hubert motion for reconsideration of variance(3758764.3)
TRANSCRIPT
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BOARD OF APPEALS FOR MONTGOMERY COUNTY, MARYLAND
: PETITION OF JOHN W. COKINOS : Case No. A-6657
:
STEVEN P. HUBERT’S MOTION FOR RECONSIDERATION
Steven P. Hubert (“Mr. Hubert” or “Movant”), pursuant to Board of Appeals Rule of
Procedure 10.2, respectfully requests the Board of Appeals (the “Board”) reconsider and reverse
its Resolution and Opinion dated July 17, 2020 (the “Opinion”), which granted a variance to
Petitioner John W. Cokinos (“Mr. Cokinos” or “Petitioner”) regarding the setback lines for Lot
24, Block B, Fort Sumner Subdivision, located at 5337 Westpath Way, Bethesda, Maryland,
20816 in the R-90 (formerly R-60) Zone (the “Subject Property”).
I. INTRODUCTION
The Board may not grant a variance unless the special circumstances or conditions
leading to a request for a variance are not the result of actions by an applicant. Here, the Board
relied on the testimony of Petitioner and his Construction Manager, Eric Hart, of Hartland
Development (the “Construction Manager” or “Mr. Hart”), in finding that Petitioner’s request for
a variance was not the result of his actions, but instead became necessary because Petitioner
relied on a faulty house location drawing obtained from his title company, Paragon Title. The
Board, relying further on the testimony of Petitioner and Mr. Hart, found that Petitioner had no
recourse against the surveying company that prepared the house location drawing, because
Paragon Title, and not Petitioner, contracted with Capital Surveys to procure the location
drawing.
After the Board’s hearing, Movant has obtained new evidence showing that the testimony
of Petitioner and Mr. Hart was not accurate. Specifically, Movant has obtained a copy of
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Petitioner’s Maryland Location Drawing/Boundary Survey Approval Form (the “Approval
Form”) from Capitol Surveys, which explicitly shows that Petitioner had a choice of preparing a
boundary survey or a locational drawing and that he expressly authorized the performance of a
location drawing for a lower cost. See Exhibit A, attached. This new evidence contradicts one
of the main points upon which Petitioner based his case, and undermines the Board’s finding that
Petitioner was not responsible for the special circumstances of conditions leading to the request
for a variance. For this and other reasons set forth below, the Board should reconsider and
reverse its Opinion because Petitioner cannot meet his burden of showing by a preponderance of
the evidence that the need for a variance was not the result of his own actions.
II. STATEMENT OF FACTS
A. The Project History
When Petitioner purchased the Subject Property, it had an already-existing structure that
fully complied with setback requirements. Petitioner planned to significantly renovate that
structure by adding a second story that extended two feet beyond the existing footprint, and
permitted a porch 11 feet beyond the existing footprint. Petitioner embarked on a $700,000
renovation project without obtaining a boundary survey that would have clearly identified where
the property lines actually existed. Instead, prior to closing on the Subject Property, he
purchased from Capitol Surveys a house location drawing that expressly stated it “CANNOT BE
RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY BOUNDARIES ARE”
and therefore cannot be used to determine setbacks of any improvements on the Subject
Property.
Mr. Hubert owns property adjacent to the Subject Property. In the summer of 2018, Mr.
Hubert had a professional surveyor stake out his adjoining property corners that clearly identified
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the adjacent property lines and property corners. Early in Petitioner’s construction process, it
became clear to Mr. Hubert that the porch and its eaves and the second floor expansion and other
eaves went beyond the building footprint of the existing home, and did not appear to comply
with setback requirements. Also, it was clear to Mr. Hubert that Petitioner was in the process of
constructing the porch one (1) foot beyond the (11) foot dimensions shown on the approved
building permit plans.
In July 2019, Mr. Hubert brought these concerns to the attention of the Construction
Manager in charge of the renovations, Mr. Hart. Mr. Hart promised to look into these issues, but
instead he ignored or dismissed Mr. Hubert’s concerns. Elaina Simpson, the contract purchaser
of the Subject Property, also sent a series of emails promising to address the issues and assured
Mr. Hubert that the Petitioner and the contract purchasers intended to meet the county codes.
When it became clear that the Construction Manager and the contract purchasers would
not address the issue on their own, Mr. Hubert notified the County’s Department of Permitting
Services (“DPS”). Only when DPS became involved did Petitioner then hire a surveyor to
determine the actual property boundaries, which identified the distance of the improvements
from the property lines of the Subject Property and measured the applicable setback
requirements. The new survey confirmed that the porch and its eaves and the second floor and
eaves violated the setback requirements, just as Mr. Hubert had pointed out early in the
construction process.
At the variance hearing, Petitioner argued that when he learned of his mistakes, it was too
late to address them because construction was too far along, and that it would cost hundreds of
thousands of dollars to modify the house to comply with the zoning ordinance. He justified his
error by contending that his Construction Manager had relied on a faulty house location drawing
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when designing and locating the house additions. The Construction Manager testified that
relying on location drawings is a regular custom and practice, and that it was unfortunate that
this location drawing erred more than any he had seen in his career.
Even assuming this testimony is true, however, it does not excuse Petitioner from failing
to identify the Subject Property’s exact boundaries before construction or willfully ignoring Mr.
Hubert’s concerns that the porch, the second floor expansion, and the eaves violated the setback
requirements. Petitioner was on notice that the house location drawing could not be relied upon
before he began renovating the Subject Property, but he proceeded with his renovation and
addition plans anyway. When he did so, he created the need for a variance, and is therefore not
eligible to obtain one due to this self-created hardship.
B. The Board found that Petitioner’s actions did not create the need for a variance
because he relied on a faulty location drawing procured by his title company.
Petitioner argued he is entitled to a variance because he was the victim of a faulty
location drawing. Although Petitioner repeatedly refers to the house location drawing as the
“Capitol Survey,” this is a misnomer. The company that prepared the location drawing is
Capitol Surveys, but it is undisputed that the document that Capitol Surveys created was not a
boundary survey – it was merely a location drawing.
The Board made findings critical to its decision based largely on Petitioner’s sworn
testimony that he did not request the location drawing, and further that he has no recourse against
the company that created the location drawing, noting:
[Petitioner] testified that he did not order a survey prior to closing on the property, and that at closing, Paragon Title provided him with a copy of a survey that Paragon had contracted with Capitol Surveys to perform. He emphasized that it was Paragon that had contracted with Capitol Surveys to have this survey done, later testifying that because he did not contract with Capitol for this survey, he has no recourse against them.
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Opinion at 11, ¶ 16.
The Board relied on similar testimony by Mr. Hart, noting that “Mr. Hart testified that the
survey that the Petitioner received at closing (i.e., the Capitol Survey) was prepared by a licensed
surveyor who worked for an experience surveying company.” Opp. at 16. Petitioner provided
no documents corroborating his testimony that it was Paragon Title, and not Petitioner, who
requested and paid for the location drawing.
Based on this evidence, the Board found that the need for a variance was not the result of
any action by Petitioner, stating that:
The Board finds, based on the Statement in the record at Exhibit 3 and the testimony of the Petitioner, that it was the title company and not the Petitioner that contracted with Capitol Surveys to have the original house location survey ("Capitol Survey") performed. The Board further finds, based on the expert testimony of Mr. Hart and the Statement at Exhibit 3, that this type of survey is accepted by the County's Department of Permitting Services in connection with the issuance of building permits for additions/renovations to existing structures; the Board notes that Mr. Hart testified that DPS has accepted similar surveys in connection with seven or eight other renovations on which he has worked. Finally, the Board finds that here is nothing in the record to suggest that the Petitioner is responsible for the size, depth, or multi-directional slope on the subject property, which he purchased in 2018 and which was originally developed decades earlier. See Exhibit3. Thus the Board finds that the special circumstances or conditions pertaining to this property are not the result of actions by the Petitioner, in satisfaction of this element of the variance test.
(emphasis added). Opp. at p. 21.
The Approval Form that Mr. Hubert obtained from Capitol Surveys after the
Board’s hearing contradicts Petitioner’s sworn testimony, and confirms that Petitioner
was responsible for selecting the location drawing instead of the boundary survey. This
new evidence not only removes a lynchpin of Petitioner’s case, it also requires a
reexamination of other evidence that makes denying the variances appropriate. The
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evidence is clear that Petitioner took actions or failed to take actions that directly led to
the need for the variance. See Ex. A.
C. Movant obtained evidence after the hearing showing that Petitioner’s testimony was
false because he procured a location drawing used to create the need for a variance.
After the Board’s hearing, Movant requested and obtained from Capitol Surveys a copy
of Petitioner’s Approval Form for a location drawing. Ex. A. Petitioner signed the Approval
Form on May 30, 2018, which was nearly one month before he closed on the Subject Property.
Ex. A. The Approval Form states in capital letters: “I/we understand that our signature below
authorizes the performance of the surveying services checked above.” Ex. A. The Approval
Form clearly shows that it was Petitioner, and not Paragon Title, who requested the location
drawing. As noted earlier, the testimony of Petitioner and Mr. Hart led directly to the Board’s
finding that Petitioner took no actions creating the need for a variance. However, when the
Approval Form is added to the evidence, Petitioner’s testimony cannot stand, and it becomes
clear that it was Petitioner, not Paragon Title, that took actions that led to the need for a variance.
The Board noted “[a]t the hearing, Petitioner John Cokinos testified that he purchased the
Subject Property for his daughter and son-in-law with the intent to renovate the existing home to
their specifications before selling them the property.” Opp. at 11, ¶ 16. Thus, Petitioner knew
before he purchased the Subject Property that he planned to renovate it. In spite of this, he
elected to purchase a house location drawing for approximately $250, instead of a boundary
survey that would cost approximately $1,000. He made this decision despite a clear warning on
the Approval Form that he should not rely on a location drawing to determine the property
boundaries: “A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT
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BE RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES
ARE.” (emphasis in original) Ex. A.
The Approval Form also makes clear that if the purchaser “desire[s to make other
improvement on the property], a surveyor should be contacted independently.” Ex. A. When
Petitioner signed this document, he affirmed that he read and understood the conditions and
limitations of the location drawing, and that “IF A BOUNDARY SURVEY, WHICH COULD
BE RELIED UPON FOR VARIOUS PURPOSES (FOR EXAMPLE, SETTING THE
PROPERTY MARKERS, ERECTING A FENCE, BUILDING A GARAGE OR MAKING
OTHER IMPROVEMENTS ON THE PROPERTY) IS DESIRED, A SURVEYOR SHOULD
BE CONTACTED INDEPENDENTLY.” (emphasis in original) Ex. A. Petitioner’s decision to
obtain a house location drawing and not a boundary survey directly led to his request for a
variance. By proceeding without a boundary survey, Petitioner did so at his own risk. Mark
Beall from DPS expressly cautioned Petitioner that Petitioner was proceeding at his own risk
without a boundary survey.
The language in the Approval Form is not there by accident, it is required by law.
Section 09.13.06.06 of the Code of Maryland Regulations for the Department of Labor expressly
requires the Approval Form for location drawings to warn consumers that they may only rely on
location drawing for limited purposes only, and that the form must state:
In connection with the purchase or refinancing of the property located at ________________________________________ (this office has been requested) (a licensed Maryland surveyor will be engaged) to prepare a location drawing. A location drawing shows the property inspected and the locations of buildings or other visible improvements affecting the property. A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE. The only purpose of a location drawing is to provide some assurance that improvements are located on the property. This assurance is for the use of a lender or an insurer only.
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The Department of Labor requires this warning be included in the Approval Form of location
drawings to avoid confusion about the role of a location drawing versus the role of boundary
survey. The regulations were expressly designed to avoid situations like the one here.
Petitioner chose to ignore this warning.
III. ARGUMENT
A. The Code requires Petitioner to show by a preponderance of the evidence that the need for a variance was not caused by his own actions.
Montgomery County Zoning Ordinance § 59.7.3.2.E requires the Board to make specific
findings before granting a variance. The Board must find that: (1) denying the variance would
result in no reasonable use of the property, OR; (2) that each of the following apply:
a. one or more of the following unusual or extraordinary situations or conditions exist:
i. exceptional narrowness, shallowness, shape, topographical conditions, or other extraordinary conditions peculiar to a specific property;
ii. the proposed development uses an existing legal nonconforming property or structure;
iii. the proposed development contains environmentally sensitive features or buffers;
iv. the proposed development contains a historically significant property or structure; or
v. the proposed development substantially conforms with the established historic or traditional development pattern of a street or neighborhood;
b. the special circumstances or conditions are not the result of actions by the applicant [emphasis added];
c. the requested variance is the minimum necessary to overcome the practical difficulties that full compliance with this Chapter would impose due to the unusual or extraordinary situations or conditions on the property;
d. the variance can be granted without substantial impairment to the intent and integrity of the general plan and the applicable master plan; and
e. granting the variance will not be adverse to the use and enjoyment of abutting or confronting properties.
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(emphasis added) Montgomery County Zoning Ordinance § 59.7.3.2.E (effective October 30,
2014). Thus, the Board cannot grant a variance unless it finds that “the special circumstances or
conditions are not the result of actions by the applicant.” The new evidence obtained after the
hearing establishes that Petitioner’s actions (and inactions) directly created the special
circumstance requiring a variance from the setback requirements. To find otherwise would be
error.
B. Petitioner chose to obtain a location drawing instead of a boundary survey,
which created his need to obtain a variance.
Both Petitioner and his Construction Manager testified under oath that Petitioner did
nothing to create the circumstances necessitating a variance. They specifically testified that
Paragon Title, and not Petitioner, obtained the location drawing. This is not correct. The
Approval Form attached as Exhibit A disproves a key reason why the Board found that Petitioner
did nothing to create the need for a variance. Exhibit A shows that Petitioner purchased the
location drawing and that when he did so he knew or should have known that a location drawing
was inadequate to ascertain the location of property lines. When he signed the document,
Petitioner affirmed that he read and understood that the location drawing could not be relied on
for any renovation plans. See Canaras v. Lift Truck Services, Inc., 272 Md. 337, 322 A.2d 866,
870 (1974) (“[O]ne having the capacity to understand a written document who ... without reading
it or having it read to him, signs it, is bound by his signature.”).
Petitioner’s actions are even more culpable considering the relatively minor cost he
would have incurred to obtain the correct document to prepare his renovation plans. The
Approval Form states that a location drawing typically costs between $250.00 and $750.00,
while boundary surveys generally cost between $800.00 and $1,500.00. Petitioner testified that
he purchased the property for $850,000.00, and that he had a construction budget of $700,000,
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for a total cost of over $1.5 million. Even if Petitioner had paid $1,500 for boundary survey –
the highest amount listed in the Approval Form – that would still only amount to 0.1% of the
overall project cost (and just a few hundred dollars more than what he paid for the location
drawing). When Petitioner ignored the plain language in the Approval Form and proceeded with
a $1.5 million project based on a location drawing, he assumed the risk and consequences of that
decision.
Even after this error was committed to commence construction based on a house location
drawing, Petitioner still had timely chances to correct his mistake. The record shows that
Movant, who owns property adjacent to the Subject Property, notified the Construction Manager
in July 2019 that the project appeared to be violating setback requirements. The text message
thread submitted by Mr. Hubert at the Board’s hearing shows the Construction Manager
thereafter took no meaningful action to determine the correct boundary lines at that time. Nor
did the Petitioner or the contract purchasers. This forced Mr. Hubert to notify DPS. Other
neighbors also complained about the project, but it was not until after DPS got involved that
Petitioner finally paid for a boundary survey. The boundary survey confirmed that the front
porch and second story eaves violated the setback requirements, just as Mr. Hubert had suspected
months before. Despite knowing that he had violated the applicable setbacks, Petitioner did not
seek a variance when he first became aware of the need to do so. Instead, he plowed ahead with
construction for an additional six months, until DPS eventually required him to seek a variance.
C. The variance is not necessary because of any physical characteristics of the
Subject Property.
Petitioner argued, and the Board agreed, “the property is exceptional due to the combined
constraints imposed by its relatively small size and depth for the neighborhood, and its multi-
dimensional slopes.” Opp. at 20. The Board further found:
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that here is nothing in the record to suggest that the Petitioner is responsible for the size, depth, or multi-directional slope on the subject property, which he purchased in 2018 and which was originally developed decades earlier. See Exhibit3. Thus the Board finds that the special circumstances or conditions pertaining to this property are not the result of actions by the Petitioner, in satisfaction of this element of the variance test.
Opp. at 21.
Movant asks the Board to reconsider this finding because it does not fully recognize key
facts in the record. For example, Petitioner repeatedly argues the property is relatively small,
stating that many properties in the neighborhood have 12,000 sf lots. But the record also shows
that properties zoned R-60, as this one was when it was created, required lots to have a minimum
6,000 sf. Opp. at 2. This property is 9,600 sf, which is more than 150% the minimum size
originally required. There is ample space to have a residence comply with zoning restrictions,
and the original structure did, in fact, comply with zoning restrictions without the need for a
variance. In addition, there was no evidence explaining why the house could not have been
extended in a different direction to accommodate the setback requirements.
Petitioner also argues that the topography of the property is unique and requires a
variance, but this contention is misplaced. While there is a slope on the property, such slopes are
ubiquitous in the neighborhood. Petitioner actually points out that “the Bethesda-Chevy Chase
Master Plan . . . recognizes this area ‘as a neighborhood of steep slopes and high quality
residential communities. . . “(emphasis added) Opp. at 7.
Petitioner knew or should have known that the lot’s topography could present challenges
during renovation. He is involved in the financial services industry and is therefore aware of the
importance of consumer law and the reasons why customer consents are required by law to
protect uneducated consumers from making poor decisions. In addition, Petitioner is active in the
real estate business, as evidenced by Building Permits Issued Feb. 13 – 27, 2019 to John
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Cokinos, 5600 Cromwell Drive, Bethesda, Md. (301) 440-7600, to build a $200,000 unit at the
same address.1 He testified that this was the third project he had worked on with Mr. Hart.
Petitioner is not an unsophisticated novice. In addition, Petitioner testified that it was Mr. Hart
who suggested the project to him. Petitioner was not acting alone; he relied on the advice of Mr.
Hart, whom the Board deemed to be an expert on issues of construction and development.
Surely Mr. Hart should have anticipated these issues. In any event, Petitioner admits he
purchased the property “AS IS” and thus accepted its condition, location, and obligations to
comply with the zoning ordinance.
Even if the Board still decides the property has unique features, those features are not the
reason why Petitioner needs a variance. The reason why Petitioner needs a variance is because
he extended the front of his house beyond the setback requirements. Petitioner argues he needs a
variance because his lot is smaller than many in the neighborhood, but he ignores the fact that his
house is much larger than many in the neighborhood. Even if his lot extended further back or to
the sides, the house would still be too close to the street. Petitioner violated the setbacks not
because his lot was too small, or that the slope was too steep or multi-dimensional, but because
he did not know where his lot lines were. He did not know where his lot lines were because he
did not obtain a boundary survey before spending $1.5 million to renovate the house. This was
entirely his own doing.
1 https://www.google.com/maps/place/5600+Cromwell+Dr,+Bethesda,+MD+20816/@38.9648851,-77.1161775,3a,75y,273.68h,90t/data=!3m7!1e1!3m5!1s0zKCqzxbEr5-XtgcVTtASQ!2e0!6s%2F%2Fgeo0.ggpht.com%2Fcbk%3Fpanoid%3D0zKCqzxbEr5-XtgcVTtASQ%26output%3Dthumbnail%26cb_client%3Dmaps_sv.tactile.gps%26thumb%3D2%26w%3D203%26h%3D100%26yaw%3D273.68445%26pitch%3D0%26thumbfov%3D100!7i16384!8i8192!4m5!3m4!1s0x89b7ca3af124634d:0x31e2353cfc70b7ae!8m2!3d38.9649003!4d-77.1164482#
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Petitioner did not design the house to violate the setback requirements because the
physical property features were special; he violated the setback requirements because he did not
ascertain where the house was located in relation to the lot lines. It was his lack of diligence, not
topography that created the need for a variance. Had the physical features of the lot presented a
challenge to his designs, Petitioner could have (and should have) requested a variance before he
violated the setback requirements in the zoning ordinance.
Mr. Hart testified that the house was probably located where it was because of the
topographical features of the property. But there is no historical evidence to support this
supposition. Again, even if this hypothesis were correct, it does not change the fact that
Petitioner purchased the property “AS IS.” Petitioner knew where the house was located before
he bought the property and planned to renovate it. What he did not know was the location of the
lot lines. There is only one sure way to confirm that information: perform a boundary survey.
He did not have one performed.
D. The cost to remedy Petitioner’s errors is not a basis to allow Petitioner to violate
setback requirements and the cost is entirely self-inflicted.
Movant acknowledges that the cost to fix Petitioner’s mistakes is significant. “Mr. Hart
estimated that it would cost $350,000 or more to bring this house into compliance, and would
take six to eight months, during which time the residents would be displaced.” Opp. at 17.
Petitioner’s estimates for the cost to repair varied, and he provided no documents showing how
or what the cost would be. His estimate is further suspect because he offered varying estimates
during the process that were all general estimates that seem excessive given the entire renovation
project cost $700,000. It goes without saying, however, that “[e]very person requesting
a variance can indicate some economic loss.” Cromwel v. Wardl, 102 Md. App. 691, 715; see
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also Montgomery Cty. v. Rotwein, 169 Md. App. 716, 732 (2006). But that alone is not an
adequate reason to grant the variance, especially in light of the fact that Petitioner assumed that
risk by relying on a document that stated on its face that it was not reliable. See Carey v.
Baltimore Cty., 262 Md. 491, 497 (1971) (“We would observe, however, that even in those cases
wherein the property owner has sought injunctive relief predicated on his acquisition of a vested
right in the building permit, which has later been revoked or the work stopped through the
intervention of municipal authorities because of a [] mistake in issuance of the permit, this Court
has been reluctant to allow relief even where substantial sums have been spent on architectural
fees and site preparation.”).2 The Maryland Court of Appeals has held for a long time that a
variance should not be granted “merely for the convenience of the applicant.” Carney v. City of
Baltimore, 201 Md. 130, 137 (1952). Here, the Board should not grant a variance merely to
allow Petitioner to escape a hardship that he and his advisors created.
Courts consistently enforce zoning restrictions on developments even when the cost to
the property owner is significant—particularly if the violation was the result of the property
owner’s own actions. In Cromwell v. Ward, the Court of Special Appeals held that the granting
of a variance from height restrictions was arbitrary and illegal. 102 Md. App. 691 (1995). The
petitioner in Cromwell had applied and received a building permit to construct a garage and wine
cellar on his property. Id. at 696. The petitioner designed “a roof pitched at the angle he desired,”
for the garage but that design “caused the roof to extend above the fifteen-foot height limit.” Id.
2 See also Ross v. Montgomery County, 252 Md. 497, 504 (1969); Francis v. MacGill, 196 Md. 77, 85 (1950); Bogley v. Barber, 194 Md. 632, 639 (1950); Kahl v. Consolidated Gas, Electric Light & Power Company, 191 Md. 249, 260, 261 (1948); Mayor & City Council of Baltimore v. Shapiro, 187 Md. 623, 634 (1947); Board of County Com’rs of Anne Arundel County v. Snyder, 186 Md. 342, 347 (1946); Lipsitz v. Parr, 164 Md. 222, 227 (1933). Cf. People’s Counsel Public Service Commission v. Public Service Comm’n, 259 Md. 409, 417 (1970).
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at 695. The court held that this was a self-created hardship arising from the petitioner’s failure to
disclose height dimensions when he applied for his permit and could not support variance.
Likewise, in Permanent Financial Corp. v. Montgomery County, a developer sought
variances for height, setback and floor area ratio (“FAR”) restrictions after a stop-work order
was issued, based on alleged reliance on a building permit and after the developer had already
undertook significant construction on the building. 308 Md. 239, 241-42 (1986). The variances
were denied by the Board of Appeals, and the builder appealed the case all the way to the
Maryland Court of Appeals. Id. The Court held that because Permanent designed the penthouse
to contain offices for janitorial or security personnel, as well as “roof structure housing
mechanical equipment,” it had to be included in calculations for setback and FAR restrictions.
Id. at 244-245, 254, 256. Once the penthouse was included in those calculations, it violated the
height, setback, and FAR restrictions. Id. The Court held that Board of Appeals did not err when
it denied the variances based on these various issues, despite the fact that it had originally issued
the building permit and significant construction had already occurred. Id. at 257. Thus,
the building permit was properly suspended and the stop work order properly issued. Id. The
same result should apply here.
E. The Board erred when it found the variance will not be adverse to the use and
enjoyment of neighboring properties.
The Board noted that many in the community, including some real estate agents,
complimented the appearance of the house and thought it might help community property values.
But these opinions are largely irrelevant. The Board must find that granting the variances “will
not be adverse to the use and enjoyment of abutting or confronting properties.” Even if the
house were to help increase neighborhood property values, it would happen at the expense of the
abutting or confronting properties. It is telling that the owners of both adjacent properties and a
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property across the street all objected to this variance – their properties, which are protected by
the Code, will suffer an adverse impact on the use and enjoyment of their properties.
Movant’s property, in particular, will be impacted because it is an undeveloped lot and
therefore when developed must comply with R-90 setback requirements, which are more
significant than the R-60 setback requirements that apply to Petitioner. Allowing Petitioner to
obtain variances will exacerbate this difference by permitting Petitioner’s porch and eaves to
extend 7.5 feet, and the second floor and eaves 6.3 feet beyond the less restrictive R-60 setbacks.
This concern may seem less significant when compared to the cost Petitioner will incur to bring
his house into compliance, but the Code does not require (or allow) for a balancing of interests.
It instead requires that the variance not adversely affect the use and enjoyment of neighboring
properties.
Here, the evidence shows the variances will adversely affect those properties. To the
extent the Board is sympathetic to Petitioner because of the alleged cost to comply with the
proper setbacks, it should consider who should bear the brunt of the mistake – the person who
created the problem and elected to remain willfully ignorant, even when neighbors complained –
or the neighbors who had no control over the process and tried in vain to work with Petitioner
early in the construction process.
Moreover, Petitioner’s contention that he has no recourse against Capitol Surveys
because he had no contractual privity is also suspect because the Approval Form shows that he
requested the location drawing and thus has contractual privity. Petitioner submitted no evidence
showing it was Paragon Title that paid for the location drawing. In addition, Petitioner has
contractual privity with Mr. Hart and Hartland Development, who was responsible for managing
the construction project. Petitioner is not without recourse if his advisors gave him bad advice.
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Finally, if the Board grants Petitioner the variances requested, it will reward Petitioner for
ignoring facts he knew or should have known and for failing to take actions he should have
taken; granting the variances may have the unfortunate result of incentivizing others to do the
same.
IV. CONCLUSION
For the reasons herein, Steven P. Hubert requests that the Montgomery County Board of
Appeals grant his Motion for Reconsideration and deny John Cokinos’ petition for a variance of
the setback lines for Lot 24, Block B, Fort Sumner Subdivision, located at 5337 Westpath Way,
Bethesda, Maryland, 20816 in the R-90 (formerly R-60) Zone.
LERCH, EARLY & BREWER, CHARTERED
______________________________________
Michael J. Goecke (CPF #1001050001) Meaghan C. Murphy (CPF # 1712140071) 7600 Wisconsin Avenue, Suite 700 Bethesda, MD 20814 301-657-0185 (Phone) 301-347-1795 (Facsimile) [email protected] [email protected] Attorneys for Steven P. Hubert
CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of August, 2020, a copy of the foregoing Motion for Reconsideration was served by first class mail, postage prepaid, to:
Nancy P. Regelin Shulman Rogers 12505 Park Potomac Avenue Potomac, Maryland 20854
____________________________________ Michael J. Goecke
A