Md. court validates man's fight to build on lot

He inherited restrictions and right to seek variance

March 08, 2002|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

In a decision favoring private property rights, Maryland's highest court ruled yesterday that restrictions and benefits of property ownership are conveyed to the new owner with the deed, including the past owner's right to ask for and possibly receive relief from environmental protections that limit construction.

The Court of Appeals said a local land-use panel was wrong to say that an Anne Arundel County builder created his own hardship by buying land that he knew fell under numerous restrictions enacted while the previous owner held the property.

"When title is transferred, it takes with it all the encumbrances and burdens that attach to title; but it also takes with it all the benefits and rights inherent in ownership," Judge Dale R. Cathell wrote for the unanimous court.

The ruling follows three decisions favorable to landowners from the court in 1999 and 2000. Critics argue that those decisions eroded the Chesapeake Bay Critical Area Act. Yesterday's ruling affirms the earlier decisions but does not weaken the law, only fails to strengthen it, legal experts said.

"This opinion is a substantial property-rights opinion," said Daniel J. Mellin, the Annapolis attorney for builder Richard C. Roeser.

The decision reflects the way the legal doctrine has shifted from government regulation of land use in the 1950s and 1960s toward property rights, said environmental lawyer Thomas Deming of Annapolis, who helped draft the original critical area law.

It answers a question the state court had not considered before and follows the lead of the U.S. Supreme Court in favoring owners of private property, he said.

The Critical Area Law, enacted in the mid-1980s, restricts development on land next to waterways. Landowners can seek variances, which make exceptions to the law.

In the Anne Arundel County case, that is what Roeser did. In 1999, he bought a scenic lot zoned for a house by Chase Pond in the Annapolis Roads community just outside the Annapolis city limits.

A small house - about the size of a double-wide house trailer, he said - could be built without zoning variances. But a house that small would be out of character in the immediate neighborhood, which has other houses that are substantially larger, he argued.

He is seeking to build a home 58 feet by 28 feet, requiring four variances.

Roeser's proposal came under fire within the 320-home community. Several people in the area wanted to buy the property to stave off development.

Larry Beers, president of the Annapolis Roads Property Owners Association, said he could not comment on a ruling he had not seen, but he noted that Annapolis Roads homes range from modest older modest houses to newer million-dollar residences.

Anne Arundel County land-use officials, saying Roeser's proposal intruded too much into the land buffer protecting the wetlands, had offered to back more modest variances than Roeser wanted, and the Critical Area Commission expressed similar concerns over Roeser's proposal.

The Anne Arundel County Board of Appeals voted 5-2 to deny the variances. In its opinion, the board chastised Roeser for buying a lot with wetlands knowing that development was restricted and then complaining that regulations barred him from building the size home he wanted.

An Anne Arundel County circuit judge overturned the board's decision, and the Court of Special Appeals reversed the judge, leading Roeser to ask the state's highest court to hear the issue. Yesterday's ruling returns the case to the Board of Appeals to decide on the variances again.

Senior Assistant County Attorney Sarah M. Iliff predicted another denial. "The applicant still failed to meet his burden of proof," she said. "The standard is whether there is proof of an unwarranted hardship. It is a pretty tough standard to meet."

Roeser's lawyer disagreed. Just because a 770-square-foot house could be built legally without a variance does not mean any house larger than that should be denied one, Mellin said.

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