LUIS EMILLO GOMEZ AND JILL SUZANNE GOMEZ

Transcription

1 IN THE OFFICE OF ADMINISTRATIVE HEARINGS CASE NUMBER V LUIS EMILLO GOMEZ AND JILL SUZANNE GOMEZ THIRD ASSESSMENT DISTRICT DATE HEARD: AUGUST 20, 2015 ORDERED BY: DOUGLAS CLARK HOLLMANN ADMINISTRATIVE HEARING OFFICER PLANNER: JOAN A. JENKINS DATE FILED: SEPTEMBER 15, 2015

2 PLEADINGS Luis Emillo Gomez and Jill Suzanne Gomez, the applicants, seek a variance ( V) to allow a lot with less lot width than allowed on property located along the northeast side of Baltimore Annapolis Boulevard, east of Mount Oak Place, 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 affidavit of Walter Palmer and Mark Peria indicating that the signs were posted on August 5, 2015, were submitted into evidence as Applicants Exhibit 1. 1 I find and conclude that there has been compliance with the notice requirements. FINDINGS A hearing was held on August 20, 2015, in which the witnesses were sworn and the following was presented with regard to the proposed variance requested by the applicants. 1 Evidence was offered that the signs were not up every day of the required pre-hearing notice period. A reasonable person could conclude that more than weather was responsible for the absence of one or more of the signs on multiple days. However, in light of the testimony and evidence, and the fact that ten witnesses showed up at the hearing to testify about the variance application, the fact that this Office received numerous s and letters from neighbors before and after the hearing, and the fact that the Protestants were represented by counsel at the hearing, I conclude the notice requirements were met. 1

3 The Property The applicants own the subject property, which consists of 4.27 acres located on Baltimore Annapolis Boulevard (B&A Blvd), Annapolis, Maryland The property is identified as Parcel 360 in Block 1 on Tax Map 46. The property is zoned R1 Residential District and is not located in the critical area. The Proposed Work In order to subdivide the subject property and create Lot 1 as shown on County Exhibit 2, the applicants need a zoning variance of twenty-nine (29) feet to the 125-foot minimum width requirement of The Anne Arundel County Code provides that the minimum lot width at the front building restriction line is 125 feet. The Variance Requested The proposed work will require a zoning variance of twenty-nine (29) feet to the 125-foot minimum front building restriction line requirement of to allow the creation of Lot 1 with 96 feet at the front building restriction line as 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 the subject property is an existing parcel of land that has never been subdivided. It is long and narrow and, at 4.27 acres, has sufficient density for three lots. The applicants propose to subdivide the property into Lot 1, with 2

4 41,862 square feet of land, Lot 2, with 58,917 square feet of land, and Lot 3, with 84,386 square feet of land. Proposed Lots 2 and 3 comply with the lot area and lot width requirements of the Code. Lot 1 exceeds the required lot area but does not meet the required lot width for a lot in the R1 district. The land is approximately 94 feet wide at the road and gradually widens over 426 feet to approximately 109 feet at the proposed rear lot line. A review of the County aerial photograph for the year 2014 shows the subject property and the neighborhood. The subject parcel is a wooded strip of land between Mount Oak Estates to the northwest and The Meadows and Great Meadow to the southeast. Both Mount Oak Estates and the Meadows are zoned R1 and have lots in excess of one acre, while the Great Meadows subdivision is composed of homes on half-acre lots. Proposed Lot 1 abuts both Mount Oak Estates to the northwest and Great Meadows to the southeast. The Health Department commented that it has evaluated the onsite sewage disposal and well water supply system and determined that the proposed request does not adversely affect these systems and therefore has no objection. The Development Division (North Team) reviewed the variance request for planning, environmental and landscaping requirements and had no adverse comments. Ms. Jenkins testified that a determination must be made as to whether because of certain unique physical conditions there is no reasonable possibility of developing the lot in strict conformance with the Code requirements, and whether 3

5 the grant of a variance is necessary to avoid practical difficulties and enable the applicants to develop the lot. Lot 1 is narrow along the road, being 94 feet, well below the minimum required width of 125 feet, yet the proposed Lot 1 exceeds the minimum lot size of 40,000 square feet in the R1 district. Denial of the requested variance would deprive the applicants of the rights enjoyed by others by preventing the subdivision of this 4.27 acre R1 zoned Parcel into three lots. Lot 1 will be consistent in area with other lots in the area and would not alter the essential character of the neighborhood. The granting of this variance request would not substantially impair the appropriate use or development of adjacent properties since the lot can be developed with a dwelling that will not require additional variances. The request appears to be the minimum necessary to afford relief. Based upon the standards set forth in under which a variance may be granted, Ms. Jenkins testified that OPZ recommends approval of the requested variance. The applicants were not present at the hearing. They were represented by Harry C. Blumenthal, Esquire, who presented evidence through Shep Tullier, who was accepted as an expert in land planning and development. Mr. Tullier testified, among other things, that each lot met the minimum lot size and that denial of the requested variance would cause the applicants a practical difficulty in not being able to subdivide the property and create three residential lots. The land to the north of Lot 1 is in the Mount Oak Estates subdivision and zoned R1, while the lot 4

6 to the south is in the Great Meadow subdivision and zoned R2. Had the subject property been zoned R2, no variance would be necessary. Allowing the property to be subdivided into three lots, one of which would be the proposed Lot 1 on B&A Blvd would not alter the neighborhood. No other variances are necessary to allow the proposed subdivision. Susan T. Ford, Esquire, of Council Baradel, represented Michael G. Mullen and Deborah M. Mullen who live at 1751 Meadow Hill Drive, directly adjacent to proposed Lot 3. The Mullens built their home in 1994 and assumed that the subject property would remain a buffer between the Meadows, zoned R2, and Mount Oak Estates, which is zoned R1. Roy Little, a recognized expert in the field of engineering and development, testified that the proposed plan (County Exhibit 2) did not meet the requirements of (a). The plan does not show the R2 zoning division line, the forested areas, steep slope topography, or proposed stormwater management devices. Mr. Little then switched from being an expert witness to being a fact witness when he disclosed that he was, in the past, the owner of Lot 10 in Mount Oak Estates, which is directly adjacent to the north side of the proposed Lot 1 in this application. Numerous other neighbors spoke in opposition to the requested variance in addition to Mr. & Mrs. Mullen. Most were residents of Mount Oak Estates to the 5

7 north (Timothy Winter, Lot 10; 2 Lane Jerdal, Lot 6; Stacey Manis, Lot 5). Some witnesses live in Great Meadow (Mark Duehmig - Lot 39; Shawn Stusek, Lot 1). Letters in opposition were received from Marty & Ann Sherman (203 Mount Oak Place Lot 9), Andrew & Lynn Jerdal (205 Mount Oak Place Lot 8), Ryan & Shannon Grossman (207 Mount Oak Place Lot 7), Thomas & Judy Hollerbach (213 Mount Oak Place Lot 4), Joi & Michael Remoll (217 Mount Oak Place Lot 1), and Gale & Warwick Fairfax (208 Mount Oak Place Lot 11), all of whom live in Mount Oak Estates. Letters in opposition were received from other nearby residents as well: Melissa Hagan (1760 Meadow Hill Drive), James & Lauren Burleigh (1722 Deacon Way), David Farnie (1710 B&A Blvd), Jim & Diana Lambert (1741 Long Green Drive), Paula & Bob Schnabel (address not given), Jeffrey Edwards (1757 B&A Blvd), Alan M. Switzman (1939 High Ridge Road), Mary Wolf & John Holland (1720 Long Green Drive Lot 40), Bart & Beth Hiltabidle (215 Meadow Gate Drive), and Deanna & Douglas Coe (1718 (Deacon Way). 3 2 The lot number references are to the lot numbers on the site plan County Exhibit 2. 3 Variances are not granted or denied based on whether neighbors approve or disapprove a particular request for relief from the Code. Otherwise, property owners who are perceived as nicer than others will get more variances than they should. Having said that, however, knowing the reaction of neighbors to a request for a variance can be very helpful in assessing whether the variance should be granted. 6

8 DECISION 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 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 7

9 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. 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 applicant 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 8

10 acceptable clearing and replanting practices required for development in the critical area, or (6) be detrimental to the public welfare. Findings - Zoning Variance The property is long and narrow. The applicants wish to subdivide the property into three lots. Subdivide is defined in (84) as the division of land so as to create two or more lots provides that a lot [in a subdivision] shall be no less than that required by Article provides that a lot in an R1 district shall have an area of 40,000 square feet and a width of 125 feet at the front building restriction line. Proposed Lot 1 will have a width of 96 feet at the front building restriction line, which is 29 feet less than what is required for The Protestants testified that the subject parcel was intended to be left as a buffer between Mount Oak Estates to the north and Great Meadow and the Meadows subdivisions to the south. No legal justification was offered into evidence for this claim. A title search revealed language in a deed dated August 2, 1971 in which the grantor deeded the property to a prior owner and included a provision that the property shall not be subdivided during the lifetime of the grantor. The restriction shall become null and void and have no force or effect if the grantor conveys any parts or parcels of the balance of the tracts of land known as Bayberry Farm Nursery without making said land subject to the same restriction as hereinabove written with each conveyance. 9

11 No evidence was offered that the grantors in the 1971 deed were still living, or that the rest of Bayberry Farm Nursery had been subdivided with the subdivision prohibition contained in the deeds. However, even if either of these conditions could be met, this Office cannot enforce a private covenant between land owners. Therefore, the belief that the property would remain a buffer between the two residential subdivisions either side of it is not a factor in deciding whether the requested width variance should be granted. In effect, reaching such a decision, without more, would cause the applicants to donate the subject property to the general well-being of the owners of land in the adjoining subdivisions. The Protestants also believe that the variance should be denied because the property is not unique in the sense that the land itself gives rise to the need for the variance. In this they are correct. There are steep slopes to the rear of the property (Protestants Exhibit 2) but there is nothing unique about proposed Lot 1 except that it is narrower than permitted in the R1 district. A variance, therefore, cannot be granted because of any uniqueness of the property. The Protestants also argue that the applicants would not suffer practical difficulties or unnecessary hardship if the variance were denied because they can still develop the property with one dwelling. This is true. However, the applicants seek to subdivide the property into three lots. Therefore, denial would create practical difficulties or an unnecessary hardship for the applicants. The property is only narrow at the B&A Blvd end. The need for the variance was not created by the applicants. The property lies between an R1 district (Mount Oak Estates) and 10

12 an R2 district (Great Meadow). The property would meet the width requirement for a lot in an R2 district (80 feet) if it were zoned the same as Lot 36 which adjoins it to the south. This is not a situation where the entire long and narrow lot does not meet the width requirements for a lot in the R1 district, or if other variances were needed. Given those circumstances, one could rightly argue that a variance would be shoe-horning a substandard lot into an R1 district. Here, however, the only part of the shoe that does not fit the foot is a small area near the front of the property. The requested variance is reasonable. Denial would, therefore, cause an unwarranted hardship sets out additional requirements that an applicant must meet in order to be granted a zoning variance: (1) The variance is the minimum variance necessary to afford relief. Given the fact that the property meets the zoning requirements next door (R2) as to width, and the requested variance is less than 20% of the required width only at the building restriction line (i.e, the property expands to the rear and becomes conforming as to width), the requested variance is the minimum needed. (2) The granting of the variance will not alter the essential character of the neighborhood or district in which the lot is located. The proposal is to develop the property with residential dwellings. The property is surrounded by residential dwellings. The proposed lots will be larger than many of the adjoining lots. Therefore, the variance will not alter the essential character of the neighborhood or district in which the lot is located. 11

13 (3) The granting of the variance will not substantially impair the appropriate use or development of adjacent property. Given the surrounding neighborhood, which is already developed with residential dwellings, the granting of the variance will not substantially impair the appropriate use or development of adjacent property. (4) The granting of the variance will not reduce forest cover in the limited development and resource conservation areas of the critical area. This requirement is inapplicable because the property is not in the limited development and resource conservation areas of the critical area. (5) The granting of the variance will not be contrary to acceptable clearing and replanting practices required for development in the critical area. This requirement is inapplicable because the property is not in the limited development and resource conservation areas of the critical area. (6) The granting of the variance will not be detrimental to the public welfare. The property is zoned residential. The proposal is to develop the property with dwelling units. As discussed above, the proposed variance is minimal. No variances are needed for Lots 2 or 3. The granting of the variance will not be detrimental to the public welfare. 12

14 ORDER PURSUANT to the application of Luis Emillo Gomez and Jill Suzanne Gomez, petitioning for a variance to allow a lot with less lot width than allowed, and PURSUANT to the notice, posting of the property, and public hearing and in accordance with the provisions of law, it is this 15 th day of September, 2015, ORDERED, by the Administrative Hearing Officer of Anne Arundel County, that the applicants are granted a zoning variance of twenty-nine (29) feet to the 125-foot minimum front building restriction line requirement of to allow the creation of Lot 1 with 96 feet at the front building restriction 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 foregoing variance is subject to the applicants complying with any instructions and necessary approvals from the Permit Application Center and the Department of Health, including but not limited to any direction regarding the use of nitrogen removal system technology and mitigation plantings. 13

15 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. 14

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