilton, a DPZ employee, testified that there were no steep slopes, wetlands, or flood plains within the stream or stream buffer. She also testified that DPZ was justified...

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