Wells v. Moran

DEBORAH WELLS v. JOSEPH MORAN, ET AL.

No. 721

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2016

August 6, 2018

Circuit Court for Garrett County

Case No. 11-C-15-014324

UNREPORTED

Arthur, Leahy, Reed, 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.

This case involves the decision of the Deep Creek Watershed Zoning Board of Appeals (the "Board") to grant a setback variance to Joseph P. Moran and Barbara A. Moran to build a garage on a vacant lot across the street from their house on Deep Creek Lake. The appellant, Deborah Wells, owns the lot adjoining the vacant lot on which the garage is to be built. She opposes the variance on the grounds that the garage does not meet the requirements for an accessory structure and use to the Morans' principal, a.k.a. "primary," use, their house. This is because the vacant lot is separated from the lakeside lot by a road.

Ms. Wells presents three questions for our review on appeal, which we have reduced to two and rephrased:¹

I. Was the Board's decision consistent with the applicable zoning ordinance and supported by substantial evidence?

II. Was the variance request barred by collateral estoppel?

For the following reasons, we answer both questions in the negative. Therefore, we shall vacate the judgment below and remand this case to the Board for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On October 6, 2015, Joseph and Barbara Moran filed a variance application seeking to build a garage within fifteen (15) feet of the front of their property line at 661 Hazelhurst Road, Swanton, Maryland 21561. The application specified that the garage would be built on the vacant lot ("Lot 81" or the "vacant lot") located directly across the street from the Morans' lakefront house. As indicated above, the appellant owns the lot adjoining the vacant lot. She opposes the variance, clearly believing that the Morans should only be permitted to build a garage on the same lot occupied by their house ("Lot 31" or the "lakefront lot"). When their application was denied, the Morans noted an appeal to the Board.

On November 19, 2015, the Board held a hearing on the Morans' application. Mr. Aaron Teets, a professional engineer and land surveyor, testified on behalf of the Morans that if the setbacks were applied to the vacant lot in accordance with the Deep Creek Watershed Zoning Ordinance (the "Zoning Ordinance"), the dimensions of the garage would be five (5) feet by one hundred and five (105) feet. Mr. Teets testified that "there's quite a few properties on Hazelhurst Road that have garages or accessory buildings that are . . . much closer to the roadway than the one that we're proposing." He also testified that "there are quite a few properties, lakefront properties, that . . . own properties across the road that have accessory uses." In fact, according to Mr. Teets, "there's only one lot on . . . Hazelhurst Road on the non-lakefront side that isn't owned by a lakefront owner [who is]using it as an accessory use for accessory buildings." Therefore, Mr. Teets concluded that the Morans' application is "a pretty consistent use within the Hazelhurst neighborhood."

Following the hearing, the Board voted unanimously to grant the Morans a variance to build a garage within twenty-one (21) feet of the front property line of the vacant lot. The Board memorialized its decision in a written Opinion and Order dated December 1, 2015, imposing upon the variance the following conditions:

a. This approval established the front setback for this proposed construction only. This approval does not establish any future setbacks for the affected front property line.

b. The application must secure a building permit through the Planning Office, before commencing construction.

c. A second survey must be submitted to the Planning Office after installation of the footers, during construction of the garage.

d. An as-built drawing must be submitted to the Planning Office upon completion of the construction of the addition to the garage.

e. The size of the garage is limited to 24 feet by 40 feet.

Feeling aggrieved by the Board's decision, the appellant filed a petition for judicial review in the Circuit Court for Garrett County on December 21, 2015. The circuit court held a hearing on the petition on May 13, 2016. At the conclusion of the hearing, the court found: (1) that the variance application was not barred by collateral estoppel; and (2) that the Board's decision was in accordance with the law and supported by substantial evidence. Based on these findings, the court dismissed the appellant's petition for judicial review.

On June 8, 2016, the appellant noted a timely appeal to this Court.

STANDARD OF REVIEW

It is well-settled that, on appeal from a circuit court's denial of a petition for judicial review of a zoning board's decision,

the role of this court is essentially to repeat the task of the circuit court; that is, to be certain that the circuit court did not err in its review." Mortimer v. Howard Research & Dev. Corp., 83 Md. App. 432, 442, 575 A.2d 750 (1990). Thus, we review the decision of the administrative agency, not the decision of the circuit court. Abbey v. Univ. of Maryland, 126 Md. App. 46, 53, 727 A.2d 406 (1999). We "recognize two standards of review of a decision of a zoning board: one for the board's conclusions of law and another for the board's findings of fact or conclusions of mixed questions of law and fact." Eastern Outdoor Advert. Co. v. Mayor and City Council of Baltimore, 128 Md. App. 494, 514, 739 A.2d 854 (1999). As to the Board's factual findings, we must determine "'whether the issue before the administrative body is "fairly debatable," that is, whether its determination is based upon evidence from which reasonable persons could come to different conclusions.'" Stansbury v. Jones, 372 Md. 172, 183, 812 A.2d 312 (2002) (quoting White v. North, 356 Md. 31, 44, 736 A.2d 1072 (1999); quoting in turn Sembly v. County Bd. of Appeals, 269 Md. 177, 182, 304 A.2d 814 (1973)).

In reviewing the board's legal conclusions, however, "our review is expansive, and we owe no deference." Bennett v. Zelinsky, 163 Md. App. 292, 299, 878 A.2d 670 (2005). "'Generally, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law.'" Stansbury, 372 Md. at 184, 812 A.2d 312 (quoting Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569, 709 A.2d 749 (1998)). In reviewing for legal error, we "'must determine whether the agency interpreted and applied the correct principles of law governing the case and no deference is given to a decision based solely on an error of law.'" Eastern Outdoor Adver. Co., 128 Md. App. at 514, 739 A.2d 854 (quoting Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md. App. 607, 652, 701 A.2d 879 (1997)).

Cinque v. Montgomery Cty. Planning Bd., 173 Md. App. 349, 360 (2007).

Moreover, "[a] reviewing Court may not uphold the agency order unless it is sustainable on the agency's findings and for the reasons stated by the agency." Eastern Outdoor Advert. Co. v. Mayor & City Council of Baltimore, 128 Md. App. 494, 516 (1999) (quoting Colao v. Cty. Council of Prince George's Cty., 109 Md. App. 431, 463 (1996), aff'd, 346 Md. 342 (1997)) (emphasis in original).

DISCUSSION

I. WHETHER THE BOARD'S DECISION WAS CONSISTENT WITHTHE ZONING ORDINANCE AND SUPPORTED BY SUBSTANTIAL EVIDENCE

a. Parties' Contentions

The appellant argues that the Board misapplied the law where it approved the Morans' application for a variance based on the doctrine of merger. According to the appellant, the legal doctrine of merger requires not only common ownership for a period of time, but also that the lots be contiguous to each other. The appellant asserts that the latter requirement cannot be met in this case because Lots 31 and 81 are separated by a road. The fact that the two lots are taxed as a single parcel, the appellant contends, is irrelevant.

Moreover, the appellant argues that "[t]here is absolutely no foundation in the record supporting the [Board's] required findings of fact." The appellant asserts that, under the Zoning Ordinance, a garage on the vacant lot cannot satisfy the definition of an "accessory structure" because it would not be located on the same lot as the Morans' principal use, their house. The appellant also draws our attention to the definition of "variance,"contending that the Morans are not helped by the fact that they "could have had a garage on Lot 31, but chose not to build [it there] because it would detract from [their] view."

Both the Morans and the Board of County Commissioners of Garrett County, Maryland (collectively referred to as the "appellees") argue that the Board's decision should be affirmed.² Together, they assert that, pursuant to Md. Code Ann., Real Prop. ("R.P.") § 2-114, and Callahan v. Clemens, 184 Md. 520 (1945), "where the Morans[s] . . . own property on both sides of the street, the Deed to them is required to be construed as passing title in the street to its center line[.]" Bd. of Cnty. Comm'rs Brief at 6. Therefore, the appellees contend that "[the] lots are, in fact, contiguous for purposes of an accessory use." Id.

In addition, the appellees argue that the present case is one in which the burden of proof for variance was met. They assert that the appellant "actively chose to ignore," id. at 7, part of the definition of "accessory structure," namely, the part that states that an accessory structure is "customarily incidental to and located on the same lot occupied by the principal use." (Emphasis added). The appellees contend that, by including in its definition the word "customarily," the legislative body clearly intended...