Dan’s Mountain Wind Force, LLC v. Allegany Cnty. Bd. of Zoning Appeals, No. 804,
September Term 2016.

Filed March __, 2018.

HEADNOTES

Land Use – Zoning Variances – General

Zoning variances are subject to a two-step test: first, the property must be unique, and
second, that uniqueness must cause a practical difficulty or unnecessary hardship for the
applicant.

Land Use – Zoning Variances – Uniqueness

For a property to be unique under the zoning variance analysis, the “unique” features of
the property must have a nexus with the area of zoning law from which a variance is sought.

Land Use – Zoning Variances – Uniqueness

When conducting the uniqueness analysis for a zoning variances, the body determining
whether a variance is to be granted must conduct the following inquiry individually for
each variance applied for:

   1) Whether the unusual factors identified by the applicant are, in fact, features
      of the subject property;

   2) Whether the effect of those factors, taken together, have a nexus with the area
      of zoning law from which a variance is sought; and

   3) Whether that effect is unique as compared to similarly situated properties.

Land Use – Zoning Variance – Practical Difficulty and Unnecessary Hardship

When conducting the zoning variance analysis, the practical difficulty standard is proper
when the requested variance is an “area variance,” and the unnecessary hardship standard
is proper when the requested variance is a “use variance.”
Circuit Court for Allegany County
Case No. 01-C-15-043252-F
                                                  REPORTED

                                     IN THE COURT OF SPECIAL APPEALS

                                                OF MARYLAND


                                                     No. 804

                                             September Term, 2016

                                         _________________________

                                     DAN’S MOUNTAIN WIND FORCE, LLC,
                                                  et al.

                                                        v.

                                    ALLEGANY COUNTY BOARD OF ZONING
                                                APPEALS

                                         _________________________

                                        Meredith,
                                        Friedman,
                                        Pierson, W. Michel
                                             (Specially Assigned),

                                                       JJ.

                                         _________________________

                                            Opinion by Friedman, J.
                                         _________________________


                                        Filed: April 3, 2018
       This case concerns the rejection of an application for variances to the setback and

separation distance requirements for a wind farm in Allegany County. We hold that the

Allegany County Board of Zoning Appeals did not properly apply the uniqueness test or

the practical difficulty test necessary for an applicant to prove eligibility for a variance. We

explain how such analyses should be conducted and remand for the Board to try again.

                                           FACTS

       Dan’s Mountain Wind Force, LLC seeks to construct 17 wind turbines and an

electrical substation on leased property on Dan’s Mountain. The Allegany County Code

permits wind turbines as a special exception in the zoning district in which the project is

proposed.1 And, most importantly for present purposes, construction of the turbines is

subject to (1) a minimum separation distance of 2000 feet from any residential structure;

and (2) a minimum setback distance of no less than three times the height of the turbine.

ACC § 360-92(B)(3).2 Because the proposed sites of some of the turbines were within

either the setback or separation distances, or both, Wind Force sought variances. It also



       1
         The site is partially located in both an A Agricultural District and a C Conservation
District. These districts both require special exceptions for wind turbines. Allegany County
Code (“ACC”) § 360-83(B)(13) (2011); id. § 360-84(A).
       2
         At the time of Wind Force’s application this requirement was found in Section
360-92(A)(2) of the Allegany County Code. ACC § 360-92(A)(2) (“The following
separation distances shall be maintained for industrial wind energy conversion systems
[what we are calling, colloquially, wind turbines] … [2000] feet from any residential
structure.”). The Allegany County Zoning Code was substantially revised by the County
Council in 2017, though the section that concerns wind turbines was not changed. Allegany
County Bill 2-17 (effective Mar. 9, 2017). It was renumbered and may now be found at
Section 360-107. For the remainder of this Opinion, we shall only refer to the 2011 edition
of the County Code, which was in force at the time of Wind Force’s application.
applied for the requisite special exception. Critically, Wind Force enlisted the support of

the neighboring property owners, who joined Wind Force as co-applicants.

       The Board’s opinion summarized the factual and procedural background:

              [Wind Force] has proposed to construct 17 wind turbines … on
              leased property located on Dan’s Mountain. … The Allegany
              County Code requires that wind turbines have a minimum
              separation distance of [2000] feet from any residential
              structure and a [minimum] setback property line distance of
              “three times the height of the unit” which, in this case, is [955]
              feet. [T]o meet the criteria of the zoning code, a variance to the
              separation distance is required for [8] residences and a variance
              to the setback requirements are necessary at [2] locations. All
              of the subject property owners requesting a variance to the
              separation distance are co-applicants and have executed
              variance authorizations. …

              [5] of the [8] co-applicant property owner[s’] variance requests
              involve residential structures within the 2000 foot separation
              distance of multiple wind turbines. As such … evidence
              presented indicates that the Board will have to review and grant
              [26] separate variances to get the project in line with the
              existing zoning code.

At the hearing, Wind Force presented expert testimony that while Dan’s Mountain is an

ideal location for a wind farm, there are many factors limiting the specific locations on

which turbines can be placed, including the:

       (1)    topography of the property;

       (2)    boundaries of Wind Force’s property and that of its neighbors;

       (3)    proximity of existing dwellings and other structures;

       (4)    stream channels;




                                               2
       (5)    habitat of the Allegheny Woodrat;3

       (6)    habitat of Black-fruited Mountain Rice;4

       (7)    existence, location, and extent of wetland areas;

       (8)    prior strip mining activity;

       (9)    communication beam paths passing over and through the properties; and

       (10)   technical specifications of the wind turbines themselves.

       Thus, the thrust of Wind Force’s expert testimony was that these constraints

required it to propose placing the turbines in very specific locations on Dan’s Mountain

and that the requested variances of the minimum separation distance and setback

requirements were necessary for the project. The Board was not persuaded. The Board

found that Wind Force had failed to meet its burden of proof in “three critical areas.”

Specifically, the Board found:

              First, the Applicant failed to establish that the subject
              properties were sufficiently unique as to each other as to
              warrant a variance. Second, the Applicant failed to

       3
         The Court takes judicial notice that the Allegheny Woodrat (Neotoma magister) is
listed by the Maryland Department of Natural Resources (“DNR”) as an endangered
species. COMAR 08.03.08.04(C)(9)(i). It is not, however, listed by the U.S. Fish and
Wildlife Service under the federal Endangered Species Act. Wind Force’s expert, Matthew
Brewer, testified that DNR determined that the project site includes the habitat of the
Allegheny Woodrat. According to Brewer, DNR established the appropriate buffers for
this habitat, which Wind Force then incorporated as constraints on the site planning
process.
       4
         The Court takes judicial notice that Black-fruited Mountain Rice (Piptatherum
racemosum) is listed by DNR as a threatened species. COMAR 08.03.08.08(C)(35) (listed
as “Black-fruit mountain-ricegrass”). It is not, however, listed by Fish and Wildlife under
the federal Endangered Species Act. Brewer testified that, as with the Allegheny Woodrat
discussed supra n.3, DNR established an appropriate buffer around the rice habitat and
Wind Force adopted the buffer as a constraint on the site planning process.

                                             3
              demonstrate that the multiple number of variances requested
              were in harmony with the spirit and intent of the zoning
              regulations. Finally, the Applicant failed to establish that any
              co-applicant lost “reasonable use” of their respective
              properties.

As a result, the Board denied the variance requests and, because the special exception

application was premised on the variances, denied the special exception as well. Wind

Force consolidated its appeals of the Board’s decisions into a single petition for judicial

review. The circuit court affirmed. Wind Force noted a timely appeal.

                              STANDARDS OF REVIEW

       When reviewing the decision of an administrative agency, this court “looks through

the circuit court’s [decision] … and evaluates the decision of the agency.” People’s

Counsel for Balt. Cnty. v. Surina, 400 Md. 662, 681 (2007). Thus, in the present case, we

consider whether the administrative agency—the Allegany County Board of Zoning

Appeals—erred. Wind Force contends that the Board erred both in its factual findings and

in its legal determinations. We will, therefore, review the Board’s factual findings for

whether they are supported by substantial evidence in the record, and its legal conclusions

without deference. 5 Md. Bd. of Pub. Works v. K. Hovnanian’s Four Seasons at Kent Island,

LLC, 425 Md. 482, 514 n.15 (2012).



       5
         We frequently defer to an agency’s interpretation of its own regulations. Surina,
400 Md. at 682 (“When determining the validity of those legal conclusions reached by the
zoning body … ‘a degree of deference should often be accorded the position of the
administrative agency’ whose task it is to interpret the ordinances and regulations the
agency itself promulgated.”) (quoting Marzullo v. Kahl, 366 Md. 158, 172 (2001)).
Because the legal errors alleged by Wind Force, however, are premised on the Board’s
interpretation of general Maryland zoning law, rather than on an interpretation of Allegany

                                             4
                                       ANALYSIS

      Allegany County has adopted the Code Home Rule form of county government. As

a result, it has been granted the express power to adopt zoning laws, Md. Code Local

Government (“LG”) § 10-324, and the express power to create an appeal board to review

variance applications. LG § 10-305(a)(1). The County Commissioners of Allegany County

have adopted a zoning ordinance, which is codified in Chapter 360 (Land Development),

Part 4 (Zoning) of the Allegany County Code. The Allegany County Code doesn’t

separately describe the procedure or standards for granting a zoning variance. Rather, the

Code only mentions zoning variances in the “definitions” section:

             [ZONING] VARIANCE [is defined as a] change of density,
             bulk[,] or area requirements,[6] with respect to the location of a
             building or a use on a lot of record, where the physical or
             natural character of the lot would otherwise preclude the use of
             the lot.

ACC § 360-59(A)(1). Although Allegany County could prescribe standards for variances,

it has not. And, in the absence of locally adopted standards, Maryland’s common law

regarding variances controls.


County-specific zoning law, we need not accord any extra deference to the Board’s
expertise when examining its legal conclusions.

      6
          The language limiting variances to “changes of density, bulk[,] or area
requirements,” indicates that Allegany County permits only area variances, as
distinguished from use variances. This is a common limitation in Maryland. See, e.g., Md.
Code Land Use (“LU”) § 4-206(b)(1) (permitting only area variances in commissioner
counties and municipalities); Montgomery County Code § 59-G-3.1(d) (allowing area
variances but not use variances in Montgomery County) (described in Montgomery Cnty.
v. Rotwein, 169 Md. App. 716, 729 (2006)). As we shall see in Part II, infra, the
determination of whether a proposed variance is an area variance or a use variance changes
the legal standard for it to be granted.

                                             5
       A variance “permits a use [that] is prohibited and presumed to be in conflict with

[an] ordinance.” North v. St. Mary’s Cnty., 99 Md. App. 502, 510 (1994). The burden rests

on the applicant to overcome the presumption that the proposed use is in conflict with the

ordinance. Id. Courts have recognized a two-part test to determine whether a variance

should be granted in a particular case. See, e.g., Cromwell v. Ward, 102 Md. App. 691,

694-95 (1995). The first requirement, uniqueness,7 looks at whether:

              the property whereon structures are to be placed (or uses
              conducted) is—in and of itself—unique and unusual in a
              manner different from the nature of surrounding properties
              such that the uniqueness and peculiarity of the subject property
              causes the zoning provision to impact disproportionately upon
              that property.

Id. at 694. If the applicant successfully proves that the property in question is unique, then

the reviewing body moves to the second requirement—practical difficulty or unnecessary

hardship—and examines:

              whether practical difficulty and/or [unnecessary] hardship,
              resulting from the disproportionate impact of the ordinance
              caused by the property’s uniqueness, exists.



       7
         There is very little case law in Maryland that discusses the uniqueness requirement
with any detail. The two most important uniqueness cases were decided in the mid-1990s.
Cromwell v. Ward, 102 Md. App. 691 (1995) (Cathell, J.); North v. St. Mary’s Cnty., 99
Md. App. 502 (1994) (Cathell, J.). And, in both of those cases, this Court reversed the grant
of a variance. Cromwell, 102 Md. App. at 726; North, 99 Md. App. at 519-20. Moreover,
in Cromwell, Judge Cathell expressed skepticism about prior cases affirming variances.
102 Md. App. at 711 (“[I]n our review of the reported Maryland cases since the creation of
the state zoning enabling act in 1927, we have found only five reported Maryland cases in
which the grant of a variance has been affirmed or the denial of a variance has been
reversed. … All of these cases were decided over a twelve-year period and the last of them
was decided more than twenty-one years ago. Three of them … appear to be somewhat at
odds with accepted Maryland law.”).

                                              6
Id. at 695 (emphasis omitted). This two-step process must be repeated for each variance

request.

       Wind Force challenges the Board’s conclusions on both steps of the variance

analysis: (1) uniqueness; and (2) practical difficulty or unnecessary hardship.

I.     UNIQUENESS

       The Board found that Wind Force had not satisfied its burden to demonstrate

uniqueness. We will begin by discussing the Board’s uniqueness finding. We next discuss

the uniqueness requirement and its requirement of nexus between the variance requested

and the unique attributes of the property. We then discuss the manner in which this analysis

should be conducted. We will discuss, finally, Wind Force’s argument that zoning merger

should apply to this case. Because we conclude that the Board used the incorrect

uniqueness analysis, we remand so that the Board may, as it deems appropriate, reopen the

hearing and reconsider the applications using the analysis discussed here.

       A.     The Board’s Uniqueness Finding

       The Board found that no applicant property was unique, stating that:

              Mining is not unusual in the western panhandle of Allegany
              County or in that particular area. All of the surrounding
              properties have similar habitat issues. All of these properties
              sit similarly in relation to the communication towers.

The Board considered each property, and each variance application, as separate and

discrete properties, while addressing their potential uniqueness collectively.8 With this


       8
        The Board, it seems, believed it was required to choose between Wind Force’s
argument that all of the properties must be analyzed as a single unit under the doctrine of
zoning merger, or that each property must be analyzed individually. When the Board, not

                                             7
analysis, the Board found that all of the co-applicant properties were similar to each other,

and thus, not unique. It did not take into consideration the particular effects that each of

Wind Force’s listed factors, supra p. 2-3, had on the placement of turbines on each

particular property, or how each factor affected each property differently. As we shall

discuss, the correct test requires the Board to look at each of the factors identified by an

applicant as making the property unique, and determine whether those factors, together,

affect each property.

       B.      The Law of Uniqueness

       To receive a zoning variance, a property must be unique. Maryland cases have used

the terms “unique,” “unusual,” and “peculiar” to describe this step in the variance analysis.

We made clear in Cromwell that these words are used more or less interchangeably to mean

“unusual.” 102 Md. App. at 703. The uniqueness analysis examines the unusual

characteristics of a specific property in relation to the other properties in the area, and the

nexus between those unusual characteristics and the application of the aspect of the zoning

law from which relief is sought. See Cromwell, 102 Md. App. at 719 (“[V]ariances should

only be granted when the uniqueness or peculiarity of a subject property is not shared by

the neighboring property and where the uniqueness of that property results in an

extraordinary impact upon it by the operation of the statute.”) (emphasis added). Stated

another way:




without justification, see infra Part I.D, found that zoning merger was inappropriate in this
case, it proceeded to analyze each property individually. As we shall discuss, this analysis
was incorrect.

                                              8
              Where by reason of the exceptional narrowness, shallowness,
              or unusual shape of a specific property, or by reason of
              exceptional topographic conditions or other extraordinary
              situations or special conditions of property the literal
              enforcement would make it exceptionally difficult to comply.

North, 99 Md. App. at 514-15 (cleaned up).9

       The purpose of the uniqueness or unusual element of the variance test is to determine

whether the zoning law’s effect on a property is particularized to that given property. We

can identify three principal reasons for this requirement. First, if the allegedly restrictive

effect of the zoning law is not unusual, and a characteristic is shared by many properties,

the problem ought to be addressed by legislation, not variances:

              The claimed hardship may be caused by general neighborhood
              conditions that cause the property to be unusable as zoned. If
              that is the basis of the owner’s claim, it is unlikely that only the
              owner’s parcel will be affected; in fact it is likely that many
              other parcels in the neighborhood will be affected. … In theory,
              then, an owner’s appropriate remedy in cases where the
              hardship is not unique is to seek a rezoning.

3 RATHKOPF’S THE LAW OF ZONING AND PLANNING § 58:11 (4th ed. 2017). This purpose

for the uniqueness requirement has been recognized by some of our sister state courts.

Arndorfer v. Sauk Cnty. Bd. of Adjustment, 469 N.W.2d 831, 834 (Wisc. 1991); Clark v.

Bd. of Zoning App. of Town of Hempstead, 92 N.E.2d 903, 904 (N.Y. 1950) (“If there be a

hardship, which … is common to the whole neighborhood, the remedy is to seek a change


       9
          “Cleaned up” is a new parenthetical intended to simplify quotations from legal
sources. See Jack Metzler, Cleaning Up Quotations, J. APP. PRAC. & PROCESS
(forthcoming 2018), https://perma.cc/JZR7-P85A. Use of (cleaned up) signals that to
improve readability but without altering the substance of the quotation, the current author
has removed extraneous, non-substantive clutter such as brackets, quotation marks,
ellipses, footnote signals, internal citations or made un-bracketed changes to capitalization.

                                               9
in the zoning ordinance itself.”). A property that is affected uniquely may be entitled to

relief through a variance, while a property owner experiencing a more common problem

must seek a legislative remedy.10 Second, and similarly, the uniqueness analysis guarantees

that a granted variance cannot act as a precedent in an application regarding another

property. If the effects of the zoning law operate similarly to the way in which they operate

on a separate applicant property, the uniqueness requirement is likely not satisfied. Finally,

in an analogous situation, the Court of Appeals has noted that uniformity of the application

of zoning laws—accomplished in part by requiring that properties exempt from those laws

be unique—performs a “critically essential function,” by “protect[ing] the landowner from

favoritism towards certain landowners within a zone by the grant of less onerous

restrictions than are applied to others within the same zone.” Mayor and Council of

Rockville v. Rylyns Enters., 372 Md. 514, 536 (2002) (discussing piecemeal zoning).

       The circumstances of this case, and the Board’s decision below, also highlight an

aspect of uniqueness that was always present but which has seldom been remarked upon—

the requirement of nexus. “[The owner] must prove … a connection between the property’s

inherent characteristics and the manner in which the zoning law hurts the landowner.”

Trinity Assembly of God of Balt. City v. People’s Counsel of Balt. Cnty., 407 Md. 53, 82

(2008). That is, the unique aspect of the property must relate to—have a nexus with—the

aspect of the zoning law from which a variance is sought. Id. Without the nexus

requirement, a motivated sophist could always find similarities or differences between any


       10
        As part of its conclusion, the Board found that 26 variances were simply too many.
For some projects, 26 variances will be a lot; for others it won’t. There is no magic number.

                                             10
two properties so as to defeat or support a uniqueness finding. Every property is similar to

every other property in some respects (for example, “there are some living things on this

property”). And every property can be distinguished from every other property in some

other respect (for example, “this property contains exactly x number of trees and y number

of woodrats”). Rather than semantic tricks, the proper question is whether the property is

unique in the way that this particular aspect of the zoning code applies to it.

       A zoning treatise illuminates the nexus requirement:

              Uniqueness must be related to the land … . The attribute must
              be related to the application of the ordinance from which relief
              is sought. Thus, a minimum width requirement for a parcel
              makes little sense for a pie shaped lot[;] likewise for a setback
              regulation that puts a house into an arroyo or ravine.

Barlow Burke, UNDERSTANDING THE LAW OF ZONING AND LAND USE CONTROLS 159 (3d

ed. 2013). Extending Professor Burke’s examples, it would make no sense to consider the

narrowness of a pie-shaped lot as a unique attribute in considering whether to waive, for

example, a height or density restriction. Our cases recognize this requirement. See Trinity

Assembly, 407 Md. at 82; Cromwell, 102 Md. App. at 721 (“[A] property’s peculiar

characteristic or unusual circumstances … must exist in conjunction with the ordinance’s

… impact on the specific property because of the property’s uniqueness.”). The uniqueness,

then, must have a nexus with the aspect of the zoning law from which a variance is sought.

       C.     Analysis

       We hold that the Board erred in its uniqueness analysis in three ways: (1) by failing

to properly identify each property’s unusual attributes to compare them to other properties;

(2) by failing to understand the requirement of nexus; and (3) by using too generalized an

                                             11
analysis. We will discuss each error, and then describe the proper mode of analysis that the

Board must conduct for uniqueness.

       First, the Board focused on comparing the co-applicant properties to each other

without looking at other surrounding properties. Whether two properties share common

features cannot be determined by reference to a third property. The governing law instead

requires an investigation, first, of the unusual features of the property for which the

variance is sought. Then the investigator must look at surrounding properties to see if they

share those same unusual features. Cromwell, 102 Md. App. at 694 (“[Uniqueness] requires

a finding that the property whereon structures are to be placed (or uses conducted) is—in

and of itself—unique and unusual in a manner different from the nature of surrounding

properties such that the uniqueness and peculiarity of the subject property causes the zoning

provision to impact disproportionately upon that property.”). Therefore, the Board erred in

its analysis by failing to properly identify each applicant property’s unusual characteristics,

and erred again by comparing them only to the other co-applicant properties and not other

surrounding properties.

       Second, relatedly, the Board failed to appreciate the nexus component of the

uniqueness analysis. It is not enough to say that properties are similar or unique in a

vacuum. Every two properties share common attributes, and every two properties differ in

other attributes. Instead, the nexus component requires that the basis of comparison be the

manner in which the aspect of the zoning law from which a variance is sought affects the

subject property. In this case, the aspects of the zoning law from which a variance is sought

are the separation and setback requirements. Therefore, the question must be: are there

                                              12
features on the property that cause the separation and setback requirements to affect this

applicant’s individual property differently from the way it affects other surrounding

properties?

       Finally, while the Board correctly determined that each property was required to be

individually unique, when conducting its analysis, it addressed all of the co-applicant

properties collectively, and dismissed the various individual factors because the properties

shared some general, common features. It is insufficient to determine, as the Board did,

that every property was in some way affected by prior surface mining, animal and plant

habitats, and communications towers. Supra at 7. To generalize the properties in this way

negates the purpose of the uniqueness analysis by taking for granted that each factor

affected each property in the same way. Thus, the Board erred by relying on generalizations

about the individual co-applicant properties, the factors cited by Wind Force, and the

variance requests.

       On remand, the Board must conduct the appropriate analysis on each property, each

factor, and each application. The proper analysis requires the following inquiry: first, the

Board must determine whether the unusual factors identified by the applicant are, in fact,

features of that particular property; second, the Board must determine whether the effect

or effects those features have on the property, taken together, have a nexus with the part of

the zoning law from which a variance is sought; and third, the Board must determine

whether the effect of those factors on the property is unique as compared to similarly

situated properties. The Board must conduct this analysis for each property, each factor,

and each application. There are multiple applicants (Wind Force and the ten co-applicant

                                             13
property owners), requesting multiple variances (twenty-six in total), and alleging that each

property is unusual as compared to the other properties in various ways. The Board must

consider each of these individually to determine whether each property is unique in a way

that has a nexus with the setback and minimum separation distance requirements so as to

require a variance. As always, it is the applicant, Wind Force’s burden to provide the Board

with the evidence it needs to accomplish its duties.

       D.     Zoning Merger

       Wind Force also argues that the Board erred in refusing to apply the principle of

zoning merger to the various properties in this case. Zoning merger allows a property owner

to merge adjacent, undersized parcels of land to form a tract that conforms to zoning

regulations. Friends of the Ridge v. Balt. Gas & Elec. Co., 352 Md. 645, 654 (1999)

(“[Zoning merger is] a doctrine that seeks to prevent the proliferation or use of

nonconforming, undersized lots by holding that they have been combined or merged into

a larger parcel.”). Here, according to Wind Force, if the properties on Dan’s Mountain are

viewed together as one tract, the property possesses unique physical and environmental

characteristics in relation to other properties. Because we hold that the Board otherwise

erred, we need not reach this issue.

       We note that for zoning merger to apply in this case, however, we would have to

hold that zoning merger applies not only when one owner owns the properties in fee simple,

but also when a developer leases, or obtains licensing agreements over, the properties

proposed for merger. Extending the law in this manner is not as simple as Wind Force

imagines. The Maryland cases that permit zoning merger all arose in situations in which

                                             14
the applicant owned the properties in fee simple. Remes v. Montgomery Cnty., 387 Md. 52,

87 (2005); Friends of the Ridge, 352 Md. at 658 (holding that the “landowner” may

exercise zoning merger).

       Although no Maryland court has so far addressed whether common ownership is

required for zoning merger, we are not confident that the Court of Appeals would allow

the merger of properties not held in common ownership. Our zoning merger law has been

influenced, at least in substantial part, by zoning merger law from New Jersey. Friends of

the Ridge, 352 Md. at 654-61 (citing to and relying on New Jersey cases). The New Jersey

Supreme Court has explicitly refused to apply zoning merger when the contiguous parcels

are not in common ownership because of “the proliferation of merger litigation with

complex proof problems and the loss of simplicity, uniformity[,] and predictability.” Jock

v. Zoning Bd. of Adjustment of the Twp. of Wall, 878 A.2d 785, 799 (N.J. 2005); see also

id. at 806 (“The merger doctrine … applies only to adjacent undersized lots held in common

legal title.”). We believe there is a substantial likelihood that the Court of Appeals of

Maryland would continue to follow New Jersey law and refuse to extend zoning merger to

leased parcels or other ownership arrangements short of fee simple absolute. We do not

resolve the question, however, and Wind Force is free, on remand, to advocate for zoning

merger, if it chooses.

       E.     Conclusion

       The Board did not apply the correct uniqueness test, and as a result misapplied the

evidence that was presented to it. The Board thus incorrectly concluded that there was no

evidence to support a finding of uniqueness. It is clear that Wind Force adduced evidence

                                           15
of several features of each of the co-applicant properties that suggests that the separation

and setback requirements operate differently on each of those properties than they operated

on other surrounding properties. We decline, however, to rule on the merits of those

arguments. That task is for the Board in the first instance, and we remand so that it may do

so.

II.    PRACTICAL DIFFICULTY OR UNNECESSARY HARDSHIP

       The second step of the variance test examines whether the disproportionate effect

of the ordinance, caused by the uniqueness of the property, creates practical difficulty for

or unnecessary hardship on the owner of the property. Cromwell, 102 Md. App. at 694-95;

see also LU § 4-206(b)(2) (“The modifications in a variance … (2) may only be allowed

where … a literal enforcement of the zoning law would result in unnecessary hardship or

practical difficulty as specified in the zoning law.”) (emphasis added). These are two

different standards: (1) a more lenient “practical difficulty” test; or (2) a more strict

“unnecessary hardship” test. Although it is unclear on the face of its opinion, and the Board

was not consistent in its terminology, it appears to us that the Board used the more stringent

“unnecessary hardship” standard.11 Wind Force argues that the Board should have used the

more lenient “practical difficulty” standard.

       “The determination of which standard to apply, ‘practical difficulties’ or

‘[unnecessary] hardship,’ rests on which of two types of variances is being requested: ‘area



       11
         The Board, for instance, compares the variance request to the denied request in
North v. St. Mary’s Cnty., which applied the unnecessary hardship standard. 99 Md. App.
502 (1994).

                                                16
variances’ or ‘use variances.’” Rotwein, 169 Md. App. at 728. “[T]he less stringent

‘practical difficulties’ standard applies to area variances, while the ‘[unnecessary]

hardship’ standard applies to use variances.” Id. at 729 (explaining that area variances do

not change the character of the neighborhood as greatly as do use variances); Zengerle v.

Bd. of Cnty. Comm’rs for Frederick Cnty., 262 Md. 1, 21 (1971). Area variances, such as

the variances requested by Wind Force, “are variances from area, height, density, setback,

or sideline restrictions, such as a variance from the distance required between buildings.”

Rotwein, 169 Md. App. at 728. Use variances, by contrast, “permit a use other than that

permitted in the particular district by the ordinance, such as a variance for an office or

commercial use in a zone restricted to residential uses.” Id. (cleaned up). As noted,

Allegany County does not permit use variances. ACC § 360-59(B); see supra n.6.

       The variances requested by Wind Force are area variances rather than use variances;

they concern the property line setback and separation distance requirements. Thus, we hold

that the Board should have reviewed the requests under the more lenient “practical

difficulty” standard, as outlined in Rotwein. On remand, the Board should consider each of

the variance applications using that legal standard.

                                     CONCLUSION

       Because the Board erred in its ruling on uniqueness, and because the Board also

erred when it applied the unnecessary hardship test, we remand the case to the circuit court

for it to enter an order vacating the decision of the Board. The circuit court should then

remand the case for the Board to review the requests for variances and for a special

exception under the correct legal framework. See Belvoir Farms Homeowners Ass’n Inc.

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v. North, 355 Md. 259, 270 (1999) (“[W]hen an administrative agency utilizes an erroneous

standard and some evidence exists, however minimal, that could be considered

appropriately under the correct standard, the case should be remanded so the agency can

reconsider the evidence using the correct standard.”).

                                          JUDGMENT OF THE CIRCUIT COURT
                                          FOR ALLEGANY COUNTY REVERSED
                                          AND REMANDED WITH INSTRUCTIONS
                                          FOR THE CIRCUIT COURT TO ENTER
                                          AN ORDER VACATING THE DECISION
                                          OF THE ALLEGANY COUNTY BOARD
                                          OF ZONING APPEALS AND REMANDING
                                          TO THE BOARD FOR FURTHER
                                          PROCEEDINGS CONSISTENT WITH
                                          THIS OPINION. COSTS TO BE PAID BY
                                          ALLEGANY COUNTY.




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