Richard Roeser Professional Builder, Inc. v. Anne Arundel Cty.

793 A.2d 545

368 Md. 294

RICHARD ROESER PROFESSIONAL BUILDER, INC. v. ANNE ARUNDEL COUNTY, MD.

No. 79, Sept.Term, 2001.

Court of Appeals of Maryland.

March 7, 2002.

Daniel J. Mellin (Hillman, Brown & Darrow, P.A., on brief), Annapolis, for petitioner.

Sarah M. Iliff, Senior Asst. County Atty. (Linda M. Schuett, County Atty., on brief), Annapolis, for respondent.

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

CATHELL, Judge.

Anne Arundel County, Maryland, respondent, appealed to the Court of Special Appeals from a judgment of the Circuit Court for Anne Arundel County. The Circuit Court had found that the Anne Arundel County Board of Appeals (hereinafter Board) had made an error of law and had also used an erroneous standard in respect to the Board's denial of a request for certain variances made by Richard Roeser Professional Builder, Inc., petitioner. The Court of Special Appeals reversed the judgment of the Circuit Court and directed the Circuit Court to reinstate the decision of the Board. Upon petitioner's request, we granted its Petition for Writ of Certiorari. Roeser v. Anne Arundel County, 366 Md. 246, 783 A.2d 221 (2001).

Petitioner presents three questions for our review:

"1. Did the Circuit Court correctly determine that the Anne Arundel County Board of Appeals' decision to deny critical area variances was based on the application of an erroneous legal standard which had been specifically overruled by the Court of Appeals, and was reversible error as a matter of law?

"2. Did the Circuit Court correctly determine that the Anne Arundel County Board of Appeals' finding of `self-created hardship' was reversible error as a matter of law?

"3. Is the Court of Special Appeals' decision reversing the Circuit Court and ruling that acquisition of title to land knowing that a critical area's buffer variance will be applied for constitutes a `self-created hardship' reversible error as a matter of law?"

We answer affirmatively to questions two and three. Accordingly, we shall reverse. We shall address question one only to affirm that the standards set out in Belvoir Farms Homeowners Association v. North, 355 Md. 259, 734 A.2d 227 (1999), and in White v. North, 356 Md. 31, 736 A.2d 1072 (1999), and reiterated and explained in Mastandrea v. North, 361 Md. 107, 760 A.2d 677 (2000), are the correct standards to apply upon remand to the Board.¹

Facts

Petitioner was the contract purchaser of two lots near Annapolis in Anne Arundel County. Only one lot is part of this appeal and part of the lot is located in the Critical Area "buffer" zone adjacent to wetlands.² At the time it contracted to purchase the property, petitioner knew that variances from the "Critical Area" and zoning provisions of Anne Arundel County would be required in order for it to be able to build a house of the size it desired. It applied for those variances and, as we have indicated, the Board denied its request.

In relevant part, the Board found:

"The conditions surrounding the Petitioners' request for a variance have been self-created. The co-petitioner ... purchased the subject property ... on February 23, 1999. The wetlands existed on the property at that time. Indeed, it appears from the purchase price of the two lots ($62,000 total) that both seller and buyer were well aware of potential development issues with the land. The buyer apparently elected to purchase the property and now seeks to maximize the investment. Any applicant for a variance, however, must exercise proper diligence in ascertaining the setback requirements prior to the acquisition of property. If such diligence is not exercised, any resulting hardship to the property owner is regarded as self-created. See, Wilson v. Elkton, 35 Md.App. 417, 371 A.2d 443 (1977)."[³] [Some citations omitted.]

Judge Manck, of the Circuit Court for Anne Arundel County, in correctly rejecting the position of the Board, stated:

"[Little] deference, however, is appropriate when the agency's decision is predicated soley [solely] on an error of law. White v. North, 356 Md. 31, 736 A.2d 1072 (1999); Washington National Arena Ltd. Partnership v. Controller [Comptroller], 308 Md. 370, 519 A.2d 1277 (1987)....

...

"Lastly, the Board found the need for the variances had been self-created; hence, pursuant to Wilson v. Elkton, 35 Md.App. 417, 371 A.2d 443 (1977) and Ad + Soil, Inc. v. Queen Anne's County, 307 Md. 307, 513 A.2d 893 (1986), the variances must fail.

"Taking the latter argument first, the Court is unconvinced that the hardship was self-created. Hardships of this type are normally those which are created by the owners of the property and not by the property itself. Cromwell v. Ward, 102 Md.App. 691, 651 A.2d 424 (1995); Randolph Hills, Inc. v. Montgomery County Council, 264 Md. 78, 285 A.2d 620 (1972); Salisbury Board of Zoning Appeals v. Bounds, 240 Md. 547, 214 A.2d 810 (1965); Wilson v. Elkton, 35 Md.App. 417, 371 A.2d 443 (1977). The topography and placement of the property is not a self-inflicted or self-created hardship and there is no evidence of testimony which would lend support to the Board's finding that in some fashion the Petitioner created this hardship.

"The Court is aware the scope of review `is limited to whether a reasoning mind could have reached the factual conclusion the agency reached.' Bulluck v. Pellham [Pelham] Woods Apartments, 283 Md. 505, 390 A.2d 1119 (1974), and further, an agency's decision may not be upheld unless it is sustainable on the agency's actual findings and for reasons advanced by the agency in support of its decision. United Steel Workers [Steelworkers] of America Local # 2610 v. Bethlehem Steel, 298 Md. 665, 472 A.2d 62 (1984). In this case, the Board's decision as to the self-created hardship is not fairly debatable based on the evidence the Board had before it. The Court finds, therefore, the Board's action as to this finding was arbitrary and capricious and, more importantly, was an error of law."

The Court of Special Appeals, in reversing the Circuit Court, stated, as relevant here:

"In Gleason v. Keswick Improvement Ass'n, Inc., 197 Md. 46, 78 A.2d 164 (1951), the Court of Appeals, citing CHARLES A. RATHKOPF, THE LAW OF ZONING AND PLANNING, § 23, at 262 (2d ed.1949), stated:

Where a person purchases property with the intention to apply to the board of appeals for a variance from the restrictions imposed by the ordinance he cannot contend that such restrictions cause him such a peculiar hardship that entitles him to the special privileges which he seeks." [⁴]

Discussion

Gleason v. Keswick Improvement Association, 197 Md. 46, 78 A.2d 164 (1951), was not an application for an "area" variance. The request was designed to permit commercial use (a grocery store) in a residentially zoned area; accordingly, it concerned "uses," not "area." Indeed, it was not really an application for a "use" variance either. It was sought under a peculiar Baltimore statutory provision providing that a person desiring to use his property contrary to the uses permitted as of right in a particular district could apply for the particular other use if "within one hundred feet of a boundary line between two use districts, any use permitted in that one of such use districts which has the lower classification, provided such one hundred foot measurement shall not extend across a street." Id. at 50, 78 A.2d at 165.⁵ In other words, it was an alternate classification possibility, built into the statute itself, for property within certain distances of certain district boundaries. In essence, we treated it as a reclassification and in later cases made that distinction. In Gleason, we noted that the applicants had, in the five or six years since their purchase, been using the structure as a dwelling unit. We further opined that since they had purchased the property, the applicants had

"allowed the residence to deteriorate, and the only repairs made to the house were made by the tenants themselves.... They claim that in view of the properties surrounding this lot, and that it is not fit for residential purposes, it would be a hardship not to grant them an exception to the general rule.... We think it a fair inference that the appellants bought this property with the intention to change its classification so as to permit its use as a store, and they cannot claim now that they suffer a peculiar hardship that entitles them to the special privilege which they seek."

Id. at 50-51, 78 A.2d at 166 (emphasis added). In other words, we were asserting that the hardship that existed when the property was purchased was not a reason to reclassify (rezone) the specific property. The issue was not treated as a variance application, in spite of our reference to Rathkopf's The Law of Zoning and Planning (a reference that Rathkopf has since largely disowned, see infra at pages 550 through 52).

Shortly afterwards, in a case in which we upheld the Board's denial of an "exception," we explained what we thought we had done in Gleason:

"On the facts the instant case is the converse of Gleason v. Keswick Imp. Ass'n, 197 Md. 46, 78 A.2d 164. In that case the property in question had originally been zoned, reasonably we held, as residential, in accordance with actual use. It is still so used, and we set aside an order of the Board in effect re-zoning it as commercial. In that case time had confirmed the reasonableness of the original zoning, instead of demonstrating the contrary or a contrary change."

Hoffman v. City of Baltimore, 197 Md. 294, 308, 79 A.2d 367, 373 (1951). The language in Hoffman, describing what we had done in Gleason, was classic change/mistake language usually associated with Euclidian reclassifications, not variances.

In City of Baltimore v. Weinberg, 204 Md. 257, 103 A.2d 567 (1954), a case involving a denial of a non-conforming use status, we continued to treat Gleason as a reclassification case rather than a variance (we had...