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

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1 IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER V ELLEN C. GRIFFIN SECOND ASSESSMENT DISTRICT DATE HEARD: JANUARY 5, 2016 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE HEARING OFFICER PLANNER: SARA ANZELMO DATE FILED: JANUARY 12, 2016

2 PLEADINGS Ellen C. Griffin, the applicant, seek a variance ( V) to allow a dwelling addition (screened porch) with less setbacks than required and with new lot coverage nearer to the shoreline than the closest façade of the existing principal structure on property located along the east side of Claibourne Road, north of Ogleton Road, 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 January 5, 2016, in which witnesses were sworn and the following evidence was presented with regard to the proposed variances requested by the applicant. The Property The applicant owns the subject property which has a street address of 2648 Claibourne Road, Annapolis, Maryland The property is identified as Lot 9 of Parcel 57 in Block 19 on Tax Map 52H in the subdivision of Annapolis Roads. 1

3 It is zoned R2 Residential District and is designated in the Chesapeake Bay Critical Area as limited development area (LDA). It is also mapped in a buffer modification area (BMA). The Proposed Work The applicant seeks approval to construct a slightly irregular 24' by 28'8" (655 square foot) screened porch addition over a portion of the existing two-level waterfront deck as shown on the site plan admitted into evidence as County Exhibit 2 that will be located as close as 27 feet from the front lot line and emplace 655 square feet of new lot coverage 28 feet nearer to the shoreline than the closest facade of the existing principal structure. The Anne Arundel County Code (b)(1) provides that no new lot coverage shall be placed nearer to the shoreline than the closest facade of the existing principal structure provides that a principal structure shall be set back at least 30 feet from a front lot line. The Variances Requested The work proposed will require the following variances: 1. A critical area variance of six hundred fifty-five (655) square feet to the prohibition in (b) to allow the construction of the proposed screened porch addition to be constructed 28 feet nearer the shoreline as shown on County Exhibit 2; and 2

4 2. A zoning variance of three (3) feet to the 30-foot front setback requirement of to allow the screened porch to be constructed 27 feet from the front lot line as shown on County Exhibit 2. The Evidence Submitted At The Hearing Sara Anzelmo, a planner with the Office of Planning and Zoning (OPZ), testified that the property is currently improved with a two-story single-family dwelling, a detached carport, a shed, and gravel driveways. The property is irregular in shape and exceeds the minimum area and dimensional requirements for a lot in an R2 district. The existing critical area lot coverage is 3,800 square feet (16.52%). The proposed coverage will increase to 4,455 square feet (19.37%), which falls well below the 5,445 square foot maximum allowed. Ms. Anzelmo testified that review of the 2014 County aerial photograph shows an eclectic mix of homes in this older waterfront community; however, the majority of the dwellings in this particular section of Annapolis Roads were constructed during the late 1990 s and early 2000 s. According to tax records, the subject dwelling was constructed in A few of the homes located on Lake Heron contain modest waterfront porches. The applicant wishes to make efficient and effective use of an existing outdoor amenity area by constructing a 24' by 28'8" screened porch over a portion of the existing deck. The Development Division (Critical Area Team) commented that the variances are not the minimum necessary to afford relief. While the Team is not 3

5 opposed to a screened porch being constructed, the porch size does not meet the minimum necessary and cannot be supported. The Team recommends reducing the size of the porch to a maximum of 15 feet deep. Mitigation in the BMA is required at a 3:1 ratio for the area of development. The Critical Area Commission reviewed the variance request and offered no comment, noting that appropriate mitigation should be provided. The Health Department does not have an approved plan for this project, but has no objection to the variance request as long as a plan is submitted and approved by the Department. Ms. Anzelmo testified that expansion of the dwelling in this case is limited by the location of the existing dwelling with deck, which was sited within the footprint of a previously demolished dwelling, causing practical difficulties for the applicant. However, OPZ has concluded that the proposed 655 square-foot porch is excessive and that the variances could be minimized. OPZ recommends a modified variance that would reduce the porch projection towards the water to 15 feet. This would minimize the critical area variance and eliminate the need for the zoning setback variance altogether, while still allowing an ample screened porch area for outdoor use and enjoyment and protection from the elements. The granting of the modified variance will not confer on the applicant a special privilege that would be denied by COMAR, Title 27. The variance request is not based on conditions or circumstances that are the result of actions by the applicant 4

6 and does not arise from any condition relating to land or building use on any neighboring property. The modified variance will not adversely affect water quality or impact fish, wildlife or plant habitat and will be in harmony with the general spirit and intent of the County s critical area program. As currently proposed, the applicant has not overcome the presumption that the specific development does not conform to the general purpose and intent of the critical area law and has not evaluated or implemented site planning alternatives. Ms. Anzelmo testified that approval of the variances will not alter the essential character of the neighborhood, as several nearby dwellings contain waterfront porches. The variances will not substantially impair the appropriate use or development of adjacent property, as the proposed porch will exceed the required side setbacks and will not have an impact on neighboring views. The variances 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. However, the proposed 655 square foot porch size is excessive, and the variance request is not deemed to be the minimum necessary to afford relief in this case. The critical area variance can be minimized, and the front setback variance can be eliminated. Based upon the standards set forth in under which a variance may be granted, Ms. Anzelmo testified that OPZ recommends denial of a zoning 5

7 variance of 3 feet to the minimum 30-foot front lot line setback, and approval of a modified critical area variance to (b)(1) to allow a slightly irregular 16'8" by 24' screened porch with 367 square feet of new lot coverage to project as close as 16'8" nearer to the shoreline than the closest façade of the existing principal structure as shown in red on the County revised site plan. The applicant was present at the hearing and represented by her attorney, Tarrant H. Lomax, Esquire. She was assisted by her architect, Donald Reithlingshoefer. Evidence was presented that the applicant had intended to add the screened porch to the existing deck at the time the dwelling was constructed but had been unable to proceed with that part of her plans. The existing structure for the first-floor deck was designed to carry the proposed screened porch and no disturbance or additional supports would be needed if the necessary approvals were obtained. Reducing the depth of the screened porch would, however, require additional posts and disturbance to the ground under the existing deck. With proper stormwater management, the proposed screened porch should not have any adverse effect on the buffer. There was no other testimony taken or exhibits received in the matter. The Hearing Officer did not visit the property. DECISION 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 6

8 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. 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]. 1 Furthermore, the applicant carries the burden of convincing the Hearing Officer that the applicant has satisfied each one of the variance provisions. 2 (Emphasis added.) (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). 7

9 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 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 8

10 required for development in the critical area; or (6) the variance will not be detrimental to the public welfare. Findings - Critical Area Variance The facts of each case are like the ingredients in a recipe: a shed in the corner of an R5 lot might be compared to bacon and eggs, while some, such as the facts in this case, are much more complicated. Those facts are: The subject property is waterfront, therefore, subject to the critical area law. The property is improved with a dwelling constructed in The dwelling was constructed with a deck on the waterside. The deck is two floors, i.e., there is a deck at ground level and a second deck at the level of the first floor of the dwelling. The first-floor deck extends across the front of the dwelling. The main part of the dwelling (without the deck) is located as close as 50 feet from the shoreline, which is within the 100-foot buffer. The decks are located as close as 27 feet from the shoreline and thus are even closer to the shoreline than the main structure of the dwelling. The deck is pervious, although how pervious is unclear. The applicant wishes to construct a screened porch on the first-floor level over that portion of the existing deck shown on County Exhibit 2 (24 feet from the east side), leaving the remainder of the first-floor deck across the front of the dwelling open. 9

11 The proposed screened porch is impacted by the following legal requirements: The existing decks are considered part of the principal structure. A principal structure (which includes the decks) must be set back at least 30 feet from the front lot line, necessitating a variance of 3 feet to construct the proposed screened porch as close as 27 feet from the front lot line. New lot coverage closer to the shoreline than the existing principal structure is prohibited in the buffer. The existing decks are grandfathered and could be rebuilt on their present footprints. Should the size of the screened porch be reduced, the applicant would be allowed to keep the footprint of the decks shoreward of the reduced screened porch. Putting these facts and the law into the blender that constitutes this Office, the requested variances will be granted. The Front Setback Variance The area inside the front setback is triangular in shape and constitutes 8 square feet. The footprint of the proposed screened porch already includes this intrusion. The intrusion is de minimis. Consequently, the zoning variance will be granted. 10

12 The Prohibition Against New Lot Coverage There is no question that a request for a variance to build a screened porch closer to the shoreline than the façade of the existing dwelling, in the absence of the pervious decks, would not be granted. The front of the dwelling is already within the 100-foot buffer; a new screened porch would increase that intrusion and would be denied. 3 However, the decks are in existence. OPZ and the Critical Area Commission did not oppose some relief, only that the proposed screened porch be reduced in depth. 15 feet was suggested, which would leave the existing firstfloor deck extending another 8 feet or so toward the shoreline. The applicant presented testimony that this would require a redesign and require disturbance to the ground underneath the decks to provide footings to support the altered structure. The proposed screened porch will extend further over the existing decks than recommended. There will be no disturbance, or expansion of the existing footprints of the decks, because the proposed screened porch will utilize existing columns and footings. Roofing the decks with the screened porch will result in some loss of rainwater passing through the decks to the ground. However, with proper stormwater management, the rainwater can be contained and the impact to 3 A deck similar to the existing decks is another matter, since allowing a deck on a waterfront property is a common amenity. However, a deck as large as the one that exists today would probably be denied as too large. If anything, approval of the decks in the current configuration in 2000 shows how much the critical are law has tightened since then. 11

13 the buffer will be minimal if unchanged from the existing situation. The critical area variance will be granted. Accordingly, I find that the applicant has satisfied each of the conditions of (b). I further find that the critical area and zoning variances represent the minimum relief. There was nothing to suggest that the granting of the variances 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 Ellen C. Griffin, petitioning for a variance to allow a dwelling addition (screened porch) with less setbacks than required and with new lot coverage nearer to the shoreline than the closest façade of the existing principal structure, and PURSUANT to the notice, posting of the property, and public hearing and in accordance with the provisions of law, it is this 12 th day of January, 2016, ORDERED, by the Administrative Hearing Officer of Anne Arundel County, that the applicant is granted: 1. A critical area variance of six hundred fifty-five (655) square feet to the prohibition in (b) to allow the construction of the proposed screened porch addition to be constructed 28 feet nearer the shoreline as shown on County Exhibit 2; and 12

14 2. A zoning variance of three (3) feet to the 30-foot front setback requirement of to allow the screened porch to be constructed 27 feet from the front lot line as 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 improvements shown on County Exhibit 2 shall be constructed on the property in the locations shown therein. The foregoing variances are subject to the applicant complying with any instructions and necessary approvals from the Permit 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. 13

15 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. 14

CRYSTAL CREEK PROPERTIES, LLC

IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER 2015-0167-V CRYSTAL CREEK PROPERTIES, LLC FOURTH ASSESSMENT DISTRICT DATE HEARD: SEPTEMBER 24, 2015 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE