Mastandrea v. North
| Decision Date | 10 October 2000 |
| Docket Number | No. 119,119 |
| Parties | John P. MASTANDREA, et ux. v. John C. NORTH, II. |
| Court | Maryland Court of Appeals |
David R. Thompson (Brynja M. Booth of Cowdrey, Thompson & Karsten, P.A., on brief), Easton, for appellants.
Marianne D. Mason, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Annapolis, for appellee.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ HARRELL, Judge.
We issued a writ of certiorari on our own initiative in this appeal,1 before it was considered by the Court of Special Appeals, primarily to consider the question of whether Title II of the Americans With Disabilities Act (42 U.S.C. §§ 12131-12134) applies to the administration and enforcement of the Talbot County Zoning Ordinance (the Zoning Ordinance or Z.O.), and specifically its provisions governing variances for property within the Chesapeake Bay Critical Area lying within Talbot County. Because of a facet of the pertinent legislative history revealed only after we agreed to consider this case, we shall not answer this question; instead, we shall reverse, on a different ground, the judgment of the Circuit Court for Talbot County, which had reversed the grant of the variance at issue in this matter by the Board of Appeals of Talbot County (the Board). In so doing, we also conclude that the Board's grant of the variance was supported by substantial evidence on the record before the Board.
Dr. and Mrs. John P. Mastandrea (Appellants) purchased in December 1992 an approximately 12 acre undeveloped, but subdivided, lot with frontage on Glebe Creek in Talbot County. Over the next 4 years or so, the Mastandreas, for themselves and their family, constructed on the lot a home, swimming pool, tennis court, pier, garden, and an extensive set of pathways connecting these improvements. Included in the pathway system, installed personally in 1996 by Dr. Mastandrea and his three eldest sons, were a brick-in-cement path connecting the house and pier and a brick-in-sand path roughly parallel to and within 20-25 feet of the bulkheaded edge of Glebe Creek. A primary reason given for installing the extensive, connecting path system was that the Mastandreas' daughter, Leah, suffered from muscular dystrophy (a progressively degenerative neurological and muscular disease) and was confined to a motorized wheelchair for mobility purposes. In order that she might access all of the property's amenities, and partake of them to some extent with her siblings, the pathways were designed to facilitate her movement by wheelchair. Much of the design and construction of the improvements on the lot also considered wheelchair access as an integral goal.
The Mastandreas installed the pathways without the benefit of a required building permit from Talbot County (or any form of prior governmental blessing or review) and heedless of the fact that a portion of the pathways were placed within the 100 foot buffer of the Chesapeake Bay Critical Area2 adjacent to Glebe Creek. The brick-in-cement portion of that path within the Critical Area buffer comprised 711 square feet of surface area. The brick-in-sand portion covered 4486 square feet of the surface of the Critical Area buffer. Together, the surface areas of these two components of the overall path system represented 4% of the total Critical Area buffer identified on the lot. Discovery by the authorities of the unauthorized installation led, among other things, to the Mastandreas filing on 29 January 1998 a variance application with the Board in an effort to validate the pathways constructed within the Critical Area buffer.3
Zoning Ordinance § 19.12(b)(5)(iii)(b) defines the Critical Area buffer as being "at least 100 feet wide, measured landward from the Mean Highwater Line of tidal waters and tidal wetlands, and from tributary streams."4 The need for a variance for those portions of the pathways located within 100 feet of the shore of Glebe Creek is necessitated by Z.O. § 19.12(b)(5)(iii)(c), which prohibits "[n]ew development activities, including structures, roads, parking areas and other impervious surfaces" in the buffer.5
At the time the Mastandreas filed their variance application, Z.O. § 19.14(b)(3)(iv) required the following favorable findings to be made by the Board before it could grant a variance from the Critical Area regulations:
At the Board's 11 May 1998 hearing on the Mastandreas' application, the applicants, in support of their principal theme that the variance should be granted as a reasonable accommodation of Leah's disability so that she could access the pier and enjoy the shoreline of Glebe Creek, mustered both testimony and exhibits. They explained that the pathways were located to allow a wheelchair to get close enough that Leah could enjoy the waterfront, but not so close as to be dangerous. According to the Mastandreas, the natural slope and the soil composition of the lot near the shoreline (except for the direct pier access) did not permit wheelchair access directly to the waterfront. Placing the pathways outside the 100 foot buffer, however, would deny a wheelchair occupant access to and enjoyment of the waterfront, they contended. The pathways permitted Leah to enjoy the natural and recreational aspects of her family's waterfront lot and were the only means by which Leah could accompany her brothers and sisters on walks and other activities on the lot. Mrs. Mastandrea testified that her daughter's ability to have access to the waterfront is one of the few pleasures that she still is able to enjoy due to the physical effects of her disorder.
The (brick-in-concrete) pier access pathway was designed to prevent a wheelchair from gaining momentum on the natural downslope from the house to the water. A pathway constructed in a straight line from the house to the pier, without the slope break provided by the Mastandreas' construction, would create a dangerous situation for a person confined to a wheelchair.
Dr. Mastandrea testified that in constructing the brick-in-sand pathway parallel to Glebe Creek his sons removed about six inches of turf, surface soil, and clay, and replaced it with three to five inches of sand. An environmental consultant, Ronald Gatton,7 testified that he was familiar with the Mastandreas' property and the intent of the Critical Area laws to reduce the amount of runoff into the Chesapeake Bay and its tributaries.8 Mr. Gatton testified that the soil of the lot was one of the heaviest clay soils that he had ever tested. He conducted an infiltration test on the brick-in-sand path and determined that water permeated the brick-in-sand pathway faster than the surrounding undisturbed soil, making the path three times as permeable as the surrounding lawn. Mr. Gatton stated that because the natural soil conditions in the area tended to be very stiff, with a "plastic" quality, it was his opinion that the pathway parallel to the creek actually intercepts much of the runoff from the lawn between the house and the path before entering Glebe Creek.
Dr. Mastandrea explained that during the initial construction of the home he removed a number of trees, mainly from the shoreline, to allow bulkheading. Prior to bulkheading, the shoreline was eroding under the bordering trees. The Mastandreas replaced the removed trees and vegetation with approximately 100 eight-to-twelve foot trees and approximately 1000 three-foot seedlings planted throughout the lot. Overall, they installed approximately 2000 new plantings on the property.
The Critical Area Commission (the Commission)9 presented one witness in opposition to the variance request. Mr. Gregory L. Schaner, a Natural Resources Planner for the Commission, opined that the requirements for granting a variance were not met by the Mastandreas. Mr. Schaner re-stated the position of the Commission, previously set forth in a 9 April 1998 letter to the Talbot County Planning Commission, that the Commission recommended denial of the variance request and that the Mastandreas be required to remove all portions of the pertinent pathways, except for an immediate...
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