Stansbury v. Jones

812 A.2d 312

372 Md. 172

Nancy R. STANSBURY, v. Randy Q. JONES, et al.

No. 15, Sept. Term, 2002.

Court of Appeals of Maryland.

December 13, 2002.

Charles R. Schaller (Anthony G. Gorski, Sarah Andrews of Schaller & Gorski, LLP, of Annapolis), on brief, for petitioner.

Sager A. Williams, Jr. (Blumenthal, Delavan & Williams, P.A., Annapolis), on brief, for respondents.

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

CATHELL, Judge.

Nancy R. Stansbury, petitioner, petitions this Court to reverse the decision of the Court of Special Appeals. A zoning administrator in Anne Arundel County had recommended that Ms. Stansbury be granted certain variances in respect to property owned by her in the subdivision of Pleasant Plains in Anne Arundel County, a parcel of property that petitioner had reserved to herself in the re-subdivision of a larger tract. The Anne Arundel County Board of Appeals (hereafter "Board") had not accepted the recommendation, and had denied the variances, allegedly, on the sole ground that the claimed hardships there alleged had been self-created. Upon petition for judicial review, the circuit court had remanded the matter to the Board, directing that the Board reconsider the application considering all of the variance factors contained in the county zoning code. Randy Q. Jones, and others, respondents, appealed that decision to the Court of Special Appeals. That court reversed the decision of the Circuit Court for Anne Arundel County, holding that the hardship alleged in the case was self-created and that no other factors needed to be considered in the denial of the application.

The crux of the controversy at the circuit court level was, whether the Board, during an administrative appeal, should have declined to accept the recommendation of the administrative hearing officer on the sole ground that the need for the variances had been self-created by the petitioner. The Court of Special Appeals, agreeing with the Board that the hardship had been self-created, stated:

"First, it was thought by the circuit court that judicial review of the Board's decision was governed by the APA. Second, a recent trilogy of Court of Appeals' decisions involving critical area variances were read by the circuit court as requiring the Board to address each variance standard. Third, the circuit court failed to recognize the fundamental nature of the principle that self-created hardships cannot justify the grant of a variance, including the concept that a self-created hardship is not merely another variance standard, but is instead an essential part of the unwarranted hardship standard that is the primary determining factor that must be met by a variance applicant."

In her brief in this Court, petitioner presents four questions:

"1. Is the examination of just one factor alone, specifically the concept of self-created hardship, sufficient basis to deny a critical area variance request for a legally buildable lot, thereby precluding the use of the other factors in determining whether unwarranted hardship¹ exists? "2. Did the Court of Special Appeals and Anne Arundel County Board of Appeals commit reversible error by failing to examine all statutory factors in determining whether unwarranted hardship exists when denying a variance in the Chesapeake Bay Critical Area for a legally buildable lot created with Anne Arundel County approval?

"3. Was the Circuit Court correct in remanding the case to the Board of Appeals for further consideration because the Board of Appeals' administrative decision incorrectly applied the law and lacked adequate findings of fact?

"4. Did the Anne Arundel County Board of Appeals effect a `taking' of Petitioner's property without just compensation by denying Petitioner the requested variances on a legally buildable lot?"²

Because, in the first instance, we shall hold that the facts of this case do not support the intermediate appellate court's judgment or the Board's findings that the hardship in this case was self-created, we shall not resolve, although we may discuss, the other issues presented. Accordingly, we shall reverse the decision of the Court of Special Appeals, and direct it to affirm the circuit court's judgment remanding the case to the Board to reconsider the petitioner's request for variances utilizing all of the applicable requirements of the statute. The hardship or practical difficulty here, if any, arising out of the re-subdivision, was not self-created within the meaning of the local ordinance. When a property owner does that which is permitted, or required, under a zoning code, that property owner is not necessarily creating an automatic hardship for purposes of the self-created hardship standards of variance provisions.

Facts

In 1927, petitioner's predecessor in title, by recording a plat in the County land records, created a subdivision known as Plat No. 2 Pleasant Plains. At that time, as far as the record reflects, there was no subdivision ordinance existing in Anne Arundel County. At sometime prior to, and/or in 1986, Anne Arundel County passed an ordinance or ordinances which resulted in the lots in the then Pleasant Plains subdivision, becoming substandard size lots, i.e., non-conforming lots. The County, in 1986, enacted statutory provisions that the parties refer to as the Antiquated Lots Law (now codified in Article 28, Section 2-101 of the Anne Arundel County Code ("Code")). Charlene Morgan, the zoning analyst for the Anne Arundel County Department of Planning and Code Enforcement, testified before the Board as to the effect of the 1986 statutory provisions on the property here at issue:

"I'm going to go briefly through the history the way the county has reviewed it.

"In 1924 Pleasant Plains was platted. The lots were required to [be] create[d], by recorded plat prior to the county code. The lots were considered legally created antiquated lots.

"In 1986 the Antiquated Lots Law was passed which was bill 86-86, and is now codified into article 28, section 2-101C. This required antiquated lots that are in ownership to be combined to meet lot area requirement.

"In 1986 planning and rezoning—dated March 6th, 1986, explained to the owner of this property that they needed to be combined in regard to bill 86-86.

"In 1991 an Administrative plat was signed on July 31st and the plat combined legal Pleasant Plains lots into larger building sites.

"On these particular sites a reserved parcel label was assigned to the subject lot until it could pass a perk test. To my definition, and my understanding a reserved parcel means that this lot is on hold until it can meet that criteria.

"At this time the subject site does not lose it's underlying legal status. And as a—indicates that there are many legal lots that are not filling it, and that in the county view the words `parcel and lot' are used interchangeably and don't indicate whether the lot is legal or buildable.

"In 1997 waiver 5867 was signed on September 11th and that waiver deems a lot buildable because the lot perked at that time.

"The waiver is the subdivision approval that is needed that is referenced on the plat that waives the need to rerecord the administrative plat. Typically an administrative plat is not recorded unless there's a change in the lot lines. In this case all that was deemed done [by] removing the term `reserved parcel' and making it a lot.

"This site has always been, and is now a subject of permit review of critical area criteria and Health Department requirements, as is any legal lot. And any legal lot has the right to apply for a variance during the building permit review."

The 1986 Antiquated Lots Law, as now codified as aforesaid, provides in relevant part that:

"(a) In this section `properly recorded lot' means a lot:

(1) of record and created in compliance with the zoning and subdivision regulations in effect when the lot was created; or

(2) recorded on or before June 30, 1952.

"(b) Notwithstanding the minimum lot area and width requirements of this title, a residential dwelling may be constructed on a properly recorded lot if:

(1) the lot was not in the same ownership as an adjacent unimproved lot on January 1, 1987; and

(2) the other requirements of this article are met.

"(c) ... [A] residential dwelling may not be constructed on a properly recorded lot that was in the same ownership as one or more adjacent unimproved lots on January 1, 1987 ... unless the adjacent lots are combined to meet or come as close as possible to meeting the area requirements for the residential district in which the lot is located."³

Anne Arundel County Variance Standards

Sections 11-102.1(c) of the Anne Arundel County Code, applicable to the granting of variances, provides as to the general consideration of variances that:

"(c) A variance may not be granted unless it is found:

(1) that the variance is the minimum variance necessary to afford relief;

(2) that the granting of the variance will not:

(i) alter the essential character of the neighborhood or district in which the lot is located;

(ii) substantially impair the appropriate use or development of adjacent property;

(iii) reduce forest cover in the limited and resource conservation areas of the critical area;

(iv) be contrary to acceptable clearing and replanting practices required for development in the critical or bog protection area; or

(v) be detrimental to the public welfare; and

(3) that, for properties in the critical area or a bog protection area, the granting of a variance will not be inconsistent with the spirit and intent of the critical area program or bog protection program and will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat."

As can be seen, there is no specific provision relating to self-created hardship in the general provisions of the Anne Arundel County ordinance. There is, however, a special section in the Anne Arundel County Code,...