Agenda - Planning Commission - 10/15/2015

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September 10, 2015 l Volume 9 ( Issue 17 Zoning Bulletin the BZA's decision granting the variance. The ACT argued that Schwalbach failed to prove compliance with all required standards. The ACT also argued that the BZA's decision was "defective on its face" because it did not affirmatively express whether Schwalbach had overcome a statutory presumption that the activity subject to the variance application did not conform to the general purpose of the critical area requirements. (The County critical area ordinance, as well as state statutory law, required the Board "make written findings as to whether the applicant has overcome the [statutory] presumption of nonconformance"). The circuit court affirmed the BZA's decision. ACT appealed. DECISION: Judgment of circuit court affirmed. The Court of Special Appeals of Maryland held that substantial evi- dence in the record supported the BZA's determination that Schwalbach's application satisfied all variance standards. The court also concluded that even though the BZA did not make an express written finding that Schwalbach had overcome the statutory presumption of noncompliance, the fact that the BZA determined all variance standards had been met was essentially such a finding, and, in any case, judicial efficiency did not require reversal or remand in this case based on that omission. In so holding, the court found that Schwalbach's application met the required standards for a critical area variance: First, the court found that the need for the variance arose from special features that were peculiar to the property. Schwalbach would be unable to reach the water at the edge of his property without the variance. Under Maryland common law and the Maryland Code, an owner of riparian ac- cess has valuable property rights in that he or she has right to make certain improvements to the land in order to access navigable water. Here, the court found that Schwalbach was therefore not making a variance applica- tion for the sake of convenience or adding a pleasant amenity, but was exercising an important component of his property rights. Second, the court found that the hardship faced by Schwalbach was not self-created. Citing prior caselaw on the issue, the court said that Schwalbach's purchase of the property with knowledge that it was located in the critical area adjacent to wetlands was not a self-created hardship that precluded the grant of an area variance. Third and fourth, the court found that the evidence supported the BZA'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 the granting of the variance would not confer any special privilege denied to other property owners in the area. The evidence showed that there were "numerous properties" that had piers/walkways that crossed an excess of 100 feet of tidal wetlands to access the water, and still more that had private boat docks of varying lengths used to gain access to the water. In any case, without the variance, Schwalbach would be unable to access navigable 8 © 2015 Thomson Reuters