• Tie Votes are a Denial, but Members of the Board of Appeals Must Use the Proper Analysis
  • April 17, 2017 | Author: Edward J. Levin
  • Law Firm: Gordon Feinblatt LLC - Baltimore Office
  • As set forth in Forks of the Patuxent Improvement Association, Inc., et al. v. National Waste Managers/Chesapeake Terrace, 230 Md.App. 349 (2016), National Waste Managers/Chesapeake Terrace (“National”) has been trying to construct and operate a rubble landfill on a 481-acre parcel near Odenton in Anne Arundel County since 1991. National obtained a special exception and variance from the Anne Arundel County Board of Appeals to construct and operate a rubble landfill and a sand and gravel operation on the property in 1993. The Court of Appeals affirmed the Board’s approval in 1995. National had 18 months to obtain a construction permit for the project after it obtained zoning approval, otherwise the special exception would lapse unless it obtained a variance for an extension of time.

    One of the requirements for obtaining a construction permit was the issuance of a solid waste refuse disposal permit by the Maryland Department of the Environment (the “MDE”), and that still has not occurred. Needless to say, National did not obtain a construction permit for the project within the original time period.

    Over the years National obtained extensions of time, but the last extension expired in 2013. In that year National filed for another extension, which was opposed by Forks of the Patuxent Improvement Association (the “Association”) and others. Upon consideration, the four members of the Board of Appeals divided evenly as to whether another extension should be granted. National appealed to the Circuit Court for Anne Arundel County, which held that the two-to-two vote had the effect of denying the application, but the circuit court also found that the denying members had used the wrong standards to reach their decisions. The Association then appealed to the Court of Special Appeals, and National cross-appealed.

    Initially, the court held that an evenly divided vote by the Board had the effect of denying National’s application.

    The court also held, however, that the requirement of the Anne Arundel County Code that a variance be no more than the minimum necessary to provide relief to the applicant does not mean that the Board can deny an application, as the denying members voted to do, because obtaining permits might take longer than the period requested by the applicant. The Board’s denial based on that reason, therefore, was erroneous.

    Further, the denying members considered National’s lack of diligence to be disqualifying to its application for a variance. The court stated that instead the proper issue was whether lack of diligence by National caused an undue delay in MDE’s review process.

    According to the court, the legal analysis of both the denying members and the approving members of the Board was incorrect. The core issue is whether the variance would alter the character of the neighborhood, adversely impact surrounding properties, or be detrimental to the public welfare. But the key is that these factors must be examined based on the surrounding neighborhood as it currently exists. Because the members of the Board failed to do that, the court remanded the case for further consideration.