Assateague Coastal Trust v. Schwalbach , 448 Md. 112 ( 2016 )

Assateague Coastal Trust, Inc. v. Roy T. Schwalbach, et al.
No. 59, September Term 2015
Critical Area Law – Variance – Requirement to Show Unwarranted Hardship. Under
the State Critical Area Program and the corresponding Worcester County ordinance, a
property owner seeking a variance from a provision of the Critical Area requirements bears
the burden of showing, among other things, that there are special conditions or
circumstances peculiar to the property, such that literal enforcement of the Critical Area
provision would result in an “unwarranted hardship.” In order to establish an unwarranted
hardship, an applicant must show that, without the proposed variance, the applicant would
be denied a reasonable and significant use – an assessment to be made with respect to the
entire property. There was substantial evidence to support a local zoning appeals board’s
finding that a variance from a local limit on pier length was necessary to avoid an
unwarranted hardship when a pier of the proposed length and location was required for the
applicant to enjoy riparian rights in a boating community in an area designated as an
“intensely developed area” and environmental agencies had approved the pier subject to
conditions. Maryland Code, Natural Resources Article, §8-1808(d)(1), (d)(5)(i); COMAR
27.01.12.04B(1); Worcester County Code, Natural Resources Article, §3-111(b)(1).
Critical Area Law – Variance – Requirement to Show No Adverse Environmental
Impact. Under the State Critical Area Program and the corresponding Worcester County
ordinance, an applicant for a variance from a provision of the Critical Area law bears the
burden of showing, among other things, that granting the variance will not adversely affect
water quality or the fish, wildlife, or plant habitat within the Critical Area. A local zoning
appeals board that determines that an applicant has borne the burden of proof on all
requirements for a variance, including the requirement that there be no adverse
environmental impact, will be upheld as to that determination if there is substantial
evidence in the administrative record to support such a finding. Maryland Code, Natural
Resources Article, §8-1808(c)(iii)(13); COMAR 27.01.12.04B(6); Worcester County
Code, Natural Resources Article, §3-111(b)(5).
Critical Area Law – Variance – Presumption of Non-Conformity with Purpose and
Intent of Law. Under the State Critical Area Program, an applicant for a variance from a
provision of that law bears the burden of proof and burden of persuasion on all
requirements for a variance. The local jurisdiction is to presume that that an application
for a variance does not conform with the general purpose and intent of the law and must
make written findings as to whether the applicant has overcome that presumption. Written
findings by a local zoning appeals board that an applicant has carried the applicant’s burden
of proof as to all standards governing a variance suffice as a written finding that the
applicant has rebutted the presumption. Maryland Code, Natural Resources Article, §8-
1808(d)(3)-(4); Worcester County Code, Natural Resources Article, §3-111(d)(1).
Circuit Court for Worcester County
Case No. 23-C-13-1617
Argued: February 9, 2016 IN THE COURT OF APPEALS
OF MARYLAND
No. 59
September Term, 2015
ASSATEAGUE COASTAL TRUST, INC.
v.
ROY T. SCHWALBACH, et al.
Barbera, CJ
*Battaglia
Greene
**Adkins
McDonald
Watts
Rodowsky, Lawrence F.
(Retired, Specially
Assigned),
JJ.
Opinion by McDonald, J.
Battaglia, J. joins in the judgment only.
Filed: May 23, 2016
*Battaglia, J., now retired, participated in the hearing
and conference of this case while an active member of
this Court; after being recalled pursuant to the
Constitution, Article IV, Section 3A, she also
participated in the decision and adoption of this
opinion.
**Adkins, J., participated in the hearing and
conference of this case, but recused herself prior to the
adoption of this opinion.
In the State’s Critical Area law, the General Assembly has established a cooperative
program with local jurisdictions to ensure that land near Chesapeake Bay and the Atlantic
coastal bays has special protection against development that might cause environmental
damage. Although that law allows a property owner to seek a variance from the law’s
restrictions, the law creates a presumption that a proposed variance does not conform to
the purpose and intent of the Critical Area law and places the burden of proof on the
applicant to demonstrate that all of the criteria for a variance have been met. Among other
things, the applicant must show that the applicant would suffer an “unwarranted hardship”
without the variance and that granting the variance will not have an adverse environmental
impact.
In this case, Respondent Roy T. Schwalbach sought a variance from a provision in
a Worcester County ordinance that limits piers to 100 feet in length. He needed the
variance in order to build an extended pier to access navigable water from his waterfront
property in a community where piers and boating are common. Mr. Schwalbach obtained
necessary approvals from federal, State, and local environmental agencies. The Worcester
County Board of Zoning Appeals (“Board”) granted the variance after holding an
evidentiary hearing and finding that Mr. Schwalbach had borne the burden of proof on all
of the requirements for a variance.
Petitioner Assateague Coastal Trust, Inc. (“ACT”), an environmental advocacy
organization, sought judicial review of the grant of the variance, arguing that the Board’s
decision was defective for several reasons. The Circuit Court for Worcester County and
the Court of Special Appeals both upheld the Board’s decision in written opinions that
analyzed the evidence before the Board on the criteria for a variance.
Before us, ACT focuses its contentions on three arguments. ACT argues: (1) that
denial of the variance would not deny Mr. Schwalbach all reasonable and significant use
of the entire property and therefore he could not establish an “unwarranted hardship”; (2)
that Mr. Schwalbach did not show, and the Board did not explicitly find, that there would
be no adverse environmental impact from granting the variance; and (3) that, although the
Board’s written decision concluded that Mr. Schwalbach had satisfied all standards for the
variance, the Board did not make an explicit written finding that he had rebutted the
statutory presumption of non-conformity with the Critical Area law.
We agree with the Circuit Court and Court of Special Appeals that the Board’s
decision should be upheld. In our view, in order to establish an “unwarranted hardship,”
Mr. 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. There was sufficient evidence for the Board to conclude
that Mr. Schwalbach had satisfied that standard as well as the standard that there be no
adverse environmental impact from granting the variance. In addition, the Board’s
statement that the application had “satisfied all standards” adequately expressed its
determination concerning the environmental impact standard and its conclusion that the
evidence presented to it had overcome the statutory presumption of non-conformity.
2
I
Background
A. Statutory framework
The Critical Area Program
In order to protect the Chesapeake and Atlantic coastal bays, the General Assembly
has enacted the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program
(“Critical Area Program”). See NR §8-1801 (describing legislative findings and purpose
of the Critical Area Program). The Critical Area Program is a cooperative program
between the State and local governments that places restrictions on development in certain
environmentally sensitive areas. See id.; NR §8-1807. The Critical Area Program is
designed to:
• Minimize adverse impacts on water quality as a result of
pollutants discharged from structures or conveyances or run-
offs from land
• Conserve fish, wildlife, and plant habitat
• Establish land use policies that accommodate growth while
addressing adverse environmental impacts
NR §8-1808(b). Generally speaking, the Critical Area consists of a 1000-foot swath of
land adjacent to the Chesapeake Bay, the Atlantic coastal bays, and their tributaries. NR
§8-1807. Local Critical Area programs are to accord special protection to “buffer” areas
along the shoreline. See, e.g., NR §§8-1801(a)(2), 8-1801(a)(4), 8-1806(b), 8-
1808(c)(1)(iii).
3
Under the Critical Area Program, land within the Critical Area is divided into three
categories – Intensely Developed Areas, Limited Development Areas, and Resource
Conservation Areas. NR §8-1802(a)(13), (15), (22). An Intensely Developed Area is
defined as a part of the Critical Area where residential, commercial, institutional, or
industrial developed land uses predominate, and where there is relatively little natural
habitat. See COMAR 27.01.02.03. Intense development is to be directed to Intensely
Developed Areas. COMAR 27.01.02.02; see also Mueller, Paved Intentions: Maryland’s
Critical Area Act, 41 Md. Bar J. 10, 12 (2008).
Restriction on Pier Length in Worcester County
Because the program is cooperative, State law creates some restrictions, and local
law creates others. In Worcester County, the additional restrictions are codified in the
Atlantic Coastal Bays Critical Area subtitle of the Natural Resources Article of the
Worcester County Code (“WCC NR”). One restriction unique to Worcester County is that
new piers or docks over State or private wetlands are limited to 100 feet in length. WCC
NR §3-125(b)(1).
Variances
A person seeking to develop property in a manner that would violate the Critical
Area Program in Worcester County may ask for a variance. WCC NR §3-111. Pertinent
to this case, the request for a variance must meet six requirements:
(1) Special conditions or circumstances exist that are peculiar to
the applicant’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;
4
(2) A literal interpretation of the provisions of the Atlantic Coastal
Bays Critical Area Program and related laws will deprive the
applicant of rights commonly enjoyed by other properties in
similar areas within the Atlantic Coastal Bays Critical Area;
(3) The granting of a variance will not confer upon an applicant
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 is not based upon conditions or
circumstances which are the result of actions by the applicant,
nor does the request arise from any condition relating to land
or building use, either permitted or non-conforming on any
neighboring property;
(5) The granting of a variance shall 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 will be in harmony with the general spirit and intent
of the County’s Atlantic Coastal Bays Critical Area Program;
[61]The Board of Zoning Appeals shall not make a decision relative
to a request for such a variance without reviewing the
comments of the [County] Department [designated to enforce
the Critical Area Program] and finding that the applicant has
satisfied each of the provisions and standards contained herein.
WCC NR §3-111(b) (emphasis added); see also COMAR 27.01.12.04B (listing
substantially the same requirements, although missing the last and divided differently); NR
§8-1808(d)(5)(i) (also requiring a showing of “unwarranted hardship” as a prerequisite to
a variance from a local Critical Area program).
1
One of the original requirements in the ordinance was repealed, so “(6)” in the
ordinance is now marked as “reserved” and the sixth requirement is listed as “(7).”
5
Thus, among other things, an applicant for a variance must prove that the applicant
would otherwise suffer an unwarranted hardship (standard 1) and that there will not be an
adverse effect on water quality or animal and plant habitat from granting the variance
(standard 5). The Critical Area law defines “unwarranted hardship” to mean that “without
a variance, an applicant would be denied reasonable and significant use of the entire parcel
or lot for which the variance is requested.” NR §8-1808(d)(1); COMAR 27.01.12.01; see
also WCC NR §3-102 (identical definition for purposes of the County law).
In general, “[i]n considering an application for a variance, a local jurisdiction shall
presume that the specific development activity in the critical area that is subject to the
application and for which a variance is required does not conform with the general purpose
and intent of” the Critical Area Program. NR §8-1808(d)(3)(ii); see also WCC NR §3-
111(d)(1). “An applicant has the burden of proof and the burden of persuasion to
overcome” this presumption. NR §8-1808(d)(4)(i); see also WCC NR §3-111(d)(3).
“Based on competent and substantial evidence, a local jurisdiction shall make written
findings as to whether the applicant has overcome” this presumption. NR §8-
1808(d)(4)(ii)(1); see also WCC NR §3-111(d)(4).
B. Facts and Procedural History
The Schwalbach Property
The pertinent facts are uncontested. Mr. Schwalbach’s property adjoins a tributary
of Sinepuxent Bay in an area known as West Ocean City in Worcester County. The
property is comprised of five and one-half lots that were platted in 1924. A single-family
home stands on one of the lots; two of the lots are entirely within a tidal marsh. The
6
surrounding area is an active boating community and includes a large commercial fishing
marina. Many of the nearby single-family residences have piers that extend into the marsh
in order to access navigable water. The property is located within the Atlantic Coastal Bay
Critical Area, has a critical area designation as an Intensely Developed Area, and is zoned
R-3 (Multifamily Residential District) in the County zoning ordinance.
The Proposed Pier and Variance
Mr. Schwalbach seeks to build a pier – perhaps better described as a walkway –
across the marsh to allow access to navigable water. The pier would measure 3 feet in
width by 180 feet in length and would extend to a proposed dock at the shoreline. Mr.
Schwalbach has obtained all necessary permits, including a tidal wetlands license from the
Maryland Department of the Environment, an authorization from the United States Army
Corps of Engineers, and the approval of the Worcester County Shoreline Commission (the
last of which came after an advertised public hearing). Those agencies placed various
conditions on the construction and use of the pier and required certain plantings and other
mitigation to protect the marshland.
On August 14, 2013, Mr. Schwalbach applied to the Worcester County Board of
Zoning Appeals for a variance from the provision in the Worcester County ordinance that
limits the length of piers across tidal wetlands to 100 feet. See WCC NR §3-125(b)(1). In
a report dated September 23, 2013, Board staff evaluated each of the six standards set forth
in the Worcester County Code and recommended approval of the variance. Among other
things, the staff concluded that Mr. Schwalbach would be unable to reach the navigable
waters adjacent to his property without the variance, that the environmental impact would
7
be minimal and would be mitigated by the plantings required by the agencies that had
issued permits for the pier, and that failure to grant a variance would result in an
unwarranted hardship for Mr. Schwalbach. The Critical Area Commission did not oppose
the application, but submitted a letter in which it noted that the property was designated an
Intensely Developed Area and that Mr. Schwalbach had received approvals from other
agencies, reminded the Board that it must find that an applicant satisfies all standards in
the County ordinance, and asked the Board to notify it of the outcome.
Hearing and Decision of the Board of Zoning Appeals
On October 10, 2013, the Board held a hearing, at which Mr. Schwalbach presented
documents and expert testimony, as well as his own testimony. A surveyor testified that
Mr. Schwalbach would be unable to reach navigable waters from his property with a shorter
pier. An environmental consultant testified that there were numerous docks in the vicinity
and that the design of the proposed pier, which had been negotiated with the environmental
agencies, would effect the minimal possible intrusion while allowing Mr. Schwalbach to
access navigable water. He also stated that, in light of the special conditions imposed by
the permitting agencies, the proposed pier would have no adverse effect on water quality.
The consultant also noted that the property was located in a “very heavily used area for
boating” and that there were several hundred boats in nearby marinas. Mr. Schwalbach
testified that his property extended to the water’s edge and that he wished to install the pier
to have access to navigable water.
ACT wrote a letter in opposition to the variance but did not appear at the hearing.
In the letter, the Executive Director of ACT argued that construction of the pier would
8
result in a change in the character of the marsh.2 Although the letter did not specify the
variance standards to which ACT’s opposition related, the letter appeared to address
primarily the fifth standard (adverse environmental impact). No one else opposed the
variance.
At the conclusion of the hearing, the Board voted unanimously to grant the variance.
The Board later issued a written decision dated November 14, 2013. In that decision, the
Board adopted the staff report and reiterated the staff’s analysis of the six requirements in
the ordinance.
Judicial Review
ACT disagreed with the Board’s decision, and filed a petition for judicial review in
the Circuit Court for Worcester County.3 ACT argued that the Board’s decision was
deficient because it failed to make a specific finding that Mr. Schwalbach had overcome
the presumption of non-conformity and because Mr. Schwalbach had allegedly failed to
establish five of the six factors.4 After holding a hearing for legal argument, the Circuit
2
In the letter, the Executive Director of ACT noted that ACT had appeared at a
hearing of the Worcester County Shoreline Commission the previous month and had
opposed the variance on the ground that the marsh, wetlands, and wet mud flats that
comprise the area were better suited to non-motorized boat usage and reported that the
Shoreline Commission had approved the application with restrictions on the types of boats
that could access the proposed pier.
3
Mr. Schwalbach moved to dismiss the petition on the ground that ACT lacked
standing to seek judicial review of the Board’s decision. The Circuit Court denied that
motion and Mr. Schwalbach has not pursued that argument in the appellate courts.
4
ACT argued that standards 1 (literal enforcement would result in unwarranted
hardship), 2 (deprivation of rights commonly enjoyed by other properties), 3 (not a special
privilege denied to other lands in the area) and 5 (no adverse effect on water quality or
9
Court issued a detailed written opinion on June 19, 2014, in which it affirmed the decision
of the Board and rejected all of ACT’s arguments.
ACT appealed to the Court of Special Appeals, making the same arguments as it
made before the Circuit Court. The Court of Special Appeals affirmed the Circuit Court
decision.5 223 Md. App. 631, 117 A.3d 606 (2015). ACT filed a petition for a writ of
certiorari, which we granted. 445 Md. 19, 123 A.3d 1005 (2015).
II
Discussion
A. Standard of Review
“When we review the final decision of an administrative agency, such as the Board
of Appeals, we look through the circuit court’s and intermediate appellate court’s
decisions, although applying the same standards of review, and evaluate the decision of the
agency.” People’s Counsel for Baltimore County v. Loyola College, 406 Md. 54, 66, 956
A.2d 166 (2008) (internal quotation marks and brackets omitted). We affirm an agency’s
decision if there is substantial evidence in the record as a whole to support the agency’s
wildlife; consistency with general spirit of Critical Area law) were not met. As a result of
the failure to meet those standards, ACT argued, Mr. Schwalbach could not establish the
sixth standard – i.e., that all of the other standards had been met. In the Circuit Court, ACT
did not contend that Mr. Schwalbach had failed to establish standard 4 (hardship not self-
created).
5
Although ACT did not explicitly argue that Mr. Schwalbach failed to satisfy
standard 4 (hardship not self-created), the Court of Special Appeals construed ACT’s
argument concerning standard 1 (unwarranted hardship) as an implicit assertion that Mr.
Schwalbach also failed to satisfy standard 4. However, the intermediate appellate court
found such an argument to be without merit. 223 Md. App. at 649-50.
10
findings and conclusions. Chesapeake Bay Foundation, Inc. v. DCW Dutchship, LLC, 439
Md. 588, 611, 97 A.3d 135 (2014). An agency’s decision is to be reviewed in the light
most favorable to it and is presumed to be valid. Id. (quotation marks and citation omitted).
However, we do not defer to the agency on the applicable legal standards.
Before us, ACT has focused its argument concerning compliance with the
requirements for a variance on two standards: standard 1 (unwarranted hardship) and
standard 5 (adverse environmental impact). With respect to each of those standards, ACT
not only challenges the sufficiency of the evidence before the Board, but also other aspects
of its decision. As to standard 1, ACT suggests that the Board applied the wrong legal
standard. As to standard 5, ACT contends that the Board failed to make the requisite
finding. ACT also continues to contend that Mr. Schwalbach failed to overcome the
presumption of non-conformity and that the Board failed to make an express finding to that
effect. Thus, we must decide three issues:
1 – Whether there was substantial evidence to support the Board’s finding that
denial of the variance would result in an “unwarranted hardship” in light of the definition
of that phrase.
2 – Whether there was substantial evidence to support a finding that the granting of
the variance would not have an adverse environmental impact and whether the Board’s
decision was sufficiently explicit in making such a finding.
3 – Whether the Board’s decision adequately stated that the applicant had overcome
the presumption of non-conformity.
11
B. Unwarranted Hardship
To satisfy the first requirement for a variance under the Critical Area law, an
applicant must prove that “[s]pecial conditions or circumstances exist that are peculiar to
the applicant’s land or structure and that a literal enforcement of provisions and
requirements of the County’s Atlantic Coastal Bays Critical Area Program would result in
unwarranted hardship.” WCC NR §3-111(b)(1); see also NR §8-1808(d)(5)(i).
The Board found that Mr. Schwalbach had satisfied this standard of the Critical Area
law because, without the variance, he would be prohibited from enjoying the riparian rights
associated with his property as an expanse of wetlands prevented the property owner from
reaching navigable waters.
There appears to be no question that there are special conditions or circumstances
present with respect to Mr. Schwalbach’s property. An owner of property that is adjacent
to a body of water has riparian rights under both common law and statute. Worton Creek
Marina, LLC v. Clagett, 381 Md. 499, 508-12, 850 A.2d 1169 (2004). Fundamental among
those rights is access to the water. Id. Thus, it is well established that the property owner
has “the right to make a landing, wharf or pier” to provide access to navigable water subject
to “general rules and regulations … necessary to protect the rights of the public.” Causey
v. Gray, 250 Md. 380, 387, 243 A.2d 575 (1968). As the Court of Special Appeals pointed
out in its opinion in this case, this is a particularly important property right in a boating
community. 223 Md. App. at 647. Unsurprisingly, the record before the Board indicates
that there are numerous properties in the area of Mr. Schwalbach’s property with piers that
extend more than 100 feet across the tidal marsh to reach navigable water. Without a
12
variance allowing an extended pier, Mr. Schwalbach could not have a pier that would reach
the navigable water adjoining his property.
The question is whether that inability to exercise that riparian right amounts to an
“unwarranted hardship.” The statute and local ordinance both define “unwarranted
hardship” to mean that, in the absence of a variance, the applicant “would be denied
reasonable and significant use of the entire parcel or lot…” NR §8-1808(d)(1); WCC NR
§3-102.
ACT appears to concede that denying Mr. Schwalbach a variance would result in at
least a “diminution” of his riparian rights. ACT contends that the Board applied the wrong
legal standard because “a use,” in plain English, is not the same as “use.”6 In the Circuit
Court, ACT argued that, in order to demonstrate “unwarranted hardship,” Mr. Schwalbach
was required “to prove that without the variance he could not make any reasonable and
significant use of his property.” (emphasis added). ACT asserts that he cannot satisfy such
a standard because there is already a residence and other improvements on the property. It
also argues that Mr. Schwalbach did not prove that, without the variance, he is denied
exercise of his riparian rights with non-motorized vessels.
Mr. Schwalbach, of course, agrees with the Board’s finding and argues that an
inability to exercise his riparian rights to access the navigable water, including with
motorized vessels, would deny a reasonable and significant use of the entire property.
6
ACT did not make this argument before the Board, but first raised it in its
memorandum to the Circuit Court.
13
We are thus confronted with a problem of statutory construction. To prove an
“unwarranted hardship,” must an applicant demonstrate a denial of all reasonable and
significant use of the entire property, or must the applicant show a denial of a reasonable
and significant use of the entire property?
1. Statutory text
We begin, as always, with the text of the statute. As noted above, the pertinent State
statute and County ordinance both define “unwarranted hardship” as a denial of
“reasonable and significant use of the entire” property.7 While it is clear that the restriction
must relate in some way to use of the “entire” property and that the deprivation must relate
to something that is “reasonable and significant,” neither law specifies whether the
deprivation must be of all such uses of the entire property – i.e., “any” reasonable and
significant use – or it can be of one such use assessed in relation to the entire property –
i.e., “a” reasonable and significant use.
A reading of the statute that would require the applicant to demonstrate that, without
a variance, the applicant would be foreclosed from any reasonable and significant use of
the entire property under the Critical Area requirements would appear to require the
applicant to meet the standards for a “taking” of the property. Under the “taking” standard,
“a regulation which denies all economically beneficial or productive use of land will
require compensation under the Takings Clause.” Palazzolo v. Rhode Island, 533 U.S.
7 Although Mr. Schwalbach’s property is platted as five lots, we will treat it as a
single parcel, as did the Board and the reviewing courts. See 223 Md. App. at 648-49 n.12.
14
606, 617 (2001) (internal quotation marks omitted); see also Litz v. Maryland Department
of Environment, 446 Md. 254, 267, 131 A.3d 923 (2016).8 “All economically beneficial
or productive use” of a property would appear to be a subset of “all reasonable and
significant use of the entire property.” Thus, if Mr. Schwalbach needed to show that he
would be denied all reasonable and significant use of the property without a variance, then
the “unwarranted hardship” standard would collapse into the “taking” standard, because
such a showing would also satisfy the “taking” standard. Yet this Court has repeatedly
(and recently) held that the “unwarranted hardship” standard is not as demanding as the
“taking” standard. See DCW Dutchship, 439 Md. at 619.
Accordingly, we are reluctant to accept ACT’s assertion the Board applied an
incorrect legal standard when it did not require Mr. Schwalbach to show that he would
otherwise be prohibited from all reasonable and significant use of the entire property. The
legislative history of the Critical Area law confirms we should not.
2. Legislative history
The phrase “unwarranted hardship” first appeared without definition in the
regulations of the Critical Area Commission, was later construed by this Court in a series
of cases that turned on those regulations, and was ultimately defined by the General
Assembly in the Critical Area statute in reaction to that case law.
8
A lesser deprivation may still be a taking. See Palazzolo, 533 U.S. at 617.
15
1986: Adopting the “unwarranted hardship” standard in regulation
The phrase “unwarranted hardship” did not appear in the Critical Area law, as it was
originally enacted. See Chapter 794, Laws of Maryland 1984. Rather, the phrase appeared
in regulations adopted by the Critical Area Commission and in local Critical Area
ordinances required to be consistent with those regulations. See 12:24 Md. Reg. 2352
(November 22, 1985), adopting COMAR 14.15.11.9 The regulations did not define
“unwarranted hardship.”
1999 – 2000: Defining “unwarranted hardship” in case law
It fell to this Court to define “unwarranted hardship” in a trio of cases decided during
1999 – 2000. Belvoir Farms Homeowners Ass’n, Inc. v. North, 355 Md. 259, 734 A.2d
227 (1999); White v. North, 356 Md. 31, 736 A.2d 1072 (1999); Mastandrea v. North, 361
Md. 107, 760 A.2d 677 (2000).
In Belvoir Farms, a county board of appeals granted a variance, applying a
definition of “unwarranted hardship” that equated that standard with the “practical
difficulties” standard under the local zoning law. This Court held that the “unwarranted
hardship” standard is more stringent than the “practical difficulties” standard and that,
therefore, the board had committed an error of law. 355 Md. at 265-67. To provide
guidance to the board on remand, the Court articulated a definition of “unwarranted
hardship.” It found the phrase to be indistinguishable from the standard of “unnecessary
(or undue) hardship” applied in use variance applications: “whether the applicable zoning
9
COMAR 14.15.11 was recodified as COMAR 27.01.11 in August 1992.
16
restriction when applied to the property in the setting of its environment is so unreasonable
as to constitute an arbitrary and capricious interference with the basic right of private
ownership.” Id. at 276 (quotation marks and citation omitted). After further surveying
case law in Maryland and other states, the Court concluded that the “unwarranted hardship”
standard could be “either the denial of beneficial or reasonable use or the denial of all
viable economic use, the unconstitutional taking standard.” Id. at 281 (emphasis added).
In the end, it rejected the latter definition, equivalent to the taking standard, as
“superfluous” and defined the standard as “denial of reasonable and significant use of the
property.” Id. at 282.
In White, a county board of appeals granted a variance from the Critical Area
restrictions to permit a homeowner to locate an in-ground pool in a part of the property that
lay in the extended buffer established by the Critical Area regulations. The circuit court
overturned the grant of the variance, and the Court of Special Appeals affirmed that
decision – decisions that were made before this Court had defined “unwarranted hardship”
in Belvoir Farms. This Court vacated the lower court decisions in White and ordered that
the case be remanded to the board of appeals for application of the unwarranted hardship
standard in light of the definition provided in Belvoir Farms. The Court reiterated that an
unwarranted hardship “can result from the denial of a reasonable and significant use” and
that the standard was less stringent than that required to prove a taking. 356 Md. at 49
(emphasis added). The Court then proceeded to discuss the various other standards set
forth in the ordinance for a variance. In the course of providing further guidance to the
board of appeals on remand, the Court stated that the applicants did not have to satisfy
17
every specific standard of the variance ordinance; rather, the applicants needed only to
show whether the requirements were “generally met.” Id. at 50. The Court also indicated,
among other things, that the board could consider the existence of neighbors’ pools that
pre-dated that Critical Area regulations and that were legal non-conforming uses. Id. at
51-52.
In Mastandrea, a county board of appeals granted a variance to a homeowner for
the construction of brick pathway, part of which lay within the Critical Area buffer, for the
benefit of a wheelchair-bound member of the household. The circuit court overturned that
decision. This Court issued a writ of certiorari in advance of a decision by the Court of
Special Appeals and took the occasion to further discuss the concept of “unwarranted
hardship.”10 Referring to the definition developed in Belvoir Farms, the Court reiterated
that an “unwarranted hardship” was “a denial of reasonable and significant use of land”
and that it was a lesser standard than required to prove an unconstitutional taking. 361 Md.
at 136 (emphasis added). The Court held that the property owners needed to establish
whether they “would be denied a reasonable and significant use” of the property. Id.
(emphasis added). The Court also stated that the board did not have to assess whether the
use in question related to the “entire” property. Rather, the board should consider whether
The Court had issued a writ of certiorari in the case originally to consider the
10
relationship of the federal Americans with Disabilities Act to the ordinance governing
variances. However, an intervening amendment of the ordinance rendered that issue
largely moot.
18
the property owners, in light of the family member’s disability, would be denied a
reasonable and significant use of the waterfront portion of the property. Id.
2002: Adding the “unwarranted hardship” criterion to the statute
The General Assembly was apparently displeased with the Court’s interpretation of
the Critical Areas law in those cases in several respects, although it expressed no
discomfort with the Court’s articulation of the “unwarranted hardship” standard as less
than a taking. In particular, the General Assembly disagreed with the Court’s holding in
Mastandrea that a board could assess the proposed development with respect to only a
portion of a property rather than the entire property (including alternative locations for the
development), and the holdings in White that an applicant need only “generally” satisfy
variance requirements and that a board should consider comparable legal non-conforming
uses that predated the Critical Area regulations.
In 2002, the Legislature amended the Critical Area statute for the explicit purpose
of overruling those decisions with respect to those three holdings. See Chapters 431, 432,
Laws of Maryland 2002.11 The preambles of those laws, which described the holdings and
the General Assembly’s intention to overrule them, provided in pertinent part:
WHEREAS, Recent decisions by the Maryland Court of
Appeals have held that a variance may be granted if the
regulations would deny development on a specific portion of
an applicant’s property rather than considering alternative
locations on-site; and
11The two laws derived from identical bills initiated in the Senate and House of
Delegates. See Senate Bill 326 (2002); House Bill 528 (2002).
19
WHEREAS, The Court of Appeals has ruled that a local
Board of Appeals, when determining if denial of a variance
would deny an applicant rights commonly enjoyed by others in
the Critical Area, may compare a proposal to nonconforming
uses or development that predated implementation of a local
Critical Area Program; and
WHEREAS, The Court of Appeals has ruled that an
applicant for a variance from Critical Area requirements may
generally satisfy the variance standards of a local zoning
ordinance, rather than satisfy all of the standards; and
WHEREAS, These recent rulings by the Court of
Appeals are contrary to the intent of the General Assembly in
enacting the Chesapeake Bay Critical Area Protection Act; and
WHEREAS, It is the intent of this Act to overrule these
recent decisions of the Court of Appeals regarding variances to
Critical Area regulations; ….
Preamble to Chapters 431, 432, Laws of Maryland 2002.
The Floor Report for Senate Bill 326 also cited the trio of cases from 1999-2000
and stated:
The purpose of this bill is to establish by statutory authority that:
 The entire property is to be considered when determining
whether unwarranted hardship exists;
 Comparisons are applicable only to development since the
implementation of a local critical areas program; and
 An applicant is to satisfy all the standards for granting of a
variance.
Floor Report for Senate Bill 326 (2002). Among other things, the 2002 legislation required
local jurisdictions to find that an applicant for a proposed variance satisfied “each one” of
the variance requirements in order to grant a variance, required local jurisdictions to
20
consider the reasonable use of “the entire parcel” in considering a variance application, and
required local jurisdictions to incorporate in local law the requirements of the
Commission’s regulations with respect to variances. Id., enacting NR §8-1808(c)(13) &
(d) (2002). While the legislation also incorporated the “unwarranted hardship” standard
into the Critical Area statute itself, the Legislature did not further define “unwarranted
hardship,” apparently otherwise satisfied with the definition developed in the case law.12
See DCW Dutchship, 439 Md. at 629 n.33 (noting that aspects of the Mastandrea decision
concerning variances remained good law after the 2002 legislation).
The Legislature explicitly provided that the 2002 amendments were to be applied
“only prospectively” and would not apply to any case in which a petition for judicial review
of a grant or denial of a variance application was filed before June 2002. See Chapters 431,
432, §§2-3, Laws of Maryland 2002. However, further amendment of the statute was
spurred shortly thereafter by another decision of this Court that analyzed the criteria for a
variance based on the pre-2002 case law.
2003: The Lewis Case
In Lewis v. Department of Natural Resources, 377 Md. 382, 833 A.2d 563 (2003),
a landowner applied for a variance for a tract of land that was mostly marsh, but which
included a 5.3-acre island upon which the applicant occasionally went hunting. The
applicant wished to build a seasonal hunting camp on the island. However, due to the
12
A definition identical to the one that now appears in the statute was included in
the bills as originally filed, but was struck from the bills before they were enacted. See
first reader versions of Senate Bill 326 (2002), House Bill 528 (2002).
21
island’s irregular shape, most of the island was in the 100-foot buffer in which development
was prohibited under county code provisions adopted pursuant to the Critical Area
Program. The applicant sought a variance to build in the buffer.13
The local board of zoning appeals denied the variance in part because the applicant
could build much of the hunting camp on the part of the island that was not in the buffer.
Thus, the property owner would be able to use the property as he wished for a hunting
camp even without a variance and therefore was not denied that reasonable and significant
use of the property.
This Court vacated and remanded, holding (among other things) that the local board
had applied the concept of “unwarranted hardship” too strictly. Because the petition for
judicial review in the case had pre-dated the effective date of the 2002 legislation, the Court
did not apply the recent amendments that had superseded some of the holdings in the earlier
trio of cases, but rather relied on the analysis it had developed in those cases. 377 Md. at
412-17 & n. 16.
More specifically, the Court held that the board should not have considered the fact
that the applicant could have built much of what he wanted to build even without a variance
if he simply located his development elsewhere on the property. As it had in Mastandrea,
the Court reasoned that the board should not have asked whether the applicant would,
without the variance, be denied “a reasonable and significant use of the ‘entire’ lot” but
13
The applicant actually began building in the buffer before seeking the variance,
which was concededly unlawful. However, this aspect of the case is not directly relevant
here.
22
rather whether the applicant would, without the variance, be “denied a reasonable and
significant use of [property within the buffer.]” Lewis, 377 Md. at 420. The Court also
reiterated its holding in White that a board must “generally” consider the various criteria
for a variance and could not rest denial of a variance on a finding that the applicant failed
to establish only one of the criteria. Id. at 433-34.
Judge Wilner, joined by two other members of the Court, dissented. He pointed out
that the Court appeared to hold that “the focus in every case must be limited to the buffer
area,” but “that cannot be right” and that the board should consider the property as a whole.
Id. at 454 (Wilner, J., dissenting). The dissent also argued that the majority opinion had
shifted the burden of proof away from the applicant and that the local board should be free
to deny the variance if the applicant failed to establish just one of the criteria – for example,
if the applicant failed to show that the need for the variance was not self-created.
2004: Adding the definition of “unwarranted hardship” to the statute
In response to the Lewis decision, the General Assembly revisited the Critical Area
law and, among other things, enacted the statutory definition of “unwarranted hardship”
that now appears in NR §8-1808(d)(1) in 2004. Chapter 526, Laws of Maryland 2004.14
The legislation defined “unwarranted hardship” as a situation in which, in the absence of a
variance, “an applicant would be denied reasonable and significant use of the entire parcel
or lot.” (emphasis added). The amendment thus codified the definition of “unwarranted
14The definition was later incorporated in the critical area regulations. See COMAR
27.01.12.01, adopted in 40:4 Md. Reg. 347 (February 22, 2013).
23
hardship” developed in Belvoir Farms; it also incorporated in that definition the reference
to consideration of “the entire parcel or lot” that had previously been added to the statute
in the 2002 amendments in response to the Mastandrea decision.15 In addition, the
legislation directed local jurisdictions, in assessing a variance application, to presume that
the proposed development does not conform with the “general purpose and intent” of the
Critical Area law and placed the burden of proof and burden of persuasion on the applicant
to show that the presumption was rebutted.16
The legislation was an explicit response to Lewis and, in particular, the holdings that
confined consideration of the hardship issue to just the part of the property in the buffer
and that shifted the burden of proof away from the applicant. The preamble to the law
stated that, “it is the intent of the General Assembly that this Act shall overrule the Lewis
decision and re-establish critical area variance standards, particularly the historic
understanding of unwarranted hardship, that existed until weakened by the Court of
Appeals[.]” Chapter 526, Preamble, Laws of Maryland 2004.
With respect to the definition of “unwarranted hardship,” the proponents of the
legislation explained that it was designed to require a local board (and reviewing court) to
consider whether a proposed development could be accomplished elsewhere on the
15 The 2002 legislation had required a local jurisdiction to consider the “entire parcel
or lot” in assessing reasonable use. NR §8-1808(d)(2) (2002). That provision was repealed
as part of the 2004 amendments and moved into the statutory definition of “unwarranted
hardship.”
16 This aspect of the 2004 legislation is discussed in Part II.D. of this opinion below.
24
property without need for a variance from the Critical Area requirements. In particular,
the Chair of the Critical Area Commission testified that one of the key criticisms of the
Lewis decision that he and the drafters of the 2004 legislation had considered in working
on the bill was that the Court had taken away from local officials the latitude to consider
“whether a better location for the proposed development existed elsewhere on the site[.]”
Testimony of Martin G. Madden, Chair of the Critical Area Commission, concerning
Senate Bill 694 (2004); see also Maryland Department of Natural Resources Bill Report
concerning House Bill 1009 (March 5, 2004). The floor reports for the legislation
described the standard in the bill as: “look at the entire parcel to see if there is another
reasonably suitable location for the proposed development activity, other than the buffer.”
Floor Report concerning Senate Bill 694 at pp. 3-4; Floor Report concerning House Bill
1009 at p. 5.17
While the Legislature was clearly overruling Mastandrea’s and Lewis’ application
of the “unwarranted hardship” standard in directing that a local board assess that standard
in relation to the entire property, it is also evident that the General Assembly did not intend
to convert that criterion into the “taking” standard. In response to an inquiry from the
General Assembly about the relationship between the standards articulated in the bill and
the “unconstitutional taking” standard, counsel to the General Assembly advised that
17
Senate Bill 694 and House Bill 1009 were identical cross-filed bills designed to
overrule parts of the Lewis decision. House Bill 1009 was ultimately enacted as Chapter
526, Laws of Maryland 2004. Senate Bill 694 was vetoed by the Governor as duplicative.
See Laws of Maryland 2004 at pp. 2844-45.
25
“[b]oth the Court of Appeals and the Attorney General’s Office ha[ve] indicated that an
unwarranted hardship standard such as that found in the language of SB 694 / HB 100[9]
is not the same as requiring the showing of an unconstitutional taking before a variance
could be granted.” Letter of Assistant Attorney General Robert A. Zarnoch, Counsel to
the General Assembly, to Senator Norman R. Stone, concerning Senate Bill 694 and House
Bill 1009 (March 8, 2004). No change was made to the definition in the bills after the
General Assembly was provided with this interpretation of it.
Summary
As the foregoing legislative history demonstrates, there has been an ongoing
dialogue among the Commission, the Court, and the Legislature concerning the
understanding and application of the concept of “unwarranted hardship” in the Critical
Area law. The concept was first included by the Commission in its regulations and then
articulated and applied by the Court in case law. The Legislature ultimately incorporated
the criterion in the statute at the request of the Commission, using the same general
articulation as the Court, but disagreeing in how it is to be applied. It is our role now to
apply that statutory definition as best we understand it in the context of the 2002 and 2004
amendments of the statute.
Several principles pertinent to this case are apparent. First, this Court has always
distinguished the “unwarranted hardship” standard from the standard for an
unconstitutional taking. In adopting the same language as used by the Court for the
definition of “unwarranted hardship” the General Assembly apparently agrees. Nothing in
the legislative history of the 2002 and 2004 amendments that added the phrase
26
“unwarranted hardship” to the statute suggests otherwise. Indeed, when it enacted the
definition in 2004, the Legislature was advised by the Attorney General’s Office that
“unwarranted hardship” was less stringent than a takings standard.
Second, there is no support at all in the legislative history for a reading of the
definition of “unwarranted hardship” that requires an applicant to show a deprivation of all
reasonable and significant use of the actual property. Indeed, there is the opposite. The
2004 position paper from the Maryland Department of Natural Resources refers to the
proper standard as “whether the applicant had alternative locations on the property for the
proposed use.” The floor reports for the 2004 bills described the standard in those bills as:
“look at the entire parcel to see if there is another reasonably suitable location for the
proposed development activity, other than the buffer.” The Chair of the Critical Area
Commission for the Chesapeake and Atlantic Coastal Bays described the desired standard
as “whether a better location for the proposed development existed elsewhere on the site[.]”
The common understanding is that a showing of “unwarranted hardship” is not whether,
without the variance, the applicant is denied “all reasonable and significant use” of the
property, but whether, without the variance, the applicant is denied “a reasonable and
significant use” that cannot be accomplished somewhere else on the property.
Finally, as outlined above, this Court has articulated the standard of unwarranted
hardship as involving a deprivation of a reasonable and significant use of the property in a
number of cases. The 2002 and 2004 amendments, as they related to the unwarranted
hardship standard, were enacted to overrule specific holdings in Mastandrea and Lewis
that required a local board to assess that standard only with respect to the portion of a
27
property for which the variance was sought without considering whether the same
development could be accomplished elsewhere on the property without a variance. In
Lewis, this Court reversed a decision by a local board of zoning appeals. The General
Assembly clearly preferred the standard applied by the local board – whether an applicant
would be denied “a reasonable and significant use of the ‘entire’ lot.” Lewis, 377 Md. at
420 (emphasis added).
In summary, in order to establish an unwarranted hardship, the applicant has the
burden of demonstrating that, without a variance, the applicant would be denied a use of
the property that is both significant and reasonable. In addition, the applicant has the
burden of showing that such a use cannot be accomplished elsewhere on the property
without a variance.
3. Application of the Unwarranted Hardship Standard
In light of the discussion above, it is evident that the Board applied a correct
understanding of the concept of “unwarranted hardship.” When the evidence is viewed in
the light most favorable to the Board’s decision, it is also clear that there was substantial
evidence of an unwarranted hardship in this case. The use of a pier or walkway to reach
navigable water to exercise the riparian rights associated with the property is a significant
use of the property. In the context of this particular property, such a use is reasonable for
at least the following reasons:
• As the Critical Area Commission noted in its letter, the property is located in an
Intensely Developed Area.
• The area is an existing boating community.
28
• Pursuant to the approvals by the various environmental agencies, there are
various conditions on the construction and use of the proposed pier to protect the
marshland as well as requirements to undertake certain plantings and other efforts
to enhance it.
Finally, it is evident that the Board considered the entire property in assessing this use.
As the Board found, the proposed pier was the “most direct access path to navigable
waters,” and there does not appear to be any better alternative location for the pier on
the property.
In our view, there was substantial evidence to support the Board’s finding of
unwarranted hardship here.
C. Adverse Environmental Impact
As noted earlier, standard 5 of the Worcester County ordinance requires that “[t]he
granting of a variance shall not adversely affect water quality or adversely impact fish,
wildlife or plant habitat within the Atlantic Coastal Bays Critical Area.” WCC NR §3-
111(b)(5). In addressing that factor, the Board took note – as the Critical Area law
encourages18 – of the approvals that Mr. Schwalbach had received from the Maryland
Department of the Environment and the U.S. Army Corps of Engineers for the proposed
pier. The Board stated:
These agencies provide an extensive review of a wide array of
environmental impacts and have determined that this proposed
wetland crossing has minimized these potential impacts. The
proposed pier/walkway is only 3’ in width which also further
reduces the risk of any environmental degradation.
18 See NR §8-1808(d)(4)(ii); WCC NR §3-111(d)(4).
29
As ACT correctly points out, this discussion does not explicitly say that the statutory factor
is met. It says that other agencies have determined that the proposed crossing “has
minimized” the risk of an environmental impact, which may not be quite the same as “not
adversely affect[ing] water quality” or fish, wildlife, or plant habitat. However, in the very
next paragraph of its decision, the Board states “the Applicant has satisfied all standards.”
This means what it says: the Board has found that all standards, including the “not
adversely affect” standard, are met.
Substantial evidence supported this finding. At the hearing, Mr. Schwalbach’s
expert environmental consultant testified that the pier would not have an adverse effect on
water quality. He appeared to base this conclusion on the review by the Maryland
Department of the Environment and the already extensive conditions imposed on the
construction by the Army Corps of Engineers.19 In the written staff recommendation to
19
These were:
1. Within 15 days following project completion, the
permittee must provide to the Corps pre-construction and post-
construction photographs of the project area within and
adjacent to the vegetated wetlands. The pictures must include
a reference to the location and date.
2. The permittee must use marsh mats if equipment is
placed in vegetated wetlands which must be removed
immediately following construction of the walkway and pier.
3. The permittee must restore all preconstruction
elevations and replant impacted wetland areas with native
marsh species within the limits of disturbance upon completion
of the proposed work.
4. The permittee must achieve 85% vegetative cover
within remediated areas within one year of completion of all
30
approve the variance, staff reported that Mr. Schwalbach would be required to mitigate any
environmental impact with new plantings, “based on an amount equal to not less than three
work. If 85% coverage is not attained, the reasons for failure
must be determined, corrective measures must be taken and the
area replanted.
5. The wetland restoration area must be maintained,
with non-nuisance species, aerial coverage of at least 85% for
three consecutive years. If 85% coverage is not attained, the
reasons for failure must be determined, corrective measures
must be taken and the area replanted. During this 3-year
timeframe, the permittee must be responsible to submit an
annual monitoring report which must document, with
photographs and narratives, the condition of the marsh
substrate, including the health of the vegetation, and any other
related monitoring information including the following:
a) Date of inspection(s).
b) Documentation of species and measurements of
vegetative coverage.
c) Documentation of any maintenance performed or
required, including any planting of vegetation or soil
decompaction.
d) Photographic documentation, in digital form, taken
within the same time frame during each monitoring year.
6. Within 30 days of completion of the work, the
permittee must submit as-built plans, including
latitude/longitude coordinates, of the channelward most point
of the structure, to the Corps and must notify the Corps to
coordinate a compliance site visit.
7. The permittee must immediately remove any and all
debris introduced into the waterway as a result of any
construction and should ensure that all debris is properly
disposed.
31
times the square footage of the area of any buffer disturbance,” and described that he should
place these “required plantings” between the improvement and the tidal wetlands to
enhance the buffer function in the marsh. Given the lack of contrary evidence, other than
generalizations in ACT’s letter, there was substantial evidence for the Board to find that
Mr. Schwalbach’s application had satisfied all standards, including standard 5 concerning
the absence of an adverse environmental impact.
D. Conformity with the Purpose and Intent of the Critical Area Program
As noted earlier, the Critical Area statute provides that, “[i]n considering an
application for a variance, a local jurisdiction shall presume that the specific development
activity in the critical area that is subject to the application and for which a variance is
required does not conform with the general purpose and intent of” the Critical Area
Program. NR §8-1808(d)(3)(ii); see also WCC NR §3-111(d)(1). The applicant has the
burden of proof and burden of persuasion to rebut this presumption and a zoning board is
to make written findings as to whether the applicant has done so. NR §8-1808(d)(4).
ACT contends that the Board’s decision is inadequate because the Board did not
explicitly state that Mr. Schwalbach had overcome the statutory presumption of non-
conformity. It argues that the decision must be overturned for that reason. ACT’s
argument is, at best, technical and superficial.
In the context of the statutory scheme, the presumption of non-conformity requires
a local zoning board to demand that an applicant for a variance satisfy all standards for the
proposed variance and to find that the applicant has met that burden before it grants a
32
variance.20 See DCW Dutchship, 439 Md. at 637 (construing presumption to mean that
applicant must satisfy all criteria for variance). It is evident from this record in this case
that the burdens of proof and persuasion were placed on Mr. Schwalbach as to all of the
standards and that the Board found that he had satisfied those burdens as to each.
While ACT is correct that the Board did not explicitly reference the statutory
presumption in its decision, the Board explicitly found that Mr. Schwalbach had “satisfied
all standards” and stated its conclusions in detail and in writing as to each standard. In
20
As the Court of Special Appeals recounted in its opinion in this case, that is how
the intermediate appellate court has construed the statute in several cases. See 223 Md.
App. at 655-56. And, as that court explained with respect to this case, satisfaction of the
six standards under the County ordinance necessarily involved compliance with the
requirements of the State statute. Id. at 656 n.14.
The legislative history also supports this understanding of the statutory
presumption. As discussed above, the presumption of non-conformity was added to the
statute as part of the 2004 legislative response to the Lewis decision. The dissenting
opinion in Lewis criticized the majority opinion’s analysis of the burden of proof and
burden of persuasion. Lewis, 377 Md. at 455 (Wilner, J., dissenting); id. at 465-66 (Wilner,
J., dissenting as to disposition of motion for reconsideration). Advocates for the 2004
legislation urged the General Assembly to pass those bills in order to ensure that the burden
of proof – in particular, the burden of persuasion – was placed on the applicant for a
variance. See, e.g., Testimony of Maryland Association of Counties concerning House Bill
1009 (March 9, 2004); Testimony of Chesapeake Bay Commission concerning House Bill
1009 (March 9, 2004); Testimony of Maryland Municipal League concerning House Bill
1009 (March 9, 2004) at p. 1. The preamble to the 2004 legislation recited the General
Assembly’s concern that the Lewis decision “shifted the burdens of proof and persuasion
to local jurisdictions with respect to the denial of a critical area variance application, thus
adding burdensome requirements and unnecessary expenses to their consideration of
variance applications[.]” Chapter 526, Preamble, Laws of 2004. That law amended NR
§8-1808(d) to add the provisions concerning the presumption of non-conformity, the
burden of proof and burden of persuasion, and the requirement of written findings –
provisions that were clearly intended to function together to ensure that the burden of proof
remained on the applicant for a variance.
33
analyzing whether Mr. Schwalbach had satisfied each standard – and not just the one
standard on which the lone opponent (ACT) expressed its opposition before the Board –
the Board applied a presumption of non-conformity and put Mr. Schwalbach to his proof.
The written decision finding that he had satisfied all standards allows for no other
conclusion than that the presumption of non-conformity had been rebutted. And, as the
Circuit Court pointed out, the determination that the application satisfied standard 5, which
included a determination that it would be “in harmony with the general spirit and intent”
of the Critical Area Program, appears to be indistinguishable from a finding that the
variance conforms with the general purpose and intent of the program. In our view, the
Board’s written decision complies with the requirements of NR §8-1808(d)(3) and (4)
concerning the presumption of non-conformity, the burden of proof and burden of
persuasion, and the requirement of written findings.
III
Conclusion
For the reasons set forth above, we hold:
1. There was substantial evidence to support the Board’s finding that, without
the variance, Mr. Schwalbach would have suffered an unwarranted hardship – i.e., he
would not be able to exercise the riparian rights associated with the property, a reasonable
and significant use that could not be exercised elsewhere on the entire property.
2. There was substantial evidence to support the Board’s finding that the
granting of the variance would not adversely affect water quality or the fish, wildlife, or
34
plant habitat within the Critical Area – a finding contained in the Board’s analysis of that
standard and in its explicit determination that “all standards” had been satisfied.
3. The Board adequately found that Mr. Schwalbach had rebutted the
presumption of non-conformity of the proposed variance when it explicitly determined in
writing that he had carried the burden of proof as to all standards governing the proposed
variance.
JUDGMENT OF THE COURT OF SPECIAL
APPEALS AFFIRMED. COSTS TO BE PAID
BY PETITIONER.
Judge Battaglia joins in the judgment only.
35