Mueller v. People's Counsel

• Citation: 177 Md. App. 43,934 A.2d 974
• Decision Date: 02 November 2007
• Docket Number: No. 319, September Term, 2006.,319, September Term, 2006.
• Parties: Herman MUELLER, Jr., et al. v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY.
• Court: Court of Special Appeals of Maryland

934 A.2d 974

177 Md. App. 43

Herman MUELLER, Jr., et al. v. PEOPLE'S COUNSEL FOR BALTIMORE COUNTY.

No. 319, September Term, 2006.

Court of Special Appeals of Maryland.

November 2, 2007.

Edward J. Gilliss (Leanne M. Schrecengost, Royston, Mueller, McLean & Reid, LLP, on the brief), Towson, for appellant.

Carole S. Demilio (Peter Max Zimmerman, on the brief), Towson, for appellee.

Panel: HOLLANDER, DEBORAH S. EYLER, and WOODWARD, JJ.

HOLLANDER, J.

In this appeal, we are asked to determine whether the Circuit Court for Baltimore County erred in reversing the Baltimore County Board of Appeals (the "Board"), which had granted a "Petition for Variance" (the "Petition") as to an undersized waterfront lot owned by Herman Mueller, Jr. and Grace Mueller, appellants. The lot became undersized as a result of changes to Baltimore County's zoning laws.

When the Petition was filed, appellants also owned an adjoining waterfront lot that Mr. Mueller's parents had purchased in 1947, and on which they had constructed a residence in 1948 (referred to as "Lot 66" or "Property I"). The lot at issue here (referred to as "Lot 67" or "Property II"), was purchased by Mr. Mueller's parents in 1960, and has remained undeveloped. Appellants acquired the properties in 1979. In 2004, they sought a variance as to the undeveloped lot in order to construct a dwelling on it. People's Counsel for Baltimore County, appellee, opposed the Petition. After appellants prevailed before the Board, appellee sought judicial review in the circuit court. That court reversed the Board.

This appeal followed. Appellants pose the following questions:

1. Did the Board properly grant the Appellants' Petition for Variance in Accordance with the standards for undersized lots established in BCZR Section 304.1?

2. Did the Board properly grant Appellants' Petition for Variance in accordance with the BCZR Section 307 variance process?

3. Was the Board correct in finding that the doctrine of merger is inapplicable to Properties I and II?

For the reasons set forth below, we shall reverse the circuit court and remand to the Board for further proceedings.

FACTUAL AND PROCEDURAL SUMMARY

In 1947, Herman Mueller, Sr. and his wife, Thelma Mueller (the "elder Muellers"), the parents of appellant Herman Mueller, Jr., acquired Lot 66, located at 2606 Bauernschmidt Drive in Baltimore County (the "County"). In 1948, they constructed a dwelling on Lot 66, which is used as a summer home and weekend retreat. The elder Muellers purchased the adjacent waterfront lot, Lot 67, in 1960 located at 2608 Bauernschmidt Drive. Lot 66 is approximately 8,400 square feet in area, and 50 feet wide, while Lot 67 is approximately 6,812 square feet in area and about 61 feet wide.¹

The lots are located in Bauernschmidt Manor, a 1940 waterfront subdivision on the Turkey Point Peninsula, in eastern Baltimore County. Bauernschmidt Manor consists predominantly of single family residences built in the 1940's and 1950's, many on lots which are about 50 feet wide, and thus undersized under current zoning regulations. However, many homes in the waterfront section of Bauernschmidt Manor were constructed on multiple, contiguous lots. Lots 66 and 67 both front on Greyhound Creek, which flows into Middle River. Moreover, most of the area comprising the two lots is located within the 100-foot Chesapeake Bay Critical Area Buffer.²

In 1978, the two parcels were re-deeded to Thelma Mueller and her son, Herman Mueller, Jr. Then, in 1979, the deeds were transferred to appellants Herman, Jr. and his wife, Grace Mueller. Both lots were collectively known as 2606 Bauernschmidt Drive,³ but are deeded separately. As of January 1, 2003, the land portion of Lot 66 was valued at $98,550, while the improvements were valued at $21,550. As of that date, Lot 67 had a "Base Value" of $5,720. During the pendency of the variance proceedings, appellant sold Lot 66.

Lots 66 and 67 conformed to Baltimore County Zoning Regulations ("BCZR") until 1970, when the Bauernschmidt Manor subdivision was re-zoned Density Residential 3.5 or "D.R. 3.5," (i.e., 3.5 units per acre). In order to construct a dwelling on a lot that is zoned D.R. 3.5, a minimum lot area of 10,000 square feet per dwelling unit is required, along with a minimum lot width of 70 feet. See BCZR § 1B02.3.C.1.⁴

On April 27, 2004, appellants filed their variance Petition, in which they sought permission to make Lot 67 a buildable lot. In particular, the Petition requested that the Zoning Commissioner "approve an undersized lot per Section 304 [of BCZR] with any other variances deemed necessary...."⁵

A zoning hearing was held on June 21, 2004. Thereafter, on June 23, 2004, the Deputy Zoning Commissioner granted appellants' Petition, stating, in relevant part:

Interested Persons

Appearing at the hearing on behalf of the variance request were James Grammer, engineer from McKee & Associates, Inc., Steven Glock and Herman Mueller, the Petitioner. Silvana Wisniewski, Robert Koch and Steve Hummel appeared in opposition to the petition. Linda Clark attended the hearing as a[sic] interested citizen. People's Counsel, Peter Max Zimmerman, entered the appearance of his office in this case.

Testimony and Evidence

Testimony and evidence indicated that the property, which is the subject of this variance request, consists of 6,812.10 sq. ft., more or less, and is zoned DR 3.5. Mr. Grammer proffered that the subject property is a vacant lot (lot 67) of the Bauernschmidt Manor subdivision which was recorded in the Land Records of Baltimore County in 1940. Its frontage along Bauernschmidt Drive is approximately 50 ft. as are most other lots in the subdivision. See Petitioner's Exhibit 1. The Petitioner acquired one half of a 20 ft. wide emergency water access strip in 1960 that separates lots 68 and 67 and so the combined road frontage is approximately 61 ft. As such, the combination does not meet the minimum 70 ft. width required by the regulations for DR 3.5 property. The subject lot faces Greyhound Creek and widens out to approximately 70 ft. along the water. The lot contains approximately 6,800 sq. ft of area, whereas the regulations require 10,000 sq. ft. The property is served by public sewer and water.

Lot 66 is also owned by the Petitioner and is improved by a single-family dwelling. Again, its frontage along Bauernschmidt Drive is approximately 50 ft. . . .

The Deputy Zoning Commissioner proceeded to list the nearby properties as an indication of the development pattern. He noted that several were built on 50 foot lots, while others were situated on double lots. Moreover, he observed that several protestants were concerned about jeopardizing their own views of the water. Further, he stated:

Mr. Grammer indicated that the proposed home would meet all County requirements for setbacks but could not meet the area and lot width regulations. As such, he believed that the subject property qualifies under Section 304 since the lot was recorded prior to March 30, 1955, that all other requirements except area and width will be complied with, and the owner does not own sufficient adjoining land to conform to the area and width requirements. Again, in regard to the latter requirement, he noted that lot 66 was already undersized and there would be no sense to take land from this undersized lot as this would also require a variance. In addition, he noted that the property could not meet the zoning regulations imposed upon it many years after it was laid out and recorded. This would amount to both a hardship and practical difficulty. (Emphasis added.)

The opinion continued:

Findings of fact and conclusions of law

In regard to what was requested in terms of variance, I find that there are special circumstances or conditions existing, that are peculiar to the land or structure, which is the subject of the variance request. The subdivision was recorded in the 1940's much before the DR 3.5 regulations were imposed. I recognize that the case of Cromwell v Ward, 102 Md.App. 691, 651 A.2d 424, (1995) seems to indicate that there must be some physical uniqueness in the size[,] shape or environment of the property to qualify for a variance. However, I do not believe the Court addressed the issue of old subdivisions having new zoning regulations imposed upon them. In such a case, the imposition of the new regulations impacts the lot in the old subdivision disproportionately as compared to lots in the area laid out in accord with the regulations. I find that under these circumstances the property passes the first test and is unique. There is no way for the 50 ft. lots, which were designed before the new regulations, to meet the new 70 ft. width or area requirements. Requiring such would be a hardship and a practical difficulty.

However, as I indicated at the hearing, I must also find that the variance can be granted in strict harmony with the spirit and intent of said regulations, and in a manner as to grant relief without injury to the public health, safety and general welfare. To me, this means that I look to the pattern of development in the immediate area to see if the old undersized lots are generally developed with single-family homes on 50 ft. lots or has the "neighborhood" been developed with double lots. In my way of thinking, the proposed new home should be compatible with the existing neighborhood. Said another way, allowing new homes on 50 ft. lots in neighborhoods which have been developed in double lots would be out of place with and change the character of the neighborhood.

I think it also important to arrive at the same result using Section 304 or the formal variance procedure. Both have been requested here. This lot meets all the criteria of Section 304.1 as it is a pre-1955 lot, the new home will meet all regulations other than lot width and area, and there is no adjoining land from which the owner could take to make the lot conform. I distinguish the...