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Circuit Court for Anne Arundel County Case # C-9633900 AA

IN THE COURT OF APPEALS OF MARYLAND No. 85 September Term, 1998

ANNE MARIE WHITE et al. v. JOHN C. NORTH, II, CHAIRMAN

Bell, C.J. Eldridge Rodowsky Raker Wilner Cathell Karwacki, Robert L. (retired, specially assigned), JJ.

Opinion by Cathell, J.

Filed: September 14, 1999

Petitioners Anne and Richard White seek the reinstatement of a decision by the Anne Arundel County Board of Appeals (Board) granting their request for a zoning variance to construct an in-ground concrete swimming pool in the sloped back yard of their home. On judicial review, the Circuit Court for Anne Arundel County reversed the Board, ruling its decision was "arbitrary and capricious." The Court of Special Appeals affirmed the circuit court.1 Petitioners present three questions for our review: 1. Did the Decision of the Court of Special Appeals effectively render meaningless and of no practical effect the Critical Area variance provisions required by the Critical Area Act, and as set forth in Article 3, Section 2107(b) of the Anne Arundel County Code, by concluding that "unwarranted hardship" requires that the property owner be deprived of all reasonable use of their property before a variance can be granted[?] 2. What is the correct standard to use in evaluating the requirement of "unwarranted hardship," as that term is used in the Critical Area variance statute[?] 3. Does the taking of private property rights, which does not result in a denial of all reasonable use of the land, constitute an unconstitutional taking of property when the taking fails to serve the stated public purpose or the state police power[?] We shall address questions one and two together. In light of our determination with respect to questions one and two, it is not necessary to address the third question.

After the case sub judice originally was argued, this Court granted a writ of certiorari in Belvoir Farms Homeowners Association, Inc. v. North, ___ Md. ___, ___ A.2d ___ (1999) [No. 159, 1998 Term, filed _____, 1999]. Belvoir Farms raised issues involving the legislative history of the critical area variance statutes. Accordingly, we ordered that the case at bar be reargued on the same day as Belvoir Farms.

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We vacate the judgment of the Court of Special Appeals and direct that this case be remanded to the Anne Arundel County Board of Appeals for further proceedings consistent with this opinion and our holding in Belvoir Farms Homeowners Ass'n, Inc. v. North, ___ Md. ___, ___ A.2d ___ (1999) [No. 159, 1998 Term, filed __________, 1999]. I. The Chesapeake Bay Critical Area Protection Program To understand fully the legal underpinnings of this case, a brief explanation of the Chesapeake Bay Critical Area Protection Program (Critical Area Program) is in order. The Critical Area Program is codified in Maryland Code (1974, 1990 Repl. Vol., 1998 Cum. Supp.), sections 8-1801 to 8-1816 of the Natural Resources Article. Respondent is the Chairman of the Chesapeake Bay Critical Area Commission (Commission), an arm of the Department of Natural Resources with authority to enforce the Critical Area Program. Title 27 of the Code of Maryland Regulations (COMAR) consists of the Commission's regulations. It is important to understand the interrelationship between the State-imposed, but locally enforced, critical area prohibitions and local zoning requirements generally. Section 8-1802 of the Natural Resources Article provides: (a) Definitions. . . . .... (11)(i) "Project approval" means the approval of development . . . in the Chesapeake Bay Critical Area by the appropriate local approval authority. (ii) "Project approval" includes: ....
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3. Issuance of variances, special exceptions, and conditional use permits .... Section 8-1808(a)(1) requires local governments to have primary responsibility for development of programs to regulate land use in the critical area, "subject to review and approval by the Commission." The program, "[a]t a minimum," must include "[z]oning ordinances or regulations."

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