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Dennis Alviani et al. v. Phyllis Dixon et al. No. 132, September Term, 2000 Headnote: The Board of Appeals of Anne Arundel County granted respondents' application for a special exception and three variances. Two of the variances applied to the criteria for the granting of the special exception. We hold that the Board had the authority to grant a special exception with variances when the Anne Arundel County Code precluded variances from being applied to some sections of the code and the special exception section was not one of those excluded sections. We also hold that there is substantial evidence in the record to establish that the Board made the necessary findings to grant the variances.

Circuit Court for Anne Arundel County Case # C-97-43190AA

IN THE COURT OF APPEALS OF MARYLAND No. 132 September Term, 2000

DENNIS ALVIANI et al.

v.

PHYLLIS DIXON et al.

Bell, C. J. Eldridge Raker Wilner Cathell Harrell Battaglia, JJ.

Opinion by Cathell, J.

Filed: July 13, 2001

The Board of Appeals of Anne Arundel County (hereinafter Board) granted an application for a special exception to build an automotive service facility and variance requests incident to the proposed automotive service facility made by Phyllis Dixon and Jonathan Aaron, respondents. Dennis Alviani, Fulvio Alviani, Maryann Alviani, Leonard Bender, and

William E. Neiman, petitioners, filed a request for judicial review with the Circuit Court for Anne Arundel County. The Circuit Court affirmed the decision of the Board. Petitioners then filed an appeal to the Court of Special Appeals. The Court of Special Appeals, in an unreported opinion, affirmed the decision. Writ of Certiorari with this Court. questions in the Petition: 1. Whether the Anne Arundel County Board of Appeals erred as a matter of law in granting the special exception when the only way to approve the special exception was by approving three (3) variances to the statutory standards for the automobile filling station special exception use? Whether the Board erred as a matter of law by failing to make the necessary findings required in order to grant a variance, and whether the record before the Board contained evidence sufficient to support such findings?[1] We Petitioners then filed a Petition for Petitioners have presented two

We granted the Petition.

2.

We answer no to both questions and affirm the decision of the Court of Special Appeals.

1

Petitioners changed question two in their brief to this Court to state:

Whether the Board erred as a matter of law by failing to make the necessary findings required in order to grant the special exception and variances in that the board did not define in its opinion the limits of the neighborhood as it relates to certain statutory standards for approval and whether the record before the board contained evidence sufficient to support any such finding? [Emphasis added.] We will answer question two as it was submitted to us in the Petition for Writ of Certiorari.

hold that the Board had the authority to grant a special exception with variances when the Anne Arundel County Code precluded variances from being applied to some sections of the code and the special exception section was not one of those excluded sections. We also hold that there is substantial evidence in the record to establish that the Board made the necessary findings to grant the variances. I. Facts Respondents own a 1.2 acre parcel of land located on Old Mill Bottom Road at U.S. Route 50 east in Annapolis, Maryland. The property was originally part of a larger tract, but in 1990 the State Highway Administration obtained 7.65 acres of that tract by threat of condemnation for placement of an access ramp to Route 50. After the access ramp was built

and various improvements were made to Route 50, the remaining parcel was an isolated, circular plot of land that was surrounded by roads and access ramps. As it currently sits, the parcel is partially developed with an old service station that is in a state of disrepair. Prior to 1995, the parcel of land was split zoned 40% C1-B (community retail) and 60% RLD (residential low density).2 In 1995, respondents, who hoped to develop an

automotive service facility3 on the parcel, filed an application with the Anne Arundel County Department of Planning and Code Enforcement requesting a zoning reclassification.
2

An

Split zoned is a zoning phrase indicating that one parcel of land is encumbered with two different zoning classifications; a portion of the parcel is zoned differently than the remaining parcel. The automotive service facility was to include six covered pump islands in three parallel rows, a canopy, a 2,657 square foot convenience store, a drive-through car wash, and a parking area. -23

automotive service facility could not be developed on that part of the parcel encumbered with a RLD classification. Respondents requested that the Department of Planning and Code

Enforcement reclassify the entire property as either C4 (highway commercial) or C1-B. A C4 classification would permit an automotive service facility to be constructed without a special exception, while a C1-B classification of the entire parcel would require a special exception for the automotive service facility to be constructed. Both zoning classifications would

require variances to permit the proposed development because of the circular shape of the isolated parcel, a shape that resulted from the 1990 taking. In their application, respondents

requested the variances and the special exception if the parcel was zoned C1-B. In respect to the special exception, respondents requested variances from two of the criteria required by Article 28, section 12-206(b) of the Anne Arundel County Code as conditions for approval of the special exception. that:

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