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LLC v. Allegany County Board of Zoning Appeals

Court of Special Appeals of Maryland

April 3, 2018

DAN'S MOUNTAIN WIND FORCE, LLC, et al.
v.
ALLEGANY COUNTY BOARD OF ZONING APPEALS

          Circuit Court for Allegany County Case No. 01-C-15-043252-F

          Meredith, Friedman, Pierson, W. Michel (Specially Assigned), JJ.

          OPINION

          Friedman, J.

         This case concerns the rejection of an application for variances to the setback and separation distance requirements for a wind farm in Allegany County. We hold that the Allegany County Board of Zoning Appeals did not properly apply the uniqueness test or the practical difficulty test necessary for an applicant to prove eligibility for a variance. We explain how such analyses should be conducted and remand for the Board to try again.

         FACTS

         Dan's Mountain Wind Force, LLC seeks to construct 17 wind turbines and an electrical substation on leased property on Dan's Mountain. The Allegany County Code permits wind turbines as a special exception in the zoning district in which the project is proposed.[1] And, most importantly for present purposes, construction of the turbines is subject to (1) a minimum separation distance of 2000 feet from any residential structure; and (2) a minimum setback distance of no less than three times the height of the turbine. ACC § 360-92(B)(3).[2] Because the proposed sites of some of the turbines were within either the setback or separation distances, or both, Wind Force sought variances. It also applied for the requisite special exception. Critically, Wind Force enlisted the support of the neighboring property owners, who joined Wind Force as co-applicants.

The Board's opinion summarized the factual and procedural background:
[Wind Force] has proposed to construct 17 wind turbines … on leased property located on Dan's Mountain. … The Allegany County Code requires that wind turbines have a minimum separation distance of [2000] feet from any residential structure and a [minimum] setback property line distance of "three times the height of the unit" which, in this case, is [955] feet. [T]o meet the criteria of the zoning code, a variance to the separation distance is required for [8] residences and a variance to the setback requirements are necessary at [2] locations. All of the subject property owners requesting a variance to the separation distance are co-applicants and have executed variance authorizations. …
[5] of the [8] co-applicant property owner[s'] variance requests involve residential structures within the 2000 foot separation distance of multiple wind turbines. As such … evidence presented indicates that the Board will have to review and grant [26] separate variances to get the project in line with the existing zoning code.

         At the hearing, Wind Force presented expert testimony that while Dan's Mountain is an ideal location for a wind farm, there are many factors limiting the specific locations on which turbines can be placed, including the:

(1) topography of the property;
(2) boundaries of Wind Force's property and that of its neighbors;
(3) proximity of existing dwellings and other structures;
(4) stream channels;
(5) habitat of the Allegheny Woodrat;[3]
(6) habitat of Black-fruited Mountain Rice;[4]
(7) existence, location, and extent of wetland areas;
(8) prior strip mining activity;
(9) communication beam paths passing over and through the properties; and
(10) technical specifications of the wind turbines themselves.

         Thus, the thrust of Wind Force's expert testimony was that these constraints required it to propose placing the turbines in very specific locations on Dan's Mountain and that the requested variances of the minimum separation distance and setback requirements were necessary for the project. The Board was not persuaded. The Board found that Wind Force had failed to meet its burden of proof in "three critical areas." Specifically, the Board found:

First, the Applicant failed to establish that the subject properties were sufficiently unique as to each other as to warrant a variance. Second, the Applicant failed to demonstrate that the multiple number of variances requested were in harmony with the spirit and intent of the zoning regulations. Finally, the Applicant failed to establish that any co-applicant lost "reasonable use" of their respective properties.

         As a result, the Board denied the variance requests and, because the special exception application was premised on the variances, denied the special exception as well. Wind Force consolidated its appeals of the Board's decisions into a single petition for judicial review. The circuit court affirmed. Wind Force noted a timely appeal.

         STANDARDS OF REVIEW

         When reviewing the decision of an administrative agency, this court "looks through the circuit court's [decision] … and evaluates the decision of the agency." People's Counsel for Balt. Cnty. v. Surina, 400 Md. 662, 681 (2007). Thus, in the present case, we consider whether the administrative agency-the Allegany County Board of Zoning Appeals-erred. Wind Force contends that the Board erred both in its factual findings and in its legal determinations. We will, therefore, review the Board's factual findings for whether they are supported by substantial evidence in the record, and ...


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