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Uniqueness Plus Practical Difficulties Lead to a Zoning Variance, But the Board Has to Apply the Right Rules

In Dan’s Mountain Wind Force, LLC v. Allegany County Board of Zoning Appeals,­ 236 Md. App. 483, 182 A.3d 252 (2018), the Court of Special Appeals reversed an opinion of the Circuit Court for Allegany County and remanded the case to the Allegany County Board of Zoning Appeals to reconsider its denial of the applicant’s petition for a zoning variance to construct a wind farm.

The wind farm that Dan’s Mountain Wind Force, LLC wanted to install would violate both the minimum separation distance of 2,000 feet from any residential structure and the minimum setback distance of three times the height of the turbine, as set forth in the Allegany County Code.  Dan’s Mountain Wind Force convinced its neighbors to become co-applicants of its petition for a zoning variance.  As noted, the Board of Zoning Appeals denied the variance.

On appeal, the Court of Special Appeals held that in order to obtain a zoning variance, a petitioner has to establish that its property is “unique” (sometimes called “unusual” or “peculiar”) so that the zoning law’s effect is on a particular property rather than a general neighborhood.  If there is a characteristic that is shared by a neighborhood, it should be addressed by legislation, rather than by a zoning variance.  The court stated that there must be a nexus between the unique characterization of the property and the variance sought – in this case regarding separation and setback.  Also, the court held that a variance may only be awarded if the applicant proves that it will suffer either practical difficulty or unnecessary hardship if the zoning variance is not granted.  In this case because the applicant’s variance requests were “area variances” rather than “use variances,” the more lenient “practical difficulty” standard is applicable.

Because the Court of Special Appeals found that the Board of Zoning Appeals did not use the correct considerations in its analysis, the court remanded the case for further proceedings.

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

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Date

10.25.18

Type

Publications

Authors

Levin, Edward J.

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