Category Archives: Riparian Rights

Dividing Real Estate in Maryland – Partition Actions

Dividing Real Estate in Maryland

What do you do if you own a piece of real property with someone else, but you can’t stand them anymore?  Or you need to sell the property, but they want to keep it?  In law, this implicates the doctrine known as “partition.”  In a partition action, one owner of a property files suit against another and asks that the property be divided up or sold and the money split.  It is similar to what happens in a divorce, but the owners aren’t married.  Typical examples: two brothers are made joint owners in their Grandparents will.  One brother uses the property, the other would like to sell it and use the money to work on his own house.  Also typical two people are in love and buy a house together; their love cools and one moves out.  The person that moves out wants to get her money out of the house; the one that stayed is happy with the status quo.  What to do?  File a partition action and ask the court to either divide up the land (perfect if there are two similar lots) or order the land to be sold and money split (necessary if there is one house on the property and it cannot be split in half).

The right to a partition is set out in the Real Property Article of the Maryland Code.  It says:

“Decree of partition (a) A circuit court may decree a partition of any property, either legal or equitable, on the bill or petition of any joint tenant, tenant in common, parcener, or concurrent owner, whether claiming by descent or purchase. If it appears that the property cannot be divided without loss or injury to the parties interested, the court may decree its sale and divide the money resulting from the sale among the parties according to their respective rights. The right to a partition or sale includes the right to a partition or sale of any separate lot or tract of property, and the bill or petition need not pray for a partition of all the lots or tracts.” § 14-107

As the language indicates, if the property cannot be divided without losing value to its owners, then the court should order that it be sold and the proceeds divided.  That is what is known as a sale in lieu of partition.  Such sales are controlled by a section of the Maryland Rules of Civil Procedure that state: “When the relief sought is a sale in lieu of partition, the court shall order a sale only if it determines that the property cannot be divided without loss or injury to the parties interested.”  MD R PROP ACT Rule 12-401.

This is the correct result — if the property can just be split, as with two similar lots that are not improved with buildings — they should be split and the parties can keep or sell them as they see fit.  If the property cannot be split, however, it needs to be sold.

For the owners of the property, however, there are very strong reasons not to actually go through the sale as it would be ordered by the Court.  Under the Rules, the normal procedure is to appoint three commissioners who can establish a value and oversee the sale.  “When the court orders a partition, unless all the parties expressly waive the appointment of commissioners, the court shall appoint not less than three nor more than five disinterested persons to serve as commissioners for the purpose of valuing and dividing the property.”

MD R PROP ACT Rule 12-401.  These commissioners, in turn, can be paid out of the proceeds of the sale.  “Payment of the compensation, fees, and costs of the commissioners may be included in the costs of the action and allocated among the parties as the court may direct.”  MD R PROP ACT Rule 12-401.  If needed, the sale would then proceed to judicial sale –an auction on the courthouse steps.  This means that, if the owners cannot agree to sell it on the open market, it will likely go for a steep discount and then be subject to significant fees to pay the attorneys, commissioners, trustee, and related court costs.

 

The bottom line: if you own property and the other side won’t sell, or if someone has sued you to partition a property you own — you will need pragmatic, effective counsel that realizes that all fees and costs will ultimately come out of the value of the clients’ property.

J. Dirk Schwenk is a Maryland Real Estate, Waterfront Property, Civil Litigation and Maritime Lawyer from Annapolis, Maryland.  He provides civil litigation services in real estate issues, contract disputes, environmental and zoning issues, adverse possession and boundary disputes.  He graduated cum laude (with honors) from the University of Maryland School of Law in 1997 and has been in private practice in Maryland ever since.

Little Dobbins 2014 – Critical Area Variances and the Assault Vehicle Exception

Little Dobbins 2014: Critical Areas Variances and the Right to an Island Driveway

Maryland’s highest court, the Court of Appeals, issued a decision on August 4, 2014 in Chesapeake Bay Foundation v. DCW Dutchship Island, LLC.  This is Little Island case in which the owner, with essentially no permits, demolished a small cottage and put up a mansion complete with a pool and lighthouse.   The new case upholds the decision to limit the variances from the 8000 square feet requested to the 3005 square feet that was granted by the Board of Appeals, and remands the case the Anne Arundel County Board of Appeals for further consideration of the boat ramp.  For additional background on the beginnings of this case, see http://www.waterfrontlaw.com/little-island-big-mess.).  The substantive portion of the decision is included below.

Mr. Anthony Lamartina, the 2008 Chairman of the Anne Arundel County Board of Appeals:, described the Little Island case in this way:

“I can unequivocally state that I have never seen, in all my 24 years on this Board, a violation of such a grand scale.  The Petitioner [Wagner] is a builder who has made his living in this County for longer than I have been with this Board.  Given all his experience, he elected to construct more than 8,000 feet of new impervious surface for his own residential use, including a pool, gazebo, walkways, driveway, without ANY permission – all entirely in the Critical Area buffer and obliterating any steep slopes and vegetation deemed unworthy by him.  Why risk his residence (or his reputation)?  He must have concluded that the positives obtained outweighed any possible negatives.”

Despite its concerns, in 2008 the Board of Appeals allowed the house to remain.  It did require “the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.”  Everyone involved appealed that decision and the case has already been through the appeals process once before.

Most of the issues addressed in this Court of Appeals decision were procedural and technical — such questions as whether CBF could participate at the Board of Appeals when it was not a party to the original hearing.  The Court did, however, reach the crucial question of whether the Anne Arundel County Board of Appeals correctly determined whether the variances to the Critical Areas restrictions were the minimum necessary to afford relief.

This 2014 Court of Appeals decision looked at the relevant factors involved in the variance approval by the Board of Appeals, and for the most part, it upheld what had been done.  It did have a question about the boat ramp/driveway into the water, that was allowed by the Board.  The Court held as follows:

“The Board implicitly concluded that the impervious surface covered by the new house could legitimately be increased beyond the footprint of the old house by demolishing pre-existing outbuildings with impervious surfaces totaling 1,094 square feet, and “transferring” or allotting part of that footage to the new house.  We do not argue with this point, and consider it a reasonable factual inference based on the evidence.  In this regard, it is meaningful that the Board did require the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.

“Had the Board stopped there, we would be affirming on this point.  Yet the Board, quite inexplicably, also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.  Similarly, the Board did not seem to consider the possibility that through alterations to his home, Wagner may have been able to keep his boat ramp and stay under the 3,005 square foot maximum.  In short, the Board must provide some reasonable justification for increasing the impervious surface over that in existence before enactment of the Critical Area Law.”

Through this point, the Court of Appeals seemed to be on track to further reduce impervious surface allowed on the Little Island to the same amount that was present before Mr. Wagner began rebuilding.  This is the result most close observers would have expected, and it is probably the result that most people would consider to be the fair result.  It is, however, the point at which things begin to get exciting — and not in a good way for the environmentally minded.

THE POTENTIAL ASSAULT VEHICLE EXCEPTION TO THE CRITICAL AREA ACT.

The global principle in the Critical Areas Law is that there should be the minimum amount of impervious surface (roofs, sheds, driveways, etc.,) in the critical area.  This restriction is the one that Mr. Wagner is seeking an exception from because the entire island is in the critical area.  The Act, however, grants a global exception to structures that are considered “water dependent” such as piers, bulkheads and stone erosion control.  Water dependent structures do not require a variance and are not considered to be impervious surface.

When Mr. Wagner was constructing the house, he built a driveway/boat ramp directly into the water so that he could bring construction materials to the island with a government surplus beach assault vehicle.  He built a similar ramp on a property in Pasadena so that he could drive from the mainland to the island.  The Board of Appeals 2008 decision allowed the boat ramp to remain, despite the fact that it added additional impervious footage.  This aspect of the decision seemed dubious at the time, but the concurring opinion from the Court of Appeals lays out the reasoning — if it is a “water dependent” stucture, then no variance is necessary.  Apparently, this reasoning was adopted by Anne Arundel County in 2006.

“[T]his Office reviewed a request to allow a 40’ long x 8’ wide driveway on the northern side of the island as a water dependent use for access to the island.  By letter dated October 31, 2006, the Planning and Zoning Officer, Joseph Rutter, indicated that vehicular access to an island cannot exist outside the Buffer and that the 40’ long driveway reflected on the site plan submitted with the letter of consideration dated October 26, 2006 is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated.”

This reasoning appears to have been adopted by the Board of Appeals.  The Court of Appeals did not go so far as to adopt this reasoning — instead remanding the question to the Board of Appeals.  Judge Watts, however wrote a concurring opinion to this decision in which he stated that he would hold that it was a water dependent facility for which no variance was required.

The driveway/boat ramp fulfills the criteria set forth in COMAR 27.01.03.03A(1)-(5), in that: (1) the development activities are water-dependent; (2) the project (i.e., the driveway/boat ramp) meets Wagner’s recognized private right to have vehicular access to his island home; (3) the adverse effects on water quality and fish, plant, and wildlife habitat are minimized, as recognized by the Majority, which holds that the Board’s findings that the requested variances would not have a negative impact on the environment are supported by substantial evidence….

This concurring opinion will certainly be studied closely by the Board of Appeals, and given what has occurred thus far, it is difficult to imagine that the reasoning will not be adopted.

The decision does beg the question: is there a “recognized private right” to have vehicular access to an island home?  The law is silent on that point.  Unless Mr. Wagner still has another boat ramp on his mainland property, how could he even make use of a driveway on his island?  If he has a driveway on his mainland property — how did that get approved?  Is there a recognized private right to have boat ramp on any property?  Can one improve ones’ access to the water with both boat ramp and a pier, as is present now?  If so, this would seem to be a major new exception to the critical areas protections.

Environmental Science Issues

For my science and engineering minded readers, I have left intact the discussion of the Adverse Environmental Effects, which led the citing of the testimony of the Developer’s paid expert Charles John Klein, III, who “testified that the development led to a net environmental enhancement on the Island.”  This position was largely adopted by planners in Anne Arundel County.  If Critical Area protection is going to work, we need legitimate scientific support and testimony for the point that shoreline in its natural state is environmentally superior to a lawn enclosed by rip rap.  This is another huge loophole for a well funded developer like Mr. Wagner.

____________________________________________

 

THE TEXT OF THE DECISION

 

(Eds. Note: I have redacted the procedural discussion as well as many of the footnotes for readability.  Significant redactions are denoted by “*  *  *”.)

 

Chesapeake Bay Foundation, Inc. and Magothy River Association, Inc. v. DCW Dutchship Island, LLC, et al., No. 77, September Term, 2013, Opinion by Adkins, J.

Roughly 35 million years ago, an asteroid over a mile wide crashed into the Earth at a speed of about 70,000 miles per hour.  Hillary Mayell, Chesapeake Bay Crater Offers Clues to Ancient Cataclysm, National Geographic News, (November 13, 2001), http://news.nationalgeographic.com/news/pf/57998027.html.  This collision created the Chesapeake Bay Crater.  Id.  One of the by-products of this celestial collision is the subject of this contest—Little Island in the Magothy River (“the Island”).

In 2000, DCW Dutchship Island, LLC (“DCW”), a corporation wholly owned by Daryl Wagner (“Wagner”), purchased the Island.  At that time, the Island measured approximately 1.92 acres in area and was improved by a single-family house and related structures built in the 1920s.1  Wagner demolished the house and set about building a new one.  The circumstances surrounding this construction are not new to us.  As we explained in McHale v. DCW Dutchship Island, LLC:

1 The Island contained the following impervious surface area: the original house, representing 1,911 square feet; concrete and wood steps, representing 45 square feet; a boat house and deck, representing 890 square feet; and two sheds, representing 159 square feet.  The Board rejected testimony that a driveway existed on the Island before Wagner’s development, and as a result, did not include that figure in its finding that the Island historically contained 3,005 square feet of impervious surface.

In or about 2001, Daryl Wagner, a member of DCW and a Maryland registered home builder, acting on behalf of DCW, demolished the old summer cottage and removed the debris, without the necessary permits or variances required by the Critical Area Law and County ordinances.  Then, Wagner constructed the following structures or impervious surface areas on the Island: (1) a new 2,883 square foot home; (2) replacement sheds for the two preexisting sheds; (3) a 66 square foot gazebo; (4) a boat ramp and concrete driveway with approximately 2,668 square feet of surface area to accommodate his amphibious vehicle; (5) 846 square feet of sidewalks; and (6) a pool and deck totaling 1,433 square feet.

    * * *

 In November 2004, the County authorities discovered the construction activities on the Island and notified DCW of the numerous violations.  On 28 December 2004, DCW sought variances from the unobserved requirements of the Critical Area Law for each of the structures and improvements on the Island.  DCW sought also an amendment to the critical area buffer map, which prohibits most development activity within 100 feet of the shoreline.

A County Administrative Hearing Officer heard the evidence for and against the requests for variances.  The Magothy River Association (“MRA”) appeared at the variance hearings on 5 June 2005 and 20 September 2005 to oppose DCW’s requests.  The Hearing Officer granted some of the variances on 27 October 2005.  Wagner appealed administratively the denials, and the MRA, the Chesapeake Bay Foundation (“CBF”), and the Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”) appealed the decision to grant the variances, all to the County Board of Appeals.

415 Md. 145, 151–52, 999 A.2d 969, 972–73 (2010) (footnote omitted).2  At the Anne Arundel County Board of Appeals (the “Board”) hearing, Wagner moved to dismiss MRA and CBF as parties to the administrative proceedings.  The Board ultimately concluded that CBF did not have standing to appeal the granted variances because it did not participate in the hearing before the Administrative Hearing Officer (“AHO”), as required by § 3-1-

 

2 Because this Court thoroughly addressed the underlying facts of this case in McHale v. DCW Dutchship Island, LLC, 415 Md. 145, 999 A.2d 969 (2010), we will keep our restatement of the relevant facts brief.  When necessary to assess the parties’ arguments, we will enrich our discussion of the facts.

 

* * *

 

THE MERITS OF THE BOARD’S DECISION

With the standing issues resolved, we now turn to the merits of the Board’s decision granting certain variances to Wagner.  Before doing so, we address the scope of our review and lay out the setting in which the Board’s decision lies.

STANDARD OF REVIEW

We recently described this Court’s role in the review of zoning board decisions in Critical Area Commission for the Chesapeake and Atlantic Coastal Bays v. Moreland, LLC:

Our role in reviewing the final decision of an administrative agency, such as the Board of Appeals, is “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.”  In doing so, a reviewing court decides whether the Board’s determination was supported by “such evidence as a reasonable mind might accept as adequate to support a conclusion.”  Moreover, a reviewing court “must review the agency’s decision in the light most favorable to it; . . . the agency’s decision is prima facie correct and presumed valid.”

418 Md. 111, 122–23, 12 A.3d 1223, 1230 (2011) (citations omitted) (ellipsis in original).

DISCUSSION

Background – Critical Area Law

Touching every aspect of this case is the Critical Area Law, and we start with the history and substance of that environmental protection statute.  The General Assembly enacted the Critical Area Law in 1984.  Md. Code (1973, 2012 Repl. Vol.), § 8-1801 of the Natural Resources Article (“NR”).  Based on findings concerning the importance, fragility, and documented decline in the state of the Chesapeake Bay and its tributaries, the General Assembly “establish[ed] a Resource Protection Program for the Chesapeake and the Atlantic Coastal Bays and their tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats[.]”  NR § 8-1801(a), (b)(1).

In describing the impetus for the Critical Area Law, the General Assembly highlighted the effect of recent development on the Chesapeake Bay area:

Human activity is harmful in these shoreline areas, where the new development of nonwater-dependent structures or an increase in lot coverage is presumed to be contrary to the purpose of this subtitle, because these activities may cause adverse impacts . . . to the Chesapeake and Atlantic Coastal Bays, and thus it is necessary wherever possible to maintain a buffer of at least 100 feet landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands[.]

NR § 8-1801(a)(4) (emphasis added).  NR § 8-1801(a)(4) previously phrased the presumption concerning lot coverage in terms of “impervious surface.”  Md. Code (1973, 2007 Repl. Vol.), § 8-1801(a)(4) of the Natural Resources Article (“Human activity is harmful . . . where the new development of . . . impervious surfaces is presumed to be contrary to the purpose of this subtitle[.]”) (emphasis added).  Thus, development that increases the amount of impervious surface in the critical area is a primary concern of the Critical Area Law.  Indeed, the Legislature found “a critical and substantial State interest . . . in fostering more sensitive development . . . along shoreline areas of the Chesapeake and the Atlantic Coastal Bays and their tributaries so as to minimize damage to water quality and natural habitats.”  NR § 8-1801(a)(10).

* * *

The lodestar for the Board’s consideration of a variance application is the statutory mandate that a variance can only be granted when “[d]ue to special features of a site, or special conditions or circumstances peculiar to the applicant’s land or structure, a literal enforcement of the [C]ritical [A]rea [P]rogram would result in unwarranted hardship to the applicant[.]”  NR § 8-1808(d)(5)(i);22 see also AACC § 3-1-207(b)(1) (requiring that in order to grant a variance, the Board find that “strict implementation of the County’s [C]ritical [A]rea [P]rogram would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant[.]”).  Unwarranted hardship “means that, without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.”  NR § 8-1808(d)(1).

We test the parties’ arguments against the terms of the Critical Area Law, and the County’s enactments that implemented that law.  CBF and MRA strenuously contend that the Board erred by granting Wagner “after-the-fact” variances.  The Board’s Order announced these variances, and the conditions attached to them, as follows:

 

For the reasons set forth in the foregoing Memorandum of Opinion, it is this 3rd day of Jan., 2007, by the County Board of Appeals of Anne Arundel County, ORDERED, that:

* * *

2)  A variance of 36 feet to the required 100 foot minimum buffer along the southeast shore of the island and a variance of 32 feet to the required 100 foot minimum buffer (Section 1A-104(a)(1)) along the southwest shore of the island for the construction of a residence, septic system and installation of a well is hereby GRANTED;

3)  A variance to permit the disturbance of slopes of 15% or greater as measured before development in the LDA (Section 1A-105(d)) for the installation of a septic system and related facilities is hereby GRANTED; and

4)  A variance to permit new development activities in the buffer for the construction of an 8 foot by 40 foot impervious boat ramp/driveway to the west of the pier is hereby GRANTED.

All VARIANCES being subject to the following conditions:

a) There shall be no more than 3,325 square feet of impervious surface on the lot, inclusive of the 8 by 40 foot boat ramp/driveway;

b)  The gazebo, pool, patio, sidewalks, accessory structures, and other impervious surface on site shall be removed, subject to lawfully issued permits, and the areas shall be revegetated;

c)  All disturbance in the buffer shall be revegetated at a 3 to 1 ratio, with plantings on the property of native species;

d)  The buffer on site should be planted to the extent possible, including the slopes adjoining the revetment;

e) A buffer management plan, execution of a forest conservation easement and all required mitigation will be required prior to the issuance of any permit;

f)  The shore management system (Petitioner’s Exhibit 63) for the northern and western shores of the lot must be implemented to provide appropriate sand nourishment and flora enhancement;

g)  As per the RLD regulations, a 50 foot planted buffer shall be located and maintained between the principal structure and the crest of slopes with a 25% grade or greater; and

h)  Stormwater from all impervious surfaces shall be directed to appropriate stormwater management devices for quality and quantity control.

According to Petitioners, the Board’s Order was premised on an erroneous finding that Wagner satisfied all of the requirements for a variance contained in AACC § 3-1-207.23  Specifically, CBF and MRA present seven arguments that Wagner failed to meet his burden of proof and persuasion to satisfy the variance criteria.  These arguments involve the following variance requirements, which are set forth in subsections of AACC § 3-1-207.24  These code provisions, which we have set out in the order we address them, dictate that:

(b)(4)(i) [the variance request] is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed;

(e)(1) the variance is the minimum variance necessary to afford relief;

(b)(2)(i) a literal interpretation of COMAR, Title 27, Criteria for Local Critical Area Program Development, or the County critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas[;]

(b)(3) the granting of a variance will not confer on an applicant any special privilege that would be denied by:

(i) COMAR, Title 27, or the County critical area program to other lands or structures within the County critical area;

(b)(5)(i) [the granting of the variance] will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area[;]

(b)(5)(ii) [the granting of the variance] will be in harmony with the general spirit and intent of the County critical area program[;] and

(b)(7) the applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, § 8-1808(d)(2), of the State Code.

We examine each of Petitioner’s arguments regarding these variance requirements in turn.

Unwarranted Hardship

Under AACC § 3-1-207(b)(1), variance applicants must show that due to conditions on the property, “strict implementation of the County’s [C]ritical [A]rea [P]rogram would result in an unwarranted hardship[.]”  CBF and MRA posit that the denial of a variance would not cause Wagner to suffer an unwarranted hardship.  They explain that the County’s grandfathering provisions would allow for Wagner to keep the Island’s structures as they had existed before the implementation of the Critical Area Program.  Thus, Petitioners argue, denying Wagner the ability to construct a “wonderland” is not an unwarranted hardship.  Petitioners charge that the Board failed to identify substantial evidence that limiting Wagner’s redevelopment to the pre-existing footprint would represent an unwarranted hardship.

DCW and Wagner disagree.  In their view, because the Island is a unique property, surrounded by water, almost entirely affected by the 100 foot buffer, and featuring the unusable footprint of the old house, a variance was necessary to build any house on the Island.

This Court closely examined the term “unwarranted hardship” in Belvoir Farms Homeowners Association, Inc. v. North, 355 Md. 259, 734 A.2d 227 (1999).  There, we observed that “[t]his Court has said that ‘[t]he criterion for determining unnecessary hardship is whether the applicable zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership.’”  Id. at 276, 734 A.2d at 237 (quoting Marino v. Mayor of Baltimore, 215 Md. 206, 217, 137 A.2d 198, 202 (1957)).  After surveying a number of national standards for unwarranted hardship, the Belvoir Court rejected the proposition that the unnecessary or unwarranted hardship standard was equal to the unconstitutional taking standard, and stated the following:

The unwarranted hardship standard, and its similar manifestations, are equivalent to the denial of reasonable and significant use of the property.  Whether a property owner has been denied reasonable and significant use of his property is a question of fact best addressed by the expertise of the Board of Appeals, not the courts.  Thus, we leave the application of this standard to petitioner’s variance application to the Board on remand.

355 Md. at 282, 734 A.2d at 240 (emphasis added).

Here, the Board found that the unwarranted hardship criterion was satisfied because “[n]o dwelling could be built without some variance.”  The Board explained that: “The lot is an island within the Magothy River and the application of the minimum 100 foot buffer leaves only a small triangle of land in the center of the island beyond the reach of the minimum required buffer.  However, since there are steep slopes on the island, the buffer must be expanded; therefore, no part of the island is left without restriction.”  With respect to the location of the dwelling, these findings were supported by substantial evidence.  As we discuss infra, however, the size of the dwelling’s footprint is another matter altogether.  Nor have we yet addressed Petitioners’ argument that the hardship is self-inflicted, an issue we take up next.

Self-Created Hardship

From Petitioners’ perspective, the actions of Wagner in building his house and other structures without permits overshadows all else.  They aver that Wagner’s request for variances arises from conditions that can only be characterized as self-created hardships that are not sufficient to justify a variance under the County Code.  They rely on AACC § 3-1-207(b)(4)(i), which states that the Board may only issue a variance upon a written finding that the variance request “is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed[.]”  CBF and MRA cast Wagner’s purported hardships as quintessential examples of self-created hardships, attributable to Wagner’s unlawful development activities, not the inherent conditions on the Island.

Petitioners challenge Wagner’s right to a variance to build a new house covering 2,883 square feet of impervious surface, when the pre-existing dwelling on the Island constituted only 1,911 square feet of impervious surface.  Positing that Wagner could have obtained a variance for the pre-existing square footage under the County’s grandfathering provision, Petitioners argue that it was only Wagner’s desire for a larger home that necessitated the variance.  As such, say Petitioners, it was a classic self-created hardship.

Petitioners also claim that the location of the requested variances was similarly based on Wagner’s unlawful excavation and grading activity.  In their view, Wagner’s decision “to proceed without variances and approved plans and excavating the bluff back to the corner of the cottage exacerbated the need for variances.”  As stated earlier, Petitioners’ civil engineering expert, Tom Heil, testified that Wagner had options apart from installing stone revetment and excavation of the bluff, and concluded that a new home could have been constructed on the pre-existing dwelling’s footprint.

CBF and MRA urge us to follow the reasoning of Cromwell v. Ward, 102 Md. App. 691, 722, 651 A.2d 424, 439–40 (1995), in which the Court of Special Appeals cautioned that “[w]ere we to hold that self-inflicted hardships in and of themselves justified variances, we would, effectively not only generate a plethora of such hardships but we would also emasculate zoning ordinances.  Zoning would become meaningless.”  In that case, the intermediate appellate court held that the Board improperly granted an after-the-fact variance sought by a landowner who had constructed a building that exceeded the zoning limit on height.  Cromwell, 102 Md. App. at 726, 651 A.2d at 441.  The court explained:

It is not the purpose of variance procedures to effect a legalization of a property owner’s intentional or unintentional violations of zoning requirements.  When administrative entities such as zoning authorities take it upon themselves to ignore the provisions of the statutes enacted by the legislative branch of government, they substitute their policies for those of the policymakers.

Id.  Petitioners ask us to reach the same conclusion regarding DCW’s after-the-fact variances.

Petitioners also draw our attention to Chesley v. City of Annapolis, 176 Md. App. 413, 933 A.2d 475 (2007).  In Chesley, the Court of Special Appeals was faced with a property owner who built a house and a pool that “eliminated the possibility of locating a garage where no variance would be required[,]” then requested a variance to build a garage.  Id. at 440, 933 A.2d at 491.  The intermediate appellate court affirmed the Board’s finding that Chesley’s claimed hardship in building a garage was self-created.  Id. at 441, 933 A.2d at 492.  The court emphasized that instead of seeking a garage variance before starting construction, or building a smaller house that would permit a detached garage on another section of the property, Chesley built the house and pool at the risk that the Board would not approve a variance for the garage.  Id. at 440–41, 933 A.2d at 491–92.

DCW and Wagner counter that their need for variances was not self-created, but was solely a result of the impact of the Critical Area regulations on the Island.  They maintain that because the entire Island was located in the 100-foot buffer, any structure on the Island—apart from a structure on the previous dwelling’s footprint—would require a variance.  Importantly, they say that the pre-existing footprint of the old house was unusable, and so a variance was absolutely required.

Fortunately, our case law has been both consistent and clear in declaring what “self-created hardship” encompasses.  This Court addressed the issue in Salisbury Board of Zoning Appeals v. Bounds, 240 Md. 547, 214 A.2d 810 (1965).  The Bounds Court first observed the general rule stated in Rathkopf’s seminal treatise, The Law of Zoning and Planning:

Ҥ 1. Hardship Caused by Affirmative Acts of Commission.

Where property, due to unique circumstances applicable to it, cannot reasonably be adopted to use in conformity with the restrictions of the zoning ordinance, hardship arises which is capable of being relieved through the grant of a variance.  The restrictions of the ordinance, taken in conjunction with the unique circumstances affecting the property must be the proximate cause of the hardship.  If the peculiar circumstances which render the property incapable of being used in accordance with the restrictions contained in the ordinance have been themselves caused or created by the property owner or his predecessor in title, the essential basis of a variance, i.e., that the hardship be caused solely through the manner of operation of the ordinance upon the particular property, is lacking.  In such case, a variance will not be granted; the hardship, arising as a result of the act of the owner or his predecessor will be regarded as having been self-created, barring relief.

This rule is simple and of general application in the several states.

There is a uniform application of the rule in those cases in which there has been an act on the part of the property owner or his predecessor which has physically so affected the property as to create a unique circumstance or which in itself created either a practical difficulty or hardship in conforming to the restrictions of the ordinance.”

240 Md. at 554–55, 214 A.2d at 814 (quoting 2 Rathkopf, The Law of Zoning and Planning, 48-1) (italics in original).  The Bounds Court affirmed the Board’s finding of a self-created hardship where the property owners created four apartments in a three-apartment dwelling, then requested a variance.  240 Md. at 555, 214 A.2d at 814.  It was clear to the Court that “the resultant hardship could have been avoided if the [property owners] had used proper diligence in ascertaining what the density requirements were for a four apartment dwelling[.]”  Id.

In Ad + Soil, Inc. v. County Commissioners of Queen Anne’s County, 307 Md. 307, 312, 513 A.2d 893, 895 (1986), property owners operated a sewage disposal business without applying for zoning approval from county authorities.  Although the property owners had enough land to comply with setback requirements under the zoning ordinance, the owners failed to comply with any of the setback requirements, and thus asked to obtain variances from these requirements.  Id. at 339–40, 513 A.2d at 909–10.  We affirmed the Board’s conclusion that, under these circumstances, “Ad + Soil’s ‘hardship’ was self-inflicted[.]”  Id. at 340, 513 A.2d at 910.

As these cases make clear, the critical issue in determining whether a hardship is self-created is whether the property owner could have avoided the need for a variance.  In other words, if a property owner has a hand in creating the “peculiar circumstances” that cause his need for a variance, the owners’ hardship is self-created.  But when the “peculiar circumstances” arise from the zoning restrictions themselves, the owners’ hardship is not self-created.  We evaluate the Board’s conclusion regarding the self-created hardship criterion with this standard in mind.

After considering the evidence in the record, the Board concluded the following:

[T]he action of the regulations on this island have eliminated the property owner’s ability to develop anything without a variance.  The island is small, surrounded on all sides with the waters of a Chesapeake Bay tributary, and contains steep slopes.  The required minimum and expanded buffer make it impossible to develop without the variances.  We specifically reject the assertion of the [Petitioners] that the previously existing house site could have been redeveloped with a residence.  The proximity of the foundation to the cliff face (and now the steep slopes behind the revetment area), the soil type and the action of the waves on this reduced island render the previous house site unbuildable.

*  *  *

We hold that these findings are supported by substantial evidence in the record.

 

*  *  *

 

We reject Petitioners’ arguments that the Board’s granting of any variances was precluded by Wagner’s “several illegal acts,” his request for “after-the-fact” variances, or the doctrine of unclean hands.  In evaluating Wagner’s variance request against the self-created hardship criterion, Wagner’s failure to obtain the proper permits or variances before construction is not relevant.  This fact would only be relevant if Wagner’s acts constituted the “peculiar circumstances” that created the need for the variances.  See supra; see also Stansbury v. Jones, 372 Md. 172, 198, 812 A.2d 312, 327 (2002) (“Traditionally, self-created hardship requires an affirmative action, exclusively by a property owner or his predecessor in title, that is itself the sole reason for the need for the variance.”).

The Board, while noting the “presumptuous bravado” of Wagner’s acts, properly cabined its evaluation of the variance criteria to the legally relevant facts.28  In doing so, the Board restrained itself and followed its interpretation of the law.29  The Board’s interpretation of AACC § 3-1-207—its guiding statute for the granting of variance—is entitled to deference.  See Grasslands Plantation, Inc. v. Frizz-King Enters., LLC, 410 Md. 191, 204, 978 A.2d 622, 629 (2009) (“[A]n administrative agency’s interpretation and

 

28 In its Memorandum of Opinion, the Board voiced its disapproval of Wagner’s activities, making the following observations: “[t]he applicant deserves no sympathy[;]” “Wagner openly and knowingly violated the laws of the County and State[;]” and “[t]he scene of this bald-faced machismo is not lost on these Board members.”

29 It also observed that, “for all the moral outrage that should and has resulted from the erection of this structure and its related facilities, we must caution that decisions regarding punishment are not within the purview of this Board of Appeals.”  The Board stated that its “careful review of these laws has revealed no mechanism by which the Board can punish bad acts and actors.  We will not exercise authority that we do not possess and will not legislate from the ‘bench’ of the Board of Appeals.”

 

application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.”).  Thus, we find no error in the Board’s conclusion that under AACC § 3-1-207(b)(4)(i), so called “after-the-fact” variances are subject to the same evaluation as “before-the-fact” variances—no more, and no less. * * * 31

31 Our holding, of course, has no impact on the County’s right to pursue fines or other recourse because of Wagner’s construction activities.

 

Our conclusion that Wagner’s unwarranted hardship is not fully self-created is subject to other mandatory variance criteria, which we discuss in the sections that follow.

Minimum Variance Necessary

Petitioners’ best argument is that the variance sought is not the minimum necessary to afford Wagner relief.  AACC § 3-1-207(e)(1) dictates that in order to grant a variance in the Critical Area, it must be shown that “the variance is the minimum variance necessary to afford relief.”  Petitioners maintain that the Board did not explain why a house covering an impervious surface markedly larger than the original residence was the minimum necessary to afford Wagner relief, as Wagner did not produce evidence as to why he needed a house of this size.  They accuse the Board of contradicting itself when it ruled that the minimum variance necessary must not exceed the Island’s pre-existing impervious surface area, but then granted Wagner a variance for total structures, including the boat ramp, having impervious surface area significantly greater than that figure.

DCW and Wagner counter that the minimum variance necessary to afford relief is a subjective finding based on the facts presented, and is for the Board to determine, not the reviewing court.  They highlight that this point was even agreed to by the Executive Director of the Critical Area Commission, who testified that “[i]f the Board believes that the reasonable redevelopment in a reasonably sized dwelling must be larger than the old house[,] it’s the Board’s discretion to make that determination.”  DCW and Wagner urge us to adopt the reasoning of the Court of Special Appeals in Becker v. Anne Arundel County, 174 Md. App. 114, 143, 920 A.2d 1118, 1135 (2007), which held that “minimum variance necessary” does not mean the absolute minimum variance possible.

As discussed earlier, Wagner bears the burden of proof on all variance criteria, and must prove that without a variance, the zoning will pose an unwarranted hardship.  Thus, with respect to the minimum variance criterion, the Board must find that the variance applicant has proven that the requested variance is the minimum necessary to afford relief such that the applicant will maintain a reasonable and significant use of the property.

This Court has not addressed the substance of the minimum necessary criterion with great particularity, but it was discussed by the Court of Special Appeals in Becker. 174 Md. App. 114, 920 A.2d 1118.  There, the intermediate appellate court was asked to evaluate the Board’s conclusion that variance applicants had not met their burden of proving that their request was the minimum necessary to afford relief.  Id. at 143, 920 A.2d at 1135.  Concluding that the Board had not adequately supported its finding that the applicants had not met their burden, the Becker Court explained:

The question of whether the variances were the minimum necessary must be considered, however, in the context of the purpose of the proposed construction, recognizing that appellants are entitled to build some type of reasonable structure.  There was no finding by the Board as to appellants’ reasonable needs, or reference to evidence, and why the proposed structure was not the minimum necessary to meet those needs.  On remand, the Board must provide an explanation.

Id. at 144, 920 A.2d at 1136 (footnote omitted).

*  *  *

We have not hesitated to be strict in requiring concrete, detailed fact findings.  In Bucktail, we reversed the Talbot County Council’s denial of a growth allocation, holding that “[f]indings of fact must be meaningful and cannot simply repeat statutory criteria, broad conclusory statements, or boilerplate resolutions.”  352 Md. at 553, 723 A.2d at 451 (citing Turner v. Hammond, 270 Md. 41, 55–56, 310 A.2d 543, 551 (1973)).  In Annapolis Market Place, we affirmed the reversal of the Board’s rezoning, agreeing that the applicant had failed to present “one scintilla of evidence that indicate[d] that schools [we]re adequate to serve the development of th[e] [P]roperty” with apartments, as the applicant had proposed.  369 Md. at 722, 802 A.2d at 1049.   *  *  *  When addressing the issue of reasonable and significant use, a substantial amount of deference to the Board’s findings is required.  See White v. North, 356 Md. 31, 50, 736 A.2d 1072, 1082–83 (1999) (“As long as evidence exists before the agency that would make its factual determination as to reasonableness and significance fairly debatable, its determination ordinarily should be upheld.”). With these cases in mind, we examine the Board’s conclusion that the granted variances represent the minimum relief necessary to afford relief.  The Board stated:

We find that the variances granted by this opinion are the minimum necessary to afford relief here because the resulting impervious surface on site will measure no more than 3,325 square feet, that is the 3,005 square feet of historically existing square footage (which could be used by right) plus a reasonably sized (8 x 40 foot) boat ramp/driveway from the water’s edge at the pier.

 

The Board implicitly concluded that the impervious surface covered by the new house could legitimately be increased beyond the footprint of the old house by demolishing pre-existing outbuildings with impervious surfaces totaling 1,094 square feet, and “transferring” or allotting part of that footage to the new house.  We do not argue with this point, and consider it a reasonable factual inference based on the evidence.  In this regard, it is meaningful that the Board did require the removal of various structures, including the gazebo, pool, patio, sidewalks, and accessory structures in order to bring Wagner’s development activities down to the 3,005 square feet of historically existing impervious surface area on the island.

Had the Board stopped there, we would be affirming on this point.  Yet the Board, quite inexplicably, also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.34  Similarly, the Board did not seem to consider the possibility that through alterations to his home, Wagner may have been able to keep his boat ramp and stay under the 3,005 square foot maximum.  In short, the Board must provide some reasonable justification for increasing the impervious surface over that in existence before enactment of the Critical Area Law.

One possibility is that the Board agreed with the Anne Arundel County Office of Planning and Zoning that the boat ramp constituted a “water-dependent facility”35 that did not require a variance.36  If that is the case, the Board should not have granted a variance for the boat ramp.37  Alternatively, the Board may interpret the County Critical Area Program to mean that notwithstanding designation of the boat ramp as a water-dependent facility, the variance requirements still apply, and so the impervious surface of the boat ramp must still be counted as part of the whole.  We defer to the Board for interpretation of the County’s Critical Area law.  Yet, as it stands, we cannot affirm the Board’s Order because doing so would lend our imprimatur to a variance that was either unnecessary, or not properly evaluated by the Board.

______________________

Footnotes:

34 The Board only provided the following justification for granting the boat ramp variance:

[T]he new proposed impervious surface must not exceed that which was previously on the island plus a small area to accommodate the movement of boats or other similar vehicles from the water to avoid damage to the shore.

* * *

The Petitioner should be required to install and maintain a boat ramp to prevent erosion at the water’s edge from continual scour by the access vehicle of choice.

(Emphasis added.)  For the reasons stated above, we hold that this concern does not adequately explain or justify the Board’s grant of the boat ramp variance to Wagner.

 

35 “‘Water-dependent facilities’ means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the Buffer specified in COMAR 27.01.09.”  COMAR 27.01.03.01A.  COMAR 27.01.03.01B provides that:

An activity is water-dependent if it cannot exist outside the Buffer and is dependent on the water by reason of the intrinsic nature of its operation.  These activities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas and other boat docking structures, public beaches and other public water-oriented recreation areas, and fisheries activities.

36 Suzanne Schappert, Planning Administrator of the Anne Arundel County Office of Planning and Zoning, responded to Wagner’s request for variances with a “Findings and Recommendation” report.  In that report, Schappert states that the office reviewed Wagner’s boat ramp request and “determined [it] to be water dependent and acceptable[.]”  In later testimony before the Board, Schappert suggested that because the boat ramp had been determined to be a water-dependent facility, it did not require a variance.

37 Under the Board’s current order, one remote but not entirely implausible scenario is that Wagner would either expand his current boat ramp or build another boat ramp, claiming that one was permissible as a water-dependent facility, and the other was permissible by the Board’s granted variance.  Given Wagner’s previous behavior, we are wise to guard against this possibility by requiring that the Board clarify its order.

_________________________________________________

Deprivation Of Rights Enjoyed By Others/Special Privilege

* * *

We have already said, in our “minimum variance necessary” discussion, that the Board of Appeals erred in its approval of more than 3,005 square feet of impervious surface without justification.  In light of our ruling we decline to address further Petitioner’s arguments about “special privilege.”

 

Adverse Environmental Effects

 

Petitioners’ fifth argument is that the Board erroneously concluded that under AACC § 3-1-207(b)(5)(i), granting Wagner’s variances would not harm water quality or the wildlife and plant habitat.  They claim that it was unreasonable for the Board to base its decision on the belief that Wagner’s stormwater management plan would be sufficient to protect water quality and habitat.  CBF and MRA argue that the Board did not consider the adverse environmental impact caused by the construction of the new dwelling itself.  Given that this construction involved excavating and grading the Island’s shoreline, it is obvious to Petitioners that Wagner’s activities had an adverse impact on water quality.  Petitioners aver that because it was Wagner’s burden to prove that his development would not harm water quality, and Wagner offered no credible evidence on this point, the Board’s decision that there would be no such harm is not supported by the evidence.

DCW and Wagner rejoin that there was no evidence introduced that the work encompassed by the requested variances had any negative impact on the environment.  They claim that the putative negative environmental effects were not conclusively established by CBF or MRA’s experts.  In contrast, they argue that there is ample evidence that the Island has been stabilized and is no longer eroding or depositing soil into the river, resulting in improved water quality.

In its Order, the Board stated that no storm water would be permitted to run off into the Magothy, and required that all storm water be directed to a management control system.  Moreover, the Board required that Wagner’s proposed shore management system for the north and western shores be implemented.  The Board agreed with DCW’s expert, Charles John Klein, III, that the revetment had acted to stop erosion, which had led to a decrease in turbidity in the waters surrounding the Island.  The Board further held that the reforestation at a three-to-one ratio will create a better situation on the Island than existed previously, reducing the turbidity and increasing light and plant life in the river, which will ultimately become “more conducive to the maintenance of higher life forms.”

We hold that the Board’s findings were supported by substantial evidence.  In addition to the testimony cited above, Charles John Klein, III, testified that the development led to a net environmental enhancement on the Island.  Area residents, including neighbor Thelma Hall, gave anecdotal testimony supporting the increased clarity of the water, which was further corroborated by aerial photography.  Even Petitioners’ expert, Tom Heil, testified that the revetment had mitigated erosion and helped to stabilize the Island.  MRA President, Francis Spadaro, testified that oyster beds were covered in sedimentation, but could not identify the source of sedimentation.  Another of Petitioners’ experts, Justin Reel, testified about the state of submerged aquatic vegetation during three different time periods, but was unable to draw conclusions.  In light of this scant contravening evidence, we uphold the Board’s findings as supported by substantial evidence.  This conclusion does not, however, modify our holding about the “minimum variance necessary” criterion, discussed previously.

The Purpose And Intent Of The Critical Area Program

* * * The Critical Area Program permits residential uses on property impacted by the regulations.  The residential use here will not exceed the amount of impervious surface on the island prior to development, the stormwater will be better controlled, the vegetation will be increased and enhanced with native species, a conservation easement will be in place, and sand nourishment and shore management protection will be installed.  We feel that the resulting island will be a showplace for environmental enhancement, not a scourge.

As explained supra, the Board erred in its conclusion that the residential use here will not exceed the amount of impervious surface on the island prior to redevelopment. Excepting that, in light of the evidence regarding the lack of adverse environmental effects resulting from Wagner’s development, we hold that the Board’s findings on this criterion are supported by substantial evidence.

The Presumption

Petitioners’ final argument concerns the legal presumption under AACC § 3-1-207(b)(7) and NR § 8-1808(d)(3)(ii) that building activity requiring variances is inimical to the Critical Area Program.  They claim that the Board’s conclusion that Wagner could not construct a dwelling without a variance was contradicted by the fact that a pre-existing dwelling stood on the Island for over 50 years.  In Petitioners’ view, Wagner never explained how allowing larger structures in the buffer helped foster the goals and intent of the Critical Area Program; therefore, the Board was “duty bound” to deny the variances.

DCW and Wagner frame things differently.  In their view, the presumption that Petitioners speak of only restates the law as it applies to variances in the Critical Area.  Any applicant must prove that they meet the criteria set forth in the Critical Area laws.  If one does not meet that criteria, then the variance is denied.  In their view, the Board recognized the presumption, weighed this presumption in evaluating the variance criteria, and properly determined that the presumption was overcome by the evidence.

In its Memorandum of Opinion, the Board addressed the legal presumption:

To reiterate, it is the burden of an applicant to prove that they met each and every one of the variance criteria.  The failure to meet just one of those criteria requires that this Board deny the requested variances.  For those variances requested that have been denied, the Petitioner did not meet the requirements.

For the other requested variances, the Board found that the Petitioner met its burden, and thus granted modified variances, subject to conditions.  As we have held above, the Board must re-evaluate the “minimum amount necessary” criterion.  Based on this determination, the Board will decide whether Wagner has overcome the presumption that his activities are inimical to the intent of the Critical Area Program.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED IN PART AND VACATED IN PART.  CASE REMANDED TO THE BOARD OF APPEALS OF ANNE ARUNDEL COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.  COSTS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.

Judge Harrell joins in the judgment only.

Concurring Opinion by Watts, J.

 

Respectfully, I concur.1  I would hold, however, that the Board of Appeals (“the Board”) did not err in granting Wagner after-the-fact variances and in determining that the variances granted were the minimum variances necessary.  I would hold that the grant of a variance for a 320-square-foot driveway/boat ramp was unnecessary, as the driveway/boat ramp is a water-dependent facility for which a variance is not required under the Critical Area Law.  Despite this view, I believe it reasonable to allow the Board an opportunity to explain its opinion and explicitly address whether the County’s Critical Area Program requires a variance for a water-dependent facility, and thus, I concur with the Majority’s decision to remand the case to the Board.

*  *  *

I believe that the driveway/boat ramp is a water-dependent facility that can exist in the Critical Area independent from a variance; that this is what Board of Appeals determined in its opinion; and, further, that this is the legally correct conclusion; i.e., a water-dependent facility can exist in the Critical Area independent from a variance.  My reasons are as follows.  In a letter dated October 31, 2006, Joseph Rutter, a Planning and Zoning Officer with the Anne Arundel County Office of Planning and Zoning, advised Danny G. Boyd, Wagner’s site plan designer, that the request to consider the 40-foot by 8-foot driveway/boat ramp to be a water-dependent facility pursuant to Code of Maryland Regulations (“COMAR”) 27.01.03.01A and B was acceptable.  Rutter stated:

 

Athough vehicular access to an island home site is not specifically identified in the definition, vehicular access to an island cannot exist outside the buffer.  Therefore, the driveway as reflected on the site plan . . . is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated as the site plan reflects.

(Emphasis added).

On November 13, 2006, Rutter and Suzanne Schappert, the Planning Administrator of the Anne Arundel County Office of Planning and Zoning, submitted a “Findings and Recommendation” to the Board concerning Wagner’s request for variances.  In the Findings and Recommendation, Schappert and Rutter included Rutter’s determination that the 320-square-foot driveway/boat ramp is a water-dependent facility, and stated:

[T]his Office reviewed a request to allow a 40’ long x 8’ wide driveway on the northern side of the island as a water dependent use for access to the island.  By letter dated October 31, 2006, the Planning and Zoning Officer, Joseph Rutter, indicated that vehicular access to an island cannot exist outside the Buffer and that the 40’ long driveway reflected on the site plan submitted with the letter of consideration dated October 26, 2006 is determined to be water[-]dependent and acceptable provided the remainder of the driveway as shown on the site plan is removed and re-vegetated.

(Emphasis added).

In its Memorandum of Opinion, the Board ratified the view that the driveway/boat ramp is a water-dependent facility by granting variances that included 3,005 square feet of impervious surface “plus” the driveway/boat ramp.  Specifically, the Board stated that it granted the requested variances because the Board determined that the variances are the minimum necessary to afford relief here because the resulting impervious surface on site will measure no more than 3,325 square feet, that is the 3,005 square feet of historically existing square footage (which could be used by right) plus a reasonably sized (8 x 40 foot) boat ramp/driveway from the water’s edge at the pier. (Emphasis added).  The Board determined that the driveway/boat ramp was necessary to “a[c]commodate the movement of boats or other similar vehicles from the water to avoid damage to the shore[.]”  (Footnote omitted).  Nonetheless, after having determined the driveway/boat ramp to be a water-dependent facility in its opinion, the Board included the driveway/boat ramp as part of the variances in its order.

The Board’s inclusion of a variance for the driveway/boat ramp in its order was, from my perspective, unnecessary.  A review of the case law, statutes, and regulations demonstrates that a water-dependent facility can exist in the Critical Area independent of a variance.  COMAR 27.01.03.01, concerning criteria for local Critical Area program development and water-dependent facilities, provides the following definition for “water-dependent facilities”:

 

A. “Water-dependent facilities” means those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the Buffer specified in COMAR 27.01.09.

B. An activity is water-dependent if it cannot exist outside the Buffer and is dependent on the water by reason of the intrinsic nature of its operation.  These activities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas and other boat docking structures, public beaches and other public water-oriented recreation areas, and fisheries activities.

C. Excluded from this regulation are individual private piers installed or maintained by riparian landowners, and which are not part of the subdivision which provides community piers (see Regulation .07 of this chapter).

 

In turn, COMAR 27.01.03.03 provides:

In developing their Critical Area programs, local jurisdictions shall follow these criteria when addressing water-dependent facilities:

A. Except as otherwise provided in this chapter, new or expanded development activities may be permitted in the Buffer in intensely developed and limited development areas provided that it can be shown:

(1) That they are water-dependent;

(2) That the project meets a recognized private right or public need;

(3) That adverse effects on water quality and fish, plant, and wildlife habitat are minimized;

(4) That, insofar as possible, nonwater-dependent structures or operations associated with water-dependent projects or activities are located outside the Buffer; and

(5) That the facilities are consistent with an approved local plan as set forth below.

B. Except as otherwise provided in this regulation, new or expanded development activities may not be permitted in those portions of the Buffer which occur in resource conservation areas.

Anne Arundel County Code § 17-8-301(b) states: “Development on properties containing buffers shall meet the requirements of COMAR, Title 27.”

 

In Citrano v. North, 123 Md. App. 234, 236, 717 A.2d 960, 961 (1998), the Court of Special Appeals considered an argument from Mr. and Mrs. Frank Citrano, appellants, that a variance was not required for a deck because the deck was a water-dependent facility.  Appellants purchased residential waterfront property in Anne Arundel County within the Chesapeake Bay Critical Area and, without obtaining a building permit, constructed a fifteen-by-twenty foot deck on the property, approximately twelve feet from the shoreline.  Id. at 236-37, 717 A.2d at 961.  After the fact, appellants “applied for the necessary variances to permit the deck within the 100 foot critical area, on steep

slopes in a critical area, and in the front yard 38 feet closer to the front line lot line.”  Id. at 237, 717 A.2d at 961 (footnotes omitted).  The Board denied the requested variances.  Id. at 238, 717 A.2d at 961.  In the intermediate appellate court, appellants contended that no variances were required because the deck was a water-dependent facility permitted in the buffer.  Id. at 242, 717 A.2d at 964.  Specifically, appellants argued that the deck was a water-dependent facility pursuant to the Anne Arundel County Code because it was to be used for recreational purposes and needed to be close to the shoreline.2  Citrano, 123 Md. App. at 242-43, 717 A.2d at 964.  The Court of Special Appeals disagreed that the deck was a water-dependent facility, and instead agreed with the trial court that “‘it is clear that a deck is not a water[-]dependent facility under the term’s definition.’”  Id. at 243, 717 A.2d at 964.  Significantly, the Court of Special Appeals did not indicate that a variance was required for a water-dependent facility.  No Maryland case contradicts Citrano’s logic.

An examination of the regulations, statute, and Citrano leads to the conclusion that new development is permitted in the buffer in the critical area, absent the need to obtain a variance, if the structure is a water-dependent facility, as that term is defined in COMAR 27.01.03.01, and so long as the general criteria in COMAR 27.01.03.03 are satisfied.  In other words, a variance is not required for a water-dependent facility.  This construction of the Critical Area Law comports with that advanced by Anne Arundel County.3  In its brief, Anne Arundel County discusses a pier and bulkhead constructed by Wagner and states: “Neither the pier nor the bulkhead is subject to the variance process since both are ‘water-dependent structures’ as defined under State and County critical area law.”  (Citing Anne Arundel County Code § 14-8-301; COMAR 27.01.03.1A).  The conclusion that a variance is not required for a water-dependent facility is bolstered by the circumstance that, similar to COMAR 27.01.03.03, Md. Code Ann., Nat. Res. (1973, 2012 Repl. Vol) (“NR”) § 8-1808.5, concerning community piers and noncommercial boat docking or storage facilities, states that a water-dependent facility must satisfy certain criteria, see NR § 8-1808.5(c), and that “[a] local jurisdiction may grant a variance from the provisions of th[e] section in accordance with regulations adopted by the Commission concerning variances as part of local program development set forth in COMAR 27.01.11 and notification of project applications set forth in COMAR 27.03.01.”  NR § 8-1808.5(e).  Stated otherwise, NR § 8-1808.5 generally permits, absent a variance, community piers or other noncommercial boat docking or storage facilities subject to certain criteria, but if certain criteria cannot be met, an individual is permitted to request and potentially receive a variance from the provisions contained in NR § 8-1808.5.

 

Footnote 3  At the hearing before the Board, the Chairman asked Schappert (the Planning Administrator for the Anne Arundel County Office of Planning and Zoning): “If indeed the Board were to disagree with Mr. Ru[tt]er with regards to whether or not a driveway is a water-dependent facility, would that need a variance?”  In response, Schappert testified: “It’s disturbance in the buffer.  Yes, and it’s part of the associated facilities that, you know, were referred to in the heading of the variance request.”  In other words, Schappert testified that, if the Board disagreed that the driveway/boat ramp was a water-dependent facility, then a variance would be required.  It follows that, if the Board agreed the driveway/boat ramp was a water-dependent facility, a variance would not be required.  And, the Chairman posed the question in a manner that raises an inference that the Board supports this position too.

 

Here, despite Citrano, 123 Md. App. 234, 717 A.2d 960, NR § 8-1808.5, regulations, and content of Anne Arundel County’s brief, the Majority remands because the Board either did not adequately determine that the 320-square-foot driveway/boat ramp, previously found to be a water-dependent facility, qualified for a variance, or, as stated in my opinion, granted a variance that was unnecessary.  Specifically, the Majority states that the Board “inexplicably[] also granted Wagner an additional 320 square feet for a boat ramp, with no discussion as to why this ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner.”  Majority Slip Op. at 45-46 (footnote omitted).  The Majority remands the matter to the Board for clarification of its opinion and a determination as to the significance of a finding that the driveway/boat ramp is a water-dependent facility.  Majority Slip Op. at 46-47.

As explained above, however, it is clear that a water-dependent facility can exist independent of any variance; i.e., a variance is not required for a water-dependent facility in the Critical Area.  I would conclude that the driveway/boat ramp is a water-dependent facility, as found by the Anne Arundel County Office of Planning and Zoning and confirmed by the Board.  A driveway/boat ramp is a structure associated with recreational water-dependent activities, such as vehicular access to an island home and boat docking, which require location at or near the shoreline within the buffer and that cannot exist outside the buffer.  See COMAR 27.01.03.01A and B.  The driveway/boat ramp fulfills the criteria set forth in COMAR 27.01.03.03A(1)-(5), in that: (1) the development activities are water-dependent; (2) the project (i.e., the driveway/boat ramp) meets Wagner’s recognized private right to have vehicular access to his island home; (3) the adverse effects on water quality and fish, plant, and wildlife habitat are minimized, as recognized by the Majority, which holds that the Board’s findings that the requested variances would not have a negative impact on the environment are supported by substantial evidence, see Majority Slip Op. at 50-51; (4) the record does not contradict that, insofar as possible, nonwater-dependent structures and operations associated with water-dependent projects or activities are located outside the buffer; and (5) the driveway/boat ramp is consistent with the approved local plan articulated by the Anne Arundel County Office of Planning and Zoning and the Board, i.e., that the driveway/boat ramp is an acceptable water-dependent facility provided that the remainder of the driveway/boat ramp shown on the site plan is removed and re-vegetated as the site plan reflects.

In sum, in my view, the record demonstrates that the Board granted variances totaling no more than 3,005 square feet of impervious space “plus” the previously determined 320-square-foot water-dependent driveway/boat ramp.  As the Majority recognizes, the grant of variances totaling 3,005 square feet of impervious surface was reasonable, given “historically existing impervious surface area[.]”  See Majority Slip Op. at 45.  In other words, the 3,005 square feet was the minimum variance necessary, and the Board did not err in so finding.  Because I believe it appropriate to allow the Board an opportunity to speak for itself and clarify any potential doubt as to whether it determined the driveway/boat ramp to be a water-dependent facility, and as such, exempt from the need for a variance, I concur with the Majority’s decision to remand.

 

Real Estate Law, Riparian Rights and the View

Imagine a waterfront house with a large privacy fence that blocks all view of the water — its a strange image.  If there is no view, the property loses most of its “waterfront” essence and most of its value, so somehow, somewhere, the law must protect a waterfront owner’s view.  But I regularly hear other attorneys and government officials recite the old saw: “there is no right to a view.”  They are wrong in some ways, but they do have good reason to say that.  Maryland law (and the law in most coastal states) is silent about the water view.  Concerning riparian rights, Maryland’s court says:

The term “riparian rights” indicates a bundle of rights that turn on the physical relationship of a body of water to the land abutting it….  This bundle includes at least the following rights: (i) of access to the water; (ii) to build a wharf or pier into the water; (iii) to use the water without transforming it; (iv) to consume the water; (v) to accretions (alluvium); and (vi) to own the subsoil of nonnavigable streams and other “private” waters. To be sure, access to the water is a primary asset of riparian rights.  Gunby v. Olde Severna Park Improvement Ass’n, Inc., 174 Md. App. 189, 239-40, 921 A.2d 292, 322 aff’d, 402 Md. 317, 936 A.2d 365 (2007).

The view wasn’t an issue in the Gunby case, but this is an accurate summary.  Florida law, for example is much different: “Upland owners hold several special or exclusive common law littoral rights: (1) the right to have access to the water; (2) the right to reasonably use the water; (3) the right to accretion and reliction; and (4) the right to the unobstructed view of the water.” Walton Cnty. v. Stop Beach Renourishment, Inc., 998 So. 2d 1102, 1111 (Fla. 2008).

Are Maryland property owners without protection then?  The answer is no, the view is protected, but getting to that can be a bit convoluted.  First and foremost, “access to water is a primary asset of riparian rights.”  Most things that obscure the view, such as a fence or wall or, to a lesser degree plantings, also obstruct access and therefore can and should be challenged.   (Need more on potential issues and solutions for waterfront purchases?  Look here.

A pier typically obscures the view and water access to a lesser degree than a fence — but it seems clear that someone else should not be able to build one in front of a lot owned by someone else.  This brings up the riparian owners’ right “to build a wharf or pier into the water.”  When it comes to someone else other than the owner putting in a pier, this is what I consider a negative right.  If the riparian owner as the affirmative right to build a pier, it follows that they also have the negative right to prevent a non-owner from building a pier.  This right is also captured in the Maryland Code (and most County and City zoning provisions) insofar as it is only the owner that has the right to build a pier in front of waterfront property.  The owner “may make improvements into the water in front of the land to preserve that person’s access to the navigable water …. After an improvement has been constructed, the improvement is the property of the owner of the land to which the improvement is attached.” Md. Code Ann., Envir. § 16-201.

And so, there are ways to protect a riparian owner’s view of the water, even if that right is not specifically laid out in Maryland’s cases or statutes.   If you are not an owner, however, the options to protect a view are drastically more limited — that will need to be a topic for another article.

If you are in a situation where you are concerned about a neighbor infringing on your view — send me an email at dschwenk@baylawllc.com or give me a call at the number to the right.

J. Dirk Schwenk is a Maryland Real Estate, Waterfront Property, Civil Litigation and Maritime Lawyer from Annapolis, Maryland.  He provides civil litigation services in contract disputes, environmental and zoning issues, adverse possession and boundary disputes.  He graduated cum laude (with honors) from the University of Maryland School of Law in 1997 and has been in private practice in Maryland ever since.

Legal Issues with Erosion Control and Marine Contracting

The two pictures below are erosion control projects installed in the same community but by two different contractors under two different contracts.  The differences are obvious: the first picture has stone that is tightly fitted and nicely sloped.  The second picture on is not fitted and not evenly sloped.  Walking on loose stone is dangerous, and undercutting by the waves will rapidly make it more so.

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Here at Baylaw, I have had multiple cases where the primary issue was the quality and effectiveness of rip rap and erosion control measures.  The most frequent area of dispute is that the landowner anticipated a structure that was fitted and safe to walk on and the contractor delivered something that was more akin to a pile of rocks.  Such a dispute becomes a contest over the terms of the contract — which is often silent on the issue.  Without a term, expert testimony is needed to state that job was not done to a workmanlike standard, and this can be a much more difficult fact to prove.  A clear contract term at the outset is much preferable.

When the time comes to construct erosion control measures, this means that property owners need to identify a person that can design the structure to meet the terms of the code and a contractor that can do a safe, effective and attractive installation.  Sometimes the contractor may also design the project, sometimes it is better to work with a person that focuses on permits.  In either case, it is strongly recommended that the permit designer and the contractor work together on the plans to assure that the specifications are clear and can be executed in a cost-effective manner.  A land owner should also require a commitment as to what the project will look like at completion.  Unless a landowner specifies tightly packed stone (such as is typically found in government projects), there is the chance the contractor will simply dump the stone in a loose pile and leave it at that.

In the event of a dispute, one of the things to keep in mind is that marine contractors in Maryland are now required to be licensed by Maryland for any “ means construction, demolition, installation, alteration, repair, or salvage activities located in, on, over, or under State or private tidal wetlands.” Md. Code Ann., Envir. § 17-101.  Such services include dredging and filling, construction of boat houses, boat lifts, piers, etc., and installation and repair of erosion control measures.  There is a line of cases in Maryland indicating that a contractor that is not properly licensed cannot require payment in Court, so both landowners and contractors should pay close attention to the licensing requirements.

If the contract is not clear about the quality of the completed work, careful review of all discussions should be made to consider whether any photographs or other visual indications were discussed that would indicate the final product.  If a contractor shows a homeowner beautifully constructed, individually laid stone when giving the estimate and obtaining the business, then the landowner has the right to expect the sort of quality that was indicated (unless, of course, there was also discussions of other projects and the various costs that one might anticipate for the lower quality work).

The ability of a landowner to constuct erosion control measures is of increasing importance due to the rise of the waters in the Chesapeake region.  On December 9, 2013, The United States Coast Guard released a statement that the waters were rising along the Chesapeake at a rate of between 3.2 – 4.7 millimeters per year (the equivalent of the thickness of 3 to 5 pennies per year).  These changes were partly due to sea-level rise associated with climate change, partly due to the land subsiding. The subsidence is accelerated by human uses of groundwater.  (Here is the USCG report).  Most of the Chesapeake region consists of soft soils, and rising waters immediately attack and erode the shoreline.  Historical shoreline comparisons (like this one of the Annapolis area) give a sense of how much change has occurred in a few generations.

These natural forces work against the interests of owners of waterfront property, who would like to preserve and protect the land they have bought and paid for — and this leads inevitably to issues with the law.  There are significant issues with environmental protection and the critical areas protections — that is not the primary focus of this article, however.

Under the environmental rules, waterfront landowners to make improvements to allow for improved access (typically piers) and to prevent erosion.  “The person may make improvements into the water in front of the land to …  protect the shore of that person against erosion.”  Md. Code Ann., Envir. § 16-201.  The 2008 amendments to the Wetlands Act, however, restricted a landowner to “nonstructural shoreline stabilization measures that preserve the natural environment, such as marsh creation” except in areas specifically designated for structural shoreline or where the owner demonstrates that non-structural stabilization will not work.

 The bottom line — careful planning is crucial to avoiding issues.  If issues arise, however, capture the evidence; write down the events and if resolution cannot be reached, contact a lawyer that is knowledgeable in the particular issues.

J. Dirk Schwenk is a Maryland Real Estate, Waterfront Property, Civil Litigation and Maritime Lawyer from Annapolis, Maryland.  He provides civil litigation services in contract disputes, environmental and zoning issues, adverse possession and boundary disputes.  He graduated cum laude (with honors) from the University of Maryland School of Law and has been in private practice in Maryland ever since.

Setbacks, Critical Area Buffers and Variances

Setbacks, Buffers and Variances

Setbacks, buffers and variances are some of the more confusing concepts in real estate law.  Both setbacks and buffers establish a distance from something (like a boundary line or a stream) and both setbacks and buffers limit development in the area.  In Maryland, setbacks and buffers are generally established by County or City ordinance.

In this simple diagram, the property owner cannot build next to the side lot lines because of setback restrictions, and cannot build near the water due to the required buffer zone.  The developable area, therefore, is that part of the lot that can be used without violating a setback or a buffer.

These restrictions would be fairly straightforward, except that a property owner can apply for a variance from the restrictions, which would allow him or her to build into the buffers and setbacks.  The word “variance” in this context basically means “waiver” – the property owner asks that zoning board waive the setback or buffer restrictions.

Under the Anne Arundel County Code, principal structures (houses) in residential areas must meet setbacks of 5 feet from the front lot line, 10 feet from the rear lot line and 7 feet from the side lot lines.  A setback can be granted under the following provision:

Anne Arundel County Code (2005) art.18 sec.16-305

Variances.

  (a)     Requirements for zoning variances. The Administrative Hearing Officer may vary or modify the provisions of this article when it is alleged that practical difficulties or unnecessary hardships prevent conformance with the strict letter of this article, provided the spirit of law is observed, public safety secured, and substantial justice done. A variance may be granted only if the Administrative Hearing Officer makes the following affirmative findings:

         (1)     Because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility of developing the lot in strict conformance with this article; or

         (2)     Because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship and to enable the applicant to develop the lot.

 Assuming that there is something unusual about the lot dimensions or topography that makes development difficult, a variance is likely to be granted.  There are a second set of factors that the hearing officer will consider in determining the appropriate scope of the variance – the hearing officer must decide that (1) the variance is the minimum variance necessary to afford relief; (2) the granting of the variance will not: (i) alter the essential character of the neighborhood or district in which the lot is located; (ii) substantially impair the appropriate use or development of adjacent property; (iii) reduce forest cover in the limited development and resource conservation areas of the critical area; (iv) be contrary to acceptable clearing and replanting practices required for development in the critical area or a bog protection area; nor (v) be detrimental to the public welfare.

It is much more difficult to avoid, by variance, the impact of the critical areas buffer.  Critical area protections are established by state law, but its specifics are enacted by each locality in their zoning laws.  In Anne Arundel County, the basic buffers are established in 18-13-304 of the zoning code.

18-13-104.  Buffers, expanded buffers, and buffer modification areas.

  (a)   Buffer. There shall be a minimum 100-foot buffer landward from the mean high-water line of tidal waters, tributary streams, and tidal wetlands. Specific development criteria apply as set forth in Article 17 of this Code and COMAR.

  (b)   Expanded buffer. Except as provided in subsection (c), the 100-foot buffer shall be expanded beyond 100 feet to include contiguous sensitive areas, such as slopes of 15% or greater and hydric soils or highly erodible soils.

For waterfront lots, a 100 foot buffer can significantly diminish the buildable lot area, and the buffer can be expanded significantly if there are steep slopes, erodible soils or streams and wetlands.  At times, this can leave a lot with no area that can be developed without a variance.  A landowner can seek relief by obtaining a variance from the critical areas laws — variances can be granted if the following terms are met.

  (b)   Requirements for critical or bog protection area variances. For a property located in the critical area or a bog protection area, a variance to the requirements of the County’s critical area program or the bog protection program may be granted if the Administrative Hearing Officer makes the following affirmative findings:

     (1)   Because of certain unique physical conditions, such as exceptional topographical conditions peculiar to and inherent in the particular lot or irregularity, narrowness, or shallowness of lot size and shape, strict implementation of the County’s critical area program or bog protection program would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant;

     (2)   (i)   A literal interpretation of COMAR, Title 27, Criteria for Local Critical Area Program Development or the County’s critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas as permitted in accordance with the provisions of the critical area program within the critical area of the County; or

        (ii)   The County’s bog protection program will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the bog protection area of the County;

     (3)   The granting of a variance will not confer on an applicant any special privilege that would be denied by COMAR, Title 27, the County’s critical area program to other lands or structures within the County critical area, or the County’s bog protection program to other lands or structures within a bog protection area;

     (4)   The variance request is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development before an application for a variance was filed, and does not arise from any condition relating to land or building use on any neighboring property;

     (5)   The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area or a bog protection area and will be in harmony with the general spirit and intent of the County’s critical area program or bog protection program;

     (6)   The applicant for a variance to allow development in the 100-foot upland buffer has maximized the distance between the bog and each structure, taking into account natural features and the replacement of utilities, and has met the requirements of § 17-9-208 of this Code;

     (7)   The applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, § 8-1808, of the State Code; and

     (8)   The applicant has evaluated and implemented site planning alternatives in accordance with § 18-16-201(c).

The critical area variance provisions require the developer to affirmatively show that there can be no reasonable building without a variance.  It also requires the developer to do sufficient planning and engineering to prove that the development will be no worse for development that fully forested buffer lands.  For better or worse, the real world effect of these provisions is that variances are only available to highly sophisticated and deep-pocketed applicants.  For those that are opposed to a development within the buffer, there are significant avenues that can be pursued — but in many cases effective opposition also requires significant engineering and legal expertise.

In conclusion — variances are exceptions to existing law that are available to a property owner if he or she has property that could not reasonably be developed without some sort of relief from the laws on the books.  Variances exist, at least in significant part, because the Supreme Court of the United States has determined that government cannot strip the value from real property by passing laws that prevent its reasonable use.  That sort of law is deemed a regulatory taking without compensation, and violates the United States Constitutional prohibition against the government taking citizen’s property without just compensation.

J. Dirk Schwenk is a Maryland Real Estate, Waterfront Property, Civil Litigation and Maritime Lawyer from Annapolis, Maryland.  He provides civil litigation services in contract disputes, environmental and zoning issues, adverse possession and boundary disputes.  He graduated cum laude (with honors) from the University of Maryland School of Law and has been in private practice in Maryland ever since.

Boundary Disputes and Land Surveys

Maryland’s highest court issued a decision last week in Webb v. Nowak, a case about boundary disputes.  The case arose because the Nowak’s cut down and sold timber on a parcel of land that the Webb’s believed they owned – this led to accusations of trespass and claims of adverse possession.  Both parties obtained surveys to determine where the boundary line was supposed to be.  The original 1928 deed set the mutual property line at an “existing fence” and then ran from the fence “340 feet more or less” to a road.  The Nowak’s surveyor concluded that there were remnants of a fence and other evidence of its location when he surveyed almost 80 years later in 2007.  His testimony included pictures of a fence post, the borings of a tree that had grown around a fence post and a description of a swale that he concluded indicated the edge of a formerly tilled field.  He therefore concluded that the 340 foot measurement was a mistake, and the distance should only be about 200 feet.  The Webb’s surveyor relied on a point 340 feet from the road, but did not note any evidence of a fence at that location.

For a starting point, the Court of Appeals concluded that there was a question of fact concerning the correct location of the boundary.  A “determination of which of two surveys reflected the true boundaries of disputed land as intended by the original surveyor is a question of fact.”  Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).

The determination of the boundary line in this case … must involve comparing the Wolf deed to conditions in the field—e.g., the location and condition of the Existing Fence, the location of the Private road and County road, the location of other monuments, the topography of the land, and even the location of surveyors’ pins.”

Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).  The Court went on to conclude that the 340 foot measurement was a mistake, because the fence was a monument and “monuments control over courses and distances where they continue to exist, or their locations can be determined with reasonable certainty.”  Webb v. Nowak, 83 SEPTTERM 2012, 2013 WL 4417573 (Md. Aug. 20, 2013).

The takeaway for a current landowner?  First, if there is a dispute about the correct boundary in a deed, the testimony of a surveyor will be of paramount importance.  This brings me to land surveys — In Maryland, land surveyors are licensed by the State and the state regulates what must be included in certain types of surveys.

What most people receive when they buy a house — a location drawing — is the lowest form of survey and it cannot be given to someone unless they acknowledge in writing that “A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE.” COMAR 09.13.06.06.  The purpose of a location drawing is only to “provide some assurances that improvements are located on the property.  This assurance is for the use of a lend or an insurer only.”  Id.  So a homeowner that purchases a property is not supposed to rely on the location drawing for assurances that the boundaries are correct.

An accurate and reliable survey that is likely to be accepted in Court needs to be at least a Boundary Survey.  A boundary survey will establish and mark the “physical position and extent of the boundaries of the property” and requires that monuments (surveyors stakes) be set and a plat produced.  COMAR 09.13.06.03.  Conducting the survey is what will place the surveyor in a position to testify as an expert to the location of the lines.  And in the case of Webb v. Nowak, it is what put the surveyor in a position to testify that a line described in a deed as 340 feet was really only 200 feet – and that testimony made all the difference.

For more on types of surveys, see Types of Land Surveys

J. Dirk Schwenk graduated from the University of Maryland School of Law in 1997, cum laude, and practices in real estate, waterfront land riparian rights and marine issues in Annapolis, Maryland.

Types of Land Surveys

I regularly receive calls from landowners that have a conflict (or potential conflict) with a neighbor over the boundaries between their properties.  For waterfront property, this may involve the location of a pier.  For the homes in planned and platted communities, this may involve the location of a paper road or community land.  For everyone it might involve a question of where exactly is the shared line between two properties.  These locations may be obscured by installed fences or sheds, by a history of maintenance in one area or lost to history.  It is very common that the potential client, and perhaps their opposing neighbor, do not know where the location is that is called for in the deed or plat.

 

Usually one of my first questions is whether the property has been properly surveyed.  If so, this will narrow the field of dispute a great deal.  Oftentimes the property owner does not have a survey or if they do only has the Location Drawing that they received at purchase or perhaps just the neighborhood plat.  The plat is an important legal document which is relevant (and may establish) the legal boundaries, but it is not the same as being able to locate actual boundaries in the field.  In Maryland, there are several kinds of surveys identified in the regulations, each of which serves a different purpose.  Any qualified surveyor should be able to perform them – a very good surveyor will also be able to testify as needed.  Oftentimes there will be multiple categories on a single plat, but it is good to know what you are looking at, and what you should be able to expect from your surveyor.  Here are some thoughts on each type of survey.

 

1. Location Drawings.  A location drawing is the depiction of the property you receive when you purchase a house.  Although it looks like a survey, it hardly qualifies.  To start with, although you may not remember, if you received one you had to sign a piece of paper that says: A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED ON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE.  The purpose of a boundary survey is to “locate, describe and represent the positions of buildings or other visible improvements affecting the subject property.”  For a location drawing, the surveyor is offering the insurance company and mortgage company an assurance that any improvements to the property are within the boundaries — but that is it.  There are no true assurances to the owner of the size or location of the property, whether there are easements across it, or any of the other items that are likely to cause disputes.

 

2. Boundary Surveys.  A boundary survey “is a means of marking boundaries for sufficient definition and identification to uniquely locate each lot, parcel or tract” and to “establish, reestablish or describe … the physical position and extent of the boundaries of real property.”  If you have a dispute with a neighbor about where the property line is, this is the type of survey that you need.  The surveyor should mark the corners of the property with survey stakes and provide a plat of the area.  To create it, the surveyor will do field work including locating any existing boundaries and markers and review the chain of title to determine what is called for in the deeds.  The surveyor is to accept and review private and public records, and note conflicting boundary line locations.  Field work is to include measurement of locations to an accuracy of 20 millimeters and take account of visible encroachments and visible indications of rights including those asserted by adverse possession or prescription.

 

3. As built, Constructed or Record Surveys: This is the type of survey that is done where there is a question about whether something that has been constructed (say a fence, building or pier) is in the correct location in relation to the boundaries.   They are required to have sufficient accuracy to “permit the determination of whether the position of visible constructed improvements encroach upon adjoining properties” in rights of way or in easements.  In the case of a pier, this will mean that a determination must be made, typically by asking the County zoning officials, of where the riparian line is to be drawn.

 

4. Field Run Topographic Survey: this is the correct survey if the contours of the property are needed, including the location of the mean high water line for waterfront properties.

 

5. Field Run Planimetric Survey: This is similar to a location drawing, except that it is done as a full survey in order to “locate, describe, map or all of these, the horizontal positions of the physical features and characteristics of the earth and other features.”

 

6. Metes and Bounds Description: Instead of a depiction of the property on a plat, this is “a written legal description of the subject tract of land that provides information necessary to propertly locate the property on the ground and distinctly set it apart from all other properties.”

 

7. Right of Way/Easement Surveys: An easement or right of way is a legal right of one person to access property owned by another.  It might be a narrow walking path to reach a beach or other feature, or it might be a complete right of use (such as a community park) that prevents the deeded owner from developing the property in any way.  An easement survey “is a means of obtaining, reporting, or displaying … the necessary data to establish or reestablish the location of sufficient property lines of the affected tract of land to assure the accurate location of the strip or parcel of land being described for the use and benefit of others.  Markers need not be set, but the survey is otherwise required to meet the same standards as a boundary survey.

 

8. Special Purpose Surveys: This is essentially a catch-all category that covers anything aside from the first seven types noted above, but it is not to be used to lower the required standards described in the regulations.

Dirk Schwenk is a graduate, cum laude, from the University of Maryland School of Law.  He practices in real estate, waterfront and riparian law and Maryland boating issues. Baylaw, LLC is located in Annapolis, Maryland.

Dobbins Island January 20, 2012 Court of Appeals Decision – Comments

On January 20, 2012, Maryland’s highest court, the Court of Appeals issued a 40 page opinion in Clickner v. Magothy River Association. For big readers, the entire case is here.  This commentary is the opinion of Dirk Schwenk, the attorney behind waterfrontlaw.com and who represents many waterfront communities (or individuals in waterfront communities) in Maryland.

When this case was decided at the trial level in 2010, my comment was that “I personally believe that the court reached the correct outcome, but it did so for the wrong reasons, probably as a result of confusing testimony concerning the location of the Mean High Water line.”   This worry came to pass, as the trial court’s imposition of a public easement to parts of the island above the mean high water mark did not hold up, and the high court did not see fit to consider whether the fence was actually below the mean high water mark.
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Every case has winners and losers, and in this case the clear loser is the Magothy River Association.  The chief item that that organization succeeded at in trial was the removal of portions of the fence around the island. The Court of Appeals reversed this decision, and the Clickners, should they choose to do so, are empowered to reconstruct the fence.  As a lawyer, however, there is much to learn from the decision beyond who won and who lost. The Court of Appeals goes into great detail on several issues, and must be congratulated for issuing a deeply reasoned decision which considers the larger tensions between public and private rights in the waterfront, as opposed to the more short term issues political issues of Dobbins Island alone.

The primary issue addressed by the Court is this — if the public uses a beach adjacent to wild, undeveloped land, can this use prevent the owner of the land from ever asserting a right to call the land private. This is a real issue for waterfront owners — they may be able to monitor who is using the beach areas near their house — but what if they own undeveloped property in an isolated area? Do they have to fence it off and post no trespassing signs to protect their rights? Or can they allow it to be used by the public on occasion, and assume that in the future if they want to develop the property they will still have private property rights? The Court of Appeals considered this question in depth — noting a California case which required beachfront owners to actively defend their property and caused “the absentee owners of some of the most beautiful parcels put up miles of seven-foot-high fence topped with three strands of barbed wire.”

The Court of Appeals noted that we want the public to be able to use otherwise undeveloped land and correctly concluded that “Owners of open woodlands should not be expected to treat most uses as adverse and it would be unreasonable to require the owner to fence his land or guard against trespassers. Also it would be unfortunate if owners were forced to exclude the public … harmless trespasses should not be discouraged and it would be unfair to penalize the generous owner.” As a result, the Court concluded that “the public’s recreational use of the dry sand portion of the beach on Dobbins Island is presumed to have been a product of the permissive indulgence of its owners. To hold otherwise would galvanize owners into fencing or otherwise obstructing their beaches in order to avoid the assertion of public prescriptive rights, feasibly creating a barricade across Maryland’s shoreline.”

Based on this discussion, the Court of Appeals concluded that for the Magothy River Association to succeed in proving that the public had obtained the right to use private land, it had to show that the owners of Dobbins over the years had not permitted the public to use the island in the same way other owners allow the use of other wild lands. The evidence supported public use, but it did not show that it was use over the objection of the landowners. The MRA lost concerning Dobbins, but the public at large gained with the clarification that all owners of wild lands are not required to fence them off or lose their private rights.

There is, of course, an undeniable irony in the fact that the Clickners put up a fence barring the public, and the Court of Appeals allowed the fence based on the concern that not allowing it would cause all waterfront owners to put up fences.   Nevertheless, the Court of Appeals is right about the law.  The point that it missed (and I daresay has received short shrift at every important moment in this case) is the fact that parts of the Clickner’s fence are actually below the mean high water mark.  (I’ve been there, and there are posts in the water even at a modest summer tide).  In those places, the fence obstructs the public’s right to use the beach below the mean high water mark.  Perhaps the future will hold a point at which the public respects the Clickner’s private land, and the Clickners respect the public’s right to access the beach.  Perhaps.

Dobbins Island Decision – Complete Text – Jan 20, 2012

The Court of Appeals issued its decision in Clickner v. Magothy River Association today. It was adverse to the Magothy River Association, and the case has been remanded to the Circuit Court for Anne Arundel County.   Comments here

David Clickner, et ux. v. Magothy River Association, Inc., et al. No. 13, September Term,
2011, Opinion by Greene, J.

REAL PROPERTY LAW – PRESCRIPTIVE EASEMENTS – Public prescriptive rights may be acquired over privately owned portions of beaches located along inland waterways. It was error, however, for the trial court, under the circumstances of this case, to apply the general presumption of adversity to the public use of a beach that was unimproved and in a general state of nature. Instead, the proper presumption was that public use of the land was by permission of the owners. Therefore, the burden was on the claimants to overcome the presumption of permission by proving that the use was, in fact, adverse.

IN THE COURT OF APPEALS
OF MARYLAND
No. 13
September Term, 2011
DAVID CLICKNER, et ux.
v.
MAGOTHY RIVER ASSOCIATION, INC., et al.
Bell, C.J.
Harrell
Battaglia
Greene
Adkins
Barbera
*Murphy, Joseph F., Jr. (Retired, specially
assigned),
JJ.
Opinion by Greene, J.
Filed: January 20, 2012
*Murphy, J., participated in the hearing and in the
conference of this case in regard to its decision
after being recalled pursuant to the Constitution,
Art. N, Sec. 3A but did not participate in the
adoption of this opinion.

Six individuals and the Magothy River Association, Inc. (collectively, “Association” or “Appellees”) brought suit against the recent purchasers of Dobbins Island, David and Diana Clickner (“Clickners” or “Appellants”), seeking to establish a public right to use a beach located alongside the island’s northern crescent area. Following a bench trial on the merits, the trial judge determined that Appellees had demonstrated the existence of a prescriptive easement on behalf of the public and ordered the removal of portions of a fence erected on the beach by Appellants.

In making this determination the trial judge applied the general presumption of adverse use and accordingly placed the burden on Appellants to prove that the use was, in fact, permissive. Based on the record before us, however, we determine that this application was in error, as the beach at issue was unimproved and otherwise in a general state of nature; therefore, the proper presumption, under the circumstances, was that public use was by permission of the owner. Thus, the trial court’s judgment and its order directing Appellants to remove portions of the fence erected on the beach were in error and we shall reverse.

FACTS AND PROCEDURAL HISTORY
Appellants own Dobbins Island (“the island”), a seven-acre parcel ofland surrounded by the Magothy River. The island has a long, albeit mysterious, presence in Maryland history. According to sales literature, it was fIrst surveyed in 1769 as twelve acres and granted by patent to William Gambrel. In the 1850’s it was conveyed to George Dobbin, and held in a family trust, until it was conveyed to Dutchship Island, LLC. Appellants purchased the island in 2003, with plans to build a home on the property. Prior to the purchase, the Clickners received a marketing brochure from Dutchship Island, LLC entitled “Island Jewel.”

The brochure included several color photographs of the property and described it as “the perfect blend of tranquility and accessibility-an idyllic, unspoiled natural retreat surrounded by deep pristine waters …. ” The island’s north side, according to the brochure, “forms a gentle crescent ideal for a protected boat anchorage.” A photograph of the “idyllic sandy beach” along the crescent was also included, showing only a single boat in the water and no persons or items on the sand.

The brochure also presented a brief history of the island entitled “Dobbins Island-Historic Treasure.” The introductory sentence in this historical narrative reads: “[t]his delightful island-jewel, has been a magnet for picnickers and boaters as they enter the mouth of the Magothy River for more than 250 years, serving as a beacon for pleasure boaters, crabbers, fishermen, and duck hunters alike.” The page included a photograph of two people sitting on the beach, captioned: “A 1963 picnic on Dobbins Island.” The narrative also related legends, which “hover over Dobbin’s [sic] Island like transparent kites. ” A prominent tale in Magothy River lore involves the alleged sinking of a Dutch ship near the island in the 1700’s, an accident which left Dutch coins behind for discovery by local residents and gave the property its local moniker, “Dutchship Island.”

A letter included in the brochure with the greeting, “Dear Prospective Buyer,” invited would-be purchasers to look into the opportunity to build a “dream home … on the last remaining unbuilt private island on the Western shore of the Chesapeake Bay near Annapolis, Maryland.” It characterized the island as a “natural setting” that is “beautifully
2
wooded with mature trees for privacy,” with “4,000 feet of shoreline, 1,000 feet of pristine beach, and a home site already approved for … almost any sized home.” The letter, however, like the introductory sentence of the historical narrative, foreshadowed the conflict which has arisen in this case, when it stated: “[fJor more than 300 years, Dobbins has been a magical place for people to visit and relax. With a large and expansive private white sandy beach, protected deep water access, and incredible 360 degrees vistas, a more beautiful or perfect place to escape to cannot be imagined.” (emphasis added).

While the brochure materials certainly suggest a conflict between the island’s public visitation and its private ownership, Mr. Clickner testified that he did not discuss any public use of the property with the sellers and was not aware of the use prior to purchase. Also, although he had spent time on the Magothy River in his youth, Mr. Clickner made clear that he had not visited or inspected the island until he toured it with the seller, and that he had submitted his offer to purchase the property during that initial tour.

After the Clickners purchased the island and became aware ofits extensive public use, they posted ”No Trespassing” signs along the perimeter and, in May 2006, were granted a building permit from Anne Arundel County to erect a 1,200 foot fence along the shoreline above mean-high tide.1 The fence included 13 pilings placed along the beach and strung together with cable. There is some discrepancy in the record as to the exact location of the fence, as there was testimony that it was installed at approximately six inches to two-feet

Footnote 1 Just as in Department of Natural Resources v. Ocean City, 274 Md. 1, 332 A.2d 630 (1975), the property at issue in the instant case is the dry sand portion of a beach. Accordingly, James J. Nolan, Jr., Recent Development, Department of Natural Resources v. Mayor and Council of Ocean City, 274 Md. 1,332 A.2d 630 (1975), 5 U. Balt. L. Rev. 349, 349 & n.3 (1976) provides a helpful guide to the terminology used throughout this opinion.
3
(Footnote 1 continued)
The article provides the following definitions: (a) The beach is the area between the ocean and the
upland. A beach consists of two main areas, the foreshore and the dry sand area. (b) The foreshore is the strip of land between the low and high water marks which is alternately covered and uncovered by the flow of the tide. [“Often used synonymously with ‘wet sand beach.'” Nat’l Oceanic and Atmospheric
Admin., Coastal Services Ctr., Glossary, Public Trust Doctrine Course, http://www.csc.noaa.gov/ptdiglossary.htm (last visited Jan. 20, 2011).].
(c) The dry sand portion of the beach consists of the area between the mean high tide line and the vegetation line. (d) The vegetation line is the extreme seaward boundary of the natural vegetation that spreads continuously inland. It marks the border between the dry sand beach and the adjoining upland.
***
(f) The upland is the area adjacent to the beach. It extends landward from the vegetation line, dune line, or other natural boundary of the dry sand beach. (g) The mean high tide line represents the average height
of high tidal water on the shore over a considerable period of time. [Borax Consol., Ltd. v. Los Angeles, 296 U.S. 10,26-27, 56 S.Ct. 23, 31, 80 L. Ed. 9, 20 (1935) (noting that according to the United States Coast and Geodetic Survey, mean high tide is calculated by averaging the high tides over an 18.6 year period); Nat’l Oceanic and Atmospheric Admin., Coastal Services Ctr., supra (“The mean average of all the high tides (high high tides and low high tides) occurring over a certain period of time, usually 18.6 years (one lunar epoch).”)].
***
(i) Littoral means belonging to the shore, as of seas and great lakes. (Internal citations omitted.) End Footnote 1.
4
above mean high water. On July 10, 2008, in reaction to the fence installation, Appellees filed a two-count complaint in the Circuit Court for Anne Arundel County seeking “to establish their rights to continue to use the island as they have used it in the past,” on behalf of themselves and the general public.2 The second count sought to have the fence removed or relocated ”because the fence does not properly mark the mean high water line.” An amended complaint was filed on November 13, 2008 adding two new parties as well as assertions of an easement by implied dedication and public custom.

During the trial, Appellees put forth the testimony of the six individually named plaintiffs, the president of the Magothy River Association, and an expert in the use of tidal data as it relates to coastal boundary disputes. Appellees also called and questioned Mr. Clickner about the circumstances surrounding his purchase and the decision to erect a fence on the beach. Appellees presented evidence to establish the long, historical use of the island beach. They entered photographs that were apparently taken in the 1920’s or 30’s depicting persons canoeing around the island and also photographs of public use of the shore during the 1970’s and 1980’s. Appellees also presented Chesapeake Bay Magazine’s “Best of the Bay Survey” from 2006 which included Dobbins Island as one of the best anchorage sites in the Chesapeake Bay. Mr. Paul Spadaro, president of the Magothy River Association, testified that this

Footnote 2 The Appellees had filed an earlier, similar action in December of 2006, and dismissed it without prejudice in April of 2007.
5
anchorage spot at Dobbins Island is used as the official site for the Association’s “Magothy River Day.” This event celebrates the history of the river, and includes a “wade-in” on the sandbar in which participants wear white shoes and wade into the water until they can no longer see their feet, in order to test the river’s visibility and water quality. In 2007, approximately 200 boats attended the inaugural event, and in 2008, over 400 boats were present. While Mr. Spadaro testified that his organization stressed that participants respect the island as private property, several photographs introduced by Appellants show several people using the beach area beyond the Clickners’ fence.

Each individually named plaintiff recounted his or her life-long affmity for and interaction with the beach, each using it from long memory for recreational purposes, such as picnicking, mooring, sunbathing, and swimming. While many witnesses explained their historic use of the entire island, counsel clarified that Appellees were asserting a claim only to the dry sand portion of the beach. Several witnesses also described the extensive public use of the area during sununer months, estimating that approximately 75 to 100 persons would be on or around the beach on a given day. The testimony also made clear that the Dobbins Island was, and has always been uninhabited and undeveloped.

There was consistency amongst the witnesses’ answers to questions aimed at eliciting whether use of the island was adverse or by permission of the owner. The testimony revealed that the witnesses were never given individual permission to use Dobbins Island and that they
6
did not necessarily know who owned the island.3 Further, the witnesses did not think of themselves as trespassers but instead assumed the land was open for public use because it was common practice for members of the public to use the island for recreation and they did not see “no trespassing” signs on the property. In other words, they felt privileged to use the beach “because everyone else did.” The following testimony is illustrative of the testimony given by Appellees. Ms. Carol Auer, age 55, explained that she remembered using the beach with her family from the age of seven. She continued to use the island for recreation throughout her lifetime and testified that “it was a very popular place to go if you had a boat.” In response to questions on direct examination, she revealed:
Q. Did anyone ever give you permission to use the island?
A. No.
Q. And what was your understanding about the ownership of
the island, if you had an understanding.
A. I didn’t know who owned the island. Until Mr. Clickner
bought it I didn’t really know who owned the island.
In response to questions on cross-examination, she stated:
Q. So you generally understood that it was private property?
A. I understand it now. When I was a kid, no. I didn’t know
who owned it.
Q. Not as a kid but as an adult. I mean certainly you know it’s
not state park land, right?
A. I didn’t know what it was. I really had no idea. I didn’t

Footnote 3 Several witnesses testified that while they knew the island was private property, they did not know who owned the island, although some suspected it was the Dobbin family. Others, like as Mrs. Carol Auer, whose testimony is recounted herein, did not know whether the island was publicly or privately owned.
7
know if it was state-owned. 1 actually thought at one point it
might be. 1 had no idea.
Q. SO you didn’t bother to look into it.
A. No.
Q. Okay. You just would go out there and use the property?
A. That’s right.
Q. And you felt like your use was generally permitted by the
owner, didn’t you?
A. Yeah, 1 guess so. 1 mean 1 never thought about it. 1 never
thought about who owned it because it was something 1 had
done and had been done and had been publicly used forever.
For as long as I remember.
***
Q. And no one has identified themselves as an owner of the
property and asked you to modify your behavior, right?
A. No. No one ever has.
Q. Okay. But you generally felt that you were invited to the
island by whomever owned it.
A. No. 1 wouldn’t say that. 1 never thought that way. 1 never
felt that 1 had a personal invitation or that it was like–it was like
I didn’t–I never felt that way that I was invited. I thought–
Q. Okay. You felt like you were–
A. –I thought it was a proper thing to do. 1 didn’t think it was
improper to use the island.
Q. Okay. So you are going to stick with the generally accepted
as a permitted thing to do regardless of who owned it?
A. Yeah, I think that that’s fair.
Q. Well, do you see any use, any difference in your use of the
island and a trespasser of the island?
***
A. Let’s see. 1 think when 1 use the word trespasser 1 would
assume that the person who is trespassing is doing it and they
know they are doing something wrong. If that’s the term, if
that’s the way you are defming trespasser, no 1 don’t think 1
thought of myself as a trespasser on the island.

In addition to testimony, there was also documentary evidence offered in an attempt to establish whether use of the island’s beach was adverse to or by permission of the owner. Appellees introduced an excerpt from Chesapeake Bay Magazine’s 1997 “Guide to Cruising
8
[the] Chesapeake Bay” that described the island and, like the promotional materials given to Mr. Clickner, foreshadowed the issue that has arisen in this case: The island is very popular on summer weekends and can be a beehive of water-skiing activity. It attracts dozens of boaters, from locals in little runabouts who pull their vessels right up on its sandy beach to large sailboats and cabin cruisers that anchor out. Many times we have visited Dobbins, once climbing the steep trail to the wooded crest of the island and exploring its mysteries. But, aware that this was (and is) private land, we mostly anchored offshore, content to enjoy the beauty of its dark banks which formed a peaceful backdrop for the other boats which swung at anchor there. Boaters have used Dobbins Island for so long they think it falls in the realm of public property. It doesn’t. This uninhabited island is owned by the heirs of George W. Dobbins [sic], a Baltimore judge who bought it around 1840 for duck hunting. Along with nearby Little Island, it became a summer retreat for family and friends. The original family trust, made in 1908, does not permit the island to be sold. “No Trespassing” signs have been posted from time to time, but trespassers defiantly use them for building fires on the beach. Occasionally the caretaker on the mainland will motor over to Dobbins and ask people on the beach to respect the island as private property. (Emphasis added.).

Despite the contents of this excerpt, no witness admitted to seeing either a caretaker approach the beach, or “no trespassing” signs on the island prior to the signage put up by Mr. Clickner. Appellants introduced into evidence a Washington Post article about the controversy, published on July 18, 2006, entitled “Putting the Theory of ‘Good Fences’ to the Beach Test,” in which Mr. Spadaro was quoted as saying “[t]he Dobbins [sic] family was said to have allowed public use of the cove, and subsequent owners upheld that tradition.” Mr. Spadaro emphasized in his testimony that while he made this statement, he had never met the
9
Dobbin family. Appellants also introduced a book entitled “Over the Side,” written by Alan and Jessica Bond, which includes an acknowledgment on the inside cover thanking “Dobbins Island’s owner for generously allowing public use of the island.” At the conclusion of the hearing, the trial judge asked for written closing arguments from each party and held the matter sub curia.

In its closing argument, the Association alleged that an easement existed as a result of implied dedication, custom, prescription, and an expansion of the public trust doctrine. The trial judge issued a Memorandum Opinion and Order dated May 7, 2010. The judge held that the public had not gained an easement through either implied dedication, custom, or public trust, but ultimately that the public had, in fact, met the requirements necessary to establish a prescriptive easement.4

As to the adversity requirement, the court applied the general presumption of adverse use, and held that the Clickners had failed to meet their corresponding burden to prove that public use of the area was by permission. The trial court stated: Adverse use means use without license or penmssion. Additionally, showing a use by the public for twenty years generates a presumption that the use is adverse and of a legal origin. To rebut this presumption, a defendant must prove by affirmative evidence that the claimant’s use was by permission or by license. In the instant case, Plaintiff’s evidence, consisting of witness testimony and the photographs, convinces the Court that the beach on Dobbins Island has been used since 1963 and as early as the 1920’s, well over the statutory twenty years, by the public for the purposes of swimming, sunbathing, walking,

Footnote 4 As discussed, infra, in order to establish a prescriptive easement in Maryland a claimant must show an adverse, exclusive, and uninterrupted use of another’s real property for twenty years. Banks v. Pusey, 393 Md. 688, 699, 904 A.2d 448, 454 (2006).

10
picnicking, kayaking, boating, and as an anchorage. Some of the testimony showed that members of the public believed they could use the island but Defendant did not provide affirmative evidence that prior landowners gave permission or license to the public to use the beach. Defendant did not overcome this presumption by any showing that the prior landowners granted permission to the public to use the beach. (Footnote and internal quotations omitted.).

In order to allow for use of the newly recognized public easement, the trial court also ordered that the cables between the pilings creating the shoreline fence be removed. The Court also held that the location of the fence above mean high water could not be challenged because the location was approved by Anne Arundel County, and this approval was not appealed to the appropriate administrative body. Thus, the trial judge explained that the court would not consider the Association’s assertion that the pilings were incorrectly placed because the Association had failed to exhaust its administrative remedies.5

Accordingly, the Circuit Court issued an order, stating:
ORDERED, that the public has an easement by prescription to use the beach on Dobbins Island, from the mean high watermark to the vegetation line, to swim, sunbathe, walk, picnic, kayak, boat, and anchor; and it is further
ORDERED, that Defendants are to remove the rope, chain, or cable lines on the park style fencing that interferes with the public easement …. ”
The Clickners noted their appeal from this decision to the Court of Special Appeals on June 4, 2010. Prior to any proceedings in the intermediate appellate court, we issued a

Footnote 5 The propriety of this ruling is not before us, and we do not address it.
11
writ of certiorari, on our initiative. Clickner v. Magothy River Ass ‘n, Inc., 419 Md. 646, 20 A.3d 115 (2011). We now address the following questions, restated for clarity:
1. Did the trial court err in declaring that the public has a prescriptive easement to use the beach on Dobbins Island?
2. Did the trial court err in ordering the removal of a portion of the fence placed on the Dobbins Island beach?
We shall answer both questions in the affirmative and therefore reverse the judgment of the trial court.
I.
The case at issue was heard at a bench trial. Pursuant to Maryland Rule 8-131 (c), we shall apply the clearly erroneous standard of review to factual findings and review the decision for legal error.

When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportwrity of the trial court to judge the credibility of the witnesses. Md. Rule 8-131(c). Accordingly, we give due regard to the trial court’s role as fact-finder and will not set aside factual findings unless they are clearly erroneous. State Security v. American General, 409 Md. 81, 110-111,972 A.2d 882,899 (2009); Banks v. Pusey, 393 Md. 688, 697, 904A.2d448, 453 (2006); $3,417.46 Us. Moneyv. Kinnamon, 326 Md. 141, 149,604 A.2d 64,67-68 (1992). “The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was
12
presented to support the trial court’s detennination, it is not clearly erroneous and cannot be disturbed.” Ryan v. Thurston, 276 Md. 390, 392, 347 A.2d 834, 835-36 (1975) (citations omitted); $3,417.46 U.S. Money, 326 Md. at 149, 604 A.2d at 67. Questions of law, however, require our non-deferential review. State Security, 409 Md. at 111, 972 A.2d at 899; Banks, 393 Md. at 697,904 A.2d at 453-54. When the trial court’s decision “involves an interpretation and application of Maryland statutory and case law, our Court must detennine whether the lower court’s conclusions are legally correct …. ” White v. Pines Community Improvement Ass’n, Inc., 403 Md. 13,31,939 A.2d 165, 175 (2008) (quoting YIVO Inst.for Jewish Research v. Zaleski, 386 Md. 654, 662, 874A.2d411, 415-16 (2005)).

Where a case involves both issues of fact and questions of law, this Court will apply the appropriate standard to each issue. Dickerson v. Longoria, 414 Md. 419, 432, 995 A.2d 721, 730 (2010); see Diallo v. State, 413 Md. 678, 695, 994 A.2d 820,830 (2010). The issues presented in the instant case are legal questions as they involve the interpretation of Maryland case law regarding prescriptive easements and the application of that law to the facts. Therefore, we review the trial court’s judgment to determine whether there was legal error.

II.

Both parties recognize that the State of Maryland owns in public trust, for the benefit
13
of its citizens, the navigable wate~ of the Magothy River surrounding Dobbins Island and the subject beach up to the mean high water line. See Md. Code (1974, 1984 Rep1. Vol), §16-101(0) of the Environment Article ”’State wetlands’ means any land under the navigable waters of the State below the mean high tide, affected by the regular rise and fall of the tide.”); Anne Arundel County v. City of Annapolis, 352 Md. 117, 132-33,721 A.2d 217, 224 (1998) (“The navigable waterways within Maryland’s boundaries and the lands beneath them generally are ‘held’ by the State for the benefit of the inhabitants of Maryland.” (citations omitted»; Hirsch v. Md. Dep’t. of Nat. Resources, 288 Md. 95, 98-99, 416 A.2d 10,12 (1980); Dep ‘t of Natural Res. v. Ocean City, 274 Md. 1,5,332 A.2d 630,633 (1975); 2 Herbert T. Tiffany, The Law of Real Property § 660 at 698-99 (3d ed. 1939) (“Land bordering on the sea … or on a tidal river, and lying above ordinary low watermark, but below ordinary high watermark, is known as the [fore ]shore, and this, like the land beyond low watermark, belongs prima facie to the state … the theory being that it is land not capable of ordinary cultivation or occupation, and so is in the nature of unappropriated soil.”).

Therefore, the mean high water line marks the division between state and private ownership of the shoreline. Appellants admit that “a significant part of the historic public use of Dobbins Island is protected by the public trust doctrine. The public is guaranteed the right to anchor in the cove, swim in the waters, pull kayaks, canoes and other small boats onto the shore, and sit on the sandy beach that lies below mean high tide.”

Appellants also assert that

Footnote 6 ”Navigable water” has been defined by this Court as “water where the tide ebbs and flows.” Dep’t of Natural Res. v. Ocean City, 274 Md. 1,6,332 A.2d 630, 633 (1975).
14
“[P]hotographs taken after the Clickners installed a fence above mean high tide make abundantly clear that [a] large area of sandy beach remains open to public use.” Appellees disagree, however, and note that by definition, when the tide is high, the water of the Magothy extends to the Clickners’ pilings, leaving little or no visible sand below the fence and thereby precluding public use of the beach on Dobbins Island.
Accordingly, Appellees assert a right to use the area above mean high tide, the dry sand portion of the beach, currently fenced off by the Clickners. This area is not subsumed by the public trust doctrine, and has been privately owned since the original grant of the property. Thus, in order for the public to have a right to use and enjoy this portion of the beach, Appellees must demonstrate a property right in the form of an easement, a nonpossessory interest in the real property of another that can arise either by express grant or implication. Boucher v. Boyer, 301 Md. 679, 688, 484 A.2d 630, 635 (1984) (defining the term “easement”); see Dep ‘f of Natural Res. v. Ocean City, 274 Md. 1,5-6,332 A.2d 630, 633-34 (1975) (stating that the public trust doctrine ”protects the public in the use of the foreshore only … ” and that a public right to use the dry sand portion of the beach, therefore, “must fmd support elsewhere,” before considering various types of easements);9 Richard R. Powell, Powell on Real Property, § 65.11 [3] at 190 (Michael Allan Wolf ed., 2011 )(“The general rule appears to be that the public right of access pertains only to the area below the mean high watermark or seaward of the ‘dry sand,’ unless the public has acquired the right of access across the private land.”).

The Association alleged in the trial court that a public easement was impliedly created under the theories of prescription, dedication, custom, and
15
public trust. From these theories, the trial court held that the Appellees had only established an easement by prescription, a conclusion which Appellants challenge before this Court.

The parties dispute at the outset whether Maryland law allows for a public easement to be established on a beach located along an inland waterway.7 Appellants, relying on Thomas v. Ford, 63 Md. 346 (1885), argue that “[the public] may not acquire prescriptive rights in the land of another located along a navigable river.” This early case involved an action for trespass, wherein the plaintiff alleged that the defendant had deprived him of his right to use and enjoy his property located along the shore of the Patuxent River by encumbering the land with a large quantity of wood. Thomas, 63 Md. at 349. The defendant argued that he had not trespassed because the public had acquired a prescriptive easement over the land, as the property had been used for many years by the general population for shipping wood and other freight, a use that was known, but not objected to by the owner. Thomas, 63 Md. at 351.

The Thomas Court explained:
It is certainly a settled doctrine in this State that public roads or
ways of any kind can only be established by public authority, or
by dedication, or by long user by the public, which, though not
strictly prescription, yet bears so close an analogy to it that it is
not inappropriate to apply to the right thus acquired the term
prescriptive. Hence the existence of a public way may be
established by evidence of an uninterrupted user by the public
for twenty years; the presumption being that such long

Footnote 7 This issue has been the subject of litigation in other jurisdictions, as reflected in Jon W. Bruce and James W. Ely, Jr, The Law of Easements and Licenses in Land § 5:27 at 93 & n.l (2011)(hereinafter Law of Easements) (“A current controversy involves claimed public prescriptive easements to use privately owned beaches or lakefronts for recreational purposes.”).
16
continued use and enjoyment by the public of such way had a legal rather than an illegal origin. Thomas, 63 Md. at 352 (citing Day v. Allender, 22 Md. 511 (1865)). The Court then identified the question presented as: “[W]hether, at the common law, this principle of presumptive dedication, or quasi prescription, [8] does or can properly apply to give rise to a

Footnote 8 The Thomas Court’s use of the term “quasi prescription” reflects its adherence to the “lost grant” theory of prescriptive easements, prominent at the time of the decision, which relied on a legal fiction that an actual grant was conferred on the claimant but was somehow “lost.” Under this theory, the “public” was not able to gain prescriptive rights as it was deemed too amorphous a grantee to feasibly receive a deed. See Law of Easements § 5 :25 at 86 (“It is conceptually difficult to justify the acquisition of prescriptive easements by the general public under … the lost grant theory . . .. The lost grant theory presupposes a definite grantee, and courts have long held that the public is too large and uncertain a group to receive a grant.”). The Thomas Court implicitly recognized the doctrine when it relied upon the New York case of Pearsall v. Post, 20 Wend. 111 (N.Y. Sup. Ct. 1838), ajJ’d, 22 Wend. 425 (N.Y. 1839) and explained that the use presented in that case “could not be urged by the public … as the foundation of a legal presumption of a grant, and thus justify a claim by prescription …. ” Thomas, 63 Md. at 353 (emphasis added). The “lost grant” theory no longer guides our consideration of prescriptive easements, and is therefore no longer a bar to the acquisition of public prescriptive rights, as such. See Dep ‘t of Natural Res. v. Ocean City, 274 Md. 1, 9, 332 A.2d 630, 635 (1975); Garrett v. Gray, 258 Md. 363, 376-77, 266 A.2d 21,27 (1970) (noting with approval, after quoting from Thomas v. Ford, a law review article ”wherein the author notes that the tendency in modem decisions is to disregard the fiction of the lost grant and to develop a more positive, simpler and direct approach by analogizing adverse user with the application of the [s ]tatute of [l]imitations” (citation omitted)); Law of Easements § 5:25 at 87 (“[T]he trend of modem cases is to recognize that the public may acquire prescriptive easements.”); James J. Nolan, Jr., Recent Development, Department of Natural Resources v. Mayor and Council of Ocean City, 274 Md. 1, 332 A.2d 630 (1975), 5 U. BaIt. L. Rev. 349, 368 n.126 (1976) (“Some courts … have doubted that the public can acquire an easement by prescription, because the general public, as such, cannot be the beneficiary of the fictional “lost grant.” But this obsolete theoretical impediment has not prevented a majority of jurisdictions from allowing the public acquisition of easements by prescription. Maryland counts itself among that majority.” (internal citations omitted)).
17
right in the general public to use the land of another on a navigable river as a landing-place and place of deposit of wood and other articles of property for an indefinite time.” Thomas, 63 Md. at 352 (emphasis in original). The Thomas Court provided two rationales for its holding that no prescriptive easement had been established under its facts. Each party in the instant case touts one of the rationales as being the sine qua non of the Thomas Court’s position. The first, relied on by Appellees as a factual distinction, is that this Court in Thomas emphasized that the nature of the use at issue functioned more like an acquisition of title than a public prescriptive right.

By contrast, Appellees argue that the public’s recreational pursuits on Dobbins Island were more transient in nature, and therefore are not uses controlled by the following rationale, as stated by the Thomas Court:
Indeed, the very nature of the user set up in this case as evidence
of the prescriptive right in, or dedication to, the public renders
it quite out of the question that such right could, upon principle,
exist in the public generally. From the very nature of the user
relied on it must be confined to but [a] few individuals, and this
negatives the idea of the existence of the right in the general
public. Instead of the right being of a mere easement or
servitude, without profit in the soil, and open to the enjoyment
of all alike, it would be an exclusive appropriation of the actual
use of the soil to the first occupier or depositor of wood or other
articles, without limit as to the extent or duration of time. The
claim here set up is the right in the general public to deposit and
cord wood upon the plaintiff’s land [ac]quired by user merely.
This, of course, must be confmed to a dermed or limited space.
If the right were established, each individual member of the
public could not enjoy it, for the first occupier would have the
right to appropriate the entire space to himself, and no one could
question his right in so doing. While he remained in possession
all the rest of the public would be excluded; and there would be
18
no mode of determining the question as to the extent of the
ground that might be appropriated, or the duration of time that
it could be occupied. It might, indeed, be so occupied for an
indefinite duration of time. And as was said by the court in the
case of Cortel[you] v. Van Brun[d]t, supra, [2 Johns. 357 (N.Y.
Sup. Ct. 1807)] such user rather denotes title, and the right of
exclusive enjoyment, than the enjoyment of a mere public
easement; and the right to such user by the public cannot be
acquired by prescription.
Thomas, 63 Md. at 353-54 (second emphasis added).9

Indeed, because the Court contrasted exclusive appropriation, which could not give rise to public prescriptive rights, with the “enjoyment of a mere public easement,” it suggested that the latter could exist under appropriate circumstances. The second rationale explained in Thomas, and relied on by the Clickners in the instant case, is the Court’s following admonition:
[C]onsidering the great extent of shore lines within our State,
and the long and uniform indulgence extended by the proprietors
of those shores to those who have had occasion to use them for
purposes connected with water transportation or fishing, a
decision which should admit the possibility of turning such

Footnote 9 The two cases discussed within the Thomas opinion, both support the proposition that the exclusive appropriation of a landing is inconsistent with the existence of a public easement. In Post v. Pearsall, 22 Wend. 425 (N.Y. 1839), New York’s highest court of contemporary record held that the public had no right to use private property adjoining navigable water as a public landing and place of deposit. Also, in Cortelyou v. Van Brundt, 2 Johns. 357 (N.Y. Sup. Ct. 1807), the defendant in a trespass action argued that because he had the right to fish in the navigable waters, he could erect a hut on the shore to
accommodate fishermen during the fishing season. The plaintiff argued that “[t]he right of erecting a hut, being an exclusive appropriation, can only be established by grant,” and the court agreed, ruling: “P]rescription [will not] in any case, give a right to erect a building on another’s land. This is a mark of title and of exclusive enjoyment, and it cannot be acquired by prescription.” Cortelyou, 2 Johns. at 361-62.
19
permissive enjoyment into [a] prescriptive and absolute right on the part of the public would open a field of litigation which no community could endure. And what is still worse in a moral point of view, it would be perverting neighborhood forbearance and kind indulgence to the destruction of important rights. Consequently, if it be once understood that this permissive indulgence of the proprietors of the shores may be construed into irrevocable privileges, restrictions and hindrances will inevitably follow, to avoid the possibility of such permissive use maturing into public adverse rights. The production of any such consequence surely ought not to be desired by anyone. Thomas, 63 Md. at 354-55 (citation omitted).

Appellants assert that this language represents a public policy bar to prescriptive easements along the shores of Maryland’s inland waterways. This admonition in Thomas, however, rather than being a bar to prescription, merely reflects our jurisprudence that mere “permissive indulgences” cannot ripen into adverse rights, Cox v. Forrest, 60 Md. 74, 79-80 (1883), and suggests a rationale behind the presumption of permission that, as discussed infra, often attaches to the use ofland that is unimproved or “in a general state of nature.” Wilson v. Waters, 192 Md. 221, 228, 64 A.2d 135, 138 (1949).

This understanding of Thomas is informed by our decision in Department of Natural Resources v. Ocean City, 274 Md. 1, 332 A.2d 630 (1975), in which we noted that a prescriptive easement could be acquired by the public on privately held littoral property above mean high tide under appropriate circumstances. The opinion began: “This case raises for the first time the extent of the rights which neighboring owners and members of the public may respectively have in the littoral at Ocean City, Maryland – that land portion of the beach which lies west of the Atlantic Ocean’s mean high tide line …. ” As we stated,
20
the issue of public beach access was precipitated in the 1970’s “as a result of an expanding population and a limited amount of shore line.” Ocean City, 274 Md. at 6, 332 A.2d at 634.

The case presented an action to enjoin the construction of a condominium complex on an ocean front tract, with opponents of construction including the Maryland Department of Natural Resources as an intervening plaintiff. The plaintiffs argued that the public had acquired an easement over the dry sand portion of the beach, advancing various theories. In considering their claim of public prescriptive rights to the area, it was clear to the Court that the tract had been in use for less than twenty years following a storm that had changed its topography, and therefore any such use as there may have been after the storm failed to meet the requisite prescriptive period. Ocean City, 274 Md. at 7-9, 332 A.2d at 634-35. The Court stated, however, that “the law would support the petitioners [in gaining a prescriptive easement] if the necessary facts were available.” Ocean City, 274 Md. at 9,332 A.2d at 635 (citation omitted).

For our purposes it is paramount to note that in its discussion of public prescriptive rights, the Court in Ocean City explicitly acknowledged the Thomas decision, quoted its description of the doctrine allowing for public prescriptive rights onroadways, and extended it to dry sand littoral property. Ocean City, 274 Md. at 9,332 A.2d at 635. That case therefore represents Maryland’s common law approach to the controversy presented in several states regarding public prescriptive rights for recreation on privately owned, dry sand portions of beaches.10

Footnote 10 Several other states have held, based on the historical reticence to recognize (continued … )
21
Appellants rely on Judge Eldridge’s dissent in Ocean City to fashion a distinction between inland and ocean beaches. This distinction allows Appellants to argue that Thomas v. Ford is still viable precedent which, under Appellants’ interpretation, forbids public prescriptive rights on inland beaches despite the majority’s holding in Ocean City. Judge Eldridge’s dissent in Ocean City focused, however, not on prescriptive rights, but on the majority’s denial of an easement by implied dedication.

While the majority, in Ocean City, concluded that a clear and unequivocal manifestation of an intent to dedicate was required in order for the Court to fmd an easement by implied dedication, Judge Eldridge suggested that ”there are few hard and fast rules with respect to implied dedication under Maryland law, and each situation must be viewed in light of its own peculiar circumstances.” Ocean City, 274 Md. at 19, 332 A.2d at 641 (Eldridge, J., dissenting). Judge Eldridge urged that “a landowner’s intent to dedicate his land to public use may be presumed from acts or conduct which estop him from denying the public’s right.”

(Footnote 10 continued) prescriptive rights in the public, that the public cannot obtain prescriptive rights for recreation on beaches. Law of Easements § 5:27 at 94; see e.g., State ex reI. Haman v. Fox, 594 P.2d 1093, 1098-99 (Idaho 1979) (referencing lost grant theory and holding that the public could not obtain prescriptive easement on lakefront beach property absent statutory authority); Ivons-Nispel, Inc. v. Lowe, 200 N.E.2d 282, 283 (Mass. 1964) (“We are of [the] opinion that ‘persons of the local community’ and the ‘general public’ are too broad a group to acquire by prescription an easement to use private beaches for bathing and for recreational purposes.”). Maryland, however, following the trend of modem cases, has recognized that the public may acquire such prescriptive rights. Law of Easements § 5 :27 at 94-95 (“Still, some modem courts have either found prescriptive public rights to use beaches or are willing to recognize the possibility that such rights could be established.” (citing inter alia, Ocean City, 274 Md. 1,332 A.2d 630)).
22
Ocean City, 274 Md. at 16, 332 A.2d at 639 (Eldridge, J., dissenting) (citing McCormich v. Baltimore, 45 Md. 512, 523 (1877)).

Further, he expounded:
Because the Atlantic Ocean beach is a unique geographic
phenomenon, because it is such a limited resource of the State
of Maryland, and because the public involvement in it has been
of a different character than that associated with other types of
land, the result I would reach in this case is not at all
inconsistent with prior Maryland law involving the issue of
implied dedication of the shore.

Ocean City, 274 Md. at 22,332 A.2d at 642 (Eldridge, J., dissenting) (emphasis added).

Judge Eldridge then discussed Thomas v. Ford, noting his agreement with the Thomas Court’s holding that “merely permitting the public to use the shore for boating, swimming or fishing should not in itself give rise to an easement.” Ocean City, 274 Md. at 22-23,332 A.2d at 643 (Eldridge, J., dissenting). He then continued to compare inland beaches and ocean beaches saying:
However, as pointed out above, the ocean beach presents an
entirely different matter. While Maryland’s inland tidal
shoreline measures over three thousand miles, its ocean
shoreline is only thirty-five miles long. To recapitulate, from
the time of the Charter of Maryland on, the ocean beach has had
a unique status. Not only have the landowners acquiesced in the
public’s use of the beach, but they have accepted government
services, protections and regulations with respect to the beach
which are of a totally different character than the government
services, protections and regulations provided for other types of
privately owned land. Plats have consistently shown an area to
be dedicated as “beach.” The public and property owners of the
State well understand that use of other types of land for
recreational activities does not effect a dedication to the public.
This is in stark contrast to the common understanding that the
23
beach at Ocean City is a public beach.

Ocean City, 274 Md. at 23-24, 332 A.2d at 643 (Eldridge, J., dissenting) (emphasis added).

Based on the factors emphasized, it is evident that Judge Eldridge was comparing ocean and inland beaches solely in the context of implied dedication, rather than prescription. Indeed, he concluded by stating that the facts presented “compel[ ed] the conclusion that the dry sand beach at the front of respondent landowner’s lots [was] dedicated to recreational use by the general public.” Ocean City, 274 Md. at 24, 332 A.2d at 643 (Eldridge, J., dissenting) (emphasis added). It is clear, therefore, that Judge Eldridge’s dissent makes no reference to, and does not bolster Appellants’ argument that Thomas v. Ford proscribes prescriptive rights along inland shores.

Appellants, in the instant case, assert that the trial court relied almost exclusively on Ocean City, while “giving Thomas short shrift.” It is clear to us, however, that the trial judge thoughtfully considered Thomas v. Ford and dismissed its relevance based both on factual distinctions with the instant case and in light of Ocean City, stating:
[The Clickners] argue that Thomas is controlling in this matter.
This Court does not agree as the facts in Thomas as
distinguishable. Thomas addressed the public right to store
wood and other articles-in-shipment on the shoreline of
another’s property for an indefinite period of time, which
equates to an exclusive appropriation of actual use by the first
occupier. Here, the alleged public use is for swimming,
sunbathing, walking, picnicking, kayaking, boating, and
anchorage. These are more transient uses, different from uses
that equate to the indefinite appropriation of soil by the first
occupier. Additionally, Department of Natural Resources [v.
Ocean City], which the Court of Appeals decided in 1974, held
that the public did not have a prescriptive easement to use the
24
shoreline because the plaintiffs failed to show that the alleged
use existed for longer than a twenty-year period. See Dep ‘t of
Nat. Res. v. Ocean City, 271 Md. 1 (1975). If Thomas barred
the courts from recognizing any public right to the use of a
shoreline on a navigable waterway via prescriptive easement,
there would have been no need to assess the merits of the
prescriptive easement claim.

We agree with this assessment. In sum, rather than being a bar to prescriptive easements along the shores of inland waterways, Thomas reflects this Court’s jurisprudence that, as a general rule, permissive use of another’s land cannot ripen into an adverse right. Kirby v. Hook, 347 Md. 380, 393, 701 A.2d 397, 404 (1997); Cox v. Forrest, 60 Md. 74, 79-80 (1883). Thomas also suggests a rationale underlying the presumption of permissive use that, as discussed infra, often attaches to the use ofland that is unimproved or “in a general state of nature.” Wilson v. Waters, 192 Md. 221, 228, 64 A.2d 135, 138 (1949).

Even assuming, arguendo, that Thomas could be construed to have raised a policy bar to public prescriptive easements along the shoreline, that precedent was modified by this Court’s decision in Department of Natural Resources v. Ocean City. We see no meaningful distinction between ocean and inland beaches sufficient to allow public prescriptive rights to accrue on one type of beach and not the other. To the contrary, just as the ownership of all navigable waterways and their foreshores is governed by the public trust doctrine, the dry sand portions of the attached beaches should be subjectto the same principles of prescription without distinction as to the character of the water hitting the sand.
III.
25
Because we have held, supra, that a prescriptive easement may be acquired by the public along inland shores, we must now analyze whether the elements have been satisfied in the instant case. “In order to establish an easement by prescription a person must make an adverse, exclusive, and uninterrupted use of another’s real property for twenty years.” Banks v. Pusey, 393 Md. 688, 699, 904 A.2d 448,454 (2006); accord, Kirby v. Hook, 347 Md. 380, 392, 701 A.2d 397, 403 (1997); Shuggars v. Brake, 248 Md. 38,45,234 A.2d 752, 757 (1967); Condry v. Laurie, 184 Md. 317, 321,41 A.2d 66,68 (1945); Cox v. Forrest, 60 Md. 74, 79 (1883).

The elements necessary to establish a prescriptive easement in the public are generally the same, however, as explained infra, the element of exclusivity necessarily functions differently in the context of public use. See Mt. Sinai Nursing Home, Inc. v. Pleasant Manor Corp., 254 Md. 1, 5-6, 253 A.2d 915, 917-18 (1969)(noting plaintiffs’ argument that “continuous adverse, hostile travel over private land by the public for more than twenty years brings into being a public easement,” and responding, “although the law [plaintiffs] … cite would support their right to prevail, they lack the facts to do so.”); Ocean City, 274 Md. at 9,332 A.2d at 635 (noting that “[a]s was the case in Mt. Sinai . .. the law would support the [public] if the necessary facts were available”); Garrett v. Gray, 258 Md. 363,375-78,266 A.2d 21,26-28 (1970)(analyzing adversity as an element in a claim for a public easement); Easter v. Overlea Land Co., 129 Md. 627, 632, 99 A. 893, 896 (1917) (“The permissive user of the road by [defendant’s] neighbors did not make it a public road, for user by license or permission is not adverse, and in order to establish a public way by prescription the user must be adverse.”); Washington Land Co. v. Potomac Ridge Dev. Corp.,

26

137 Md. App. 33, 55-59, 767 A.2d891, 903-05 (2001)(analyzingthe elements of exclusivity and adversity in considering a claimed public utility easement). In asserting prescriptive rights, “[t]he burden of proof is on the claimant of the use to show that it has had the character and is of the duration required by the law.” Dalton v. Real Estate & Improvement Co. of Baltimore City, 201 Md. 34, 41, 92 A.2d 585, 588 (1952) (citations omitted).

Continuous public use of the beach on Dobbins Island for the statutory period is uncontested in the instant case, however, Appellants contend that the trial judge erred in determining that the use was both adverse and exclusive.11 We

Footnote 11 As to exclusivity, this Court made clear in Cox v. Forrest that, in the context of prescriptive easements:By exclusive, the law does not mean that the right of way must be used by one person only, because two or more persons may be entitled to the use of the same way, but simply that the right should not depend for its enjoyment upon a similar right in others, and that the party claiming it exercises it under some claim existing in his favor, independent of all others. It must be exclusive as against the right of the community at large. Cox, 60 Md. at 80 (emphasis in original); accord Wilson, 192 Md. at 226,64 A.2d at l37; Shuggars v. Brake, 248 Md. 38,45,234 A.2d 752, 757 (1967) (“Even though a claimant may not have been the only user, it is sufficient if he used the way under a claim of right independently of others.” (citation omitted». Therefore, a claimant’s use of the property may exist along with the owner’s and does not negate a prescriptive easement as long as it is not subordinate to or dependent upon the owner’s use. See Lichtenberg v. Sachs, 200 Md. 145, 154-55,88 A.2d 450,454 (1952) (agreeing with the trial court’s assessment that plaintiffs use of a road was exclusive even though the defendant owners also used part of the road).

An individual’s use of property in conjunction with the general public, however, cannot support a private prescriptive right, unless the individual proves that his or her use was under an individual claim of right. Gray v. Shell Realty Corp., 219 Md. 531, 534, 150 A.2d 255, 256 (1959) (“[Plaintiffs’] claim is that it was enjoyed in common with others, and this is not enough to establish their private right thereto, appurtenant to their land.” (emphasis added)).
(continued … )
27
“( … continued)  In the context of a public easement, however, the standard of exclusivity is necessarily different. See Day v. Allender, 22 Md. 511, 529 (1865) (“If the proof is of a use common to all others as well as to the party claiming the way, it does not establish a private way … the facts relied on would have justified the finding of a public way … by prescription … but not a grant to the appellant individually.” (emphasis added) (internal citations omitted». In the instant case, in considering the element of exclusivity, the trial judge stated:

Generally, to establish a personal easement by prescription the
use must have been exclusive …. However, the standard with
respect to a public easement requires that “all persons must have
an equal right to the use and that it must be in common, upon the
same tenns, however few the number who avail themselves to
it.” Garret[t] v. Gray, 258 Md. 363, 378 (1970). Here, there is
ample evidence showing the common use of the beach by the
public at large.

We agree with the trial judge’s analysis. This Court in Garrett v. Gray, 258 Md. 363,266 A.2d 21 (1970) considered the alleged public acquisition of a road, and although we cited case law establishing the “familiar principle” that establishing prescriptive rights requires proof of “an adverse, exclusive and uninterrupted use” for the statutory period, we did not analyze the exclusivity requirement under the facts. Garrett, 258 Md. at 375-78,266 A.2d at 26-28. We noted only that:

Public use requires that all persons must have an equal right to
the use and that it must be in common, upon the same terms,
however few the number who avail themselves of it. The law is
well settled that a public road is a public highway regardless of
the number of people who use it if everyone who desires may
lawfully use it, as it is the right of public travel and not the
exercise of the right which constitutes a road a public highway.

Garrett, 258 Md. at 378, 266 A.2d at 28 (quotation and internal citation omitted).

Notwithstanding, we find this statement to be instructive on the subject, as public rights to a highway or a beach, by defmition, are enjoyed by the public at large. Therefore, the exclusivity requirement discussed by this Court in Cox v. Forrest subsequent case law refer to the personal acquisition of easements, and the requirement must be interpreted differently in the context of public easements. See Easter v. Overlea Land Co., 129 Md. 627, 632, 99 A. 893, 896 (1917) (“The user relied on to establish the way must also be a user by the public
(continued … )

28

agree with Appellants that the use was not adverse, and we reverse on that basis. This Court explained adverse use in the context of prescriptive easements in the early case of Cox v. Forrest, 60 Md. 74 (1883), stating:

By adverse is meant a user, without license or
permission, for an adverse right of an easement cannot grow out
of a mere permissive enjoyment, the real point of distinction
being between a permissive or tolerated user, and one which is
claimed as a matter of right. Where one, however, has used a
right of way for twenty years unexplained, it is but fair to
presume the user is under a claim of right, unless it appears to
have been by permission. In other words, the use of a way over
the lands of another whenever one sees fit, and without asking
leave, is an adverse use, and the burden is upon the owner of the
land, to show that the use of the way was by license or contract
inconsistent with a claim of right.

Cox, 60 Md. at 79-80 (emphasis in original) (citations omitted); Banks v. Pusey, 393 Md. 688,701-02 & n.7, 904A.2d448, 455-56 & n.7 (2006) (“All of Maryland’s cases concerning prescriptive easements … appear to be the progeny of Cox …. ” (internal citations omitted.))

Appellants argue that the public use of the beach on Dobbins Island was permissive and therefore the conclusion that a prescriptive easement existed in this case was in error, as an adverse use cannot develop from a “mere permissive enjoyment.” A use is adverse if it occurs without license or permission. Kirby, 347 Md at 392, 701

Footnote 11 (continued)
generally, that is by all who have occasion to use the road.”).  The use need not be exclusive to the individual, but exclusive to the public as a whole in the sense that the public used the property in common under a claim of right, without seeking permission from the owner or otherwise subordinating its use to the owner’s will. Indeed, in the instant case, each witness testified that they were claiming a right to use the beach for the general public, not solely on behalf of the Association or themselves as individuals.
29
A.2d at 403; Condry, 184 Md. at 321,41 A.2d at 68. “As a genera1 ru1e, permissive use can never ripen into a prescriptive easement.” Kirby, 347 Md. at 393,701 A.2d at 404 (Citation omitted). As explained in Cox, when a person has used a right of way openly, continuously, and without explanation for twenty years, it is presumed that the use has been adverse under a claim of right. Cox, 60 Md. at 79-80; Banks, 393 Md. at 698-99, 904 A.2d at 454; Condry, 184 Md. at 321, 41 A.2d at 68. The burden then shifts to the landowner to prove that the use was, in fact, permissive. Cox, 60 Md. at 80. There are circumstances, however, where the
presumption is reversed, and the burden falls on the claimant to demonstrate that the use was under a claim of right. See Banks, 393 Md. at 712-13, 904 A.2d at 463 (“[W]here an individual resides on his parents’ property from the time he or she is a minor, his or her use of the property shall be deemed permissive absent any amnnative evidence of a change in circumstances to adverse use.”).

In the instant case, as explained infra, the public’s use of the beach on Dobbins Island was presumptively permissive and the trial judge should properly have placed the burden on the Association to demonstrate that such use was, in fact, adverse.

When an easement is claimed on land that is unimproved or in a general state of nature, there is a legal presumption that the use is by permission ofthe owner. This Court first referenced the so-called “woodlands exception” to the general presumption of adverse use in Day v. Allender, 22 Md. 511 (1865). Although the Court’s focus was on the public dedication of a roadway, we also discussed prescriptive rights and noted a case in which the jury was instructed that ”the mere use of a road over unenclosed woodland could not confer
30
a right of way, as a neighborhood road or private path, unless the use was shown to be adverse …. ” Day, 22 Md. at 526 (emphasis in original) (citation omitted). In Day we also stated that:
As the presumption of a right of way arises from the exercise of
a privilege adverse to the right of property [ownership] … a
distinction must therefore be observed between a claim of a way
through enclosed and cultivated land, and of a way over
unenclosed land. In the former case, the mere use is an invasion
of property and a trespass; and acquiescence or submission to
the exercise of a privilege under circumstances which make it
actionable, may justify the inference of a legal right in the
person who exercises the privilege.
Day, 22 Md. at 526-27 (quotation omitted).

This Court further explicated the doctrine in Wilson v. Waters, 192 Md. 221, 64 A.2d 135 (1949). We said:

It is true that some courts have ruled that the fact that land, over
which a right of way is claimed, was “unenclosed” raises a
presumption that the use was permissive. By that ruling,
however, the courts have occasionally been misled to establish
easements over vacant lots in urban districts, although the lots
had been cleared and cared for. Thus it seems that the more
appropriate term in such cases is ”unimproved.”
Wilson, 192 Md. at 228, 64 A.2d at 138 (citation omitted).

We explained in Wilson that because the lot in question was only 150 feet deep that the case was “not exactly like those
cases in which the land over which the right of way is claimed is wild land, woodland, or other land in a general state of nature.” Wilson, 192 Md. at 228, 64 A.2d at 138.  We recognized, however, that “[i]n such cases it may be presumed that use of the land is permissive, because it is the custom of neighboring owners to travel over such land for

31

pleasure or convenience, and the owners usually make no objection to their doing so.”

Wilson, 192 Md. at 228,64 A.2d at 138; see Feldstein v. Segall, 198 Md. 285,295,81 A.2d 610, 615 (1951) (referencing the presumption of permissive use for unenclosed or unimproved land set out in Wilson v. Waters).  In Leekley v. Dewing, 217 Md. 54, 141 A.2d 696 (1958), we recognized the defendant’s argument that in accordance with Wilson and Feldstein, “no presumption that the use was adverse arises when the way is over wild or unoccupied land.” Leekley, 217 Md. at 59, 141 A.2d at 698.

We explained:

This has been said to be because it was the custom of neighbors
to travel over such land for pleasure or convenience and the
owners usually made no objection to their doing so, or because
the use in wild, unoccupied territory would not be apt to be
brought to the actual notice of the owner so that he could object.
Id.

Ultimately, we held, under the facts presented, that the road involved did not fall into the category of “wild or unoccupied territory,” as it “ran from a main public road and was clearly and manifestly a regularly traveled way that ran for much of the time to a clearing on which stood an inhabited dwelling which was visible from the main road.” Leekley, 217 Md. at 59,
141 A.2d at 698-99.

In Forrester v. Kiler, 98 Md. App. 481, 633 A.2d 913 (1993), the intermediate appellate court applied the woodlands exception to the use of a right of way through an area it described as “wooded, unenclosed land,” that connected two parcels of property.   Forrester, 98 Md. App. at 487, 633 A.2d at 916; see Turner v. Bouchard_ Md. App. __ (2011) (No. 1573, September Term, 2010) (filed, Dec. 2, 2011) (noting that “[t]he servient estate in

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Forrester was nearly a quarter mile from the nearest county road and consisted of eight acres of … dense forest in a general state of nature …. “). In its analysis, the Forrester court aptly noted that:

Many of our sister states have recognized that an exception to the
presumption exists when [the] property in controversy consists
of unenclosed and unimproved wild lands or woodlands. Thus,
when unenclosed and unimproved wildlands or woodlands are
involved., the presumption is that the use was permissive, and the
burden of proving that the use was adverse or under a claim of
right is upon the one asserting these rights.

Forrester, 98 Md. App. at 485, 633 A.2d at 915 (citations omitted); see 4 RichardR. Powell, Powell on Real Property, § 34.10[2][c] at 97-99 & n.23 (Michael Allan Wolf ed., 2011) (citing numerous cases from other jurisdictions that applied a presumption of permissive use to land which was “open, unenclosed, and unimproved”).

The court explained the rationale behind the presumption, stating:

[I]n the case of unenclosed woodlands, permission is presumed
because, otherwise, [a]n owner could not allow his neighbor to
pass and repass over a trail, upon his open, unenclosed land
without danger of having an adverse title successfully set against
him. Moreover, [a ] landowner who quietly acquiesces in the use
of a path, or road, across his uncultivated land, resulting in no
injury to him, but in great convenience to his neighbor, ought not
to have thereby lost his rights.

Forrester, 98 Md. App. at 485, 633 A.2d at 915 (internal quotations omitted).

In reaching its holding, the intermediate appellate court noted that the repeated reference to the so-called woodlands exception by the Court of Appeals, signaled its relevance as this Court “would not have discussed the exception so thoroughly if it were not the law.” Forrester, 98 Md. at 485-33 87, 633 A.2d at 915-16 (noting that” Wilson and Leekley both recognized that, in determining whether a prescriptive easement exists, pennission will be presumed in the case of wooded, unenclosed land.”).

In the instant case, we are presented with the question of whether the beach on Dobbins Island is property subject to the woodlands exception.  Under this exception, the long history of public use of the beach would be considered to have been presumptively permissive under the law. Particularly relevant to our inquiry is this Court’s decision in Department of Natural Resources v. Cropper, 274 Md. 25, 332 A.2d 644 (1975), a companion case to Department of Natural Resources v. Ocean City, 274 Md. 1, 332 A.2d 630.

Like its companion case, Department of Natural Resources v. Cropper also involved a claimed public prescriptive right to the dry sand portion of an Ocean City beach. In that case, we affirmed the trial court’s judgment that the evidence failed to demonstrate “a continuous and uninterrupted adverse use by the general public for a period of20 years,” but that it merely established “a miscellaneous and promiscuous use of land in a general state of nature.” Dep ‘t of Natural Res. v. Cropper, 274 Md. at 28, 332 A.2d at 646 (emphasis added) (noting that the trial court cited Feldstein v. Segall, Wilson v. Waters, and Thomas v. Ford, each of which we discussed supra, in the instant case, to support its decision)).

We consider the Cropper case to be instructive in our determination that the beach on Dobbins Island is properly characterized as being “in a general state of nature.” See Cropper, 274 Md. at 28, 332 A.2d at 646; Wilson, 192 Md. at 228, 64 A.2d at 138. We do not hold that this is the applicable characterization of every beach, but that the consideration of other
34
factors, such as the nature of the surrounding area, should enter into the determination.  See Leekley, 217 Md. at 59, 141 A.2d at 698 (“Some courts have held that the scope of this doctrine does not extend to unenclosed woodland[ s 1 forming part of a plantation or to a road passing near a barn or a residence.” (citation omitted)). It is undisputed that the beach at issue is attached to an uninhabited, uncultivated, and undeveloped island.  Indeed, the witnesses described the island they frequented with adjectives such as “overgrown,” “uninhabited,” and ”unimproved.”

Appellees argue that the woodlands exception should not apply because it is only relevant to interior rights of way that are not easily observable. By contrast, they contend that because the public’s beach activities on Dobbins Island are locally well-known and unhldden, the general presumption of adversity should control. This argument, however, ignores the development of case law in this Court which has focused not only on whether the land use was shielded from view, but whether the land itself was ”unimproved,” or “in a general state of nature.” Cropper, 274 Md. at 28,332 A.2d at 646; Wilson, 192 Md. at 228,64 A.2d at 138.

The visibility of the use is one rationale which guided the common-law development of the woodlands exception. Leekley, 217 Md. at 59,141 A.2d at 698. Anotherrationale, of particular importance in the instant case, is that owners of unimproved lands ordinarily suffer no deprivation of their rights of use and enjoyment by allowing others access to their property. See Leekley, 217 Md. at 59,141 A.2d at 698 (noting that the exception arose “because it was the custom of neighbors to travel over such land for pleasure or convenience and the owners usually made no objection to their doing so …. “); Forrester, 98 Md. App. at 485, 633 A.2d
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at 915 (“[A] landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor, ought not to have thereby lost his rights.” (quotation omitted)); Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984) (“[The exception] is predicated on the notion that [recreational] use by the general public is consistent with, and in no way diminishes, the rights of the owner in his land”); Spiegle v. Beach Haven, 281 A.2d 377, 382 (N.J. Super. Ct. App. Div. 1971) (holding that use of unimproved land in a general state of nature “is presumably pennissive if there has been no actual deprivation of any beneficial use to the owner”); State ex reI. Shorett v. Blue Ridge Club, 156 P.2d 667,671 (Wash. 1945) (noting that the public use of wild, uncultivated land is presumed to be permissive because “it [does] not in any way interfere with the owner’s use,” and therefore ”the owner has no reason for excluding the public from the land”); Daniel A. Degnan, Public Rights in Ocean Beaches: A Theory of Prescription, 24 Syracuse L. Rev. 935, 962 (1973) (“Owners of open woodland[s] … should not be expected to treat most uses as adverse and it would be unreasonable to require the owner to fence his land or guard against trespassers …. [Also] it would be unfortunate if owners were forced to exclude the public. In the United States with its great land areas … courts affInn that harmless trespasses should not be discouraged and that it would be unfair to penalize the generous owner.” (footnotes omitted)).

As suggested by Thomas v. Ford and subsequent case law, the public’s recreational use of the dry sand portion of the beach on Dobbins Island is presumed to have been a product of the permissive indulgence ofits owners. See Thomas, 63 Md. at 353-54. To hold otherwise
36
would galvanize owners into fencing or otherwise obstructing their beaches in order to avoid the assertion of public prescriptive rights, feasibly creating a barricade across Maryland’s shoreline. In the words of the Thomas Court, “such [a] consequence surely ought not to be desired by anyone.,,12 Thomas, 63 Md. at 355.

This conclusion is consistent with the pronouncements in other states regarding the character of the beaches at issue in those cases. Town of Manchester v. Augusta Country Club, 477 A.2d 1124, 1130 (Me. 1984)( applying a rebuttable presumption of permissive use to a lakefront beach, as ”wild and uncultivated land”); Spiegle v. Beach Haven, 281 A.2d 377, 382 (N.J. Super. Ct. App. Div. 1971) (noting that the ocean front beach at issue was land “in

Footnote 12 By way of illustration, we decline follow the direction of the Supreme Court of California in Gion-Deitz v. City of Santa Cruz, 465 P .2d 50, 57 (1970), where the Court rejected the owner’s argument that because his beach was unimproved land, that the public’s use of it was presumptively permissive. Instead, the court suggested that it would presume adverse use by the public if the use continued for a five-year prescriptive period, resulting in what that Court deemed “dedication by adverse use.” Gion-Deitz, 465 P.2d at 56-57 (“For a fee owner to negate a finding of intent to dedicate based on uninterrupted public use … he must either affirmatively prove that he has granted the public a license to use his property or demonstrate that he has made a bona fide attempt to prevent public use.”). While legislative action quickly limited its holding, see Cal. Civ. Code § 1009, Gion-Deitz spurred land owners throughout California to take affirmative steps to close off their beaches. See County of Orange v. Chandler-Sherman Corp., 126 Cal. Rptr. 765, 767 (Cal. Ct. App. 1976) (“Reaction to Gion-Deitz was prompt. In addition to soaring sales of chain link fences, as owners of shoreline property frantically attempted to bar the public from the use of their property, the case generated a spate oflaw review comment which was generally critical.” (footnote omitted)); Michael A. O’Flaherty, Note, This Land Is My Land: The Doctrine of Implied Dedication and Its Application to California Beaches, 44 S. Cal. L. Rev. 1092, 1096 (1971) (“After Gion-Deitz, the absentee owners of some of the most beautiful parcels put up miles of seven-foot-high fence topped with three strands of barbed wire.”).
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a general state of nature and left unimproved by its owner”); State ex reI. Shorett v. Blue Ridge Club, 156 P.2d 667,670-71 (Wash. 1945) (holding that a beach bordering on Puget Sound, used extensively for public recreation, was “completely wild, open, vacant, unoccupied, and in its natural state” and therefore public use was “presumed to have originated by permission until some act … of the public or public official asserted the use to be exercised as a matter of right rather than privilege”). As noted, supra, “[a]s a general rule, permissive use can never ripen into a prescriptive easement.” Kirby, 347 Md. at 393,701 A.2d at 404 (citation omitted); Jurgensen v. New Phoenix Atl. Condo. Council of Unit Owners, 380 Md. 106, 123, 843 A.2d 865, 874 (2004).

As such, use that is originally permissive “is presumed to continue, and there must be affirmative evidence of [a] change to adverse use.” Feldstein, 198 Md. at 295, 81 A.2d at 615; accord Banks, 393 Md. at 709,904 A.2d at 460 (noting that “[r]espondent’s use of the farm lane was permissive when he was a minor and there was no affmnative evidence that it ever ceased to be permissive …. “). The case of Hungerford v. Hungerford, 234 Md. 338, 199 A.2d 209 (1964), although addressing adversity in the context of adverse possession, has been considered instructive on the requirement of adverse use in prescriptive easement cases.

See Banks, 393 Md. at 709-10, 904 A.2d at 461. We said in Hungerford:
It has long been held by this Court that where the original entry
and subsequent occupancy of land was under a contract, or with
the consent or permission ofthe owner, the possession would not
be hostile or adverse and could not evolve into a subsisting title
on which recovery could be had, unless the record owner had
notice that the continuing possession was under a claim of right,
since it is the intent with which possession is continued that gives
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it its character as adversary.

Hungerford, 234 Md. at 341,199 A.2d at211 (citing, inter alia, Feldstein v. Segall, 198 Md. 285,81 A.2d 610 (1951)).

Because the public’s use of the privately owned, dry sand portion of the beach on Dobbins Island was presumptively permissive, Appellees had the burden to show that the use was, in fact, adverse from the outset, or that its character became adverse at a point in time sufficient to meet the twenty-year prescriptive requirement. See State ex. rei Shorett, 156 P.2d at 670-71 (holding that public use of a beach was “presumed to have originated by permission and to have continued as a license until some act … of the public or public official asserted the use to be exercised as a matter of right rather than privilege”); Houghton v. Johnson, 887 N.E.2d 1073, 1085 (Mass. App. Ct. 2008) (holding that various acts on the beachfront were not examples from which it could be presumed that the owner knew that the actors were using the property under a claim of right). It is clear under the facts of this case that Appellees failed to overcome the presumption of permission, as there was insufficient affirmative evidence to demonstrate that use of the beach was ever claimed adversely as a matter of right. Banks, 393 Md. at 709, 904 A.2d at 460; Hungerford, 234 Md. at 341, 199 A.2d at 211; Feldstein, 198 Md. at 295,81 A.2d at 615.

Therefore, the public’s historic use of the beach on Dobbins Island was under a license, now properly subject to revocation by the Clickners. See Mil/son v. Laughlin, 217 Md. 576, 583, 142 A.2d 810, 813 (1958) (noting that if defendant had a mere license to use the property at issue, it was revocable at the pleasure of the grantor); Oliverv. Hook, 47 Md. 301, 311 (1877) (“[A] user [that] has been by sufferance

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and permission only … [is] but a license, revocable at pleasure, and … confer[ s] no right in the way. It simply relievers] the [party] from being a trespasser …. ” (citation omitted»; Goss v. C.AN Wildlife Trust, Inc., 157 Md. App. 447, 457, 852 A.2d 996, 1002 (2004) (stating that “a license is merely a personal privilege to do some particular act … on [another’s] land without possessing any estate or interest therein, while an easement is an interest in land that grants the right to use that land for a specific purpose” (internal quotations omitted»; State ex rei. Shorettv. Blue Ridge Club, 156 P.2d 667,671 (Wash. 1945) (holding that because public use of a beach was permissive, “[t]he public [was] a licensee and as such could be excluded from the whole area at any time by the title owner”).

In conclusion, based on the record before us, we determine that it was error for the trial judge to apply the general presumption of adversity to the public’s use of the beach on Dobbins Island, as the beach was unimproved property in a general state of nature. Therefore, the proper presumption to be applied was that public use was by permission of the owners. Because we hold that there was no public prescriptive easement established, as a matter of law, the trial court’s judgment and its order mandating the removal of portions of Appellants’ fence are reversed.
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JUDGMENT OF THE CIRCUIT
COURT FOR ANNE ARUNDEL
COUNTY REVERSED; CASE
REMANED TO THAT COURT WITH
DIRECTION TO ENTER JUDGMENT
IN FAVOR OF APPELLANTS,
CONSISTENT WITH THIS OPINION.
APPELLEES TO PAY THE COSTS.
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Top 5 Issues When Purchasing Waterfront

by Dirk Schwenk – dschwenk@waterfrontlaw.com and Mike Piasecki III – mike@marylandwaterfrontproperty.com

There is nothing that can compare to the peace, tranquility and sense of well-being that accompanies ownership of a piece of waterfront property. That feeling should not be disturbed by legal problems that can be prevented or at least managed. In waterfront property there are a few issues that arise with such regularity that they should be considered prior to any purchase. Mike Piasecki, III, Associate Broker, Prudential Carruthers Realtors in Elkton and Ocean Pines (www.marylandwaterfrontproperty.com) and J. Dirk Schwenk, attorney at Baylaw, LLC (www.waterfrontlaw.com) got together to come up with a “top five” list of things that should be thought through. These issues are focused on Maryland waterfront property, but they apply everywhere where piers, views and access to the water are of top concern. Here they are:

1. Community Waterfront versus Private Waterfront.

Many waterfront, waterview and water access properties are located in developments where the original developer subdivided a large tract and reserved the waterfront for the use of all of the houses in the neighborhood. Interior houses may be listed as “water access” properties and have affirmative rights to community beaches, boat ramps and other facilities. In many of these developments, there is also a strip of land that lies along the water and surrounds the entire community and was intended to allow for members of the community to walk and have access to the entire waterfront. The ownership structure of these walks can vary widely, but if they are present, there are special concerns for the homes nearest the water. Those homes may have the right to build and maintain a pier — but the pier may actually be owned by the community and be available for all of the members to use. Or there may be no right to a pier at all. The possible variations are too numerous to list, but an owner purchasing “waterfront” in such a community should be sure to understand exactly what the obligations and benefits are in the particular community.

2. Waterfront versus Waterview.

A true “waterfront” property is one that has riparian rights associated with it. In Maryland and most of the states on the East Coast of the United States, the owner of a property that has riparian rights has the right to apply to construct a pier or other waterfront improvement, has the first right to apply for permits for waterfowl hunting, and has the right to prevent others from impeding access to the water or the view of the water. In contrast, a “waterview” property is generally one that is close to the water, but has land owned by someone else between the land and the shoreline. A waterview may have a limited (or no) right to build a pier and may not have any guarantee that another owner will not build a fence, structure or put in plantings that obstruct the waterview. Careful consideration should be paid to what might be placed between the waterview property and the water — if it is community land on which nothing can be built that is very different than private land on which someone in the future may build a multi-story home.

3. Pier Locations, Boundary Lines and Permits.

Having (or keeping) a pier is a first priority consideration for many waterfront lots. It is not relaxing and fun to have a dispute with a neighbor about whether a pier is on his property, your property, on the line, should be shared, or whether a pier that you were counting on using is even legal in the first place. If you are considering a home where there is currently a pier or where you would like to put in a pier, its continued viability should be examined. First, consult with planning and zoning — was the existing pier built with a permit (or grandfathered?), or if you would like to put in a new pier, can an adequate pier be placed on the site given environmental limitations and the location of neighboring piers? Second, is there any dispute with a neighbor about the location of any of the piers (does a pier encroach the property line extended into the water?) or is there an expectation that a pier will be shared? If you are purchasing a property that is one of several that were previously owned by a single family, it is very common that multiple homes shared a single pier. This sort of agreement should be spelled out — or it can quickly lead to a disagreement.

4. The Obligation and Ability to Maintain the Waterfront.

For any property that faces significant wave action or is on a bluff, there will be erosion concerns. For all waterfront properties, there are significant legal restrictions on the owners’ ability to clear growth and trees, to fill eroded areas, and to construct shoreline protection. The cost and ability to obtain permits for waterfront repairs and maintenance should be considered. For example, in many waterfront communities, there are existing bulkheads or revetments. Depending on the particular community, the cost to maintain these structures may lie with the nearest individual landowner or with the community. In Ocean Pines, Maryland, for example, all properties in the community must pay an annual HOA assessment toward the upkeep of common area facilities, but in the instance of waterfront properties, the assessment may also cover the cost of maintenance to the property’s bulkhead. We say “MAY” because this is true in some sections of Ocean Pines, whereas in other sections, waterfront property owners, although they still pay an annual assessment that is higher than a land locked property, have the cost and burden of bulkhead maintenance placed squarely upon the homeowner. Sounds confusing doesn’t it? This example is exactly why you should consult a waterfront law specialist, and/or waterfront specialist real estate broker before entering into a contract to sell or purchase waterfront property anywhere, but especially in the state of Maryland. Another instance? In Anne Arundel County, Maryland, there have been news reports of criminal charges being filed because a waterfront property owner hired a landscaper to clear trees and bushes along the waterfront. Just like piers, it is wise to consult with knowledgeable professionals and zoning departments before becoming set on plans for improvements.

5. Choose the right professionals.

Purchasing and owning waterfront is meant to improve ones quality of life, and usually it does. There will always be an unfortunate few that end up purchasing a large, unexpected and expensive dispute, and their quality of life is most often not improved. Without question, the best means of avoiding unexpected difficulties is to associate with professionals with experience and interest in waterfront and riparian properties. A good realtor will know the particular area where a property is located, or will know the questions (like the ones above) that must be analyzed in order to know if a property is right for you. A good lawyer will know whether a deed is to transfer all of the rights you expect, (or maybe just some), will be able to spot misunderstandings in pier sharing agreements, and will know how to resolve a dispute that does arise. We hope these pointers help to make your next waterfront property purchase or sale, an enjoyable one!

Dirk Schwenk – dschwenk@waterfrontlaw.com
and Mike Piasecki III – mike@marylandwaterfrontproperty.com