A breath of fresh air and a second wind was breathed into dreams and potential plans for a large wind farm in Allegany County, Maryland. The Court of Special Appeals of Maryland in Dan’s Mountain Wind Force, LLC, et. al. v. Allegany County Board of Zoning Appeals, __ Md. App. __, __ A.3d __ (2018)(Case No. 804, September Term 2016; filed April 3, 2018), recently held that the Allegany County Board of Zoning Appeals (the “BZA”) did not properly apply the “uniqueness” test or the “practical difficulty” test necessary for an applicant to prove its eligibility to obtain a zoning variance.

The applicant, Dan’s Mountain Wind Force, LLC (“DMWF”) sought a variance to construct 17 wind turbines on property that it leased, which in this case involved several combined properties. The Allegany County Code allows for wind turbines by a special exception in the zoning district. Construction of the turbines; however, requires (1) a minimum separation of 2,000 feet from a residential structure, and (2) a minimum setback of not less than 3 times the height of the turbine. Since the proposed sites for the turbines did not meet either the setback or separation distances, or both, DMWF sought variances from the BZA, and also applied for a special exception.

DMWF presented testimony before the BZA regarding various factors which limited the use of the turbines at the proposed locations. The BZA denied the variance requests; however, because it found DMWF failed to establish that the properties were sufficiently “unique” and failed to demonstrate that the variances were in harmony with the zoning regulations. Since the special exception was dependent upon the variances, the special exception was also denied. DMWF consolidated the appeals, which were affirmed by the Circuit Court for Allegany County.

On appeal to the Court of Special Appeals, the Court discussed the two requirements under the law of variances. First, the property must meet the “uniqueness” requirement, which looks at the unique factors and conditions of the property itself.  Second, if the applicant successfully proves the property is unique, the applicant must then prove “practical difficulty” or “unnecessary hardship” which affect the applicant’s ability to meet the requirements of the zoning regulations.

This case is important because, as the Court pointed out, there is very little recent case law in Maryland on variances, or which discuss the “uniqueness” requirement, the most recent in the 1990s. The uniqueness analysis requires an examination of the unusual characteristics and features of a specific property in relation to other properties in the area. There must also; however, be a nexus between the property’s unique characteristics and the manner in which the zoning law negatively impacts the property owner. In this case, the Court found that the BZA did not properly identify the properties’ unique characteristics or compare them correctly to surrounding properties. The BZA also failed to apply the required nexus component.

The Court then provided guidance on the “practical difficulty” and “unnecessary hardship” requirements. The Court clarified that the “practical difficulty” test is a more lenient standard, but relates only to an “area” variance. By comparison, the more strict “unnecessary hardship” test applies to “use” variances. The variances requested by DMWF for the wind farm were “area” variances, not “use” variances and, therefore, the BZA should have reviewed the application under the more lenient “practical difficulty” standard.

The Court concluded that the BZA erred, both in its decision on the “uniqueness” of the properties, and because it applied the incorrect “unnecessary hardship” test instead of the appropriate “practical difficulty” test. The case was remanded back to the Circuit Court to enter an order vacating the BZA decision. The Court instructed the Circuit Court to remand the case back to the BZA to review the requests for variances and special exception under the “correct legal framework”. And, thus, potential plans for the wind farm on the properties have now been provided with a second wind and breath of fresh air.

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