Easton Appeals Board Rejects Parking Lot In Stream Buffer

January 23 2009

The Easton Zoning Ordinance, Article X, Section 1016 provides that: “No structure or impervious surface shall be located within 100 feet of any perennial stream or 50 feet of any intermittent stream.”

The requested variance, by Bay Street Associates LLC,would permit the Applicant to construct an impervious parking lot within 25 feet of a perennial stream, where a minimum setback of 100 feet is required by law.

The proposed variance from the 100 foot setback requirement is contrary to the Easton Zoning Ordinance and Maryland law, and is inconsistent with the public interest. Moreover, the variance is entirely unnecessary for a successful office building project as proposed by the Applicant. Therefore the requested variance should be denied.

The Applicant proposes to construct an impervious parking lot within 25 feet of the perennial stream known as Tanyard Branch which is literally the headwater of the Tred Avon River. It is well documented that the headwaters of the Tred Avon River are seriously endangered. The MDE classifies the Tred Avon as an “impaired river,” and the Creekwatchers organization consistently has found water in this vicinity to fall well below acceptable standards.

In response to these conditions, and immediately downstream from the site that is the subject of the proposed variance, citizens’ groups have worked with developers to increase buffers and to ensure that the most advanced practices for stormwater control have been adopted in connection with new projects in recent years.

Thus, for example, literally within sight of the subject parcel, Talbot River Protection Association and other individuals negotiated a stormwater management plan with the developer of the new office building housing the state Social Services agency, that includes a setback of more than 100 feet from Tanyard Branch and a bioretention stormwater system. Proceeding further downstream, Talbot Preservation Alliance negotiated a written commitment from the developers of the new “Waterside Village” commercial project requiring the most advanced bioretention and, again, substantial buffers. And just downstream beyond that, where Tanyard Branch becomes the Tred Avon, TRPA and TPA negotiated a written commitment from the developer of Easton Village to utilize state of the art bioretention and to provide for a 300 foot setback from the water.

In the face of these successes and all of this good environmental work, it would be counterproductive, and indeed shameful, to permit an adjacent upstream developer to encroach with an impervious surface within 25 feet of the same water course that local citizens have worked so diligently to protect. A parking lot is perhaps the absolute worst type of “development” that could be permitted so close to a perennial stream. The hydrocarbons that run off from gasoline, diesel, antifreeze and similar products do not “dissolve” in the water but float downstream and eventually settle into the sediment, destroying marine life over a wide area.

The Easton Zoning Ordinance explicitly provides that, before granting a variance, the Board of Appeals must find that its approval “will not be contrary to the public interest,” and will not “be injurious to the neighborhood or otherwise detrimental to the public welfare.” Zoning Ordinance, Article XIII, Section 1303.5C(4)a. The Applicant claims that it can meet this standard because it will actually improve the quality of parking lot runoff through, apparently, vegetation planted within the remaining 25 feet of setback after construction. This argument seems implausible on its face, would be essentially impossible to verify, and in any event sets for itself a very low bar against which to improve. Since the runoff coming from the site already is generated by parking lots, an alleged “improvement” over current conditions isn’t saying very much.

Instead, the Applicant should be held to the same highest standards that adjacent developers downstream have been diplomatically compelled to observe, with 100 to 300 foot setbacks and bioretention for stormwater. Anything less stringent, in the context of a critical stream such as the Tanyard Branch, would indeed be “contrary to the public interest” and “injurious to the neighborhood,” and therefore the proposed variance is inconsistent with and does not satisfy this legal standard.

Moreover, even apart from the unwarranted environmental impact of its proposal, the Applicant cannot demonstrate that the requested variance satisfies the separate legal conditions for approval as established by the Zoning Ordinance and Maryland law. In addition to the required finding just described, in order to approve a variance the Board of Appeals additionally must find as a fact that:

Owing to conditions peculiar to the property, which conditions are not the result of any action taken by the applicant, a literal enforcement of the Ordinance will result in practical difficulty to the applicant.

Zoning Ordinance, Article XIII, Section 1303.5C(4)b.
“Thus the Zoning Ordinance requires this Board to make two factual findings: first, that there is something unique or “peculiar” about the property, and second that, because of such peculiarity or uniqueness, enforcement of the ordinance (in this instance, the 100 foot stream setback) would result in “practical difficulty to the applicant.” The requirement of such a two step analysis for variance applications has been confirmed by the Maryland appellate courts.

Nor can the Applicant prove, even if its property were somehow deemed “peculiar,” that such peculiarity imposes “practical difficulty” upon it unless the variance is granted. Again, the variance is required from the Applicant’s viewpoint only because of the size and design of the building it chooses to propose. Multiple other uses, and different sizes of buildings, would be permissible at this site. As one alternative, as was suggested before the Planning Commission, the Applicant could build below grade, or at street grade, parking as its “first floor” under the proposed building. This is the alternative that was selected by the developer of the Social Services building downstream from the subject site, with the result that its parking lot is substantially removed from the water course.

There can be no proof that the Applicant will suffer practical difficulty if the variance is denied. Therefore, since the Applicant cannot satisfy either of the requirements of the two step variance analysis imposed by law, the application should be denied.

It is noteworthy that the Planning Commission approved the sketch plan for the office building (but not the variances) by only a divided three to two vote. The Applicant expressly asked the Planning Commission to make a “recommendation” that the variances be granted, but the Commission explicitly declined to do so.

The 100 foot stream setback in the zoning ordinance is a relatively new requirement, and it is now being tested with regard to probably the most significant perennial stream that flows through the town of Easton. It would set a very unfortunate precedent if, the very first time that the setback requirement is placed in issue, a very major deviation – reducing it by fully 75% – is permitted. This also could reflect a less than encouraging commitment to the spirit of what the setback requirement is intended to accomplish, and I therefore respectfully urge the Board of Appeals not to take that step and not to set such a precedent.