Posted by: Patricia Salkin | April 3, 2018

MD Court of Special Appeals Finds ZBA did Not Properly Apply the Uniqueness Test or the Practical Difficulty Test Necessary for an Applicant to Prove Eligibility for a Variance for a Wind Farm

This post was authored by Matthew Loeser, Esq.
Dan’s Mountain Wind Force, LLC sought to construct seventeen wind turbines and an electrical substation on leased property on Dan’s Mountain. The Allegany County Code permitted wind turbines as a special exception in the zoning district in which the project is proposed. Because the proposed sites of some of the turbines were within either the setback or separation distances, or both, Wind Force sought variances. The 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. Despite this testimony, the Board denied the variance requests and the special exception application that was premised on those variances. Wind Force consolidated its appeals of the Board’s decisions into a single petition for judicial review, which the circuit court affirmed.

At the outset, in an unreported decision, the court noted that the uniqueness of the properties at issue must have a nexus with the aspect of the zoning law from which a variance is sought. On appeal, the court found that the Board focused on comparing the co-applicant properties to each other without looking at other surrounding properties. Here, the aspects of the zoning law from which a variance were sought were the separation and setback requirements. Thus, the court found that the Board should have considered whether there were features on the property that caused the separation and setback requirements to affect the applicant’s individual property differently from the way it affected other surrounding properties. The court further held that it was insufficient to determine, as the Board did, that every property was in some way affected by prior surface mining, animal and plant habitats, and communications towers. Conversely, the court found that Wind Force put forth enough evidence of several features of each of the co-applicant properties to suggest that the separation and setback requirements operated differently on each of those properties than they operated on other surrounding properties. Accordingly, the Board’s decision was reversed and remanded.

Dan’s Mountain Wind force, LLC v Allegany County Board of Zoning Appeals, 2018 WL 1611695 (MD App unrep. 4/3/2018)


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