Assateague Coastal Trust, Inc. v. Schwalbach

ASSATEAGUE COASTAL TRUST, INC. v. ROY T. SCHWALBACH, et al.

No. 59

COURT OF APPEALS OF MARYLAND

Argued: February 9, 2016

September Term, 2015

May 23, 2016

Critical Area Law - Variance - Requirement to Show Unwarranted Hardship. Under the State Critical Area Program and the corresponding Worcester County ordinance, a property owner seeking a variance from a provision of the Critical Area requirements bears the burden of showing, among other things, that there are special conditions or circumstances peculiar to the property, such that literal enforcement of the Critical Area provision would result in an "unwarranted hardship." In order to establish an unwarranted hardship, an applicant must show that, without the proposed variance, the applicant would be denied a reasonable and significant use - an assessment to be made with respect to the entire property. There was substantial evidence to support a local zoning appeals board's finding that a variance from a local limit on pier length was necessary to avoid an unwarranted hardship when a pier of the proposed length and location was required for the applicant to enjoy riparian rights in a boating community in an area designated as an "intensely developed area" and environmental agencies had approved the pier subject to conditions. Maryland Code, Natural Resources Article, §8-1808(d)(1), (d)(5)(i); COMAR 27.01.12.04B(1); Worcester County Code, Natural Resources Article, §3-111(b)(1).

Critical Area Law - Variance - Requirement to Show No Adverse Environmental Impact. Under the State Critical Area Program and the corresponding Worcester County ordinance, an applicant for a variance from a provision of the Critical Area law bears the burden of showing, among other things, that granting the variance will not adversely affect water quality or the fish, wildlife, or plant habitat within the Critical Area. A local zoning appeals board that determines that an applicant has borne the burden of proof on all requirements for a variance, including the requirement that there be no adverse environmental impact, will be upheld as to that determination if there is substantial evidence in the administrative record to support such a finding. Maryland Code, Natural Resources Article, §8-1808(c)(iii)(13); COMAR 27.01.12.04B(6); Worcester County Code, Natural Resources Article, §3-111(b)(5).

Critical Area Law - Variance - Presumption of Non-Conformity with Purpose and Intent of Law. Under the State Critical Area Program, an applicant for a variance from a provision of that law bears the burden of proof and burden of persuasion on all requirements for a variance. The local jurisdiction is to presume that that an application for a variance does not conform with the general purpose and intent of the law and must make written findings as to whether the applicant has overcome that presumption. Written findings by a local zoning appeals board that an applicant has carried the applicant's burden of proof as to all standards governing a variance suffice as a written finding that the applicant has rebutted the presumption. Maryland Code, Natural Resources Article, §8-1808(d)(3)-(4); Worcester County Code, Natural Resources Article, §3-111(d)(1).

Circuit Court for Worcester County

Case No. 23-C-13-1617

Barbera, CJ ^*Battaglia Greene ^**Adkins McDonald Watts Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.

Opinion by McDonald, J.

Battaglia, J. joins in the judgment only.

^*Battaglia, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, she also participated in the decision and adoption of this opinion.

^**Adkins, J., participated in the hearing and conference of this case, but recused herself prior to the adoption of this opinion.

In the State's Critical Area law, the General Assembly has established a cooperative program with local jurisdictions to ensure that land near Chesapeake Bay and the Atlantic coastal bays has special protection against development that might cause environmental damage. Although that law allows a property owner to seek a variance from the law's restrictions, the law creates a presumption that a proposed variance does not conform to the purpose and intent of the Critical Area law and places the burden of proof on the applicant to demonstrate that all of the criteria for a variance have been met. Among other things, the applicant must show that the applicant would suffer an "unwarranted hardship" without the variance and that granting the variance will not have an adverse environmental impact.

In this case, Respondent Roy T. Schwalbach sought a variance from a provision in a Worcester County ordinance that limits piers to 100 feet in length. He needed the variance in order to build an extended pier to access navigable water from his waterfront property in a community where piers and boating are common. Mr. Schwalbach obtained necessary approvals from federal, State, and local environmental agencies. The Worcester County Board of Zoning Appeals ("Board") granted the variance after holding an evidentiary hearing and finding that Mr. Schwalbach had borne the burden of proof on all of the requirements for a variance.

Petitioner Assateague Coastal Trust, Inc. ("ACT"), an environmental advocacy organization, sought judicial review of the grant of the variance, arguing that the Board'sdecision was defective for several reasons. The Circuit Court for Worcester County and the Court of Special Appeals both upheld the Board's decision in written opinions that analyzed the evidence before the Board on the criteria for a variance.

Before us, ACT focuses its contentions on three arguments. ACT argues: (1) that denial of the variance would not deny Mr. Schwalbach all reasonable and significant use of the entire property and therefore he could not establish an "unwarranted hardship"; (2) that Mr. Schwalbach did not show, and the Board did not explicitly find, that there would be no adverse environmental impact from granting the variance; and (3) that, although the Board's written decision concluded that Mr. Schwalbach had satisfied all standards for the variance, the Board did not make an explicit written finding that he had rebutted the statutory presumption of non-conformity with the Critical Area law.

We agree with the Circuit Court and Court of Special Appeals that the Board's decision should be upheld. In our view, in order to establish an "unwarranted hardship," Mr. Schwalbach was not required to show that he would be denied all reasonable and significant use of his land without the variance - in essence, a showing of an unconstitutional taking - but rather that he would be denied a reasonable and significant use throughout the entire property. There was sufficient evidence for the Board to conclude that Mr. Schwalbach had satisfied that standard as well as the standard that there be no adverse environmental impact from granting the variance. In addition, the Board's statement that the application had "satisfied all standards" adequately expressed its determination concerning the environmental impact standard and its conclusion that the evidence presented to it had overcome the statutory presumption of non-conformity.

IBackground

A. Statutory framework

The Critical Area Program

In order to protect the Chesapeake and Atlantic coastal bays, the General Assembly has enacted the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program ("Critical Area Program"). See NR §8-1801 (describing legislative findings and purpose of the Critical Area Program). The Critical Area Program is a cooperative program between the State and local governments that places restrictions on development in certain environmentally sensitive areas. See id.; NR §8-1807. The Critical Area Program is designed to:

• Minimize adverse impacts on water quality as a result of pollutants discharged from structures or conveyances or run-offs from land

• Conserve fish, wildlife, and plant habitat

• Establish land use policies that accommodate growth while addressing adverse environmental impacts

NR §8-1808(b). Generally speaking, the Critical Area consists of a 1000-foot swath of land adjacent to the Chesapeake Bay, the Atlantic coastal bays, and their tributaries. NR §8-1807. Local Critical Area programs are to accord special protection to "buffer" areas along the shoreline. See, e.g., NR §§8-1801(a)(2), 8-1801(a)(4), 8-1806(b), 8-1808(c)(1)(iii).

Under the Critical Area Program, land within the Critical Area is divided into three categories - Intensely Developed Areas, Limited Development Areas, and Resource Conservation Areas. NR §8-1802(a)(13), (15), (22). An Intensely Developed Area is defined as a part of the Critical Area where residential, commercial, institutional, or industrial developed land uses predominate, and where there is relatively little natural habitat. See COMAR 27.01.02.03. Intense development is to be directed to Intensely Developed Areas. COMAR 27.01.02.02; see also Mueller, Paved Intentions: Maryland's Critical Area Act, 41 Md. Bar J. 10, 12 (2008).

Restriction on Pier Length in Worcester County

Because the program is cooperative, State law creates some restrictions, and local law creates others. In Worcester County, the additional restrictions are codified in the Atlantic Coastal Bays Critical Area subtitle of the Natural Resources Article of the Worcester County Code ("WCC NR"). One restriction unique to Worcester County is that new piers or docks over State or private wetlands are limited to 100 feet in length. WCC NR §3-125(b)(1).

Variances

A person seeking to develop property in a manner that would violate the Critical Area Program in Worcester County may ask for a variance. WCC NR §3-111. Pertinent to this case, the request for a variance must meet six requirements:

(1) Special conditions or circumstances exist that are peculiar to the applicant's land or

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