Dissenting opinion by
WILNER, J.,in which RAKER and BATTAGLIA, JJ., join.
In 1984, after years of study and debate, the Maryland General Assembly took decisive action to protect this State’s most valuable natural resource — the Chesapeake Bay and its tributaries. Although more than 30 bills were enacted in that session to ameliorate, and hopefully reverse, environmental assaults upon the Bay, the flagship and most comprehensive law was Chapter 794, which created the Chesapeake Bay Critical Area Protection Program.
In enacting that program, the Legislature made certain findings that it felt important enough to express in the law itself. It declared in § 8-1801(a) of the Natural Resources Article, among other things, that:
The Chesapeake Bay and its tributaries are natural resources of great significance.
The shoreline and adjacent lands constitute a valuable, fragile, and sensitive part of this estuarine system, where human activity can have a particularly immediate and adverse impact on water quality and natural habitats.
The capacity of these shoreline and adjacent lands to withstand continuing demands without further degradation to water quality and natural habitats is limited.
The quality of life for the citizens of Maryland is enhanced through the restoration of the quality and productivity of the waters of the Chesapeake Bay and its tributaries. The restoration of the Chesapeake Bay and its tributaries is dependent, in part, on minimizing further adverse impacts to the water quality and natural habitats of the shoreline and adjacent lands.
The cumulative impact of current development is inimical to these purposes.
*439and
There is a critical and substantial State interest for the benefit of current and future generations in fostering more sensitive development activity in a consistent and uniform manner along shoreline areas of the Chesapeake Bay and its tributaries so as to minimize damage to water quality and natural habitats.
Upon those findings, which were re-enacted and thus reconfirmed in 2002, the Legislature stated as its purpose, “[t]o establish a Resource Protection Program for the Chesapeake [Bay] ... and [its] tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize damage to water quality and natural habitats.” In striking down the Board’s determination in this case, the Court ignores those legislative findings, misconstrues and misapplies the regulations and local laws adopted pursuant to the statute, and seriously undermines this vital legislative program. With respect for my colleagues who join in the majority Opinion, I dissent.
The Resource Protection Program is a cooperative one between the State and local governments. The law created the Critical Area Commission, with authority to adopt regulations and criteria that would implement the stated goals of the program, and charged the counties within the defined critical area with developing and implementing local programs consistent with standards expressed in the law and those promulgated by the Commission. Several of those regulations are important here. In COMAR 27.01.02.02, the Commission recognized and defined three types of development areas— intensely developed areas, limited development areas, and resource conservation areas. Development was to be limited in the resource conservation areas, which were the most environmentally sensitive areas and were chiefly designated for agriculture, forestry, fisheries activities, other resource utilization activities, and habitat protection.
One of the program elements stated in the law itself was the establishment of buffer areas along shorelines (§ 8 — 1808(c)(6)). *440In COMAR 27.01.09.01A, the Commission defined a “buffer” as “an existing, naturally vegetated area, or an area established in vegetation and managed to protect aquatic, wetlands, shoreline, and terrestrial environments from man-made disturbances.” In COMAR 27.01.09.01C, the Commission required the local subdivisions, in developing their critical area programs, (1) to establish a minimum 100-foot buffer landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands, (2) to maintain the buffer in natural vegetation, and (3) except for water-dependent facilities, not to permit new development activities, including structures and other impervious surfaces, within the buffer.
Finally, as relevant here, in COMAR 27.01.11.01, the Commission required the counties, in their local programs, to make provision for variances to the Commission’s substantive criteria where, “owing to special features of a site or other circumstances, local government implementation of [the Commission’s regulations] or a literal enforcement of provisions within the [county’s] Critical Area program would result in unwarranted hardship to an applicant.” The regulation set certain minimum requirements for the local variance program but specifically allowed the counties to establish additional and more restrictive standards for the granting of variances, consistent with the intent and purposes of the Commission’s regulations and the Critical Area program.
The land at issue here lies in Wicomico County, which is within the defined critical area. Wicomico County adopted a local critical area law consistent with the State law and with the Commission’s regulations. The county program was approved by the Commission, and, as no complaint is made here that it is, itself, invalid in any way, it controls this case.
In conformance with COMAR 27.01.09.01C, the county law established the required buffer (Wicomico County Code, § 125-7) and, except for water-dependent facilities, prohibited new development activities within the buffer unless a buffer exemption was granted by the County Council. Id, § 125-9. The local law defined new development activities as including *441“clearing of existing natural vegetation” and the “erection of structures ... or other impervious surfaces.” In conformance with COMAR 27.01.11.01, § 125-35 permits the County Board of Zoning Appeals to grant variances where, owing to special features of a site or other circumstances, a literal enforcement of provisions would result in unwarranted hardship.
The law limits the Board’s ability to grant such a variance, although not to deny one. Section 125-36 provides that variance requests in a critical area district may not be granted unless the decision is based on certain enumerated criteria, including:
“A. That special conditions or circumstances exist that are unique to the subject property or structure and that a strict enforcement of the provisions of this chapter would result in unwarranted hardship which is not generally shared by owners of property in the same land use management areas ... of the Critical Area District.
B. That strict enforcement of the provisions within the Critical Area District would deprive the property owner of rights commonly shared by other owners of property in the same management area within the Critical Area District.
C. That the granting of a variance will not confer upon an applicant any special privilege that would be denied to other owners of like property and/or structures within the Critical Area District.
and
D. That the variance request is not based upon conditions or circumstances which are self-created or self-imposed.... The land at issue here consists of two parcels, both of which
are within the critical area. The western parcel, of just under 219 acres, borders the Nanticoke River on the north and a tributary of that river on the east. The Nanticoke flows directly into the Bay. The eastern parcel, comprising just under 77 acres, is separated from the western part by that tributary. Both parcels are within a resource conservation area. The entire western parcel and all but three areas of the eastern parcel, comprising a total of 7.23 acres, consists of *442marshland. The largest of the “upland” areas, comprising 5.30 acres, is known as Phillips Island. That area is, or at least was before Mr. Lewis went at it, totally wooded, with mature oaks and loblolly pine. Ninety-five percent of that area — 5.06 acres — is within the 100 foot buffer. Absent a properly issued variance, the clearing of vegetation and the construction of non-water-dependent structures within that area is absolutely prohibited.
When Lewis bought the property in April, 1999, the only man-made improvements on it were a boat pier, a storage building on the Phillips Island area, and approximately 12 duck blinds. He bought the property, he said, for occasional overnight or weekend hunting and fishing — not as a residence, not as a commercial enterprise. Oblivious to virtually every requirement of Federal, State, and local law, Lewis promptly began destroying vegetation and constructing buildings and other improvements on the property, all without a permit, all without notice, all in secret, all illegally. The Board of Zoning Appeals found the following uncontested facts:
“After purchasing the property, Mr. Lewis hired a contractor to build six buildings on the island. Mr. Lewis also had a well dug and a pier constructed on the island. One of the new buildings, a structure of approximately 1,600 square feet, is located 58.79 feet from the edge of tidal wetlands, and this building contains a kitchen and bath. Three of the remaining buildings, smaller in size, are intended for sleeping facilities, and one of these contains a bathroom. The fifth building was intended to be a bathhouse, and the last budding was intended for storage of equipment. Five of the six buildings are located entirely in the 100-foot Critical Area Buffer, and the sixth building is located partially in the Buffer. Neither Mr. Lewis nor his contractor sought or obtained any state, federal, or local permits for any of the site preparation or construction activity. Testimony and exhibits at the hearing established that this construction occurred during summer and fall of 1999.”
A site visit in July 2000 by a Department of Natural Resources habitat manager revealed that “a lot of vegetation *443had been removed.” The county Planning Office reported that “almost all groundcover and understory has been removed from the interior of the island.”
Eventually, agencies from all three levels of Government discovered what Lewis was doing. The U.S. Army Corps of Engineers and the Maryland Department of Environment informed him that construction of the pier without proper permits was in violation of Federal and State law, and the county Planning Office informed him that the construction activity violated several sections of the county code. In April, 2000, the county attorney notified Lewis that the development activity was in violation of Chapters 117 and 125 of the county code (building without building permit and failure to obtain critical area certificate of compliance). That same month, the county Health Department informed him that the well, already completed, was in violation of Maryland health regulations. He was ordered to stop all further activity. The problem with the pier was corrected in June, 2000. Lewis was forced to abandon and seal the well.
Lewis’s initial response was that he did not believe that he needed any permits, as he did not anticipate receiving any county services. Faced with the prospect of enforcement actions, however, he ceased construction and applied for the necessary permits and variances.
Notwithstanding Lewis’s blatant defiance of Federal, State, and local law, the county attempted to work with him so that he could develop the property as he wished, but in compliance with applicable law. A major problem was a State Health Department requirement of a 10,000 square foot area, not within the buffer, for a sewage disposal system. Only 10,463 square feet of Phillips Island were not in the buffer. The county was able to persuade the Health Department, in light of the seasonal and limited use intended to be made of the property, to reduce the sewage disposal requirement to 5,812 square feet, which allowed Lewis to relocate at least three and possibly four of the six buildings to a non-buffer area. Lewis initially agreed, and submitted an application for variance that *444showed four buildings — three of the smaller cabins and the storage building — outside the buffer and only two within it. It is entirely possible that a variance based on that plan, despite opposition from the county critical area staff, may have been approved. Lewis might have had his six buildings and his full intended use of the property, without any serious environmental degradation.
Having filed his application, Lewis began making arrangements to move some of the buildings in advance of any approval of the application. The county suggested that he defer until after a scheduled meeting, because the locations he chose might not be the ones approved by the zoning authority, and the staff wanted to avoid his having to move the buildings twice. Lewis instead consulted two environmental consultants who advised him to leave the six illegally constructed buildings where they were. On that advice, Lewis filed an amended plan that left all six buildings intact. Instead of seeking a variance for just two buildings, he now claimed a right to have all six in the prohibited buffer.
It is true, as the Court states, that Lewis’s hired experts asserted that leaving the buildings where they were was more environmentally sound than relocating them. There was much evidence to the contrary, however, and it was the contrary evidence that the Board of Zoning Appeals credited. The Court spends several pages summarizing the testimony of Lewis’s hired experts, but, in light of the Board’s findings, that testimony, to me, is irrelevant at this point. It was simply not found persuasive. Mr. Dwyer, of the county planning office, testified that, had Lewis consulted the planning office, before proceeding with construction, “we may have been able to redesign or design the project to avoid the need for a variance or at least to limit the amount of variance needed for the impact to the buffer.” That conclusion was also stated in the report and recommendations of the county critical area staff. It was highlighted as well in the formal recommendation of the Critical Area Commission:
“[A]ny variance should be the minimum necessary to provide relief. If the applicant had followed the proper proce*445dures, the development would have been designed to minimize impacts to the protected 100-foot Buffer and perhaps eliminate the need for a variance entirely.”
Apart from evidence that the variance requested was not needed — that, even at the time of the hearing, at least some of the buildings could have been relocated to a non-buffer area— there was evidence that approval of the request would not be consistent with the critical area program. Lee Anne Chandler, a natural resource planner with the Critical Area Commission, not only testified but submitted a letter addressing each of the criteria for the granting of a variance. The Court, improperly in my view, denigrates her testimony and ignores entirely her letter on behalf of the Commission. The letter was in evidence, however, and, among other things, it states:
(1) Denial of the requested variance would not result in an unwarranted hardship because the project could have been designed to avoid the need for the requested variance. (2) The need for the variance is a self-created hardship:
“[The applicant] went through great effort and expense to construct six buildings on the shoreline and dig a well on an island, accessible only at high tide by boat, without contacting any local permitting authority. All six buildings and the well are located within the Buffer, a designated habitat protection area where no new building is allowed except for water-dependent structures. The cabins and house are not water-dependent; thus the applicant created the need for the variance.... ”
(3) Approval of the variance would give Lewis a special privilege:
“All property owners within the Critical Area are prohibited from disturbing the Critical Area 100-foot Buffer. In applying for permits, property owners work with County staff to understand the regulations and design development accordingly in a way that minimizes impacts to Critical Area resources. Under no circumstances would development of the subject property be permitted as the applicant has already done. If the variance is granted, the applicant *446would reap the benefits of his unlawful actions.” (Emphasis added).
(4) The 100-foot buffer is the cornerstone of the Critical Area Law. It functions to protect water quality and provide a transitional habitat between aquatic and upland communities. Those functions are compromised when clearing, construction, and other development occurs in the buffer and will continue to be compromised by the increased human activity.
(5) The variance would be contrary to the spirit and intent of the Critical Area Program:
“The applicant has constructed six (6) buildings totaling 3670 square feet of impervious surface within the Buffer. Although it is literally impossible to measure impacts to water quality from these structures, it is obvious that each new impervious surface in the Buffer reduces the area available for infiltration and habitat.... ”
Ms. Chandler, a professional planner who reviews several hundred Critical Area projects each year, had visited the site, and she described what she observed — destruction by Lewis of the understory on the island, piles of mulch and cut-up logs, and roofs with impervious surfaces. Russ Hill, a habitat manager for the Department of Natural Resources, also visited the site, and he confirmed Ms. Chandler’s observations. Hill testified that removal of the vegetation would have a great effect on wildlife habitat. He stated that many bird and mammal species use or inhabit vegetated buffers such as that on Phillips Island for both nesting and feeding, and that, “[b]y removing the vegetation, you remove escape cover and nesting cover and also food sources for wildlife, whether it be the animals actually eating the plants or eating the insects that are feeding on the plants and also the berries and seeds that they produce.” Don Jackson, from the Chesapeake Bay Foundation, testified that he saw approximately 114 newly cut tree stumps of five inches or larger in diameter and, in contrast to Lewis’s testimony that he had cut only two trees, said that he counted over 100 trees that had recently been cut.
*447After listening to all of this testimony, for over six hours, the Board voted unanimously to deny the requested variance. In its written decision, it addressed at least four of the six criteria set forth in § 125-36 of the County Code for the granting of a variance and found that none of them warranted the requested variance. Mostly, however, it denied the request because it concluded that (1) a variance was not necessary to avoid any hardship to Lewis, who was free to use the property in its current form precisely as he had intended — for hunting and fishing — and as previous owners had used it, and (2) if there was any hardship to Lewis, it was self-created. The Board noted first that the 100-foot buffer is “of vital importance to the health of the Bay and is afforded strong protection from disturbance in the County ordinance.” It pointed out that § 125-9 of the County Code prohibits new development activities, including clearing and the erection of impervious surfaces, in the buffer zone and that Lewis had both cleared natural vegetation and constructed impervious surfaces in that area. Noting this Court’s decisions in Belvoir Farms v. North, 355 Md. 259, 734 A.2d 227 (1999), White v. North, 356 Md. 31, 736 A.2d 1072 (1999), and Mastandrea v. North, 361 Md. 107, 760 A.2d 677 (2000), the Board found:
(1) Lewis would not suffer any unwarranted hardship from denial of the requested variances because “he will continue to enjoy reasonable and significant use of the Island and the property without the requested variance.” (Emphasis added). It noted that Phillips Island contained over 10,000 square feet that was not in the buffer and that “[a] reasonably-sized structure could be sited in this non-Buffer area for the occasional use of persons who hunt on the property.” The Board stated that the property contained at least 12 waterfowl hunting blinds and had been used for hunting by previous owners for many years. It added that the requested variance was not the minimum necessary for reasonable use in any event.
(2) Strict enforcement of the buffer restrictions would not deprive Lewis of rights commonly shared by owners of other property in the county’s resource conservation areas. The *448Board acknowledged testimony regarding structures in the buffer zones of other properties but distinguished those situations on the ground that the uses there were associated with the residential use of the property.
(3) The variance request was based on circumstances and conditions that were self-created or self-imposed and that could have been avoided.
(4) There was conflicting evidence regarding the actual and potential environmental impacts of the construction and use of the six buildings. The Board summarized some of that evidence and concluded that it was “unable to find that the granting of this variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s Critical Area District.”
The Board made no express finding whether the variance would confer any special privilege on Lewis that would be denied to other owners of like property in the Critical Area District or whether the proposed variance was consistent with the county comprehensive plan. It does not appear that any question was ever raised about consistency with the comprehensive plan.
The Court directs that the Board’s denial of the requested variance be vacated because (1) the Board used “impermissible legal standards” in determining that there was no unwarranted hardship, and (2) “the record contains little or no empirical data to support the Board’s conclusions or to refute the studies and reports of petitioner’s experts” and, as a result, the Board’s decision is “arbitrary and capricious.” In reaching those conclusions, the Court seems to complain that the Board did not consider all of the statutory criteria, that in examining whether denial of the variance would deny Lewis reasonable and significant use of the property, the Board erroneously considered the entire property rather than just the Phillips Island part of it, and that the Board erred in considering and giving any credence to Lewis’s patently unlawful activity in constructing the six buildings in determining that his need for a variance was self-created.
*449The Court’s decision rests largely on four recent cases, three involving Critical Area variances and one involving a traditional zoning variance. In the three Critical Area cases, the local board granted the requested variances, and what we had before us were challenges to the administrative decision. In Belvoir Farms v. North, 355 Md. 259, 734 A.2d 227 (1999), the variance permitted the applicant to construct 14 more boat slips at a community pier than were otherwise allowed by the critical area regulations. The Board granted the variance on the ground that denial of the request would create “practical difficulties” and, for that reason, would constitute an unwarranted hardship. We concluded that the Board had effectively equated unwarranted hardship with “practical difficulties,” that “practical difficulties” was not the proper standard upon which to grant a critical area variance, and that the case therefore had to be remanded to the Board so that it could apply the correct standard.
To guide the Board, we pointed out that the “unwarranted hardship” standard applicable in the critical area variance context was less restrictive than the “denial of reasonable use” or “denial of a reasonable return” standards that had been applied in Constitutional taking cases. We held that the “unwarranted hardship” standard, and its similar manifestations, “are equivalent to the denial of reasonable and significant use of the property” and that “[w]hether a property owner has been denied reasonable and significant use of his property is a question of fact best addressed by he expertise of the Board of Appeals, not the courts.” Id. at 282, 734 A.2d at 240.
In White v. North, 356 Md. 31, 736 A.2d 1072 (1999), the local board granted a critical area variance to permit residential owners to construct an in-ground swimming pool in their back yard. The applicants purchased an unimproved lot that had a gradual slope of less than 15%. The back of the lot led down to Martins Cove, a tributary within the Chesapeake Bay Critical Area. In grading the lot for their house, they pushed dirt from the excavation to the rear of the lot and thereby created a slope in that area exceeding 15%. Five years later, *450they decided to build a pool, deck, and patio in the back. Had they built those accessories there before they re-graded that area, there would have been no problem, as the area was not within the 100-foot buffer. Under the county critical area law, however, where there was a contiguous slope of 15% or more, the buffer was extended to include all land within 50 feet of the top of the slope, and that brought the back of the lot within the extended buffer. Because the pool, deck, and patio clearly were impervious surfaces, that necessitated a variance.
On evidence that, because of restrictive covenants and other topographical features, there was no other place on the lot to build the pool, the Board granted the variance, concluding (1) that as a result of “unique physical conditions,” there was no reasonable possibility of developing the lot in the manner the owners proposed without a variance and that a strict implementation of the critical area law would result in an unwarranted hardship, (2) because neighbors had pools in their yards, denial of a variance would deprive the applicants of rights commonly enjoyed by others, (3) the pool would not negatively impact the critical area because it would catch rainwater and lessen the natural runoff, and (4) the applicants did not create the hardship. White was a companion case to Belvoir, and we effectively vacated the Board’s decision because, in finding a hardship, it had applied the wrong standard of “unique physical conditions” rather than the standard we enunciated in Belvoir. The “uniqueness” standard, we said, was not part of the county ordinance. We remanded for the Board to reconsider the application in light of Belvoir— whether denial of the variance would deprive the applicants of reasonable and significant use of their property. We confirmed that “[a]s long as evidence exists before the agency that would make its factual determination as to reasonableness and significance fairly debatable, its determination ordinarily should be upheld ... Generally, it is only when an agency’s factual determinations are unsupported by substantial evidence that the courts may vacate an otherwise proper agency decision.” Id. at 50, 736 A.2d at 1082-83.
*451We noted in White that the ordinance in question, and most local critical area ordinances, include “a list of other factors that must be considered with respect to the grant or denial of a variance,” id. at 50, 736 A.2d at 1083. Citing the various criteria that were modeled on the requirements in COMAR 27.01.11, supra, we observed that, if total compliance with each of those standards was required, a variance would be nearly impossible and thus would present some serious “taking” questions. To avoid that, we concluded that those standards must be considered in the context of the entire variance ordinance, “to the end that, when interpreted as a whole, either they are or are not generally met.” Id. We then added:
“Moreover, the essential determination is whether an unwarranted hardship exists. The specific factors that must be considered cannot be construed individually to overrule a finding of unwarranted hardship any more than they could overrule a finding of an unconstitutional taking of one’s property. The individual provisions that must be considered are part of the entire matrix that defines what information is necessary to reach a finding as to the existence or nonexistence of an unwarranted hardship.”
Id. at 50-51, 736 A.2d at 1083.
That statement needs to be applied with some care. CO-MAR 27.01.11.01 requires local programs to make provision for variances where, owing to special features of a site or other circumstances, literal enforcement would result in unwarranted hardship and it lists certain criteria that, at a minimum, the local plans must contain with respect to variances. One of those criteria is that the variance request not be based on conditions or circumstances which are the result of actions by the applicant. That is the foundation for the self-created hardship provision found in most, if not all, of the local critical area ordinances. Perhaps it is a matter of semantics, in the sense that, if the hardship claimed by the applicant is self-created, it is, ipso facto, not unwarranted, but if not viewed that way, then the self-created hardship criterion necessarily must stand on its own as an independent basis for *452denying a variance. That, to me, has enormous significance, because once the Board, on substantial evidence, finds that the hardship claimed by the applicant as a basis for the requested variance was self-created, the Board need do no more in order to deny the variance. Upon that finding, there exists no basis upon which to grant the variance. The other factors, which are relevant only in determining whether a hardship exists in the first instance, then become irrelevant. It was at least an arguable issue in White, and, since the Board there had not applied the correct standard for determining hardship, remand was appropriate.
The third case, Mastandrea v. North, 361 Md. 107, 760 A.2d 677 (2000), also involved the granting of a variance — to construct a sloping brick-in-cement pathway from the applicant’s house to a pier extending into Glebe Creek. The gradually sloping pathway was needed to accommodate the homeowner’s child, who suffered from muscular dystrophy and was confined to a wheelchair. Because of the steep slope of the land, the pathway was necessary to provide access for the child to the waterfront. A variance was needed for that part of the path traversing the 100-foot buffer, and the Board granted it, finding, among other things, that as the pathway was the only means of access for the child, denial of the variance would deny her reasonable use of the property. There was no issue of the hardship being self-created, and our affirmance of the Board’s decision rested on our conclusion that there was sufficient evidence in the record to support that decision.
With the caveat noted as to some of the language in White, it seems to me that these three cases mandate an affirmance of the judgment here. I find nothing in them that would support a reversal. The only case that might provide some support for the Court’s unfortunate ruling is Stansbury v. Jones, 372 Md. 172, 812 A.2d 312 (2002)- which itself was wrongly decided and should not even be followed, much less extended.
Turning to the Court’s rationale in this case, the Court first holds that the Board used the wrong standard in determining *453that there was no unwarranted hardship. That, it seems, rests on the conclusion that the Board looked at the hardship question in terms of the property as a whole, rather than that part of the Phillips Island area within the buffer. There are two problems with that ground. First, it is factually incorrect. The Board found that Lewis would “continue to enjoy reasonable and significant use of the Island and the property without the requested variance.” (Emphasis added). Second, there is no basis in the State statute, the Commission’s regulations, or the local ordinance for limiting the Board’s focus only to the part of Phillips Island within the buffer. Section 125-36 of the county ordinance states that a variance request “shall not be granted” unless the decision is based on the stated criteria, the relevant one of which, in this context, is that “special conditions or circumstances exist that are unique to the subject property or structure and that a strict enforcement of the provisions of this chapter would result in unwarranted hardship which is not generally shared by owners of property in the same land use management areas.” (Emphasis added). That criterion speaks of “the subject property,” not just the piece of it that is within the buffer area.
Ignoring the language of the ordinance, the Court improperly extends, and therefore misapplies, what we actually said and held in Mastandrea. Keeping in mind that the Board there granted the variance upon a finding that the pathway provided reasonable access to the waterfront for the handicapped child and was a reasonable accommodation for her disability, we said that the Board “did not have to consider whether denying the variance would have denied the Mastan-dreas a reasonable and significant use of the ‘entire’ lot” (emphasis added) but was instead required to consider only whether, in light of their daughter’s disability, they “would be denied a reasonable and significant use of the waterfront of their property without the access that the path provided.” Mastandrea, 361 Md. at 136, 760 A.2d at 693. The real issue in Mastandrea, which we found unnecessary to address in the appeal, was whether the Board would have been required under the Americans With Disabilities Act to make such an *454accommodation. It is evident that, whether or not the Board had that Act in mind, it clearly relied on the child’s disability when it granted the variance. Id. at 126, 760 A.2d at 687.
It is impermissible, in my opinion, to stretch that statement, made in the context of the peculiar circumstances of Mastan-drea, into a proposition that the focus in every case must be limited to the buffer area. One need only consider the implication of such a holding to understand its fallacy. If a lot contains ample non-buffer area on which to build the structure thought required to provide a reasonable and significant use of the property, the owner cannot demand the right to build that structure in a buffer area on the lot and insist that, in determining whether denial of a variance would constitute an unwarranted hardship, the Board look only at the buffer area. That is what the Court seems to hold, and that cannot be right.
The Court also finds that the Board’s decision was arbitrary and capricious because the record contains “little or no empirical data to support the Board’s conclusions or to refute the studies and reports of petitioner’s experts.” Where that test came from is a mystery to me. The standard we have always applied (until today) is whether “there is substantial evidence in the record as a whole to support the agency’s finding and conclusions.” Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68, 729 A.2d 376, 380 (1999); Mehrling v. Nationwide, 371 Md. 40, 57, 806 A.2d 662, 672 (2002). In that regard (until today), we have followed the principle that “a reviewing court decides ‘whether a reasoning mind reasonably could have reached the factual conclusion the agency reached’ ” and that it should “defer to the agency’s fact-finding and drawing of inferences if they are supported by the record.” Banks, 354 Md. at 68, 729 A.2d at 380-81; Mehrling, 371 Md. at 57, 806 A.2d at 672. We have also followed (until today) the rule that the court must review the agency’s decision in the light most favorable to it, that the agency’s decision is presumed correct, and that it is the agency’s province to resolve conflicting evidence and draw inferences from that evidence. Id.
*455There is nothing in that traditional test that requires “empirical data” to support the agency’s findings, and there is certainly no requirement that there be “empirical data” to refute evidence offered by the party having the burden of proof and persuasion. There was ample evidence in the record to demonstrate that Lewis would be able to enjoy the reasonable and significant use of his property, including the Phillips Island part of it, without the need for the variance he requested. Testimony and letters from both the county planning office and the Critical Area Commission documented that some of the buildings could be located outside the buffer zone — that it was not necessary to have all six in the buffer. Lewis simply threw the gauntlet down and insisted that he was entitled to have all six illegally constructed buildings remain where they were. Lewis bought the property to use for weekend or occasional hunting and fishing — the same use to which it previously had been put. There is no evidence in the record — none whatever — that even suggests, much less demonstrates, that six buildings in the buffer zone are required in order for Lewis to use the property for that purpose.
Finally, the Court wrongly dismisses Lewis’s unlawful construction of the six buildings as a “red herring.” It is not a “red herring” at all. The importance, which the Court blindly overlooks, is not just the illegality of what Lewis did, but in the uncontradicted evidence that, had he applied for the permits in advance, as the law required him to do, the project could have been revised at that point so that either a variance would not have been necessary or that the need for one could have been limited. There can be little doubt that, had Lewis applied initially for a variance for six buildings in the buffer, it would have been denied as unnecessary. Lewis built the structures and then demanded a right to retain them as a hardship. He should receive no reward for his unlawful behavior.
In its inexplicable effort to allow property owners such as Lewis to do whatever they wish on environmentally sensitive property, without regard to legal constraints or public policy, the Court throws established principles of administrative law *456to the wind, misconstrues the relevant statutes and regulations, and views the evidence not in a light most favorable to the agency but in a light most favorable to the losing applicant. It is not only wrong in this case but sets a most unfortunate precedent.
Judges RAKER and BATTAGLIA have authorized me to state that they join in this dissent.
Filed: October 10, 2003
ON MOTION FOR RECONSIDERATION
PER CURIAM.Respondent, the State Department of Natural Resources, Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the Commission), filed a Motion for Reconsideration regarding the Court’s opinion in this matter filed on July 31, 2003.1 In that motion, several principal arguments were advanced upon which we shall comment in denying the motion.
“1. Contrary to precedent of the United States Supreme Court and this Court, the Court [of Appeals] rejected the General Assembly’s legislative findings that the cumulative impact of development harms the bay.”
The Court did no such thing. The Court in the present matter, as well as in Mastandrea v. North, 361 Md. 107, 760 A.2d 677 (2000),2 was not called upon directly to consider the accuracy, substance, or scope of vitality of the relevant legislative findings and declarations upon which the creation of the Commission and its powers was predicated. Rather, the Court noted in both cases that the Commission’s misuse of *457those findings and declarations in each case was not a substitute for adducing evidence that the respective variance proposals might “have a particularly immediate and adverse impact on water quality and natural habitats.” Md.Code (1990 Repl.Vol., 2002 Supp.), Nat. Res. Art., Nat. Res. Art., § 8-1801(a)(2).
From the legislative inception of the Commission in 1984 through the most recent pertinent re-enactment in 2002, the Legislature’s relevant “findings” regarding the conditions of and about the Chesapeake Bay have been substantively the same:
§ 8-1801. Declaration of public policy.
(a) Findings. — The General Assembly finds and declares that:
(1) The Chesapeake and the Atlantic Coastal Bays and their tributaries are natural resources of great significance to the State and the nation;
(2) The shoreline and adjacent lands constitute a valuable, fragile, and sensitive part of this estuarine system, wfbere human activity can have a particularly immediate and adverse impact on water quality and natural habitats;
(3) The capacity of these shoreline and adjacent lands to withstand continuing demands without further degradation to water quality and natural habitats is limited;
(4) National studies have documented that the quality and productivity of the waters of the Chesapeake Bay and its tributaries have declined due to the cumulative effects of human activity that have caused increased levels of pollutants, nutrients, and toxics in the Bay System and declines in more protective land uses such as forestland and agricultural land in the Bay region;
(5) Those portions of the Chesapeake and the Atlantic Coastal Bays and their tributaries within Maryland are particularly stressed by the continuing population growth and development activity concentrated in the Baltimore-Washington metropolitan corridor and along the Atlantic Coast;
*458(6) The quality of life for the citizens of Maryland is enhanced through the restoration of the quality and productivity of the waters of the Chesapeake and the Atlantic Coastal Bays, and their tributaries;
(7) The restoration of the Chesapeake and the Atlantic Coastal Bays and their tributaries is dependent, in part, on minimizing further adverse impacts to the water quality and natural habitats of the shoreline and adjacent lands;
(8) The cumulative impact of current development is inimical to these purposes; and
(9) There is a critical and substantial State interest for the benefit of current and future generations in fostering more sensitive development activity in a consistent and uniform manner along shoreline areas of the Chesapeake and the Atlantic Coastal Bays and their tributaries so as to minimize damage to water quality and natural habitats. [Emphasis added.]
Patent in these findings is that the Legislature was commenting retrospectively as to the cumulative impact upon the Bay of existing development, thereby necessitating close scrutiny of individual future development proposals so that any particular immediate and adverse impact on water quality and natural habitat from each development was minimized. Of course,' if no adverse impact was shown, nothing required minimization. Presumably because the Legislature was aware of constitutional implications were it to preemptively foreclose all future development in the areas tributary to the Chesapeake Bay (and being unwilling to sustain the financial costs of such a potential “takings” situation), it is equally clear from these findings that it was not the Legislature’s intent that no development be permitted henceforth in areas tributary to the Bay. The necessary consequence of the tension between the legitimate environmental protective regulatory effort of the statute and the constitutional consequences of a “taking” leads to a case-by-case, quasi-adjudicatory process where each new development proposal is analyzed in terms of whether it would affect adversely the Bay, i.e., the variance process.
*459To the extent that the Court’s opinions in the present case and Mastandrea address a “cumulative effects” argument mounted by the Commission, it was only to point out that the Commission, in lieu of adducing evidence as to how the respective variance proposals impacted adversely on water quality or natural habitats, misused the Legislature’s retrospective-looking finding as to cumulative effects of past development over the entire drainage basin of the Bay as a substitute for any meaningful analysis on the Commission’s part of the particular uses involved in the quasi-adjudicatory processes at issue in those cases.
This should not be misunderstood to mean that the Commission, or any one save the applicant in a variance case, has a legally cognizable burden to adduce evidence in support of its position. On the other hand, where an applicant, such as here and in Mastandrea, adduces competent and admitted evidence amounting to a prima facie case as to the required elements necessary to grant its application, opposing parties must accept a practical risk when they fail to produce any evidence, other than naked opinions, to the contrary. If, as was the case in Mastandrea, the administrative body making the decision is persuaded by the applicant’s evidence,3 and in the absence of evidence to the contrary, the obvious consequence is that it may be more likely that the decision-maker *460may find for the applicant. That is the risk the Commission takes when it fails to adduce evidence to rebut an applicant’s prima facie case.
In the present case, the Commission essentially repeated its misplaced cumulative effects argument from Mastandrea, which, even when coupled with its witness’s opinion testimony that was supported only by mere speculation, rather than facts, amounted to no contradictory evidentiary predicate vis á vis Lewis’ prima facie case in support of his variance application. To be sure, there existed actual evidence in the record before the Wicomico County Board of Zoning Appeals introduced by other parties before that administrative agency opposing Lewis’ application. It is that evidence, which the Board presumably will weigh against Lewis’ evidence, when it reconsiders this matter on remand from this Court.
The RespondenVMovant then argues:
“2. The Court failed to follow its own legal precedents, by re-evaluating the evidence and usurping the role of the fact-finding agency. The Court further erred by mis-char-acterizing lay testimony as ‘expert,’ by ignoring the testimony of the State’s expert on plant and wildlife habitat, and by failing to defer to the Board of Appeals’ assessment of all the evidence presented in the six-hour hearing.”
Initially, we note that we did not reverse the agency’s decision and direct it to issue a variance. We merely vacated its decision, and remanded the case back to the agency for it to reconsider the request without utilizing improper considerations. We applied the precedents that existed at the time of the 2001 Wicomico County Board of Zoning Appeals’s hearing in this matter. We found that the applicant had presented sufficient evidence from its witnesses, including its experts, that might have justified the issuance of a variance if improper considerations had not been taken into account. We note now, as we noted in the majority opinion, that one of the specific improprieties in this case was the acceptance by the Board of the general cumulative impact argument and its application to a specific variance proposal thereby, in effect, closing an *461entire watershed when the General Assembly had not delegated that power to the Commission, not that the public policy declaration as to cumulative impact from past development that serves as the stated justification for creation of the critical area legislative scheme as a whole was improper. We were not asked in this case to consider the constitutionality of the Critical Area legislative scheme and the statutes then in effect, nor have we ever resolved such issues. Any assertion to the contrary is simply incorrect.
We did not ignore the evidence presented by the Movant and other parties before the Board. We merely held that the witnesses, including the experts, for the applicant had opined as to the lack of endangerment to the environment based upon actual site specific inspections of the subject property and that the witness offered by the Movant testified as to development in general, and then presented only conjecture as to the subject property. We held that conjecture was insufficient to rebut site specific fact based expert opinion. Even then, we merely remanded the case back to the agency. Generally, it is the function of this Court to review the evidence in matters calling for review of administrative agency actions. That does not change when the Commission is a party before the respective agency.
Respondent/Movant presents a third issue:
“3. The Court imposed on local jurisdictions a new and costly requirement to conduct empirical studies, produce reports, and present expert testimony in order to support denial of a variance to the local zoning laws.”
We proposed no such requirement. What we held, as we have in other adversarial proceedings, is that when an applicant (or a plaintiff) presents evidence sufficiently favorable to him or her to meet the burden the applicant must meet, a generalized opinion “that wildlife will be harmed”4 or “All the *462cedar shakes, I’m sure they’re treated with something,”5 without any supporting evidence (site specific or otherwise), may not be sufficient to rebut an the applicant’s prima facie case. Generally, when an applicant in an administrative proceeding presents evidence that, standing alone, sufficiently supports the granting of an application, protestants present evidence (as opposed to mere conjecture) to the contrary. That does not change just because one of the protestants is the Critical Area Commission. And in any event, this Court has not ordered that the application be granted. The agency’s decision was vacated, and the matter remanded for further consideration.
The Respondent’s/Movant’s fourth issue is really twofold.
“4. The Court dismissed the illegal construction of hunting cabins in the sensitive 100-foot Chesapeake Bay buffer as a ‘red herring,’ even though the law clearly requires the fact-finder to consider whether the hardship from which the applicant seeks relief is self-imposed. By dismissing as not relevant the fact that Lewis built the cabins illegally, the Court condoned law-breaking, and encouraged future noncompliance.
“The Commission respectfully requests that the Court reconsider this decision which inexplicably throws into turmoil well-settled principles of administrative and zoning law. Alternatively, the Court should clarify that the decision is limited to the narrow circumstances presented by this case, and acknowledge that the cases upon which the decision rests were legislatively overruled in 2002.”
We did not condone any illegal conduct. We addressed this case as it was presented before the agency. We noted on page 16 of our opinion how the agency addressed the case by quoting from the comments of a member of the Board. He said: “And the rest of my comments I’m going to make is in the context of that we, or I will be trying to view this and am *463viewing this as if the buildings were not already there.” Moreover, the Board, while mentioning that the fact that if the buildings had to be moved, that move would be a self-created hardship, went on to decide the case as if the buildings were not there and as if the application was for new structures.6 The Board’s finding included:
“.... [T]he Board finds that the Applicant will not suffer an unwarranted hardship without a variance for the six buildings because he will continue to enjoy reasonable and significant use of the Island and the property without the requested variance.... [T]he island contains over 10,000 square feet of land that does not lie within the Tidal Buffer. A reasonably-sized structure could be sited in this non-Buffer area.... Accordingly, the Board finds that denial of a variance ... will not deny ... the reasonable and significant use of the Island ... and that he will not suffer an unwarranted hardship.”
We merely addressed the decision of the Board as it made it. More important, we noted in footnote 26 on page 45 of the majority opinion: “... we have treated this variance request as if the cabins were not on Phillips Island. That is the same position the Board stated it was taking.” If the Board wanted to decide the case on the basis of the fact that the existing cabins were a self-created hardship, it should not have addressed the issue differently.7 We merely resolved it the way it was presented.
Addressing the fourth issue further, obviously this case is limited to its own facts and the rather unique procedural posture of the case as it arrived before us, i.e. as if it was an application for proposed cabins. Moreover, we applied the law as utilized by the parties in this pre-2002 case. The Commis*464sion, in its prepared findings for the Board, purported to be applying the law as it existed in 2001.
Chapter 431 of the Laws of Maryland of 2002, the new law, as relevant to this issue provides:
“SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall be construed to apply only prospectively and may not be applied or interpreted to have any effect on or application to any variance application for which a petition for judicial review of a decision to grant or deny a variance under a local critical area program was filed before the effective date of this Act.”
Accordingly, in not applying the new statute in deciding the present case, we were complying with the dictates of the Legislature. It directed that we not apply the new statute to this case and we followed that direction.
To the extent that it is argued that we should nonetheless have applied the new statute, in the face of the Legislature’s express prohibition that we not apply it in such cases, another problem also would exist. There was no challenge to the constitutionality of the applicable law as existing in 2001 when the variance was acted on by the local administrative body. To now apply, sua sponte, a new, presumably stricter, law to a prior application, when the new law says it does not apply, would create due process concerns.
MOTION TO RECONSIDER DENIED, WITH COSTS.
. Certain non-parties who had not sought previously to participate as amici curiae on the merits (the governments of Anne Arundel, Carroll, Harford, Montgomery, and Worcester Counties, State Senator Roy P. Dyson, State Delegate Barbara A. Frush, and the Chesapeake Bay Foundation, Inc.) moved for recognition to file, as amici, their support for the Respondent’s motion.
. No motion for reconsideration was filed by the Commission (or anyone) following the filing of our opinion in Mastandrea. Moreover, the Mastandrea opinion spoke for a unanimous Court.
. In Mastandrea, the applicants adduced specific evidence that the bricks-in-sand pathway in question there was actually more permeable to rainfall than the six inch deep excavated "natural” clay subsoils underlaying the residential lawn disturbed by installation of the pathway. No habitat for wildlife was disturbed. 361 Md. at 116-117, 760 A.2d at 681-82. Rather than offer contradictory evidence, or even to cross-examine the Mastrandreas' expert witnesses regarding the studies they made that led to the foregoing conclusions, the Commission generally argued that the variance should not be granted because, when considered with the impact of other existing impervious structures within the Critical Area buffer in Talbot County (“the cumulative effects argument”), approval of the variance would violate Talbot County's intent to protects its critical areas. Rejection of the Commission’s argument by the Talbot County Board of Appeals (and this Court) was the result. Neither rejection, however, represented repudiation of the Legislature’s retrospective legislative findings, only the Commission misapplication of them in specific cases.
. Petitioner proposes a hunting camp. Hunting is permitted in Maryland. One of the purposes of a hunting camp is to kill ducks, geese, rabbits, squirrels, deer, i.e. wildlife.
. The expert admitted that she did not know whether the cedar shake shingles were treated.
. This may well be as a result of the interactions with various public entities as the application progressed.
. A fair reading of the proceedings below, with the various interactions of officials and applicant and its experts, appeared to us, and still appears to us, to have been a situation where all parties addressed the application as if the cabins were proposed, as opposed to existing.