Suppose you want to build a house. You submit plans to the local jurisdiction, the plans are reviewed, and you are issued a building permit. You build your house in accordance with the approved plans and the building permit. After your house is built, neighbors complain that the house does not meet the applicable front yard setback requirements. No problem, right? You built in accordance with the building permit so you are fine, right? Wrong. An erroneously issued permit can be voided and cause immense inconvenience (or worse), as occurred in In the Matter of the Petition of Angela Taylor, No. 2119 Sept. Term 2017, 2019 WL 2006012 (Md. Ct. Spec. App. May 7, 2019).
Guy Naylor purchased a residential lot on Roland Avenue in Baltimore City. He submitted plans and applied for a building permit to build a 4,000 square foot house on his 18,226 square foot lot. The plans depicted a 30 foot front yard setback from the house to the street to match the general residential setback for the zone of 30 feet. The City approved the building plans and issued a building permit for construction of the home with a 30 foot setback. Thereafter, Naylor constructed his house and received a use and occupancy permit from the City. Unfortunately for Naylor, a separate section of the zoning code required a front yard setback “averaging” with neighboring properties, which yielded a 40 foot front setback.
Naylor’s neighbors (including Angela Taylor, the named plantiff in the case) were apparently unhappy with the location of the home and complained to the City. The City realized it had made an error in approving a 30 foot setback instead of a 40 foot setback. Over a year after the building permit was issued, and after the City had issued a use and occupancy permit for the completed home, the City sent Naylor a letter advising that it had made an “error” in permit review and as a result the “structure as constructed on the Property is non-conforming with the Baltimore City Code.” The City instructed Naylor to apply for a variance to cure the 10 foot setback nonconformity.
Naylor applied for a variance, which was denied. He then appealed to the City Board of Municipal and Zoning Appeals (“BMZA”). The BMZA dismissed the variance appeal on the basis that it lacked jurisdiction because neither the original building permit nor the subsequent use and occupancy permit had been revoked (or appealed).
In response to the BMZA action, the City revoked the use and occupancy permit for the property. Naylor appealed the revocation of the use and occupancy permit and, in conjunction with the appeal, requested a 10 foot front yard setback variance. After a hearing, the BMZA granted Naylor’s request for the variance. The BMZA found that Naylor satisfied the requirements for a variance by proving the two necessary elements: (a) the “uniqueness” of his property and (b) he would suffer “practical difficulty or unnecessary hardship” in complying with the 40 foot (not 30 foot) front yard setback requirement. Of significance to the disposition of the case, the parties conceded that the elements of uniqueness and hardship needed to be proven as of the date of issuance of the original building permit, not at the time the use and occupancy permit was revoked.
The aggrieved neighbors appealed the BMZA variance approval to the Circuit Court for Baltimore City. The circuit court affirmed the BMZA decision. The aggrieved neighbors further appealed to the Court of Special Appeals. The neighbors argued that the BMZA erred in granting the setback variance because Naylor had not sufficiently demonstrated (a) uniqueness of his property, nor (b) “practical difficulty or unnecessary hardship” in complying with the 40foot setback requirement as of the date of issuance of the original building permit.
In reviewing the decision of the BMZA, the Court of Special Appeals found that there was sufficient evidence in the record to support the BMZA’s finding that the property met the “uniqueness” requirement for granting a variance. The court found, however, that the BMZA did not sufficiently set forth the factual basis for finding “practical difficulty.” The court vacated and remanded the case for further proceedings, instructing the BMZA to “articulate the particular practical difficulty caused by the Property’s unique physical characteristics.” The court wanted specific findings of facts – not merely conclusions or recitations of statutory criteria – so that it could properly review a decision to grant a setback variance. The case will go back to the BMZA for additional proceedings.
Wow! How could anyone not feel sympathy for this homeowner? It seems Mr. Naylor properly sought and obtained City permits, yet he still became embroiled in extensive legal proceedings. Clearly he or his planner/builder erred in preparing plans based upon the generally applicable 30 foot setback without accounting for the “averaging” 40 foot setback imposed by another section of the Code. But this was a subtle error; City zoning and permitting offices made the same “error.” The City issued building permits and a use and occupancy permit for Naylor to build and occupy the home with a 30 foot front yard setback. Isn’t Mr. Naylor entitled to rely upon the City’s permits as being valid? The Taylor case makes clear that the answer is: “No – if a permit is issued in error, it can be revoked.”
The Taylor case is an unreported opinion and cannot be cited in court as either precedent or as persuasive authority. Nonetheless, the case is instructive on several points.
The homeowner in Taylor (Mr. Naylor) might have sufficiently compelling facts to warrant an estoppel against the City. The homeowner might argue that the City is estopped from revoking the use and occupancy permit because (a) the City issued a permit, (b) the homeowner reasonably relied upon the City’s issuance of the permit and (c) the homeowner took action to his detriment – constructing a home – in reliance upon the permit. Mr. Naylor spent hundreds of thousands of dollars to construct a home based upon permits issued by the City. Mr. Naylor received a use and occupancy permit from the City to occupy the home. Realistically, the home cannot be moved rearward 10 feet to satisfy the setback requirements. These facts might persuade a court that this may be one of the rare cases where municipal estoppel should apply. It is arguably a significant “injustice” for the City to revoke a use and occupancy permit where a homeowner, after having spent significant money to construct a home in reliance upon the validity of a permit issued by the City, cannot practically move the house 10 feet to satisfy the setback requirement. The “injustice” that would be wrought by permit revocation seems to substantially outweigh the general interests of the public in enforcing the “averaging” setback distance and requiring that the home be set back an additional 10 feet from the street.
For questions, contact Bill Shaughnessy (410) 576-4092.