In this chapter, the following words have the
meanings indicated:
ADMINISTRATIVE APPEAL
A proceeding upon an application, alleging error by an administrative
official or by the Planning Commission in any final order, requirement,
decision, or determination under this Code.
APPLICATION
A claim or claims for relief by an applicant, including special
exceptions, variances, administrative appeals, or reasonable accommodations
for the benefit of a disabled citizen.
APPROVAL
Any relief the Board may grant upon an application, including
a special exception, variance, or reasonable accommodation, and any
relief granted upon an application for administrative appeal, including
any license, permit, authorization, exemption, waiver, certificate,
registration, or other form of permission issued by the County as
a result of the administrative appeal.
BOARD
The Talbot County Board of Appeals.
CLAIM FOR RELIEF
All rights of the applicant to any approval from the Board
with respect to all or any part of the transaction, or series of connected
transactions, out of which the claim arose.
The Board of Appeals shall consist of five members
and three alternates appointed by the Council for three-year terms.
The Board shall elect a Chairperson and Vice Chairperson annually
at the first meeting of each calendar year. An alternate member shall
act in the place of an absent or disabled Board member. Members of
the Board may receive such compensation as deemed appropriate by the
Council and may be removed by the Council for malfeasance in office
upon written charges and after public hearing.
[Amended 7-24-2007 by Bill No. 1061]
An application shall be submitted, in writing, on forms provided by the Board and accompanied by the filing fee as established by the Council. An application that does not contain an appropriate application form, filing fee, and accompanying material required by §§
20-6 and
20-7 shall not be accepted for filing and shall be returned with the required, but missing or incomplete, material identified.
Upon filing an application for administrative
appeal, the applicant shall serve a copy on the County department
head, or chairman of any County commission or agency responsible for
interpretation, administration, and enforcement of the ordinance,
rule, or regulation involved in the application.
A majority of the members of the Board of Appeals
shall be required to visit the site before a public hearing. However,
a decision of an appeal shall be decided upon the basis of the evidence
of record.
[Amended 5-25-2010 by Bill No. 1183]
An administrative appeal becomes contested when any person,
or any County agency, department, or commission, files with the Board
a notice of intention to participate. Such notice shall be filed within
15 days after either being served with a copy of the administrative
appeal or receiving actual notice of the administrative appeal.
[Amended 7-24-2007 by Bill No. 1061; 5-25-2010 by Bill No. 1183]
The following requirements apply to all contested
administrative appeals:
A. Prehearing statement. The applicant shall file original
and five copies of a prehearing statement no later than 30 days prior
to the public hearing and shall serve a copy on all parties of record
and upon counsel to the Board. The statement shall include the following
information:
(1) Citation to the section of the County Code authorizing
the Board to hear and decide the application;
(2) Citations to all ordinances, rules, and regulations
upon which the applicant relies;
(3) All facts upon which the application is based;
(4) All documentary evidence upon which the applicant
relies;
(5) A summary of all expert opinion to be offered;
(6) The area of expertise and qualifications of all expert
witnesses;
(7) Identity of all witnesses who will testify; and
(8) Estimated time for presentation.
B. Response. County departments, commissions, agencies,
or persons or associations intending to appear in opposition to an
application, whether or not represented by counsel, must file a similar
prehearing statement no later than seven days prior to the date of
the hearing.
C. Public participation. This section shall not be construed
to limit the rights of individual members of the public to submit
testimony during the hearing or to submit pertinent written materials
at any time while the record remains open.
D. Nonbinding. The information submitted in compliance
with this section shall be construed only as a statement of the party's
intent to submit such information or to provide testimony from witnesses,
but no parties are bound to introduce the same at the hearing.
E. Noncompliance. Failure to comply with the requirements
of this section may result in a postponement, continuance, dismissal
of an application, refusal to accept documentary evidence, or prohibition
of the testimony of a witness who is not identified.
F. Decision. In any contested application, the Board
may request that the parties submit proposed findings of fact and
conclusions of law. Additionally and without request, any party may
submit proposed findings of fact and conclusions of law for consideration
by the Board.
[Amended 4-14-2009 by Bill No. 1162]
A. Review. All applications for special exceptions and
expansion of nonconforming uses shall be referred to the Planning
Commission and the Planning Officer or his designee for review and
recommendation. Applications for variances shall be referred to the
Planning Officer or his designee, but shall only be referred to the
Planning Commission at the discretion and direction of the Board.
Comments and recommendations shall be forwarded to the Board prior
to the public hearing and shall be available for inspection and distribution
to the public.
B. Amendment. An applicant may not amend an application
for special exception or expansion of a nonconforming use or variance
after consideration by the Planning Commission or Planning Officer
except upon the recommendation of the Planning Commission or Planning
Officer, or with the consent of the Board prior to the public hearing.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
On all applications, the Board shall hold at
least one public hearing at which any person may appear in person
or through an agent or attorney. Public hearings shall be conducted
in accordance with the Board's rules of procedure and the requirements
of this chapter.
The order of presentation of evidence shall
be as follows, with cross examination following all witnesses' direct
testimony and examination by the Board of Appeals at any time:
A. Presentation of the official record of exhibits by
the Board of Appeals, notation of any objections to any part of the
record, and other preliminary matters;
B. Presentation of testimony and exhibits by the applicant;
C. Presentation of testimony and exhibits by County officials
and staff;
D. Presentation of testimony and exhibits by other persons
opposed to the application;
E. Rebuttal evidence by the applicant;
F. Surrebuttal by parties opposing the application;
G. Formal receipt into evidence of the record by the
Board of Appeals; and
H. Closing statements by each side.
The Board shall maintain a complete record of
its proceedings, including all exhibits offered and accepted, minutes,
decisions, and transcripts or voice recordings of all testimony.
The applicant shall have the burden of proof,
which shall include the burden of going forward with the evidence
and the burden of persuasion, by a preponderance of the evidence,
on all issues of fact.
Decisions of the Board shall comply with the
following requirements:
A. Evidence of record. All decisions of the Board shall
be based solely upon the evidence of record.
B. Form and time. Decisions of the Board shall be in
writing, shall contain findings and conclusions, and shall be rendered
within 30 days from the date of the public hearing unless such time
is extended by the Board.
C. Vote. Three votes shall be required to grant an application.
A denial of relief by fewer than three votes shall entitle the applicant
to a rehearing at the applicant's expense before the full Board. If
fewer than five members of the Board convene to conduct a hearing,
the Board shall open the hearing and advise the applicant on the record
of the following:
(1) A majority vote of the full Board, three votes, is
required to grant an application.
(2) The applicant is entitled, upon request, to postponement
of the hearing for lack of a full Board.
(3) The applicant is also entitled to proceed with the
hearing, but in making that election the applicant waives the right
to a rehearing before the full Board if the application is denied.
D. Complete relief. A decision on an application for
administrative appeal involving the same parties or their privies
is a final bar to any subsequent claim for relief upon the same application.
Such a decision is conclusive as to all claims for relief that were
decided in the original application and any other claim for relief
that could have been asserted.
E. Standard conditions. All approved applications shall
contain standard conditions that:
(1) The applicant and his successors are bound by the
testimony and exhibits presented in support of the application and
by the representations of the applicant's agents and attorneys to
the extent they are set forth or incorporated by reference in the
Board's decision; and
(2) The applicant and his successors consent to entry
by the County and its agents at reasonable times, upon reasonable
advance notice, to determine initial and ongoing compliance with the
terms, conditions, restrictions, and limitations of the Board's approval.
F. Additional conditions.
(1) The Board may prescribe additional conditions, restrictions,
and limitations upon any approval. All approvals shall be implemented
in accordance with, and subject to, such conditions, restrictions,
and limitations. Violation of any such condition, restriction, or
limitation shall be grounds for revocation of the approval.
(2) Approvals by the Board shall not preclude any County
department, commission or agency, when appropriate, to add specific
conditions or requirements not inconsistent with the Board's decision
that are:
(a)
Required to comply with any federal, state,
or County law, ordinance, or regulation; or
(b)
Authorized by law to protect public or private
property, or public health, safety, or welfare.
G. Mailing. A copy of the Board's decision shall be mailed
promptly to all persons who participated in the hearing.
H. Reconsideration. The Board may reconsider its decisions
upon its own motion or upon request of any party, provided such request
is received not more than 10 days from the date of the hearing at
which the Board reached and announced its decision, or within 10 days
after discovering new evidence that was not previously available and
that could not have been discovered in the exercise of reasonable
diligence prior to the hearing. The Board may promulgate additional
rules with respect to reconsideration and rehearing.
I. Inadequate information. Whenever the Board determines
that the information provided in connection with any application is
inadequate to permit the Board to make a decision, the Board may request
additional information or alternatively may decline to approve the
application.
After public hearing, the Board may revoke a
special exception or variance upon a finding that cessation of the
use or variance, or activities constituting or necessary to the special
exception, have ceased for a period of at least 12 months.
Any person who participated in the hearing and
is aggrieved by the decision may, within 30 days after the date on
which the Board's written decision has been signed by all Board members,
appeal the decision to the Circuit Court for Talbot County, and thereafter
to the appellate courts of this state in accordance with the provisions
of the Maryland Rules of Procedure.