Lewis v. Dept. of Natural Resources
Decision Date | 31 July 2003 |
Docket Number | No. 114,114 |
Citation | 833 A.2d 563,377 Md. 382 |
Parties | Edwin H. LEWIS v. DEPARTMENT OF NATURAL RESOURCES. |
Court | Maryland Court of Appeals |
Raymond S. Smethurst, Jr., (Robert B. Taylor and S. James Sarbanes of Adkins, Potts & Smethurst, LLP, on brief), Salisbury, for petitioner.
Marianne D. Mason, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on brief), Annapolis, for respondent.
Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. CATHELL, Judge.
Petitioner, Edwin H. Lewis, seeks the reversal of a decision of the Wicomico County Board of Zoning Appeals (Board) denying his request for a zoning variance to construct a hunting camp on his property located within a Critical Area Buffer. On judicial review, the Circuit Court for Wicomico County, after an October 12, 2001 hearing, upheld the decision of the Board. Petitioner appealed and the Court of Special Appeals, in an unreported opinion dated October 9, 2002, affirmed the Circuit Court's upholding of the Board's decision.
On November 25, 2002, petitioner filed a Petition for Writ of Certiorari with this Court and, on January 9, 2003, we granted the petition. Lewis v. Department of Natural Resources, 372 Md. 684, 814 A.2d 570 (2003). Petitioner presents three questions for our review:
We answer in the affirmative to petitioner's questions 1 and 3, as we hold that the Board committed several errors of law in its decision denying petitioner's variance request, including not considering all of the County Code's variance criteria and misapplying the unwarranted hardship standard. Accordingly, we do not answer petitioner's question 2; we instead vacate the judgment of the Court of Special Appeals, direct that court to vacate the decision of the Circuit Court with directions to vacate the decision of the Wicomico County Board of Zoning Appeals and to remand the case to the Board to reconsider petitioner's variance request in light of our holding.
I. Facts
A. Critical Area Resource Protection Program Background
As we did in White v. North, 356 Md. 31, 736 A.2d 1072 (1999), we shall set out a brief overview of the Chesapeake Bay Critical Area Protection Program (Critical Area Program) to fully understand the nature of this case. The Critical Area Program is currently codified in Maryland Code (1973, 2000 Repl.Vol.), sections 8-1801 to 8-1817 of the Natural Resources Article. Respondent is the Department of Natural Resources (DNR), the department with the authority, through the Chairman of the Chesapeake Bay Critical Area Commission (Commission), to enforce the Critical Area Program.1 The Commission's regulations are encompassed in Title 27 of the Code of Maryland Regulations (COMAR).
We summarized in White:
....
(11)(i) "Project approval" means the approval of development ... in the Chesapeake Bay Critical Area by the appropriate local approval authority.
(ii) "Project approval" includes:
....
(, cert. denied sub nom. )Enoch v. North, 336 Md. 224, 647 A.2d 444 (1994).
White, 356 Md. at 36-38, 736 A.2d at 1075-76 (footnotes omitted).
Pursuant to these previously mentioned provisions of the Maryland Code,2 Wicomico County adopted its Critical Area Program as codified in Chapter 125 of the Wicomico County Code (County Code). That program's stated purpose, in reference to development within the Critical Area, is:
"to provide special regulatory protection for the land and water resources located within the Chesapeake Bay Critical Area in Wicomico County ... to foster more sensitive development activity for shoreline areas and to minimize the adverse impacts of development activities on water quality and natural habitats."
County Code, § 125-1.3 The County Code specifically prohibits development inside the area known as the Buffer. County Code, § 125-9. Section 125-7 defines the "Buffer" as:
These Buffers act as a "setback" for development protecting the Chesapeake Bay's water quality. Section 125-9 of the County Code set outs Wicomico County's prohibition of development in the Buffer as it states:
"Except as provided for in § 125-18, new development activities, including clearing of existing natural vegetation, erection of structures, construction of new roads, parking areas or other impervious surfaces and the placement of sewage disposal systems, are not permitted in the Buffer, except as provided for in § 125-11." [Emphasis added.]
Impervious surfaces are defined as "Any man-made surface that is resistant to the penetration of water."4 County Code § 125-7. If development does not fit the § 125-18 criteria5 for an exception to § 125-9, the County Code allows another avenue for possible development in the Buffer; it authorizes the Board to grant variances in certain situations. See County Code §§ 125-35 and 36, infra. The Board's denial of petitioner's variance request to build part of a hunting camp in the Buffer of his property is the subject of this appeal.
B. Lewis' Property
In April of 1999, petitioner purchased two tracts of land in Wicomico County located on opposite sides of Cross Thorofare, a tributary of the Nanticoke River, which is entirely inside the county's Chesapeake Bay Critical Area (Critical Area). The western tract of 218.78 acres is comprised entirely of marshland, while the eastern tract of 76.80 acres is comprised of 69.57 acres of marshland and 7.23 acres in "three upland areas." The largest of these "upland areas," Phillips Island, is 5.30 acres in size and is the subject of the litigation in the case sub judice. At the time of petitioner's purchase of these two tracts of land, the only...
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