Bar Bulletin

June, 2004

 BAR BULLETIN FOCUS
 June 15, 2004

Environmental Law  

VARIANCE: LEARNING TO LOVE
THE CHESAPEAKE BAY CRITICAL AREA PROGRAM

By Peter Max Zimmerman

There has been a variance struggle affecting land development on the Chesapeake Bay. It has split the Maryland Court of Appeals with unusual intensity. It has also generated two pieces of legislation designed to overrule high court decisions. Most recently, in its 2004 session the General Assembly passed Bill 1009 to amend and strengthen Chesapeake Bay and Atlantic Coastal Bays Critical Area Protection Program variance standards. The legislators moved in response to the 2003 decision in Lewis v. Department of Natural Resources. Governor Robert L. Ehrlich, Jr., signed the new law on May 26, 2004, and it will take its place in the Natural Resources Article of the Code.

In 2002, dissatisfied with three earlier court decisions upholding local zoning board approval of variances, the General Assembly had already amended the law to strengthen the standards. The legislative body saw the approvals as inimical to protection of the buffer, and thereby to water quality, natural habitat and the ecosystem. The 2002 law did not apply to the then-pending Lewis case. Nevertheless, in 2004 the Assembly found that Lewis also was “clearly contrary to the intent” of the statutory regime.

Land-use control laws traditionally provide for variances to afford property owners relief in unique situations where to apply the law would be oppressive. In 1984, the General Assembly inaugurated the Chesapeake Bay Critical Area program and created the Chesapeake Bay Critical Area Commission to oversee its enforcement. Within the program, it established a shoreline buffer of 100 feet as a key component. Along with the buffer, the legislature provided for variances to develop within the buffer and set a standard of “unwarranted hardship” based on a variety of factors.

Until 1999, there was no remarkable controversy. According to legislative findings, while most variances were granted, courts consistently sustained local decisions to deny variances. But then there came the series of Court of Appeals decisions culminating in Lewis. The 2002 legislative preamble expressed dissatisfaction with the court’s analysis of the variance criteria. Upon revisiting the issue, the 2004 legislature found that despite its 2002 effort the appellate opinions still influenced lower courts and agencies to make decisions contrary to the legislative intent and that Lewis compounded the problem.

Why has this conflict escalated? The 4-3 Lewis decision is 85 pages long, including majority and dissenting opinions and opinions on reconsideration. The catalyst for the split was that for the first time the majority reversed a discretionary zoning board denial of the variance, in contrast to the more routine upholding of an approval. Why was it not possible to resolve this case concisely and simply? There appear to be several causes. These include sharply different views of the statutory balance between protection of the bay and the rights of property owners and conflicting interpretations and applications of variance criteria, administrative law and expert evidence.

Property rights issues tend to be intractable and variance criteria elastic. Subtle changes in interpretation have significant impacts. The 1984 law required proof of denial of reasonable and significant use of a parcel or lot. If this criterion did not mean confiscation, what exactly was intended? Was the intended scope of inquiry to be the applicant’s entire property or only a portion? What difference did it make if there were room for development outside the buffer? What degree of need was important? Where was the line between hardship and convenience? Was an application for a hunting lodge to be given as much consideration as one for basic living quarters? What if the property owner developed in the buffer and later sought the variance to come into compliance?

What was to be done with a property owner’s expert testimony that it was better to develop in the buffer than outside it? What credit was to be given the Commission’s opposing qualitative expert evidence about adverse impact to the bay? What discretion did the board have to weigh expert evidence? Should the decision have considered the effect of development in isolation or its cumulative impact with other development?

Lewis had another dimension; there was disagreement about implementation of standards governing scope of judicial review of agency decisions. Was the court majority correct to find that the zoning board committed errors of law, the property owner’s experts were convincing and credible and the Commission’s opposing expert evidence lacked value? Or did the majority improperly substitute its judgment for that of the board, disrespect substantial evidence supportive of the denial and undermine the spirit and intent of the buffer law to protect the environment? Did the division on the court reflect underlying difficulty in the application of administrative law doctrine, differing interpretations or philosophies about property rights and the environment, or both?

Will the new legislation put an end to the disharmony between the branches of government? Will the court give local agencies more leeway to deny variances for reasons not sustainable under the 1984 law and precedents? Will the new law enable the court to reach a consensus? Will it resolve any disagreement over implementation of the standards governing the scope of judicial review?

Meanwhile, will Lewis affect traditional variance cases under local zoning law? The answer should be in the negative. The 1984 Chesapeake Bay law contained significantly different standards from those usually found in zoning ordinances; the facts in Lewis as described by the majority were extraordinary; and the case law under the Chesapeake Bay law is on a separate track from settled zoning variance case law.

When the dust settles, how will history view this affair? Is it an ongoing battle? Is it a disappearing ripple on the water? Does the shoreline buffer matter? Will the Chesapeake Bay ecosystem recover? That is the goal. Whatever happens, the rest is surely not silence. Variance cases will not go away.

Stay tuned…

Peter Max Zimmerman is People’s Counsel for Baltimore County, a Council member of the MSBA Environmental Law Section and active in appellate practice. He has taught environmental law at the Johns Hopkins University School of Hygiene and Public Health and been a panelist at various MICPEL conferences.

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