Managing Administrative Law Judge Lawrence Stahl issued his decision in the case at
300 Hopkins in which the homeowner requested a zoning variance so she could expand her kitchen and add a powder room to the first floor. Her request was denied.
The question came down to not whether the addition was attractive or whether many others had the similar additions already, which they do, but whether she could prove that her home was unique and therefore uniquely harmed by the zoning rules. That is the deciding factor in variance cases.
It's interesting to note that many homes in Rodgers Forge were built before the current setback regulations took effect and as built they do not conform to code.
Christiane Rothbaum, the homeowner, said that a few years ago she witnessed the construction just a few blocks from her of another addition very similar to the one she wanted. In that case, no variance was requested and apparently no board approval was sought.
"Don't ask, don't tell -- just do, and you will get away with it," Rothbaum said. "That's the lesson. I tried to follow the legal procedure and here I am."
Below is a portion of Stahl's ruling:
"On its face, this matter appears to be a complicated one, balancing the understandably logical request of a homeowner to understandably alter her home in response to a pressing personal medical need. It clear from all the testimony that the Petitioner is an admirable homeowner and that her care for her home stands as an example and credit to the Rogers Forge community. It is also true that, for whatever reason, many of the homes in Rogers Forge have extensions such as that desired by the Petitioner.
Nevertheless, the reality of this case is simple. In order to construct her desired addition, Petitioner must obtain a variance. Either she qualifies under present statutory and case law, or she does not.
The obtaining of the variance governed by Section 307.1 of the B.C.Z.R. as well as well-settled case law. These requirements are purposely strict in nature, difficult to satisfy and reflect the public policy of severely restricting the granting of variance relief. The seminal case on the subject, Cromwell v. Ward 102 Md. App. 691 (1995), states the prevailing rule that “variances are to be granted sparingly, only in rare instances and under peculiar and exceptional circumstances….a variance should be strictly construed. Cromwell Id at 700. Section 307.1 of the zoning regulations permits variances to be granted “….only in cases where special circumstances or conditions exist that are peculiar to the land or structure which is the subject of the variance request and where strict compliance with the zoning regulations for Baltimore County would result in practical difficulty or unreasonable hardship. Cromwell requires that “uniqueness” first be established before the factor of “practical difficulty” is even addressed. Cromwell Id at 698. In requiring a prerequisite finding of “uniqueness” the Court defined the term and stated:
In the zoning context the “unique” aspect of a variance requirement does not refer to the extent of improvements upon the property, or upon neighboring property. “Uniqueness” of a property for zoning purposes requires that the subject property has an inherent characteristic not shared by other properties in the area, i.e, its shape, topography, subsurface condition, environmental factors, historical significance, access or non-access to navigable waters, practical restrictions imposed by abutting properties (such as obstructions) or other similar restrictions. In respect to structures, it would relate to such characteristics as unusual architectural aspects in bearing or parting walls…Id. At 710.
Only thereafter, do we address the issue of practical difficulty. ...
In considering the testimony and evidence presented, I am not persuaded that the Petitioner has established the “uniqueness” as regards the subject property located at 300 Hopkins Road, as called for in Section 307.1 and defined and discussed in Cromwell v. Ward, supra. ... Pursuant to the advertisement, posting of the property, and public hearing on this petition held, and after considering the testimony and evidence offered by Petitioner, I find that Petitioner’s variance request should be denied."
To read the entire document, including his recap of testimony, click here.
What do you think? Post or read comments here:
