Agenda - Planning Commission - 06/07/2018

Home

Zoning Bulletin April 25, 2018 I Volume 12 I Issue 8 MARYLAND (02/05/18)—This case addressed the issue of whether a board of zoning appeals properly applied the uniqueness test or the practical hardship test in determining an applicant's eligibility for a variance. The Background/Facts: Dan's Mountain Wind Force, LLC ("Wind Force") sought to construct 17 wind turbines and an electrical substa- tion on leased property on "Dan's Mountain" in Allegany County (the "County"). The County Code permitted wind turbines as a special exception in the zoning district in which the project was proposed. However, because the proposed sites of some of the turbines were within code -specified setback or separation distances, or both, Wind Force sought variances. Wind Force enlisted the support of the neighboring property owners, who joined Wind Force as co -applicants. In total, the County Board of Zoning Appeals (the "BZA") would have had to review and grant 26 separate variances "to get the wind turbine project in line with the existing zoning code." Under Maryland law, a variance should be granted if: (1) "the prop- erty whereon structures are to be placed (or uses conducted) is —in and of itself —unique and unusual in a manner different from the nature of surrounding properties such that the uniqueness and peculiarity of the subject property causes the zoning provision to impact disproportion- ately upon that property;" and (2) practical difficulty or unnecessary hardship would result "from the disproportionate impact of the ordinance caused by the property's uniqueness." Here, Wind Force maintained that there were many factors that limited the specific locations on which the turbines could be placed, including: topography; property boundaries; proximity of other dwell- ings; stream channels; wildlife habitats; wetlands; prior strip mining activity; communication beam paths passing over and through proper- ties; and technical specifications of wind turbines. Wind Force contended that due to these various constraints, the wind turbines had to be placed in specific locations, necessitating variances from the County Code's minimum distance and setback requirements. The BZA disagreed, and denied the variance requests. The BZA found that Wind Force had "failed to establish that the subject proper- ties were sufficiently unique as to each other as to warrant a variance," and "failed to demonstrate that the multiple number of variances requested were in harmony with the spirit and intent of the zoning regulations." Wind Force appealed (consolidating its appeals into a single petition for judicial review). The circuit court affirmed, and Wind Force again appealed. On ap- peal, Wind Force argued that the BZA did not properly apply the uniqueness test or the practical hardship test when determining Wind Force's eligibility for a variance. © 2018 Thomson Reuters 3