Saving Buffy Part 5 A Lesson in Futility

WHYOur Zoning Hearing was a week ago Thursday to try and save our Buff Orpington and her Friends, but this just turned into a legal lesson on futility. Definition being: Unsuccessful at this point in time.

We received the bad news via a letter from the Administrative Law Judge, stating that our request for variance was denied. It was not so much the denial that bothered my wife and I, as it was the logic behind the decision, as explained in the letter.

“Varying the acreage requirement would permit a use that would otherwise not be permitted, and the Administrative Law Judge is not given the authority to grant such a variance.”

So, the ALJ does not have the authority to “grant such a variance?” OK, so what is the point in allowing us to file and request a variance knowing up front that the court does not have the authority. Constitutionally we must be allowed our day in court, but I think this is a little ridiculous. It seems that the lesson is just a way for the county to increase a few dollars in revenue. Yes honestly it costs them more in time and labor than we had to pay for the time in court, but isn’t that the way of any Government-Spend $200 to increase $100 in revenue.

I would have to say, we were a little confused, since we are not lawyers and not versed in zoning law. My thought was to consult an attorney who had experience in zoning law. We contacted Howard Alderman, Jr, who has a long resume in dealing with zoning and land use issues. He was extremely nice and explained things in terms any layman could understand. (If you have zoning or land use issues in Baltimore, I highly recommend him)

“To answer this questions, you must also understand the legal distinction between a “USE” variance and an “AREA” variance. Under the Baltimore County Zoning Regulations, an administrative law judge in the OAH is empowered to grant variances from area requirements but not use requirements. Area variances include issues such as side/rear yard setbacks. Use variances are not (generally) recognized in Maryland. Although the issue in your case is 7600 sf v. 43560 sf of land, the relief you requested is for a ‘use’ variance versus an ‘area’ variance. To permit fowl on less than 1 acre is a ‘use’ variance because it may change the character of the specific zoning district in which your property is located. It is akin to seeking to build a house on a 1/2 acre lot where the minimum lot size is 1 acre; that relief would be denied as well. The County Board of Appeals for Baltimore County has the same authority (and same limitations) on appeal as did the administrative law judge. Reviewing Courts (appeal beyond the Board) cannot overturn the decision unless based on an error of law. Courts generally look and defer to the agency’s interpretation of its own law and regulation. “

According to the ALJ and the attorney any further pursuit would be denied on the same grounds, so we will lose our chickens within the next 30 days. So what is the next step? How about a grassroots movement in Baltimore County, on behalf of organic gardeners, homesteaders, survivalists, or just lovers of pet-chickens.

With the current County law allowing chickens on lots above an acre, this disallows many who would love pet chickens. As stated in previous posts, Baltimore City and Annapolis City have adopted pet chicken laws that are very friendly to the homeowner, not to mention many major cities across the Country: New York, Los Angeles, Las Vegas to name a few.

We have joined a like-minded group on Facebook-http://www.facebook.com/Chickenrevolution or  http://www.facebook.com/Baltimorechickens and will begin to pursue our County Council Members to find those sympathetic with our cause. If there is no one sympathetic on the board currently, I guess we would need to find a candidate who is capable for the job as well as sympathetic to our cause.

I would urge any Baltimore County Resident to join our group and help spread the word. As we gain members and add more pressure to current council members, they should start becoming more sympathetic to our wants-not to mention what I consider a property rights issue. If you are not sure who your council person is, you can find out by inputting your address to this website: http://egov2.baltimorecountymd.gov/votingweb/address.aspx?pageid=3 Then email or call them to voice your support to a change in the law-find your councilpersons email: http://www.baltimorecountymd.gov/countycouncil/districts/district1/index.html

Beyond Baltimore County, anyone that has been through this fight, or would have comments, suggestions, or advice, please also join and add your two-cents. We are very open since we are just beginning. I thank everyone not only for previous support, but also for any help that may be offered.

If you missed earlier posts in the series:

Saving Buffy

Part 2 Health Concerns

Part 3 The Coop

Part 4 Property Values

3 thoughts on “Saving Buffy Part 5 A Lesson in Futility”

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