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Edwin H. Lewis v. Department of Natural Resources No. 114, September Term, 2002 Headnote: The decision of the Wico mico Co unty Board of Zoning Appeals was vacated because the Board improperly denied petitioner's variance request to build a hunting camp within the Chesapeake Bay Critical Area Buffer by utilizing improper standards in its application of the C ourt of Appeals' recent opinions of Belvoir Farms, White and Mastandrea. Although the C ourt of A ppeals normally defers to an admin istrative agency's decision regarding the facts of a hearing, they do not defer to the agency when it has com mitted such errors of law. The Court remanded this case to the Board for reconsideration of petitioner's variance request in light of the standards and guidance set forth in the opinion.

Circuit Co urt for W icomico C ounty Case #22-C-01-00345

IN THE COURT OF APPEALS OF MARYLAND No. 114 September Term, 2002

Edwin H. Lew is

v.

Department of Natural Resources

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

Opinion by Cathell, J. Raker, W ilner and B attaglia, JJ., Disse nt. Filed: July 31, 2003

Petitioner, Edwin H. Lewis, seeks the reversal of a decisio n of the W icomico C ounty Board of Zoning Appeals (Board) denying his request for a zoning variance to co nstruct a hunting camp on his property located within a Critical Area Buffer. On judicial review, the Circuit Court for Wicomico County, after an October 12, 2001 hearing, upheld the decision of the Board. P etitioner appe aled and th e Court of Special A ppeals, in an unreported opinion dated October 9, 2002, affirmed the Circuit Court's upholding of the Board's decision. On Novem ber 25, 200 2, petitioner file d a Petition f or Writ of C ertiorari with th is Court and, on January 9, 2003, we granted the petition. Lewis v. Department of Natural Resources, 372 Md. 684, 814 A.2d 570 (2003). Petitioner presents three questions for our review: "1. Did the Board err by denying Petitioner's Critical Area Buffer variance request in a decision written for it by the Critical Area Commission without considerin g all of the statutory factors for such a determination, by improper ly construing and applying some of the factors it did consider, and by impermiss ibly applying the Critical Area Co mmission's `cumulativ e impact' argumen t? "2. Did the Board err in not finding Petitioner's hunting camp to be a reasonab le and signific ant use of h is property although it could not be located out of the Buffer, would occupy less than 1.5 percent of the Buffer, would not cause any environmental harm, and there was no evidence that its design or size was either inappropriate or too large for the site? "3. Did the Board err in the decision written for it by the Critical Area Commission by then applying the criteria for an unconstitutional taking rather than the criteria for an unwarranted hardship in denying Petitioner's Buffer variance application?" We answer in the affirm ative to petitioner's questions 1 and 3, as we hold that the Board committed several error s of law in its decision de nying petitioner's variance re quest, including not considering all of the County Code's variance criteria and misapplying the

unwarranted hardship standard. Accordingly, we do not answer petitioner's question 2; we instead vacate the judgment of the Court of Special A ppeals, direc t that court to vacate the decision of the Circuit C ourt with d irections to va cate the decision of the W icomico C ounty Board of Zoning Ap peals and to reman d the case to the Boa rd to reconsider petitioner's variance request in light of our holding. I. Facts A. Critical Area Resource Protection Program Background As we did in White v. North , 356 M d. 31, 736 A .2d 1072 (1999), w e shall set out a brief overview of the Chesapeake Bay Critical Area Protection Program (Critical Area Program) to fully understand the nature of this case. The Critica l Area Pro gram is cu rrently codified in Maryland Code (1973, 2000 Repl. Vol.), sections 8-1801 to 8-1817 of the Natural Resources Article. Respondent is the Department of Natural Resources (DNR), the

department with the authority, through the Chairman of the Chesapeake Bay Critical Area Comm ission (Commission), to enforce the Critical Area Program.1 The Com mission's regulations are encom passed in Title 27 of the C ode of M aryland Regulations (CO MAR ). We summarized in White : "It is important to understand the interrelationship between the Stateimposed, but locally enforced, critical area prohibitions and local zoning requireme nts generally. Section 8-1802 of the Natural Resources Article provides: `(a) Definitions. . . .

1

See Md. Code

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