Stansbury v. Jones

Dissenting opinion by

WILNER, J.,

in which RAKER, J., joins

The Board of Appeals for Anne Arundel County denied a set of fifteen requested variances upon a determination that the need for the variances was self-created by the applicant, Nancy Stansbury. That finding was amply supported by the evidence before the board. Proclaiming the issue to be one of law rather than fact, however, this Court simply weighs the evidence differently and concludes that the need for the variances, as a matter of law, was not self-created. With respect, I dissent from both the conclusion and the analysis employed by the Court. It ignores the relevant facts and it ignores the relevant law.

Scattered throughout the opinion are some general statements with which I agree. Early in the opinion, for example, the Court states that “[w]hen a property owner does that which is permitted, or required, under a zoning code, that property owner is not necessarily creating an automatic hardship for purposes of the self-created hardship standards of variance provisions.” (Emphasis added). That is true. Later, the Court confirms the proposition that the mere purchas *212 ing of land subject to a contingency that a needed variance will be granted also does not constitute a self-created hardship. I agree with that as well, and with the further statement that “subdividing property in accordance with all applicable statutes does not, generally, constitute a self-created hardship with respect to the property within the subdivision.”

Where the Court goes astray, in my view, is extending those valid precepts to reach the wholly unwarranted conclusion that, when an owner knowingly re-subdivides property in a way that may otherwise be lawful but that, in an effort to maximize the overall economic value of the land, deliberately and unnecessarily creates one or more odd lots that do not comply with known applicable land use requirements, the owner cannot be denied the variances necessary to excuse compliance with those requirements on the ground of self-inflicted hardship. The Court thus seems to hold that, because the re-subdivision is not itself unlawful, the owner can deliberately create non-conforming lots and nonetheless be eligible for the necessary variances. That is an extraordinary extension — one that essentially stands the doctrine of self-inflicted hardship, and, indeed, land use law itself, on its head. No authority truly in point is cited for the extension, and for good reason. None supports it. Indeed, the authority truly in point, either dismissed or ignored by the Court, establishes exactly the opposite..

It is important to consider what actually occurred here. The original tract consisted of 347 acres. In 1924, most of the tract was subdivided into approximately 157 small rectangular lots, most of which were only 50 feet wide and ranged in size from 15,000 to 20,000 square feet (essentially between one-third and one-half an acre). 1 Until the 1990’s, the land remained undeveloped. Ms. Stansbury and her brother, James, inherited the property from their father in 1985.

*213 At some point early in 1986, James made inquiry of the Anne Arundel County Office of Planning regarding the buildable status of the lots. In March, 1986, he was advised, in relevant part, that, although the subdivision was not subject to the 1970 subdivision regulations adopted by the county, he would be “required to combine whole lots to create building sites in order to meet setback requirements and the requirements of the Health Department.” The Office explained that, under the current R 1 zoning, there was a minimum front setback of 40 feet, a minimum rear setback of 35 feet, and a minimum side setback of 15 feet. The letter also noted that three of the lots did not have “legal access” and, unless combined with other lots, would not be individually buildable. Finally, the letter advised that, although the Critical Area regulations recently adopted by the State would not affect the property, if the property was developed after the county enacted the environmental laws mandated by the Critical Area Protection Act, the property would be subject to the critical area laws.

On January 1, 1987, the county adopted an Antiquated Lots Law, which required the owners of more than one contiguous substandard lot to combine the non-conforming lots in order to meet current lot size and width standards. Under that ordinance, the Stansburys were required to reconfigure the 1924 lots in order to meet a minimum lot size of 40,000 square feet and a minimum lot width of 80 feet. In August, 1988, the county adopted its first permanent critical area law, under which the undeveloped subdivision was classified as a Resource Conservation Area (RCA) — the most environmentally sensitive of the three categories provided for in the Critical Areas Law. In February, 1989, the county comprehensively rezoned the undeveloped subdivision to RLD (Residential Low Density). That zoning also required a minimum lot size of 40,000 square feet, as well as a minimum lot width of 150 feet, and it limited density to one unit per five acres. Few, if any, of the 1924 lots owned by the Stansburys met those requirements. If the property was to be developed, the lots would have to be combined.

*214 In December, 1990, the Stansburys submitted an application for re-subdivision. The new plat proposed 37 lots, most of which did not meet either the applicable lot size or lot width requirements. The plat also proposed the clearing of 44% of the critical area woodlands, although the regulations applicable to an RCA area limited the clearing to 20 percent. Initially, the plat showed the lot at issue here as part of an open space and storm water management area and not as a reserved lot. It appears — although the record is scant on this — that revised plans submitted in April, 1991, detached the parcel in question from the open space area and designated it as a reserved lot. Notwithstanding the failure of the proposed lots to meet the applicable size and width standards, the revised plat was approved in July, 1991. The only reference to the reserved lot — identified as Reserve Parcel No. 2 — in the county’s file is a handwritten notation on the Administrative Plat that the lot was “unbuildable until a passing perc test is performed.” The evidence showed that this notation was added to the plat by a county official because the lot had recently failed a percolation test. The implication was not necessarily that the lot would be buildable if it did pass a percolation test but that it clearly would not be unless it did.

Following approval of the re-subdivision, the Stansburys began to market the new lots. In doing so, they emphasized the value of the reserved lot to adjoining lots, and they charged a significant premium for those lots. Evidence was presented that Ms. Stansbury told one buyer that, because the reserved parcel contained critical area wetlands and open space, it could never be developed and that his lot would cost more because the reserved parcel would “provide a buffer and enhance the value and enjoyment” of his lot. Buyers of other lots were charged premiums of up to $10,000 because of the unrestricted view they would have of the pristine reserved parcel.

In 1996, after most of the 37 lots were sold, Ms. Stansbury decided to develop the reserved lot and applied for a septic system permit for that lot. Because the lot had failed several percolation tests, however, compliance with the applicable *215 requirements for a standard septic system, which required a 10,000 square foot drainfield area, proved to be a problem. Therefore, Ms. Stansbury sought to avoid those requirements. In July, 1997, having purchased her brother’s interest through a bankruptcy proceeding, she sought a waiver of the subdivision ordinance, which would have made the parcel a “legal lot” and permitted her to use an alternative septic system. No notice of the application for waiver was given to the residents of the subdivision — the persons from whom she had extracted a premium based on the reserve lot remaining undeveloped.

In September, 1997, the county granted a conditional waiver, but even that proved to be ineffective, as the county health department construed one of the conditions as still requiring the 10,000 square foot drainage area. In January, 1998, after repeated failures, the parcel finally passed a percolation test, and the health department approved a standard septic system, •with the 10,000 square foot drainfield. Unfortunately for Ms. Stansbury, that drainfield could only be placed on a small flat portion of the lot and, given the topography of the lot, that served to restrict the buildable area in a way that rendered the lot non-buildable absent the granting of fifteen variances. That is the hardship upon which Ms. Stansbury relies. That is the hardship that the Court finds, as a matter of law, was not self-inflicted.

What was significant to the Board of Appeals, and what the Court simply ignores, is that, when Stansbury and her brother re-platted the property in 1991, all of the applicable land use controls that made the reserve parcel non-buildable absent the granting of variances were in place. They knew, or at least should have known, when they went about reconfiguring the property that, if they re-platted it as they did, they would likely end up with a non-conforming lot. Evidence was presented to the board from David Blaha, a land and environmental planner whom the board accepted as an expert, that the property could have been re-subdivided to provide either a reserved parcel or a thirty-eighth legal lot that would not have encroached on steep slopes or the critical area buffer and that would not, therefore, have needed any of the requested vari *216 anees. He offered exhibits to show how that could have been done. His testimony was unrebutted and was found by the board to be persuasive.

In reaching its conclusion that the need for fifteen separate variances was not self-created, as a matter of law, the Court dismisses as inapplicable Maryland and out-of-State cases pointing to an exactly opposite conclusion. I believe that the Maryland and out-of-State cases are in point. Moreover, they are consistent with other out-of-State cases that the Court fails even to cite. Let me deal first with the Maryland cases.

In Salisbury Bd. v. Bounds, 240 Md. 547 , 214 A.2d 810 (1965), the owner purchased a large frame house that had been a single-family residence and desired to convert it to four apartments. The zoning law required both a permit for such conversion and a minimum of 2,500 square feet per apartment. As the house contained less than 10,000 square feet, it could accommodate only three apartments. Nonetheless, the owner proceeded to build four apartments without obtaining the necessary permit and, upon discovering his mistake, sought a variance. Holding that he was not entitled to one, we followed the law as stated in 2 Arden H. Rathkopf & Daren A. Rathkopf, The Law of Zoning and Planning § 48-1, that, in order to be entitled to a variance on the ground of hardship, the restrictions of the ordinance, coupled with the unique circumstances affecting the property, must be the cause of the hardship. Thus:

“If the peculiar circumstances which render the property incapable of being used in accordance with the restrictions contained in the ordinance have been themselves caused or created by the property owner or his predecessor in title, the essential basis of a variance, i.e., that the hardship be caused solely through the manner of operation of the ordinance upon the particular property, is lacking. In such case, a variance will not be granted; the hardship, arising as a result of the act of the owner or his predecessor will be regarded as having been self-created, barring relief. This rule is simple and of general application in the several states.”

*217 Salisbury Bd. at 554, 214 A.2d at 814 (emphasis in last two sentences added). Noting that, aside from the fact that the hardship was self-inflicted, it was also shown to be “of a purely financial nature,” we concluded that the case “fits squarely within the above general rule.” Id. at 555 , 214 A.2d at 814-15 (emphasis added).

We followed that reasoning in Randolph Hills v. Mont. Co. Council, 264 Md. 78 , 285 A.2d 620 (1972). The developer there purchased a residentially zoned tract of 380 acres, part of which abutted a railroad right-of-way. It developed most of the tract for residential purposes but deliberately left undeveloped a wedge of the property, approximately 1,900 feet long, of which 1,600 feet ranged only from 50 to 100 feet in width, bordering the right-of-way. The developer, claiming hardship, then sought a special exception to permit that wedge to be used for the parking of motor vehicles in conjunction with some industrial land lying to the north. The zoning agency denied the request on the ground that any hardship was self-created, and we affirmed. Confirming again our adherence to the general rule as stated by Rathkopf, we noted our complete agreement with the view of the Circuit Court that “ ‘the use of the particular ground in question is restricted because the applicant chose to develop as it did.’” Id. at 82, 285 A.2d at 622 (quoting the opinion of the Circuit Court). See also Montgomery County Council v. Kacur, 253 Md. 220 , 252 A.2d 832 (1969).

The Court dismisses Salisbury Bd. (and the similar case of Marino v. Mayor and City Council of Baltimore, 215 Md. 206 , 137 A.2d 198 (1957)) on the curious ground that the action creating the hardship was taken “without any consideration by the appropriate city entities as to whether the conversion complied with local zoning provisions,” and it dismisses Randolph Hills and Kacur on the ground that they involved requests for reclassification, rather than for variances, and are therefore governed by the “change/mistake” rule. I fail to see how either constitutes a distinction. What the Court simply ignores is the basis for those decisions — the general rule that one cannot rely on hardship to justify any discretionary *218 zoning change if the hardship was self-inflicted, and that a hardship will be regarded as self-inflicted if it was created deliberately and could have been avoided. As Rathkopf noted, that is the law throughout the country (except, after today, in Maryland).

The Rathkopfs continue in the belief that “[vjariances generally will not be granted when courts determine that the hardship was created by an affirmative act by the owner or his predecessor.” 3 Arden H. Rathkopf & Daren A. Rathkopf, The Law of Zoning and Planning § 58.21(Edward H. Ziegler, Jr. ed.2002). No distinction in this regard is drawn between requests for reclassifications and requests for variances, and, indeed, the quoted statement refers specifically to variances. They state:

“Division of property in such a fashion as to leave part in non-conformity with the minimum lot size, width, or frontage provisions is a common occurrence, and, on application for a variance for the lot thus rendered substandard, the hardship arising from the inability to put the substandard lot to use is usually considered self-created.”

Id.

The Rathkopfs note that, in some instances, evidence of good faith on the part of the applicant may suffice to eliminate the bar of self-creation of the hardship — as where the applicant has attempted to use alternatives to relieve the hardship prior to requesting a variance, or has relied on representations of zoning authorities, or had no actual or constructive knowledge of the requirements or limitations. None of those excuses applies to Ms. Stansbury, of course.

The Rathkopfs are not alone in their view. Most of the recognized commentators make the same point. See 5 Norman Williams, Jr. & John M. Taylor, American Planning Law § 146.01 (1985 rev.). Young makes the point that “[ajlthough there is some division of opinion as to whether the self-created hardship rule should be applied in area variance cases, there is general agreement that a variance may not be granted to the owner of a substandard lot where such lot was created by the *219 deliberate conduct of the applicant.” 3 Kenneth H. Young, Anderson’s American Law of Zoning § 20.59 (4th ed. 1996 & Supp. 2002). Until Sasso v. Osgood, 86 N.Y.2d 374 , 633 N.Y.S.2d 259 , 657 N.E.2d 254 (1995), New York did not generally apply the doctrine of self-created hardship to area variances, but even under that approach, which Sasso changed, the courts disapproved the granting of relief to owners of substandard lots that were created by the deliberate conduct of the applicant. See Chasanoff v. Silberstein, 6 N.Y.2d 807 , 188 N.Y.S.2d 194 , 159 N.E.2d 684 (1959); Kenny Dev. Corp. v. Kramer, 22 Misc.2d 122, 202 N.Y.S.2d 421 (1960).

Courts have routinely rejected any distinction between area and use variances in this regard and have denied area variances when the need for them has been self-created. In Sciacca v. Caruso, 769 A.2d 578 (R.I.2001), the applicant subdivided a lot into two lots knowing that the newly created undeveloped lot was not in conformance with dimension requirements and then sought a variance. The Rhode Island Supreme Court reversed the granting of the variance and rejected the notion that the doctrine of self-created hardship did not apply to area variances, finding no reasonable basis for such a distinction.

In Herman v. Board of Adjustment, 29 N.J.Super. 164 , 102 A.2d 73 (App.Div.1953), a subdivision plat was recorded in 1941. One of the lots—No. 13—had a frontage of 51 feet and a depth of 129 feet, which gave it an area of less than 7500 feet. In 1948, a zoning law was adopted that excluded from the general restrictive provisions of the ordinance previously recorded lots having a frontage of at least 50 feet and an area of at least 7500 square feet. Lot 13 was sold to Reid Development Company in 1949, although the deed was not recorded until March, 1950. Between the time of sale and the recording of the deed, an amendment to the zoning law was introduced that would have precluded the construction of a dwelling house on any lot with a frontage or depth such as that of Lot 13. While that bill was pending, the principal of Reid, an attorney, caused Reid to sell to his wife a number of the lots, including Lot 13, but assured that the lots sold to his *220 wife were interspersed with those retained by Reid, so that none of the ones sold to the wife were contiguous to one another. The deed, prepared in May, 1950, was not recorded until late September — six days before the ordinance was enacted. That ordinance was later invalidated for procedural reasons but was re-enacted in 1952. The 1952 ordinance also prohibited construction of a dwelling house on a lot with the frontage and size of Lot 13 but provided that a bona fide owner who acquired title to a lot having a frontage of less than 75 feet prior to the effective date of the ordinance could obtain a variance.

The wife applied for a variance, asserting as a hardship the lack of requisite frontage and the absence of contiguity with other lots that would allow a combination to meet the frontage requirement. The zoning board denied the variance, and the appellate court affirmed. The court focused on the absence of contiguity and questioned whether the isolation of the lot, occasioned by the interspersing of the lots conveyed to the wife with those retained by the husband’s corporation, was premeditated and contrived to circumvent the anticipated zoning regulations. That, it held, was an issue of fact, and the findings of the zoning agency were entitled to deference. As (until today) has been the well-established rule in Maryland as well, the New Jersey court applied the principle that the agency’s denial of a variance “is presumptively correct and proper and the party impugning the determination on appellate review encounters the burden of proving to the contrary.” Id. at 74-75. On the record in the case, the court affirmed the implicit finding of the agency that the isolation of the lot, which alone made it eligible for a variance, was “adroitly purposeful in an anticipated effort to avoid the restrictions of the expected ordinance” and therefore did not constitute an exceptional or undue hardship. Id. at 77.

In In Re Volpe’s Appeal, 384 Pa. 374 , 121 A.2d 97 (1956), the petitioner purchased - two lots — Lots 14 and 15. They contained a total of 32,500 square feet but neither contained 20,000 square feet. The zoning law precluded building on a lot with less than 20,000 square feet. In 1949, the petitioner *221 conveyed all of Lot 15 and a portion of Lot 14 — a total of 20,130 square feet — to Foster, who erected a house on the property. That left petitioner with a portion of Lot 14 consisting of less than 12,500 square feet. He then sought a variance with respect to Lot 14, claiming hardship. The agency denied the request and the Pennsylvania Supreme Court affirmed, holding that any hardship was self-created “with full knowledge of the restrictions in the zoning ordinance.” Id. at 100. The court noted the obvious, that “[i]f we were to hold that this petitioner suffered unnecessary hardship, every other property owner in the area classified ‘AA’ residential, would similarly be entitled to build his home on a lot of 12,000 square feet, which of course would nullify the ordinance.” Id.

Volpe has been applied by the Pennsylvania courts in several later cases. In Borough of Baldwin v. Bench, 11 Pa. Cmwlth. 410, 315 A.2d 911 (1974), the appellant’s father had laid out fifteen lots, one of which had only a 40 foot frontage. The zoning law required lots to have a 55 foot frontage for a single family dwelling. Appellant acquired the non-conforming lot and applied for a variance. The agency denied the request, and the court affirmed, noting that the father had developed the property “in such a fashion that an undersized lot was created.” Id. at 913 . The court concluded:

“Since his father would have been barred from receiving a variance because his hardship was self-inflicted, Bench must also be barred. To decide otherwise would be to completely emasculate the holding in Volpe, since a land developer, like the applicant in Volpe, need only deed the property to a member of his family in order to circumvent the holding of the Supreme Court.”

Id.

In Ephross v. Solebury Township Zoning Hearing Bd., 25 Pa.Cmwlth. 140 , 359 A.2d 182 (1976)—a case almost identical to this one — a developer, fully aware that the applicable zoning law required one-acre lots, laid out a subdivision that contained 22 conforming lots and two that contained less than an acre each. The developer’s assignee then sought variances *222 with respect to one of the non-conforming lots, claiming hardship. The request was denied by the agency, and that decision was affirmed. In reasoning that should control in this case, the court stated:

“We also agree with the authorities below in their conclusion that an experienced developer who purchases a large subdivision with express knowledge of existing zoning regulations and their applicability to that subdivision cannot be allowed to frustrate an express provision of a zoning ordinance by developing a vacant irregular lot in violation of the law. The law does not permit a developer to subdivide its own land and then make a subsequent claim for a variance because a remnant of that land is not in conformity with the zoning ordinance.”

Id. at 184 (emphasis added). See also Booe v. Zoning Board of Appeals of City of Shelton, 151 Conn. 681 , 202 A.2d 245 (1964) (where owner purchased 70 acres of land in rural district and later sold all but four acres, owner not eligible for variance in order to build hotel on remaining property when zoning law required minimum of five acres).

The Court fails even to cite these out-of-State cases, which seem to me to be very much in point.

On the record before us, this should be a “slam dunk” case of self-inflicted hardship. Ms. Stansbury, for no reason other than to maximize her economic gain, knowingly and deliberately created a non-conforming lot when it was not necessary to do so. She even used the inability to develop the reserved parcel as a means to extract premiums from the sale of other lots, and then came crying to the zoning authorities that she had a hardship on her hands. The board of appeals, after hearing the witnesses, determined, as a fact, that the hardship was self-created. Normally, we defer to the factual determinations of the agency, but, in its peculiar desire to reward Ms. Stansbury for her deliberate conduct, the Court today throws both zoning law and established administrative law to the wind. We should leave Ms. Stansbury with the hardship she *223 created and not open up vast new stratagems for developers to circumvent land use laws designed to protect everyone else.

Judge RAKER has authorized me to state that she joins in this dissenting opinion.

. The only reference to this subdivision is to Plat No. 2 of Pleasant Plains contained in the record extract. It is not clear whether that plat, as printed in the extract, is complete, but it appears to contain 157 lots, not all of which are consecutively numbered.