Lewis v. Dept. of Natural Resources

833 A.2d 563

377 Md. 382

Edwin H. LEWIS v. DEPARTMENT OF NATURAL RESOURCES.

No. 114, Sept. Term, 2002.

Court of Appeals of Maryland.

July 31, 2003.

Opinion on Reconsideration October 10, 2003.

Raymond S. Smethurst, Jr., (Robert B. Taylor and S. James Sarbanes of Adkins, Potts & Smethurst, LLP, on brief), Salisbury, for petitioner.

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

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. CATHELL, Judge.

Petitioner, Edwin H. Lewis, seeks the reversal of a decision of the Wicomico County Board of Zoning Appeals (Board) denying his request for a zoning variance to construct a hunting camp on his property located within a Critical Area Buffer. On judicial review, the Circuit Court for Wicomico County, after an October 12, 2001 hearing, upheld the decision of the Board. Petitioner appealed and the Court of Special Appeals, in an unreported opinion dated October 9, 2002, affirmed the Circuit Court's upholding of the Board's decision.

On November 25, 2002, petitioner filed a Petition for Writ of Certiorari with this Court and, on January 9, 2003, we granted the petition. Lewis v. Department of Natural Resources, 372 Md. 684, 814 A.2d 570 (2003). Petitioner presents three questions for our review:

"1. Did the Board err by denying Petitioner's Critical Area Buffer variance request in a decision written for it by the Critical Area Commission without considering all of the statutory factors for such a determination, by improperly construing and applying some of the factors it did consider, and by impermissibly applying the Critical Area Commission's `cumulative impact' argument?

"2. Did the Board err in not finding Petitioner's hunting camp to be a reasonable and significant use of his property although it could not be located out of the Buffer, would occupy less than 1.5 percent of the Buffer, would not cause any environmental harm, and there was no evidence that its design or size was either inappropriate or too large for the site?

"3. Did the Board err in the decision written for it by the Critical Area Commission by then applying the criteria for an unconstitutional taking rather than the criteria for an unwarranted hardship in denying Petitioner's Buffer variance application?"

We answer in the affirmative to petitioner's questions 1 and 3, as we hold that the Board committed several errors of law in its decision denying petitioner's variance request, including not considering all of the County Code's variance criteria and misapplying the unwarranted hardship standard. Accordingly, we do not answer petitioner's question 2; we instead vacate the judgment of the Court of Special Appeals, direct that court to vacate the decision of the Circuit Court with directions to vacate the decision of the Wicomico County Board of Zoning Appeals and to remand the case to the Board to reconsider petitioner's variance request in light of our holding.

I. Facts

A. Critical Area Resource Protection Program Background

As we did in White v. North, 356 Md. 31, 736 A.2d 1072 (1999), we shall set out a brief overview of the Chesapeake Bay Critical Area Protection Program (Critical Area Program) to fully understand the nature of this case. The Critical Area Program is currently codified in Maryland Code (1973, 2000 Repl.Vol.), sections 8-1801 to 8-1817 of the Natural Resources Article. Respondent is the Department of Natural Resources (DNR), the department with the authority, through the Chairman of the Chesapeake Bay Critical Area Commission (Commission), to enforce the Critical Area Program.¹ The Commission's regulations are encompassed in Title 27 of the Code of Maryland Regulations (COMAR).

We summarized in White:

"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. Once local critical area programs are adopted and approved, the programs can, depending upon their language, impose additional or different limitations....

"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,' ... COMAR 27.01.09.01.C.(2). The only way to build any impervious structure ... is to apply and qualify for a variance under local zoning ordinances."

White, 356 Md. at 36-38, 736 A.2d at 1075-76 (footnotes omitted).

Pursuant to these previously mentioned provisions of the Maryland Code,² Wicomico County adopted its Critical Area Program as codified in Chapter 125 of the Wicomico County Code (County Code). That program's stated purpose, in reference to development within the Critical Area, is:

"to provide special regulatory protection for the land and water resources located within the Chesapeake Bay Critical Area in Wicomico County ... to foster more sensitive development activity for shoreline areas and to minimize the adverse impacts of development activities on water quality and natural habitats."

County Code, § 125-1.³ The County Code specifically prohibits development inside the area known as the Buffer. County Code, § 125-9. Section 125-7 defines the "Buffer" as:

"A naturally vegetated area or vegetated area established or managed to protect aquatic, wetland shoreline and terrestrial environments from man-made disturbances. In the Critical Area District, the minimum Buffer is a contiguous area located immediately landward of tidal waters measured from the mean high-water line, tributary systems in the critical area and tidal wetlands and has a minimum width of 100 feet. The Buffer shall be expanded beyond the minimum depth to include certain sensitive areas as per requirements established in this chapter."

These Buffers act as a "setback" for development protecting the Chesapeake Bay's water quality. Section 125-9 of the County Code set outs Wicomico County's prohibition of development in the Buffer as it states:

"Except as provided for in § 125-18, new development activities, including clearing of existing natural vegetation, erection of structures, construction of new roads, parking areas or other impervious surfaces and the placement of sewage disposal systems, are not permitted in the Buffer, except as provided for in § 125-11." [Emphasis added.]

Impervious surfaces are defined as "Any man-made surface that is resistant to the penetration of water."⁴ County Code § 125-7. If development does not fit the § 125-18 criteria⁵ for an exception to § 125-9, the County Code allows another avenue for possible development in the Buffer; it authorizes the Board to grant variances in certain situations. See County Code §§ 125-35 and 36, infra. The Board's denial of petitioner's variance request to build part of a hunting camp in the Buffer of his property is the subject of this appeal.

B. Lewis' Property

In April of 1999, petitioner purchased two tracts of land in Wicomico County located on opposite sides of Cross Thorofare, a tributary of the Nanticoke River, which is entirely inside the county's Chesapeake Bay Critical Area (Critical Area). The western tract of 218.78 acres is comprised entirely of marshland, while the eastern tract of 76.80 acres is comprised of 69.57 acres of marshland and 7.23 acres in "three upland areas." The largest of these "upland areas," Phillips Island, is 5.30 acres in size and is the subject of the litigation in the case sub judice. At the time of petitioner's purchase of these two tracts of land, the only...