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VARIANCE APPLICATIONNO I'!': I lii- iii, ii!t;iii iiriii.,. iil, !, ij, ;, |lii., 'i., u tninpi iii.rmiillill. 'iloiil i. tiii?i[i,. Aduhc !!(::i. l>. r(i, r iiniii,,i ji,,,. lii,. i| |i . :iii ,, b-!v piiiii^l :i.,, i tili .!nil b\ li. lll.l

Applicants): Dreamcraft Homes, Inc.(Applicant must have a financial, contractual, or proprietary interest in the property)

Property Address: Birch Court Sevema Park, MD 21146

Property Location: 40. 36' feet of frontage on the ( N, S, E, W ) side of Birch Court(Enter Street Name]

30° feet (N, S, E, W ) of (Nearest intersecting street) ̂ me Tree Drive

12-digit Tax Account Number 03-900-3 3231600

Waterfront Lot: YQ N0 Corner Lot: YQN0 Deed Title Reference 32911/432Zoning District R-5 Lot # j_ Tax Map _31_ Block/Grid 12

Area 25, 315

(Enter Street Name }

Tax District (J_-)council District ̂ 5_

Parcel 74

(Sq Ft, or Acres ) Subdivision Name West Severna Park

Description of Proposed Project and Variance Requested (Brief, detail fully in letter of explanation)A variance to permit the disturbance of 4,623 Sq.Ft. steep slopes, in accordance with Anicle 17, Section8-201 (a) of the County Code.

The applicant hereby certifies that he or she has a financial, conh-actual, or proprietaiy interest in the property; that he or she isauthorized to make this application; that the mfon^ation shown on this application is correct; and that he or she will comply with all

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Applicant's Signaturey ( ^

Print Name Milton Horn, President

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Print Name Joshua & Rachel Heibein

Mailing Address 326 Spinnaker Road Mailing Address 1129 Hull Street

City, State, Zip SevemaPark. MD 21146

Work Phone 410-544-7189

Home Phone

CetlPhone ^/<?-^?-/Z7/Email Address

City, State, Zip Baltimore. MD 21230

Work Phone

Home Phone

Cell Phone

Email Address

* * * Below For Office Use Only * * *

AppUcatioa accepted by Anne Arundel County Office of Planning and Zoning: ^

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LINOWESANDlBLOCHERLLP

ATTORNEYS AT LAW

May 8, 2019 Benjamin S. Wechslerbwechsler@linowes-law.com443.949.3128

HAND DELIVERY

Ms. Sterling Seay, Planning AdministratorAnne Arundel CountyOffice of Planning and Zoning2664 Riva Road, 3rd FloorAnnapolis, MD 21401

Re: Dreamcraft Homes, Inc. - Birch Court, Severna Park Maryland 21146, Tax ID 03-900-33231600, Map 31, Parcel 74 (collectively, the "Property") - Critical Area VariancesLetter of Explanation

Dear Ms. Seay:

This Firm represents Dreamcraft Homes, Inc. (the "Applicant") regarding the enclosed variancerequest, which will allow the Applicant to construct a single-family dwelling on a vacant, plattedlot in an existing single-family residential subdivision in Severna Park. The Applicant is theauthorized agent for the owners of the Property, Joshua Heibein and Rachel Heibein.

INTRODUCTION

The Applicant seeks a single variance to § 17-8-201 (a) of the Anne Arundel County Code (the"Code") to develop a dwelling within slopes of 15% or greater in the Limited Disturbance Area("LDA") of the Critical Area. The site is identified as Lot 5 of Block 0, Section D on a plat ofsubdivision entitled "West Severna Park, Section D," recorded among the Plat Records ofAnneArundel County in Plat Book 30, page 29. The Property is split-zoned R5 - Residential Districtand MA1 - Community Marina District, and is entirely within the Chesapeake Bay Critical Area.The Property is not iniproved with any structure, but is surrounded by single-family dwellingsconstructed in the 1960s.

One Park Place I Suite 585 I Annapolis, MD 21401 1410.268.0881 I 301.261. 1668 DC I 410.269.0045 Bait 1410.216.9120 Faxwww.linowes-law.com

LINOWESIANDlBLOCHERLLP

ATTORNEYS AT LAW

Ms. Sterling SeayMay 8, 2019Page 2

THE PROPERTY AND PROPOSED DWELLING

The vacant Property is a recorded building lot comprising 25, 3 15 square feet with no lotcoverage. The lot was created in 1957, prior to the inception of the Critical Area law. TheApplicant is proposing to construct a single-family dwelling with total lot disturbance of 6, 368square feet and total proposed lot coverage of 2, 565 square feet. Most of the Property is coveredwith 15% and greater steep slopes. Without a variance allowing disturbance of steep slopes, theProperty is unbuildable.

Although the Property is split-zoned R5 and MA1, the entire dwelling and associated lotcoverage will be contained within the R5 portion of the Property. The Applicant's proposedhome will require a variance to allow (1) the permanent disturbance of 1, 737 square feet of 15%steep slopes associated with construction of the proposed dwelling; and (2) a variance to allowthe disturbance of 2, 886 square feet of 15% steep slopes associated with grading and siteimprovements for the proposed dwelling.

VARIANCE REQUIREMENTS

The Area Variance Requirements

According to the subtitle of the Maryland Code governing development in the Critical Area,"[ijn considering an application for a variance, a local jurisdiction shall presume that the specificdevelopment activity in the critical area that is subject to the application and for which a varianceis required does not conform with the general purpose and intent of this subtitle, regulationsadopted under this subtitle, and the requirements of the local jurisdiction's program. " Nat. Res. §8-1808(d)(3)(ii). If the variance requested is based on conditions or circumstances that are theresult of actions by the applicant, a local jurisdiction shall consider that fact. Nat. Res. § 8-1808(d)(3)(iii). An applicant has the burden of proof and the burden of persuasion to overcomethe presumption that the development does not conform to the Critical Area program. Nat. Res. §8-1808(d)(4)(i).

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 tothe applicant's land or structure, a literal enforcement of the critical area programwould result in unwaiTanted hardship to the applicant;

(ii) The local jurisdiction finds that the applicant has satisfied each one of thevariance provisions; and

LINOWESlAND I BLOCHER LLP

ATTORNEYS AT LAW

Ms. Sterling SeayMay 8, 2019Page 3

(iii) Without the variance, the applicant would be deprived of a use of land or astructure permitted to others in accordance with the provisions of the critical areaprogram.

Nat. Res. § 8-1808(d)(5).

In this context, according to Maryland law, "'unwaiTanted hardship' means that, without avariance, an applicant would be denied reasonable and significant use of the entire parcel or lotfor which the variance is requested. " Nat. Res. § 8-1808(d)(l); COMAR 27. 01. 12. 01. TheCourt of Appeals, in defining the term "unwarranted hardship, " recently explained that "in orderto establish an unwarranted hardship, the applicant has the burden of demonstrating that, withouta variance, the applicant would be denied a use of the property that is both significant andreasonable. " Assateague Coastal Trust, Inc. v. Schwalbach, 448 Md. 112, 139 (2016). A"showing of 'unwarranted hardship, '" emphasized the Court of Appeals, " is not whether,without the variance, the applicant is denied 'all reasonable and significant use' of the property,but whether, without the variance, the applicant is denied 'a reasonable and significant use' thatcannot be accomplished somewhere else on the property. " Id. at 138-39 (emphasis in original).

For a property located in the critical area, a variance to the requirements of the County's criticalarea program may be granted if the Administrative Hearing Officer makes the findings listed inSection 18-16-305(b) of the Code. See also COMAR 27. 01. 12. 04.

Compliance with the County's Critical Area Variance Requirements

(1) Because of certain unique physical conditions, such as exceptional topographicalconditions peculiar to and inherent in the particular lot or irregularity, narrowness, orshallowness of lot size and shape, strict implementation of the County's critical areaprogram would result in an unwarranted hardship. Code § 18-16-305 (b)(l).

As previously stated, the Court of Appeals explained that a "showing of 'unwarranted hardship isnot whether, without the variance, the applicant is denied 'all reasonable and significant use' ofthe property, but whether, without the variance, the applicant is denied 'a reasonable andsignificant use' that cannot be accomplished somewhere else on the property. " Schwalbach, 448Md. at 138-39 (emphasis in original). The Property, which is a legal record lot, has uniquephysical conditions-namely, it is almost completely covered with steep slopes-therefore,without the variance, the Applicant would be denied a reasonable and significant use that couldnot be accomplished elsewhere on the Property-that is, building a dwelling on the Property.The Applicant could not build a dwelling anywhere on the Property without disturbing steepslopes, and the proposed site is the farthest location from the shoreline as practicable.

LINOWESlANDlBLOCHERLLP

ATTORNEYS AT LAW

Ms. Sterling SeayMay 8, 2019Page 4

(2) A literal interpretation ofCOMAR, Title 27, Criteria for Local Critical Area ProgramDevelopment or the County 's critical area program and related ordinances will deprivethe applicant of rights commonly enjoyed by other properties in similar areas aspermitted in accordance with the provisions of the critical area program within thecritical area of the County. Code § 18-16-305(b)(2).

A literal interpretation of the regulations governing the Critical Area Program would deprive theApplicant rights commonly enjoyed by nearby property owners. In particular, all nearbyproperty owners in Birch Court have single-family dwellings developed on their properties ofsimilar size.

(3) The granting of a variance will not confer on an applicant any special privilege thatwould be denied by COMAR, Title 27, the County 's critical area program to other landsor structures within the County critical area. Code § l8-16-305(b)(3).

Granting the Applicant a variance to construct a single-family dwelling on the Property wouldnot confer on it any special privilege that would be denied to others. As previously mentioned,all nearby properties are developed with single-family dwellings, and all of the properties onBirch Court are entirely within the Critical Area.

(4) The variance request is not based on conditions or circumstances that are the result ofactions by the applicant, including the commencement of development before anapplication for a variance was filed, and does not arise from any condition relating toland or building use on any neighboring property. Code § 18-16-305(b)(4).

The Applicant's variance request is not based on conditions or circumstances that are the resultof its action, and the Applicant has not begun any development on the Property prior tosubmitting this application. Similarly, the circumstances-the lot is covered with steep slopes-did not arise from any condition relating to land or building use on any neighboring properties.

(5) The granting of the variances will not adversely affect water quality or adversely impactfish, wildlife, or plant habitat within the County's critical area and will be in harmonywith the general spirit and intent of the County 's critical area program. Code § 18-16-305(b)(5).

The granting of the variances will not adversely affect water quality or adversely impact fish,wildlife, or plant habitat within the County's Critical Area, because the Applicant will berequired, among other things, to comply with all stormwater management regulations.

LINOWESIANDlBLOCHERLLp

ATTORNEYS AT LAW

Ms. Sterling SeayMay 8, 2019Page 5

Furthermore, the construction of the proposed dwelling will be in harmony with the general spirtand intent of the Critical Area program. The home will be over 500 feet from the shoreline, andall of the other properties on Birch Court, which are developed with single-family dwellings, arealso located completely within the Critical Area. Additionally, a property between theApplicant's Property and the water is owned by West Severna Park Community Association andis used as boat storage.

(6) The applicant for a variance to allow development in the 100-foot upland buffer hasmaximized the distance between the bog and each structure, taking into account naturalfeatures and the replacement of utilities, and has met the requirements of § 17-9-208 ofthis Code. Code § 18-16-305(b)(6).

The dwelling will not be constructed in a bog protection area.

(7) The Applicant, by competent and substantial evidence, has overcome the presumptioncontained in the Natural Resources Article, § 8-1808, of the State Code. Code § 18-16-305(b)(7).

As set forth in the enclosed Critical Area Report, the Applicant's proposed development will below-impact and will not negatively affect water quality or protected habitats on the Property.Based on the foregoing, and the evidence and testimony that will be provided at the hearing, theApplicant will overcome the presumption of harm articulated in the State Code.

(8) The applicant has evaluated and implemented site planning alternatives in accordancewith § 18-16-201(c). Code § 18-16-305(b)(8).

The Applicant has complied with this requirement.

Requirements for All variances

A variance may not be granted unless it is found that:(1) the variance is the minimum variance necessary to afford relief; and(2) the granting of the variance will not:

(i) alter the essential character of the neighborhood or district in which the lotis located;

(ii) substantially impair the appropriate use or development of adjacentproperty;

(iii) reduce forest cover in the limited development and resource conservationareas of the critical area;

LINOWESlANDlBLOCHERLLP

ATTORNEYS AT LAW

Ms. Sterling SeayMay 8, 2019Page 6

(iv)

(v)

Code, § 18-16-305(c).

be contrary to acceptable clearing and replanting practices required fordevelopment in the critical area or a bog protection area; norbe detrimental to the public welfare.

The variances are the minimum variance necessary to afford relief. Code, § 18-17-305 (c)(l).

The Applicant's proposal is reasonable in size and will cause little impact to environmentsprotected by the Critical Area program. The Applicant's proposal will only cover 10% of theProperty and is as far away from the shoreline as practicable. Although maximum total forestclearing is 6, 834 square feet, the Applicant is proposing to clear 5,434 square feet. Additionally,the grading required on the site will be minimal; the total disturbed area will only be 6, 368square feet with 2, 565 square feet of proposed lot coverage.

The variances will not alter the essential character of the neighborhood or district in which thelot is located

Minimally disturbing steep slopes to construct a single-family dwelling in a neighborhooddeveloped with single-family dwellings will not alter the character of the neighborhood.

The variances would not substantially impair the appropriate use or development of adjacentproperty.

Disturbing steep slopes to build the proposed dwelling will not affect in any way the appropriateuse or development of adjacent properties. The dwelling will be constructed among otherdwellings located in the Critical Area and will be completely contained within the perimeter ofthe Property.

The variances would not be contrary to acceptable clearing and replanting practices requiredfor development in the critical area.

The Applicant is proposing to clear 5,434 of forest, and the Applicant will reforest off-site in amitigation bank. In so doing, the Applicant will comply with all Critical Area regulations,including all mitigation requirements.

LINOWESAND BLOCHER LLP

ATTORNEYS AT LAW

Ms. Sterling SeayMay 8, 2019Page?

The variances will not be detrimental to the public welfare.

The proposed dwelling will not negatively affect the public welfare. It will transform vacantland located in a residential district into a developed parcel, where the occupants of the dwellingwill care for the property.

CONCLUSION

The Property, which is entirely within the Critical Area and almost completely covered by steepslopes, has a unique configuration that prevents the construction of a single-family dwellingwithin the strict conformance of the law. Granting variances to allow the Applicant to build asingle-family dwelling will conform to the spirit of the Critical Area program, as the house willnot negatively affect sensitive environments or wildlife, nor will it alter the character of thesingle-family neighborhood. The requested variances are the minimum necessary to afford relief;the dwelling is large enough to bring enjoyment to the ultimate occupants but small enough thatit will remain hundreds of feet from the shoreline and will not impair the neighbors' enjoymentof their own properties.

Very truly yours,

Linow^s-^Bd Blo<^fe/Llyis/ /

^affin ̂ . WecK

Enclosures

ec: Client

Jerry Tolodziecki, P. E.

**L&B 7406860vl/06I40.0002