Agenda - Planning Commission - 10/15/2015

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Zoning Bulletin September 10, 2015 1 Volume 9 1 Issue 17 The Background/Facts: In 2003, Roy T. Schwalbach ("Schwalbach") purchased a subdivided property (the "Property") in the "R-3 Multi -Family Residential" zoning district in West Ocean City, Worcester County (the "County"). The Property was located along a tributary of the Sinepuxent Bay and fell within the "Atlantic Coastal Bay Critical Area," per Maryland statutory law. The southern portion of the Property was improved with a residence and swimming pools. The northern portion of the Property was unimproved, bordered the waterway, and was entirely covered by tidal marsh. Schwalbach planned to construct a pier or walkway to 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, "[n]ew piers or docks shall not extend more than one hundred feet in length over state or private wetlands. To reach the shoreline, however, Schwalbach's proposed structure would have to extend 180 feet across the marsh. As such, in August 2014, Schwalbach submitted an application for a variance with the Board of Zoning Appeals for Worcester County (the "BZA"), requesting "[a] variance [from] the Atlantic Coastal Bays Critical Area Law to authorize a 3 foot wide by 180 foot long pier across tidal marsh." Pursuant to the County's critical area variance, as well as the Code of Maryland Regulations ("COMAR"), Schwalbach had to satisfy certain specified standards in order to obtain a critical area variance, including submitting evidence that: (1) special conditions or circumstances peculiar to Schwalbach's land or structure and a literal enforcement of provisions and requirements of the County's Atlantic Coastal Bays Critical Area Program would result in unwarranted hardship; (2) a literal interpretation of the provisions of the County's Atlantic Coastal 'Bays Critical Area Program and related laws would deprive Schwalbach of rights cormnonly enjoyed by other properties in similar areas within the Atlantic Coastal Bays Critical Area; (3) the granting of a variance would not confer upon Schwalbach any special privilege that would be denied by the County's Atlantic Coastal Bays Critical Area Program to other lands or structures within the Atlantic Coastal Bays Critical Area; (4) the variance request was not based upon conditions or circumstances which were the result of actions by Schwalbach and that the request for a variance did not arise from any condition relating to land or building use, either permitted or nonconforming on any neighboring property; and (5) the granting of a variance would not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the granting of the variance would be in harmony with the general spirit and intent of the County's Atlantic Coastal Bays Critical Area Program. Ultimately, the BZA granted Schwalbach's variance request. In doing so, the BZA found that Schwalbach had satisfied all standards required by the County's critical area ordinance and COMAR for a critical area variance. The Assateague Coastal Trust, Inc. ("ACT") sought judicial review of © 2015 Thomson Reuters 7