White v. North

• Decision Date: 14 September 1999
• Docket Number: No. 85,85
• Citation: 356 Md. 31,736 A.2d 1072
• Parties: Anne Marie WHITE et al. v. John C. NORTH, II, Chairman.
• Court: Maryland Court of Appeals

736 A.2d 1072

356 Md. 31

Anne Marie WHITE et al. v. John C. NORTH, II, Chairman.

No. 85, Sept. Term, 1998.

Court of Appeals of Maryland.

September 14, 1999.

William M. Simmons, Annapolis, for petitioners.

Marianne D. Mason, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ Reargued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL, and ROBERT L. KARWACKI (retired, specially assigned), JJ

CATHELL, Judge.

Petitioners Anne and Richard White seek the reinstatement of a decision by the Anne Arundel County Board of Appeals (Board) granting their request for a zoning variance to construct an in-ground concrete swimming pool in the sloped back yard of their home. On judicial review, the Circuit Court for Anne Arundel County reversed the Board, ruling its decision was "arbitrary and capricious." The Court of Special Appeals affirmed the circuit court.¹

Petitioners present three questions for our review:

1. Did the Decision of the Court of Special Appeals effectively render meaningless and of no practical effect the Critical Area variance provisions required by the Critical Area Act, and as set forth in Article 3, Section 2-107(b) of the Anne Arundel County Code, by concluding that "unwarranted hardship" requires that the property owner be deprived of all reasonable use of their property before a variance can be granted[?]

2. What is the correct standard to use in evaluating the requirement of "unwarranted hardship," as that term is used in the Critical Area variance statute[?]

3. Does the taking of private property rights, which does not result in a denial of all reasonable use of the land, constitute an unconstitutional taking of property when the taking fails to serve the stated public purpose or the state police power[?]

We shall address questions one and two together. In light of our determination with respect to questions one and two, it is not necessary to address the third question.

We vacate the judgment of the Court of Special Appeals and direct that this case be remanded to the Anne Arundel County Board of Appeals for further proceedings consistent with this opinion and our holding in Belvoir Farms Homeowners Ass'n, Inc. v. North, 355 Md. 259, 734 A.2d 227 (1999).

I. The Chesapeake Bay Critical Area Protection Program

To understand fully the legal underpinnings of this case, a brief explanation of the Chesapeake Bay Critical Area Protection Program (Critical Area Program) is in order. The Critical Area Program is codified in Maryland Code (1974, 1990 Repl.Vol., 1998 Cum.Supp.), sections 8-1801 to 8-1816 of the Natural Resources Article. Respondent is the Chairman of the Chesapeake Bay Critical Area Commission (Commission), an arm of the Department of Natural Resources with authority to enforce the Critical Area Program. Title 27 of the Code of Maryland Regulations (COMAR) consists of the Commission's regulations.

It is important to understand the interrelationship between the State-imposed, but locally enforced, critical area prohibitions and local zoning requirements generally. Section 8-1802 of the Natural Resources Article provides:

(a) Definitions. ...

....

(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:

....

3. Issuance of variances, special exceptions, and conditional use permits....

Section 8-1808(a)(1) requires local governments to have primary responsibility for development of programs to regulate land use in the critical area, "subject to review and approval by the Commission." The program, "[a]t a minimum," must include "[z]oning ordinances or regulations." § 8-1808(c). Pursuant to these provisions, the Commission oversees the local governments in the adoption of zoning regulations for the critical area, including variance provisions acceptable to the Commission.² Once local critical area programs are adopted and approved, the programs can, depending upon their language, impose additional or different limitations. In the ordinance at issue here, Anne Arundel County has established different criteria for variances in the critical area.³ See Anne Arundel County Code (1996), Art. 3, § 2-107(b) (hereinafter County Code).

Finally, section 8-1812 confers full standing to the Chairman of the Commission to intervene in any administrative or judicial proceeding arising out of local project approval in the critical area, subject to withdrawal if thirteen members of the Commission oppose the intervention within thirty-five days. See North v. St. Mary's County, 99 Md.App. 502, 508, 638 A.2d 1175, 1178

(noting that section 8-1812 confers "unrestricted" standing upon the Commission to appeal any administrative or judicial decision impacting the Critical Area Program), cert. denied sub nom. Enoch v. North, 336 Md. 224, 647 A.2d 444 (1994).

Also crucial to this case is the "buffer" the Commission requires local jurisdictions to create. See COMAR 27.01.09.01.C.(1). A buffer is defined in COMAR 27.01.09.01.A as "an existing, naturally vegetated area, or an area established in vegetation and managed to protect aquatic, wetlands, shoreline, and terrestrial environments from man-made disturbances." The buffer must extend at least 100 feet from any tidal waterway, wetland, or tributary of the Chesapeake Bay, but localities must expand the buffer "to include contiguous, sensitive areas, such as steep slopes... whose development or disturbance may impact streams, wetlands, or other aquatic environments." COMAR 27.01.09.01.C.(1) & (7). County Code, Article 28, section 1A-104(a)(1) states: "If there are contiguous slopes of 15% or greater, the buffer shall be expanded ... to the top of the slope ... and shall include all land within 50 feet of the top of the bank of steep slopes." Within that buffer, the Commission bans any new development of all "impervious surfaces" that are not "water-dependent," which includes concrete swimming pools.⁴ COMAR 27.01.09.01.C.(2). The only way to build any impervious structure like petitioners' swimming pool is to apply and qualify for a variance under local zoning ordinances.

II. Background

In 1983, petitioners purchased a 1.52 acre lot in Anne Arundel County, Maryland, near Martins Cove, a waterway that ultimately flows into the Chesapeake Bay. Their property is not waterfront property and would not be within the critical area except for a determination by county authorities that it is now within the expanded buffer area. They began improvements on the lot in 1987 and began construction of their home in 1990. In its then existing, natural state, petitioners' lot had a gradual slope of less than 15%, therefore keeping it outside the scope of Anne Arundel County's definition of an expanded buffer zone. When petitioners began construction of their house, dirt from the excavation was pushed into the rear of the lot, creating an artificial slope of greater than 15%. It is this artificially created area that is at issue here. The record is unclear as to whether this artificially created area is contiguous with any natural buffer area. It is also unclear whether the area between the artificial slope and the waterway is itself at a 15% or more grade. Plans for the house apparently were approved by Anne Arundel County officials and, as built, complied with that approval. There is no indication in the record that any deviation from the approved plans occurred. During the planning and construction of their home, petitioners hoped to build, but never began construction of, the in-ground swimming pool, deck, and patio. Had they built the pool before the house, or at the same time as the house, it would not have been in the buffer zone. In 1995, petitioners began planning these accessory structures. The backyard where the artificial slope had been created was chosen as the location to construct the pool.

By the time permits were sought for the pool, deck, and patio, the backyard of petitioners' property no longer had a slope of less than 15% leading down toward Martins Cove, because the slope had been increased by the petitioners during the construction of their house. Although in its preexisting natural state, the background area was not a buffer zone, it was deemed to be in the "expanded buffer" zone created by the County under the authority of the Critical Area Program because they had increased the slope. See County Code (1998), Art. 28, § 1A-104(a)(1). As we have indicated, however, the record is unclear as to whether the area of the slope created by the Whites' excavation abuts on a slope that is itself at a grade of 15% or more and thus an expanded buffer zone.⁵ A County ordinance required that petitioners apply for a zoning variance to site the pool behind their house. See County Code (1996), Art. 3, § 2-107. Petitioners applied for the variance, but an administrative hearing officer denied their request. An appeal to the Board followed.⁶

The Board reversed the decision of the hearing officer in a three-to-two decision. As this decision is the basis for the proceeding before us, we shall review the relevant portions of the record of this hearing. Petitioner Anne White was the first to testify. During her testimony, she revealed that originally there "was a gradual slope, but ... this 15 percent slope [was] created by the excavation" done during the approved construction of the house. When asked about her need for the pool, she replied, "Well, to enjoy it. Several of my friends have pools on waterfront properties.... I have a youngster who is interested in swimming, as—just as a course of relaxation and enjoyment, and just as part of enjoying my house." She also stated:

I cannot put [the pool] in my front yard because of the covenants in our community.⁷ And,...