White v. North
| Decision Date | 01 September 1997 |
| Docket Number | No. 981,981 |
| Citation | 121 Md.App. 196,708 A.2d 1093 |
| Parties | Anne Marie WHITE, et al. v. John C. NORTH, II, Chairman. , |
| Court | Court of Special Appeals of Maryland |
Marianne D. Mason, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Annapolis, for appellee.
Argued before MURPHY, C.J., and HARRELL and THIEME, JJ.
Anne Marie and Richard D. White, III, appellants, seek restoration of an area variance to construct a swimming pool adjacent to their home in Annapolis that had been granted by the County Board of Appeals of Anne Arundel County (the Board), only to be snatched away by the Circuit Court for Anne Arundel County (Robert H. Heller, Jr., J.) based on a petition for judicial review filed by John C. North, II, Chair, Chesapeake Bay Critical Area Commission, appellee. 1 We shall affirm the circuit court's judgment.
Although appellants frame two questions on appeal, we have condensed them into the following question:
If there was substantial evidence before the Board to support its findings as to each of the ordinance requirements for the grant of the variance, was it arbitrary and capricious for the circuit court to substitute its judgment for that of the Board?
Apparently sometime in 1996 2 appellants applied for certain variances to enable them to construct decks 3 on their existing house at 1913 Martins Cove Court in Annapolis and a swimming pool in the rear yard of the 1.52 acre lot. The apparent variances sought were from the requirements of Anne Arundel County Code 1993, Article 28, Section 1A-104(a)(1) and (c)(11): 4
§ 1A-104. Plan requirements.
(c) Within limited development areas and resource conservation areas the following additional criteria shall apply:
* * * * *
(12) Within limited development areas, new development activities are not permitted in the buffer except water-dependent facilities[.]
The parties do not contest the fact that appellants' lot, to a substantial degree, and the proposed pool site, in particular, presently fall within the designation of a limited development area (LDA) and the extended critical area buffer for purposes of Maryland Code (1974, 1990 Repl.Vol., 1997 Supp.), Natural Resources Article, §§ 8-1801 to 8-1813 ("Chesapeake Bay Critical Area Protection Program"); Title 27 of COMAR ("Chesapeake Bay Critical Area Commission"); and Articles 28 ("Zoning") and 26 ("Subdivision") of the Anne Arundel County Code. The parties also do not dispute that the proposed swimming pool, for purposes of applicable critical areas laws and regulations, constitutes an "impervious area" 5 and is not a "water-dependent facility." 6 Thus, the effect of the The Whites purchased their previously subdivided lot (Lot 16, Martin's Cove Farm subdivision) in 1983. Ms. White testified at the Board's 9 September 1996 variance hearing that she and Mr. White "spent several years planning the house." Although apparently aided by various professionals, such as Mr. Daniel J. Werner, a registered professional engineer with Anarex, Inc., Ms. White stated she and Mr. White "drew the plans ourselves and submitted them ourselves" 7 and "began initial construction, lot clearing, and so forth in 1987." Construction of their home, however, did not begin until 1990.
critical areas regulatory scheme is to prohibit the construction of the pool within the extended critical area buffer unless a variance is obtained. The Whites suggest that the origin of their problem is the nonserendipitous timing of the full legal effective of the critical areas regulatory scheme vis a vis the Whites' intended development of their lot.
During the "lot clearing" phase, the Whites not only "cleared the site," but performed site grading. The site grading included excavation of the home site and deposit of the excavated and disturbed earth elsewhere on the lot. Ms. White testified, with regard to the site grading, that "[i]t was a gradual slope [referring to the pre-grading conditions on the lot], but it wasn't --this 15 percent slope is created by the excavation."
Mr. Werner, testifying before the Board as part of appellants' case, stated with regard to the effect and extent of the site grading that preceded the commencement of house construction that
the whole site is created, by the way. It's completely cleared.... And the soils around the house and in the disturbed area were changed during the construction of the house.
Thus, the area where the pool was proposed ultimately was "disturbed [built-up] and created by the grading [for] the house."
Describing the soil that existed on the lot in its pre-graded state, Mr. Werner referred to it as a "Esboro loamy sand," generally with a clay layer somewhere beneath. In the course of the grading activity, however, sandy clay soil became the dominant soil in the area where the pool is proposed now. Moreover, the redistribution of earth created a steeper slope than had previously existed in the same area. Mr. Werner described the pre-grading soil condition as "more permeable" than the "relatively impervious" post-grading condition. 8
Ms. White stated that she and Mr. White had intended from the beginning of their house planning efforts to include tiers of decking on the exterior of the home and a swimming pool at some undefined location on the lot. Although some decking was shown on the approved home construction plan, no decking was actually constructed at that time. No swimming pool was depicted on any house or site plan submitted by the Whites at that time. Ms. White attributed this omission from the 1990 house plans to "probably just an oversight." 9 Explaining why she now wanted to construct a pool, she stated [T]o enjoy it. Several of my friends have pools on waterfront properties. [ 10] And, since we're not even near the waterfront, I never anticipated this to be such an issue.
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.
When the Whites ultimately decided it was time to build a swimming pool, they claim to have discovered for the first time that the critical areas regulatory scheme, at both the State and Anne Arundel County levels, existed and was fully effective. 11 This regulatory scheme, as noted earlier in this opinion, proclaimed an extended buffer of at least 50 feet from the top of steep slopes (defined as 15% or greater) that lead to the primary 100 foot buffer adjacent to any watershed that drains to the Chesapeake Bay. Within this extended buffer, non-water dependent impervious structures are prohibited.
The proposed pool, 546 square feet in area, was sized by the Whites, on advice of their pool contractor, because it was the smallest pool that could safely accommodate a diving board. Ms. White indicated a willingness to reduce the size of the With regard to why the proposed pool was sited in the rear yard (south) of their home, Ms. White stated there was no other part of the lot where it could be placed. Evaluating the alternatives, she opined:
pool to 400 square feet ("about the smallest that they're [the contractor] accustomed to building") and forego the diving board.
I cannot put it in my front yard because of the covenants in our community.[ 12] And, from aesthetic points of view, I don't think I'd want it there.
To the east side of the house is another slope, which is even greater than the one in the back. And it's wooded on that side, and it's currently a drainage [area] anyway. So I don't think I'd want to put it in the drainage.
The back side of the house is really the only place that would accommodate it, and that's where it was intended.
Upon closer oral examination by a member of the Board, Ms. White offered the following elaboration regarding an east side alternative pool location:
Q. In looking at the [variance] site plan, is there any reason as to why the pool could not be located to the east side of your house where it says "railroad tie wall approximately two feet high"? In that area?
A. Well, the purpose of that railroad tie wall was to retain a slope that's even greater than the one we're talking about in the back.
And then there's about an area about the width of a car--maybe not even--the width of a tractor, I guess--that's level, and then it drops off again down to the bottom of the ditch. So it's quite a significant slope on that side.
Q. So you're saying the slope is greater on the side?
A. The slope is greater on that side of the house than it is in the back.
Another Board member focused Ms. White on the site conditions to the west of the existing house:
Q. Ms. White, I have a couple questions. I'm looking at the site plan once again. I notice there are some--there is an existing carport [adjoining the house on its western side]?
A. That's correct.
Q. And also a garage [adjoining the carport to the west]. And is that a concrete slab next to it [further to the west]?
A. Yes.
Q. Does that represent relatively a level area there? Are they located there right now?
A. Yes.
Q. Is that relatively a level area in that spot?
A. It's level--the back side of the garage apron drops off, and the back side of the garage drops off. I mean, those--it's a steeper grade over there than it is behind the house.
Q. So...
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