Royal v. Bd. of Mun. & Zoning Appeals

REBECCA ROYAL, ET AL. v. BOARD OF MUNICIPAL AND ZONING APPEALS

No. 1592

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

June 7, 2019

Circuit Court for Baltimore City

Case No. 24-C-17-001585

UNREPORTED

Wright, Arthur, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

Opinion by Zarnoch, J.

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court. Md. Rule 1-104.

In 2017, the Baltimore City Board of Municipal and Zoning Appeals ("Board") granted a rear yard setback variance to facilitate the construction of a 70-unit apartment building in Federal Hill, on property located at 211-301 Warren Avenue. Two groups of neighbors ("Appellants") sought judicial review of the Board's decision to grant the variance.¹ We conclude that there was substantial evidence in the record as a whole to support the Board's findings and conclusions, and so affirm the Circuit Court for Baltimore City, which had upheld the Board's decision.

BACKGROUND & PROCEDURAL HISTORY

The developer, SEC Harbor Hill LLC ("Harbor Hill"), sought the rear yard setback variance as part of a project to construct a four-story apartment building. The lot in question is bordered to the north by Warren Avenue, to the south by Grindall Street, to the east by Riverside Avenue, and to the south and west by Lois Lane and Lanasa Lane. The 70 new apartments would be built on a portion of the property that was being used as a surface parking lot: the property already contains 74 apartment units, and the proposed construction would be a new addition built behind the current apartment complex. (The new building would be connected to the existing apartments by a third-floor pedestrian breezeway. The breezeway's elevated location is due to a "no-build" utility easement that runs through the middle of the property.).

To facilitate this development, Harbor Hill sought a variance to reduce the rear setback line—that is, the proposed building's distance from Grindall Street—from 25 feet to 4 feet.² Although the new apartments will appear to "front face" Grindall Street (i.e., there will be entrance doors to the new building on Grindall Street), the property as a whole faces Warren Avenue, so Grindall Street still constitutes the property's rear setback line.

Prior to a public hearing before the Board, the Baltimore City Department of Planning's Urban Design and Architectural Review Panel recommended approval of the project's schematic design. Harbor Hill's proposal also obtained approval from the Site Plan Review Committee, a multi-agency committee consisting of the Baltimore City Departments of Planning, Public Works, and Transportation. Additionally, the Baltimore City Department of Planning reviewed the proposal and testified before the Board that it supported the variance.

After a zoning administrator denied Harbor Hill's variance petition, Harbor Hill appealed to the Board. On February 28, 2017, the Board held a public hearing. The five-hour hearing featured testimony from neighborhood residents who opposed the variance,as well as from three experts put forward by Harbor Hill: Susan Williams, a planner who used to be the Department of Planning's community planner for Federal Hill; Peter Fillat, the project's architect; and Barbara Mosier, a traffic expert. After deliberating, the Board voted 4-1 to approve the rear yard setback variance.³ Subsequently, on March 22, 2017, the Board issued a written resolution containing its findings. Appellants sought judicial review in the Circuit Court for Baltimore City, which affirmed the Board's decision in a bench ruling on September 8, 2017. Appellants timely appealed.

DISCUSSION

Appellants take issue with the Board's decision to grant a variance based upon its findings and conclusions that: (1) the property was unique; (2) a practical difficulty would result absent the grant of a variance; (3) the variance granted was the minimum necessary to afford relief; (4) the variance was not based exclusively on a desire to increase the value of the subject property; (5) the variance would not be injurious to the use and enjoyment of other property; and (6) the variance would not impair other property values in the neighborhood. The second group of Appellants also contests Grindall Street's status as the project's rear lot line. For the reasons we will explain further, we determine that the Board's findings and conclusions were supported by substantial evidence.

"In an appeal from judicial review of an agency action, we review the agency's decision directly and not the decision of the Circuit Court . . . ." Hollingsworth v. Severstal Sparrows Point, LLC, 448 Md. 648, 654 (2016). In doing so, our review is narrow: we are "limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." Cosby v. Dep't of Human Res., 425 Md. 629, 638 (2012) (Citation omitted). "Substantial evidence is defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" McClure v. Montgomery County Planning Bd., 220 Md. App. 369, 380 (2014) (Citation omitted). Under this standard, we must "defer to the agency's fact-finding and drawing of inferences if they are supported by the record" and "review the agency's decision in the light most favorable to it." Motor Vehicle Admin. v. Carpenter, 424 Md. 401, 413 (2012); see also Md. Dep't of Env't v. Anacostia Riverkeeper, 447 Md. 88, 120 (2016) ("We should accord deference to the agency's fact-finding and drawing of inferences when the record supports them"). (Internal quotation marks and citation omitted). Nor do we substitute our judgment "on the question [of] whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness." Anacostia Riverkeeper, 447 Md. at 120 (quoting Mayor & Aldermen of City of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 399 (1979)). Nevertheless, we do not defer to agency conclusions "based upon errors of law." State Ethics Comm'n v. Antonetti, 365 Md. 428, 447 (2001).

A. The Board's Finding of Uniqueness

Section 15-219(1) of the Baltimore City Zoning Code requires that, to grant a variance, the Board must find that "the conditions on which the application is based are unique to the property for which the variance is sought and are not generally applicable to other property within the same zoning classification[.]" Here, the Board found that the subject property was unique in part because of the property's size and the arrangement of its physical surroundings, the property's "L" shape, and the fact that a 40-foot-wide "no-build" easement runs through the middle of the property.⁴

Appellants argue that the property is not actually unique, on the basis that there are other properties in the area that are either "double-fronted,"⁵ L-shaped, or have no-build easements. However, Appellants overlook that the Board's resolution found that it was the combination of these factors here that contribute to a unique lot: "All these factors combine to create both a unique lot and existing structure. . . ." (Emphasis added). As Appellees point out, Appellants are focusing on the property's characteristics in isolation, when it is the combination of these features that create a unique property unlike any otherin the neighborhood. As Appellees further note, Harbor Hill's expert witnesses testified about the property's shape, large size, multiple street fronts, and the easement running through the middle of the property. The Board relied on this testimony, referencing it in its resolution. Accordingly, there was substantial evidence for the Board to have concluded that the property was unique in a manner that caused a practical difficulty.

B. The Board's Finding of Practical Difficulty

Section 15-218 of the Zoning Code requires the Board to find that a practical difficulty "would result, as distinguished from a mere inconvenience, if the strict letter of the applicable requirement were carried out." Appellants challenge the Board's practical difficulty determination on two fronts. First, Appellants contend that the Board's practical difficulty finding was fatally flawed because it flowed from the Board's purportedly erroneous finding of uniqueness. Second, Appellants claim that the Board—by not including the term "mere inconvenience" in its resolution, and by failing to address the difference between a "practical difficulty" and "mere inconvenience"—failed to make the finding required by § 15-218.

As discussed above, the Board's uniqueness finding was valid; as such, the contention that the practical difficulty finding fatally emanated from an erroneous uniqueness finding is without merit. Furthermore, the same factors that caused the property to be unique—the property's shape and size, and the no build easement running through the middle of the property—spurred the Board's determination that Harbor Hill faced a practical difficulty in building an addition. The Board noted that Harbor Hill isconstrained from building "upwards" within the existing rear yard setback (i.e., above four stories) because the property's location within the Montgomery Urban Renewal Plan imposes a 40-foot height restriction. Moreover, the Board recognized, based on the expert testimony regarding the cost of constructing underground parking, that reducing the number of apartment units (if the rear yard setback requirement's strict letter were carried out) "would result in the inability to provide the necessary on-site parking, and would result in poor urban design." Thus, there was relevant evidence that the Board could reasonably accept as adequate to support its conclusion that a...