Neighbors appeal issuance of building permit for garage, hot tub and other work at McKay's Beach property; hearing continued

Robert and Nancy Kuzmic asked the St. Mary's County Board of Appeals on Oct. 11, 2007, to reverse or hold in abeyance a Planning Director decision to issue a building permit for work at 18856 McKay's Beach Road (the Rice property), arguing the property contains unpermitted, after‑the‑fact construction, exceeds impervious-surface limits for its lot size, and may present health and safety risks.

The Kuzmics filed an appeal of Permit O7‑0118, which staff described in the legal notice as an application addressing multiple chapters of the county's Comprehensive Zoning Ordinance: Chapter 23 (appeals), Chapter 32 (property development regulations), Chapter 41 (Chesapeake Bay critical area), Chapter 51 (use regulations and standards), and Chapter 52 (nonconforming uses and structures). Appellants told the board they are particularly concerned about: (1) multiple after‑the‑fact improvements that they say were built without permits; (2) a recent permit approving a garage addition and a hot tub/deck that the appellants contend the ordinance prohibits in the buffer or requires a variance for; and (3) unanswered questions about septic capacity, electrical and structural inspections, and impervious-surface calculations.

At the hearing the appellants presented a chronology of the property: a small dwelling at the time of a 1986 deed and survey; a porch and other enlargements in the 1990s; an after‑the‑fact permit in 1998 for a sunroom; a repaired or replaced pier; and more recent additions including a large deck with a hot tub and a play structure. The appellants said county records and tax-assessment figures indicate the building footprint and total square footage increased substantially after purchase and that some required inspections, health‑department approvals and permits are not present or not documented in the county file.

Key legal points raised by the appellants included: zoning and building permits are required before using or enlarging structures (ordinance sections cited to the board); uses and structures are lawful only when built and occupied in compliance with the building code and permit process; swimming pools and associated decks are prohibited inside the critical-area buffer (CZO §51.3.0.118.a.2, cited by appellants) and variances for those structures cannot be granted; and nonconforming structures face limits on expansion (Chapter 52) that the proposed garage addition may exceed.

Appellants said the county had a longstanding policy of not issuing new permits when open violations exist, a policy they asked the board to apply here. They asked the board either to withdraw the staff recommendation that the property be declared in compliance or to prohibit the issuance of additional permits until the property owner documented that existing improvements were permitted and inspected and that the property met health, critical-area and building-code requirements.

Planning staff acknowledged the file contained multiple permits and permit applications over the years and said that county staff had researched archives (aerial photos, microfiche and permit files). Staff concluded the property complied with applicable sections of the ordinance and recommended the board not overturn the planning director's action. However staff also told the board there were questions about the private‑road/plat issues in the earlier hearing and about potential mitigation and road upgrades in that case. In the Rice matter staff recalculated impervious surface and reported the property was within the county's limit based on staff measurements and interpretation.

Appellants challenged the staff calculations, pointing to what they described as errors of omission and arithmetic on the county worksheet, and argued that even using staff numbers the permit would exceed the lot's impervious-surface allowance after a math correction. They also raised septic and public‑health concerns, saying the property's septic system was sized for a small house and may not support the current enlarged footprint and additional bathrooms, and they flagged electrical and fire-safety questions tied to extensive unpermitted work.

The board did not decide the appeal that evening. By unanimous voice vote the panel agreed to continue the matter to a date-certain (Dec. 13, 2007 at 6:30 p.m.) to allow both sides to supplement the record and for the board to review the exhibits and permit files. The Kuzmics asked the board to prohibit any further construction or occupancy until the county determines whether existing work was permitted and compliant; they offered an alternative motion asking the board to require evidence of compliance (permits, inspections, health‑department signoffs or mitigation) before allowing new work or occupancy. Staff and the property owners will be afforded time before the next hearing to review submitted exhibits and relevant records.

Why it matters: The case raises core enforcement questions — whether permits should be withheld when alleged open violations exist, how the county counts impervious surface and applies critical-area rules, and whether after‑the‑fact permits and prior variances create lawful bases for later expansion. Appellants urged the board to use the hearing to enforce building‑code, septic and critical‑area safeguards; staff urged adherence to its record-based determinations while offering to continue review of documents the appellants submitted.

The board scheduled a date‑certain continuation to allow the parties and staff to assemble a complete administrative record and return for deliberation and a decision.