Agenda - Planning Commission - 06/07/2018

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April 25, 2018 I Volume 12 I Issue 8 Zoning Bulletin DECISION: Judgment of circuit court reversed, and matter remanded. The Court of Special Appeals of Maryland agreed with Wind Force and held that the BZA did not properly apply the uniqueness test or the practical hardship test when determining Wind Force's eligibility for a variance. In finding that the BZA used the "incorrect uniqueness analysis," the court noted that the BZA had "found that all of the co -applicant proper- ties were similar to each other, and thus, not unique." The court stated that a proper uniqueness analysis "examines the unusual characteristics of a specific property in relation to the other properties in the area, and the nexus between those unusual characteristics and the application of the aspect of the zoning law from which relief is sought." The court emphasized that the purpose of the uniqueness test was to determine whether a "zoning law's effect on a property is particularized to that given property." Thus, the proper uniqueness analysis determines "whether the property is unique in the way that this particular aspect of the zoning code applies to it," said the court. Here, the court found that the Board erred in its analysis because it: (1) failed to properly identify each applicant property's unusual characteristics, and then only compared co -applicant properties to each other and not surrounding properties; (2) failed to look at the nexus component and how the zoning law affected the subject property; and (3) addressed all of the co -applicant properties collectively, general- izing the properties in. such a way as to negate the purpose of the uniqueness analysis. In remanding the analysis back to the BZA, the court directed the proper analysis, saying that the BZA must "for each property, each fac- tor, and each application": (1) first, determine "whether the unusual factors identified by the applicant are indeed, features of that particular property"; (2) then determine "whether those factors have a nexus with the aspect of the zoning law from which a variance is sought"; and (3) then "look at the ways in which those factors, together, affect the prop- erty, and whether that effect is unique as compared to similarly situated properties." With regard to the "practical hardship" test of the variance analysis, the court found that the BZA had applied the wrong standard. The court explained that the second step of the variance test examines whether the "disproportionate effect of the ordinance, caused by the uniqueness of the property, creates practical difficulty for or unnecessary hardship on the owner of the property." The court further explained that there are two different standards that can be applied when determining hardship: (1) "a more lenient `practical difficulty' test," which applies to area variances; or (2) "a more stringent `unnecessary hardship' test," 4 © 2018 Thomson Reuters