Agenda - Planning Commission - 09/01/2016

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July 10, 2016 1 Volume 10 Issue 13 Zoning Bulletin piers or docks over State or private wetlands are limited to 100 feet in length. The State Critical Area law and the County Ordinance allow a '- property owner to seek a variance from the law's restrictions. A vari- ance applicant must meet all of the criteria for a variance, including demonstrating that: (1) the applicant would suffer an "unwarranted hardship"without the variance, and (2) the granting of the variance f; would not have an adverse environmental impact. In August 2013, Schwalbach applied to the County for the necessary variance. The County Board of Zoning Appeals (the "Board") granted the variance. Subsequently, Assateague Coastal Trust, Inc. ("ACT"), an environmental advocacy organization, sought judicial review of the grant of the variance. Among other things, ACT argued that: (1) the denial of the variance would not deny Schwalbach all reasonable and significant use of the entire property (since he already used the prop- erty I for a single-family home) and therefore he could not establish "unwarranted hardship;" and(2) Schwalbach failed to show that there were be no adverse environmental impact from granting the variance. r' The Circuit Court and the Court of Special Appeals upheld the Board's decision. ACT appealed. DECISION: Affirmed. The Court of Appeals of Maryland held that the granting of the vari- ance to Schwalbach was proper. In reaching that determination, the court held that, in order to estab- lish an"unwarranted hardship,"Schwalbach was"not required to show that he would be denied all reasonable and significant use of his land without the variance—in essence, a showing of an unconstitutional taking—but rather that he would be denied a reasonable and significant use throughout the entire property." Both the State Critical Area law(NR§ 8-1808(d)(1))and the County Ordinance(WCC NR§ 3-103)defined"unwarranted hardship"to mean that, in the absence of a variance, the applicant"would be denied rea- sonable and significant use of the entire parcel or lot . . ."Neither law, however, specified whether the deprivation must be of all such uses of the entire property (as ACT argued here), or if it could be of one such use assessed in relation to the entire property(as Schwalbach argued here, citing his riparian rights as an owner of property adjacent to a body of water to access the water). Confronted with this"problem of statutory construction,"the court analyzed the statutory text and rel- evant legislative history. The court concluded that "in order to estab- lish an unwarranted hardship, the applicant has the burden of demon- strating that,without a variance,the applicant would be denied a use of the property that is both significant and reasonable.In addition,the ap- plicant has the burden of showing that such a use cannot be ac complished elsewhere on the property without a variance." 10 ©2016 Thomson Reuters