MD Court of Special Appeals Holds Evidence was Sufficient to Support Board’s Decision to Grant Landowner a Tree Variance

This post was authored by Matthew Loescher, Esq.

The West Montgomery County Citizens Association (“WMCCA”), appellant, along with eight neighboring homeowners, filed the underlying petition for judicial review challenging a decision of the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission. This decision was the approval of a preliminary plan filed by Sara A. Vazer, co-appellee. Specifically, Vazer proposed to subdivide a 2.77 acre property on Glen Mill Road in Montgomery County into two lots with the intention of building one residence on each.

At the outset, the court noted that the WMCCA did not provide any provision or statute requiring the Planning Board to render specific findings of fact related to the approval of the Preliminary Plan. Here, the record indicated that the Planning Board addressed all of the statutory requirements for approving the Preliminary Plan in the Resolution. Additionally, the record reflected that the Planning Board also considered the arguments made by WMCCA that did not fall within the confines of the statutory requirements provided by § 50-35 of the Subdivision Regulations. Lastly, the Staff Report, which the Planning Board expressly adopted and incorporated into the Resolution, contained findings that specifically addressed WMCCA’s concerns.

Notwithstanding the above, WMCCA argued that the “Applicant did not directly address her compliance with the statutory requirement that she show that denial of the tree variance would amount to an “unwarranted hardship”, and the Board nevertheless overlooked this omission.” WMCCA further contended that, while the Planning Board “actually addressed” the issue of the variance, it did so in an “improperly conclusory fashion. The Planning Board noted that the Court of Appeals, in a series of cases involving Maryland’s Critical Area Law, defined the term “unwarranted hardship” as “equivalent to the denial of reasonable and significant use of the property.” Moreover, in subsequent decisions, the court clarified that the Board needed only consider the specific part of the property covered by the variance in determining whether the property owner would be denied reasonable and significant use.

Under the Planning Board’s understanding of the “unwarranted hardship” standard, the court held that the Board was correct in finding that, without the variance, the Applicant would suffer the loss of a reasonable and significant use of the property: the ability to develop a second lot as would otherwise be permitted by applicable law. Furthermore, the Planning Board determined that the Applicant’s request did not violate any of the prohibited conditions in § 22A-21(d). Accordingly, the court held that the Planning Board did not err in granting the Applicant’s tree variance request.

West Montgomery County Citizens Association v Montgomery County Planning Board of the Maryland National Capital Park and Planning Commission, 248 Md App. 314 (10/29/2020)