WEST OCEAN CITY — A West Ocean City property owner could get the green light to construct a 180-foot pier across marshland to a waterfront dock after a Maryland appeals court this week affirmed the granting of a special variance from state and county critical areas laws.
In 2013, West Ocean City property owner Roy Schwalbach successfully obtained a variance from the Worcester County Board of Zoning Appeals (BZA) to construct a 180-foot pier or walkway from his expansive residence on Old Bridge Rd. to a proposed dock that would allow him access to the navigable waters in the coastal bays tributary. State and local critical areas laws, passed decades after Schwalbach’s lots were platted back in the 1930s, allowed for a pier of only 100 feet across sensitive marshlands and wetlands, but included an application process for special exceptions and variances under certain circumstances when a property’s unique shape or location denied the owner riparian rights to navigable waters.
The property owner’s plan was to construct a pier or walkway across the marsh to a dock that would extend six feet past the shoreline. To reach the shoreline, however, the pier or walkway would have to extend 180 feet across marshland on the north side of the property, well in excess of the stated 100-foot rule for piers in the county’s critical area law.
The BZA approved Schwalbach’s application for a variance in 2013, satisfied the applicant had met six rigorous standards for the special exception. Among the six standards in the county’s critical area is that special conditions or circumstances exist that are peculiar to the owner’s land, and that a literal interpretation of the critical area law would deprive the landowner of riparian rights commonly enjoyed by other properties in the area.
By those standards alone, it appears the BZA was correct in approving the variance request. Several neighbors adjacent to Schwalbach’s property on Old Bridge Rd. have piers extending across the marsh and the Ocean City Fishing Center with its hundreds of piers and boat slips is just a stone’s throw across water from Schwalbach’s property. In addition, the nearby state-owned Park-and-Ride facility has multiple piers and observation decks that extend out into the marsh.
The Assateague Coastal Trust (ACT) quickly challenged the BZA approval of Schwalbach’s variance from the critical area law allowing him to build the 180-foot pier to access the navigable channel on multiple fronts. ACT asserted the property owner had not met all six of the stated criteria for a variance in the county critical area law. ACT also asserted the BZA did not substantiate its ruling with written findings of its decision.
The Worcester County Circuit Court upheld the BZA decision and affirmed the variance from the critical area law for the property owner. ACT then appealed the Circuit Court’s decision to the Maryland Court of Special Appeals. The week, the Court of Special Appeals affirmed the Circuit Court’s ruling and upheld the decision of the BZA to grant to variance for the 180-foot pier.
It is uncertain at this point if the property owner is still interested in building the pier and dock. At one point recently, the property was listed for auction at $4.9 million although the status of the property ownership is unknown. Nonetheless, the Court of Special Appeals opinion this week opens the door for the pier construction.
“In light of the considerable deference that is owed to the Board’s factual findings and to its interpretation of the statute is it charged with implementing, we will not disturb the Board’s determination as to the unwarranted hardship criterion,” the opinion reads. “It was reasonable for the Board to conclude that the need for the variance arose from special features that were peculiar to the property.”
The opinion states the existing character of the surrounding area supports the variance for the pier.
“Particularly in light of the importance of riparian access in what is essentially a boating community, with several marinas and hundreds of vessels in the nearby vicinity, the question of whether the deprivation of riparian access amounted to the denial of reasonable and substantial use of the entire property was properly addressed to the expertise of the Board,” the opinion reads.
Preserving Schwalbach’s riparian rights for the West Ocean City property was reason enough to uphold the BZA decision.
“We conclude that substantial evidence supported the Board’s findings that the variance was necessary for Schwalbach to enjoy the right of riparian access commonly enjoyed by others in the area and that granting the variance would not confer any special privilege denied to other property owners in the area,” the opinion reads. “Taking the record as a whole and drawing all reasonable inferences in favor of the agency, we conclude that substantial evidence supported the Board’s determinations that granting the variance would have no adverse environmental impact …”