In the Matter of Gendell

In the Matter of Christopher Gendell, et al., Case No. 1156, Sept. Term 2023, Opinion
filed on August 1, 2024, by Berger, J.

ZONING AND PLANNING – VARIANCES AND EXCEPTIONS – REASONABLE
ACCOMODATIONS
When analyzing whether a requested variance qualifies as a reasonable accommodation
under federal law, administrative agencies and reviewing courts must determine whether
the requested accommodation is necessary to allow the disabled party to use and enjoy the
property to an equal extent as non-disabled individuals.

ZONING AND PLANNING – VARIANCES AND EXCEPTIONS – REASONABLE
ACCOMODATIONS
Evidence that a requested accommodation will improve the disabled parties’ overall quality
of life and, therefore, improve their ability to use and enjoy their property is not sufficient
to establish that the requested variance qualifies as a reasonable accommodation under
federal law.

ZONING AND PLANNING – VARIANCES AND EXCEPTIONS – CHESAPEAKE
BAY CRITICAL AREA PROGRAM
Applicants seeking a variance from Anne Arundel County zoning ordinances impacting
the Chesapeake Bay Critical Area must meet all requirements set forth in Section 3-1-207
of the Anne Arundel County Code and therefore, bear a heavy burden to establish that their
variance request must be granted.
Circuit Court for Anne Arundel County
Case No. C-02-CV-22-001826

REPORTED

IN THE APPELLATE COURT

OF MARYLAND

No. 1156

September Term, 2023
______________________________________

IN THE MATTER OF CHRISTOPHER
GENDELL, ET AL.
______________________________________

Berger,
Zic,
Eyler, James R.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Berger, J.
______________________________________

Filed: August 1, 2024

Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.

2024.08.01
15:03:43
-04'00'

Gregory Hilton, Clerk
This appeal arises from a decision of the Board of Appeals of Anne Arundel County

(“the Board”) denying a request for a variance filed by appellants Christopher Gendell and

Andi Gendell (“Appellants”). Appellants own property in Anne Arundel County within

the Chesapeake Bay Critical Area (“Critical Area”). Appellants requested a variance from

provisions of the Anne Arundel County Code (“County Code”) restricting development

within the Critical Area in order to install an in-ground, therapeutic lap pool on their

property. The pool would be used by Appellants’ two disabled sons as a therapeutic outlet

to manage the symptoms of their disorders. Appellants argued that the requested pool

qualifies as a reasonable accommodation that is necessary to satisfy the needs of their sons.

In November 2022, Appellants filed a petition for judicial review to the Circuit Court of

Anne Arundel County to appeal the Board’s denial of their variance request. The circuit

court affirmed the Board’s decision and this timely appeal followed.

On appeal, Appellants present two questions for our review, which we rephrase

slightly as follows: 1

1
Appellants’ original questions presented read as follows:

1. Did the Board of Appeals err when it denied Appellants’
variance request without properly utilizing the balancing
test set forth in the ADA and FHAA, which requires
weighing the needs of the disabled person(s) against the
costs or burdens imposed on the local governing body
seeking to strictly apply zoning regulations?
I. Whether the Board erred in concluding that Appellants’
variance request does not qualify as a reasonable
accommodation under the Americans with Disabilities
Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), and the Fair
Housing Act, 42 U.S.C. §§ 3601 et seq. (“FHA”).

II. Whether the Board’s decision to deny Appellants’
variance request is supported by substantial evidence.

For the reasons explained herein, we affirm the Board’s decision denying

Appellants’ variance request and affirm the judgment of the Circuit Court for Anne

Arundel County.

FACTS AND PROCEDURAL HISTORY

Appellants are residents of Anne Arundel County and the owners of property

located in Annapolis, Maryland. Appellants are parents to two sons who have been

diagnosed with proprioceptive disorder, also referred to as proprioceptive dysfunction

(“PD”). PD is a neurological, sensory-processing disorder that impacts the brain’s

proprioceptive system. This system regulates the activation of different muscles, joints,

and tendons in the body and informs an individual’s awareness of the body’s spatial

position. Consequently, PD impacts an individual’s body movements and control thereof.

2. Whether Appellants’ request for a variance to allow
construction of a therapeutic lap pool on their property,
which would provide consistent daily therapy for their
disabled children, constitutes a request for reasonable
accommodation under the ADA and the FHAA for which a
variance to the local zoning code should be granted?

2
Untreated PD can also impact an individual’s ability to communicate, learn, and socialize.

PD, like many neurological disorders, is a lifelong condition which will continue to impact

Appellants’ sons as they transition into adolescence and adulthood.

Effective treatment for PD includes regular exercise and other tactile activities that

stimulate the brain’s proprioceptive receptors. Appellants’ sons regularly attend

occupational therapy appointments to help treat the symptoms of their disorders.

Appellants have utilized various therapeutic outlets in their home to help treat their sons’

disorders, including rope climbing, trapeze and cocoon swinging, running, and stacking

chairs or moving other heavy objects. Lap swimming also serves as an effective form of

therapy. For this reason, Appellants sought to install an in-ground, therapeutic lap pool on

their property.

Appellants’ property is approximately 3.17 acres and is located within the

Chesapeake Bay Critical Area Limited Development Area. Section 18-13-104(a) of the

Anne Arundel County Code provides that, on properties within the Critical Area, “[t]here

shall be a minimum 100-foot buffer landward from the mean high-water line of tidal

waters, tributary streams, and tidal wetlands.” County Code § 18-13-104(a). Areas that

include contiguous slopes of fifteen percent or more require an expanded buffer. County

Code § 18-13-104(b). “[T]he 100-foot buffer shall be expanded by the greater of four feet

for every 1% of slope or to the top of the slope and shall include all land within 50 feet of

the top of the slopes.” Id. Any development on properties containing buffers or located

within a buffer area must meet the requirements of Title 27 of the Code of Maryland

Regulations (COMAR), which provides that a jurisdiction may authorize a “disturbance”

3
in a buffer area through the granting of a variance. County Code § 17-8-301(b); COMAR

§ 27.01.09.01(E)(1)(a)(ii).

Appellants’ property is located entirely within an expanded buffer area. They hoped

to install an 18-by-55 foot in-ground lap pool on a flattened area of their property.

Installation of the proposed pool would result in 2,415 square feet of permanent disturbance

within the expanded buffer area, in violation of the County Code and the COMAR.

Appellants, therefore, requested a variance to allow for the construction of the pool,

asserting that the therapeutic lap pool qualifies as a reasonable accommodation under the

ADA and FHA. The Anne Arundel County Administrative Hearing Office denied

Appellants’ variance request on April 15, 2021. Appellants subsequently appealed the

denial to the Anne Arundel County Board of Appeals. The Board held a two-day hearing

which commenced on February 2, 2022. Prior to the hearing, the County’s Office of

Planning and Zoning (OPZ) sent a letter to the Board recommending that it deny

Appellants’ variance request.

The Board then heard extensive evidence and testimony from various witnesses and

experts at the hearing. Appellants and one of their son’s preschool teachers testified about

the children’s disabilities, symptoms, and how those symptoms affect the children’s daily

lives at home and in school. Appellants testified that lap swimming has served as an

effective form of therapy and noted that their sons have benefited from swimming at their

community pool and at the Naval Academy, the latter of which remains open during the

off-season at their community pool. The Appellants’ expert pediatric occupational

therapist also testified, providing details about PD, its accompanying symptoms, and how

4
the disorder can be disruptive in the absence of effective treatment. She discussed the

children’s treatment plans and range of abilities and testified that the children have

benefitted from lap swimming. Two of Appellants’ neighbors also testified in support of

granting the variance.

Appellants’ expert civil engineer testified before the Board hearing regarding the

proposed placement of the pool and its potential impacts on the surrounding environment.

Appellants planned to install the pool on a relatively flat area on their property that was

historically used as a badminton or tennis court which has since been removed. The

engineer testified that groundwater in that area drains directly into the property’s existing

stormwater management pond and would continue to do so if the proposed pool were

developed. He also discussed other measures to be taken to address any runoff, such as the

inclusion of a membrane to capture run-off, and testified that installation of the pool would

not result in any adverse environmental impacts to the Critical Area. Appellants’ expert

landscape architect similarly testified that the environmental impact of the project would

be “minimal.”

The Board also heard the testimony of Petitioners’ expert in disability law. Relying

on a 2016 joint policy statement released by the United States Department of Housing and

Urban Development (“HUD”) and the United States Department of Justice (“DOJ”), 2

2
Joint Statement of the Department of Housing and Urban Development and the
Department of Justice, “State and Local Land Use Laws and Practices and the Application
of the Fair Housing Act,” (Nov. 10, 2016), https://www.justice.gov/opa/file/912366/
download.

5
Appellants’ expert asserted that the Board must grant a request for a reasonable

accommodation if an applicant can establish that: (1) the applicant or a family member has

a disability, (2) the County has knowledge of the disability, (3) a request for an

accommodation was made, (4) the accommodation is necessary to provide the disabled

party with an equal opportunity to use and enjoy their home, (5) the request for an

accommodation was denied, and (6) the request was reasonable because it did not impose

an undue hardship on the local agency. The disability law expert argued that Appellants

met all of these requirements and that the benefit to the family would greatly outweigh any

adverse impacts to the Critical Area Program.

Finally, the County called as a witness a zoning analyst and planner with OPZ, who

recommended that the Board deny Appellants’ variance request. He opined that the

development of a pool on the expanded buffer was likely to adversely impact the Critical

Area. The County’s witness also noted that a few neighboring properties have pools

despite being within a buffer area. Notably, he clarified that all of these pools were

installed prior to the enactment of the Critical Area Program and, therefore, did not require

a variance for installation. Moreover, the OPZ analyst testified that he did not consider the

installation of a pool within the Critical Area to be a reasonable and significant use of the

property.

6
On October 6, 2022, the Board issued a memorandum opinion denying Appellants’

request for a variance. 3 The Board concluded that Appellants’ request to install a pool on

their property did not constitute a reasonable accommodation under the ADA and the FHA.

The Board also concluded that Appellants failed to satisfy all of the requirements for a

variance set forth in Section 3-1-207 of the County Code. Appellants filed a petition for

judicial review with the Circuit Court for Anne Arundel County on November 1, 2022.

The circuit court held a hearing on July 17, 2023 and issued its order affirming the decision

of the Board on July 19, 2023. This timely appeal followed. 4

STANDARD OF REVIEW

“When reviewing a decision by an administrative agency, this Court ‘looks through’

the decision of the circuit court, applying the same standards of review to determine

whether the agency itself erred.” Matter of Homick, 256 Md. App. 297, 307 (2022) (citing

Brandywine Senior Living at Potomac LLC v. Paul, 237 Md. App. 195, 210 (2018)). In

doing so, “[w]e are limited to evaluating whether there is substantial evidence in the record

as a whole to support the agency’s findings and conclusions and to determining whether

the administrative decision is premised upon an erroneous conclusion of law.” Brandywine

Senior Living at Potomac LLC, supra, 237 Md. App. at 210 (citing Halici v. City of

3
Four of the Board’s seven members joined the majority opinion. One member of
the Board concurred, in part, and another member dissented. One member did not
participate in the appeal.
4
Appellants also filed a petition for writ of certiorari to the Supreme Court of
Maryland on November 11, 2023. The Supreme Court denied Appellants’ petition on
January 23, 2024.
7
Gaithersburg, 180 Md. App. 238, 248 (2008)). This Court has explained the substantial

evidence test as follows:

The substantial evidence test is defined as whether a reasoning
mind reasonably could have reached the factual conclusion the
agency reached. In applying the substantial evidence test . . .
we must review the agency’s decision in the light most
favorable to the agency, since decisions of administrative
agencies are prima facie correct and carry with them the
presumption of validity. Furthermore, not only is the province
of the agency to resolve conflicting evidence, but where
inconsistent inferences from the same evidence can be drawn,
it is for the agency to draw the inferences.

Id. at 210–11 (internal citations and quotation marks omitted).

The Supreme Court of Maryland has recognized that, “[a]lthough judicial review of

an agency’s factual findings is quite narrow, it is always within our prerogative to

determine whether an agency’s conclusions of law are correct.” Bd. of Liquor License

Comm’r for Balt. City v. Kougl, 451 Md. 507, 513–14 (2017) (quoting Adventist Health

Care, Inc. v. Md. Health Care Comm’n, 392 Md. 103, 120–21 (2006)) (internal quotation

marks omitted). It is well-established that “[t]he overarching goal of judicial review of

agency decisions is to determine whether the agency’s decision was made ‘in accordance

with the law or whether it is arbitrary, illegal, or capricious.’” Sugarloaf Citizens Ass’n v.

Frederick Cnty. Bd. of Appeals, 227 Md. App. 536, 546 (2016) (quoting Long Green Valley

Ass’n v. Prigel Fam. Creamery, 206 Md. App. 264, 274 (2012)).

Although we review the Board’s conclusions of law under a de novo standard of

review, “a degree of deference should often be accorded the position of the administrative

agency.” Brandywine Senior Living at Potomac LLC, supra, 237 Md. App. at 211 (quoting

8
Assateague Coastkeeper v. Md. Dep’t of Env’t, 200 Md. App. 665, 690 (2011)). Indeed,

we “must presume that a decision made by an administrative body is prima facie correct.”

Fire and Police Emp. Ret. Sys. v. Middleton, 192 Md. App. 354, 359 (2010) (citing

Marsheck v. Bd. of Trs. for the Fire & Police Emp. Ret. Sys., 358 Md. 393, 402 (2000)).

Notably, “the deference owed to an agency’s interpretation of the law will vary

depending on a number of factors.” Comptroller v. FC-Gen Operations Inv. LLC, 482 Md.

343, 363 (2022). Such factors include the consistency of the agency’s application of law

over time and the process by which the agency “formulat[ed] its interpretation of the

statute.” Id. at 362–63 (quoting Balt. Gas & Elec. Co. v. Public Serv. Comm’n, 305 Md.

145, 161–62 (1986)). See also Brown v. Handgun Permit Rev. Bd., 188 Md. App. 455, 467

(2009) (noting that “we give weight to an agency’s interpretation of a statute it is charged

with enforcing where the interpretation is longstanding and falls within the agency’s area

of expertise”). On appeal, an appellant bears the burden of establishing that the agency

erred as a matter of law. Brandywine Senior Living at Potomac LLC, supra, 237 Md. App.

at 211 (citing Assateague Coastkeeper, supra, 200 Md. App. at 690).

DISCUSSION

The Board of Appeals was required to address two issues in its consideration of

Appellants’ variance request, and we likewise grapple with the same two issues on appeal.

We primarily must determine whether the installation of a therapeutic pool on Appellants’

property qualifies as a reasonable accommodation under federal law. This, however, is not

the end of our inquiry. All variance requests for properties within the Anne Arundel

County Chesapeake Bay Critical Area must also meet the requirements set forth in Section

9
3-1-207 of the County Code. The Board addressed each of these requirements in its

decision. This Court must review the record and determine whether there exists substantial

evidence to support the Board’s conclusion that Appellants failed to meet their burden to

establish each of those requirements.

We conclude that the Board properly applied state and federal law in analyzing

whether Appellants’ variance request constitutes a reasonable accommodation. There is

ample evidence in the record to support the Board’s conclusions that the requested variance

is not a reasonable accommodation and that Appellants failed to meet their burden under

Section 3-1-207 of the County Code. As such, the Board’s decision was not arbitrary and

capricious and is supported by substantial evidence. We, therefore, affirm the decision of

the Board and the Circuit Court for Anne Arundel County.

I. The Board did not err in concluding that appellants’ variance request does not
qualify as a reasonable accommodation under the ADA and FHA.

The first issue for our consideration on appeal is whether the Board erred in

concluding that Appellants’ variance request does not constitute a reasonable

accommodation. Our review of this issue is two-fold. Appellants first assert that the Board

failed to properly apply relevant federal law regarding reasonable accommodation requests.

We, therefore, first review the legal framework applied by the Board. We then consider

whether the record includes substantial evidence to support the Board’s conclusion that

Appellants’ request does not qualify as a reasonable accommodation.

10
A. The Board applied the correct legal standard to determine whether
Appellants’ variance request qualified as a reasonable accommodation
under the ADA and FHA.

On appeal, Appellants primarily argue that the Board did not properly apply federal

law to consider Appellants’ request for a variance as a reasonable accommodation under

the ADA and FHA. We recognize -- and the County concedes on appeal -- that the ADA

“requires preferences in the form of ‘reasonable accommodations’ that are needed for those

with disabilities to obtain the same . . . opportunities that those without disabilities

automatically enjoy.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002) (emphasis

in original). 5 The FHA also protects individuals with disabilities from unlawful housing

discrimination, which includes any “refusal to permit, at the expense of the handicapped

person, reasonable modifications of existing premises occupied or to be occupied by such

person if such modifications may be necessary to afford such person full enjoyment of the

premises[.]” 42 U.S.C. § 3604(f)(3)(A). Unlawful discrimination under the FHA also

includes “a refusal to make reasonable accommodations in rules, policies, practices, or

services, when such accommodations may be necessary to afford such person equal

opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

The Natural Resources Article of the Maryland Code also recognizes the need for

reasonable accommodations. Maryland’s Chesapeake Bay Critical Area Program includes:

Provisions for reasonable accommodations in policies or
procedures when the accommodations are necessary to avoid
discrimination on the basis of physical disability, including

5
The ADA defines a disability as “a physical or mental impairment that
substantially limits one or more major life activities of such individual[.]” 42 U.S.C. §
12102(1)(A).
11
provisions that authorize a local jurisdiction to require removal
of a structure that was installed or built to accommodate a
physical disability and require restoration when the
accommodation permitted by this paragraph is no longer
necessary.

Md. Code (1974, 2023 Repl. Vol) § 8-1808(c)(1)(iii)(11) of the Natural Resource Article

(“NR”). Furthermore, the County Code provides that “[a]ny request for reasonable

accommodations” within the Critical Area “as a result of a physical disability shall meet

the standards for disability defined in the [ADA].” County Code § 17-8-106. 6

Under federal law, a request for an accommodation must be granted where the

applicant shows the accommodation to be reasonable and necessary to afford individuals

with disabilities “equal opportunity to use and enjoy housing[.]” Bryant Woods Inn, Inc.

v. Howard Cnty., 124 F.3d 597, 603 (4th Cir. 1997). Citing the Seventh Circuit’s decision

in Dadian v. Village of Wilmette, Appellants assert that a requested accommodation is

“necessary” where the “desired accommodation will affirmatively enhance a disabled

plaintiff’s quality of life by ameliorating the effects of the disability.” 269 F.3d 831, 838

(7th Cir. 2001) (quoting Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir. 1995)). On appeal,

the County does not challenge the fact that the use of a therapeutic swimming pool would

be beneficial to Appellants’ sons and impact their overall quality of life by effectively

6
Appellants contend on appeal that federal protections under the ADA and FHA
supersede any conflicting state and local laws. While this is correct, Maryland’s Critical
Area Program and the Anne Arundel County Code do not conflict with the ADA because
they include provisions expressly providing for the grant of reasonable accommodations
for disabled individuals as defined under the ADA. See NR § 8-1808(c)(1)(iii)(11); County
Code § 17-8-106. The Board did not err in applying these laws in their consideration of
Appellants’ variance request.
12
treating the symptoms of PD. In our view, the fundamental disagreement between the

parties in this case is whether the requested accommodation is reasonable.

The parties agree that the determination of whether a requested accommodation is

“reasonable” is a highly fact-specific inquiry that must be decided on a case-by-case basis.

Id. According to Appellants, once an applicant has made a prima facie showing that the

requested accommodation is both necessary and reasonable, the burden shifts to the

opposing party to demonstrate that it is not reasonable. Appellants contend that the Board

failed to adequately apply this legal framework. Additionally, Appellants assert that the

Board failed to consider the six elements laid out in HUD and DOJ’s 2016 joint policy

statement, upon which Appellants’ expert in disability law relied at the Board hearing.

Appellants’ proposed legal framework, the 2016 joint policy statement, and the

Board’s analysis all have one critical element in common: they require that an applicant

seeking an accommodation establish that the accommodation is necessary to allow the

disabled party to have an equal opportunity to reasonably enjoy the property. This captures

the requirement under the FHA that accommodations be granted when “necessary to afford

such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

Appellants contend that if their sons are denied use of the proposed therapeutic lap pool,

they will be unable to properly treat their disabilities. Appellants maintain that this will

impact their sons’ overall quality of life, which will then impact their sons’ ability to enjoy

any reasonable use of the property. In fact, Appellants argue that their sons “are not able

to use and enjoy their property, or any property, when they are unable to receive the

necessary treatment.”

13
This strikes us as an overbroad interpretation of what constitutes a reasonable use

of property and, in turn, an overbroad interpretation of what constitutes a reasonable

accommodation. As the Board noted, this interpretation would “demand an injudicious

approval of any proposed accommodation as inherently reasonable.” Adopting the

standard suggested by Appellants would create a slippery slope whereby administrative

agencies must grant any proposed accommodation if it would in any way improve the

applicant’s overall quality of life. In determining what constitutes a reasonable

accommodation, the Board appropriately analyzed whether the requested variance was

required to allow Appellants’ sons to enjoy the same “opportunities that those without

disabilities automatically enjoy.” U.S. Airways, supra, 535 U.S. at 397. In other words,

the Board properly considered whether the requested accommodation was necessary to

allow Appellants’ sons to use and enjoy the property to an equal extent as non-disabled

individuals.

The Supreme Court of Maryland’s decision in Mastandrea v. North is instructive.

361 Md. 107 (2000), superseded by statute on other grounds, NR §§ 8-1808(c)(13), (d), as

recognized in Assateague Coastal Trust, Inc. v. Schwalbach, 448 Md. 112, 130–33 (2016).

In Mastandrea, the Supreme Court reviewed the denial of a requested variance from Talbot

County’s zoning laws restricting development within certain portions of the Critical Area.

Mastandrea, supra, 361 Md. at 112. The applicants were parents to a disabled, wheelchair-

bound daughter who, due to her disability, did not have the ability to access and enjoy the

property’s waterfront area. Id. at 112–13. The applicants sought a variance in order to

insert pathways on their property to facilitate movement by wheelchair throughout the lot.

14
Id. They argued that the requested variance qualified as a reasonable accommodation

under Title II of the ADA. Id. at 118.

One of the issues presented on appeal in Mastandrea was whether Title II of the

ADA applied to the administration and enforcement of local zoning ordinances. Id. at 112.

Although the Supreme Court of Maryland declined to address this issue in Mastandrea, the

General Assembly subsequently codified Section 8-1808(c) of the Natural Resources

Article of the Maryland Code, clarifying that local zoning laws must allow for reasonable

accommodations where “accommodations are necessary to avoid discrimination on the

basis of physical disability[.]” Id. at 125–30; NR § 8-1808(c)(1)(iii)(11). Accordingly, it

is clear -- and the County does not contest on appeal -- that the ADA and the FHA apply

to local zoning enforcement.

Critically, the Supreme Court of Maryland’s decision in Mastandrea includes

instructive language regarding what constitutes a reasonable accommodation. The Court

characterizes a reasonable accommodation as a “reasonable modification to the relevant

zoning ordinance” that allows a disabled individual to enjoy the property “equally with a

non-disabled person.” Mastandrea, supra, 361 Md. at 132 (emphasis added). The Court

identified the family’s enjoyment of the property’s waterfront area as a “reasonable and

significant use of the lot[.]” Id. Furthermore, the Court recognized that the applicant’s

daughter was unable to enjoy their property to an equal extent as non-disabled individuals

because her wheelchair prevented her from accessing and enjoying the property’s

waterfront area. Id. For these reasons, the pathways were necessary to reasonably

accommodate the needs of the applicant’s disabled daughter. Id.

15
The Board relied on this portion of the Court’s holding in Mastandrea in

determining whether Appellants’ variance request qualifies as a reasonable

accommodation. In doing so, the Board considered whether Appellants’ sons, in the

absence of the requested variance, would be able to enjoy the property to an equal extent

as non-disabled individuals or if they would be denied a “reasonable and significant use”

of the family’s property solely based on their disabilities. Id. As further discussed below,

the Board’s conclusion that the requested variance does not meet the requirements of a

reasonable accommodation is supported by substantial evidence in the record.

We do not disagree with Appellants’ assertion that, where applicants make a prima

facie showing that a requested accommodation is both reasonable and necessary, the party

opposing the request must put forth evidence to establish that the request is unreasonable.

See Bd. of Dir. of Cameron Grove Condo., II v. State Comm’n on Hum. Rel., 431 Md. 61,

79–80 (2013). The Board’s decision appropriately confronts the threshold issue of whether

Appellants’ requested accommodation is reasonable and necessary. Because the Board

concluded that Appellants failed to establish that the requested accommodation is

reasonable, the Board never reached the burden-shifting analysis proposed by Appellants.

We perceive no error in the legal framework applied by the Board and conclude that its

decision as to the reasonable accommodation issue was not arbitrary and capricious.

B. Appellants failed to present substantial evidence to establish that the
requested accommodation is reasonable and necessary.

Our review of the record reveals very little evidence to support Appellants’ assertion

that the requested therapeutic lap pool qualifies as a reasonable accommodation under

16
federal law. Appellants certainly provided the Board with evidence demonstrating that

their sons would benefit from the pool and its therapeutic uses. Nevertheless, we are not

persuaded by Appellants’ argument that their sons are unable to use and enjoy any property

if they are unable to receive adequate therapy. As discussed above, the Board properly

considered whether Appellants’ sons are currently deprived of any reasonable use of the

property solely based on their disability. Appellants failed to present any evidence to

establish that their sons are unable to use and enjoy the property to an equal extent as non-

disabled individuals.

In our view, Appellants’ reasonable accommodation request is easily

distinguishable from the request in Mastandrea. In Mastandrea, the Court concluded that

the requested variance was necessary to ensure that the applicants’ daughter could enjoy

the property’s waterfront area. Other non-disabled individuals were easily able to access

and revel in the property’s waterfront area and its accompanying views. The family’s

daughter, however, was denied such an opportunity solely by virtue of her disability.

Unlike the applicants’ daughter in Mastandrea, Appellants’ sons currently already have

access to and enjoy expansive use of the property and the abundant amenities thereupon.

Such amenities include the property’s waterfront area and the deck and patios, which were

constructed pursuant to an earlier grant of a variance request. The sons are also able to use

ropes, swings, and trapezes in and around the property. 7

The Board emphasized the existence of these structures to establish that the family
7

had “multiple avenues available” for therapeutic outlets for their children. This analysis
was unnecessary for two reasons. First, we are not persuaded the existence of other options

17
An individual’s inability to equally enjoy their property is a crucial element in

determining whether a request for an accommodation is reasonable. Based on the evidence

presented before the Board, we are unable to identify any manner in which Appellants’

sons are unable to use Appellants’ property to the same extent as other non-disabled

individuals. We do not doubt that the use of a therapeutic lap pool would benefit

Appellants’ children and serve as an effective form of therapy to treat the symptoms of

their disabilities. This alone, however, does not necessitate the grant of a request for an

accommodation absent a showing that the requested accommodation is reasonable. We

agree with the Board that Appellants failed to meet their burden as to this decisive

requirement. We, therefore, affirm the Board’s decision that the requested pool does not

constitute a reasonable accommodation under federal law.

II. Appellants failed to meet their burden to establish the variance requirements
under Section 3-1-207 of the County Code.

Section 3-1-207 of the County Code sets forth the criteria that must be established

for the Board to grant a variance request impacting the Critical Area. Subsection (b)

provides that a variance may only be granted upon an affirmative written finding of the

following:

(1) because of certain unique physical conditions, such as
exceptional topographical conditions peculiar to and

for therapeutic relief should guide an administrative agency’s consideration of a request
for a reasonable accommodation. Second, and more importantly, such an analysis was
unnecessary here. The Board only needed to determine whether the requested variance
would allow the Appellants’ sons to enjoy the property equally to non-disabled individuals.
Any evidence regarding other therapeutic outlets was irrelevant in light of the fact that
Appellants presented no evidence that their children are deprived of equal use and
enjoyment of the property.
18
inherent in the particular lot, or irregularity, narrowness, or
shallowness of lot size and shape, strict implementation of
the County’s critical area 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 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; 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:
(i) COMAR, Title 27, or the County critical area program
to other lands or structures within the County critical
area; or
(ii) the County’s bog protection program to other lands or
structures within a bog protection area;

(4) that the variance request
(i) 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; and
(ii) does not arise from any condition relating to land or
building use on any neighboring property;

(5) that the granting of the variance:
(i) 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
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(ii) will be in harmony with the general spirit and intent of
the County 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; and

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

County Code § 3-1-207(b) (emphasis added).

The County Code further provides that a variance may not be granted unless the

Board finds that the variance is the minimum variance necessary to afford relief and that

granting the variance will not (1) alter the essential character of the neighborhood in which

the lot is located, (2) substantially impair the appropriate use or development of adjacent

property, (3) reduce forest cover in the Critical Area, (4) be contrary to clearing and

replanting practices required in the Critical Area, and (5) be detrimental to the public

welfare. County Code 3-1-207(e).

8
The referenced section of the Maryland Code’s Natural Resources Article
provides:
In considering an application for a variance, a local jurisdiction
shall presume that the specific development activity in the
critical area that is subject to the application and for which a
variance is required does not conform with the general purpose
and intent of this subtitle, regulations adopted under this
subtitle, and the requirements of the local jurisdiction’s
program.

NR § 8-1808(d)(3)(ii).
20
The Board correctly recognized that failure to meet even one of these requirements

mandates the denial of the variance request. Consequently, applicants bear a heavy burden

to establish that their request for a variance should be granted. The Board properly

addressed each of the requirements under Sections 3-1-207(b) and 3-1-207(e) of the

County Code and concluded that Appellants failed to meet their burden. 9 Critically, the

Board concluded that Appellants failed to establish that the requested variance is necessary

to avoid an unwarranted hardship or deprivation of a commonly enjoyed right or that the

requested variance would not confer a special privilege. These conclusions are supported

by substantial evidence in the record. Accordingly, we conclude that the Board did not err

in rejecting Appellants’ variance request.

A. Unwarranted Hardship (County Code § Section 3-1-207(b)(1))

The Board properly recognized that Appellants bore the burden to establish as a

threshold matter that “strict implementation of the County’s critical area program would

result in an unwarranted hardship, as that term is defined in the Natural Resources Article”

of the Maryland Code. County Code § 3-1-207(b)(1). Section 8-1808 of the Natural

Resources Article provides that an “unwarranted hardship” exists if “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) (emphasis added). See also

9
The Board concluded that Appellants met their burden to establish the
requirements set forth in County Code § 3-1-207(b)(4), as well as County Code §§
3-1-207(e)(2)(i) through (iv). Furthermore, the Board concluded that the requirement
under County Code § 3-1-207(b)(6) is not applicable in this matter. Accordingly, these
requirements are not at issue on appeal and are not addressed here.
21
Assateague Coastal Trust, supra, 448 Md. at 139 (recognizing that an “applicant has the

burden of demonstrating that, without a variance, the applicant would be denied a use of

the property that is both significant and reasonable”). In our view, this inquiry is very

similar to and overlaps with our earlier consideration of whether the requested variance

qualifies as an accommodation allowing the applicants to enjoy reasonable use of their

property. Indeed, the Board’s reasonable accommodation analysis and unwarranted

hardship analysis are remarkably similar – so, too, are our analyses on these two issues.

Mastandrea is once again instructive. The Supreme Court of Maryland considered

whether denying the applicants’ variance request and prohibiting the development of

pathways on the applicants’ property would result in unwarranted hardship to the

applicants’ disabled daughter. Mastandrea, supra, 361 Md. at 134–36. The Supreme

Court explained:

[T]he Board was required to (and did) consider whether the
property owners, in light of their daughter’s disability, would
be denied a reasonable and significant use of the waterfront of
their property without the access that the path provided. There
is substantial evidence in the record establishing that, without
the path, a person in a wheelchair could not enjoy the
waterfront portion of the property.

Id. at 136. The Court concluded that denial of the variance would deprive the appellants’

disabled, wheelchair-bound daughter of a reasonable and significant use of the property in

the form of “access[ing] reasonably the rear yard, view[ing] wildlife along the river’s edge,

or participat[ing] in shoreline-oriented activities.” Id. at 137. Accordingly, the denial of

the variance request would result in unwarranted hardship to the applicants’ daughter.

Appellants’ variance request is distinguishable from the variance requested in

22
Mastandrea. While the applicants in Mastandrea provided sufficient evidence to establish

that their daughter would be denied a reasonable and significant use of the applicants’

property absent a variance, there is sufficient evidence in the record here to demonstrate

that Appellants’ sons already enjoy expansive use of the Appellants’ property and its

amenities. Appellants’ own testimony recognized that their children have access to the

waterfront and engage in various recreational and therapeutic activities on the property.

The record is devoid of any evidence to suggest that Appellants’ sons would be denied any

reasonable or significant use of the property in the absence of a therapeutic lap pool. We,

therefore, conclude that Appellants failed to show that denial of their requested variance

would result in an unwarranted hardship to their children. 10

B. Deprivation of a Commonly Enjoyed Right and Conferral of a Special
Privilege (County Code §§ Section 3-1-207(b)(2)(i), (b)(3)(i))

The Anne Arundel County Code also requires applicants requesting a variance in

the Critical Area to establish that a “literal interpretation” of the County’s zoning laws “will

deprive them of rights commonly enjoyed by other properties in similar areas.” County

Code § 3-1-207(b)(2)(i). Furthermore, applicants must show that granting the requested

variance “will not confer a special privilege that would be denied by: (i) COMAR, Title

10
Appellants sought to install a therapeutic lap pool for the purpose of providing
their sons with an effective form of treatment to manage the symptoms of their disabilities.
We disagree with the Board’s characterization of the requested pool as a “luxury.” If this
term was included to emphasize the fact that developing a pool on property within the
Critical Area is not a commonly enjoyed right, we understand the underlying sentiment.
Using the term “luxury” to make this point, however, is inappropriate in this context. Such
a term suggests an amenity requested for the purpose of leisure and recreation. No such
“luxury” was requested here.
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27, or the County critical area program to other structures within the County critical

area . . . .” County Code § 3-1-207(b)(3)(i). We conclude that Appellants failed to meet

their burden as to these two requirements.

A zoning analyst and planner with OPZ testified at the Board hearing that other

properties in Appellants’ neighborhood and within the buffer area have in-ground pools.

Notably, the analyst testified that these properties installed their pools prior to the

enactment of the Critical Area program and, therefore, did not need to seek a variance for

installation. Since the enactment of the program, property owners in the Critical Area are

unable to construct pools within a buffer area without being granted a variance. Appellants

failed to provide any evidence that other properties in the area have requested and been

granted a variance to install an in-ground pool within a buffer or expanded buffer area.

Based on the evidence presented at the Board hearing, the Board did not err in

concluding that ownership of a swimming pool is not a right commonly enjoyed by other

properties in similar areas. County Code § 3-1-207(b)(2)(i). This evidence likewise

supports the Board’s conclusion that granting Appellants’ variance request would confer a

special privilege. We conclude that the Board relied on strong, substantial evidence in

reaching these conclusions.

C. Adverse Impacts, Presumption of Nonconformity, Minimum Variance
Required, and Detriment to Public Welfare (County Code §§ 3-1-
207(b)(5), (b)(7), (e)(1), and (e)(2)(v))

The Board also concluded that Appellants failed to meet their burden to establish

that the requested variance would not “adversely affect water quality or adversely impact

fish, wildlife, or plant habitat within the County’s critical area” as required under Section

24
3-1-207(b)(5) of the County Code. Both the County and Appellants presented relevant

evidence addressing this issue. The County’s witness from OPZ testified that construction

of a pool on Appellants’ property would adversely impact water quality, as well as fish,

wildlife, and plant habitats in the Critical Area. When asked to elaborate on this point, the

County’s witness clarified that constructing anything within an expanded buffer area would

have an adverse impact on the surrounding environment “simply by virtue of construction.”

By contrast, Appellants’ expert civil engineer testified as follows:

As indicated, the proposed lap pool’s length is 55 feet long. In
my professional opinion, a new pool located on the subject
property as designed will not have adverse environmental
impacts to the site and surrounding areas, as no vegetation will
be removed, no slopes will be disturbed, mitigation will be
provided in the form of new trees and shrubs, and the pool area
drains directly down to an existing stormwater management
facility and we’ve added sone [sic] pre-treatment.

Appellants’ expert landscape architect also testified that the pool’s disturbance to the

Critical Area would be “minimal.”

Both parties provided pertinent yet conflicting evidence regarding the proposed

pool’s impact on the Critical Area. As emphasized by the Board, an applicant seeking a

variance must meet all of the requirements set forth in Section 3-1-207(b) of the County

Code. We are satisfied that the Board appropriately concluded, based on substantial

evidence, that Appellants failed to establish the requirements of Sections 3-1-207(b)(1),

(2), and (3) addressed above. As such, even if this Court were to assume arguendo that

Appellants presented substantial evidence to establish that the pool would not adversely

affect the surrounding environment, we still conclude that the Board did not err in rejecting

25
Appellants’ variance request. Likewise, this Court need not consider whether Appellants

met their burden under Section 3-1-207(b)(7) or Section 3-1-207(e) of the County Code.

We, like the Board, are empathetic to the Appellants’ plight and commend their

efforts to provide the best possible care to their children with disabilities. We recognize

that Appellants’ ability to provide their children with effective therapeutic outlets early in

their lives is the greatest way to set their sons up for success in the future. Nevertheless,

we are unable to conclude that Appellants provided substantial evidence to establish that

the pool is a reasonable accommodation that meets the variance requirements set forth in

Section 3-1-207 of the County Code. We conclude that the Board’s application of law was

not erroneous, arbitrary, or capricious and its conclusions are supported by substantial

evidence in the record. The Board, therefore, properly denied Appellants’ variance request.

For these reasons, we affirm the judgment of the circuit court.

JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANTS.

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