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Assateague Coastal Trust, Inc. v. Schwalbach

Court of Appeals of Maryland

May 23, 2016

Assateague Coastal Trust, inc.
Roy T. Schwalbach, et al.

          Argued: February 9, 2016

         Circuit Court for Worcester County Case No. 23-C-13-1617

          Barbera, C.J. [*] Battaglia Greene [**] Adkins McDonald Watts, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.


          McDonald, J.

         In the State's Critical Area law, the General Assembly has established a cooperative program with local jurisdictions to ensure that land near Chesapeake Bay and the Atlantic coastal bays has special protection against development that might cause environmental damage. Although that law allows a property owner to seek a variance from the law's restrictions, the law creates a presumption that a proposed variance does not conform to the purpose and intent of the Critical Area law and places the burden of proof on the applicant to demonstrate that all of the criteria for a variance have been met. Among other things, the applicant must show that the applicant would suffer an "unwarranted hardship" without the variance and that granting the variance will not have an adverse environmental impact.

         In this case, Respondent Roy T. Schwalbach sought a variance from a provision in a Worcester County ordinance that limits piers to 100 feet in length. He needed the variance in order to build an extended pier to access navigable water from his waterfront property in a community where piers and boating are common. Mr. Schwalbach obtained necessary approvals from federal, State, and local environmental agencies. The Worcester County Board of Zoning Appeals ("Board") granted the variance after holding an evidentiary hearing and finding that Mr. Schwalbach had borne the burden of proof on all of the requirements for a variance.

         Petitioner Assateague Coastal Trust, Inc. ("ACT"), an environmental advocacy organization, sought judicial review of the grant of the variance, arguing that the Board's decision was defective for several reasons. The Circuit Court for Worcester County and the Court of Special Appeals both upheld the Board's decision in written opinions that analyzed the evidence before the Board on the criteria for a variance.

         Before us, ACT focuses its contentions on three arguments. ACT argues: (1) that denial of the variance would not deny Mr. Schwalbach all reasonable and significant use of the entire property and therefore he could not establish an "unwarranted hardship"; (2) that Mr. Schwalbach did not show, and the Board did not explicitly find, that there would be no adverse environmental impact from granting the variance; and (3) that, although the Board's written decision concluded that Mr. Schwalbach had satisfied all standards for the variance, the Board did not make an explicit written finding that he had rebutted the statutory presumption of non-conformity with the Critical Area law.

         We agree with the Circuit Court and Court of Special Appeals that the Board's decision should be upheld. In our view, in order to establish an "unwarranted hardship, " Mr. Schwalbach was not required to show that he would be denied all reasonable and significant use of his land without the variance – in essence, a showing of an unconstitutional taking – but rather that he would be denied a reasonable and significant use throughout the entire property. There was sufficient evidence for the Board to conclude that Mr. Schwalbach had satisfied that standard as well as the standard that there be no adverse environmental impact from granting the variance. In addition, the Board's statement that the application had "satisfied all standards" adequately expressed its determination concerning the environmental impact standard and its conclusion that the evidence presented to it had overcome the statutory presumption of non-conformity.



         A. Statutory framework

         The Critical Area Program

         In order to protect the Chesapeake and Atlantic coastal bays, the General Assembly has enacted the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program ("Critical Area Program"). See NR §8-1801 (describing legislative findings and purpose of the Critical Area Program). The Critical Area Program is a cooperative program between the State and local governments that places restrictions on development in certain environmentally sensitive areas. See id.; NR §8-1807. The Critical Area Program is designed to:

• Minimize adverse impacts on water quality as a result of pollutants discharged from structures or conveyances or runoffs from land
• Conserve fish, wildlife, and plant habitat
• Establish land use policies that accommodate growth while addressing adverse environmental impacts

NR §8-1808(b). Generally speaking, the Critical Area consists of a 1000-foot swath of land adjacent to the Chesapeake Bay, the Atlantic coastal bays, and their tributaries. NR §8-1807. Local Critical Area programs are to accord special protection to "buffer" areas along the shoreline. See, e.g., NR §§8-1801(a)(2), 8-1801(a)(4), 8-1806(b), 8-1808(c)(1)(iii).

         Under the Critical Area Program, land within the Critical Area is divided into three categories – Intensely Developed Areas, Limited Development Areas, and Resource Conservation Areas. NR §8-1802(a)(13), (15), (22). An Intensely Developed Area is defined as a part of the Critical Area where residential, commercial, institutional, or industrial developed land uses predominate, and where there is relatively little natural habitat. See COMAR Intense development is to be directed to Intensely Developed Areas. COMAR; see also Mueller, Paved Intentions: Maryland's Critical Area Act, 41 Md. Bar J. 10, 12 (2008).

         Restriction on Pier Length in Worcester County

         Because the program is cooperative, State law creates some restrictions, and local law creates others. In Worcester County, the additional restrictions are codified in the Atlantic Coastal Bays Critical Area subtitle of the Natural Resources Article of the Worcester County Code ("WCC NR"). One restriction unique to Worcester County is that new piers or docks over State or private wetlands are limited to 100 feet in length. WCC NR §3-125(b)(1).


         A person seeking to develop property in a manner that would violate the Critical Area Program in Worcester County may ask for a variance. WCC NR §3-111. Pertinent to this case, the request for a variance must meet six requirements:

(1) Special conditions or circumstances exist that are peculiar to the applicant's land or structure and a literal enforcement of provisions and requirements of the County's Atlantic Coastal Bays Critical Area Program would result in unwarranted hardship;
(2)A literal interpretation of the provisions of the Atlantic Coastal Bays Critical Area Program and related laws will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Atlantic Coastal Bays Critical Area;
(3) The granting of a variance will not confer upon an applicant any special privilege that would be denied by the County's Atlantic Coastal Bays Critical Area Program to other lands or structures within the Atlantic Coastal Bays Critical Area;
(4) The variance request is not based upon conditions or circumstances which are the result of actions by the applicant, nor does the request arise from any condition relating to land or building use, either permitted or non-conforming on any neighboring property;
(5) The granting of a variance shall not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the granting of the variance will be in harmony with the general spirit and intent of the County's Atlantic Coastal Bays Critical Area Program;
6[1]The Board of Zoning Appeals shall not make a decision relative to a request for such a variance without reviewing the comments of the [County] Department [designated to enforce the Critical Area Program] and finding that the applicant has satisfied each of the provisions and standards contained herein.

WCC NR §3-111(b) (emphasis added); see also COMAR (listing substantially the same requirements, although missing the last and divided differently); NR §8-1808(d)(5)(i) (also requiring a showing of "unwarranted hardship" as a prerequisite to a variance from a local Critical Area program).

         Thus, among other things, an applicant for a variance must prove that the applicant would otherwise suffer an unwarranted hardship (standard 1) and that there will not be an adverse effect on water quality or animal and plant habitat from granting the variance (standard 5). The Critical Area law defines "unwarranted hardship" to mean that "without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested." NR §8-1808(d)(1); COMAR; see also WCC NR §3-102 (identical definition for purposes of the County law).

         In general, "[i]n considering an application for a variance, a local jurisdiction shall presume that the specific development activity in the critical area that is subject to the application and for which a variance is required does not conform with the general purpose and intent of" the Critical Area Program. NR §8-1808(d)(3)(ii); see also WCC NR §3-111(d)(1). "An applicant has the burden of proof and the burden of persuasion to overcome" this presumption. NR §8-1808(d)(4)(i); see also WCC NR §3-111(d)(3). "Based on competent and substantial evidence, a local jurisdiction shall make written findings as to whether the applicant has overcome" this presumption. NR §8-1808(d)(4)(ii)(1); see also WCC NR §3-111(d)(4).

         B. Facts and Procedural History

         The Schwalbach Property

         The pertinent facts are uncontested. Mr. Schwalbach's property adjoins a tributary of Sinepuxent Bay in an area known as West Ocean City in Worcester County. The property is comprised of five and one-half lots that were platted in 1924. A single-family home stands on one of the lots; two of the lots are entirely within a tidal marsh. The surrounding area is an active boating community and includes a large commercial fishing marina. Many of the nearby single-family residences have piers that extend into the marsh in order to access navigable water. The property is located within the Atlantic Coastal Bay Critical Area, has a critical area designation as an Intensely Developed Area, and is zoned R-3 (Multifamily Residential District) in the County zoning ordinance.

         The Proposed Pier and Variance

         Mr. Schwalbach seeks to build a pier – perhaps better described as a walkway – across the marsh to allow access to navigable water. The pier would measure 3 feet in width by 180 feet in length and would extend to a proposed dock at the shoreline. Mr. Schwalbach has obtained all necessary permits, including a tidal wetlands license from the Maryland Department of the Environment, an authorization from the United States Army Corps of Engineers, and the approval of the Worcester County Shoreline Commission (the last of which came after an advertised public hearing). Those agencies placed various conditions on the construction and use of the pier and required certain plantings and other mitigation to protect the marshland.

         On August 14, 2013, Mr. Schwalbach applied to the Worcester County Board of Zoning Appeals for a variance from the provision in the Worcester County ordinance that limits the length of piers across tidal wetlands to 100 feet. See WCC NR §3-125(b)(1). In a report dated September 23, 2013, Board staff evaluated each of the six standards set forth in the Worcester County Code and recommended approval of the variance. Among other things, the staff concluded that Mr. Schwalbach would be unable to reach the navigable waters adjacent to his property without the variance, that the environmental impact would be minimal and would be mitigated by the plantings required by the agencies that had issued permits for the pier, and that failure to grant a variance would result in an unwarranted hardship for Mr. Schwalbach. The Critical Area Commission did not oppose the application, but submitted a letter in which it noted that the property was designated an Intensely Developed Area and that Mr. Schwalbach had received approvals from other agencies, reminded the Board that it must find that an applicant satisfies all standards in the County ordinance, and asked the Board to notify it of the outcome.

         Hearing and Decision of the Board of Zoning Appeals

         On October 10, 2013, the Board held a hearing, at which Mr. Schwalbach presented documents and expert testimony, as well as his own testimony. A surveyor testified that Mr. Schwalbach would be unable to reach navigable waters from his property with a shorter pier. An environmental consultant testified that there were numerous docks in the vicinity and that the design of the proposed pier, which had been negotiated with the environmental agencies, would effect the minimal possible intrusion while allowing Mr. Schwalbach to access navigable water. He also stated that, in light of the special conditions imposed by the permitting agencies, the proposed pier would have no adverse effect on water quality. The consultant also noted that the property was located in a "very heavily used area for boating" and that there were several hundred boats in nearby marinas. Mr. Schwalbach testified that his property extended to the water's edge and that he wished to install the pier to have access to navigable water.

         ACT wrote a letter in opposition to the variance but did not appear at the hearing. In the letter, the Executive Director of ACT argued that construction of the pier would result in a change in the character of the marsh.[2] Although the letter did not specify the variance standards to which ACT's opposition related, the letter appeared to address primarily the fifth standard (adverse environmental impact). No one else opposed the variance.

         At the conclusion of the hearing, the Board voted unanimously to grant the variance. The Board later issued a written decision dated November 14, 2013. In that decision, the Board adopted the staff report and reiterated the staff's analysis of the six requirements in the ordinance.

         Judicial Review

         ACT disagreed with the Board's decision, and filed a petition for judicial review in the Circuit Court for Worcester County.[3] ACT argued that the Board's decision was deficient because it failed to make a specific finding that Mr. Schwalbach had overcome the presumption of non-conformity and because Mr. Schwalbach had allegedly failed to establish five of the six factors.[4] After holding a hearing for legal argument, the Circuit Court issued a detailed written opinion on June 19, 2014, in which it affirmed the decision of the Board and rejected all of ACT's arguments.

         ACT appealed to the Court of Special Appeals, making the same arguments as it made before the Circuit Court. The Court of Special Appeals affirmed the Circuit Court decision.[5] 223 Md.App. 631, 117 A.3d 606 (2015). ACT filed a petition for a writ of certiorari, which we granted. 445 Md. 19, 123 A.3d 1005 (2015).

         II Discussion

         A. Standard of Review

         "When we review the final decision of an administrative agency, such as the Board of Appeals, we look through the circuit court's and intermediate appellate court's decisions, although applying the same standards of review, and evaluate the decision of the agency." People's Counsel for Baltimore County v. Loyola College, 406 Md. 54, 66, 956 A.2d 166 (2008) (internal quotation marks and brackets omitted). We affirm an agency's decision if there is substantial evidence in the record as a whole to support the agency's findings and conclusions. Chesapeake Bay Foundation, Inc. v. DCW Dutchship, LLC, 439 Md. 588, 611, 97 A.3d 135 (2014). An agency's decision is to be reviewed in the light most favorable to it and is presumed to be valid. Id. (quotation marks and citation omitted). However, we do not defer to the agency on the applicable legal standards.

         Before us, ACT has focused its argument concerning compliance with the requirements for a variance on two standards: standard 1 (unwarranted hardship) and standard 5 (adverse environmental impact). With respect to each of those standards, ACT not only challenges the sufficiency of the evidence before the Board, but also other aspects of its decision. As to standard 1, ACT suggests that the Board applied the wrong legal standard. As to standard 5, ACT contends that the Board failed to make the requisite finding. ACT also continues to contend that Mr. Schwalbach failed ...

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