CRYSTAL CREEK PROPERTIES, LLC

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1 IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER V CRYSTAL CREEK PROPERTIES, LLC FOURTH ASSESSMENT DISTRICT DATE HEARD: SEPTEMBER 24, 2015 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE HEARING OFFICER PLANNER: JOAN A. JENKINS DATE FILED: OCTOBER 16, 2015

2 PLEADINGS Crystal Creek Properties, LLC, the applicant, seeks a variance ( V) to allow a dwelling and associated improvements with less setbacks and buffer than required on property located along the north side of Hillendale Drive, west of Breezeway Drive, Annapolis. 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. The applicant 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 September 24, 2015, in which witnesses were sworn and the following evidence was presented with regard to the proposed variance requested by the applicant. The Property The applicant owns the subject property which has a street address of 984A Hillendale Drive, Annapolis, Maryland The property is identified as Lot 13 of Parcel 31 in Block 12 on Tax Map 40 in the Cape St. Claire subdivision. It 1

3 is split zoned R5 - Residential and OS - Open Space and is designated in the Chesapeake Bay Critical Area as limited development area (LDA). The Proposed Work The applicant proposes to construct a single-family dwelling as shown on the site plan admitted into evidence as County Exhibit 2. The dwelling will be located 61 feet from a tributary stream and disturb 3,530 square feet of the stream buffer. The Anne Arundel County Code (b) prohibits new structures in the 100-foot buffer and expanded buffer, 1 except for water dependent uses 2 or shore erosion protection measures. 3 The 100-foot buffer includes tributary streams (a). The Variance Requested The work proposed will require a critical area variance from the prohibition found in (b) against disturbing a stream buffer to allow the applicant to establishes the 100-foot buffer; (b) prohibits new structures in the buffer. The variance needed to construct the proposed dwelling in this case, which will be a new structure in the buffer, is (b), not Water-dependent uses is defined in of the Code as having the meaning stated in COMAR, That section reads as follows: Definition. A. Water-dependent facilities means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the Buffer specified in COMAR [which relates to research]. B. An activity is water-dependent if it cannot exist outside the Buffer and is dependent on the water by reason of the intrinsic nature of its operation. These activities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas and other boat docking structures, public beaches and other public water-oriented recreation areas, and fisheries activities. 3 Shore erosion protection measures is not defined in Article 17 or Article 18 of the Code. 2

4 disturb 3,530 square feet of the buffer to construct the proposed dwelling and improvements shown on County Exhibit 2. The Evidence Submitted At the Hearing Joan A. Jenkins, a planner with the Office of Planning and Zoning (OPZ), testified that OPZ recommended that the requested variance be granted. The subject property is a grandfathered lot that exceeds the minimum area requirements for a lot in the R5 district and meets the required 60 feet width requirement. It is unimproved and forested. A tributary stream buffer extends into the property. The proposed new dwelling and associated facilities will disturb 3,530 square feet of the buffer and be located 61 feet from the stream bed which crosses the northwest corner of the adjoining lot (Lot 12). Clearing and lot coverage would be within permissible limits. Mitigation and stormwater management would be required at permit stage. The existing critical area lot coverage is 412 square feet. The postconstruction critical area lot coverage will total 2,131 square feet which is below the 2,812.5 square feet (31.25%) allowed. The proposal also includes 3,217 square feet (48.2%) of clearing of the existing 6,671 square feet of developed woodland onsite. Ms. Jenkins testified that review of the 2014 County aerial photograph shows a waterfront neighborhood of lots of various sizes. The lot immediately west of the site is developed with a dwelling entirely within the 100-foot stream 3

5 buffer that according to tax records was built in 1983, before critical area law went into effect. A previous variance application ( V) was granted for the subject property requesting a variance to construct a dwelling to allow 3,600 square feet of disturbance within the stream buffer. That application sited the closest point of an areaway on the rear of the house 58 feet from the stream, whereas this application locates the house 61 feet from the stream and moves the basement areaway from the rear of the house to the eastern side away from the stream. The prior variance application was granted but no dwelling was built on the property. Because an appeal was filed, the petitioner withdrew the request, which resulted in a denial of the variance. The Department of Recreation and Parks commented that this site is not within a greenway or contiguous to a trail. However, it is contiguous to Cape St. Claire Park. The Department has no additional comments. The Health Department commented they do not have an approved plan for this project and have no objection to the above referenced variance request so long as a plan is submitted and approved by the Health Department. The Development Division (Critical Area Team) commented the proposed house design has taken into consideration the environmental constraints on the property and has not exceeded the clearing limits. The request appears to be the minimum necessary to afford relief. 4

6 The Critical Area Commission commented that the applicant must address and meet all the required critical area variance standards. The Commission noted that the applicant has avoided impacts to the steep slopes located on the property and the allowable lot coverage is not being exceeded. There is current litigation in the Circuit Court for Anne Arundel County as to whether the lot has a building right (Case No. C-02-CV ). The applicant is proceeding with this variance and any subsequent permit applications at his own risk. Should the Hearing Officer find that this request meets all of the required standards, mitigation for the variance must be provided at a 3:1 ratio per COMAR It is recommended that plantings be placed between the dwelling and the stream to maximize the water quality benefit. Ms. Jenkins testified that the lot is encumbered by the stream buffer, making development difficult without disturbance to the stream buffer. A literal interpretation of the County s critical area program will deprive the applicant of rights that are commonly enjoyed by other properties in similar areas within the critical area of the County. The granting of the variance will not confer on the applicant special privileges that would be denied by COMAR, Title 27. The variance requests are not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development before an application for a variance was filed, and does not arise from any condition relating to land or building use on any neighboring property. With stormwater management the granting of the variance will not adversely affect water quality or 5

7 impact fish, wildlife or plant habitat. The applicant has overcome the presumption that the specific development does not conform to the general purpose and intent of the critical area law and has evaluated and implemented site planning alternatives. The variance request is considered to be the minimum necessary to afford relief in this case. Approval of the variance would not alter the essential character of the neighborhood as all other lots have been developed with dwellings. Approval of the variance will not substantially impair the appropriate use or development of adjacent property, as the improvements will be located well away from the dwellings on the abutting lots. The variance will not reduce forest cover in the limited development area, will not be contrary to acceptable clearing and replanting practices, and will not be detrimental to the public welfare. Based upon the standards set forth under of the County Code by which a variance may be granted, Ms. Jenkins testified that OPZ recommends approval of the requested variance. The applicant was represented at the hearing by Charles Miller, Managing Member, and assisted by his engineering consultant, Matthew Forgen. Evidence was presented that the applicant wishes to construct a new dwelling on Lot 13 which was platted in The applicant approached the community association seeking a variance from the 10-foot side setback community requirement to move the house to the southeast and farther away from the stream to the northwest. The community association denied the request. The applicant has now sited the proposed dwelling 10 feet from either side lot line and the required 25 feet from 6

8 the front lot line. No other variances are required. The proposed dwelling is similar in size to dwellings on neighboring properties. An interior garage will provide two off-street parking spaces in addition to the required two parking spaces between the dwelling and the road which will help the parking problem that exists on this narrow dead-end street. The current proposal sites the new dwelling farther from the stream behind the property and will be smaller in its footprint as compared to the proposed dwelling in the 2013 case before this Office. George Hazen testified that his wife, Susan Hazen, and son, Joshua Hazen, own the property immediately to the west of the subject property (Lot Hillendale Drive). They were represented at the hearing by Thomas Deming, Esquire. They presented evidence that a question remains as to whether the subject property (Lot 13) was merged with Lot 14 when the dwelling on Lot 14 was built across the common lot line between Lots 13 and 14. This contention is the subject of the pending Circuit Court case. The Protestants also challenged the accuracy of the engineering information on County Exhibit 2. George Hazen testified that he did not believe the information was correct and worried that allowing the proposed dwelling to be built on Lot 13 would endanger the root systems of large trees on Lot 12. The Protestants also questioned the sufficiency of the evidence that the evidence fails to support a finding that the proposed development would not adversely affect fish, wildlife, and plant habitat in the 7

9 buffer, and that it was not the minimum variance necessary to provide the applicant relief. Michael Pecknay testified that he lives on Lot 14, which is on the east side of the subject property, and has no objection to granting the requested variance if the County thought the conditions for granting the variance have been met. Donna Owens testified that she lives at 984 Hillendale and has no objection to the variance request. Mr. Forgen pointed out that Lot 13 could not be developed without a variance to the stream buffer because the 100-foot buffer, as shown on County Exhibit 2, cuts through the footprint of the proposed dwelling leaving only a small triangle when the side and front lot line setbacks are applied to the property. Mr. Forgen testified that stormwater management devices that would be installed would improve stormwater management on the property and minimize any impact on the stream buffer. There was no other testimony taken or exhibits received in the matter. The Hearing Officer did not visit the property. DECISION The findings and recommendations of the decision reached in Case No V are incorporated herein as if fully set forth. This is a grandfathered lot with single-family development on the two lots either side of it. The 100-foot buffer to an intermittent stream behind the subject property slices diagonally through the property, making development of the property with a single-family 8

10 residence impossible without a variance. The requested variance is the minimum needed. It is less than what was approved in the 2013 decision. No setback or other variances are needed. There is sufficient evidence that the requirements of have been met, including but not limited to evidence to support a finding that the property can be developed in the manner proposed without adverse impact to fish, wildlife, and plant habitat. A number of neighbors appeared at the 2013 hearing who did not return for the 2015 rerun. They were uniformly in favor of granting the proposed development of what some of them called an eyesore that was adversely affecting their property values. One neighbor who did not return (Suzann A. Sutton, f/k/a Suzann Sutton Trask 990 Hillendale Drive) submitted a handwritten three-page letter in support of granting the requested variance. State Requirements for Critical Area Variances (d)(2) of the Natural Resources Article, Annotated Code of Maryland, provides in subsection (ii), that [i]n considering an application for a variance [to the critical area requirements], a local jurisdiction shall presume that the specific development in the critical area that is subject to the application and for which a variance is required does not conform to the general purpose and intent of this subtitle, regulations adopted under this subtitle, and the requirements of the jurisdiction s program. (Emphasis added.) Given these provisions of the State criteria for the grant of a variance, the burden on the applicant is very high. 9

11 Becker v. Anne Arundel County, 174 Md. App. 114, 124; 920 A.2d 1118, 1124 (2007). The question of whether the applicant is entitled to the variance requested begins, therefore, with the understanding that, in addition to the other specific factors that must be considered, the applicant must overcome the presumption, that the specific development in the critical area that is subject to the application does not conform to the general purpose and intent of [the critical area law]. 4 Furthermore, the applicant carries the burden of convincing the Hearing Officer that the applicant has satisfied each one of the variance provisions. 5 (Emphasis added.) County Requirements for Critical Area Variances (b) sets forth six separate requirements (in this case) that must be met for a variance to be issued for property in the critical area. They are (1) whether a denial of the requested variance would constitute an unwarranted hardship, (2) whether a denial of the requested variance would deprive the applicant of rights commonly enjoyed by other property owners, (3) whether granting the variance would confer a special privilege on the applicant, (4) whether the application arises from actions of the applicant, or from conditions or (d)(2)(ii) of the Natural Resources Article. References to State law do not imply that the provisions of the County Code are being ignored or are not being enforced. If any difference exists between County law and State law, or if some State criteria were omitted from County law, State law would prevail. See, discussion on this subject in Becker v. Anne Arundel County, supra, 174 Md. App. at 135; 920 A.2d at (d)(4)(ii). 10

12 use on neighboring properties, (5) whether granting the application would not adversely affect the environment and be in harmony with the critical area program, and (6) whether the applicant has overcome the presumption in Natural Resources Article, (d)(2)(ii), of the State law that the variance request should be denied. Provided that an applicant meets the above requirements, a variance may not be granted unless six additional factors are found: (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) the variance will not substantially impair the appropriate use or development of adjacent property; (4) the variance will not reduce forest cover in the limited development and resource conservation areas of the critical area; (5) the variance will not be contrary to acceptable clearing and replanting practices required for development in the critical area; or (6) the variance will not be detrimental to the public welfare. Findings - Critical Area Variance Subsection (b)(1) - Unwarranted Hardship. In Becker v. Anne Arundel County, supra, 174 Md. App. at 132-3; 920 A.2d at 1129, the Court of Special Appeals discussed the definition of unwarranted hardship found in (d)(1) of the Natural Resources Article in the State Code: The amendment changed the definition of unwarranted hardship to mean 11

13 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. The evidence shows that the applicant will not be able to develop Lot 13 with a dwelling similar to those enjoyed by its neighbors if the requested variance is denied. Based on the law, this would constitute an unwarranted hardship. Therefore, I find that the applicant has met the requirements of subsection (b)(1). Subsection (b)(2) - Deprive Applicant Of Rights I find that the applicant would be deprived of rights commonly enjoyed by other properties in similar areas as permitted in accordance with the provisions of the critical area program, i.e., the right to have a dwelling on this grandfathered lot. Therefore, I find that the applicant has met the requirements of subsection (b)(2). Subsection (b)(3) - Special Privilege I further find that the granting of the requested critical area variance will not confer on the applicant any special privilege that would be denied by COMAR, 27.01, the County s critical area program, to other lands or structures within the County s critical area. There was testimony that the proposed improvements are comparable to improvements on other properties in the neighborhood. Therefore, I find that the applicant has met the requirements of subsection (b)(3). 12

14 Subsection (b)(4) - Actions By Applicant Or Neighboring Property The request is not based on the applicant commencing development without filing a request for permits and does not arise from any condition relating to land or building use on any neighboring property. Therefore, I find that the applicant has met the requirements of subsection (b)(4). Subsection (b)(5) - Water Quality, Intent Of Critical Area Program The granting of the critical area variance requested will not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the County s critical area or a bog protection area and will be in harmony with the general spirit and intent of the County s critical area program. The proposed work will be offset by stormwater management measures and mitigation that the applicant will undertake. Therefore, I find that the applicant has met the requirements of subsection (b)(5). Subsection (b)(7) (d)(2)(ii) Presumption In Becker v. Anne Arundel County, supra, 174 Md. App. at 133; 920 A.2d at 1129, the Court of Special Appeals discussed the presumption found in (d)(2)(ii) of the Natural Resources Article: The amendment also created a presumption that the use for which the variance was being requested was not in conformity with the purpose and intent of the Critical Area Program. I find that the applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, 8-13

15 1808(d)(2), of the State Code [which is incorporated into subsection (b)(2)] for the reasons set forth above. I further find that the requested critical area variance represents the minimum relief. While any proposed dwelling could be built smaller, the one proposed in this case is modest. There was nothing to suggest that the granting of the critical area variance would alter the essential character of the neighborhood, substantially impair the appropriate use or development of adjacent property, reduce forest cover in the limited development and resource conservation areas of the critical area, or cause a detriment to the public welfare. ORDER PURSUANT to the application of Crystal Creek Properties, LLC, petitioning for a variance to allow a dwelling with less setbacks and buffer 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 16 th day of October, 2015, ORDERED, by the Administrative Hearing Officer of Anne Arundel County, that the applicant is granted a critical area variance from the prohibition found in (b) against disturbing a stream buffer to allow the applicant to disturb 3,530 square feet of the buffer to construct the proposed dwelling and improvements shown on County Exhibit 2. Furthermore, County Exhibit 2, referenced in this decision, is incorporated herein as if fully set forth and made a part of this Order. The proposed 14

16 improvements shown on County Exhibit 2 shall be constructed on the subject property in the locations shown therein. The foregoing variance is subject to the applicant complying with any instructions and necessary approvals from the Permit Application Center, the Department of Health, and/or the Critical Area Commission, including but not limited to any direction regarding the use of nitrogen removal system technology and mitigation plantings. NOTICE TO APPLICANT This Order does not constitute a building permit. In order for the applicant to construct the structures permitted in this decision, the applicant 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. A permit for the activity that was the subject of this variance application will not be issued until the appeal period has elapsed. Further, (a) provides that a variance or special exception that is not extended or tolled expires by operation of law unless the applicant 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 applicant obtains 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. 15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER V ELLEN C. GRIFFIN SECOND ASSESSMENT DISTRICT DATE HEARD: JANUARY 5, 2016 ORDERED BY:

IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER 2015-0243-V ELLEN C. GRIFFIN SECOND ASSESSMENT DISTRICT DATE HEARD: JANUARY 5, 2016 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE HEARING OFFICER