Richard Roeser Professional Builder, Inc. v. Anne Arundel Cty.
Decision Date | 07 March 2002 |
Docket Number | No. 79,79 |
Citation | 793 A.2d 545,368 Md. 294 |
Parties | RICHARD ROESER PROFESSIONAL BUILDER, INC. v. ANNE ARUNDEL COUNTY, MD. |
Court | Maryland Court of Appeals |
Daniel J. Mellin (Hillman, Brown & Darrow, P.A., on brief), Annapolis, for petitioner.
Sarah M. Iliff, Senior Asst. County Atty. (Linda M. Schuett, County Atty., on brief), Annapolis, for respondent.
Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.
Anne Arundel County, Maryland, respondent, appealed to the Court of Special Appeals from a judgment of the Circuit Court for Anne Arundel County. The Circuit Court had found that the Anne Arundel County Board of Appeals (hereinafter Board) had made an error of law and had also used an erroneous standard in respect to the Board's denial of a request for certain variances made by Richard Roeser Professional Builder, Inc., petitioner. The Court of Special Appeals reversed the judgment of the Circuit Court and directed the Circuit Court to reinstate the decision of the Board. Upon petitioner's request, we granted its Petition for Writ of Certiorari. Roeser v. Anne Arundel County, 366 Md. 246, 783 A.2d 221 (2001).
Petitioner presents three questions for our review:
We answer affirmatively to questions two and three. Accordingly, we shall reverse. We shall address question one only to affirm that the standards set out in Belvoir Farms Homeowners Association v. North, 355 Md. 259, 734 A.2d 227 (1999), and in White v. North, 356 Md. 31, 736 A.2d 1072 (1999), and reiterated and explained in Mastandrea v. North, 361 Md. 107, 760 A.2d 677 (2000), are the correct standards to apply upon remand to the Board.1
Petitioner was the contract purchaser of two lots near Annapolis in Anne Arundel County. Only one lot is part of this appeal and part of the lot is located in the Critical Area "buffer" zone adjacent to wetlands.2 At the time it contracted to purchase the property, petitioner knew that variances from the "Critical Area" and zoning provisions of Anne Arundel County would be required in order for it to be able to build a house of the size it desired. It applied for those variances and, as we have indicated, the Board denied its request.
In relevant part, the Board found:
Judge Manck, of the Circuit Court for Anne Arundel County, in correctly rejecting the position of the Board, stated:
The Court of Special Appeals, in reversing the Circuit Court, stated, as relevant here:
Discussion
Id. at 50-51, 78 A.2d at 166 (emphasis added). In other words, we were asserting that the hardship that existed when the property was purchased was not a reason to reclassify (rezone) the specific property. The issue was not treated as a variance application, in spite of our reference to Rathkopf's The Law of Zoning and Planning (a reference that Rathkopf has since largely disowned, see infra at pages 550 through 52).
Shortly afterwards, in a case in which we upheld the Board's denial of an "exception," we explained what we thought we had done in Gleason:
Hoffman v. City of Baltimore, 197 Md. 294, 308, 79 A.2d 367, 373 (1951). The language in Hoffman, describing what we had done in Gleason, was classic change/mistake language usually associated with Euclidian reclassifications, not variances.
In City of Baltimore v. Weinberg, 204 Md. 257, 103 A.2d 567 (1954), a case involving a denial of a non-conforming use status, we continued to treat Gleason as a reclassification case rather than a variance (we had...
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