BEFORE THE BOARD OF APPEALS OF QUEEN ANNE'S COUNTY  In the matter ofApplication by for Zoning Variance  Case No. BOA-23-12-0170  Robert Laraway and Megan Laraway *  FINAL: DECISION OFTHE BOARD  Introduction  The Queen Anne's County Board of Appeals (the "Board") held ar meeting on February 21, 2024 at 3:45 p.m. to consider Case No. BOA-23-12-0170 for a variance application filed by Robert Laraway and Megan Laraway (hereinafter the "Applicants"). The Board members present were Vice-Chairman, Craig McGinnes, and Board Members Michael Lesniowski and Barry Waterman. At the beginning of the hearing, the Board established that all requirements were met governing the filing of the variance application, and proper notice of the February 21St public hearing. Board Vice-Chairman McGinnes administered the oath to all who wished to testify on the  application, including the Applicants.  Applicants' Request  The Applicants request a variance to the provision of $ 18:1-36.B. of the Code of Public Local Laws of Queen Anne's County, 1996 Edition (the "Code"), to reduce the required 50 foot rear yard setback to 35 feet to construct a 2-story garage/mudroom addition to an existing house. The Applicants' property is located at 7210 Kent Point Road, Stevensville, Maryland (the "Property"). The Property is located in the Countryside (CS) Zoning District. The Applicants submitted a Building Permit (No. BR23-12-0857) to construct a two-story addition to the existing house on the west side of the house with the first floor to include 26' X2 26' garage and 11'x20' mudroom and the second floor to include a 26' x 26' rec room and 11'x20' mudroom. The total floor area ofthe proposed addition is 1,972 square feet. On December 14, 2023, the Queen Anne's County Zoning Inspector denied the Applicants' Building Permit after determining that the proposed house did not meet the required rear yard setback in the CS Zoning District of 50 feet as  required by $ 18-1-36.B. of the Code.    Variance February 21,20 7210 Kent Point Road-Laraway  p.2  Applicable Provisions of the Code  The standards the Board must apply to the Applicants' variance request are set forth in $ 18:1-121.B. oft the Code. To grant the requested variance, the Board must find as follows:  1. 2. 3. 4. 5.  Literal enforcement of this Chapter 18:1 would result in unnecessary hardship or  practical difficulty as the result of specified conditions;  Those conditions are peculiar to the property involved; Those conditions are not the result of any action taken by the appellant; The variance will not be contrary to the public interest; and Evaluation ofa alternatives proves variance is required.  In addition, pursuant to $ 18:1-122.A. of the Code, the Board must find that any variance granted is no greater than an amount minimally necessary to ameliorate the conditions giving rise  to any practical difficulty or unnecessary hardship.  Property Description and Department of Planning & Zoning Recommendations Ken Southard, Zoning Inspector with the Queen Anne's County Department of Planning & Zoning presented his staff report. Mr. Southard said the Applicants are seeking to construct a two-story garage and mudroom addition to an existing single-family house. He said the Applicants  have requested to reduce the rear yard setback from 50 feet to 35 feet.  Mr. Southard identified the Property and its location. He identified the Property in the Fourth Election District of Queen Anne's County located at 7210 Kent Point Road at Tax Map 76 Parcel 7, Lot 1. The Property is 5.09 acres and is zoned CS. The Property has no hydric soils and  is not located within the Critical Area.  He said the Property was created in 1999 as part oft the Sedgefield on the Bay subdivision. The existing single-family house was built in 2001. He said the Property is served by private sewer and well. Then, he discussed North West Creek, which is located on the Property. He said that North West Creek is mapped as a nontidal wetland but the subdivision plat recorded for the Property includes a 100-foot setback from the Creek. He said that while the Creek has not been historically mapped as a tidal waterbody, and the Property is not located within the Critical Area,    Variance February 21,2024 72101 Kent Point Road - Laraway  p.3  the setback of 100 feet from the Creek may have been a requirement from the Property developer. He added that the 1972 wetlands inventory map designated the Creek as non-tidal wetland which has a setback of25 feet. However, he reiterated that there is a setback of 100 feet from the Creek  as required by the recorded subdivision plat.  Mr. Southard included a plat within the Board's packet which identified the proposed addition outlined in orange. He said that the front yard, rear yard, and side yard ofthe Property are clearly defined. The front yard setback is defined as the line at which the property owner accesses the site. In this instance, he said, the Applicants access the Property from Kent Point Road. He added that the rear yard setback line is opposite from the point ofaccess. He said that the proposed addition does not meet the required rear yard setback for a sliding scale lot. The Applicants are  seeking a variance to reduce the rear yard setback by 15 feet.  Mr. Southard said that the Property is irregularly shaped. He added that 1.87 acres of the Property is located within the North West Creek, which is unique. Given the unique features ofthe Property, Mr. Southard noted no objection to approval oft the. Applicants' variance request.  Applicants' Presentation  Mr. Laraway presented the application. He said that they have a growing family and need more room for space. He: said that features ofthe Property, including the location of the Creek and existing well and septic and setbacks therefrom, there are no alternative locations to construct an addition on the Property. He added that the Applicants believed that their rear yard backed up to  the Creek, rather than on the west side of their Property.  He said that the Applicants access their Property via a shared driveway off of Kent Point Road. However, because ofthe way the County establishes front yard lot lines, the lot line parallel tol Kent Point Road is the front yard lot line and the Applicants' shared driveway is in their side yard. The Applicants have always considered their Property fronting on their shared driveway and not Kent Point Road. If their Property fronted on the shared driveway, the Applicants' rear yard would be their side yard for setback purposes and they would not require a variance. However, that would require the Applicants to have their shared driveway designated as a County or public  road rather than a private shared driveway.    Variance February 21,202 7210 Kent Point Road- - Laraway  p.4  Mr. Laraway explained the current structures on the Property. He said that their current garage is not attached to their house. He explained that they are seeking to construct an addition to include an attached garage and will utilize that garage for parking vehicles. Given that the Applicants have young children, they believe there will be benefits toj parking in an attached garage rather than a detached. They will then apply to the County for permits to construct a driveway addition to connect the existing driveway to the new garage. They are also seeking to construct a second floor 26' x 26' recreation room on top ofthe attached garage and extend iti into the existing house. Mr. Laraway said that ift they could not add the second floor addition to the west side oft the house, they would have to undertake major renovations inside of the existing house to add the addition elsewhere due to the structure of the house and location ofe existing hallways.  Vice-Chairman McGinnes asked if the Applicants would need a variance if the west side of the Property was considered the side yard. Given that the applicable side yard setbacks on the Property are 20 feet, the Applicants would not need a variance in that instance for this improvement. Board Member Lesniowski asked about an existing shed on the Property within the rear yard setback. Mr. Laraway responded that the shed is permitted within the setback of 50 feet because it is detached and that they could construct a detached garage closer to the rear yard setback without a variance. However, they are required to meet the rear yard setback of 50 feet for  the addition to the existing house.  Testimony from the Public  No members oft the public testified.  Findings and Conclusions ofthe Board  The Board finds the testimony and application provided by the Applicants credible and persuasive. The Board concludes that the evidence justifies approval of the requested variance. Based on the evidence presented, and duly considering the factors set forth in $18:1-121.C. of the  Code, the Board specifically finds and concludes as follows:  1. A literal enforcement of the rear yard setback would result inj practical difficulty.    Variance - February 21,20. 7210 Kent Point Road - Laraway  p.5  2. The location of the Creek, existing septic, and well create practical difficulty and site 3. The location of the Property in proximity to Kent Point Road requires the County to determine that the Applicants' west side of their Property is the rear yard based on the 4. The existence of the Creek and the setback of 100: feet from the Creek pursuant to the recorded subdivision plat significantly reduces the available locations for an addition.  restrictions.  County's definition ofai front yard.  5. The Property is an irregular shape.  6. The variance will not be contrary to the public interest. any practical difficulty or unnecessary hardship.  7. The variance is the amount minimally necessary to ameliorate conditions giving rise to 8. The orientation of the front of the house on the Property facing the side yard lot line is  unique.  Decision  Based on the foregoing findings and conclusions, by a vote of three in favor and none A variance from the provisions of $ 18:1-36.B to permit the Applicants to reduce the required 50 foot rear yard setback to: 35 feet to construct a 2-story garage/mudroom addition to the  opposed, the Board grants to the Applicants:  existing house.    Variance February 21,1 7210 Kent Point Road - Laraway  p.6  ORDER  For the reasons set forth in the foregoing Opinion, itist this, 21st day of March, 2024 ordered that the variance requested for Robert Laraway and Megan Laraway, in Case No.  BOA-23-12-0170, be granted.  wM 1 Craig W. McGinnes, Acting Chairman  Michael A. Lesniowski, Member  hay h24 Barry Waterpan, Alternate Member    Variançe February 21, 2024 7210 Kent Point Road - Laraway  p.7  State ofl Maryland, County of Queen Anne's:  IHEREBY CERTIFY that the foregoing is a true and correct copy oft the Opinion and Order ofthe Board of Appeals of Queen Anne's County in Case No. BOA-23-12-0170, for Robert Laraway and Megan Laraway, which Opinion and Order resulted from aj public hearing conducted by the Board of Appeals on February 21, 2024 and that the minutes and a recording of  the February 21, 2024 meeting are filed in the office of Board of Appeals.  Certified this 21st day of February, 2024 by:  Douly Vdill Cathy Maxwell Clerk to the Board of Appeals        BEFORE THE BOARD OF APPEALS OF QUEEN ANNE'S COUNTY  In the matter of Application by My Wye, LLC for Variance  Case No. BOA-23-08-0160  FINAL DECISION OFTHE BOARD  Introduction  The Queen. Anne's County Board of Appeals (the "Board") held ai meeting on February 21, 2024 at 4:00 p.m. to consider Case No. BOA-23-08-0160 for a variance application filed by My Wye, LLC (hereinafter the "Applicant"). The Board members present were Vice-Chairman, Craig  W. McGinnes, and Board Members Michael Lesniowski and Barry Waterman.  At the beginning of the hearing, the Board established that all requirements were met governing the filing of the variance application, and that there was proper notice of the February 21S1 public hearing. Vice Chairman McGinnes administered the oath to all who wished to testify  on the application, including the Applicant.  Applicant's Request  The Applicant requests a variance to the provision ofs 14.3-41.C.(2) of the Code of Public Local Laws of Queen Anne's County, 1996 Edition (the "Code"), to permit an additional 225 square feet of floor area below the Flood Protection Elevation to construct a 38' X 21.7' replacement boat house on a pier. The Applicant's property is located at 550 Carmichael Road, Queenstown, Maryland (the "Property"). The Property is located in the Countryside (CS) Zoning  District and the Resource Conservation Area (RCA) Critical Area designation.  The. Appliçant submitted al Building Permit (No. BR23-03-0192) to construct a. 38' x21.7' boat house on a pier currently under construction andj previously permitted by the County. Onl May 2, 2023, the Queen Anne's County Department of Public Works denied the Building Permit after determining that the application adds more square feet than permitted in the floor area ofa Flood  Zone as established by $ 14.3-41.C.(2) of the County Code.    My Wye LLC Decision 550 Carmichael Farm Road Boathouse - Floodplain Variance  P2  Applicable Provisions of the Code  The standards the Board must apply to the Applicant's variance request to the Floodplain Management Ordinance are set forth in $ 14:3-66 of the Code. To grant the requested variance,  the Board must find as follows:  A. A showing of good and sufficient cause. Good and sufficient cause deals solely with the physical characteristics of the property and cannot be based on the character of the improvement, the personal characteristics of the owner/nhabitants, or local provision that  regulate standards other than health and public safety.  B. (Reserved).  Adetermination that failure to grant the variance would result in exceptional hardship due to the physical characteristics of the property. Increased cost or inconvenience of meeting the requirements of these regulations does not constitute an exceptional hardship to the D.A A determination that the granting of a variance for development within any designated floodway, or flood hazard area with base flood elevations but no designated floodway, will not result in increased flood heights beyond that which is E. Adetermination that the granting ofa variance will not result in additional threats to public safety; extraordinary public expense, nuisances, fraud or victimization of the public, or F.A Ad determination that the building, structure or other development is protected by methods G. A determination that the variance is the minimum necessary to afford relief, considering  applicant.  allowed in these regulations.  conflict with existing local laws. to minimize flood damages. the flood hazard.  Property Description and Department of Public Works Recommendations John Kling, Floodplain Manager with the Queen Anne's County Department of Public Works, presented his Staff Report. Mr. Kling provided some background information about the Property. Hes said the Property was the subject oftwo Board of Appeals approvals in October 2022. Specifically, he said the Board of Appeals, in Case No. BOA-22-01-0109, approved the    My Wye LLCI Decision 550 Carmichael Farm Road Boathouse Floodplain Variance  P3  reconstruction and expansion of a private pier that was considered a non-conforming structure because the pier was one oft two piers extending into the Wye River from the same parcel. At the same time, the Property also received approval, in Case No. BOA-22-01-0110, to allow the reconfiguration, relocation, and replacement of the two existing boathouses on the Property with one new boathouse, which boathouse is now the subject of this application. Mr. Kling advised that the floodplain provisions ofthe County Code related to the floor area ofthe replacement boathouse per $14:3-41.C(2) were not considered at the time the Board heard the above-noted applications. However, when the sealed plans for the proposed boathouse replacement were submitted to the Planning and Zoning Department on May 30, 2023, after Board of Appeals approval to replace the structure, Mr. Kling determined that the structure's footprint exceeded the maximum floor area of600 feet for accessory structures in Flood Hazard Areas. Mr. Kling referred the Board to a letter submitted by Matthew Smith, CFM, State NFIP Community Assistance Program Manager with thel Maryland Department oft thel Environment dated December: 5, 2023. In that letter, Mr. Smith confirmed that the proposed boathouse footprint is 825 square feet, whichi is 225 square  feet above the permitted threshold of 600 square feet per accessory structure.  Mr. Kling advised the Board that his Staff Report, and the letter from Mr. Smith, detail the findings the Board is required to make to permit the variance to the floodplain management  regulations.  Applicant's Presentation  Mr. Joseph Stevens, attorney on behalf of the Applicant, presented the application. Mr. Stevens introduced Applicant's Exhibits 8 and 9. He said that the first page of the Applicant's Exhibit 8 is a picture of two existing boathouses on the Property that were constructed prior to 1978. He said the Applicant received a variance to remove the existing boathouses and replace them with one new boathouse withasmaller: footprint.' When the Board considered the application for the variance to replace the two boathouses with one boathouse, they did not realize that the Floodplain Management Ordinance ofthe Code was applicable to the project. Upon realizing the  On October 13, 2022, the Board of Appeals approved Case No. BOA-22-01-0110 to allow the reconstruction: and expansion ofap private piert that is considered: ar nonconforming structure on the Property.    My Wye LLC Decision 550 Carmichael Farm Road Boathouse - Floodplain Variance  P4  position ofMr. Kling that the proposed boathouse exceeded the permitted minimum floor area for an accessory structure permitted by the Floodplain Management Ordinance of the Code, the Applicant decided not to appeal that decision and applied for a variance from the strict application  of the requirements of Chapter 14:3 instead.  Mr. Stevens said that the record in the matter is complete, including a letter from Lane Engineering addressing the criteria for a variance from the strict application of the Floodplain Management Ordinance. In addition, the record includes the Staff Report from John Kling and a letter from the Maryland Department oft the Environment ("MDE"), which states that the County's Floodplain Management regulation for accessory structures exceeds the minimum requirements of the National Flood Insurance Program ("NFIP"). In addition, Mr. Stevens said that the letter from MDE confirms that the project is a functionally dependent use such that a variance is permitted pursuant to 44 CFR 60.6(A)(&).2 Mr. Stevens added that the Applicant received a General Tidal Wetlands License from MDE for the removal of two existing boathouses and construction of a new boathouse, among other things. The License was submitted as part of the application for a  variance.  Mr. Lesniowski asked why the boathouse was considered floor area given that it included side walls and a roof only, with no floor. Mr. Stevens responded by stating that the application is for a variance, not the appeal of the Floodplain Manager's interpretation. He confirmed that the boathouse does not include a floor and that water from the tide will rise and fall within the  boathouse, like aj pier.  Then, Mr. Stevens introduced Dani Racine, Environmental Planner with Lane Engineering, LLC. Ms. Racine said that she has been employed at Lane Engineering since 2012 and that she manages a majority oft the firm's tidal wetland projects. Mr. Stevens asked Mr. Racine to testify to  the considerations required for a variance as required by $ 14:3-65 oft the Code.  244 CFR 60.6(A)(7) provides, "[v]ariances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct ofa functionally dependent use provided that (i) the criteria of paragraphs (a)(I) through (a)(4) of this [60.6] section are met, and (ii) the structure or other development is protected by methods that minimize flood damages during the base  flood and create no additional threats to public safety."    My Wye LLC Decision 550 Carmichae! Farm Road Boathouse - Floodplain Variance  P5  Ms. Racine said that the two existing boathouses on the Property are in disrepair. Given their disrepair, the boathouses are in danger of causing damage or injuries during a flood event, which could be remediated by replacing them with new construction and materials. The disrepair oft the existing timber and galvanized metal boathouses create a danger to life and property due to flooding. She said the proposed boathouse will be constructed with flood resistant materials which will reduce the risk of danger to life or property. She added that new construction materials are  less susceptible to flood damage than older construction and materials.  Mr. Stevens asked about the importance of the services to the community provided by the proposed development. While Ms. Racine said the consideration is not entirely relevant to this particular project, she added that removing two existing dilapidated structures on the Wye River and replacing them with a more attractive new structure will provide a better view for neighbors and boaters. Then, Ms. Racine discussed the availability of alternative locations for the proposed boathouse. She said that the structures are water dependent and must be placed over the water. Moving the boathouse elsewhere on the water in front of the Property would have no impact on necessitating a variance nor would it reduce the risk of flood damage. In addition, the letter submitted by Lane Engineering which is included within the record states that MDE considered the project an in-kind replacement of the existing boathouse structure and that MDE would not  permit an alternative location.  Regarding compatibility of the proposed use, Ms. Racine said that the proposed boathouse isc compatible with development in the area. Mr. Stevens added that the County Comprehensive Plan does not specifically address the replacement of existing boathouses in the floodplain. When asked about safety of access to the Property in times of flood, Ms. Racine said the proposed boathouse will have no impact on the safety of access. She said that floodwaters above the Base Flood Elevation will rise and fall, which may impact the boathouse but that is a risk associated with all piers and boathouses. Last, Mr. Stevens asked her about the costs of providing government services during and after flood conditions. Ms. Racine responded that the proposed boathouse has  no impact on government services related to flood conditions.    My Wye LLC Decision 550 Carmichael Farm Road Boathouse- - Floodplain Variance  P6  Then, Mr. Stevens introduced Timothy Ruff, Appliçant. Mr. Ruff said that the application in front of the Board is for the same boathouse that was approved by the Board in 2022. He said  that they want to construct the proposed boathouse for family members to use.  After presentation of the Applicant's case, Mr. Kling readdressed the Board to clarify a matter. Mr. Kling said that the Floodplain Management Ordinance of the Code applies to all construction within a special flood hazard area in the County. He said that on this particular Property, the special flood hazard area extends into the water, including the area of the proposed boathouse, necessitating compliance with the regulations of the Floodplain Management  Ordinance.  Testimony from the Public  No members of the public testified.  Findings and Conclusions of the Board  The Board finds the testimony and application provided by the Applicant credible and persuasive. The Board concludes that the evidence justifies a variance to the strict application of the requirements oft the Floodplain Management Ordinance. Based on the evidence presented, and duly considering the factors set forthi in $ 14:3-65 and $ 14:3-66oft the Code, the Board specifically  finds and concludes as follows:  1. The existing boathouses are beyond repair and create a greater danger than removing the 2. The new boathouse will be more esthetically pleasing that the existing boathouses which 3. The Applicant will elevate the electrical and mechanical equipment above the Base Flood 4. New construction and materials are less susceptible to flood damage than older  boathouses and constructing a new boathouse with new: materials.  are in disrepair.  Elevation which will reduce risk. construction and materials.  5. There are no alternative locations for the proposed boathouse. 6. The proposed boathouse is a functionally dependent use.    My Wye LLCI Decision 550 Carmichael Farm Road Boathouse- Floodplain Variance  P7  7. The construction of the proposed boathouse was approved by the Board of Appeals in  BOA-22-01-0110.  8. The boathouse does not impact safety ofaccess to the Property.  9. There is good and sufficient cause to allow replacement of the two existing dilapidated boathouses with a single boathouse with the same roof size, which has been approved by 10. Failure to grant the variance to the regulations of the Floodplain Management Ordinance would create a hardship as there are no alternative locations to place the boathouse and a hardship is created by requiring the. Applicant to replace the two boathouses in-kind, rather 11. Construction of the open boathouse with no floor will not result ini increased flood heights. 12. The granting of the variançe will not result in additional threats to public safety or cause any extraordinary public expense, nuisance, fraud or victimization of anyone, nor will it conflict with existing local laws. Constructing the new boathouse will provide more: safety. 13. The new boathouse construction and materials will meet or exceed marine construction 14. Reduction of the proposed boathouse to encompass a roof area of 600 square feet to meet the Floodplain Management Ordinance instead of 825 square feet would not significantly  MDE and was previously approved by the Board of Appeals.  than demolishing them and constructing one: new boathouse.  standards.  reduce flood hazards.  Decision  Based on the foregoing findings and conclusions, by a vote of three in favor and none A variance from the provisions of $ 14:3-41.C(2) toj permit the Applicant to construct an additional 225 square feet (for a total of 825 square feet) below the flood protection elevation to  opposed, the Board grants to the Applicant:  construct a 38 ft. x2 21.7f. replacement boathouse on a pier.    My Wye LLCI Decision 550 Carmichael Farm Road Boathouse - Floodplain Variance  P8  ORDER  For the reasons set forth in the foregoing Opinion, itist this 5th day of April, 2024 ordered that the variance requested for My Wye, LLC, in Case No. BOA-23-08-0160, be  granted.  Craig  Acting Chairman  ANME  M  Michael A. Lesniowski, Member  bay Barry Waterplan,  Member      My Wye LLC Decision 550 Carmichael Farm Road Boathouse - Floodplain Variance  P9  State of Maryland, County of Queen Anne's:  IHEREBY CERTIFY that the foregoing is a true and correct copy ofthe Opinion and Order of the Board of Appeals of Queen Anne's 's County in Case No. BOA-23-08-0160, for My Wye, LLC, which Opinion and Order resulted from a public hearing conducted by the Board of Appeals on February 21, 2024 and that the minutes and a recording oft the February 21, 2024  meeting are filed in the office of] Board of Appeals.  Certified this 5th day of April, 2024 by:  Cathy  fatb Mgl Clerk to the Board of Appeals        BEFORE THE BOARD OF APPEALS OF QUEEN ANNE'S COUNTY  In the matter of Application by David Lewis and' Therese Lewis Appeal of Decision of Floodplain Manager *  Case No. BOA-23-06-0155  FINALDECISION OF THE BOARD  Introduction  The Queen. Anne's County Board of Appeals (the "Board") held ai meeting on February 21, 2024 at 4:30 p.m. to consider Case No. BOA-23-06-0155 for an appeal of a decision of the Floodplain Manager filed by David Lewis and Therese Lewis (hereinafter the "Applicants"). The Board members present were Vice-Chairman, Craig McGinnes, and Board Members Michael  Lesniowski and Barry Waterman.  At the beginning of the hearing, the Board established that all requirements were met governing the filing of the appeal, and proper notice of the February 21st public hearing. Board Vice-Chairman McGinnes administered the oath to all who wished to testify on the application,  including the Applicants.  Applicants' Request  The Applicants appealed the decision of the Floodplain Manager to issue a violation of floodplain development standards found in $ 14:3-40.B. of the Code of Public Local Laws of Queen Anne's County, 1996 Edition (the "Code-"). The Applicants' property is located at 927 Petinot Place in the Cloverfields Subdivision near Stevensville in the 4th Election District (the "Property"). The Property is located in the Neighborhood Conservation-15 (NC-15) Zoning  District.  The Applicants were issued a Sediment Control Permit, Permit No. S21-11-0636, on December 7,2 2021 to pave over an existing 12' x5 50' driveway and grade out 1,250 square feet of berm located in the backyard of the Property. As stated within the Permit, the Applicants were required to remove a hydraulically equivalent volume of material from the Property, which the Floodplain Manager noted on the Permit as "approximately 3.5 truckloads." On May 1,2023,John    Administrative Appeal 927 Petinot Place p.2  Kling, Queen Anne's County Floodplain Manager, sent the Applicants al letter advising them that they were in violation of $ 14:3-40.B. of the Code and stated, Idjevelopment that includes the placement of fill in nontidal waters of the state : other than development that is subject to Subsection D, al hydraulically equivalent volume of excavation is required. Such excavation shall be designed to drain freely." In addition, Mr. Kling cited $ 14:3-18.A. of the Code which states, "lijt shall be unlawful for any person to begin any development or construction which is wholly within, partially within, or in contact with any flood hazard area established in S 14:3-5, including but not limited to: filling; grading; construction of new structures; the substantial improvement of buildings or structures, including repair ofsubstantial damage; placement or replacement ofmanufactured homes, including substantial improvement or repair ofs substantial damage of manufactured homes; erecting or installing a temporary structure, or alteration of a watercourse, until aj permit is obtained from Queen Anne's County. No such permit shall be issued  until the requirements of these regulations have been met."  Mr. Kling advised that a hydraulically equivalent volume of material must be removed from the Property, which he estimated as approximately 3.5 truckloads of dirt at 40 cubic yards, which material was to be removed from a berm areai in the rear of the yard. Mr. Kling advised that upon inspection and investigation, the material removed from the Property was graded closer to the house and sod was installed, which was not within the original Permit. Therefore, Mr. Kling advised the Applicants to remove approximately 3.5 truckloads, or 40 cubic yards, of dirt plus a hydraulically equivalent volume for the sod that was installed on the Property. Mr. Kling gave the  Applicants 90 days to complete the required corrective actions.  On May 30, 2023, the Applicants filed an appeal from the May 1st notice of violation concerning the Permit. Within the Applicants' Statement of Facts and Require for Relief, they request that the Board uphold and enforce the Permit, find that the Permit was satisfied, and vacate  the violation issued on May 1S1.  Applicable Provisions of the Code  The Board of Appeals has the authority pursuant to $ 18:1-115 of the Code to hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of Article 66B of the    Administrative Appeal 927 Petinot Place p.3  Annotated Code of Maryland', or Chapter 18:1 oft the Code. Pursuant to $ 18:1-120 of the Code, the Board shall have the powers of the person from whom the appeal is taken and may make such order, requirement, decision, or determination as ought to be made in conformity with the Land Use Article and Chapter 18:1 of the Code. Pursuant to Grasslands Plantation, Inc. V. Frizz-King Enterprises, LLC, 410 Md. 191 (Md. 2009), al hearing ofan appeal from an administrative decision  is de novo, meaning ai new.  The Applicants appeal Mr. Kling's decision pursuant to $ 14:3-40.B. which provides, djevelopment that includes the placement of fill in nontidal waters of the state. For proposed development that includes the placement of fill in nontidal waters of the state, other than development that is subject to Subsection D,ahydraulically equivalent volume ofexcavation is required. Such excavations shall be designed to drain freely." Specifically, the Applicants dispute the volume of fill that Mr. Kling determined the Applicants were required to remove to meet the hydraulically equivalent volume. The Applicants contend that Mr. Kling erroneously calculated 40 cubic yards of material to be removed and that they removed sufficient material and  have satisfied the permit criteria.  Testimony and Presentation of the Department of Planning & Zoning Christopher Drummond, attorney for the Queen. Anne's County Department ofl Planning & Zoning, introduced himself and presented the position of the Department of Planning & Zoning (the "Department"). Mr. Drummond introduced John Kling, Floodplain Manager for Queen Anne's County. Mr. Kling advised that he has been the Floodplain Manager for Queen Anne's  County for 18 years.  Mr. Drummond asked Mr. Kling to explain the floodplain to the Board. Mr. Kling said that the floodplain is an area mapped by the Federal Emergency Management Agency (FEMA) based upon the probability oft that area flooding from stormwater once every 100 years. Development is managed within the 100-year floodplain to prevent increased flooding and minimize future flood damage. FEMA publishes Floodway and Flood Insurance Rate Maps (FIRM) to delineate the 100- year floodplain and identify floodplain zones. He said that there are different types of floodplain  zones in Queen Anne's County and explained the purpose oft the floodplain.  Article 66B of the Annotated Code of Maryland was repealed and replaced by the Land Use Article in  2012.    Administrative Appeal 927 Petinot Place p.4  Mr. Kling said that the Applicants' Property is located in a nontidal floodplain and is designated in the AE flood zone. Given these designations, Mr. Kling explained that any fill added to the Property has to be mitigated by removal of the same amount of fill from the flood zone. He explained that areas outside of the flood zone on the Applicants' Property where fill is removed would not qualify towards the amount of fill necessary to mitigate fill added to the Property within  the flood zone.  Regarding the Applicants, Mr. Kling said that they applied for a building permit in 2021 and a grading permit to replace an existing asphalt driveway with a concrete driveway. When reviewing the application for the grading permit, Mr. Kling determined that the Applicants needed to bring in a hydraulically equivalent volume of fill to the Property. He explained that the Department routinely accepted equivalent volumes of material plaçed onto and removed from a  property to be hydraulically equivalent.  Mr. Kling said the Applicants provided the volume of fill they needed to bring onto the Property for the project. During the review, Mr. Kling determined that there was a berm in the Applicants' backyard and that they could remove a majority oft the berm to sufficiently offset the fill brought onto the Property for the concrete driveway. Mr. Kling said the Applicants advised that they would bring 3.5 truckloads, which they later quantified as 40 cubic yards, onto the Property and that he felt removal of a majority of the berm would be equivalent to that amount. Then, Mr. Kling explained that he made assumptions when concluding that 40 cubic yards was the appropriate volume to be removed and explained the information upon which he based his conclusion. Based on the information he was aware of, Mr. Kling approved the Applicants' grading permit to pavec overal 14'x50' driveway and excavate al berm ini the rear yard approximately 1,250  square feet.  In April 2023, the Applicants' neighbor, Chuck Lewis, called Mr. Kling to express concerns about the Applicants grading their backyard. Upon receiving the complaint, the Queen Anne's County Department of Public Works visited the Property and raised conçern that the amount of concrete poured was in excess of the original permitted quantity and was beyond the limits approved by the grading permit. Specifically, the original permitted driveway area was 700 square feet at 5.5 inches thick, equating to 12 cubic yards. He said the installed concrete area was 1,026 square feet, equating to 19 cubic yards. Mr. Kling said that the Applicants removed 14.64    Administrative Appeal 927 Petinot Place p.5  cubic yards of fill based on receipts that they submitted to him. Based on the work completed at the Property, he said the Applicants need to remove an additional 25.36 cubic yards to meet the  hydraulically equivalent volume of fill brought onto the Property.  Mr. Kling added that the Applicants undertook additional work on the Property including placing sod on the rear yard which was not included in the permit and fill was not accounted for. In addition, Mr. Kling estimated the berm in the rear yard to be approximately the same size as before the grading permit was issued. Mr. Kling then followed up with the Applicants' concrete contractor and the contractor that laid the sod and both confirmed that they did not remove fill from the Property. In addition, the sod contractor confirmed that the material removed from the Property was graded closer to the house and sod was installed, adding more fill.  Mr. Kling theni issued the notice ofviolation and advised the Applicants to remove 40 cubic yards of fill plus a hydraulically equivalent volume of material for the sod that was installed. In addition, he advised the Applicants that they were required to remove material from the berm in the rear yard. Mr. Kling explained that the Applicants were required to remove fill from the flood zone in the berm and that materials, such as trees, in the berm but above the base flood elevation that were removed did not count towards the required amount of fill to be removed. In addition, hes said the Department must quantify the volume of fill necessary to offset the sod that was placed  on the Property.  Mr. Drummond asked Mr. Kling what action the Applicants need to take to bring the Property into compliance. Mr. Kling said that the. Applicants need to remove the remaining volume that they agreed to remove but did not, and additional volume as a result ofthe sod. Mr. McGinnes asked Mr. Kling ifit was normal practice for him to use truckloads to quantify the amount of fill to be removed for a particular project. Mr. Kling explained the burden and expense on property owners in Queen Anne's County ifthey were required to provide an approximate calculation of fill to be removed to meet the "hydraulically equivalent volume". Generally, he said he relies on an applicant to provide the necessary units of measure and that he determines if the number is reasonable based on the project. In this instance, he said the. Applicants advised that the net added fill for the project was 3.5 truckloads, or 40 cubic yards, which Mr. Kling found to be reasonable  based on the project.    Administrative Appeal 927 Petinot Place p.6  After the Applicants received the notice of violation, Mr. Kling said that they submitted four receipts from R.B. Baker & Sons to quantify and substantiate material that was removed from the Property. Assuming the material included in the receipts did not include woody vegetation or vegetation that would not qualify towards the hydraulically equivalent volume, Mr. Kling determined the amount of fill removed from the Property was 14.64 cubic yards. He added that the fill was required to be removed from the berm and that he used aerial topography to confirm that there was enough material in the berm that could be removed to satisfy the permit.  Applicants' Presentation  David Blitzer, the Applicants' attorney, presented the Applicants' case. Mr. Blitzer began by cross examining Mr. Kling. Mr. Blitzer said that the Applicants' sediment control permit provided conditions including hydraulically equivalent volume of material must be removed from the site which was quantified at approximately 3.5 truckloads. Mr. Blitzer asked if the permit quantified that amount as 40 cubic yards, to which Mr. Kling responded that it did not. Mr. Blitzer raised concerns about the discrepancy between the 12 cubic yards calculated for the original permitted concrete driveway area and the claimed 40 cubic yards brought onto the Property. Mr. Kling responded that the project could have easily utilized 40 cubic yards offill.  Mr. Blitzer questioned the measure of thickness Mr. Kling used to determine the quantity off fill used. Mr. Kling said that a 6" thick pour is common for a driveway and that pictures of the driveway supported that assumption. In addition, he said the Applicants utilized 2"x6 6" board for the concrete formwork, which would lead to an approximately 6" thick driveway. Mr. Blitzer provided his calculation for determining the amount of fill brought in for the driveway and  concluded that it was 19 cubic yards, not 40 cubic yards.  Then, Mr. Drummond asked Mr. Kling if any material was removed from the berm after the driveway was installed. Mr. Kling said that some of the trees and vegetation were removed from the berm, but not fill that would count towards the hydraulically equivalent volume to be removed as that fill was not in the flood zone. When Mr. Drummond asked about the estimated 40 cubic yards brought in for the driveway, Mr. Kling said the amount was reasonable and that it would include material for the driveway and material to blend and feather from the driveway  elevation to existing grades.    Administrative Appeal 927 Petinot Place p.7  Mr. Waterman asked Mr. Kling about an email in the Applicants' file from Joshua Lippert, FEMA Floodplain Management Section Supervisor. Mr. Waterman raised concern because the email refers to 905 Petinot Place. Mr. Kling advised that Mr. Lippert inadvertently referred to the incorrect property address but that his email wasi in reference to the. Applicants' Property. He added that all of Petinot Place is within the same flood zone such that advice provided on 905 Petinot  Place would also apply to the. Applicants' Property.  Then, Mr. Blitzer introduced one of the Applicants, David Lewis. Mr. Lewis said that he initially provided Mr. Kling with the estimate of fill to be brought onto the Property. He said he asked the concrete contractor the amount of material that would be brought in for the driveway, and the contractor said it would be approximately 3.5 truckloads. Mr. Lewis assumed the "truckload" was a dump truck load, but the contractor actually utilized a smaller trailer load. He said that 3.5 trailer truckloads of material was delivered to his Property and 3.5 trailer truckloads  ofmaterial was removed from his Property.  Mr. Blitzer provided the Board with photographs depicting the berm prior to the project and the berm after material was removed. Mr. Lewis said that 3.5 truckloads of material was removed from the berm. He then utilized remaining dirt to grade the Property. Regrading the thickness of the concrete driveway, Mr. Lewis said that it is 4 inches thick and provided a photograph depicting the driveway with a tape measurer: next toi it. Based on the size and thickness of the driveway, Mr. Lewis calculated a total of12 cubic yards of fill added to the Property. Mr. Waterman asked if part of the old driveway was removed prior to installation of the new concrete driveway. Mr. Lewis said that the volume of removed driveway materials was not included in the total fill removed but admitted that the new driveway was larger than what was included in their permit. He said that he removed approximately 14.6 cubic yards of material, but removed more than that because he removed some truckloads that he does not have receipts for  and the previous driveway materials were removed.  Then, Mr. Lewis discussed the sod that was added to the Property. He said that the Applicants installed sod to their front yard because the machines that were utilized to install the driveway tore up the front yard. He said that once they graded to Cox Creek, they put sod down in  the areas damaged by the construction.    Administrative Appeal 927 Petinot Place p.8  Board Discussion  Mr. McGinnes commented that based on the volumes provided, he thought the Applicants utilized 12.5 cubic yards of fill for the new driveway plus 11.5 cubic yards for the sod, with approximately 14.5 cubic yards of fill removed from the Property. However, he added that it appeared that the new driveway was higher than the asphalt driveway that was replaced. Mr. Drummond commented that based on the utilization of the wood form, it is reasonable to assume that the driveway is approximately 5.5" thick. Ms. Ryan reminded the Board that their duty wast to sit as the Floodplain Manager and determine whether the Applicants removed the hydraulically  equivalent volume from the Property.  Mr. Drummond said that agencies must rely on information provided by applicants within their applications. If the agency is required to substantiate the volume of fill to be installed and removed for a specific project, he said it will cost applicants exorbitant amounts of money and delay projects. Instead, the agency needs to be able to rely on approximate information provided  inj permit applications and reasonable assumptions.  Mr. McGinnes asked Mr. Lewis if he had receipts for the stone that was brought onto the Property and used as fill underneath the concrete driveway. He said he did not, but he believes 3 trailer loads of stone was delivered to the Property. Mr. McGinnes asked Mr. Kling what "grade out berm" meant in the permit. Mr. Kling said that the Applicants were required to remove fill  from the berm and then grade the remainder.  Mr. Lesniowski prepared a calculation based on the fact that the Applicants used a 2"x6" to form the driveway and its length and width, which resulted in 17 cubic yards for the concrete driveway. Mr. Lesniowski said it was reasonable to add an additional 5 cubic yards for stone utilized as fill underneath the concrete, which still does not account for the driveway tapering or sod. He said that Mr. Kling calculated an additional 11 cubic yards fors sod, totaling 33 cubic yards added to the Property. The Applicants removed 14.6 cubic yards of fill, which Mr. Kling agreed with. Therefore, Mr. Lesniowski calculated the remaining amount of fill to be removed as a total of 18 cubic yards. Mr. Blitzer commented that the amount of fill removed does not include the  asphalt driveway that was removed and should be accounted for.    Administrative Appeal 927 Petinot Place p.9  Testimony from the Public  Therese Lewis, one of the Applicants, testified. She raised conçern with Mr. Kling calculating the sod into the volume of fill brought onto the Property. She explained the sod and  said that it isr no different from grass.  Chuck Lewis testified in opposition to the appeal. He said that he has lived near the Property for 30 years and that the activities undertaken by thè Applicantshave negatively impacted his property. He said that the. Applicants' driveway is 5"-6"thick, not 4". He said he watched the Applicants' project as it progressed and visually observed the delivery of3 - 4 yards of dirt and did not observe the removal ofany dirt from the Property. He added that he did observe the removal  oftwigs, limbs, and branches from the Property.  Findings and Conclusions of the Board  The Board heard testimony from the Applicants and the Department of Planning & Zoning and finds that the unambiguous evidence presented justifies a finding that there was no error by Mr. Kling in issuing the notice of violation to the Applicants. However, based on the evidence presented, the Board finds that Mr. Kling calculated the incorrect amount of fill to be removed from the Property and instead find that the Applicants are required to remove an additional 16 cubic yards of fill from the Property. The Board came to this decision by specifically concluding  as follows:  1. The concrete driveway has an average thickness of 5 inches.  2. Three trailer loads of stone were brought onto the Property and three trailer loads ofmaterial was removed from the Property. Therefore, the volume ofs stone and the 3. The. Applicants' permit was for a 12' driveway, but the concrete driveway is larger. 4. The hydraulically equivalent volume was not removed from the Property prior to 5. The Applicants are required to remove an addition 16 cubic yards of fill from the  volume of materials removed are equivalent.  Mr. Kling issuing the notice of violation.  Property.  Decision  Based on the foregoing findings and conclusions, by a vote of three in favor and none opposed, the Board denies the Applicants' appeal of the decision of. John Kling to issue a notice    Administrative Appeal 927 Petinot Place p.10  ofviolation. However, the Board finds that the amount off fill the Applicants are required to remove  ist reduced from 40 cubic yards to 16 cubic yards.    Administrative Appeal 927 Petinot Place p.11  ORDER  Fort the reasons set forth in the foregoing Opinion, iti is this 8th day ofMay, 2024, ordered that the appeal requested for David Lewis and Therese Lewis, in Case No. BOA-23-06-  0155, be denied.  Craig W. McGinnes, Acting Chairman PwNL  Michael A. Lesniowski, Member  Barry  heyl A    Administrative Appeal 927 Petinot Place p.12  State of Maryland, County of Queen Anne's:  IHEREBY CERTIFY that the foregoing is ai true and correct copy oft the Opinion and Order oft the Board of Appeals of Queen Anne's County in Casel No. BOA-23-06-0155, for David Lewis and Therese Lewis, which Opinion and Order resulted from aj public hearing conducted by the Board of Appeals on February 21, 2024 and that the minutes and ai recording of  the February 21, 2024 meeting are filed in the office of Board of Appeals.  Certified this 8th day of! May, 2024 by:  Corhy Mol! Cathy Maxwell Clerk to the Board of Appeals    BEFORE THE BOARD OF APPEALS OF QUEEN ANNE'S COUNTY  In the matter of Application by Calvert Crossland LLC w/ Verizon Wireless, Lessee of land owned by Prospect Plantation West Homeowners *  Case No. BOA-23-11-0168  Association, Inc. for Conditional Use  FINAL DECISION OF THE BOARD  Introduction  The Queen Anne's County Board of Appeals (the "Board") helda a meeting onl February 21, 2024 at 4:30 p.m. to consider Case No. BOA-23-11-0168 for conditional use approval to construct al 195-foot-tall telecommunications facility (monopole) and associated equipment within a 50ft. X 50 ft. gravel compound located at 301 W. Prospect Bay Drive in the Prospect Plantation West Subdivisioni near Grasonville in the 5th Election District (the* "Property"). The Applicant also seeks to reduce the required setbacks of the tower. The Application was filed by Calvert Crossland LLC w/ Verizon Wireless, Lessee of land owned by Prospect Plantation West Homeowners Association, Inc. (hereinafter the "Applicant"). The Board members present were Vice-Chairman, Craig W. McGinnes, and Board Members Michael Lesniowski and Barry Waterman.  At the beginning of the hearing, the Board established that all requirements were met governing the filing of the conditional use application, and proper notice of the February 22nd public hearing. Board Vice-Chairman, Craig McGinnes, administered the oath to all who wished  to testify on the application, including the Applicant.  Applicant's Request  The Applicant is seeking conditional-use approval under the provisions of $ 18:1-15.C(20) of the Code of Public Local Laws of Queen Anne's County (the "Code"), to construct a 195-foot- tall elecommunications facility (monopole)and: associated equipment withina 50ft.x50f ft. gravel compound at the Property, and reduced setbacks from the tower to the property lines pursuant to  $ 18.1-95.B(6/0)5I4.    Calvert Crosslands Prospect Bay Tower Conditional Use - Telecommunications Tower  p.2  Applicable Provisions ofthe Code  The Applicant must demonstrate the following criteria to the Board prior to approval ofan 1. Collocation is not a reasonably feasible alternative to the proposed elecommunications  application for a new elecommunications tower:  tower, according to the following criteria:  a. Collocation would exceed the structural capability of any existing commercial or publicly owned elecommumications facility, building, or other structure that would provide the effective signal coverage sought by the applicant, including. structures that have been approved but have not been constructed. The Board of Appeals must find that such structures cannot be modified or reinforced toa accommodate planned or equivalent equipment at a reasonable cost; b. Existing commercial or publicly owned elecommunications facilities, including those that have been approved but are not yet constructed, do not have space on which the proposed elecommunications facilities can be placed sO as to function Collocation cannot be accomplished either without causing significant deterioration of visual appearance with respect to bulk and height, or that such  effectively; and  deterioration cannot be remedied by camouflaging the facility.  2. That each oft the following location, design and landscaping standards has been met.  a. Illumination. No signal, lights, or illumination shall be permitted on a proposed b. Signage. No signage shall be permitted that is not required by FCC on Sites of significant public interest. Telecommumications facilities shall not unreasonably interfere with the view of, or from, sites ofs significant publici interest, such as a public park, a state-designated scenic road, or a state-designated d. Building height. Telecommunications facilities shall not exceed height limitations set forth in this Chapter 18:1, Part 3, Article V. Telecommunications, facilities may locate on a building that is legally nonconforming with respect to height, provided that the facilities do not project above the existing building height. The building haighofeicommmioation: equipment buildings shall not exceed 15 feet.  facility unless required by the FCC or the FAA.  the elecommunications; facility.  historic. site.  e. Setbacks.    Calvert Crosslands - Prospect Bay Tower Conditional Use - Telecommunications Tower  p.3  i.A Alelecommunications facility shall be set back from all property lines a distance equal to the height of the tower. Upon a showing by the applicant that the proposed elecommunications tower is structurally engineered in such a manner that a reduçed fall zone is adequate, the Board of Appeals may reduce the facility setback to no less than 1/2 the height of the proposed tower plus 10 feet. Such a showing must be based on the written testimony ofa structural engineer or other qualified professional. ii. All lattice towers and guy towers shall be at least 300 feet from any residential structure. Telecommunications) facilities shall be situated at least iii. Guy wire anchors shall be setback at least 20 feet from any property line. Future collocations. The elecommunications facility shall be constructed SO as to provide adequate capacity for the future collocation of at least five commercial or publicly owned carriers for towers equal to or more than 175 feet height or three commercial or publicly owned carriers for towers less than 175 feet height. The Board of Appeals may allow a reduction in this requirement upon a showing that full compliance is not reasonably possible due to structural, financial, or aesthetic concerns, or that full compliance would result in violation of a provision of Tower color. Telecommumications towers shall be gray or a color that minimizes h. Camouflaging. Commercially available technology shall be employed to minimize tower visibility, with specific reference to size, color, and silhouette properties. Camouflaging shall be required SO that the elecommunications facilityi is not readily visible from an adjacent property. However, this requirement may be waived or modified where the applicant demonstrates that camouflaging is financially or structurally unreasonable or otherwise prohibits a telecommunications carrier from providing service within the County. Such demonstration must be supported by submission of a statement of position, qualifications, and experience by a licensed radio frequency engineer. Landscaping. Plant materials should be used toi improve site aesthetics by buffering the base of the towers and elecommunications equipment buildings. Security Security fence. A fence or wall not less than eight feet inl height from finished grade shall be installed sO as to enclose the base of any proposed elecommunications tower and equipment building. Access to the tower shall be controlled by al locked gate. The fence or wall shall be ofv wood construction and shall be designed sO as to  200 feet from any public park or recreational area.  Chapter 18.  visibility, unless the FCC or the FAA requires a different color.  fencing should be attractive and ofhigh-quality material.  blend with the surrounding area.    Calvert Crosslands Prospect Bay" Tower Conditional Use Telecommunications Tower  p.4  k. Telecommunications equipment buildings. Equipment buildings not completely screened by a security fence shall have pitched roofs and shall be constructed of either masonry or wood, with wood, vinyl, reinforced concrete, or other good quality siding material. All utilities not located within an equipment shelter or otherwise completely screened by a security fence shall be placed underground.  $18:1-95.B.6).  In addition, the standards the Board must apply to the Applicant's request fora conditional use are set forth in $ 18:1-94 oft the Code. To approve the conditional use, the Board must find as  follows: 1.  The proposed use at the proposed location shall be consistent with the general purpose, goals, objectives, and standards of the Comprehensive Plan, this Chapter 18:1, or any other plan, program, map, or ordinance adopted, or under  consideration pursuant to official notice, by the County.  2.  The proposed use at the proposed location will not result in a substantial or undue adverse impacts on adjacent property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites or rights-of-way, or other matters affecting the public health, safety, and general welfare.  3.  Thej proposed use at the proposed location will be adequately served by, and will not impose an undue burden on, any oft the required improvements referred to int this Chapter 18:1, Part 7. Where any such improvements, facilities, utilities, or services are not available or adequate to service the proposed use at the proposed location, the applicant shall, as part ofthe application and asacondition ofapproval of the conditional use, be responsible for establishing ability, willingness, and binding commitment to provide such improvements, facilities, utilities, and services in sufficient time and in a manner consistent with the Comprehensive Plan, this Chapter 18:1, and other plans, programs, maps, and ordinances adopted by  the County.  Further, $ 18:1-123.B. requires the Board to make the following findings to approve a conditional  use:  1. Chapter 18:1 exist; 2. 3.  The conditions concerning that conditional use as detailed in this The conditional use conforms to the Comprehensive Plan; and The conditional use is compatible with the existing neighborhood.    Calvert Crosslands - Prospect Bay Tower Conditional Use Telecommunications Tower  p.5  Last, pursuant to Maryland Annotated Code, Land Use Article $1-303, the Board must include in its evaluation of the Comprehensive Plan, pursuant to the above-cited section, certain consistency findings. The Board's approval of a conditional use must further, and not be contrary to, the  following items in the Queen Anne's County Comprehensive Plan:  1. 2. 3. 4. 5. 6. 7.  Policies;  Timing of the implementation ofthe plan;  Timing of development; Timing of rezoning; Development patterns; Land uses; and Densities or intensities.  Property Description and Department of Planning & Zoning Recommendations Doug Summers, Associate Planner with the Department of Planning & Zoning, presented his staff report. He said that the Applicant is seeking conditional use approval to construct a elecommunications facility and to reduce the required setbacks from the tower to the property lines. Specifically, the Applicant is proposing to construct: a 195'tall monopole elecommunication facility and a 2,500 square foot equipment compound. He said the Property is located in the southern part of the County, 2 miles south of Grasonville on the Piney Neck cape. He more specifically identified the Property as Tax Map 72, Parcel 78, Plat Parcel E, located at 301 West Prospect Bay Drive, Grasonville, Maryland. The Property is located on the west side of Prospect Bay Road, approximately % mile south ofits intersection with Perry's Corner Road.  The Property is zoned Countryside (CS). Mr. Summers said that there are non-tidal wetlands on site but that no wetland disturbance is proposed for the project. There are no USGS blueline streams adjacent to or on the site. He said that Parcel E contains 53.808 acres of deed restricted open space that was created to support part of the Prospect Bay subdivision. The proposed elecommunications lease area and access drive are located outside ofthe restricted open space area. He said that Parcel E contains 26 acres of protected forest area located within several    Calvert Crosslands - Prospect Bay" Tower Conditional Use Telecommunications Tower  p.6  separate forest stands. He added that more forest area was placed into protection than was required by the County when the Property was originally subdivided. However, he said that the Applicant has proposed an amendment to remove 0.58 acres from the protected forest area. Iftl the amendment is approved, he said that the tower lease area and access drive will be located outside of any  protected forest areas.  Then, Mr. Summers showed the Board an aerial photograph of the Property with the site layout and proposed setbacks. The photograph depicts the leased area, the equipment compound and monopole, the required setback of 195 feet, the proposed reduced setback of 107.5 feet, and the access drive. He said that telecommunications facilities are required to be setback from all property lines a distance equal to the height of the tower. However, pursuant to $ 18:1- 95.B.(6)(b)[5]ta), the Board has the authority to reduce the facility setback to no less than % the height oft the proposed tower plus 10 feet upon a showing by the applicant that the proposed tower isst structurally engineered in such a manner that ai reduced fall zone is adequate. Mr. Summers said that a letter was provided by a Maryland licensed structural engineer to certify that the proposed tower shall be designed with ai maximum fall zone of97.5 feet from the center of the tower's base. The Applicant is seeking a reduced setback of 107.5 feet, which meets the requirement of% the  height of the tower plus 10 feet.  Next, Mr. Summers showed another aerial photograph depicting the site plan for the project. He said that the site proposes equipment location for Verizon, identified by a hollow blue box on the photograph, and four future collocations, identified by solid blue squares. He said the Applicant is not proposing any lighting or signage beyond what is required by the FCC. The gravel compound will be fenced in by an 8' tall board on board wood fence and dense tree cover will provide adequate landscaping: and screening for the proposed tower and facilities, which conditions  meet the requirements of the Code.  Mr. Summers stated that the Applicant's application meets the criteria required by $ 18:1- 95.B.(6). Further, as provided in Mr. Summers' staff report, the Applicant provided sufficient evidence to support that collocation is not a reasonably feasible alternative to the proposed elecommunication tower. Specifically, his report identifies that the Applicant provided ai narrative describing the search that commenced in 2014 for a property in the area south of Perry's Corner    Calvert Crosslands - Prospect Bay Tower Conditional Use - Telecommunications Tower  p.7  Road on two peninsulas based off ofProspect Bay Road and Bennett's Point Road. The Applicant found two parcels zoned Countryside that are suitable for evaluation ofat tower due to the proposed height and zoning district requirements. The Applicant evaluated the existing water tower within the Prospect Bay community but found it too short to meet provider coverage goals. In addition, an existing 200' tower that is located approximately 1.15 miles north on Crows Nest Road was evaluated but was found too far north to meet southern extent of provider coverage goals. Mr. Summers' staff report identifies that all other Countryside zoned properties evaluated by the Applicant presented natural resource concerns, legal issues, land preservation encumbrances, historic property restrictions, and/or unwilling landowners. Last, the Applicant signed a lease in  2019 with the Prospect Bay Homeowner's Association.  Mr. Summers said that the Applicant provided all studies and documents required by $ 18:1-95.B, including a NEPA study, FCC/FAA documents, electronic details and studies, engineering studies, an executed lease, and a collocation and site analysis narrative. Then, Mr. Summers provided the Board with photographs of the balloon test that was completed by the Applicant. In most of the photographs provided, the balloon from the balloon test was either not visible, or was difficult to see due to distance and tree coverage. Then, Mr. Summers shared a  photo simulation of the proposed tower and view from different locations.  Mr. Summers said that the Department ofPlanning & Zoning did not receive comments or objections from other reviewing agencies to the proposed project. He added that the project as proposed is consistent with the 2022 Queen Anne's County Comprehensive Plan as it relates to increasing access to broadband technology in rural areas, improving County telecommunication infrastructure, accommodating growth to attract high-tech jobs, and preventing rural landscapes through adequate screening and setbacks. He concluded by stating that staff would support the Board in granting the conditional use to the Applicant to construct a 195' monopole with auxiliary elecommunications and support equipment within the proposed lease area, and would support the request for reduced tower setbacks with any or all of the conditions identified in his staff report. Mr. Waterman asked how far the proposed tower is from the next closest house. Mr. Summers said that it is over 700 feet away. Mr. Lesniowski asked ift thisi isa a straight monopole, or    Calvert Crosslands Prospect Bay Tower Conditional Use Telecommunications Tower  p.8  ifit will be camouflaged. Mr. Summers responded and said that it isar monopole that will not be  camouflaged.  Applicant's Presentation  Joseph Stevens, attorney and agent on behalf of the Applicant, presented the Application along with Barbara Pivec, Partner of Calvert Crosslands, LLC. First, Mr. Stevens noted Mr. Summers' staff report and referenced pages 8 and 9 supporting consistency oft the application with the Queen Anne's County Comprehensive Plan. Then, he noted that Mr. Summers certified that the Applicant met all submittal requirements per the Code and that the Planning and Zoning Department is tasked with reviewing submittals for completeness prior to submitting applications to the Board. Then, Mr. Stevens gave an overview of the witnesses he intended to call to testify  regarding the application.  First, Mr. Stevens called Barbara Pivec. Ms. Pivec identified herself and said that she has worked in the telecommunication infrastructure industry primarily with wireless carriers since 1995. In 2015, she and her Partner, George Rich, started the company in 2015 and have developed smart, well-sited telecommunications towers in Maryland and Virginia. Since 2015, she said she has sited 18 telecommunication towers. Mr. Stevens admitted a copy ofl Ms. Pivec's resume into the record. In addition to her professional experience, Ms. Pivec said that she lives down Bennett Point Road SO she is familiar with the area of the proposed telecommunications tower. She said  that the particular area has needed coverage for many years.  She added that she was approached by a carrier in 2014-2015 to evaluate the area and its suitability for a tower. She said that the Queen Anne's County Code only permits 200' tall telecommunications towers in 4 zoning classifications, one of which is Countryside. In addition, the proposed location cannot be encumbered by a parcel with a deed restriction, or within a perpetual conservation easement. She said that the number of protected areas in Queen Anne's  County make it difficult to site a tower.  Originally, she said that Verizon evaluated a property in the Prospect Bay community area down Country Lane. However, after completing the balloon test on that property, they became aware ofa deed restriction on the leased parcel oft the property that did not permit development. In addition, she added that the property was not the best site due to proximity to residences and the    Calvert Crosslands Prospect Bay Tower Conditional Use Telecommunications Tower  p.9  location of wetlands. Ms. Pivec was later contacted by an individual from the Prospect Bay Country Club with an interest in a telecommunications tower and improved service. Ms. Pivec believes the proposed tower will provide coverage for the Prospect Bay community, in addition to  the back-end of Grasonville and to the Bennett Point peninsula.  She said that there are 4 towers within close proximity with Verizon on them. Specifically, there are towers at Nesbit Road, across the water at Wades Point in Talbot County, at Chesapeake Community College, and at the Narrows. Including Verizon on the proposed tower at Prospect Bay will improve the network. Ms. Pivec said that she was a consultant for Verizon from 2002t to 2013 and that the geographic area of the proposed project has been a recognized area of need for  many years.  Ms. Pivec said that her company signed a lease with the Prospect Bay Homeowners Association in 2019 for the proposed tower area. Mr. Stevens advised the Board that a copy oft the Ground Lease Agreement between Calvert Crossland, LLC and Prospect Plantation West Homeowner's Association, Inc. is included in the Applicant's binder submitted with the project application. In addition, Mr. Stevens admitted a letter from the Prospect Plantation West Homeowner's Association, Inc. Board of Directors regarding the lease. Then, Ms. Pivec gave a briefoverview of the process to obtain a telecommunications tower including the necessary site  studies and evaluations that are necessary to complete.  Then, Mr. Stevens asked Ms. Pivec about the ability to collocate. She said that the Applicant is an independent tower company with a primary goal of collocating. She said that the County promotes and suggests collocation rather than erecting new towers. However, given the needs of Verizon, she explained that collocation was not feasible for this application. Specifically, she explained that Verizon will install antennas on the monopole's top platform at a mounting height of 191' above ground level. This will allow space for 4 additional future FCC licensed wireless providers for at total of5 possible providert tenants. When the Applicant evaluated existing structures that could support collocation, the Applicant concluded that the only structures within the proposed area were not tall enough to serve Verizon. Specifically, Ms. Pivec said that one structure is a 3-legged self-support radio tower north of the Property with structural issues. In addition to the tower's structural issues, it is also too close to an existing tower at Nesbit Road to    Calvert Crosslands Prospect Bay" Tower Conditional Use Telecommunications Tower  p.10  support Verizon. The other structure identified was the Prospect Bay Water Tower, which is 135' tall. The Applicant determined that the Prospect Bay Water Tower does not provide the necessary height to provide the desired coverage. In addition, the Applicant cannot construct a structure on top of the water tower that will provide enough height for coverage. Ms. Pivec then explained why water towers have become less desirable for telecommunications facilities, including issues with  required maintenance.  Ms. Pivec said that the proposed tower will be located inside of an existing wood line and adjacent to a golf course area. She said that trees will not be removed for the project. The closest residential dwelling is 729.5' from the proposed tower center line. The second closest dwelling to the proposed site is 802.1' from the proposed tower center line. Mr. Stevens admitted Applicant's Exhibit 8, depicting distances from the proposed site to the nearest property lines. The Exhibit further depicts telecommunication towers throughout the County and their proximity to high-  density residential zoning districts.  Mr. McGinnes asked Ms. Pivec ifs she was familiar with the 10 conditions included within Mr. Summers' staff report, to which she responded yes and advised that she had no problem with the conditions. Mr. Waterman asked about tab 11 in the Applicant's binder of exhibits. Ms. Pivec explained that the maps were prepared by the radio frequency department at Verizon and represent existing 700-megahertz service without the Applicant's additional proposed tower, and with the Applicant's proposed tower to identify the increase in service coverage by construction of the  proposed tower.  Mr. Stevens identified a condition in the staffreport that the Applicant post a bond. He: said the bond will require removal of the proposed tower in the event that it is not in use for a period oft time. Ms. Pivec added that the requirement is also included within the Applicant's 's lease for the  Property.  Then, Mr. Stevens introduced Brandon Davis, civil engineer with Davis, Moore, Shearon & Associates. Mr. Davis said that he completed the concept site plan for the project and that he is familiar with the Property. Mr. Davis said that there is an existing forest conservation easement in the Prospect Bay community as a result of a 2005 forest conservation plat that was approved as part of an expansion of the clubhouse within Prospect Bay. Specifically, he said that there are 30    Calvert Crosslands Prospect Bay Tower Conditional Use - Telecommunications Tower  p.11  separate forest conservation easement areas scattered throughout the community totaling 38.13 acres, but the community is only required to have 34.31 acres of forest conservation area. Given that more forest was placed into protection than was required, the Applicant is seeking to amend the Forest Conservation Plan to remove 0.58 acres of protected forest area. Even ifa approved, the Applicant is not seeking to remove a large volume of trees. In fact, Mr. Davis said that some of the forest conservation easement is platted on open lawn area with no trees. He concluded by stating that if the Applicant's project is approved, the Prospect Bay community will still be  compliant with forest conservation requirements.  Next, Mr. Stevens introduced Paul Dugan, Professional Engineer with Millennium Engineering, P.C. Mr. Dugan is a graduate elecommunications consulting engineer who was retained by the Applicant to perform a collocation interference analysis for the proposed elecommunication facility. Mr. Dugan said that the Code requires the Applicant to provide evidence that the proposed tower will not interfere with the Queen Anne's County public safety communications system mobile receiver frequencies. Based on his analysis, Mr. Dugan confirmed that the proposed tower will not cause interference with Queen Anne's County receiver frequencies. Mr. Stevens identified an exhibit marked as Applicant's Exhibit 3 which is an email from Scott Haas, Director of Queen Anne's County Department of Emergency Services, noting no concerns. Additionally, Mr. Stevens advised that the Applicant and any telecommunication tenant will be required to comply with radio frequency emission standards regulated by the Federal  government.  Then, Mr. Stevens introduced Jacob Toroney, Professional Engineer with Morris & Ritchie Associates, Inc. Mr. Toroney advised that he is as structural engineer and prepared. al letter certifying that the proposed 195' monopole structure will be designed to meet the requirements oft the 2018 International Building Code and the ANSI/TIA-222-H Standard. Specifically, he said that the monopole is required tol be designed to meet certain minimum loading conditions fori ice and wind. He added that the monopole is designed to hold up to 5 carriers and meet the minimum loading conditions. In addition, the monopole is required to be designed by the manufacturer such that should failure oft the monopole occur, the maximum fall zone radius will not exceed halfthel height ofthe tower. The monopole is designed such that ifi failure does occur, it will occur in the middle of the monopole and the monopole will collapse on itself. Mr. Toroney said that the proposed    Calvert Crosslands - Prospect Bay Tower Conditional Use Telecommunications Tower  p.12  monopole meets all structural engineering standards. He added that the land around the proposed monopole is vacant and that the property to the north is encumbered by an agricultural preservation  easement that prohibits development.  Next, Mr. Stevens introduced William Fitzhugh Turner, a Certified General Appraiser with Tidewater Properties Appraisers, LLC, in Stevensville, Maryland. He said he has been performing appraisals on the Eastern Shore for 4 decades and that he has the required certifications and continuing education to maintain a license as an appraiser. Mr. Turner prepared an appraisal to examine the effect of the proposed tower on the value to surrounding properties. He said he has evaluated the value of properties near tower sites since 2007 when he was hired by Kent County toj provide an opinion on the impact ofaj particular tower in Still Pond. In conducting his analysis, Mr. Turner observed subdivisions with elecommunications towers and those without. He said his opinion is that the proposed tower will have no adverse impact on the market value of any ofthe properties adjacent to the Property. He also conducted appraisals on properties prior to installation ofar nearby telecommunications tower, and post-installation of a elecommunications tower and  found no impact.  Mr. Lesniowski asked Mr. Turner if he had an opinion on whether lack of cellular or internet service negatively impacted an appraisal. Mr. Turner responded that he had not analyzed  the impact but believes no service would have a negative impact.  Testimony from the Public  Mr. McGinnes advised that the Board reçeived emails from individuals wishing to offer testimony on the application. Mr. McGinnes advised that the Board does not accept written testimony without the presence of the person submitting the testimony at the hearing.  James Tranquill testified in favor of the application. He said he is a resident in Prospect Bay and has been for 18 years. Mr. Tranquill is on the Board of Directors for the Country Club who have discussed trying to get a tower since 2012. He said the cell service in the community is terrible and that iti is a safety issue. He concluded by stating that he viewed the balloon test and did  not find the balloon to be very visible.    Calvert Crosslands Prospect Bay Tower Conditional Use Telecommunications Tower  p.13  Nicholas Deoudes testified in favor of the application. He said that he moved to Bennett Point in 1995 and hasn't! had good cell service since. He added that he frequently drops calls while moving around his house and that the status oft the cell service is aj public health and safety concern. Jack McClellan testified in favor of the application. He said that he experienced a fall in the Prospect Bay clubhouse last year and the poor cell service prohibited observers from calling  out to 911.  Jon Vodehnal, General Manager at the Prospect Bay Country Club, testified in favor oft the application. He said that the Board of the Country Club went through a public hearing process regarding the application for overa a year and that the Board is unanimously behind the project. Ms. Pivec added that the Applicant held an advertised public hearing at the Country Club where 100 people attended and only approximately 4 people raised concern about the project.  Kimberly McLamb testified in opposition to the application. She said that the proposed tower will be visible out of her front door and that she is concerned about a decline inl her property value as a result. She submitted copy of lease between the Homeowner's Association and the Applicant dated August 1, 2019. She also submitted Bylaws of the Prospect Plantation West Homeowners Association and argued that the individual that signed the lease on behalf of the  Homeowner's Association did not have authority.  Robert Hoffman testified in opposition to the application. He submitted an email to the Board with attachments. He raised concern about a decline in his property value as a result oft the location of the proposed tower. He said that most towers from Prospect Bay to Anne Arundel County are 135' to 149' in height, although some ini the Annapolis area are 169' high. He believes that the cell tower would be on the Prospect Bay water tower if the community were to receive funds from the lease rather than the County. He also raised concern about the fact that 2/3rds of the community did not vote to approve the lease with the Applicant. Mr. Hoffman said the maintenance road the Applicant seeks to use cannot be extended. He disputed that the balloon used for the balloon test conducted by the Applicant was 6' and instead believes it was 3' which impacted the view. He is concerned that the proposed tower will be an eyesore. Mr. McGinnes asked Mr. Hoffman if he has professional background toj provide an opinion that thel Prospect Bay water tower could accommodate Verizon, to which Mr. Hoffman responded that he did not.    Calvert Crosslands Prospect Bay" Tower Conditional Use Telecommunications Tower  p.14  Ann Fisher-Yan testified. She and her husband own Talisman Plantation, next door to the Property. She said the land totals 500 acres and is in a conservancy. She raised questions about notification of the project but stated that she received notification of the Board hearing. She was  unaware oft the balloon test that was conducted.  Findings and Conclusions of the Board  The Board finds the testimony and application provided by the Applicant credible and persuasive. The Board concludes that the videnecustifesappova oft the conditional use request. Based on the evidence presented, and duly considering the applicable factors from the Queen  Anne's County Code, the Board specifically finds and concludes as follows: 1. The Applicant established the criteria required by $18:1-95B.(6). 3. The location, design, and landscaping standards have been met.  2. Collocation is not a reasonably feasible alternative to the proposed elecommunications 4. The project is consistent with the 2022 Queen Anne's County Comprehensive Plan as 5. The proposed use at the proposed location will not result in substantial or undue adverse impacts on adjacent property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites or rights-of-way, or other matters affecting the  tower.  further identified in the staff report.  public health, safety, and general welfare. 7. Thej proposed tower is structurally sound.  6. Ar report was submitted to ensure no interference with County 911 systems.  8. The closest property line from the Property is 325' and is a golf course. The closest residential property line to the Property is 517' from the proposed tower. The closest residential structure is approximately 615' from the proposed tower. 9. The proposed tower will be placed in densely wooded area that will assist with camouflaging. The proposed tower will not require significant tree removal. 10. The setbacks safeguard adjacent properties, structures, and/or community activities. 11.A structural engineer submitted written testimony stating that the tower is structurally engineered in such a manner to provide a reduced fall zone. A reduced setback of 17.5'is 12. The testimony and evidence supported that the proposed tower will not create significant 13.Thel height of the proposed tower meets limitations set forth in $18:-15.E.2)d)0). 14. The Applicant met the criteria established by $ 18:1-95B.6)D))A, 15. The limited cell service in the Prospect Bay community creates a public health and safety 16. The Applicant submitted all documents and materials required to receive approval of the  permitted.  effects on health or property values.  concern. conditional use.    Calvert Crosslands - Prospect Bay Tower Conditional Use-Telesommunications Tower  p.15  Decision  Based on the foregoing findings and conclusions, by a vote of three in favor and none 1. Conditional use approval pursuant to SS 18:1-15C.(20), 18:1-92, 18:1-94 and 18:1-95B to construct a 195' telecommunications facility (monopole) and associated equipment within a 50' x 50 gravel compound, and reduced tower setbacks pursuant to $ 18:1- a. The applicant shall obtain all necessary Federal, State and County permits as b. Building permit submission requirements under $18:1-95B.(5) must be met. C. Any outstanding comments stemming from agency reviews are addressed. d. Any required bonds, sureties, review, and inspection fees must be submitted to the Prior to permit application, the applicant must record an amended forest At least one legally binding service agreement between the owner of the proposed facility and one service provider must be executed and provided to the Department The tower and all site elements shall substantially reflect the concept plan reviewed h. No commercial advertising or other signage, except that required, shall be permitted on the monopole. The monopole shall have a single sign, no larger than six square feet, affixed to the equipment building 'or fence enclosure that identifies the tower owner, each locating provider, FCC tower registration number, and the telephone Then monopole shall be the proposed color oracolor that minimizes visibility unless ac different color is required by the FCC. Commercially available technology shall be employed toi minimize tower visibility, with specificreference to size, color, and The monopole shalll be used continuously for wireless communications. Int the event that the monopole ceases to be used for aj period of six months, the conditional use approval shall be revoked. In the event that the County Zoning Administrator is presented with evidence that further viability of the monopole is imminent, the Zoning Administrator may grant one extension of the conditional use approval for aj period not to exceed six months beyond the revocation of the use. The applicant shall take all necessary steps to dismantle the monopole and remove and dispose of all remnants and materials, including concrete or masonry foundations, from the subject parcel within 90 days after termination. The applicant shall ensure removal of the monopole and all associated accessory structures by posting a monetary guarantee with the County. The guarantee shall be submitted prior to the issuance  opposed, the Board grants to the Applicant:  95B.(6)(b)l5]la), subject to the following conditions:  applicable.  Department of Planning and Zoning as appropriate. conservation plan including any required legal documents. of Planning and Zoning prior to issuance ofa a building permit.  and approved by the Board of Appeals.  number for the person to contact in the event of an emergency.  silhouette properties.    Calvert Crosslands Prospect Bay Tower Conditional Use Telecommunications Tower  p.16  ofa building permit and shall be for an amount of $55,000, a cost that is equal to  the estimate of removal oft the facility, plus a 15%C contingency.    Calvert Crosslands - Prospect Bay Tower Conditional Use Telecommunications Tower  p.17  ORDER  For the reasons set forth in the foregoing Opinion, itisthis_ 10th day of April, 2024, ordered that the conditional use approval requested for Calvert Crossland, LLC w/Verizon Wireless, Lessee ofl land owned by Prospect Plantation West Homeowners Association, Inc., in Case No. BOA-23-11-0168, be granted, subject to the conditions set forth ini the Opinion.  Craig W. McGinnes, ANAE  Chairman  A  Michael A. Lesniowski, Member  h  Member  hay Barry Waterman, Alternate    Calvert Crosslands Prospect Bay Tower Conditional Use - Telecommunications Tower  p.18  State of Maryland, County of Queen Anne's:  IHEREBY CERTIFY that the foregoing is a true and correct copy of the Opinion and Order ofthe Board of Appeals of Queen Anne's County in Case No. BOA-23-11-0168, for Calvert Crossland, LLC w/Verizon Wireless, Lessee of land owned by Prospect Plantation West Homeowners Association, Inc., which Opinion and Order resulted from a public hearing conducted by the Board of Appeals on February 21, 2024 and that the minutes and a recording of  the February 21, 2024 meeting are filed in the office of Board of Appeals.  Certified this 10th day of April, 2024 by:  Mgkill  Cathy CpED Clerk to the Board of Appeals