Agenda - Planning Commission - 08/05/2010

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i Zoning Bulletin June 10, 2010 I Volume 4 I No. 11 ordinance (the "Ordinance") that restricted development activities in the Critical Area. The Clickners sought to construct the following structures within the Island's shoreline buffer area: a driveway; a storm water manage- ment structure; septic tanks; and a well. The Ordinance did not permit construction of such structures in the buffer area. Therefore, the Click- ners applied for variances from the Ordinance. The Chesapeake Bay Foundation, Inc. ("CBF") and the Magothy River Association, Inc. ("MRA") opposed the Clickners' zoning vari- ance applications. The county's administrative hearing officer granted the variances. The CBF and the MRA appealed that decision to the county's Board of Appeals (the "Board"). The Clickners asked the Board to dismiss that appeal, arguing the CBF and the MRA lacked standing to appeal. On the issue of standing, the relevant county code provision pro- vided that "a person aggrieved" by a decision of the Office of Planning and Zoning could appeal to the Board. Court precedent established that "a person aggrieved by the decision of a board of zoning appeals" is: "one whose personal or property rights are adversely affected by the decision of the board. The decision must not only affect a matter in which the protestant has a specific interest or property right but his in- terest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally." The CBF and the MRA maintained that they were so "aggrieved" as to have standing to appeal the variance grants to the Clickners. Among other reasons, they said this was because they had been engaged in oys- ter bed and aquatic grass planting activities on the river which would be "within sight, sound[,] taste and smell" of the Clickners' Island. They argued that the Clickners' proposed construction would damage the oyster beds and grass plantings for which they had invested sub- stantial amounts of volunteer time and money. The Board agreed with the Clickners, concluding that the CBF and the MRA did not have standing to appeal the variance grants. The court dismissed their appeal. In doing so, the Board concluded that the oyster bed and aquatic grass planting activities of the CBF and the • MRA did not make the CBF and the MRA specially aggrieved in a way different from the public at large. The Board noted that once a grass or oyster is released into the river, it is no longer the property interest of the CBF or the MRA. Without a property interest, the Board con- cluded that the CBF and the MRA were not so "aggrieved" under the county code as to have standing to appeal the variance grants. The CBF and the MRA appealed to court. The circuit court affirmed the Board's conclusion. The CBF and the MRA again appealed. © 2010 Thomson Reuters 5 165