Posted by: Patricia Salkin | September 9, 2015

MD Court of Special Appeals Holds in Granting Variance, Board Was Not Required to Make Express Written Finding that Landowner Had Overcome Statutory Presumption of Nonconformance

Property owner Roy Schwalbach planned to construct a pier or walkway that would extend across the marsh to connect the improved portion of the property to a proposed dock six feet past the shoreline. Under the County’s critical area ordinance, “new piers or docks shall not extend more than one hundred feet in length over state or private wetlands.” To reach the shoreline, Schwalbach’s structure would have to extend 180 feet across the marsh. Consequently, on August 14, 2013, he submitted an application for a variance with the Board of Zoning Appeals for Worcester County. The BZA granted the area variance authorizing landowner Schwalbach to construct a pier or walkway across his private wetlands. The Circuit Court for Worcester County upheld the Board’s decision after Assateague Coastal Trust, Inc. (“ACT”), a non-profit environmental advocacy organization, petitioned for judicial review.

The Worcester County Ordinance provides that the Board shall presume that the proposed activity does not conform with the general purpose and intent of the critical area laws and regulations; that the applicant bears the burdens of proof and persuasion to overcome the presumption of nonconformance; and that the Board must make written findings as to whether the applicant has overcome the presumption of nonconformance. Here, it was reasonable for the Board to conclude that the need for the variance arose from special features that were peculiar to the property. Furthermore, Schwalbach’s knowledge that he purchased a property subject to critical area restrictions did not prevent him from receiving a variance here. The Board here stated that Schwalbach’s proposal “was not unreasonable and seems to be very modest by providing the most direct access path to navigable waters; this finding was supported by testimony from Schwalbach’s expert that numerous private boat docks in the nearby area were used to gain access to the same body of water. Accordingly, the court concluded that substantial evidence supported the Board’s findings that the variance was necessary for Schwalbach to enjoy the right of riparian access commonly enjoyed by others in the area and that granting the variance would not confer any special privilege denied to other property owners in the area.

ACT next argued: “The Board’s decision did not indicate that the Board was aware of the presumption of nonconformance, that Schwalbach had the burden of proof to overcome the presumption of nonconformance, or that Schwalbach had met that burden.” The court found, however, that the Board’s determinations that Schwalbach satisfied each of the variance criteria and that the project was in harmony with the local critical area program, obviated the need for any additional analysis from the Board regarding the statutory presumption. Even assuming that the Board erred by not making this separate written finding, that hypothetical error did not require reversal. The court therefore affirmed the judgment of the circuit court, which affirmed the decision of the Board of Zoning Appeals to grant the variance application.

Assateague Coastal Trust, Inc. v Schwalbach, 223 MD. App. 631 (Ct. Spec. App. 7/2/2015)

The opinion can be accessed at: http://www.mdcourts.gov/opinions/cosa/2015/0939s14.pdf


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