IN THE OFFICE OF ADMINISTRATIVE HEARINGS

CASE NUMBER 2015-0151-V ______________________________________________

MICHEL BOUCHARD AND LINDA BOUCHARD

FIRST ASSESSMENT DISTRICT

DATE HEARD: SEPTEMBER 15, 2015

_______________________________________________

ORDERED BY:

DOUGLAS CLARK HOLLMANN ADMINISTRATIVE HEARING OFFICER

PLANNER: SARA ANZELMO

______________________________________________

DATE FILED: OCTOBER 8, 2015

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PLEADINGS

Michel Bouchard and Linda Bouchard, the applicants, seek a variance

(2015-0151-V) to allow a pier with less setbacks than required on property located

on the north side of Calawasse Road, northwest of Carrs Wharf Road, Edgewater.

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. Michel Bouchard 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 15, 2015, in which witnesses were sworn

and the following evidence was presented with regard to the proposed variance

requested by the applicants.

The Property

The applicants own the subject property, which has a street address of 3902

Calawasse Road, Edgewater, Maryland 21037. The property is identified as

Parcel 178 in Block 22 on Tax Map 60 and is zoned R2-Residential District. This

waterfront lot on the Rhode River is designated in the Chesapeake Bay Critical

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Area as limited development area (LDA) and is also mapped in a buffer

modification area (BMA).

The Proposed Work

The applicants propose to construct an 80-foot pier consisting of a 4' by 68'

main pier section with an additional 10' by 12' platform extension. Also proposed

is a 4' by 25' pier access (walkway) over land, all as shown on the site plan

admitted into evidence at the hearing as County Exhibit 2. The proposed pier will

be located zero feet from the north side lot line extended.

The Anne Arundel County Code § 18-2-404(c) provides that a pier or mooring piling shall be located at least

15 feet from a lot line extended.

The Variance Requested

The proposed work will require a zoning variance of fifteen (15) feet to the

15-foot extended side lot line setback requirements of § 18-2-404(b) to construct

the proposed pier as close as zero feet from the north side lot line extended 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 in favor of granting the requested variance. The property is slightly

irregular in shape and is substantially undersized. While the lot has 50 feet of road

frontage, it is angled and is only about 32 feet wide at the front building restriction

line, which is far narrower than the 80-foot minimum lot width required by today’s

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Code standard. Furthermore, at only 11,064 square feet, the lot is smaller than the

minimum 15,000 square foot area required for a lot served by public sewer in an

R2 district.

Typically, a lot with at least 50 feet of water frontage can accommodate a

six-foot wide pier, a platform and pilings within the required 15-foot setbacks. In

this case, however, the narrowness of the lot and limited water frontage, combined

with the fact that the piers on the two properties to the west are located extremely

close to their northeast side lot lines extended, makes compliance with the Code

requirements problematic.

Ms. Anzelmo testified that review of the 2014 County aerial photograph

shows that most waterfront properties in the immediate area contain piers, the vast

majority of which also have platforms. The two adjacent properties to the west

both contain piers that do not meet the minimum setback requirements from the

northeast side lot line extended. In fact, the pier on the lot immediately adjacent to

the west is located approximately one-foot from the lot line shared with the subject

property, causing the need for a similar shift eastward of the proposed pier. It is

unclear exactly when the two piers to the west were originally constructed, but

piers can be seen on County aerial photographs at that location as far back as the

earliest aerial in 1952. Thus, the original piers predated the enactment of zoning

regulations, including minimum pier setback requirements.

The proposed pier and platform have been sited so as to not impede

navigation to any abutting property. The new pier will exceed the minimum 15-

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foot setback requirement from the southwest side lot line extended, allowing

ample room (approximately 22 feet) for maneuverability between the piers and

room to moor a boat either at the north end or west side of the platform while

remaining within the applicants’ own water area. The property to the east is

vacant, but already contains a pier and a dilapidated boathouse, both of which are

located more than 170 feet away from the proposed pier.

The owner of the parcel to east has provided a letter expressing concern that

the proposed pier location will have a negative impact on the value of his property,

which is currently listed for sale, while increasing the value of the subject

property. The protestant’s letter assumes that the owner at 3902 “must have

agreed to a pier on 3904” and suggests that the variance should encroach in the

direction of 3904 Calawasse Road rather than in the direction of his property at

3900. However, the aforementioned aerial photo research by OPZ indicates that

piers existed on both properties to the west prior to zoning regulations; therefore,

variances and permits would not have been required.

Ms. Anzelmo testified that during a phone conversation with OPZ, the

protestant expressed additional concern not mentioned in the letter regarding the

impact on his property if it were to be subdivided in the future. Should 3900

Calawasse meet all the requirements for subdivision approval, the parcel area

would allow two lots with a minimum 80-foot width. Therefore, a newly-created

lot immediately to the east of the subject property would still have ample room (at

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least 80 feet of water frontage) to construct a pier with adequate navigability and

without the need for variances.

The Development Division (Critical Area Team) has no objection to the

requested placement of the pier based on the location of the existing neighboring

piers. A building permit application must be applied for through Anne Arundel

County, and final authorization to construct must be issued through a Maryland

Department of the Environment Tidal Wetlands License.

The Health Department has evaluated the well water supply system for the

subject property and has determined that the proposed request does not adversely

affect this system. The Department has no objection to the request.

In this case, Ms. Anzelmo testified that the extremely narrow lot,

compounded by the location of the two existing piers to the west, causes the need

for the proposed pier to shift eastward, resulting in the requested setback variance.

Denial of the variance would cause hardship in the use of the subject property by

denying the applicants the right to construct a private pier on their existing

residential lot, which is a typical amenity of waterfront properties within the

surrounding neighborhoods.

Approval of the variance will not alter the essential character of the

neighborhood, as the proposed pier will be located similarly to those on the two

lots to the west and will be similar in length and configuration to other piers within

the surrounding neighborhood. The variance will not impair the appropriate use or

development of adjacent property, as there will be ample room for safe

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navigability between the proposed pier and the existing piers on adjacent 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 in § 18-16-305 under which a variance

may be granted, Ms. Anzelmo recommends approval of the requested zoning

variance.

Linda and Michel Bouchard adopted the findings and recommendations of

OPZ and pointed out that the narrowness of the lot and the location of the existing

pier to the southwest on the common lot line prevents them from having a pier

without a variance.

Walter Vollberg testified that he owns the property to the east and has plans

to subdivide his parcel once sewer is available. He thought the proposed pier

would reduce the value of his property and interfere with his plans to develop his

lot. He requested that the proposed pier be shifted away from his property.

There was no other testimony taken or exhibits received in the matter. The

Hearing Officer did not visit the property.

DECISION

Requirements for Zoning Variances

§ 18-16-305 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

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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.

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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

acceptable clearing and replanting practices required for development in the

critical area, or (6) be detrimental to the public welfare.

Findings - Zoning Variance

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

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develop the lot. OPZ’s findings and recommendations are adopted herein. The

applicants cannot develop this waterfront property with a pier. Mr. Vollberg’s

objection cannot be supported because it would mean that the applicants would be

denied a pier, something Mr. Vollberg has (as well as a boathouse). Also, Mr.

Vollberg’s plans are speculative and may never come to pass. His improvements

are 170 feet away from the proposed pier and will not be affected by the

construction of the pier or by boats operating from it.

I further find that the requested variance is the minimum variance necessary

to afford relief, that the granting of the variance will not alter the essential

character of the neighborhood or district in which the lot is located, 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, 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 Michel Bouchard and Linda Bouchard,

petitioning for a variance allow a pier 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 8th day of October, 2015,

ORDERED, by the Administrative Hearing Officer of Anne Arundel

County, that the applicants are hereby granted a zoning variance of fifteen (15)

feet to the 15-foot extended side lot line setback requirements of § 18-2-404(b) to

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construct the proposed pier as close as zero feet from the north side lot line

extended 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 subject

property in the locations shown therein.

The applicants shall comply with the following conditions:

A. 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.

B. Any instructions and necessary approvals from the Maryland Department

of the Environment and the United States Army Corps of Engineers.

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.

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Further, § 18-16-405(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) obtain 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.