Posted by: Patricia Salkin | August 14, 2011

MD Appeals Court Upholds Reversal of Variance Where Applicant Failed to Demonstrate Practical Difficulty

Appellants owned property that was divided by a road.  They resided on the east side while they maintained a garage and paving equipment on the west side.  After parking paving equipment on the west side of the property for seven years without an issue, a complaint was filed.  As a result, appellants sought a special exemption and variance to continue to be able to park their paving equipment on their property.  When they appeared in front of the zoning board to request the special exception there was much opposition from neighbors who believed that such use would result in diminution in value of the surrounding properties, runoff, the fear that the special exception would “run with the land,” and that it would be detrimental to the environment.  The chief engineer for the County also submitted a letter which stated that unless the applicant widened the road to 18 feet, they would not recommend approval of the variance.  The appellant testified that if the variance was not granted, they would have to store the equipment ten to twelve miles away which would create much inconvenience.

The zoning board ultimately granted the appellants’ special exception request and variance that they were seeking and Appellees submitted a petition for judicial review to the circuit court.  The circuit court held the findings of the zoning board were insufficient and reversed and remanded.  The zoning board held a second public hearing and again issued an opinion granting the special exception and variance.  Appellees filed a second petition for judicial review and the circuit court again reversed the zoning board’s grant.  The appellants appealed from this order.

The appeals Court noted that in determining whether to grant a variance request the first step requires a finding that the property is unique and unusual in a manner different from the nature of surrounding properties so much so that it causes the zoning provision to impact the property disproportionately.  The second step requires a determination of whether practical difficulty or unreasonable hardship resulting from the disproportionate impact of the ordinance caused by the property’s uniqueness exists. In this case, although the lot was determined to be unique due to the size and shape of the lot and the fact that the property was divided by a road, granting the variance was not a matter of practical difficulty since the request was primarily one of convenience to save the appellants from an increase in travel time.

 As to the appellants’ case for the special exception, it was held that since the zoning board did not sufficiently discuss the adverse effects above and beyond those inherently associated with a storage yard, the circuit court correctly held that the special exception could not be granted. 

Mills v. Godlove, 2011 WL 2652481 (Md. App. 7/7/2011) 

This opinion can be accessed at: http://www.courts.state.md.us/opinions/cosa/2011/2761s09.pdf


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