Lead Opinion
Nаncy R. Stansbury, petitioner, petitions this Court to reverse the decision of the Court of Special Appeals. A zoning administrator in Anne Arundel County had
The crux of the controversy at the circuit court level was, whether the Board, during an administrative appeal, should 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. The Court of Special Appeals, agreeing with 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 APA. Second, a recent trilogy of Court of Appeals’ decisions involving critical' area variances were read by the circuit 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 cannot justify the grant of a variance, 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 primary determining factor that must be met by a variance applicant.”
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 for a legally buildable lot, thereby precluding the use of the other factors in determining whether unwarranted hardship1 exists?
“2. Did the Court of Special Appeals and Anne Arundel County Board of Appeals commit reversible error by failing to examine all statutory factors in determining whether unwarranted hardship exists when denying a variance in the Chesapeake Bay Critical Area for a legally buildable lot created with Anne Arundel County approval?
“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 adequate findings of fact?
“4. Did the Anne Arundel County Board of Appeals effect a ‘taking’ of Petitioner’s property without just compensation by denying Petitioner the requested variances on a legally buildable lot?”2
Because, in the first instance, we shall 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. Accordingly, we shall reverse the decision of the Court of Special 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 utilizing all of the applicable requirements of the statute. The hardship or practical difficulty here, if any, arising out of the re-subdivision, was not self-created within the meaning of the local ordinance. When a property owner does that which is permitted, or required, under a zoning code, that property owner is not necessarily creating an automatic hardship for purposes of the self-created hardship standards of variance provisions.
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. At that time, as far as the record reflects, there was no subdivision ordinance existing in Anne Arundel 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, becoming substandard 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 Enforcement, testified before the Board as to
“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 codified into article 28, section 2-101C. This required antiquated lots that are in ownership to be combined to meet lot area requirement.
“In 1986 planning and rezoning — dated March 6th, 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 particular sites a reserved parcel label was assigned to the subject lot until it could pass a perk test. To my definition, and my understanding a reserved parcel means 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 — indicates that there are many 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 the subdivision approval that is needed that is referenced on the plat that waives the need to rerecord the administrative 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] removing the term ‘reserved parcel’ and making 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 the right to apply for a variance during the building permit review.”
The 1986 Antiquated Lots Law, as now codified as aforesaid, provides in relevant part that:
“(a) In this section ‘properly recorded lot’ means a lot:
(1) of record and created in compliance with the zoning and subdivision regulations in effect when 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 requirements of this article are met.
“(c) ... [A] residential dwelling may not be constructed on a properly recorded lot that was in the same ownership as one or more adjacent unimproved lots 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 which the lot is located.”3
Sections 11-102.1(c) of the Anne Arundel County Code, applicable to the granting of variances, provides as to the general consideration of variances 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 granting of the variance will 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 property;
(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 affect water quality or adversely impact fish, wildlife, or plant habitat.”
As can be seen, there is no specific provision relating to self-created hardship in the general provisions of the Anne Arundel County ordinance. There is, however, a special section in the Anne Arundel County Code, Section 11-102.1.(b), that relates only 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 variance request ... is not based on conditions or circumstances that are the result of actions by the applicant.” 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 upon the granting of a variance outside the critical
Standard of Judicial Review
Almost a half-century ago, in a case involving a denial of a use permit, 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,
Whether reasoning minds could reasonably reach a conclusion from facts in the record is the essential test. If such a conclusion is sufficiently supported by the evidence, then it is based upon substantial evidence. Forty years ago in Snowden v. Mayor and City Council of Baltimore,
“The substantial evidence test ‘means that the reviewing court’s inquiry is whether on the record the agency could reasonably make the finding.’ ... Substantial evidence is ‘such relevant evidence as a reasonable mind might 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 reasonably 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 infеrence would be better supported. The test is reasonableness, not rightness.’ ” [Citation omitted.]
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 not be second-guessed by an appellate court.” Board of County Commissioners for Cecil County v. Holbrook,
In White v. North,
“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 reasonable persons could come to different conclusions.’ Sembly v. County Bd. of Appeals,269 Md. 177 , 182,304 A.2d 814 , 818 (1973).See also Board of County Comm’rs v. Holbrook, 314 Md. 210 , 216-17,550 A.2d 664 , 668 (1988); Prince George’s County v. Meininger,264 Md. 148 , 151,285 A.2d 649 , 651 (1972); Zengerle v. Board of County Comm’rs,262 Md. 1 , 17,276 A.2d 646 , 654 (1971); Gerachis v. Montgomery County Bd. of Appeals,261 Md. 153 , 156,274 A.2d 379 , 381 (1971). For its conclusion to be fairly debatable, the administrative agency overseeing the variance decision must have ‘substantial evidence’ on the record supporting its decision. See Mayor of Annapolis v. Annapolis Waterfront Co.,284 Md. 383 , 395,396 A.2d 1080 , 1087 (1979); Montgomery County v. Woodward & Lothrop, Inc.,280 Md. 686 , 706,376 A.2d 483 , 495 (1977), cert. denied sub nom. Funger v. Montgomery County,434 U.S. 1067 ,98 S.Ct. 1245 ,55 L.Ed.2d 769 (1978); Agneslane, Inc. v. Lucas,247 Md. 612 , 619,233 A.2d 757 , 761 (1967).”
See also People’s Counsel for Baltimore County v. Mangione,
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 impermissible or unreasonable inferences and conclusions from undisputed evidence, such decisions are due no deference. In Belvoir Farms Homeowners Association, Inc. v. North,
“Generally, 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 Md. 491 , 497,560 A.2d 32 , 34-35 (1989))).”
In Maryland Marine Mfg., supra,
“As we have frequently indicated, the order of an administrative agency must be upheld on judicial review 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 decision which is premised solely upon an erroneous conclusion of law.” [Citation omitted.] [Emphasis added.]
We noted in Washington National Arena Limited Partnership v. Comptroller of the Treasury,
We said in Elliott v. Joyce,
“We hold that ‘on the record’ before us, the Board could not ‘reasonably make’ the reclassification and grant the special exception. Therefore, its action in so doing was arbitrary and capricious in a legal sense. To permit a gasolinestation in the residential surroundings of the subject property would not promote the safety, health or general welfare of the community, but would constitute, we think, invalid ‘spot zoning.’ Baylis v. City of Baltimore, 219 Md. 164 ,148 A.2d 429 [1959]; Hewitt v. County Comm’rs,220 Md. 48 ,151 A.2d 144 [1959].” [Alterations added.]
The standard in respect to judicial review is, generally, the same whether the agency grants or denies relief. In Maryland Advertising Company v. Mayor and City Council of Baltimore,
“A zoning statute, ordinance or administrative order ... is presumed to be valid.... However, the duty of the courts not to substitute their judgment for the judgment of legislative 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 character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.’ ... ‘Building on one’s own land is still a property right, subject to all applicable provisions of law; it is not a grant of a favor from some governmental authority.’ ” [Citations omitted.]
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 indicated, in Elliott, supra, we affirmed the circuit court’s reversal of agency actions. In Zang & Sons, Builders Inc. v. Taylor,
“There is nothing here to show that the [prior] rezoning to ‘Cottage Residential’ was error or mistake ... The preamble to the resolution and the personal knowledge of the Commissioners could not be considered [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 reasonableness of such a resolution 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.] [Emphasis added.] [Alterations added.]
Price v. Cohen,
“The courts will reverse only where there are no grounds for reasonable debate and where the action of the Board is capricious, arbitrary, discriminatory, or illegal. The Board here based its opinion partly on an inspection of the property by its members.The personal knowledge of the Board cannot be 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.] [Emphasis added.]
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. Complianсe with a statute ordinarily is not self-created hardship and is not such in the present case.
Self-created Hardship
We stated in White,
“ ‘we must not forget the underlying principle that, “Such ordinances [zoning ordinances] are in derogation of the common law right to use private property as to realize its highest utility, and while they should be liberally construed 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 of Zoning Appeals,173 Md. 460 , 466,196 A. 293 (1938).’ [Alteration in original.]
“In Landay,173 Md. at 465 ,196 A. at 295-96 , we noted that ‘[i]n a constitutional sense, the only justification for the restrictions ... on the use of private property 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,
“It is a relatively common practice throughout the State, and has been for 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 that such a practice, by itself, constitutes a ‘self-created’ hardship.”
Then, in Roeser,
“ ‘In other words, because a purchaser of property acquires no greater right to a variance than his predecessor, he should not be held to acquire less.
‘It should not be within the discretion of a board of appeals to deny a variance solely because a purchaser bought with knowledge of zoning restrictions.... ’ ” [Emphasis in original.] [Footnotes omitted.]
We subsequently opined in Roeser that:
“The types of hardships that are normally considered to be self-created in cases of this type do not arise from purchase, but from the actions of the land owner ... that create the hardship, rather than the hardship impact, if any, of the zoning ordinance on the property.”
Id. at 314,
Whilе we do not rely on the impact, if any, of the Antiquated Lots Law in our decision for the case sub judice, it is clear that the purpose of the Antiquated Lots Law ordinance is to induce owners of adjacent
Respondents rely in part on Randolph Hills, Inc. v. Montgomery County Council,
In Randolph Hills the property outside of the subdivision ended up in the situation solely because the developer desired it. In the present case the recombination of lots, and thus a re-subdivision, was permitted by statute. In the process of re-subdivision the tract at issue here ended up in a subdivision with a condition imposed by the county not imposed on the other lots. The parcel,, to the extent it would reflect the old subdivision, would be a nonconforming parcel and its status
Respondents next rely on the Court of Special Appeals decision in Cromwell v. Ward,
Our case of Ad + Soil, Inc. v. County Comm’rs of Queen Anne’s County,
Montgomery County Council v. Kacur,
Evans v. Shore Communications, Inc.,
“the second ‘special condition and circumstance’ claimed by SCI — the needs of its subscribers — are not peculiar to the land, but created by SCI.... The needs of SCI’s customers have nothing to do with the peculiarity of the property in question. Thus, any hardship claimed by SCI — the second prong of the test; — is self-inflicted, and thus not a ground for a variance.” Evans,112 Md.App. at 309 ,685 A.2d at 466 .
Accordingly, as is evident, Evans does not support the position as to that case, taken by respondents in the case sub judice.
The case of Wilson v. Mayor and Comm’rs of the Town of Elkton,
The cases cited by respondents do not support the proposition they ask this court to adopt in the present case. In similar fashion, the other cases relied on by the intermediate appellate court do not apply in the circumstances of the present case.
In addition to extensively relying on this Court’s case of Randolph Hills, supra, and relying on its own case of Cromwell, supra, which reliance as we have indicated was misplaced, the Court of Special Appeals also cited as authority our cases of Salisbury Board of Zoning Appeals v. Bounds,
Bounds and Marino are also dissimilar from the case at bar. In Bounds, the property owner did not properly procure a building permit to convert an old single family dwelling into four apartments. Therefore, the apartments were built without any consideration by the appropriate city entities as to whether the conversion complied with local zoning provisions. The conversion violated the density provisions of the statute. We stated the then relevant provision set forth in Rathkopf, The Law of Zoning and Planning, that we considered to be applicable:
“ ‘If the peculiar circumstances which render the property incapable of being used in accordance with the restrictions contained in the ordinance have beenthemselves caused or created by the property owner or his predecessor in title, the essential basis for a variance, i.e., that the hardship be caused solely through the manner of the operation of the ordinance ... is lacking .... the hardship, arising as a result of the act of the owner ... will be regarded as having been self-created, barring relief.’ ” Bounds, 240 Md. at 554 ,214 A.2d at 814 .
We then held in Bounds:
“The instant case fits squarely within the above general rule. The construction of the fourth apartment and the resultant hardship could have been avoided if the appellees had used proper diligence in ascertaining what the density requirements were.... The hardship here relied on was entirely self-created.” Id. at 555,214 A.2d at 814-15 . [Emphasis added.]
Bounds, like Wilson,
The case of Marino was substantially different from the present case. It involved a “special exception.”
Although we do not hold in this case that re-subdividing in compliance with statutes can never constitute self-created hardships, such actions are not in the traditional sense, in general, self-created hardships for variance consideration purposes. Traditionally, self-created hardship requires an affirmative action, exclusively by a property owner or his predecessor in title, that is itself the sole reason for the need for the variance. Bounds and Marino represent the normal types of affirmаtive actions by property owners that will be held to constitute self-created hardships. Several of our sister jurisdictions have recognized similar types of self-created hardship in the variance context.
In Dueger v. Zoning Board of Appeals of the Incorporated Village of Lloyd Harbor,
What occurred in the case at bar is more similar to what occurred in Whittaker v. Zoning Board of Appeals of the Town of Trumbull,
“The plaintiffs argue essentially that the hardship complained of by Esposito is self-created and, therefore, that the variance was improperly granted. We do not agree.
“The hardship which justifies a board of zoning appeals in granting a variance must be one that originates in the zoning ordinance....
“The applicant for the variance, Esposito, was presented with a genuine hardship beyond his control and not of his or the reсord owner’s making. The 1.79 acre parcel involved has been designated as the location through which Quail Trail is to extend to connect to Foster Avenue since 1969, when the town planning and zoning commission approved the Lagaña subdivision upon that condition.
“Esposito’s application for a variance was filed ... long after the commission’s 1969 decision to extend Quail Trail was expressed in an official map....
“Under the circumstances of this case, the extension of Quail Trail can hardly be said to be the voluntary act of Esposito.” Whittaker,179 Conn. at 657-61 ,427 A.2d at 1350-52 . [Footnote omitted.]
In the present case, before the re-subdivision of the development, the undersized lots would not have been self-created hardships because they were legal lots, albeit perhaps non-conforming lots. When a governmental statute permits and encourages an owner, or owners, to take certain action in order to be able to utilize property, that action cannot be characterized as self-created.
Once the process of subdivision or re-subdivision commences, it is not at all uncommon for there to be parcels or lots reserved by the owners and not offered for immediate sale or proposed for immediate use. Sometimes the reason for the existence of these parcels or lots is that, because they contain environmentally sensitive areas, the owner intends to market the unencumbered lots first and later attempt to see if the affected lots or parcels can be approved for development. Often these reserved parcels have conditions attached to them at the direction of the governmental entity that approves the plats. When conditions are so imposed, the conditions, so long as they do not result in a taking of the property, are generally enforceable.
In Howard County v. JJM, Incorporated,
“We come dоwn to the issue in this case, which is whether the Howard County subdivision regulation requiring JJM to reserve land for a proposed State highway constitutes an exercise of the County’s police power or a taking. If the regulation is determined to be a valid exercise of the police power, then JJM has no legal cause for complaint. If, on the other hand, the regulation is determined to be a taking of the property, the County has no right to require the reservation for the proposed highway.
“D. Hagman, Urban Planning and Land Development Control Law, § 140 (1975) defines the terms dedication and reservation:
‘Dedication ordinarily involves the conveyance of an interest in land by the fee owner to the public; usually to the local government having jurisdiction over the land. Reservation, on the other hand, involves no conveyance but restricts the right of the subdivider and others to use the land for anything but the restricted purpose.’ ”
“If an ambiguity is present, and if that ambiguity is not clearly resolved by resort to extrinsic еvidence, the general rule in favor of the unrestricted use of property will prevail and the ambiguity in a restriction will be resolved against the party seeking its enforcement.”
We had previously noted in Woodland Beach Property Owners’ Association, Incorporated v. Worley,
“ ‘In the recent case of Norris v. Williams,189 Md. 73 , 76,54 A.2d 331 , 332, Judge Delaplaine speaking for the Court, said:
“ ‘ “However, restrictions upon the use of land are in derogation of the natural right which an owner possesses to use and enjoy his property, and are repugnant to trade and commerce. Consequently, restrictive covenants are construed strictly against their establishment and effect, and liberally in support of the unrestricted use of the land....”
‘There must be borne in mind the often repeated doctrine that doubts should be resolved in favor of the unrestricted use of property.’ ”
We said in Peabody Heights Company of Baltimore City v. Willson,
“[AJJthough one in conveying real estate may impose certain restrictions.... Courts will always favor a liberal interpretation ... in order to impose as few difficulties as possible in the free use and disposal of the particular estate conveyed [or reserved].... [I]f the words are doubtful, they will be resolved in favor of keeping the restriction within the narrowest limits. In other words, if there be doubt as to the intention of the parties, Courts will naturally lean in favor of freedom of the property.” [Alterations added.]
See also Markey v. Wolf,
While in Belleview and cases since, we have modified the rule to be a reasonableness rule, the reservation in the present case, and the percolation restriction, even if ambiguous, which we do not believe they are, would be, even under the modified “reasonableness rule” of Belleview, construed to mean that the developer retained (“reserved”) a parcel of land for her future
In the case sub judice, the restriction placed on the reserved parcel was that it could not be built upon until such time as it passed percolation tests. It is clear, and it was clearly thе governmental agency’s opinion, that if and when the parcel could be perked, it was a buildable lot. No other express limitations were contained on the plat. There was no evidence that the county had imposed any conditions forbidding petitioner from seeking variances. In fact, there was ample evidence that the county considered the parcel to be a legal lot, restricted only by the necessity to conduct satisfactory percolation tests.
Self-created Hardship as a Sole Factor
Petitioner presents the issue of whether self-created hardship, by itself, is sufficient to deny a variance without consideration of the remaining conditions contained in the ordinance. In other words, is it a sole disqualifying finding, or is it a factor to be considered along with other factors to determine whether practical difficulties or unwarranted hardships exist. The Board and the Court of Special Appeals held that in all cases, whether an area or a use variance is sought or whether practical difficulty or unwarranted hardship is the standard, a self-created hardship, by itself, is sufficient to deny the granting of a variance without any consideration of any other factors. In other words, if self-created hardship exists, the administrative entity need go no further.
We do have cases in which we have upheld the denial of variance relief where the agency has found that a self-created hardship existed. We have been unable to determine from the language of our cases whether this Court was ever expressly asked to address the question presented here — the issue of whether self-created hardship alone is sufficient to deny an area variance. We have appeared, in the absence of having it presented as a question by the parties in the various cases, to have assumed, without any extensive investigation of the matter, that it was sufficient.
We shall not resolve that issue in this case as we are holding that there is no self-created hardship in the first instance. Accordingly, we leave that issue for a future case, in so far as Maryland law is concerned.
During the re-subdivision process permitted and encouraged by the Antiquated Lots Law and the pre-existing statute which placed the lots in nonconformance prior to the re-subdivision, the property combinations resulted in a parcel of land that was not then suitable for the erection of a residential structure because the portion of the parcel that remained after areas had been used for subdivision infra-structure would not, at that time, percolate or otherwise permit development due to critical area requirements.
It was clear to anyone examining the Administrative Plat that there was only one express limitation imposed on the subject property by the re-subdivision approval, i.e., that no residences could be built on the parcel until, and if, it passed a percolation test. ■ No other limitations were noted on the plat. Our examination of the record does not reflect that any other limitations were imposed on the parcel during the process.
Subsequently, it was determined that there was an area within the parcel that could, and did, pass a percolation test. However, the use of that area for the sanitary system to be utilized for a residence on the parcel left an insufficient remaining area to accommodate the type of structure required to be built by covenants that affect the lots within the development
Respondents proffer in their brief that “The very laws Stansbury seeks to abridge were in existence before she created her reserved parcel.” To bе sure, some, if not all, of those laws were in effect prior to the re-subdivision. It was the impact of those “very laws” upon the preexisting lots and parcels that created the conditions necessitating the applications for the variances. Prior to the time those “very laws” were passed, Stansbury would have had the right to either rely on the non-conforming character of the lots, a nonconformity created by subsequent statute, or would have had the right to seek a variance of the statutory provisions
Conclusion
It is clear that the circumstances here present are far removed from the traditional concept of a self-created hardship. Petitioner, in re-subdividing in compliance with county requirements was left with, as is generally the case, a parcel of land not then buildable in that re-subdivision. In re-subdividing, which met the combination requirements and the requirement to file an Administrative Plat, and was in compliance with other county laws, she insured that the only express condition attached to her ability to fully use the reserve parcel was the provision in respect to percolation. There is no evidence in this case that the county intended to impose any other express conditions on the re-subdivision. It was equally clear that the county always considered this parcel to be a legal lot.
Therefore, the owner of the parcel is fully entitled to seek any relief that any other property owner is entitled to seek. She may not, on remand, get the relief, but she is entitled to try without having the Board or the courts disqualify her from seeking relief on the grounds that what occurred during her specific re-subdivision amounted to a self-created hardship. In light of our decision, we decline to resolve any other issues presented in this case.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND THE CASE IS REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENTS.
Notes
. Most jurisdictions have adopted the position that when a court is concerned with area variances, such as that in the present case, practical difficulty is the standard, and when use variances are sought, unwarranted hardship is the standard for the approval of a variance. We noted in Loyola Federal Saving and Loan Ass’n v. Buschman et al.,
. Petitioner in her brief has framed the four issues above. In her petition she only presented two questions for our consideration. However, in tire 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.
. There is a body of case law in the land use context concerning the merger of sub-standard lots. In Friends of the Ridge v. Baltimore Gas and Electric Company,
"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 was not substandard.”
We noted that we were unaware, at that time, of any prior Maryland cases expressly adopting that doctrine. We then concluded that generally, where the doctrine had been recognized, its primary function had 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: Loechner v. Campoli,
What the Antiquated Lois Law does, is to essentially codify the doctrine of lot combination -or lot merger.
. In Anne Arundel County a "parcel'' of land fits within the definition of a lot for zoning purposes. Article 28, Section 1-101. Definitions— Generally, paragraph (36) provides " 'Lot’ has the meaning staled in § 1-109 of this title.” Section 1—109(a) provides: "In this article, 'lot' means a portion of a subdivision or any other parcel of land for building development, whether existing, immediate, or future . .. .” (emphasis added.)
. This type of ordinance is not unique to Anne Arundel County. The Supreme Court of Rhode Island, in Redman v. Zoning and Platting Board of Review of the Town of Narragansett,
"Narragansett Town Council enacted an amendment to its zoning ordinance that required each lot to have a frontage of one hundred feet and a total area of ten thousand square feet. Section 8.2 of that ordinance provided that
'Li]f adjacent land in the same ownership is not sufficient to meet the minimum frontage requirements or minimum area requirements, or both, then the largest area and frontage which the adjoining common ownership make possible shall be provided.’
"Thus, the terms of the amended ordinance required petitioners, as joint owners of lot 126, now a substandard lot of record, and of lot 125, an adjacent lot, to merge the two lots to permit lot 126 to meet the minimum frontage and area requirements of the zoning ordinance.”
Another similar case is Sciacca v. Caruso,
. In order to qualify for a Euclidean zoning reclassification, an applicant, generally, must first establish that the current classification was a mistake when it occurred, or that there has been sufficient change in the neighborhood since the prior classification, to warrant the consideration of a change in classification.
. Respondents argue in their brief that prior to the re-subdivision of the development, petitioner and her brother, after learning of the potential for the passage of the Antiquated Lots Law, had adjusted their ownership from tenants in common to sole ownership of the lots in checkerboard fashion, with them owning alternate sub-standard lots. Respondents apparently are proffering that because there was a method wherеby petitioner might have avoided compliance with the spirit and letter of the law, a later decision to comply, makes that compliance self-created hardship for purposes of variance consideration. We disagree. As we read the statute, anytime abutting substandard lots are in, or come under, sole ownership, they are required to be ‘merged’ or ‘combined’. It makes no difference, as we read the statute, whether owners or prior owners have attempted to avoid compliance.
In any event, the Antiquated Lots Law, even if it did not require the combination of lots which we believe it did, permitted, and strongly encouraged, lot combining in order to avoid a proliferation of nonconforming lots. While not squarely presented in this case, we doubt that a property owner that brings a property into legal conformance as to one standard is self-creating a hardship as to another standard so as to foreclose the ability of such an owner to apply for variance relief as to other matters, a right that is generally available via variance procedures to any owner. To posit to the contrary would be to encourage the continuation of non-conforming properties. One of the underlying basic tenets of zoning law is that non-conforming lots and uses are to be brought into conformance if at all possible. See also our discussion of the doctrine of merger in footnote 3.
. We have not been asked to, nor do we, consider the legality or constitutionality of such mandatory ‘‘combining” or "merger” provisions.
. Wilson also involved the remodeling of an existing building into more units than permitted under the zoning code. After the fact, Wilson sought a variance to provide outside stairway access to a third unit he had already constructed. The third unit was prohibited. The authorities only discovered the violation when he applied for a permit to build the stairs.
. In Marino,
"Ordinarily, there is a marked distinction in the law of zoning between a variance and an exception, but there is none in Baltimore City since an exception apparently overlaps a variance inasmuch as both may be granted where there are 'practical difficulties or unnеcessary hardships'. This is the reason why many cases which arise in Baltimore City, such as this one, discuss exceptions and variances without differentiation.” [Footnote omitted.]
. Under the Supreme Court's case of Palazzolo v. Rhode Island,
Cases from some other jurisdictions arc in accord with and actually predate Palazzolo and Roeser. See Rocheleau v. Town of Greene,
"Had it still been owned by Myers, the predecessor in title, and he had made application lor a variance such as was sought by the defendants, certainly no claim could have been raised that he had created his own hardship.
"In Wilson v. Borough of Mountainside,42 N.J. 426 , 453,201 A.2d 540 , 554 (1964), the New Jersey Supreme Court stated:
‘We wish to make it clear lhat if a prior owner would be entitled to such relief, that right is not. lost to a purchaser simply bеcause he bought with knowledge of the zoning regulation involved. This situation is not within the realm of the sell-created hardship which will generally bar relief.’
"We also cite, with approval, the following language from Griffin Construction Corp. v. Board of Adjustment of Teaneck,85 N.J.Super. 472 ,205 A.2d 313 , 316 (1964):
‘[WJhere an original owner would be entitled to a variance under a specific set of facts, any successor in title is ordinarily entitled to such a variance, providing that no owner in the chain of title since the adoption of the zoning restriction has done anything to create the condition for which relief by variance is sought.' ”
Under the cases, it is clear, that an owner’s attempts to comply with a new ordinance, such as attempts to comply with the Antiquated Lots Law at issue in this case, are not the types of actions that the cases would say would permit the consideration of those actions to be deemed self-created hardships in the process of determining whether variances are appropriate.
. In respect to general variance statutes, several jurisdictions have considered the issue and held that it is only one of the factors to be considered, and other jurisdictions have even held that self-created hardship is not a factor at all, when applications for area variances such as those sought in the case sub judice are concerned.
In Human Development Services of Port Chester, Incorporated v. Zoning Board of Appeals of the Village of Port Chester,
“That a difficulty may be self-created is a factor to be taken into account, but as we held in Matter of De Sena v. Board of Zoning Appeals (45 N.Y.2d 105 , 108[,408 N.Y.S.2d 14 ,379 N.E.2d 1144 (1978)]): 'A finding of self-created hardship normally should not in and of itself justify denial of an application for an area variance.’ [Emphasis added.]
In In the Matter of De Sena,45 N.Y.2d 105 , 108,408 N.Y.S.2d 14 ,379 N.E.2d 1144 , 1145 (1978), that Court slated that:
“That a landowner's difficulty is in a sense self-created is certainly a factor to be lakcn into account in considering an application for an area variance, allhough it is less significant a considеration in such cases than in ihose involving use variances. It is not, moreover, the determinative factor....” [Citations omitted.]
In Russell v. Board of Adjustment of the Borough of Tenafly,
“A decision on self-created hardship, without more, is not conclusive on the detemiinative issue, of undue hardship. Although self-created hardship weighs against the application, it is only a circumstance to be considered in finding undue hardship.” [Citations omitted.] [Emphasis added.]
Our neighboring jurisdiction, ihe District of Columbia, very strongly supports the view that it is only one of the factors to be considered in determining the existence of "practical difficulties” or "unwarranted hardship.” In Carliner v. District of Columbia Board of Zoning Adjustment,
“unwilling to disturb the decision of the Board when it determines that the affirmative action of the applicant in making his property uon-conforming, rather than his mere knowledge at the time of purchase that his property is non-conforming, warrants the application of the hardship doctrine and thereby justifies denial of the variance."
It then noted, however, that “This court has upheld the grant of a variance where the only 'hardship' was petitioner's mere knowledge of the difficulties created by the zoning requirements.” Id. at 54 n. 3.
The facts in the case of De Azcarate v. District of Columbia Board of Zoning Adjustment,
“Lot 17, for which the Board granted the area variance was originally part of a considerably larger lot designated Lot 13. Lot 13 was a triangular-shaped parcel of a approximately 26,000 square feet.... During July 1975, Lot 13 was subdivided into three lots. .. . Subsequently, Lot 17 was enlarged slightly to include an additional strip of land and this subdivision was also recorded.
"As approved, Lot 17 was an irregular configuration. The main body of the property was connected to the street by a strip of land 30 feet wide and 70 feet long. A single-family home was to be constructed on the main portion of the .lot.... [Pitkin] sold Lot 17 to intervenor — Schafer on condition that the property was suitable for the erection of a single-family residence. During this same time-frame, single-family homes were constructed upon each of the other two lots carved from the original Lot 13.
"However, a recent decision of this court undermines petitioner's argument. In that case, the Board granted a parking variance. After concluding that the Board properly treated the application as an area variance rather than as a use variance, the court rejected the petitioners’ contention that the rule of self-created hardship applied.
“However, the hardship at issue here ... cannot be accurately described as the direct consequence of the intervenors’ sole and affirmative acts; here tire zoning department employees played a significant part by approving three separate applications during the original subdivision of Lot 13.” Id. at 1235-39. [Citations omitted.] [Footnotes omitted.]
See also Association for Preservation of 1700 Block of N Street, N.W., and Vicinity v. District of Columbia Board of Zoning Adjustment,
"It has been the rule, to be sure ... that one with actual or constructive knowledge that under the zoning ... a particular use would be nonconforming, is ordinarily not entitled to receive a use variance.
"In the case before us, however, petitioner applied not for a use variance but an area variance.... Yet where a substandard lot is the subject of a hardship application, proof of only ‘peculiar and exceptional difficulties' is involved....
“Additionally, the fact that the owner knew or should have known of the area restrictions before he purchased the property does not alter the lesser standard. In New York, for instance, the rule seems to be
‘that the "self created hardship” concept does not apply to area variance cases, i.e., the fact that the condition complained of wаs self created is not dispositive of the matter but only one factor to be considered ... [in passing on] an area variance.’...
"The Rhode Island Supreme Court has taken a similar position:
‘The question of whether an applicant is entitled to a variance because of hardship flowing from a literal application of the terms of the ordinance is in no way dependent upon his knowledge of the existence of zoning restrictions affecting the land.’
At least one other jurisdiction with a statute similar to our own has indicated that the self-imposed aspect of a particular hardship is not a bar to the grant of a variance.” [Citations omitted.] [Emphasis omitted.]
. In the development of subdivisions and re-subdivisions there are normally areas that cannot easily be accommodated within the a standard box-like lot plan. It is rare that a perfect box or checkerboard lot layout can be accomplished due to the varying shapes that tracts of land have, over the years, taken. Generally, land within the boundaries of the plat that is not then identified with a lot number, unless provisions to the contrary are contained on the plat or in other title documents, remains in the ownership of the developer and, unless limited by conditions or language on the plat itself or by necessary implication, or limited by recorded declarations, it is, generally, not encumbered in respect to the owner’s uses of the property. In such instances, in the absence of a statute to the contrary, it may, generally, be sold.
. Re-subdivision plats required under the Antiquated Lots Law are apparently designated as "Administrative Plats.”
. Respondents argue that because the property was re-subdivided after the county’s Critical Area restrictions were enacted, petitioner self-created any hardships caused by the enactment of those restrictions. That is incorrect. The property, however subdivided or not subdivided, would still have been subjected to the same Critical Area restriсtions. Moreover, it. was in essentially the same ownership after the re-subdivision as it was before. Even if ownership had changed after ihe enactment of Ihe Critical Area provisions, the new owner could have asserted any rights the prior owner could have asserted, including the right to apply for variances. See Palazzolo v. Rhode Island,
“The state court held the postregulation acquisition of title was fatal to the claim for deprivation of all economic use and to the Penn Central Transp. Co. v. City of New York,438 U.S. 104 ,98 S.Ct. 2646 ,57 L.Ed.2d 631 (1978)] claim.
“The theory underlying the argument that post-enactment purchasers cannot challenge a regulation under the Takings Clause seems to run on these lines: Property rights are created by the State. So, the argument goes, by prospective legislation the State can shape and define property rights and reasonable investment — backed expectations, and subsequent owners cannot claim any injury from lost value. After all, they purchased or took title with notice of the limitation.
“The State may not put so potent a Hobbesian stick into the Lockean bundle. The right to improve property, of course, is subject to the reasonable exercise of state authority, including the enforcement of valid zoning and land-use restrictions....
“A blanket rule that purchasers [or subdividers] with notice have no compensation right when a claim becomes ripe is to blunt an instrument to accord with the duty to compensate for wliat is taken [by a regulatory action].” [Citations omitted.] [Alterations added.]
. She may have been able to market the lots as non-conforming lots prior to the resubdivision. While, generally, if structures are destroyed they may have to be rebuilt in conformance, land subdivisions are not, normally, destioyable. Thus, generally, lots would never have to be reconfigured in accordance with present statutes, but could continue on under non-conformance principles, although their marketability might be diminished. In other words, undersized lots would remain legal and buildable, albeit variance relief might, depending on current setback and similar requirements, be necessary to enable an owner, or a subsequent owner to construct a viable structure.
Dissenting Opinion
Dissenting opinion by
in which RAKER, J., joins
The Board of Appeals for Anne Arundel County denied a set of fifteen requested variances upon a determination that the need for the variances was self-created by the applicant, Nancy Stansbury. That finding was amply supported by the evidence before the board. Proclaiming the issue to be one of law rather than fact, however, this Court simply weighs the evidence differently and concludes that the need for the variances, as a matter of law, was not self-created. With respect, I dissent from both the conclusion and the analysis employed by the Court. It ignores the relevant facts and it ignores the relevant law.
Scattered throughout the opinion are some general statements with which I agree. Early in the opinion, for example, the Court states that “[w]hen a property owner does that which is permitted, or required, under a zoning code, that property owner is not necessarily creating an automatic hardship for purposes of the self-created hardship standards of variance provisions.” (Emphasis added). That is true. Later, the Court confirms the proposition that the mere purchasing of land subject to a contingency that a needed
Where the Court goes astray, in my view, is extending those valid precepts to reach the wholly unwarranted conclusion that, when an owner knowingly re-subdivides property in a way that may otherwise be lawful but that, in an effort to maximize the overall economic value of the land, deliberately and unnecessarily creates one or more odd lots that do not comply with known applicable land use requirements, the owner cannot be denied the variances necessary to excuse compliance with those requirements on the ground of self-inflicted hardship. The Court thus seems to hold that, because the re-subdivision is not itself unlawful, the owner can deliberately create non-conforming lots and nonetheless be eligible for the necessary variances. That is an extraordinary extension — one that essentially stands the doctrine of self-inflicted hardship, and, indeed, land use law itself, on its head. No authority truly in point is cited for the extension, and for good reason. None supports it. Indeed, the authority truly in point, either dismissed or ignored by the Court, establishes exactly the opposite..
It is important to consider what actually occurred here. The original tract consisted of 347 acres. In 1924, most of the tract was subdivided into approximately 157 small rectangular lots, most of which were only 50 feet wide and ranged in size from 15,000 to 20,000 square feet (essentially between one-third and one-half an acre).
At some point early in 1986, James made inquiry of the Anne Arundel County Office of Planning regarding the buildable status of the lots. In March, 1986, he was advised, in relevant part, that, although the subdivision was not subject to the 1970 subdivision regulations adopted by the county, he would be “required to combine whole lots to create building sites in order to meet setback requirements and the requirements of the Health Department.” The Office explained that, under the current R 1 zoning, there was a minimum front setback of 40 feet, a minimum rear setback of 35 feet, and a minimum side setback of 15 feet. The letter also noted that three of the lots did not have “legal access” and, unless combined with other lots, would not be individually buildable. Finally, the letter advised that, although the Critical Area regulations recently adopted by the State would not affect the property, if the property was developed after the county enacted the environmental laws mandated by the Critical Area Protection Act, the property would be subject to the critical area laws.
On January 1, 1987, the county adopted an Antiquated Lots Law, which required the owners of more than one contiguous substandard lot to combine the non-conforming lots in order to meet current lot size and width standards. Under that ordinance, the Stansburys were required to reconfigure the 1924 lots in order to meet a minimum lot size of 40,000 square feet and a minimum lot width of 80 feet. In August, 1988, the county adopted its first
In December, 1990, the Stansburys submitted an application for re-subdivision. The new plat proposed 37 lots, most of which did not meet either the applicable lot size or lot width requirements. The plat also proposed the clearing of 44% of the critical area woodlands, although the regulations applicable to an RCA area limited the clearing to 20 percent. Initially, the plat showed the lot at issue here as part of an open space and storm water management area and not as a reserved lot. It appears — although the record is scant on this — that revised plans submitted in April, 1991, detached the parcel in question from the open space area and designated it as a reserved lot. Notwithstanding the failure of the proposed lots to meet the applicable size and width standards, the revised plat was approved in July, 1991. The only reference to the reserved lot — identified as Reserve Parcel No. 2 — in the county’s file is a handwritten notation on the Administrative Plat that the lot was “unbuildable until a passing perc test is performed.” The evidence showed that this notation was added to the plat by a county official because the lot had recently failed a percolation test. The implication was not necessarily that the lot would be buildable if it did pass a percolation test but that it clearly would not be unless it did.
Following approval of the re-subdivision, the Stansburys began to market the new lots. In doing so, they emphasized the value of the reserved lot to adjoining lots, and they charged a significant premium for those lots. Evidence was presented that Ms. Stansbury told one buyer that, because the reserved parcel contained critical area wetlands and open space, it could never be developed and that his lot would cost more because the reserved parcel would “provide a buffer and enhance the value and enjoyment” of his lot. Buyers of other lots were charged premiums of up to $10,000 because of the unrestricted view they would have of the pristine reserved parcel.
In 1996, after most of the 37 lots were sold, Ms. Stansbury decided to develop the reserved lot and applied for a septic system permit for that lot. Because the lot had failed several percolation tests, however, compliance with the applicable requirements for a standard septic system, which required a 10,000 square foot drainfield area, proved to be a problem. Therefore, Ms. Stansbury sought to avoid those requirements. In July, 1997, having purchased her brother’s interest through a bankruptcy proceeding, she sought a waiver of the subdivision ordinance, which would have made the parcel a “legal lot” and permitted her to use an alternative septic system. No notice of the application for waiver was given to the residents of the subdivision — the persons from whom she had extracted a premium based on the reserve lot remaining undeveloped.
In September, 1997, the county granted a conditional waiver, but even that proved to be ineffective, as the county health department construed one of the conditions as still requiring the 10,000 square foot
What was significant to the Board of Appeals, and what the Court simply ignores, is that, when Stansbury and her brother re-platted the property in 1991, all of the applicable land use controls that made the reserve parcel non-buildable absent the granting of variances were in place. They knew, or at least should have known, when they went about reconfiguring the property that, if they re-platted it as they did, they would likely end up with a non-conforming lot. Evidence was presented to the board from David Blaha, a land and environmental planner whom the board accepted as an expert, that the property could have been re-subdivided to provide either a reserved parcel or a thirty-eighth legal lot that would not have encroached on steep slopes or the critical area buffer and that would not, therefore, have needed any of the requested varianees. He offered exhibits to show how that could have been done. His testimony was unrebutted and was found by the board to be persuasive.
In reaching its conclusion that the need for fifteen separate variances was not self-created, аs a matter of law, the Court dismisses as inapplicable Maryland and out-of-State cases pointing to an exactly opposite conclusion. I believe that the Maryland and out-of-State cases are in point. Moreover, they are consistent with other out-of-State cases that the Court fails even to cite. Let me deal first with the Maryland cases.
In Salisbury Bd. v. Bounds,
“If the peculiar circumstances which render the property incapable of being used in accordance with the restrictions contained in the ordinance have been themselves caused or created by the property owner or his predecessor in title, the essential basis of a variance, i.e., that the hardship be caused solely through the manner of operation of the ordinance upon the particular property, is lacking. In such case, a variance will not be granted; the hardship, arising as a result of the act of the owner or his predecessor will be regarded as having been self-created, barring relief. This rule is simple and of general application in the several states.”
We followed that reasoning in Randolph Hills v. Mont. Co. Council,
The Court dismisses Salisbury Bd. (and the similar case of Marino v. Mayor and City Council of Baltimore,
The Rathkopfs continue in the belief that “[vjariances generally will not be granted when courts determine that the hardship was created by an affirmative act by the owner or his predecessor.” 3 Arden H. Rathkoрf & Daren A. Rathkopf, The Law of Zoning and Planning § 58.21(Edward H. Ziegler, Jr. ed.2002). No distinction in this regard is drawn between requests for reclassifications and requests for variances, and, indeed, the quoted statement refers specifically to variances. They state:
“Division of property in such a fashion as to leave part in non-conformity with the minimum lot size, width, or frontage provisions is a common occurrence, and, on application for a variance for the lot thus rendered substandard, the hardship arising from the inability to put the substandard lot to use is usually considered self-created.”
Id.
The Rathkopfs note that, in some instances, evidence of good faith on the part of the applicant may suffice to eliminate the bar of self-creation of the hardship — as where the applicant has attempted to use alternatives to relieve the hardship prior to requesting a variance, or has relied on representations of zoning authorities, or
The Rathkopfs are not alone in their view. Most of the recognized commentators make the same point. See 5 Norman Williams, Jr. & John M. Taylor, American Planning Law § 146.01 (1985 rev.). Young makes the point that “[ajlthough there is some division of opinion as to whether the self-created hardship rule should be applied in area variance cases, there is general agreement that a variance may not be granted to the owner of a substandard lot where such lot was created by the deliberate conduct of the applicant.” 3 Kenneth H. Young, Anderson’s American Law of Zoning § 20.59 (4th ed. 1996 & Supp. 2002). Until Sasso v. Osgood,
Courts have routinely rejected any distinction between area and use variances in this regard and have denied area variances when the need for them has been self-created. In Sciacca v. Caruso,
In Herman v. Board of Adjustment,
The wife applied for a variance, asserting as a hardship the lack of requisite frontage and the absence of contiguity with other lots that would allow a combination to meet the frontage requirement.
In In Re Volpe’s Appeal,
Volpe has been applied by the Pennsylvania courts in several later cases. In Borough of Baldwin v. Bench, 11 Pa. Cmwlth. 410,
“Since his father would have been barred from receiving a variance because his hardship was self-inflicted, Bench must also be barred. To decide otherwise would be to completely emasculate the holding in Volpe, since a land developer, like the applicant in Volpe, need only deed the property to a member of his family in order to circumvent the holding of the Supreme Court.”
Id.
In Ephross v. Solebury Township Zoning Hearing Bd.,
“We also agree with the authorities below in their conclusion that an experienced developer who purchases a large subdivision with express knowledge of existing zoning regulations and their applicability to that subdivision cannot be allowed to frustrate an express provision of a zoning ordinance by developing a vacant irregular lot in violation of the law. The law does not permit a developer to subdivide its own land and then make a subsequent claim for a variance because a remnant of that land is not in conformity with the zoning ordinance.”
Id. at 184 (emphasis added). See also Booe v. Zoning Board of Appeals of City of Shelton,
The Court fails even to cite these out-of-State cases, which seem to me to be very much in point.
On the record before us, this should be a “slam dunk” case of self-inflicted hardship. Ms. Stansbury, for no reason other than to maximize her economic gain, knowingly and deliberately created a non-conforming lot when it was not necessary to do so. She even used the inability to develop the reserved parcel as a means to extract premiums from the sale of other lots, and then came crying to the zoning authorities that she had a hardship on her hands. The board of appeals, after hearing the witnesses, determined, as a fact, that the hardship was self-created. Normally, we defer to the factual determinations of the agency, but, in its peculiar desire to reward Ms. Stansbury for her deliberate conduct, the Court today throws both zoning law and established administrative law to the wind. We should leave Ms. Stansbury with the hardship she created and not open up vast new stratagems for developers to circumvent land use laws designed to protect everyone else.
Judge RAKER has authorized me to state that she joins in this dissenting opinion.
. The only reference to this subdivision is to Plat No. 2 of Pleasant Plains contained in the record extract. It is not clear whether that plat, as printed in the extract, is complete, but it appears to contain 157 lots, not all of which are consecutively numbered.