Poor Footnote Becomes Dog Bone of Land Use

ST. MARY’S TODAY

LEONARDTOWN — An uptight St. Mary’s Zoning Administrator Yvonne Chaillet was not letting lawyer Chris Longmore sit next to her on the main table to plead his client’s case, and relented only after her boss Land Use and Growth management Director Denis Canavan told her it’s okay.
The Board of Appeals voted four-to-one Thursday to deny variance to Valerie Boatwright’s request to subdivide her land, one more time in two years, to allow her daughter build her home.
“It’s a matter of law not policy,” Canavan said, adding if the variance was granted there would be no stopping.
Boatwright made her variance request to further subdivide her property on the basis of a controversial footnote, though she had already signed a document that stated no further subdivision would be allowed.
George Hayden, Ronald Delahay, Wayne Medzinski and Gertrude Scriber voted against the variance. Greg Callaway was the lone member of the Board of Appeals to vote for the variance his former lawyer Longmore was pleading for. He said he was not thinking in legal terms but on moral grounds of allowing a daughter live next to her mom.
Canavan admitted there should have been a sunset clause to a controversial footnote that has now become a bone of contention between Boatwright and the county. Footnote 8 in the zoning ordinance states “Parcels of at least 2 acres in size but less than 10 acres in size may be subdivided into 1 additional lot for transfer to a family member.”
Hayden concurred the board of county commissioners did not do their job right at the time of the framing of the footnote. “Unfortunately, due consideration was not given to the potential consequences of footnote 8,” Canavan said.
“I am scrambling to do something to keep my family intact,” Boatwright told the board.
Boatwright’s neighbor Bruce Bridgett, appearing before the board to oppose her, said any new subdivision would make life miserable for him.
Boatwright’s 4.56 acre property at 27720 Mechanicsville is one of the three lots that she got subdivided in March 2004, located in the rural preservation district, and all three are now already less than five acres in size. She sold two of the lots. The parent parcel consisted of a little more than nine acres and its subdivision into three lots was allowed only because of grandfathering provisions.
Canavan said a literal interpretation of this footnote means that any lot o parcel in the RPD, regardless of whether it stands alone or is part of a subdivision, may be further subdivided if it meets the specific criteria of footnote 8.
“It was never the intent of the County to allow a higher density in the RPD through this process. The intent was to assist property owners who wanted to give a lot to their children, but were caught in the downsizing of the RPD from one dwelling unit per three acres to one dwelling unit per five acres,” Canavan explained.
General Note # 16 on the plat record that Boatwright signed specifically states that “no further subdivision is allowed” on the property.
Boatwright contended she was told either by a land use official or a surveyor, “I do not remember”, that it was just a standard note. “Just disregard it,” she said she was told.
“It’s a shame,” said Delahay about Boatwright being misled, but said he would still side with the existing civic laws.
Scriber asked Boatwright why she had not given her daughter a lot at the time of the first subdivision two years ago. She replied, “The need was not there. It did not cross my mind then.” The board members apparently were not convinced.
Robin Guyther, planning consultant for Boatwright, said “If there’s a policy it has to be written down. But to have an unwritten policy is not fair to the people.”
Guyther said to have an unwritten policy would set a bad precedent.
Longmore said Canavan was presenting a doomsday scenario and took offense that he was characterizing his client’s genuine request to accommodate her daughter as “taking advantage” of the literal interpretation of footnote 8.
Canavan argued that the applicant had the opportunity to transfer a lot to her daughter when she subdivided the 9-acre parcel. “This subdivision was allowed with nonconforming density. Further subdivision of any of the lots would intensify the nonconforming density in the RPD,” he said.
For reasons best known to herself, Chaillet appeared reluctant to read the staff recommendations saying it was already in the written report. Half-heartedly, using a magnifying glass, she read the staff report on Hayden’s instructions.
At the very onset, County Attorney Christy Chesser conveyed to the board the concern of Circuit Court Judge Karen Abrams on the way the motions were being worded. She urged wording the motions with care, for easy comprehension, in case of any litigation.
“Judge Abrams did not order. She recommended the motions be clear when citing finding of fact. The second step is to make a recommendation based on that finding,” Chesser said. At times “finding of the fact” did not make it clear if the finding was made by the board or by the staff, leading to opening up of a legal Pandora’s Box.
After the board meeting was over, Longmore told ST. MARY’S TODAY whether the Boatwright case would end up in court would be his client’s decision. “We will first have to take a look at the written decision,” he said