REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 939

September Term, 2014

ASSATEAGUE COASTAL TRUST, INC.

v.

ROY T. SCHWALBACH, ET AL.

Hotten,

Berger,

Arthur,

JJ.

Opinion by Arthur, J.

Filed: July 2, 2015
The Board of Zoning Appeals for Worcester County granted a critical area

variance authorizing landowner Roy T. Schwalbach to construct a pier or walkway across

his private wetlands. The Circuit Court for Worcester County upheld the Board’s

decision after Assateague Coastal Trust, Inc. (“ACT”), a non-profit environmental

advocacy organization, petitioned for judicial review. ACT now appeals from that

judgment, and we also affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Property Subject to the Variance Request

In 2003, Schwalbach purchased a subdivided property located at 12933 Old Bridge

Road in West Ocean City. The property consists of five and one-half rectangular lots that

were originally platted in the 1930s. The Worcester County zoning classification for the

property is “R-3 Multi-Family Residential.”

The property sits immediately north of Old Bridge Road and immediately south of

the shoreline of an unnamed tributary of the Sinepuxent Bay. Because of its proximity to

this body of water, the property falls within the Atlantic Coastal Bay Critical Area. See

Md. Code (1974, 2012 Repl. Vol.), § 8-1807(b) of the Natural Resources Article. Under

critical area regulations, the location is designated as an “Intensely Developed Area,”

which is defined as an area “where residential, commercial, institutional, and/or

industrial, developed land uses predominate, and where relatively little natural habitat

occurs.” See COMAR 27.01.02.03; Worcester County Code (“WCC”) § NR 3-106(a).

The southern portion of the property includes three and one-half lots along Old
Bridge Road. This portion of the property has been improved with a residence, in-ground

swimming pool, pool house, and connecting walkways.

The northern portion of the property consists of two unimproved lots bordering the

waterway. Tidal marsh extends from the improved portion of the property to the water’s

edge. The northern lots are covered entirely by tidal marsh.

B. Schwalbach’s Variance Request

Schwalbach planned to construct a pier or walkway that would extend across the

marsh to connect the improved portion of the property to a proposed dock six feet past the

shoreline. Under the County’s critical area ordinance, “[n]ew piers or docks shall not

extend more than one hundred feet in length over state or private wetlands.” WCC § NR

3-125(b)(1). To reach the shoreline, however, Schwalbach’s structure would have to

extend 180 feet across the marsh. Consequently, on August 14, 2013, he submitted an

application for a variance with the Board of Zoning Appeals for Worcester County,

requesting “[a] variance [from] the Atlantic Coastal Bays Critical Area Law to authorize a

3 foot wide by 180 foot long pier across tidal marsh.”1

 The word “pier” usually refers to a structure that extends from the shore over 1

water. See, e.g., MERRIAM-WEBSTER ONLINE DICTIONARY, http://www.m-w.com/

dictionary/pier (last visited June 29, 2015). The structure at the subject of Schwalbach’s

variance request might be more accurately described as an elevated walkway. In any

event, the Worcester County critical area ordinance uses the word “pier” as a generic term

that includes “[a]ny pier, wharf, dock, walkway, bulkhead, breakwater, piling or other

similar structure.” WCC § NR 3-102(a). Because the parties, the Board, and the circuit

court consistently referred to the structure here as a “pier,” we accept and employ that

(continued...)

2
On September 22, 2013, the Board of Zoning Appeals (“the Board”) received a

staff report with comments on the variance application. The report included a letter from

the Natural Resources Administrator of the Worcester County Department of

Developmental Review and Permitting. The letter emphasized: “As the Board is aware

from previous variances to the Critical Area Law, all applicants must address six

standards. The Critical Area Law requires that each of the six standards for a variance be

met before the Board renders a decision.”2

In Worcester County, the following standards must be satisfied before a critical

area variance may be granted:

(b) Standards. The provisions for granting such a variance shall include

evidence submitted by the applicant that the following standards are met:

(1) Special conditions or circumstances exist that are peculiar to the

applicant’s land or structure and a literal enforcement of provisions and

requirements of the County’s Atlantic Coastal Bays Critical Area Program

would result in unwarranted hardship;

(2) A literal interpretation of the provisions of the County’s Atlantic

Coastal Bays Critical Area Program and related laws will deprive the

applicant of rights commonly enjoyed by other properties in similar areas

within the Atlantic Coastal Bays Critical Area;

(3) The granting of a variance will not confer upon an applicant any

special privilege that would be denied by the County’s Atlantic Coastal

 (...continued) 1

designation for the remainder of this opinion.

 The report also included a letter from the State Critical Area Commission, which 2

stated that “applicants need to demonstrate and the Board of Appeals needs to find that

each and every one of the County’s variance standards has been met[.]”

3
Bays Critical Area Program to other lands or structures within the Atlantic

Coastal Bays Critical Area;

(4) The variance request is not based upon conditions or

circumstances which are the result of actions by the applicant nor does the

request arise from any condition relating to land or building use, either

permitted or non-conforming on any neighboring property;

(5) The granting of a variance shall not adversely affect water quality

or adversely impact fish, wildlife or plant habitat within the Atlantic Coastal

Bays Critical Area and the granting of the variance will be in harmony with

the general spirit and intent of the County’s Atlantic Coastal Bays Critical

Area Program;

(6) (Reserved)

(7) The Board of Zoning Appeals shall not make a decision relative

to a request for such a variance without reviewing the comments of the

Department and finding that the applicant has satisfied each of the

provisions and standards contained herein.

WCC § NR 3-111(b); see also COMAR 27.01.12.04(B).

The staff report commented that, as a result of the layout of the property,

Schwalbach would suffer an undue hardship if he were prohibited from constructing a

pier in excess of 100 feet in length. The report stated that the property included “[a] large

expanse of wetlands,” and an owner would be prevented “from reaching navigable waters

and enjoy[ing] his riparian rights” without a variance from “regulations that have been

implemented long after these lots were platted.” The report further stated that any

potential adverse environmental impact would be minimal because the structure was

modest in size, the project had been subject to extensive environmental review by the

U.S. Army Corps of Engineers and the Maryland Department of the Environment, and

4
substantial mitigation would offset any disturbance from the construction.3

The staff report concluded that Schwalbach’s application satisfied each of the

variance standards of the County’s zoning ordinance and recommended that the Board

approve the request.

C. Board’s Decision Granting Variance

Schwalbach presented his application to the Board at a hearing on October 10,

2013. Schwalbach testified that the purpose of the proposed structure was to provide

access to the navigable water at the edge of his property. His documentary submissions

included site plans from a professional surveyor who had reviewed the project. The

surveyor testified that Schwalbach would not have access to the water if he were forced to

shorten the pier to less than the proposed length.

Schwalbach also called a private environmental consultant, who had previously

worked as a Natural Resources Administrator for the County. The environmental

consultant confirmed that Schwalbach had obtained an authorization from the U.S. Army

Corps of Engineers (see generally 33 U.S.C. § 403; 33 C.F.R. § 322) and a tidal wetlands

license from the Maryland Department of the Environment. The consultant explained that

See WCC § NR 3-102 (defining “mitigation” as the “[c]reation, restoration or 3

enhancement of forest or other plant communities that were or will be lost due to

regulated activities”); WCC § NR 3-111(f)(1) (“[a]dverse impacts resulting from the

granting of the variance shall be mitigated by the planting of trees and shrubs on the site

at an amount equal to not less than three times the square footage of the area of

disturbance allowed by the variance or as recommended by the Department”). 

5
he had gone through extensive negotiations with those agencies “to get a configuration

that fit the property and fit the water depths and fit the channel specifically for that site.” 

Based on the “stringent special conditions” with which Schwalbach would have to

comply during and after construction and while boating, he opined that the proposed pier

would have no adverse effect on water quality.4

The environmental consultant also testified that the property was located in an area

“very heavily used for boating,” with “numerous boat docks up and down the

shoreline[.]” He estimated that there were several hundred boats at nearby marinas. In 5

sum, he opined that the site plan represented the minimum possible intrusion to allow

Schwalbach to enjoy access to the water, a right enjoyed by others in the community.

The Board also received into the record a letter from ACT. Ms. Kathy Phillips, the

Assateague Coastkeeper, wrote: “Substantial research data[] and the Worcester County

Code support the conclusion that a dock or pier extending 100 feet or more over marsh

represents a change in the character of the marsh.” She further commented that “while

ACT understands and supports the concept of riparian rights, . . . very shallow bodies of

 He further testified that he had appeared before the Worcester County Shoreline 4

Commission and received unanimous approval for the construction permit. See WCC §

NR 2-102. ACT also presented testimony at a hearing before that Commission. 

 The Schwalbach property and the nearby marinas are located south of the Route 5

50 drawbridge that connects the mainland to the barrier island on which Ocean City is

located. Because of their location south of the drawbridge, these properties allow for easy

marine access to the Atlantic Ocean via the Ocean City Inlet, which is also south of the

drawbridge.

6
water [are] not capable of supporting regular motorized boat access and should be

considered lands protected by the Public Trust.” ACT requested that the Board justify its

decision in writing if it granted a variance.

At the conclusion of Schwalbach’s presentation, the Board members unanimously

voted to grant the variance. In a written decision issued on November 14, 2013, the

Board adopted and re-stated the findings of fact set forth in the staff report. As its

conclusion, the decision stated: “The Board reviewed Staff comments and the Applicant

has satisfied all standards.”

D. ACT’s Petition for Judicial Review

On November 22, 2013, ACT filed a petition for judicial review in circuit court. 6

In a memorandum supporting its petition, ACT argued that Schwalbach had failed to

prove compliance with each of the individual standards of WCC § NR 3-111(b). At the

judicial review hearing, ACT further argued that the Board’s decision was “defective on

its face” because the decision did not affirmatively express whether Schwalbach had

overcome a statutory presumption that the activity subject to the variance application did

not conform to the general purpose of the critical area requirements. See WCC § NR

3-111(d)(4) (requiring that Board “shall make written findings as to whether the applicant

 Schwalbach initially moved to dismiss the petition, arguing that ACT lacked 6

standing to challenge the Board’s decision. The court denied the motion, citing ACT’s

participation in the variance hearing and an affidavit from Ms. Phillips regarding

standing. Although Schwalbach renewed his objection to ACT’s standing at the judicial

review hearing, he does not raise any argument about standing in this appeal.

7
has overcome the presumption of nonconformance”).

The circuit court issued an opinion and order on June 20, 2014, affirming the

Board’s decision. The court found that there was substantial evidence in the record

supporting the Board’s findings that Schwalbach had satisfied each of the variance

standards. The court also concluded that the Board did not erroneously fail to make a

separate written finding that Schwalbach had overcome the presumption of

nonconformance.

ACT filed a timely notice of appeal from the circuit court’s judgment.

QUESTIONS PRESENTED

ACT now presents two interconnected questions, which we quote:

I. Did the [Board] err as a matter of law in finding that [Schwalbach]

had proven by competent and substantial evidence each of the six

standards required for a variance under [WCC § NR 3-111] without

taking into account that [Schwalbach] had the burden to overcome

the presumption of nonconformance?

II. Is the [Board’s] decision erroneous as a matter of law because the

[Board] never found that [Schwalbach] met his burden of proof and

persuasion to overcome the presumption of nonconformance?

As discussed in this opinion, we conclude that substantial evidence in the record

supported the Board’s determination that the application satisfied each of the variance

standards. Even though the Board did not make an express written finding that the

applicant had overcome the statutory presumption of nonconformance, that omission,

under the circumstances of this case, does not require reversal or remand.

8
DISCUSSION

A. Standards for Granting of Critical Area Variance

In 1984 the General Assembly enacted the Chesapeake and Atlantic Coastal Bays

Area Protection Program. See Md. Code (1974, 2012 Repl. Vol.), Subtitle 18 of Title 8

of the Natural Resources Article (“N.R.”). The main purpose of the program is to foster

“more sensitive development activity for certain shoreline areas” of the Chesapeake and

Atlantic Coastal Bays and their tributaries, “so as to minimize damage to water quality

and natural habitats[.]” N.R. § 8-1801(b). New development in these shoreline areas is

generally presumed to be contrary to the purposes of the critical area program. N.R. §

8-1801(a)(4).7

The critical area law is State-imposed, but locally enforced. The statute assigns

each jurisdiction with primary responsibility for developing a local critical area program,

subject to oversight from the State Critical Area Commission. See N.R. § 8-1808(a)(1). 

Each local program must meet certain minimum standards, including the establishment of

procedures for the granting of variances. N.R. § 8-1808(c)(1); see also COMAR

27.01.12.

“The lodestar for [a local zoning board’s] consideration of a variance application”

 Section 8-1801(a)(4) states that “new development of nonwater-dependent 7

structures . . . is presumed to be contrary to the purpose of this subtitle[.]” Individual

private piers installed or maintained by riparian landowners are not included in this

category of “water-dependent” facilities. See COMAR 27.01.03.01(C). 

9
is the unwarranted hardship standard. Chesapeake Bay Found., Inc. v. DCW Dutchship

Island, LLC, 439 Md. 588, 614 (2014). The statute provides:

(5) A variance to a local jurisdiction’s critical area program may not be

granted unless:

(i) Due to special features of a site, or special conditions or

circumstances peculiar to the applicant’s land or structure, a literal

enforcement of the critical area program would result in unwarranted

hardship to the applicant;

(ii) The local jurisdiction finds that the applicant has satisfied each

one of the variance provisions; and

(iii) Without the variance, the applicant would be deprived of a use

of land or a structure permitted to others in accordance with the provisions

of the critical area program.

N.R. § 8-1808(d)(5).

In considering a variance application, the local zoning authority “shall presume

that the specific development activity in the critical area that is subject to the application

and for which a variance is required does not conform with the general purpose and

intent” of the Critical Area Program subtitle, its implementing regulations, and the

requirements of the local program. N.R. § 8-1808(d)(3)(ii). The applicant bears “the

burden of proof and the burden of persuasion to overcome [this] presumption[.]” N.R. §

8-1808(d)(4)(i). “Based on competent and substantial evidence, a local jurisdiction shall

make written findings as to whether the applicant has overcome the presumption[.]” N.R.

10
§ 8-1808(d)(4)(ii); see also COMAR 27.01.12.04.8

The Worcester County ordinance likewise provides that the Board shall presume

that the proposed activity does not conform with the general purpose and intent of the

critical area laws and regulations; that the applicant bears the burdens of proof and

persuasion to overcome the presumption of nonconformance; and that the Board must

make written findings as to whether the applicant has overcome the presumption of

nonconformance. See WCC § NR 3-111(d).

In this appeal, ACT attacks the Board’s decision on two fronts. First, ACT

contends that Schwalbach’s application failed to satisfy some of the individual

requirements for a variance. Second, ACT asserts that the Board erred by failing to apply

the statutory presumption of nonconformance and by not making a written finding as to

whether Schwalbach met his burden to overcome that presumption. Ultimately, neither

challenge is successful.

B. Substantial Evidence Supporting the Board’s Decision

ACT argues that Schwalbach failed to present substantial evidence that his

application satisfied “five of the six standards” from the Worcester County critical area

ordinance. Because the applicant’s failure to meet any one of the standards requires the

denial of the variance application (see N.R. § 8-1808(d)(5)(ii); COMAR 27.01.12.04(B);

 The requirements of section 8-1808(d) apply to all critical area variance 8

applications, notwithstanding any local ordinance or the lack of a local ordinance. See

N.R. § 8-1808(d)(9).

11
WCC § NR 3-111(b)(7)), we must consider each standard individually.9

In considering this challenge, we are cognizant of the limited role that the courts

must play in reviewing the decision of a local land-use board. The court’s task is to

determine whether the issue decided by the agency was at least “fairly debatable” based

on all of the evidence. See Becker v. Anne Arundel Cnty., 174 Md. App. 114, 138 (2007). 

As the Court of Appeals has explained:

Our role in reviewing the final decision of an administrative agency, such as

the Board of Appeals, is limited to determining if there is substantial

evidence in the record as a whole to support the agency’s findings and

conclusions, and to determine if the administrative decision is premised

upon an erroneous conclusion of law. In doing so, a reviewing court

decides whether the Board’s determination was supported by such evidence

as a reasonable mind might accept as adequate to support a conclusion. . . .

The court may not substitute its judgment on the question whether the

inference drawn is the right one or whether a different inference would be

better supported. The test is reasonableness, not rightness.[] Moreover, a

reviewing court must review the agency’s decision in the light most

favorable to it; . . . the agency’s decision is prima facie correct and

presumed valid.

Critical Area Comm’n for Chesapeake & Atl. Coastal Bays v. Moreland, LLC, 418 Md.

111, 122-23 (2011) (citations and quotation marks omitted).

 In White v. North, 356 Md. 31, 50-51 (1999), the Court of Appeals held, under a 9

prior version of the critical area law, that the unwarranted hardship standard was the

essential test, and that the other provisions provided guidance but could not be construed

individually to overrule a finding of unwarranted hardship. The General Assembly

amended the statute in 2002 to add the requirement that an applicant satisfy each of the

individual variance provisions. See Becker v. Anne Arundel Cnty., 174 Md. App. 114,

131-32 (2007).

12
Unwarranted Hardship

Before the Board of Zoning Appeals for Worcester County may grant a critical

area variance, the applicant must produce evidence to persuade that Board that “[s]pecial

conditions or circumstances exist that are peculiar to the applicant’s land or structure and

a literal enforcement of provisions and requirements of the County’s Atlantic Coastal

Bays Critical Area Program would result in unwarranted hardship[.]” WCC § NR

3-111(b)(1). In this context, the term “unwarranted hardship” is defined as: “A situation

wherein without a variance, an applicant would be denied reasonable and significant use

of the entire parcel or lot for which the variance is requested.” WCC § NR 3-202; see

also N.R. § 8-1808(d)(1); COMAR 27.01.12.01.

Schwalbach introduced evidence, in the form of testimony and supporting

documents from an environmental consultant and a surveyor, that the features of the

property made it impossible to reach the water at the edge of the property without a pier

in excess of 100 feet. The Board credited this testimony and concluded that, as a result of

the “large expanse of wetlands” located on the property, Schwalbach would not be able to

“enjoy his riparian rights” if the zoning restrictions were strictly enforced.

In this appeal, ACT does not dispute the Board’s conclusion that Schwalbach

could not gain access to the navigable waters bounding his property without a variance. 10

 The main premise of ACT’s objection to the project was that Schwalbach should 10

not be permitted access to the water, because, ACT argued, the body of water was “not

(continued...)

13
Instead, ACT contends that the denial of riparian access is not an unwarranted hardship

because Schwalbach has already made other extensive improvements on his land.

“‘The unwarranted hardship standard, and its similar manifestations, are equivalent

to the denial of reasonable and significant use of the property.’” DCW Dutchship, 439

Md. at 619 (quoting Belvoir Farms Homeowners’ Ass’n, Inc. v. North, 355 Md. 259, 282

(1999)). In Belvoir Farms, the Court of Appeals explained that the unwarranted hardship

standard is generally stricter than a “practical difficulties” standard (id. at 266), but not as

stringent as an unconstitutional taking standard, which examines whether “a ‘regulation

denies all economically beneficial or productive use of land.’” Id. at 281-82 (quoting

Lucas v. S. Carolina Coastal Council, 505 U.S. 1003, 1015 (1992)). Stated differently,

under the unwarranted hardship standard, the need for the variance “‘must be substantial

and urgent and not merely for the convenience of the applicant[.]’” Chesley v. City of

Annapolis, 176 Md. App. 413, 432 (2007) (quoting Belvoir Farms, 355 Md. at 276). The

General Assembly has since modified the definition of unwarranted hardship to clarify

that the unwarranted hardship analysis looks to the use of “the entire parcel or lot for

which the variance is requested.” N.R. § 8-1808(d)(1) (emphasis added); see Becker, 174

Md. App. at 132-33. Nevertheless, the Court of Appeals has continued to rely on Belvoir

Farms for the basic proposition that the unwarranted hardship standard is less stringent

 (...continued) 10

capable of supporting regular motorized boat access.”

14
that an unconstitutional takings standard. See DCW Dutchship, 439 Md. at 618-19.

In DCW Dutchship, the Court of Appeals upheld a local board’s finding that the

unwarranted hardship criterion was satisfied, where testimony showed that no dwelling

could be built on a particular property without a variance. Id. at 619 & n.25; accord

Becker, 174 Md. App. at 144 (instructing zoning board on remand to reconsider the

variance criteria, while “recognizing that [the property owners] are entitled to build some

type of reasonable structure”); id. at 141 (noting that “here, a house can be legally built on

the property in question, but not without variances, and a potential constitutional taking is

a serious concern”).

In the instant case, the right asserted is not the right to construct a residence, but

the right of access from that residence to the navigable waters bordering the property. 

Neither this Court nor the Court of Appeals has decided the question of whether denying

an owner riparian access may amount to the denial of reasonable and substantial use of

the entire property.11

As Schwalbach points out, under Maryland common law a “‘riparian proprietor,

whose land is bounded by a navigable river, . . . has the right of access to the navigable

 A number of cases have addressed, either directly or indirectly, whether the 11

denial of other uses may constitute an unwarranted hardship. E.g., Lewis v. Dep’t of Nat’l

Res., 377 Md. 382, 412-17 (2003) (hunting camp); Mastandrea v. North, 361 Md. 107,

134-37 (2000) (brick-in-sand pathway); White v. North, 356 Md. 31, 48-52 (1999) (inground swimming pool). These authorities, however, were decided before the General

Assembly added the requirement that the reviewing body examine the use of the entire

parcel or lot.

15
part of the river from the front of his lot, and the right to make a landing, wharf, or pier

for his own use[.]’” White v. Pines Cmty. Improvement Ass’n, Inc., 403 Md. 13, 16-17

(2008) (quoting Baltimore & Ohio R.R. Co. v. Chase, 43 Md. 23, 35 (1875)). These

common-law riparian rights are valuable property rights “‘of which, when once vested,

the owner can only be deprived in accordance with the law of the land, and, if necessary

that they be taken for public use, upon due compensation.’” Pines, 403 Md. at 17

(quoting Chase, 43 Md. at 35). Under the Maryland Code, an owner of property on state

or private wetlands has the right to make certain improvements to exercise riparian rights

and to preserve access to navigable water. See Md. Code (1982, 2007 Repl. Vol.), §§

16-201(a), 16-304(3) of the Environment Article (“Envir.”).

ACT points out that these riparian rights nonetheless remain “subject to such

general rules and regulations as the [l]egislature may think proper to prescribe for the

protection of the rights of the public[.]” Pines, 403 Md. at 17. But although an owner’s

riparian rights are not absolute, Schwalbach’s effort to exercise an important component

of his property rights, in a boating community where riparian access is an important

attribute of land ownership, makes his request more urgent and substantial than other

requests. He did not make his application for the sake of mere convenience or from the

desire to add a pleasant amenity. Cf. Chesley, 176 Md. App. at 435-36 (affirming denial

of variance where board reasonably concluded that proposed garage was mere

convenience for owner) (citing Citrano v. North, 123 Md. App. 234, 242 (1998)

16
(affirming determination that denial of critical area variance to construct free-standing

deck on which to enjoy view was not a hardship); North v. St. Mary’s Cnty., 99 Md. App.

502, 519 (1994) (reversing determination that denial of critical area variance to construct

gazebo on which to enjoy view amounted to hardship)).

The Board here concluded that prohibiting access from the residence to the

navigable waters bounding the property amounts to the denial of reasonable and

substantial use of the entire property. In this context, the Board’s interpretation and

application of its guiding statute is entitled to considerable weight. See DCW Dutchship,

439 Md. at 626. The Court of Appeals has emphasized: “‘Whether a property owner has

been denied reasonable and significant use of his property is a question of fact best

addressed by the expertise of the Board of Appeals, not the courts.’” Id. at 619 (quoting

Belvoir Farms, 355 Md. at 282); see DCW Dutchship, 439 Md. at 630 (“[w]hen

addressing the issue of reasonable and significant use, a substantial amount of deference

to the Board’s findings is required”) (citing White v. North, 356 Md. 31, 49-50 (1999)

(“whether a property owner is being denied a reasonable and significant use initially will

be a determination of the zoning agency, which we presume possesses the necessary

expertise to decide what is reasonable and significant”)); see also Chesley, 176 Md. App.

at 436.

In light of the considerable deference that is owed to the Board’s factual findings

and to its interpretation of the statute it is charged with implementing, we will not disturb

17
the Board’s determination as to the unwarranted hardship criterion. It was reasonable for

the Board to conclude that the need for the variance arose from special features that were

peculiar to the property. Particularly in light of the importance of riparian access in what

is essentially a boating community, with several marinas and hundreds of vessels in the

immediate vicinity, the question of whether the deprivation of riparian access amounted

to the denial of reasonable and substantial use of the entire property was properly

addressed to the expertise of the Board.12

Hardship Not Self-Created

The Board here found that Schwalbach’s application satisfied the statutory

requirement that “[t]he variance request is not based upon conditions or circumstances

which are the result of actions by the applicant nor does the request arise from any

condition relating to land or building use, either permitted or non-conforming on any

neighboring property[.]” WCC § NR 3-111(b)(4).

ACT does not directly argue that Schwalbach’s hardship was self-created. Within

its argument regarding the unwarranted hardship standard, however, ACT suggests that

 Schwalbach argues, at some length, that without a variance he would be denied 12

all use of the two undeveloped lots. He asserts that the undeveloped lots are separately

platted and together form a separate tax parcel. Although his assertion appears to be

factually correct, Schwalbach did not present this argument to the Board, and it did not

form a basis for the decision. The Board granted Schwalbach’s request for a variance for

the entire property, not for any individual lot or parcel. Moreover, the structure is not

limited to the undeveloped lots: it begins on the developed lots. For these reasons, we

have analyzed the decision by examining the use of the entire property for which the

variance was requested, and not the use of the individual lots or parcels.

18
the hardship cannot be attributed to the land configuration and zoning restrictions,

because Schwalbach purchased the property “well after the enactment of the Law and

with knowledge – actual or constructive – of the restrictions imposed by the Law.” ACT

cites a passage from Cromwell v. Ward, 102 Md. App. 691, 717 (1995), in which this

Court quoted this sentence from Sibley v. Inhabitants of Town of Wells, 462 A.2d 27, 31

(Me. 1983): “[W]hen a landowner purchases land with actual or constructive knowledge

of the zoning restrictions, he may not be granted a variance on the grounds of undue

hardship.”

More recently, however, in Richard Roeser Professional Builder, Inc. v. Anne

Arundel Cnty., 368 Md. 294 (2002), the Court of Appeals held that a landowner’s

purchase of property, with knowledge that the property was located in the critical area

adjacent to wetlands (id. at 296), was not a self-created hardship that precluded the grant

of an area variance. See id. at 318-19. Consequently, Schwalbach’s knowledge that he

purchased a property subject to critical area restrictions does not prevent him from

receiving a variance here.

Deprivation of Rights Commonly Enjoyed / No Special Privilege

Under the critical area ordinance, a local board may grant a variance only if: “[a]

literal interpretation of the provisions of the County’s Atlantic Coastal Bays Critical Area

Program and related laws will deprive the applicant of rights commonly enjoyed by other

properties in similar areas within the Atlantic Coastal Bays Critical Area;” and if “[t]he

19
granting of a variance will not confer upon an applicant any special privilege that would

be denied by the County’s Atlantic Coastal Bays Critical Area Program to other lands or

structures within the Atlantic Coastal Bays Critical Area[.]” WCC § NR 3-111(b)(2)-(3). 

Because these two variance standards are interrelated, they can be, and often are,

considered together. See DCW Dutchship, 439 Md. at 633.

The Board’s decision with respect to these two standards relied upon findings from

its staff report, which noted that “there are numerous properties that have piers/walkways

that cross in excess of 100' of tidal wetlands to access their water dependent facility.” 

ACT challenges this finding, arguing that there was no evidence showing the number of

piers in excess of 100 feet, the lengths of those piers, whether those piers were

constructed before the adoption of the critical area law, and whether variances were

necessary for the construction of those piers.

In response, Schwalbach asserts that the Board was entitled to rely on a report

from a government agency with specialized knowledge of the critical area. Furthermore,

Schwalbach argues that he was not required to show that any others in the community had

piers or docks in excess of 100 feet. The right “commonly enjoyed by other properties”

was not the right to build a structure of 101 feet or more in length, but the general right of

access to navigable waters at the edge of private property.

The Board here stated that Schwalbach’s proposal “was not unreasonable and

seems to be very modest by providing the most direct access path to navigable waters. 

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Without this variance, it could be interpreted that the applicant would have a lessened or

reduced amount of rights enjoyed by other properties in similar areas within the Critical

Area.” This finding was supported by testimony from Schwalbach’s expert that

numerous private boat docks in the nearby area were used to gain access to the same body

of water. In light of this testimony, merely having riparian access is not a special

privilege.

We conclude that substantial evidence supported the Board’s findings that the

variance was necessary for Schwalbach to enjoy the right of riparian access commonly

enjoyed by others in the area and that granting the variance would not confer any special

privilege denied to other property owners in the area. See DCW Dutchship, 439 Md. at

633-34 (holding that substantial evidence supported zoning board’s conclusions as to

these two standards, where Board “observed that property owners throughout Critical

Area commonly enjoy a residence” and evidence showed that property owner could not

enjoy same right without variance).

Adverse Environmental Effects; Purpose and Intent of Critical Area Program

Next, ACT contends that Schwalbach’s application did not meet the standard set

forth in WCC § NR 3-111(b)(5), which requires that a variance request be denied unless

“[t]he granting of a variance shall not adversely affect water quality or adversely impact

fish, wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the

granting of the variance will be in harmony with the general spirit and intent of the

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County’s Atlantic Coastal Bays Critical Area Program[.]” The Court of Appeals has

emphasized that determinations as to this particular standard fall within the relative

expertise of the administrative agency. See Belvoir Farms, 355 Md. at 270-71.

In addressing this standard, the Board’s decision gave weight to the approval of

the project by both the U.S. Army Corps of Engineers and the Maryland Department of

the Environment. The Board stated: “These agencies provide an extensive review of a

wide array of environmental impacts and have determined that this proposed wetland

crossing has minimized these potential impacts.” The critical area law specifically

identifies other government agencies as a potential source of substantial evidence. See

N.R. § 8-1808(d)(4); WCC § NR 3-111(d)(4) (“[w]ith due regard for the person’s

experience, technical competence, and specialized knowledge, the written findings may

be based on evidence introduced and testimony presented by . . . [a]ny agency of the

local, state or federal government; or . . . [a]ny other person deemed appropriate by the

Board of Zoning Appeals”).

ACT argues that these approvals from other agencies are legally insufficient to

satisfy the applicant’s burden, because those agencies do not apply the same criteria as the

critical area program. While we agree that the grant of a license or authorization does not

automatically establish that a proposed construction project meets critical area standards,

we reject the contention that an approval from another agency cannot amount to evidence

that the applicant has met the variance standards.

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The record before the Board included the authorization letter from the Army Corps

of Engineers, which provided a detailed list of “activity-specific impact limits and

requirements,” including the requirements that Schwalbach “restore all preconstruction

elevations and replant impacted wetland area with native marsh species within the limits

of the disturbance upon completion of the proposed work.” Moreover, the Board was no

doubt aware that the policies governing tidal wetlands licenses from the Maryland

Department of the Environment are largely in harmony with the spirit and intent of the

critical area law. Compare Envir. § 16-102 (declaring State policy to preserve wetlands

from despoliation and destruction), and COMAR 26.24.01.01 (requiring applicants to

design projects to avoid, minimize, and mitigate any loss of tidal wetlands), with N.R. §

8-1801(a) (declaring that purposes of critical area law include minimizing damage to

water quality and natural habitats, protecting lands adjacent to shoreline from

degradation, and maintaining a buffer from tidal wetlands). 

In any event, these approvals were not the only evidence regarding the absence of

environmental impact. Schwalbach’s environmental consultant opined that the

configuration of the proposed structure eliminated adverse effects on water quality. The

staff report highlighted that Schwalbach would be required to mitigate any adverse impact

with new plantings, “based on an amount equal to not less than three times the square

footage of any area buffer disturbance required for construction.” The Board also noted

that the minimal size of the proposed structure, at “only 3' in width . . . further reduces the

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risk of any environmental degradation.”

Taking the record as a whole and drawing all reasonable inferences in favor of the

agency, we conclude that substantial evidence supported the Board’s determinations that

granting the variance would have no adverse environmental impact and would be in

harmony with the general spirit and intent of the critical area program. See DCW

Dutchship, 439 Md. at 634-37 (holding that Board’s findings as to these two criteria were

supported by substantial evidence, including expert testimony about water quality and

mitigation); see also Mastandrea v. North, 361 Md. 107, 140-42 (2000) (holding that

Board’s findings as to these two criteria were supported by substantial evidence,

including opinion of environmental consultant that proposed construction would have no

adverse effect, where Board also noted that size of project was minimal and potential

effects were easily mitigated).13

Satisfaction of Each Variance Provision

Finally, ACT contends that Schwalbach failed to satisfy WCC § NR 3-111(b)(7),

 Applying an earlier version of the critical area law, the Court in Mastandrea,

13

361 Md. at 136, concluded that the local zoning board could grant a variance if the

applicant would be denied development on a specific portion of the applicant’s property,

rather than considering the parcel or lot as a whole. The 2002 General Assembly

expressly overruled that holding. See Chesley, 176 Md. App. at 433-34. Although the

legislature has abrogated much of Mastandrea’s unwarranted hardship analysis, other

aspects of the opinion remain good precedent. See DCW Dutchship, 439 Md. at 629 n.33

(explaining, “[w]here applicable, we discuss the Mastandrea Court’s discussion of

variance issues that did not prompt legislative supersession”); Moreland, 418 Md. at 134

(applying Mastandrea); Becker, 174 Md. App. at 144 (directing Board to reconsider

decision in light of Mastandrea).

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which states that the Board “shall not make a decision relative to a request for such a

variance without reviewing the comments of the Department and finding that the

applicant has satisfied each of the provisions and standards contained herein.” With

respect to this final criterion, ACT re-states its prior assertions that Schwalbach had not

satisfied each of the other standards. Because we reject each of ACT’s challenges as to

those individual standards, we must reject the corollary argument that he failed to satisfy

“each of the provisions and standards.”

C. Board’s Application of the Presumption of Nonconformance

In addition to its specific challenges regarding the individual variance standards,

ACT poses a more general objection to the form and substance of the decision. ACT

relies on the Board’s obligation to presume that the requested activity did “not conform

with the general purpose and intent of Natural Resources Article, Title 8, Subtitle 18,

COMAR Title 27, as from time to time amended, and the requirements of the County’s

Atlantic Coastal Bays Critical Area Program.” WCC § 3-111(d)(1); see N.R. §

8-1808(d)(3)(ii). Schwalbach bore the burdens of production and persuasion to overcome

that presumption. See WCC § NR 3-111(d); see also N.R. § 8-1808(d)(4)(i). The

presumption extends to each of the individual variance standards. See Becker, 174 Md.

App. at 143 (“it was [applicants’] burden to present evidence and overcome the

presumption as to all of the requirements”) (emphasis in original); see also DCW

Dutchship, 439 Md. at 614 (“[t]he applicant ‘bears the burden of proof and persuasion’ as

25
to each of the variance criteria”) (quoting Moreland, 418 Md. at 119).

ACT asserts: “The [Board’s] decision does not indicate that the [Board] was aware

of the presumption of nonconformance, that [Schwalbach] had the burden of proof to

overcome the presumption of nonconformance, or that [Schwalbach] had met that

burden.” ACT argues that the decision must be reversed in the absence of some

unequivocal indication that the Board applied the statutory presumption. Alternatively,

ACT asks this Court to remand with instructions that the Board reconsider the application

and make additional written findings in light of the statutory presumption.

In ACT’s interpretation, the statutory presumption creates a separate obstacle, over

and above the individual variance standards. ACT theorizes: “It is much easier for

[Schwalbach] to prove he satisfied each of the six standards than it is for [Schwalbach] to

prove he overcame a presumption of nonconformance and that he satisfied each of the six

standards.” In response, Schwalbach contends that the Board’s explicit statements that an

applicant must satisfy all six standards amount to an “obvious reference” to the burden of

overcoming the statutory presumption. Schwalbach also argues that the Board should be

deemed to understand its own procedures.

As this Court has explained, an applicant meets the burden of overcoming the

presumption that a proposal is in conflict with the critical area ordinance “‘by satisfying

fully the dictates of the statute authorizing the variance.’” Citrano, 123 Md. App. at 238

(quoting North v. St. Mary’s Cnty., 99 Md. App. at 510); see also Becker, 174 Md. App.

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at 145-46 (“[i]f an applicant establishes compliance with the applicable criteria, the

applicant is entitled to the variance”). After the applicant produces substantial evidence,

and the Board is persuaded that the applicant has satisfied all applicable criteria, the

Board is no longer required to assume that granting the variance is inimical to the intent

of the program.

There is no reason to require that an applicant who has overcome his or her

respective burdens as to all of the variance criteria must also come forward with

additional evidence to rebut the statutory presumption. That requirement would serve no

practical purpose in the context of this particular ordinance. The Board here expressly

found that the project would “not adversely affect water quality or adversely impact fish,

wildlife or plant habitat within the Atlantic Coastal Bays Critical Area and the granting of

the variance will be in harmony with the general spirit and intent of the County’s Atlantic

Coastal Bays Critical Area Program.” See WCC § NR 3-111(b)(5).14

On this issue, we agree with the well-reasoned analysis of the circuit court:

The [Board’s] opinion expressly stated that the [Board] had reviewed the

 This standard refers only to the general spirit and intent of the County program, 14

but the presumption also extends to the general purpose and intent of the State critical

area law and its implementing regulations. Compare WCC § NR 3-111(b)(5), with WCC

§ 3-111(d)(1). The County requirements, of course, are the greater that include the lesser. 

The local program is designed to implement and to achieve the purpose of the State law

and regulations. See N.R. § 8-1808(a)(1); COMAR 27.01.12.02; WCC § NR 3-101(a). 

The State law establishes minimum requirements (see N.R. § 8-1808(c)(1)), and the

County is permitted to “establish additional, more restrictive standards” consistent with

the spirit of the State program. COMAR 27.01.12.02(B).

27
staff comments and found the applicant satisfied all standards. That finding

extended to all required standards and provisions – including that part of

[WCC § NR 3-111(b)(5)] which required a finding that the granting of the

variance be in harmony with the general spirit and intent of the Critical

Area Program. It seems clear to this court that the words in harmony with

have the same meaning as the words conform with. Thus, the [Board’s]

finding that the variance is in harmony with the general purpose and intent

of the Critical Area Program is the same as a finding that the variance

conforms with the general purpose and intent of the program. It is also the

same as a finding that the applicant has overcome the presumption of

nonconformance.

In the circumstances of this case, it would not be a sound use of public or private

resources to remand this case for the sole purpose of requiring the Board to go through

the sterile formality of restating what it has already said, but doing so in the language of

the ordinance itself instead of the synonymous language that it previously used.

As ACT points out, however, the statute directs that “a local jurisdiction shall

make written findings as to whether the applicant has overcome the presumption” of

nonconformance. N.R. § 8-1808(d)(4)(ii); see COMAR 27.01.12.04; WCC § NR

3-111(d)(4). In light of this directive, it might be a better practice for the Board to state

explicitly whether the applicant has overcome the presumption of nonconformance, in

addition to making express findings as to whether the applicant has satisfied his burdens

as to each of the variance provisions. Under the circumstances here, however, “we do not

think anything would be gained by remanding the case for further consideration.” 

Valenzia v. Zoning Bd. of Howard Cnty., 270 Md. 478, 485 (1973).

The Board’s determinations that Schwalbach satisfied each of the variance criteria

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and that the project was in harmony with the local critical area program (findings that we

uphold), obviate the need for any additional analysis from the Board regarding the

statutory presumption. Even assuming that the Board erred by not making this separate

written finding, that hypothetical error does not require reversal. See Gough v. Bd. of

Zoning Appeals for Calvert Cnty., 21 Md. App. 697, 699-704 (1974) (reasoning that

county board of zoning appeals should have made more explicit findings in denying

variance request, but holding that there was no fundamental error because those findings

were implicit in the actual determination); Templeton v. Cnty. Council of Prince George’s

Cnty., 21 Md. App. 636, 641-42 (1974) (holding that, although zoning body erred by

failing to make factual finding on one issue in denying request for zoning reclassification,

the error was “not of such as dimension as to require reversal” where it was clear that the

issue was not determinative).

CONCLUSION

For the reasons stated in this opinion, we affirm the judgment of the circuit court,

which affirmed the decision of the Board of Zoning Appeals to grant the variance

application. The record as a whole included substantial evidence to support the Board’s

findings and conclusions, and the Board’s decision was not premised upon any error of

law.

JUDGMENT OF THE CIRCUIT

COURT FOR WORCESTER

COUNTY AFFIRMED. COSTS TO

BE PAID BY APPELLANT.

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