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Lanzaron v. Anne Arundel County, Maryland, et al. , No. 22, September Term 2007 HEADNOTE: Where the Anne Arundel County Code, in Article 3, authorizes the Board of Appeals generally to grant variances from any of the provisions of the zoning code (Article 28), and in Article 3 lists specific provisions to which the Board may not grant variances, the application of that power in granting a time variance is a lawful exercise of the Board's authority unless Article 3 prohibited such a grant. In the case at bar neither Article 3 nor Article 28 prohibited the grant of the time variances at issue here.

Circuit Co urt for Anne A rundel Co unty Case No. C-06-111902

IN THE COURT OF APPEALS OF MARYLAND No. 22 September Term 2007

Antho ny Lanz aron, et u x. v. Anne A rundel Co unty, Maryland , et al.

Bell, C. J. Raker Harrell Battaglia Greene Wilner, Alan M. (Retired, specially assigned) Cathell, Dale R. (Retired, specially assigned), JJ.

Opinion by Cathell, J.

Filed: November 9, 2007

Crandell Cove, Inc. ("appellee"), a n on-profit co rporation o rganized to construct a residential facility for the elde rly in Anne Arundel County, applied for and received a special exception and va riances enablin g it to con struct a n ursing h ome. A subsection of Article 28 of the Ann e Arund el County Code req uired the sp ecial excep tion and va riances to be utilized within specific time frames. As a result of difficulties encountered complying with the time limitations and pursuant to a broad reading of Article 3 of the Anne Arundel County Code authorizing the granting of variances from the p rovisions of the zoning article (Article 28), appellee requested a time variance permitting a one-year extension to implement the use authorized by the special exception and variances or obtain a building permit, and an additional one and o ne-half years to complete the fac ility and ha ve it fully o peration al. That request was initially granted by Anne Arundel County's Administrative Hearing Officer (the "Hearing Officer"). The Lanzarons ("appellants"), who are neighboring landowners,

appealed the Hearing Officer's approval to the Anne A rundel Co unty Board of Appeals (the "Board"), which issued a written decision that upheld the Hearing Officer's action and granted appellee's time variance.1 Appellants then filed a petition for judicial review in the Circuit Court for Anne Arundel Cou nty, w hich affi rmed the deci sion of th e Bo ard. F inall y, appellants noted an a ppeal to the Court of Special A ppeals. Before th e case was heard by that Court, we issued a w rit of cer tiorari, on our ow n initiativ e, Lanzaron v. Anne Arundel County , 399 Md. 32, 922 A.2d 573 (2007), in respect to the following issue:

1

In this appeal we are only concerned with the Board's grant of the time variance.

"Did the Anne Arundel County Code in effect at the relevant time authorize the Board to extend by variance the Code's deadline for project implementation and completion under Crandell Cove's previously authorized variances and special exception?" We hold that the variance pow er at issue in this case authorized the Board to issue time variances, and that under the language used here, the general variance p ower fo und in Article 3 reaches all provisions in Article 28 of the Anne Arundel County Code (the Zoning Code) except where the general power is restricted by specific language limiting the general variance powe r. I. Facts Appellee sought to c onstruct a co ngregate liv ing facility 2 in Anne Arundel County on property that was sp lit zoned R 1-Reside ntial District and OS-O pen Spa ce District. On February 25, 2003, appellee obtained from Anne Arundel County initial zoning approva l in addition to a special exc eption and certain variances th at would allow for the development of a suitable living facility on a portion of the land. These initial approvals were appealed by appellants, but those appeals were ultimately dismissed by the Board on September 11, 2003. That decision became final after 30 days, when no petition for judicial review of the initial approvals was filed.

The phrase "congregate living facility" was used by appellee in its b rief to refer to a living facility that: "[W]ould provide affordable housing, and a modest level of assistance with daily activities, for elderly adults who are no longer able to live alone o r maintain th eir home s."

2

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As a result of difficulties in obtaining the necessary permits for construction under multi-tiered County and State require ments, app ellee was u nable to comply w ith the statutory time restriction applicable to the original zoning variances found in Article 28, requiring that a building permit be obtained within one year of the variance grant, and that construction be completed within two years of the grant. 3 Additionally, it was unable to comply with the statutory time restrictions applicable to the original sp ecial excep tion, which required that action to implem ent the use be initiated within one year of approval and that the use be completed and in operation within tw o years of app roval. 4 Therefore, on September 10, 2004 (allowing for tolling, within one year of the date the initial appro vals became final after the The zoning provision, found in Article 28 of the Anne Arundel County Code (the "Code") (unless otherwise stated, all references are to the Code in effect at the time) stated, in relevant p art: "

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