Published: June 03, 2008 11:56 am      

Commissioners oppose request for subdivision

CUMBERLAND - At least four of the five Allegany County Planning and Zoning Commission members at Monday's work session appeared to be against granting a subdivision variance on Martin's Mountain Lane in Oldtown because of case law and a lack of legal justification.

Joe Lepore, of Anne Arundel County, requested the commission grant a variance that would allow him to subdivide his 146-acre property into two lots of 55 acres and 91 acres. He originally cited financial hardship, including a significant increase in real estate property taxes over the past several years.

Unless any one of the four who took an apparent side on Tuesday - Bill Duvall, Bill Davis, Rodger Uphold and Ted Robinette - change their minds the application has little chance for approval from the seven-member panel. The commission is expected to vote on the matter at its June 18 meeting.

Wes McKee, counsel for the commission, said case law shows that the standard to which Lepore must prove unnecessary hardship, one of the elements required by law on which the commission may grant a variance, "seems to indicate the bar is much, much higher than we originally thought."

"I don't think we knew what the hurdle was," McKee said of Lepore's effort to establish justification for a variance.

Past court cases indicate variances are granted "sparingly" and only under "exceptional circumstances," McKee said, "so the standard is very high."

McKee said the commission had the right to approve the request but should a neighboring property owner challenge the approval in court, "it would probably be overturned."

Lepore told the commission during the May 21 public hearing that he had inquired into putting part of the land into two different state programs that would significantly lower his tax burden. Duvall, commission chairman, said Monday that Lepore should consider the programs for all his land.

Duvall questioned how owning nearly 150 acres and a vacation home in Allegany County - and not being able to subdivide - could be considered a hardship.

"You haven't lived in Allegany County to see what hardship is," Duvall said.

Davis cited McKee's research and noted that personal hardship was not a criteria that the commission should, or could, consider.

McKee also said Lepore would have to prove that his was an exceptional case - that others had an opportunity he did not. That wasn't a likely point in Lepore's favor, however.

"There's no way he can argue being treated differently," McKee said.

While a number of downstate residents who also own property near Lepore's spoke during the hearing, Duvall said he was persuaded mostly by those speakers who live in Allegany County who testified against the request.

Contact Kevin Spradlin at kspradlin@times-news.com.