Relating to Real Estate

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A Tie Vote Denies a Variance but the Votes Must Be Made for Good Reason

Since 1990 National Waste Managers, Inc. Chesapeake Terrace (“National”) has been trying to obtain zoning approval to construct and operate a rubble landfill on a 481-acre parcel near Odenton in Anne Arundel County.  In 1993 National obtained a special exception and variance from the Anne Arundel County Board of Appeals to construct and operate a rubble landfill and sand and gravel operation on the property.  After the Court of Appeals affirmed the Board’s zoning approval in 1995, National had 18 months to obtain a construction permit for the project after it obtained zoning approval, or the special exception was scheduled to expire.

National did not obtain a construction permit for the project within the original time period or during any extension of time that National obtained since then.

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, and which is the subject of National Waste Managers, Inc. Chesapeake Terrace v. Forks of the Patuxent Improvement Association, Inc. 453 Md. 423, 162 A.3d 874 (2017). When the matter came before them, 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. 

The ultimate conclusion of the Court of Special Appeals was that the case should be remanded and the Board should consider “whether there have been sufficient actual changes to the neighborhood surrounding the Project Site that occurred during or after 2001 to render National’s special exception no longer compatible with the current established character of the neighborhood.”  See Forks of the Patuxent Improvement Association, Inc., et al. v. National Waste Managers/Chesapeake Terrace, 230 Md.App. 349 (2016), and Relating to Real Estate February 2017.

The Court of Appeals agreed with the circuit court and the Court of Special Appeals that with the two-to-two split of the Board of Appeals National did not meet the burden of persuasion.  The court examined the reasons proffered by the denying members of the Board for their votes and found them to be arbitrary and capricious and against the evidence presented.  Further, the court found that one of the reasons given was contrary to the applicable statute.

The Court of Appeals decided that the Board’s decision need not be reversed, but that the case should be remanded to determine what impact the requested two-year extension would have on the character of the neighborhood, the appropriate use or development of adjoining property, or the public welfare.

For questions, please contact Ed Levin (410) 576-1900.

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Date

11.08.17

Type

Publications

Authors

Levin, Edward J.

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Real Estate