IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER V RONALD M. KLINE AND RACHEL A. KLINE SECOND ASSESSMENT DISTRICT

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1 IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER V RONALD M. KLINE AND RACHEL A. KLINE SECOND ASSESSMENT DISTRICT DATE HEARD: JUNE 18, 2015 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE HEARING OFFICER PLANNER: DONNIE DYOTT, JR. DATE FILED: JULY 6, 2015

2 PLEADINGS Ronald M. Kline and Rachel A. Kline, the applicants, seek a variance ( V) to allow dwelling additions (second story, covered porch & deck) with less setbacks than required on property located on the east side of Ridge Road, north of Shore Walk Road, Riva. PUBLIC NOTIFICATION The hearing notice was posted on the County s website in accordance with the County Code. The file contains the certification of mailing to community associations and interested persons. Each person designated in the application as owning land that is located within 175 feet of the property was notified by mail, sent to the address furnished with the application. Rachel Kline testified that the property was posted for more than 14 days prior to the hearing. I find and conclude that there has been compliance with the notice requirements. FINDINGS A hearing was held on June 18, 2015, in which witnesses were sworn and the following evidence was presented with regard to the proposed variances requested by the applicants. The Property The applicants own the subject property which has a street address of 100 Ridge Road, Riva, Maryland The property is identified as Lot 163 and ½ of Lot 164 of Parcel 160 in Block 22 on Tax Map 50 in the Sylvan Shores subdivision. This waterfront lot is zoned R5 - Residential District and is 1

3 designated in the Chesapeake Bay Critical Area as intensely developed area (IDA). The property is mapped in a buffer modification area (BMA). The Proposed Work The applicants propose to construct dwelling additions (2 nd story, two 2 story additions, covered porch and deck) as shown on Applicants Exhibit 2 admitted into evidence at the hearing. The addition, porch, and stairs will be located on the rear of the existing dwelling and will be located as close as 14 feet, 12 feet, and 6 feet from the rear lot line, while the rebuilt waterside deck will be as close as 3 feet from the south side lot line. 1 The Anne Arundel County Code requires that principal structures in an R5 Residential District shall be located 20 feet from a rear lot line and 7 feet from a side lot line. The Variances Requested Accordingly, the proposed work will require the following variances: 1. A zoning variance of six (6) feet to the 20-foot rear lot line setback restriction in to construct the proposed second-story addition 14 feet from the rear lot line as shown on Applicants Exhibit 2; and 2. A zoning variance of eight (8) feet to the 20-foot rear lot line setback restriction in to construct the proposed porch as close as 12 feet from the rear lot line; and 1 The applicants originally sought to build the deck as close as zero feet from the south side lot line but reduced their request at the hearing to 3 feet. The modified plan was admitted into evidence as Applicants Exhibit 2. 2

4 3. A zoning variance of fourteen (14) feet to the 20-foot rear lot line setback restriction in to construct the proposed steps as close as 6 feet from the rear lot line; and 4. A zoning variance of four (4) feet to the 7-foot side lot line setback restriction in to construct the proposed waterside deck as close as 3 feet from the south side lot line. The Evidence Submitted At The Hearing Donnie Dyott, Jr., a planner with the Office of Planning and Zoning (OPZ), testified that OPZ cannot support the 7-foot variance for the deck on the south side lot line, and reserved judgment on the modified 4-foot variance request submitted at the hearing. However, OPZ can support the rear setback variances. The subject property does not meet the width requirements for a lot in the R5 district (57 feet as opposed to the required 60 feet) but exceeds the area requirements for a lot in the R5 district (9,833 square feet as opposed to the required 7,000 square feet). The site is currently improved with a one story singlefamily dwelling with deck, 2 sheds, driveway and a pier. According to State tax records, the subject dwelling was originally constructed in Mr. Dyott testified that the existing lot coverage is 3,363 square feet. Should the variance request be granted, the post construction lot coverage will be 3,669 square feet. The property is located within the IDA which does not have a critical area lot coverage limit. The underlying R5 zoning does contain a 40% 3

5 maximum coverage by structures requirement. The coverage by structures will be below the 40% maximum allowed. The Health Department commented that the site is served by public water and sewer facilities; therefore, they have no objection to the request. Mr. Dyott testified that the development of the site is constrained by the practical limitations of an existing developed lot. The existing dwelling is located on the 20-foot rear setback, making any addition on the rear impossible without a variance. Due to these limitations, strict implementation of the Code would result in a hardship in the use of the property by denying the applicants the right to construct the dwelling additions to make efficient and effective use of the property. The existing entrance to the dwelling is located on the side of the house. The applicants explain that the covered porch would provide an entrance facing the road to improve access and lessen the distance between the driveway and entrance. The existing one story home has a very cut up floor plan with small bedrooms. The dwelling additions will create a more open floor plan and improve wheelchair access. The improved access and open floor plan will allow the dwelling to be more handicapped accessible for the applicants elderly parents. The location of the dwelling additions is considered to result in the minimum variance necessary to afford relief. The two story addition and covered porch are modest in size and will exceed the side lot line setback requirements. 4

6 However, the proposed location of the deck zero feet from the southerly lot line is not considered the minimum necessary. The deck could be constructed in line with the southerly wall line to meet the 7-foot setback requirement, while yielding a deck measuring approximately 35-foot long without the need for a variance. Although the proposed deck is an in-kind replacement, the redevelopment provides an opportunity to conform to the setback regulations while still providing an ample outdoor amenity area. Sylvan Shores is an older community and contains dwellings of various sizes, many of which are nonconforming to setbacks. Several properties in the immediate area were granted variances to construct dwelling additions with less setbacks in Case Nos V, V, V, V, V and V. Therefore, the proposed variances will not alter the essential character of the neighborhood, will not impair the appropriate use or development of adjacent properties and will not be detrimental to the public welfare. The variances will not be contrary to acceptable clearing and replanting practices in the critical area. Based upon the standards set forth in under which a variance may be granted, Mr. Dyott testified that OPZ recommends approval of the requested rear setback zoning variances but denial of a zoning variance to allow the proposed deck to be located as close as zero feet from the south side lot line. Rachel Kline appeared at the hearing and was assisted by Diane Schwallenberg of the Permit Connection, Inc. The applicants presented evidence 5

7 that the rear addition and improvements to the street side of the dwelling were necessary to improve the living space in the existing dwelling. The deck on the waterside is in poor repair. An engineer has determined that it must be rebuilt. The proposal is to rebuild it in-kind. The proposal to extend it to the south side lot line has been withdrawn. The posts to support the deck will be hand-dug. The existing shed at the street will be removed. There was no other testimony taken. The Hearing Officer did not visit the property. An was received from Diane M. Borngesser Ellis, who owns 42 Shore Walk Road immediately to the south of the subject property. She objected to the applicants deck being built to the property line and expressed concern about bamboo growing along the common property line between the properties. She would like to have the bamboo removed. Also, the fence in that area is in poor repair and she would like to see it replaced or repaired. Finally, the proposed second-floor addition will overlook her dwelling and interfere with her air and light. DECISION Upon review of the facts and circumstances, I find and conclude that the applicants are entitled to conditional relief from the Code. Requirements for Zoning Variances sets forth the requirements for granting a zoning variance. Subsection (a) reads, in part, as follows: a variance may be granted if the Administrative Hearing Officer finds that practical difficulties or unnecessary 6

8 hardships prevent conformance with the strict letter of this article, provided the spirit of law is observed, public safety secured, and substantial justice done. A variance may be granted only if the Administrative Hearing Officer makes the following affirmative findings: (1) Because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility of developing the lot in strict conformance with this article; or (2) Because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship and to enable the applicant to develop the lot. The variance process for subsection (1) above is a two-step process. The first step requires a finding that special conditions or circumstances exist that are peculiar to the land or structure at issue which requires a finding that the property whereupon the structures are to be placed or use conducted is unique and unusual in a manner different from the nature of the surrounding properties. The second part of the test is whether the uniqueness and peculiarity of the property causes the zoning provisions to have a disproportionate impact upon the subject property causing the owner a practical difficulty or unnecessary hardship. Uniqueness requires that the subject property have an inherent characteristic not shared by other properties in the area. Trinity Assembly of God of Baltimore City, Inc. v. 7

9 People s Counsel for Baltimore County, 178 Md. App. 232, 941 A.2d 560 (2008); Umerley v. People s Counsel for Baltimore County, 108 Md. App. 497, 672 A.2d 173 (1996); North v. St. Mary s County, 99 Md. App. 502, 638 A.2d 1175 (1994), cert. denied, 336 Md. 224, 647 A.2d 444 (1994). The variance process for subsection (2) - practical difficulties or unnecessary hardship - is simpler. A determination must be made that, because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicants to develop the lot. Furthermore, whether a finding is made pursuant to subsection (1) or (2) above, a variance may not be granted unless the hearing officer also finds that: (1) the variance is the minimum variance necessary to afford relief; (2) the granting of the variance will not alter the essential character of the neighborhood or district in which the lot is located, (3) substantially impair the appropriate use or development of adjacent property, (4) reduce forest cover in the limited development and resource conservation areas of the critical area, (5) be contrary to acceptable clearing and replanting practices required for development in the critical area, or (6) be detrimental to the public welfare. Findings - Zoning Variances I find, based upon the evidence, that because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship and to enable the applicants to 8

10 develop the lot. The location of the existing dwelling approximately 20 feet from the rear lot line limits what the applicants can do to improve their home without variances. Considering the narrow width of the property and the location of other dwellings and accessory structures within side and rear setbacks, the application for the rear variances is reasonable. The modified side setback variance will also be granted so that the applicants can rebuild the existing deck 3 feet from the side lot line. Some of the issues raised by Ms. Ellis, who owns the property to the south, cannot be addressed in a zoning hearing (removal of bamboo; the condition of the fence between the properties). Ms. Ellis concern about the original deck expansion to the common property line has been met with the applicants reducing the deck to its existing size. Finally, the proposed rear additions do not require a height variance. As to whether the proposed rear additions will interfere with Ms. Ellis air and light, the rear additions will have little if any impact on the small street-side area between Ms. Ellis house and Shore Walk as the applicants dwelling already extends farther to the rear than the rear of Ms. Ellis dwelling. As with many older communities, the shore area of Sylvan Shores is crowded with houses up against each other on small, narrow lots. I further find that the variance requested represents the minimum relief. This is a modest addition to a dwelling in an R5 district. I also find that the granting of the variances will not alter the essential character of the neighborhood or district in which the lot is located, substantially impair the appropriate use or 9

11 development of adjacent property, reduce forest cover in the limited development and resource conservation areas of the critical area, be contrary to acceptable clearing and replanting practices required for development in the critical area, or be detrimental to the public welfare. ORDER PURSUANT to the application of Ronald M. Kline and Rachel A. Kline, petitioning for a variance to allow dwelling additions (second story, covered porch & deck) with less setbacks than required; and PURSUANT to the notice, posting of the property, and public hearing and in accordance with the provisions of law, it is this 6 th day of July, 2015, ORDERED, by the Administrative Hearing Officer of Anne Arundel County, that the applicants are granted: 1. A zoning variance of six (6) feet to the 20-foot rear lot line setback restriction in to construct the proposed second-story addition 14 feet from the rear lot line as shown on Applicants Exhibit 2; and 2. A zoning variance of eight (8) feet to the 20-foot rear lot line setback restriction in to construct the proposed porch as close as 12 feet from the rear lot line; and 3. A zoning variance of fourteen (14) feet to the 20-foot rear lot line setback restriction in to construct the proposed steps as close as 6 feet from the rear lot line; and 10

12 4. A zoning variance of four (4) feet to the 7-foot side lot line setback restriction in to construct the proposed waterside deck as close as 3 feet from the south side lot line. Furthermore, Applicants Exhibit 2, referenced in this decision, is incorporated herein as if fully set forth and made a part of this Order. The proposed improvements shown on Applicants Exhibit 2 shall be constructed on the subject property in the locations shown therein. The foregoing variances are subject to the following conditions: A. The applicants shall comply with the instructions and necessary approvals from the Permit Application Center, the Department of Health, and the Critical Area Commission. This condition specifically includes, but is not limited to, mitigation as determined by the Permit Application Center and/or the Critical Area Commission. B. The existing shed on the street side of the dwelling shall be removed before the any work permitted by this decision and order is undertaken. C. The deck shall be pervious. D. The deck shall remain open and unenclosed. E. The deck shall not be reconstructed larger than its existing footprint and no closer than 3 feet from the south side lot line. F. The holes for the posts to support the deck shall be hand-dug. 11

13 NOTICE TO APPLICANTS This Order does not constitute a building permit. In order for the applicants to construct the structures permitted in this decision, the applicants must apply for and obtain the necessary building permits, along with any other approvals required to perform the work described herein. Any person, firm, corporation, or governmental agency having an interest in this Decision and aggrieved thereby may file a Notice of Appeal with the County Board of Appeals within thirty (30) days from the date of this Decision. Further, (a) provides that a variance or special exception that is not extended or tolled expires by operation of law unless the applicants within 18 months of the granting of the variance or special exception (1) obtains a building permit or (2) files an application for subdivision. Thereafter, the variance or special exception shall not expire so long as (1) construction proceeds in accordance with the permit or (2) a record plat is recorded among the land records pursuant to the application for subdivision, the applicants obtain a building permit within one year after recordation of the plat, and construction proceeds in accordance with the permit. If this case is not appealed, exhibits must be claimed within 60 days of the date of this Order, otherwise they will be discarded. 12

ROBERT W. WOJCIK AND DEBORAH A. WOJCIK

IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER 2015-0258-V ROBERT W. WOJCIK AND DEBORAH A. WOJCIK THIRD ASSESSMENT DISTRICT DATE HEARD: JANUARY 7, 2016 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE