Can a Maryland town let its zoning board grant a variance on an easier 'practical difficulty' standard instead of 'unnecessary hardship'?

Plain-English summary

The Town Council of Washington Grove amended its zoning ordinance to let its board of zoning appeals grant a variance on a showing of either "unnecessary hardship" or the easier "practical difficulty" standard. The town council itself doubted the change was legal and asked the Attorney General to confirm.

The AG agreed the amendment was invalid. Article 66B, the state zoning enabling law, defines "variance" to require a showing of "unnecessary hardship" everywhere the term appears in the statute, and Maryland courts have held that "practical difficulty" is a lesser standard than "unnecessary hardship." Because municipalities have no independent, inherent zoning power (their zoning authority comes entirely from the state enabling act), a town cannot use its own ordinance to loosen the standard the state statute sets. The opinion also rejected the argument that Article 23A's general municipal zoning power lets a town go beyond Article 66B's specific variance standard, reasoning that Maryland courts read the two articles together rather than treating the general grant as an implied repeal of the specific one.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article 66B's zoning provisions have since been recodified into the Land Use Article.

Common questions

What's the legal difference between "unnecessary hardship" and "practical difficulty" for a zoning variance?
The opinion described unnecessary hardship as the standard under which a zoning restriction, applied to a specific property, is so unreasonable that it becomes an arbitrary interference with the basic right of ownership. "Practical difficulty" has been read by Maryland courts to impose a lesser standard, meaning it is easier for an applicant to satisfy.

Why couldn't Washington Grove just define "variance" more broadly in its own ordinance?
Because Article 66B, §1.00 defines "variance" for the whole statute, and that definition, including the unnecessary-hardship requirement, controls wherever the term "variance" appears in Article 66B. The opinion treated a municipality's zoning power as entirely derived from that state enabling act, not from any independent municipal authority.

Does a municipality's general zoning power under Article 23A let it override Article 66B?
No, according to this opinion. The AG read Article 23A, §2(b)(30)'s general grant of zoning authority as working together with Article 66B's specific variance standard, not as repealing it, applying the rule that specific statutory provisions control over general ones and that implied repeals are disfavored.

Did an earlier case (Zengerle) already allow a "practical difficulty" standard in Frederick County?
The opinion addressed that argument directly. Zengerle assumed the Frederick County Code's practical-difficulty-or-unnecessary-hardship standard without ever considering whether Article 66B permitted it, so the AG concluded Zengerle did not control the question presented here.

Background and statutory framework

Article 66B, §4.07(a) requires a municipality's legislative body to create a board of zoning appeals, and §4.07(d)(3) lets that board authorize a "variance" in specific cases. Section 1.00 defines "variance" as a modification of density, bulk, or area requirements that will not be contrary to the public interest and where a literal enforcement of the ordinance, owing to conditions peculiar to the property and not caused by the applicant, would result in unnecessary hardship. Maryland courts (Green v. Bair) have held that this definition governs every use of "variance" in Article 66B, and other decisions (Marino v. City of Baltimore; Loyola Loan Assoc. v. Buschman) have distinguished the stricter unnecessary-hardship test from the looser practical-difficulty test.

Because municipal zoning power in Maryland comes entirely from the state enabling act rather than any inherent municipal authority (Lunter v. Laudeman; West Montgomery Assoc. v. Maryland Nat'l Cap. Park & Planning Comm'n), and because Article 66B prevails over conflicting local law (Boulden v. Mayor), a municipality has no power to alter the variance standard the statute sets. The opinion also surveyed out-of-state decisions reaching the same conclusion about local governments substituting their own variance standards for a stricter state enabling-act standard, including Cole v. Board of Zoning Appeals for Marion Township (Ohio) and similar cases from Alabama, Connecticut, Indiana, New Jersey, New York, Rhode Island, Oklahoma, and South Carolina.

The opinion rejected two counterarguments. First, Zengerle v. Board of County Commissioners upheld a variance under the Frederick County Code's "practical difficulty or unnecessary hardship" standard, but the AG noted that decision never addressed whether Article 66B permitted that standard in the first place, so it could not control. Second, the opinion considered whether Article 23A, §2(b)(30)'s general grant of municipal zoning authority could support a broader variance standard, and concluded it could not: Maryland courts disfavor implied repeals (Prince George's County v. Laurel) and have read Article 66B and Article 23A together rather than in conflict (City of Annapolis v. Kramer), with the specific provisions of Article 66B, §4.07 controlling over the general grant in Article 23A, §2(b)(30) (Lumberman's Mutual Casualty v. Insurance Comm'r).

Citations and references

Statutes:

• Article 66B, §1.00 of the Maryland Code (definition of "variance")
• Article 66B, §4.07(a), (d)(3) of the Maryland Code (board of zoning appeals; variance authority)
• Article 23A, §2(b)(30) of the Maryland Code (general municipal zoning power)

Cases:

• Green v. Bair, 77 Md. App. 144 (1988) (Article 66B's variance definition governs throughout the statute)
• Lunter v. Laudeman, 251 Md. 203 (1968) (municipal zoning power derives from the state enabling act, not inherent authority)
• Zengerle v. Board of County Comm'rs, 262 Md. 1 (1971) (did not address whether Article 66B permitted a "practical difficulty" standard)
• City of Annapolis v. Kramer, 235 Md. 231 (1964) (Article 66B and Article 23A must be read together)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 360-365 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Local Government -- Municipalities -- Zoning -- Municipality Lacks Authority to Adopt "Practical Difficulty" Standard For Variances

October 5, 1990

Stephen P. Johnson, Esquire

On behalf of the Town Council of Washington Grove, you have asked for our opinion concerning the standard to be applied by a municipal board of zoning appeals when considering an application for a variance. Specifically, you have asked whether a municipality may, by ordinance, authorize its board of zoning appeals to grant a variance upon a showing of "practical difficulty," or whether a showing of "unnecessary hardship" is required. As we understand the situation, the Washington Grove Town Council originally adopted an ordinance that allowed variances only on a showing of "unnecessary hardship." This ordinance was amended at a special town meeting to allow a variance on a showing of either "practical difficulty" or "unnecessary hardship."

For the reasons that follow, we conclude that a municipality lacks the authority to permit its board of zoning appeals to grant a variance on a showing of "practical difficulty." Therefore, we agree with your conclusion that Washington Grove's amended ordinance is inconsistent with State law.

I

Enabling Act Standard

Article 66B, §4.07(a) of the Maryland Code provides that the local legislative body of a municipality shall provide for the appointment of a board of zoning appeals. Among other powers, a board may "authorize upon appeal in specific cases a variance from the terms of the [zoning] ordinance." Article 66B, §4.07(d)(3).

The statute defines "variance" as follows:

    [A] modification only of density, bulk, or area requirements in the zoning ordinance where such modification will not be contrary to the public interest and where owing to conditions peculiar to the property, and not the results of any action taken by the applicant, a literal enforcement of the ordinance would result in unnecessary hardship.

Article 66B, §1.00 (emphasis added). This definition of "variance," including the requirement of "unnecessary hardship," applies wherever the term "variance" is used in Article 66B. See Green v. Bair, 77 Md. App. 144, 150, 549 A.2d 762 (1988). Thus, Article 66B contemplates that variances will be granted only on a showing of unnecessary hardship. Cf. Mayor & City Council of Baltimore v. Polakoff, 233 Md. 1, 194 A.2d 819 (1963) (power to grant exceptions to zoning regulation to be strictly construed).

Under Maryland law, "[t]he criterion for determining unnecessary hardship is whether the applicable zoning restriction when applied to the property in the setting of its environment is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private ownership." Marino v. City of Baltimore, 215 Md. 206, 217, 137 A.2d 198 (1957). "Practical difficulty," on the other hand, has been read to impose a lesser standard. Loyola Loan Assoc. v. Buschman, 227 Md. 243, 248-49, 176 A.2d 355 (1961).[1] Therefore, Article 66B cannot be read to authorize the use of the "practical difficulty" standard by a municipal board of zoning appeals.

Municipalities in Maryland have no inherent zoning power. "[T]he zoning powers of municipal corporations are derived from the State Enabling Acts and not from any general grant of the State's police power to municipal corporations." Lunter v. Laudeman, 251 Md. 203, 209, 246 A.2d 540 (1968). Therefore, the zoning power may be exercised only to the extent and in the manner directed by the General Assembly. West Montgomery Assoc. v. Maryland Nat'l Cap. Park & Planning Comm'n, 309 Md. 183, 198-99, 522 A.2d 1328 (1987). If Article 66B and local law conflict, Article 66B prevails. Boulden v. Mayor, 311 Md. 411, 535 A.2d 477 (1988). Thus, a municipality has no inherent power to alter the variance standard set forth in State law.

In an Ohio case that directly addresses the question presented here, Cole v. Board of Zoning Appeals for Marion Township, 39 Ohio App. 2d 177, 317 N.E.2d 65 (1973), the court held that an ordinance permitting variances on a showing of "unusual and practical difficulties" was invalid where the enabling statute permitted variances only in the case of "unnecessary hardship":

    The power to grant a variance is derived from the statute and not the zoning resolution and any provisions of a township zoning resolution purporting to create more stringent or more liberal standards for the granting of a variance than those set forth in [the statute] are invalid and unenforceable.

317 N.E.2d at 68. Other courts that have considered the question also have held that municipalities may not alter the variance power found in state enabling acts. See Riverbend Partnership v. City of Mobile, 457 So. 2d 371 (Ala. 1984); Farnsworth v. Town of Windsor, 190 A.2d 915 (Conn. 1963); Strange v. Board of Zoning Appeals, 428 N.E.2d 1328 (Ind. App. 1981); Smith v. Paquin, 77 N.J. Super. 138, 185 A.2d 673 (1962); Gregory v. Town of Cambria, 115 A.D.2d 288, 496 N.Y.S.2d 141 (1985), aff'd 69 N.Y.2d 655, 503 N.E.2d 1366 (N.Y. 1986); Lincourt v. Zoning Board of Review, 201 A.2d 482 (R.I. 1964); Nuckolls v. Board of Adjustment, 560 P.2d 556 (Okla. 1976); Bostic v. City of West Columbia, 234 S.E.2d 224 (S.C. 1977).

It has been suggested to us that Zengerle v. Board of County Comm'rs, 262 Md. 1, 276 A.2d 646 (1971), permits a municipality to establish the standard for variances as "practical difficulty or unnecessary hardship." In Zengerle, the Court of Appeals considered the propriety of a variance granted under the Frederick County Code, which at the time permitted a variance on a showing of practical difficulty or unnecessary hardship.[2] Specifically, the Court considered whether an applicant who purchased property with the intent of applying for a variance could meet the practical difficulty standard, and held that the answer was yes.[3] No issue was raised as to the appropriateness of the "practical difficulty or unnecessary hardship" standard, nor was Article 66B and its effect discussed. Thus, the Zengerle decision cannot be deemed controlling on this point.

Finally, 58 Opinions of the Attorney General 521 (1973) does not support the proposition that municipalities are not bound by the definitions in Article 66B, §1.00. At issue in that opinion was an ordinance that defined the term "subdivision" more narrowly than it is defined in Article 66B. The effect of the ordinance was that the municipality assumed less regulatory power than was authorized. Since the statute did not require that a municipality exercise any form of subdivision control, this office concluded that the municipality could permissibly exercise less than was authorized. In contrast, by redefining the term "variance" in its ordinance, Washington Grove seeks to exercise greater authority than it has been granted by Article 66B.

II

Other Law

Those who favor the current variance ordinance of the Town of Washington Grove, which includes a "practical difficulty" standard as an alternative basis for a variance, have suggested that Article 23A, §2(b)(30) grants municipalities general zoning authority and thus permits them to enact ordinances that go beyond the authority granted by Article 66B. Article 23A, §2(b)(30) provides as follows:

    In addition to, but not in substitution of, the powers which have been, or may hereafter be, granted to it, [a municipal corporation's] legislative body also shall have the following express ordinance-making powers:

    (30) To provide reasonable zoning regulations subject to the referendum of the voters at regular or special elections.

However, this general grant of authority cannot justify a municipality's action in exceeding the power granted by Article 66B unless it is read to repeal the specific provisions of that article by implication. In our view, however, Article 23A, §2(b)(30) does not have that effect.

"It is a primary rule of statutory construction that implied repeals of statutes are not favored, and will be found only when absolutely necessary because a later statute is so inconsistent with, or repugnant to, an earlier one that the two cannot stand together." Prince George's County v. Laurel, 262 Md. 171, 182, 277 A.2d 262 (1971). The Court of Appeals has in the past declined to find conflicts between Article 66B and Article 23A and has held that they must be read together. City of Annapolis v. Kramer, 235 Md. 231, 201 A.2d 333 (1964). Cf. Miller v. Pinto, 305 Md. 396, 504 A.2d 1140 (1986).[4] The same rule applies here. Article 23A, §2(b)(30) sets forth the power of the local legislative bodies to enact reasonable zoning regulations. Article 66B, §4.07 grants the municipality the authority to create a board of zoning appeals that may permit departures from those regulations under certain circumstances. There simply is no conflict.[5]

It is also relevant that, although Article 23A, §2 was adopted in 1947, fourteen years after the adoption of the original Article 66B, the latter article was recodified in 1970 and the original limitations on variances were retained and strengthened.[6] Thus, in 1970 the General Assembly still viewed the variance limitations as having meaning and effect. Nor is there any indication that the General Assembly believed that the pertinent provisions of Article 66B no longer applied to municipal corporations.

For all of the above reasons, we are of the opinion that Article 23A, §2(b)(30) does not grant authority to municipalities to broaden the powers of boards of zoning appeals to grant variances.

III

Conclusion

In summary, it is our opinion that a municipality may not, by ordinance, permit its board of zoning appeals to grant a variance on a showing of "practical difficulty."

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Kathryn M. Rowe
                                          Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] Anderson v. Board of Appeals, 22 Md. App. 28, 38-39, 322 A.2d 220 (1974), contains a detailed comparative discussion of the factors that give rise to "undue hardship" and "practical difficulty."

[2] The Frederick County Code has since been amended, and now requires a showing of "unreasonable hardship." §1-19-47(a).

[3] In an earlier case, Gleason v. Keswick Improvement Association, 197 Md. 46, 78 A.2d 164 (1951), the Court had held that one who purchased property with the intent to apply for a variance could not then make a showing of undue hardship.

[4] In Miller v. Pinto, the Court held that Article 25B, §13, which grants code home rule counties certain powers "in addition to" powers granted by other law, authorized a code home rule county to adopt appeal procedures in addition to those set out in Article 66B.

[5] Even if there were a conflict, as a general rule of statutory construction specific provisions, such as Article 66B, §4.07, prevail over general provisions, such as Article 23A, §2(b)(30). Lumberman's Mutual Casualty v. Insurance Comm'r, 302 Md. 248, 268, 487 A.2d 271 (1985).

[6] The original act, Chapter 599 of the Laws of Maryland 1933, gave boards of appeal the power "[t]o authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, the enforcement of the provisions of the ordinance will result in unwarranted hardship and injustice, but which will most nearly accomplish the purpose and intent of the regulations of the zoning plan."