Assateague Coastal Trust, Inc. v. Schwalbach

223 Md.App. 631

117 A.3d 606

ASSATEAGUE COASTAL TRUST, INC.

v.Roy T. SCHWALBACH, et al.

No. 939, Sept. Term, 2014.

Court of Special Appeals of Maryland.

July 2, 2015.

Robin R. Cockey (Ashley A. Bosche, Cockey, Brennan & Maloney, PC, on the brief), Salisbury, MD, for appellant.

Hugh Cropper, IV (Brynja M. Booth, Cowdrey Thompson PC, on the brief), Ocean City, MD, for appellee.

Panel: HOTTEN, BERGER, ARTHUR, JJ.

Opinion

ARTHUR, J.

The Board of Zoning Appeals for Worcester County granted a critical area variance authorizing landowner Roy T. Schwalbach to construct a pier or walkway across his private wetlands. The Circuit Court for Worcester County upheld the Board's decision after Assateague Coastal Trust, Inc. (“ACT”), a non-profit environmental advocacy organization, petitioned for judicial review. ACT now appeals from that judgment, and we also affirm.

Factual and Procedural Background

A. Property Subject to the Variance Request

In 2003, Schwalbach purchased a subdivided property located at 12933 Old Bridge Road in West Ocean City. The property consists of five and one-half rectangular lots that were originally platted in the 1930s. The Worcester County zoning classification for the property is “R–3 Multi–Family Residential.”

The property sits immediately north of Old Bridge Road and immediately south of the shoreline of an unnamed tributary of the Sinepuxent Bay. Because of its proximity to this body of water, the property falls within the Atlantic Coastal Bay Critical Area. See Md. Code (1974, 2012 Repl. Vol.), § 8–1807(b) of the Natural Resources Article. Under critical area regulations, the location is designated as an “Intensely Developed Area,” which is defined as an area “where residential, commercial, institutional, and/or industrial, developed land uses predominate, and where relatively little natural habitat occurs.” See COMAR 27.01.02.03 ; Worcester County Code (“WCC”) § NR 3–106(a).

The southern portion of the property includes three and one-half lots along Old Bridge Road. This portion of the property has been improved with a residence, in-ground swimming pool, pool house, and connecting walkways.

The northern portion of the property consists of two unimproved lots bordering the waterway. Tidal marsh extends from the improved portion of the property to the water's edge. The northern lots are covered entirely by tidal marsh.

B. Schwalbach's Variance Request

Schwalbach planned to construct a pier or walkway that would extend across the marsh to connect the improved portion of the property to a proposed dock six feet past the shoreline. Under the County's critical area ordinance, “[n]ew piers or docks shall not extend more than one hundred feet in length over state or private wetlands.” WCC § NR 3–125(b)(1). To reach the shoreline, however, Schwalbach's structure would have to extend 180 feet across the marsh. Consequently, on August 14, 2013, he submitted an application for a variance with the Board of Zoning Appeals for Worcester County, requesting “[a] variance [from] the Atlantic Coastal Bays Critical Area Law to authorize a 3 foot wide by 180 foot long pier across tidal marsh.”¹

On September 22, 2013, the Board of Zoning Appeals (“the Board”) received a staff report with comments on the variance application. The report included a letter from the Natural Resources Administrator of the Worcester County Department of Developmental Review and Permitting. The letter emphasized: “As the Board is aware from previous variances to the Critical Area Law, all applicants must address six standards. The Critical Area Law requires that each of the six standards for a variance be met before the Board renders a decision.”²

In Worcester County, the following standards must be satisfied before a critical area variance may be granted:

(b) Standards. The provisions for granting such a variance shall include evidence submitted by the applicant that the following standards are met:

(1) Special conditions or circumstances exist that are peculiar to the applicant's land or structure and a literal enforcement of provisions and requirements of the County's Atlantic Coastal Bays Critical Area Program would result in unwarranted hardship;

(2) A literal interpretation of the provisions of the County's Atlantic Coastal Bays Critical Area Program and related laws will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Atlantic Coastal Bays Critical Area;

(3) The granting of a variance will not confer upon an applicant any special privilege that would be denied by the County's Atlantic Coastal Bays Critical Area Program to other lands or structures within the Atlantic Coastal Bays Critical Area;

(4) The variance request is not based upon conditions or circumstances which are the result of actions by the applicant nor does the request arise from any condition relating to land or building use, either permitted or non-conforming on any neighboring property;

(5) The granting of a variance shall not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the granting of the variance will be in harmony with the general spirit and intent of the County's Atlantic Coastal Bays Critical Area Program;

(6) (Reserved)

(7) The Board of Zoning Appeals shall not make a decision relative to a request for such a variance without reviewing the comments of the Department and finding that the applicant has satisfied each of the provisions and standards contained herein.

WCC § NR 3–111(b) ; see also COMAR 27.01.12.04(B).

The staff report commented that, as a result of the layout of the property, Schwalbach would suffer an undue hardship if he were prohibited from constructing a pier in excess of 100 feet in length. The report stated that the property included “[a] large expanse of wetlands,” and an owner would be prevented “from reaching navigable waters and enjoy[ing] his riparian rights” without a variance from “regulations that have been implemented long after these lots were platted.” The report further stated that any potential adverse environmental impact would be minimal because the structure was modest in size, the project had been subject to extensive environmental review by the U.S. Army Corps of Engineers and the Maryland Department of the Environment, and substantial mitigation would offset any disturbance from the construction.³

The staff report concluded that Schwalbach's application satisfied each of the variance standards of the County's zoning ordinance and recommended that the Board approve the request.

C. Board's Decision Granting Variance

Schwalbach presented his application to the Board at a hearing on October 10, 2013. Schwalbach testified that the purpose of the proposed structure was to provide access to the navigable water at the edge of his property. His documentary submissions included site plans from a professional surveyor who had reviewed the project. The surveyor testified that Schwalbach would not have access to the water if he were forced to shorten the pier to less than the proposed length.

Schwalbach also called a private environmental consultant, who had previously worked as a Natural Resources Administrator for the County. The environmental consultant confirmed that Schwalbach had obtained an authorization from the U.S. Army Corps of Engineers (see generally 33 U.S.C. § 403 ; 33 C.F.R. § 322) and a tidal wetlands license from the Maryland Department of the Environment. The consultant explained that he had gone through extensive negotiations with those agencies “to get a configuration that fit the property and fit the water depths and fit the channel specifically for that site.” Based on the “stringent special conditions” with which Schwalbach would have to comply during and after construction and while boating, he opined that the proposed pier would have no adverse effect on water quality.⁴

The environmental consultant also testified that the property was located in an area “very heavily used for boating,” with “numerous boat docks up and down the shoreline[.]” He estimated that there were several hundred boats at nearby marinas.⁵ In sum, he opined that the site plan represented the minimum possible intrusion to allow Schwalbach to enjoy access to the water, a right enjoyed by others in the community.

The Board also received into the record a letter from ACT. Ms. Kathy Phillips, the Assateague Coastkeeper, wrote: “Substantial research data[ ] and the Worcester County Code support the conclusion that a dock or pier extending 100 feet or more over marsh represents a change in the character of the marsh.” She further commented that “while ACT understands and supports the concept of riparian rights, ... very shallow bodies of water [are] not capable of supporting regular motorized boat access and should be considered lands protected by the Public Trust.” ACT requested that the Board justify its decision in writing if it granted a variance.

At the conclusion of Schwalbach's presentation, the Board members unanimously voted to grant the variance. In a written decision issued on November 14, 2013, the Board adopted and re-stated the findings of fact set forth in the staff report. As its conclusion, the decision stated: “The Board reviewed Staff comments and the Applicant has satisfied all standards.”

D. ACT's Petition for Judicial Review

On November 22, 2013, ACT filed a petition for judicial review in circuit court.⁶ In a memorandum supporting its petition, ACT argued that Schwalbach had failed to prove compliance with each of the individual standards of WCC § NR 3–111(b). At the judicial review hearing, ACT further argued that the Board's decision was “defective on its face” because the decision did not affirmatively express whether Schwalbach had overcome a statutory presumption that the activity subject to the variance application did not conform to the general purpose of the critical area requirements. See WCC § NR 3–111...