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Nancy R. Stansbury v. Randy Q. Jones, et al. No. 15, September Term, 2002 Headnote: A zoning administrator in Anne Arundel County recommended that Nancy R. Stansbury be granted certain variances in respect to property owned by her in her subdivision because when re-subdividing in compliance with county requirements, Ms. Stansbury was left with a parcel of land not then buildable in that re-subdivision. The Anne Arundel County Board of Appeals (Board) did not accepted the recommendation of the county zoning administrator and declined the variances upon the sole ground that the hardships alleged by Ms. Stansbury were self-created. The Anne Arundel County Circuit Court remanded the matter to the Board to reconsider the application considering all the variance factors in the zoning code. The Court of Special Appeals reversed the decision of the circuit court and held that the hardship alleged in the case was self-created and that no other factors needed to be considered in the denial of the application. The Court of Appeals reversed and held that under the facts of the case as then presented no self-created hardship existed, and remanded the matter for further consideration.

Circuit Co urt for Anne A rundel Co unty Case #C-2000-63770

IN THE COURT OF APPEALS OF MARYLAND No. 15 September Term, 2002

Nancy R. Stansbu ry

v.

Randy Q . Jones, et al.

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

Opinion by Cathell, J. Raker and Wilner, JJ. dissent

Filed: December 13, 2002

Nancy R. Stansbury, petitioner, petitions this Court to reverse the decision of the Court of Special Appeals. A zoning administrator in Anne Arundel County had

recommended that Ms. Stansbury be granted certain variances in respect to property owned by her in the subdivision of Pleasant Plains in Anne Arundel County, a parcel of property that petitioner had reserved to herself in the re-subdivision of a larger tract. The Anne Arundel County Board of Appeals (hereafter "Board") had not accepted the recommendation, and had denied the variances, allegedly, on the sole ground that the claimed hardships there alleged had been self-created. Upon petition for judicial review, the circuit court had remanded the matter to the Board, directing that the Board reconsider the application considering all of the variance factors contained in the county zoning code. Randy Q. Jones, and others,

respondents, appealed that decision to the Court of Special Appeals. That court reversed the decision of the Circ uit Court fo r Anne A rundel Co unty, holding th at the hardsh ip alleged in the case was self-created and that no other factors needed to be considered in the denial of the application. The crux of the controversy at the circuit court level was, whether the Board, during an administrativ e appeal, sh ould have declined to accept the recommendation of the administrative hearing officer on the sole ground that the need for the variances had been self-created by the petitioner. T he Cou rt of Specia l Appeals , agreeing w ith the Board that the hardship had been self-created, stated: "First, it was thought by the circuit court that judicial review of the Board's decision was governed by the A PA. Second, a recent trilogy of Co urt of Appeals' decisions involving critical area varian ces were read by the circu it court as requiring the Board to address each variance standard. Third, the

circuit court failed to recognize the fundamental nature of the principle that self-created hardships c annot justify the grant of a v ariance, including the concept that a self-created hardship is not merely another variance standard, but is instead an essential part of the unwarranted hardship standard that is the primar y determi ning fa ctor that must b e met b y a varian ce app licant." In her brief in this Court, petitioner presents four questions: "1. Is the examination of just one factor alone, specifically the concept of self-created hardship, sufficient basis to deny a critical area variance request fo r a legally buildable lot, thereby precluding the use of the other facto rs in determin ing whe ther unw arranted ha rdship [1] exists?

Most jurisdictions have adopted the position that w hen a court is concerned with area variances, such as tha t in the present c ase, practical d ifficulty is the standard, and when use variances are sought, unwa rranted hardship is the standard for the approval of a variance. We noted in Loyola Federal Saving and Loan Ass'n v. Buschman et al. , 227 Md. 243, 248-49 A.2d ___ (1961), that "Rathkopf, . . . , points out that use va riances are c ustomarily concerned with `hardship cases' . . . . Rathkopf next points out that area variances are customar ily conce rned w ith `prac tical diff iculty'. . . . "[T]he b asis for this lesser requirement . . . is that the charac ter of th e zonin g district i s not ch anged . . . . [v]ariances going to such matters as area, height, or setbacks, are much less drastic than those affecting the use of proper ty." The Anne Arundel Co unty zoning provisions, in that regard, in a general provision section, Section 11-102.1.(a) provide that the requirements of the statute, may be varied "when it is alleged that p ractical difficulties or unnecessary hardships prevent carrying out the strict le tter of th is article." Section 11 -102.1.(a)(2 ) provides, a s relevant he re, that a variance may be gran ted if "b ecause of exc eptiona l circum stances . . . the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to develop such lot." Accordingly, except to the extent that the application for variances includes a re quest for v ariances tha t are for portio ns of the p arcel located in the critical area, in wh ich event th at particular request would be subjected to the unwarranted hardship standard, the correct standard in Anne Arundel County is the lesser standard of "practical difficulties" to the extent that petitioner's application concerns requests for area variances. The parties appear to presume that the unwarranted hardship standard applies to all of petitioner's variance requests. That is correct if all of the requests involve critical area requirements. It would not be correct as to the requests for other variances. In light of our holding that the evidence does not support that there was a self-created hardship and our remand to the Boa rd for it to con sider the app lication without reference to self-created (contin ued...) -2-

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"2. Did the Court of Special Appeals and Ann e Ar undel Co unty Board of Appeals com mit reversible error by failing to examine a ll statutory factors in determining whether unwarranted hardship exists when denying a variance in the Chesa peake B ay Critical Area for a legally buildable lo t created w ith Anne A rundel Co unty approv al? "3. Was the Circuit Court correct in remanding the case to the Board of Appeals for further consideration because the Board of Appeals' administrative decision incorrectly applied the law and lacked ad equate findings o f fact? "4. Did the Anne Arundel County Board of Appeals effect a `taking' of Petitioner's prop erty w ithout just compe nsation b y denying Petitioner the requested variances on a legally buildable lot?" 2 Because, in the first instan ce, we sha ll hold that the facts of this case do not support the intermediate appellate court's judgment or the Board's findings that the hardship in this case was self-created , we shall not resolve, although we may discuss, the other issues presented. Acc ordingly, we shall reverse the dec ision of the Court of Specia l Appeals , and direct it to affirm the circuit court's judgment remanding the case to the Board to reconsider the petitioner's request for variances u tilizing all of the a pplicable req uirements of the statute. The hardship or practical difficulty here, if any, arising out of the re-subdivision, was not self-create d within the m eaning of the local ord inance. W hen a pro perty owne r does that which is permitted, or required, under a zoning co de, that prop erty owner is n ot necessar ily (...continued) hardsh ip, it is not n ecessa ry for us to sort the r equests as to the applica ble stan dard. Petitioner in her brief has fram ed the fou r issues abo ve. In her pe tition she only presen ted two questio ns for o ur cons ideratio n. However, in the argument contained in her petition she did at least touch on the other issues. Because of our resolution of this case we will not directly answer the questions respondents challenge as being un-preserved. -32

creating an automatic hardship for purposes of the self-created hardship standards of varianc e provi sions. Facts In 1927, petitioner's predecessor in title, by recording a plat in the County land records, created a subdivision known as Plat No. 2 Pleasant Plains. A t that time, as far as the record reflects, there was no subdivision ordinance existing in A nne Aru ndel County. At sometime prior to, and/or in 1986, Anne Arundel County passed an ordinance or ordinances which resulted in the lots in the then Pleasant Plains subdivision, be coming substand ard size lots, i.e ., non-conforming lots. The County, in 1986, enacted statutory provisions that the parties refer to as the Antiquated Lots Law (now codified in Article 28, Section 2-101 of the Anne Arundel County Code ("Code"). Charlene Morgan, the zoning analyst for the Anne Arundel County Department of Planning and Code E nforcement, testified befo re the Board as to the effect of th e 1986 sta tutory provision s on the pro perty here at issue : "I'm going to go briefly through the history the way the county has reviewed it. "In 1924 Pleasant Plains was platted. The lots were required to [be] create[d], by recorded plat prior to the county code. The lots were considered legally created antiquated lots. "In 1986 the Antiquated Lots Law was passed which was bill 86-86, and is now c odified into artic le 28, se ction 2- 101C . This required an tiquated lots that are in ow nership to b e combin ed to mee t lot area requ irement. "In 1986 planning and rezoning -- dated March 6 th , 1986, explained to the owner of this property that they needed to be combined in regard to bill 86-86. "In 1991 an Administrative plat was signed on July 31st and the plat combined legal Pleasant Plains lots into larger building sites. "On these particu lar sites a reserved parcel label was assigned to the subject lot until it could pass a perk test. To my definition, and my -4-

understanding a reserved parcel me ans that this lot is on hold until it can meet that criteria. "At this time the subject site does not lose it's underlying legal status. And as a -- indicate s that ther e are man y legal lots that are not filling it, and that in the county view the words `parcel and lot' are used interchangeably and don't indicate whether the lot is legal or buildable. "In 1997 waiver 5867 was signed on September 11th and that waiver deems a lot buildable because the lot perked at that time. "The waiver is th e subdivisio n approv al that is needed that is referenced on the plat that w aives the ne ed to rereco rd the adm inistrative plat. Typically an administrative plat is not recorded unless there's a change in the lot lines. In this case all that was deemed done [by] remov ing the term `reserved p arcel' and mak ing it a lot. "This site has always been, and is now a subject of permit review of critical area criteria and Health Department requirements, as is any legal lot. And any legal lot has th e right to app ly for a varianc e during the building permit r eview ." The 1986 Antiquated Lots Law, as now codified as aforesaid, provides in relevan t part that: "(a) In this sec tion `prope rly recorded lot' m eans a lot: (1) of record and created in compliance with the zoning and subdivision regulations in effect wh en the lot was created; or (2) recorded on or before June 30, 1952. "(b) Notwithstanding the minimum lot area and width requirements of this title, a residential dwelling may be constructed on a properly recorded lot if: (1) the lot was not in the same ownership as an adjacent unimproved lot on January 1, 1987; and (2) the other r equireme nts of this article are met. "(c) . . .[A] residential dwelling may not be constructed on a properly recorded lot that was in the sam e owne rship as one or more ad jacent unim proved lo ts on January 1, 1987 . . . unless the adjacent lots are combined to meet or come as close as possible to meeting the area requirements for the residential district in whic h the lot i s located ." 3

3

There is a body of case law in the land use context concerning the merger of sub(contin ued...) -5-

Anne Arundel County Variance Standards Sections 11-102.1 (c) of the A nne Aru ndel Cou nty Code, ap plicable to the granting of variances, p rovides as to the genera l consideratio n of varian ces that: "(c) A variance may not be granted unless it is found: (1) that the variance is the minimum variance necessary to afford relief; (2) that the gra nting of the variance w ill not: (i) alter the essential character of the neighborhood or district in which the lot is located; (ii) substantially impair the appropriate use or development of adjacent

(...continued) standard lots. In Friends of the Ridge v. Baltimore Gas and Electric Company, 352 Md. 645, 653, 724 A.2d 34, 38 (1999), a case in which protestants were challenging the utilities' right to combine lots into larger parcels, thereby eliminating interior lot lines, we noted: "These efforts have resulted in the creation and evolution in zoning of the doctrine of merger, which, in zoning cases, generally prohibits the use of individual substandard parcels if contiguous parcels have been, at the relevant time, in the same ownership and at the time of that ownership, the combined parcel w as not su bstand ard." We noted that we were unaware, at that time, of any prior M aryland cases e xpressly adopting that doctrine. We then concluded that generally, where the doctrine ha d been rec ognized, its primary function h ad been to prohibit the re-subdivision of `combined' lots into smaller substandard lots. In Friends we noted numerous cases in other jurisdictions concerning the doctrine: Loechn er v. Cam poli , 49 N.J. 504, 231 A .2d 553 (1967); Somol v. Board of Adjustment, 277 N.J. Super. 220, 228, 649 A.2d 422, 426 (1994) ("[S]eparate undersized but contiguous lots fronting on the same street in single ownership ordinarily merge into one lot and conveyance of a portion will require subdivision and varian ce approv al."); Iannucci v. Zoning Board o f Appeals , 25 Conn. App. 85, 592 A.2d 970 (1991); In re Appeal of Gregor, 156 Pa. Cmmw. 418, 627 A.2d 308 (1993); and Skelley v. Zoning Board of Review, 569 A.2d 1054, 1056 (R.I. 1990) ("The c oncept of merger of contiguou s noncon forming lo ts in common ownership as an appropriate method to combine nonconforming lots is gaining increas ed reco gnition ."). What the Antiquated Lots Law does, is to essentially codify the doctrine of lot combination - or lot me rger. -6-

prop erty; (iii) reduce forest cover in the limited and resource conservation areas of the critical area; (iv) be contrary to acceptable clearing and replanting practices required for development in the critical or bog protection area; or (v) be detrimental to the public welfare; and (3) that, for properties in the critical area or a bog protection area, the granting of a variance will not be inconsistent with the spirit and intent of the critical area program or bog protection program and will not adversely affe ct water q ualit y or adversely impact fish, wildlife, or plant habitat." As can be see n, there is no s pecific pro vision relating to self-created hardship in the general provisions of the A nne Arundel Cou nty ordinance. There is, however, a special section in the Ann e Arund el County C ode, Sectio n 11-102 .1.(b), that relates o nly to properties in the "critical area or a bog protection area." It does contain a self-created hardship type of provision. Section 11-102.1.(b)(4)(i) provides : "the va riance r equest . . . is not based on conditions or circum stances that are the resu lt of actio ns by the a pplican t." Petitioner indicated in the present case that the Critical Area Commission had not objected to her application. Respondents did not proffer to the contrary. Accordingly, except as noted, the extent to which self-created hardships under the general provisions of this statute would impact up on the gran ting of a va riance outsid e the critical area (whethe r sufficient in and of itself to justify the denial of a variance, or whether merely a factor to consider along with all other factors in the consideration of the variance application) depends upon the holdings of our cases. While the critical area variance provisions contain a direct reference to self-created hardships, the statute does not attempt to define what is meant by "result of

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actions by the applican t." Therefo re, even in re spect to property within the critical areas of the county, whether a particular situation constitutes a self-created hardship, depends, for the most part, upon our cases to the extent we have previously addressed such issues, not upon the provisions of the statute. Standard of Judicial Review Almost a half-cen tury ago, in a case invo lving a den ial of a use p ermit, we stated: "It is a clearly established rule in the law of zoning that a court may not substitute its judgment for that of the Zoning Board." Dorsey Enterprises, Inc. v. Shpak, 219 Md. 16, 23, 147 A.2d 853, 857 (1959). Chief Judge Hammond w rote for the Court in State Ins. Comm'r v. National Bureau of Casualty Underw riters , 248 Md. 292 , 309, 236 A.2d 2 82, 292 (1967), that "un der . . . [either] of the stand ards the jud icial review e ssentially should be limited to whether a reasoning mind reasonably could have reached the factual conclusion the agency reache d." Whether reasoning minds could reasonably reach a conclusion from facts in the record is the essential test. If such a conclusion is sufficiently sup ported by the e vidence, the n it is based upon substantial evidence. Forty years ago in Snowden v. Mayor and City Council of Baltimore , 224 M d. 443, 447 -48, 168 A .2d 390, 39 2 (1961), w e noted tha t: "The substantial evidence test `mean s that the reviewing cou rt's inquiry is wheth er on th e record the age ncy coul d reaso nably ma ke the f inding .' . . . Substantial evidence is `such relevant evidence as a reasonable mind mig ht accept as adequate to support a conclusion.' The heart of the fact finding process often is the drawing of inferences from the facts. The administrative agency is the one to whom is committed the drawing of whatever inferences -8-

reasonab ly are to be drawn from the factual evidence. `The Court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be be tter supported . The test is reason ablene ss, not rig htness.' " [Cita tion om itted.] Over twenty years later we opined, "if the evidence makes the issue of harm fairly debatable, the matter is one for the Board's decision, and should no t be second -guessed b y an appellate court." Board o f County Commissioners for Cecil County v. Holbrook, 314 Md. 210, 218, 550 A.2d 6 64, 668 (1988 ). See als o Ram say, Scarlett & Co., Inc. v. Comptroller of the Treasury , 302 Md. 825, 490 A.2d 1296 (1985) and Comp troller of the Tr easury v. W orld Book Childcraft International, Inc., 67 M d. App . 424, 50 8 A.2d 148 (1 986). In White v. N orth , 356 M d. 31, 44, 73 6 A.2 d 1072, 1079 (1 999), we muc h more recently restated th e general sta ndard of review tha t: "In judicial review of zoning matters, including special exceptions and variances, `the correct test to be applied is whether the issue before the administrative body is "fairly debatable," that is, whether its determination is based upon evidence from which reasonab le persons c ould come to different conclusions.' Sembly v. County B d. of Appe als , 269 Md. 177, 182, 304 A.2d 814, 818 (1 973). See also Board of County Comm'rs v. Holbrook, 314 Md. 210, 216-17, 550 A.2d 664, 668 (1988); Prince G eorge's C ounty v. Meininger, 264 Md. 1 48, 151, 285 A .2d 649, 65 1 (1972); Zengerle v. Board o f County Comm'rs , 262 Md. 1, 17 , 276 A.2d 646, 654 (1971); Gerach is v. Montgomery County Bd. of Ap peals , 261 Md. 153 , 156, 274 A.2d 3 79, 381 (1971). For its conclusion to be fairly debatable, the administrative agency overseeing the variance decision m ust have `su bstantial evid ence' on th e record su pporting its decisio n. See Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 395, 396 A.2d 1080, 10 87 (1979 ); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 706, 376 A.2d 483, 49 5 (197 7), cert. denied sub nom . Funger v. Montg omery C ounty , 434 U.S. 1067, 98 S.Ct. 1245, 55 L.Ed.2d 769 (197 8); Agneslane, Inc. v. Lucas, 247 Md. 612, 619, 233 A.2d 757, 76 1 (196 7)."

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See also Peop le's Coun sel for Baltim ore Cou nty v. Mangione, 85 Md. App. 738, 743-44, 584 A.2d 1318, 13 20-21 (19 91); Terranova v. Board o f Trustees of the Fire and Police Employees Retirement Sys., 81 Md. App. 1, 8-9, 566 A.2d 497, 500 -01 (1989) cert. denied, 319 Md. 48 4 , 573 A .2d 808 (1 990); Tennison v. Shom ette , 38 Md. App. 1, 5, 379 A.2d 187, 190 (1977 ), cert. denied, 282 Md. 739 (1978); Fitzerald v. M ontgom ery Cou nty , 37 Md. App. 148, 153, 3 76 A.2d 1 125, 11 28, cert. denied, 281 M d. 737 ( 1977) , cert. denied sub nom . Mutyambizi v. Maryland, 439 U.S. 854, 99 S. Ct. 164; 58 L. Ed. 2d 1 60 (1978 ); Anne Arundel County v. M aryland Nat'l Bank , 32 Md. App. 437, 440, 361 A.2d 134, 136 (1976). Nonetheless, we have also indicated in our cases that where an administrative agency's conclusions are not supported by competent and substantial evidence, or where the agency draws impermiss ible or unreasonable inferences and conclusions from undisputed evidence, such decisions are due no deference. In Belvoir F arms H omeow ners Asso ciation, Inc. v . North , 355 Md. 259, 267-68, 734 A.2d 227, 232 (1999), we stated: "Ge nera lly, a decision of an administrative agency, including a local zoning board, is owed no deference when its conclusions are based upon an error of law . Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569, 709 A.2d 749, 753 (1998) (`[W]e may reverse an administrative decision premised on erroneous legal conclusions.' (citing People's Counsel v. Maryland Marine Mfg. Co., 316 M d 491, 4 97, 560 A.2d 3 2, 34-3 5 (198 9)))." In Maryland Marine Mfg., supra , 316 Md. at 496-97, 560 A.2d at 34-35, we said: "As we have frequently indicated, the order of an administrative agency must be upheld on judicial rev iew if it is not based on an error of law, and if the agency's conclusions reasonably may be based upon the facts proven. But a reviewing court is under no constraints in reversing an administrative -10-

decision which is prem ised sole ly upon a n erron eous co nclusio n of law ." [Citatio n omitte d.] [Em phasis a dded.] We noted in Washington National Arena Limited Partnership v. Comptroller of the Treasury, 308 Md. 370, 378, 519 A.2d 1277, 1281 (1987) (quoting Ramsay, Scarlett & Co. , 302 Md. at 834, 490 A.2d at 13 01), that: "`a rev iewing co urt is under n o statutory cons traints in reversing a Tax Cou rt order which is premised solely upon an erroneous conclusion of law .'" We said in Elliott v. Joyce, 233 M d. 76, 81-82 , 195 A.2d 254, 256 (1963) tha t: "We hold that `on the reco rd' before us, the Boa rd could n ot `reasona bly make' the reclassif ication and grant the sp ecial excep tion. Theref ore, its action in so doing w as arbitrary and c apricious in a legal sense. T o permit a gasoline station in the re sidential surro undings o f the subjec t property wo uld not promote th e safety, health or ge nera l welfare of th e com mun ity, but wou ld constitute, we think, invalid `spot zon ing.' Baylis v. City of Baltimore, 219 Md. 164, 148 A.2d 42 9 [1959 ]; Hewitt v. County Comm'rs , 220 Md. 48, 151 A.2d 1 44 [19 59]." [A lteration s added .] The standard in respect to judicial review is, generally, the same whether the agency grants or denies relief. In Maryla nd Adve rtising Com pany v. M ayor and City Council of Baltimore , 199 M d. 214, 2 22-23 , 86 A.2 d 169, 1 73-74 (1952 ), a case involving the denial of permit for a billboard under the special provisions in that zoning code, the trial court, on judicial review, affirmed the agency. We reversed, noting: "A zoning statute, ordinance or administrative order . . . is presume d to be valid . . . . However, the duty of the courts not to substitute their judgment for the judgm ent of legisla tive or administrative authorities . . . is not more imperative than the power and duty to set aside any purported exercise of such power which is in fact arbitrary, capricious or confiscatory. Zoning in this respect can no more escape judicial review than any other purported exercise of the police power . . . . `The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the -11-

character of his u se, is not u nlimited , and other questions aside, such restriction cannot be imposed if it does not b ear a substa ntial relation to the public health, safety, m orals, or g eneral w elfare.' . . . `Building on one's own land is still a property right, subject to all applicable provisions of law; it is not a grant o f a fav or from some g overnm ental au thority.'" [C itations o mitted.] We have additionally found actions of zoning entities to be arbitrary and capricious, and have thus affirmed trial court reversals of zoning agency decisions in reclassification cases, albeit the reversals were generally of actions where the agency had granted relief, as opposed to the instant variance application where the Board denied relief. As indica ted, in Elliott , supra , we affirm ed the circu it court's revers al of age ncy a ctions. In Zang & Sons, Builders Inc. v. Taylor, 203 Md. 628, 102 A.2d. 723 (1954), the circuit court declared a zoning action (a reclassification) by Anne Arundel County authorities, `null and void,' and this Court affirmed. There we said: "There is nothing h ere to show that the [prio r] rezoning to `Cottage Residentia l' was er ror or m istake . . . The prea mble to the resolution and the personal knowle dge of the Comm issioners cou ld not be co nsidered [by the circuit court] as evidence of change. The power of rezoning cannot be used to `favor '. The Courts review the action, not the opinion, of the Commissioners. The reaso nablenes s of such a r esolution is to be determined by the facts from which the conclusion is drawn, rather than from the conclusion itself." Id. 203 Md. at 636-37, 102 A.2d at 727. [Citations omitted .] [Em phasis a dded.] [ Alterati ons ad ded.] Price v. Cohen, 213 Md. 457, 463, 463, 132 A.2d 125, 128 (1957), was another case where the courts reversed a zoning entity's granting of a reclassification. There, we stated: "The courts will reverse only where th ere are no grounds for reasonab le debate and where the action of the Board is capricious, arbitrary, discriminatory, or illegal. The Board here based its opinion part ly on an inspection of the property by its mem bers. The personal knowledge of the Board cannot be -12-

considered on appeal. The review of the courts is made from the facts from which the conclusion is drawn and not from the conclusion itself." [Citation omitted .] [Emp hasis ad ded.] In the case sub judice, the Board erroneously construed a property owner's legal attempt to comply with provisions authorized by a new county law as a self-created hardship. Compliance with a statute ordinarily is not self-created hardship and is not such in the present case. Self-create d Hard ship We stated in White , 356 Md. at 48-49, 736 A.2d at 1082, quoting from our earlier case of Aspen Hill Venture v. Montg omery C ounty Co uncil , 265 Md. 303, 313-14, 289 A. 2d 303, 308 (197 2), that: "`we must not forget the underlying principle that, "Such ordinances [zoning ordinances] are in derogation of the commo n law righ t to use private property as to realize its highest utility, and wh ile they should b e liberally constru ed to accomplish their plain purpose and intent, they should not be extended by implication to cases not clearly within the scope of the purpose and intent manifest in their language." Landay v. Board o f Zoning A ppeals , 173 Md. 460, 46 6, 196 A .2d 293 (1938 ).' [Alte ration in origina l.] "In Landay , 173 Md. at 465, 196 A. 295-96, we noted that `[i]n a constitutional sense, the only justification for the restrictions . . . on the use of private prop erty is the protection of the public health, safety, or morals.'" In a case somewhat similar to the case sub judice, Richard Roeser Professional Builder, Incorporated v. Anne Arundel County , 368 Md. 294, 29 7 n.3, 79 3 A.2d 545, 54 7 n.3 (2002), decided after the Board's and the lower court decisions in the present case, we initially noted in a footnote: "It is a relatively common practice throughout the State, and has been for -13-

decades, that buyers contract to buy properties with contingencies that make consummation of the contract conditioned on the granting of variances. . . . Additionally, in such instances in respect to `area' variances, we have never held tha t such a practice , by itself, co nstitutes a `self-c reated' hardsh ip." Then, in Roeser, 368 Md. at 303-04, 793 A.2d at 551, quoting from Arden H. Rathkopf & Daren A. Rathkopf, The Law of Zoning and Planning

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