Glover v. Bd. of Appeals of Annapolis, 178

MCSHANE WALDRON GLOVER v. BOARD OF APPEALS OF THE CITY OF ANNAPOLIS

No. 178

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

May 10, 2017

UNREPORTED

Leahy, Reed, Shaw-Geter JJ.

Opinion by Reed, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

The appellant, McShane Waldron Glover, is the owner of the property located at 518 Burnside Street, Annapolis, Maryland 21403, as well as the structure thereon. In July 2013, she submitted an application to the City of Annapolis Department of Planning and Zoning ("DPZ") for the complete demolition of the existing structure and the construction of a new, single family residence to replace it. After the DPZ denied her application, Ms. Glover appealed to the Annapolis Board of Appeals ("Board"). The Board affirmed the DPZ's denial, and the Circuit Court for Anne Arundel County subsequently affirmed the Board upon judicial review. This timely appeal followed.

On appeal from the circuit court, the appellant presents us with the following two questions:

1. Are the demolition criteria applicable within the City of Annapolis' R2-NC Zoning District impermissibly vague and contradictory?

2. Did the Board of Appeals err as a matter of law in applying the City's demolition criteria to wrongly deny Appellant's demolition application?

For the following reasons, we shall not address the merits of the first question and shall answer the second question in the negative. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 15, 2013, the appellant submitted an application to the DPZ to demolish the structure located on her 518 Burnside Street property in Annapolis, Maryland ("Burnside Street Property"). The Burnside Street Property is zoned within the City of Annapolis's R2-NC Single-Family Residence Neighborhood Conservation district ("R2-NC") and isimproved with a single family residence built around 1905. The existing structure consists of two stories and a basement. The appellant's application requested permission to completely demolish the existing structure and replace it with a new single family residence.

By letter dated November 15, 2013, the DPZ denied the appellant's demolition application. Thereafter, on December 9, 2013, the appellant filed a timely appeal of the DPZ's decision to the Board. The Board conducted de novo review hearings on March 19, April 1, May 15, and June 3, 2014. Following the hearings, on September 2, 2014, the Board issued an Opinion and Order affirming the DPZ's denial of the appellant's demolition application.

The appellant filed for judicial review of the Board's decision in the Circuit Court for Anne Arundel County on September 24, 2014. The appellant and the Board both filed memoranda with the circuit court in support of their positions and participated in a hearing before the court on October 5, 2015. Several months later, by Memorandum Opinion and Order dated March 4, 2016, the circuit court affirmed the Board's denial of the demolition application.¹

On April 1, 2016, the appellant noted a timely appeal to this Court.

STANDARD OF REVIEW

In cases such as this, where the appeal comes to us by way of a circuit court order affirming the decision of an administrative agency, we

. . . "[assume] the same posture as the circuit court . . . and limit our review to the agency's decision." Anderson v. Gen. Cas. Ins. Co., 402 Md. 236, 244, 935 A.2d 746 (2007) (internal citation omitted). The circuit court's decision acts as a lens for review of the agency's decision, or in other words, "we look not at the circuit court decision but through it." Emps. Ret. Sys. of Balt. Cnty. v. Brown, 186 Md. App. 293, 310, 973 A.2d 879 (2009), cert. denied, 410 Md. 560, 979 A.2d 708 (2009) (emphasis in original) (internal citations omitted).

We "review the agency's decision in the light most favorable to the agency" because it is "prima facie correct" and entitled to a "presumption of validity." Anderson v. Dep't of Pub. Safety & Corr. Servs., 330 Md. 187, 213, 623 A.2d 198 (1993) (internal citation omitted).

The overarching goal of judicial review of agency decisions is to determine whether the agency's decision was made "in accordance with the law or whether it is arbitrary, illegal, and capricious." Long Green Valley Ass'n v. Prigel Family Creamery, 206 Md. App. 264, 274, 47 A.3d 1087 (2012) (internal citation omitted). With regard to the agency's factual findings, we do not disturb the agency's decision if those findings are supported by substantial evidence. See id. (internal citations omitted). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569, 709 A.2d 749 (1998) (internal citations omitted) (internal quotation marks omitted). We are not bound, however, to affirm those agency decisions based upon errors of law and may reverse administrative decisions containing such errors. Id.

Sugarloaf Citizens Ass'n v. Frederick Cty. Bd. of Appeals, 227 Md. App. 536, 546 (2016).

DISCUSSION

I. Whether the Demolition Criteria Are Impermissibly Vague

A. Parties' Contentions

The appellant argues that "[a number of t]he demolition criteria applicable within the City of Annapolis' R2-NC zoning district are impermissibly vague and contradictory." The specific criteria with which the appellant takes issue, as well as her reasons for doing so, are outlined below. Generally, however, the appellant asserts that the R2-NC zoning standards are "riddled with inconsistencies and 'Catch-22s,'" and, thus, that "neither the [DPZ] nor the Board can be expected to systematically, correctly, and fairly administer such criteria, nor can any demolition applicant have hope of successfully understanding or navigating them within the boundaries of the Code."

Further, the appellant contends that "[t]he 'financial hardship' element of the Code's general demolition criteria is . . . [also] void for vagueness." Specifically, the appellant argues that the general demolition criteria "directs the City to examine '[t]he extent to which the retention of the structure would cause financial hardship to the owner,'" but don't provide any "guidance on what information the applicant must provide, . . . factors to be evaluated, . . . direction as to what level of hardship might be deemed sufficient for administrative relief, . . . [or] relevant definitions." Therefore, according to the appellant, the Board's application of the general demolition criteria, like its application of the R2-NC zoning standards, violated her due process rights and deprived her of her rights pertaining to her use of her property.

The Board responds, first and foremost, that the appellant "[n]ever raise[d] the issue that the zoning code provisions are void for vagueness" before the Board or the DPZ. Thus, the Board argues that issue of vagueness is not preserved for our review.

Preservation notwithstanding, the Board "vehemently disagrees" with the appellant's assertion that the demolition criteria applicable within the R2-NC zoning district are impermissibly vague and contradictory. In support of its assertion that the review criteria as a whole are neither vague nor contradictory, the Board points out that "[n]one of the [appellant's] witnesses complained that they had difficulty comprehending the demolition review criteria or difficulty in explaining the rationale they provided to persuade the Board . . . to grant the appeal." That, according to the Board, is because "the . . . demolition review criteria are not difficult to comprehend. There are no hidden meanings in the language."

Regarding the general demolition criteria's "financial hardship" element, the Board contends that the lack of itemized standards in the Annapolis City Code "does not restrict the B[oard] from doing a thorough evaluation of evidence relating to financial hardship." In this case, according to the Board, it "did nothing more than review all the evidence of record and not limit itself to only evidence of the cost differential." The Board argues that there is nothing unconstitutionally vague about this type of analysis.

B. Analysis

The Burnside Street Property, as we previously mentioned, is located within the City of Annapolis's R2-NC zoning district. Demolition applications for structures locatedwithin this district are subject to two Sections of the Code of the City of Annapolis ("City Code"). The first is Section 21.40.060, which applies only to the R2-NC zoning district. Section 21.40.060 provides, in relevant part:

A. Purpose. The purpose of the R2-NC Single-Family Residence Neighborhood Conservation district is to preserve patterns of design and development in residential neighborhoods characterized by a diversity of styles and to ensure the preservation of a diversity of land uses, together with the protection of buildings, structures or areas the destruction or alteration of which would disrupt the existing scale and architectural character of the neighborhoods. The general purpose includes:

1. Protection of the architectural massing, composition and styles as well as neighborhood scale and character;

2. Compatibility of new construction and structural alterations with the existing scale and character of surrounding properties;

3. Encouragement of existing types of land uses that reflect the mixture and diversity of uses that have historically existed in the community; and

4. Preservation of streetscapes.

* * *

C. Development Standards.

* * *

2. Site Design Plan Review.

a. Except as provided in Subsection (C)(2)(b) of this section, new construction including new buildings, enlargements to building size or bulk, or structural alterations to existing structures which have an impact upon any exterior façade of a structure or

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