BOARD OF APPEALS September 21, 2016 AGENDA DOCKET NO. AP2016-035: An appeal made by Edgewood Drive LLC for a variance from the minimum 10 ft. left side yard setback (facing Langley Drive) to 5 ft. and variance from minimum required 13 parking spaces to 6 for construction of an office/warehouse building on property owned by the Appellant and located at 13 North Edgewood Drive, Hagerstown, zoned Business Local - GRANTED DOCKET NO. AP2016-036: An appeal made by Brooke s House, Inc. for a special exception to establish a sober living facility on property owned by Downsville Lot C 20 LLC and located at 10533 Downsville Pike, Hagerstown, zoned Office, Research & Industry - GRANTED ****************************************************************************** Pursuant to the Maryland Open Meetings Law, notice is hereby given that the deliberations of the Board of Zoning Appeals are open to the public. Furthermore, the Board, at its discretion, may render a decision as to some or all of the cases at the hearing described above or at a subsequent hearing, the date and time of which will be announced prior to the conclusion of the public hearing. Individuals requiring special accommodations are requested to contact Kathy Kroboth at 240-313-2469 Voice, 240-313-2130 Voice/TDD to make arrangements no later than September 12, 2016. Any person desiring a stenographic transcript shall be responsible for supplying a competent stenographer. The Board of Appeals reserves the right to vary the order in which the cases are called. Please take note of the Amended Rules of Procedure (Adopted July 5, 2006), Public Hearing, Section 4(d) which states: Applicants shall have ten (10) minutes in which to present their request and may, upon request to and permission of the Board, receive an additional twenty (20) minutes for their presentation. Following the Applicant s case in chief, other individuals may receive three (3) minutes to testify, except in the circumstance where an individual is representing a group, in which case said individual shall be given eight (8) minutes to testify. Those Applicants requesting the additional twenty (20) minutes shall have their case automatically moved to the end of the docket. For extraordinary cause, the Board may extend any time period set forth herein, or otherwise modify or suspend these Rules, to uphold the spirit of the Ordinance and to do substantial justice. Matt Harsh, Chairman Board of Appeals
BEFORE THE BOARD OF APPEALS FOR WASHINGTON COUNTY, MARYLAND Edgewood Drive LLC Applicant Appeal No. AP2016-035 OPINION This action is a request for a variance from the minimum 10 left side yard setback (fronting Langley Drive) to 5 and from the minimum required 13 parking spaces to six spaces for the construction of an office/warehouse building. The subject property is located 13 N. Edgewood Drive, Hagerstown, Maryland; is owned by the Applicant; and is zoned Business Local. The Board held a public hearing on the matter on September 21, 2016. No opposition was presented to this request. Findings of Fact Based upon the testimony given, all information and evidence presented, and upon a study of the specific property involved and the neighborhood in which it is located, the Board makes the following findings of fact: 1. The Applicant seeks variances to allow for the construction of a 6,210 ft. 2 office/warehouse building on the subject property. 2. The property is improved with two buildings that will be demolished and replaced with the new building. 3. The building will be used as an accounting office and storage area for operations supporting 21 McDonald s restaurant sites. 4. The same use has occurred at the site for the past eight or nine years, but growth has led to the need for additional space. 5. There are six employees regularly working at this location. 6. There are six existing parking spaces onsite, and additional street parking along Langley Drive. 7. The most-affected neighboring property owner has no objection to the relief requested. (See Exhibit 1.) 1
Rationale The Zoning Ordinance requires a left side yard setback of 10 in the Business Local district and calls for 13 parking spaces for the proposed use. Sections 11.5 &22.12(b)(1). This Board has authority to grant a variance upon a showing of practical difficulty or undue hardship. 1 25.2(c) and 25.56. Practical Difficulty may be found by the Board when: (1) strict compliance would unreasonably prevent the use of the property for a permitted purpose or render conformance unnecessarily burdensome; and (2) denying the variances would do substantial injustice to the applicant and a lesser relaxation than that applied for would not give substantial relief; and (3) granting the variance would observe the spirit of the Ordinance and secure public safety and welfare. 25.56(A). The grant of the requested variances are appropriate given the circumstances presented here. The Applicant has demonstrated a practical difficulty if strict compliance with the Ordinance was required. The use of the property as proposed is permitted. Strict compliance with the Ordinance would require a reduction in the size of the building (thereby thwarting the purpose of the expansion which is to achieve the space necessary to adequately accommodate business operations) or the creation of unneeded parking areas. Unused and excess parking spaces would increase stormwater runoff from the property and serve no practical purpose. Given the size and shape of the lot and the business necessity determining the size of the proposed structure, a lesser setback relaxation is impracticable. Moreover, the lot size (and hence, the building envelope) was reduced when the SHA acquired property for a roadway expansion that never occurred. Finally, as six employees are regularly at the site, and as overflow parking is available along Langley Drive, we are confident that the parking space reduction variance will not undermine the intent of the Ordinance. For the foregoing reasons, we conclude that the grant of the requested relief observes the spirt of the Ordinance and secures public safety and welfare. Accordingly, this appeal is hereby GRANTED by a vote of 5 0. Date Issued: October 21, 2016 BOARD OF APPEALS By: Neal Glessner, Vice Chair 1 When the terms unnecessary hardship (or one of its synonyms) and practical difficulties are framed in the disjunctive ( or ), Maryland courts generally have applied the more restrictive hardship standard to use variances, while applying the less restrictive practical difficulties standard to area variances because use variances are viewed as more drastic departures from zoning requirements. Belvoir Farms Homeowners Ass'n, Inc. v. North, 355 Md. 259, 276 n.10 (1999) (citations omitted). 2
BEFORE THE BOARD OF APPEALS FOR WASHINGTON COUNTY, MARYLAND Brooke s House, Inc. Applicant Appeal No. AP2016-036 OPINION This action is a request for a special exception to establish a sober living facility. The subject property is located at 10533 Downsville Pike, Hagerstown, Maryland; is owned by the Downsville Lot C 20 LLC; and is zoned Office, Research & Industry. The Board held a public hearing on the matter on September 21, 2016. No opposition was presented to this request. Findings of Fact Based upon the testimony given, all information and evidence presented, and upon a study of the specific property involved and the neighborhood in which it is located, the Board makes the following findings of fact: 1. The Applicant seeks a special exception to establish a sober living facility on the subject property. 2. The property is approximately 20 acres in area, and a five- or six-acre parcel will be subdivided to create the site for the proposed facility. The precise location of the lot will be determined as site engineering progresses. 3. The proposed facility is a structured residential setting for those recovering from drug addiction. 4. The structure is proposed to be approximately 8,300 ft. 2 in area, with eight doubleoccupancy living units; common areas for dining, meetings, and counselling; and office and library areas for facility administration and individual training and education. 5. The facility is meant to provide a coordinated and intentional recovery setting for residents after they have completed medical detoxification, an inpatient treatment program, and a halfway house stay. 6. It will have curfews and house rules governing residents. 7. Length of stay is estimated to be from three to twelve months. 1
8. Neither onsite nursing care nor counselling will be provided, but one to four fulltime employees and two to three part-time employees are expected to support the recovery process and operate the facility. 9. The use conforms to the Plan and will be compatible with the existing neighborhood. The existing neighborhood is sparsely populated; has few, if any residential uses; and has commercial uses in the immediate proximity, including a construction company and a satellite dish telecommunications installation. Rationale The Board has authority to grant a special exception pursuant to Section 25.2(b) of the Zoning Ordinance for Washington County, Maryland. A special exception is defined as a grant of a specific use that would not be appropriate generally or without restriction; and shall be based upon a finding that the use conforms to the plan and is compatible with the existing neighborhood. Article 28A. In the Office, Research, and Industry (ORI) zone, a special exception may be granted for any other use that the Board finds functionally similar to any principal permitted or special exception use allowed in the ORI zone. Section 21B.2(e). The ORI zone is to provide appropriate locations for a broader mixture of uses than are permitted in the ORT or other industrial districts. Section 21B.0. The permitted uses can be compatible amongst themselves and with adjacent development due to a low level of nuisance inherent in the use or through required strict adherence to specific performance standards. Id. We are persuaded that the use falls within the purpose of the ORI zone. It has a low level of nuisance inherent in the use and will not promote incompatibility with adjacent uses. We conclude that a sober living facility is functionally similar to educational institutions including, but not limited to, business and trade schools and colleges and hospitals, including other health related facilities but not including nursing and residential care facilities. These uses are principal permitted uses in the zone. While there are admittedly some obvious distinctions between the identified principal permitted uses and the proposed use, there are functional similiarties as well. The use will have a residential component with shared common areas, just as one would find at trade schools and colleges. Likewise, other health related facilities (but not nursing or residential care facilities) contemplate the coming and going of patients as they seek services to improve their health, just as is proposed with this sober living facility. The residents will be expected to secure jobs during their recovery progresses and travel to counseling and other health-related appointments. The facility will not be locked. Thus, residents will leave the facility for work or counselling and then return to it for recovery 2
support and residence. This site is remote from downtown areas, thus providing a secluded and buffered location for recovery efforts. It is remote from other residential uses and is surrounded by undeveloped land, a construction company headquarters, and a satellite dish facility. The use is compatible with the neighborhood and conforms to the provisions of the Comprehensive Plan. There was no evidence showing that the use would have any greater adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone. Schultz v. Pritts, 291 Md. 1, 15 (1981). Rather, this site and its surrounding uses suggest that it will have a lesser impact here than it would in a more-developed area of an ORI zone. As such, the grant of the special exception is warranted. Accordingly, this appeal is hereby GRANTED by a vote of 5 0. Date Issued: October 21, 2016 BOARD OF APPEALS By: Neal Glessner, Vice Chair 3