Becker v. Anne Arundel County (Ct. of Special Appeals)

Filed April 9, 2007. Opinion by Judge James R. Eyler, Jr.

From the official headnote:

ZONING – CRITICAL AREA PROGRAM

Amendments to State and county critical area laws, absent an express statement as to prospective or retrospective application, apply to matters pending and not yet decided by the agency responsible for de novo decision making.

When a board of appeals denies an application for a variance, and the property owner has a legal right to build on the property, but cannot do so without a variance, it is not sufficient for the Board to state that the owner had not met its burden of proof. The Board must explain and give reasons for its denial of the requested variance.

On appeal from the affirmation by the Anne Arundel Couty Circuit Court of the Board of Appeals' denial of variances needed to permit construction of a home by the owner ("Becker") on a waterfront parcel subject to the Critical Area Program, the Court REVERSED the decision below and REMANDED to the Circuit Court with instructions to vacate the decision of the Board and remand the case to the Board for further proceedings consistent with this opinion.

Becker applied for three variances needed to allow the construction of a proposed dwelling on a lot on the Magothy River, 97% of which was within the 100-foot critical area buffer. After taking testimony in a de novo hearing, the Anne Arundel County Board of Appeals (the "Board") denied the variances, and Becker appealed to the Circuit Court, which affirmed the Board's decision.

Upon appeal, Becker alleged that the Board applied an incorrect and illegal standard in requiring the variances to be the "absolute minimum necessary", failed to make reasonable accommodations for Mrs. Becker's physical disability, erred in ignoring the overwhelming evidence in favor of the variances, ignored the physical evidence supporting the variance criteria, and erred in "taking" Becker's property without just compensation.

The Court found that the state legislature had been very clear in strengthening the Critical Area Program by amendment, in direct response to several cases indicating some judicial leniency, allowing local implementation consistent with the state program. The Court found that a clarifying amendment enacted during the pendency of the matter at issue here did apply, and that the county enactments incorporating the amendments were effective and not preempted by the state provisions.

In reviewing the deliberations by the Board, the Court noted that the two Critical Area-related variences should have been considered separately from the setback variance, since different standards applied, and the reasons for the decision should have been stated with greater particularity, finding no evidence at all in the record to support some of the Board's findings. In context, the Court found the Board had applied the correct standard notwithstanding some language indicating otherwise. The Court also indicated taht the Board must take into account evidence of Mrs. Becker's alleged disability in its considerations. The Court was not willing to entertain Becker's taking argument, since it was not clear that the Board's decision would preclude all economically beneficial use of the property, but noted that denail of variances might, under some circumstances, constitute a taking.

Finally, the Court noted that the Board was not an administrative body which had discretion to do or not do an act, for which a mere statement that the applying party had failed to satisfy the burden of persuasion would suffice, but rather it must grant or deny varience requests, and has an obligation to explain its decision. For that reason, the Court reversed the decision below and remanded with instructions to remand to the Board for further proceedings consistent with the Court's opinion.

The opinion is available in PDF format.