A.
An appeal from any final order or decision of the Administrator or
Planning Commission may be taken to the Board of Appeals by any person
aggrieved. An appeal is taken by filing, with the Administrator and
the Board of Appeals, a written notice of appeal specifying the grounds
therefor. A notice of appeal shall be considered filed with the Administrator
and the Board of Appeals when delivered to the Town Hall, and the
date and time of filing shall be entered on the notice by the Zoning
Administrator.
B.
An appeal must be filed within 30 days of the date of the decision
or order appealed from.
C.
Whenever an appeal is filed, the Administrator shall transmit to
the Board of Appeals all the documents constituting the record relating
to the action appealed from.
D.
An appeal stays all actions by the Administrator seeking enforcement
of or compliance with the order or decision appealed from, unless
the Administrator certifies to the Board of Appeals that (because
of facts stated in the certification) a stay would, in his opinion,
cause imminent peril to life or property. In that case, proceedings
shall not be stayed except by order of the Board of Appeals or a court,
issued on application of the party seeking the stay, for due cause
shown, after notice to the Administrator.
E.
The Board of Appeals may reverse or affirm (wholly or partly) or
may modify the order, requirement, decision or determination appealed
from and shall make any order, requirement, decision or determination
that, in its opinion, ought to be made in the case before it. To this
end, the Board shall have all the powers of the officer from whom
the appeal is taken.
A.
An application for a variance shall be submitted to the Board of Appeals by filing a copy of the application with the Administrator in the Town Hall. Applications shall be handled in the same manner as applications for zoning permits and special exceptions in conformity with the provisions of Article IV. When the application for a variance seeks a deviation in applicable setbacks for a nonconforming lot of record, the standards set forth in Article VIII shall apply in lieu of the following.
B.
An application for a variance in the Critical Area District shall
be submitted to the Critical Area Commission, and all related correspondence
shall be provided to the Town.
C.
A variance may be granted by the Board of Appeals if it concludes
that strict enforcement of this chapter would result in practical
difficulties or unnecessary hardships for the applicant and that,
by granting the variance, the spirit of this chapter will be observed,
public safety and welfare secured, and substantial justice done. It
may reach these conclusions if it finds:
(1)
That if the applicant complies strictly with the provisions
of this chapter, he can make no reasonable use of his property.
(2)
That special conditions or circumstances exist that are unique
to the subject property or structure and that a literal 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 classification.
(a)
The hardship of which the applicant complains is one suffered
by the applicant rather than by neighbors or the general public;
(b)
The hardship relates to the applicant's land, rather than personal
circumstances;
(c)
The hardship is unique, or nearly so, rather than one shared
by many surrounding properties;
(d)
The hardship is not the result in the applicant's own actions.
(3)
That strict enforcement of the provisions of this chapter would
deprive the property owner of rights commonly shared by other owners
of property in similar areas.
(4)
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 Zoning District.
(5)
That the variance request is not based upon conditions or circumstances
which are self-created or self-imposed, nor does the request arise
from conditions or circumstances, either permitted or nonconforming,
which are related to adjacent parcels.
(6)
That greater profitability or lack of knowledge of the restrictions
shall not be considered as sufficient cause for a variance.
(7)
That the proposed variance is consistent with the Town of Indian
Head Comprehensive Plan.
(8)
That the variance will neither result in the extension of a nonconforming situation in violation of Article VIII nor authorize the initiation of a nonconforming use of land.
(9)
That the granting of the variance will be in harmony with the
general purpose and intent of this chapter and the Town's Critical
Area Program, and shall not result in a use not permitted in the zone
in which the property subject to variance is located, and will not
be injurious to the neighborhood or otherwise detrimental to the public
welfare.
D.
In granting variances, the Board of Appeals may impose such reasonable conditions as will ensure that the use of the property to which the variance applies will be as compatible as practical with the surrounding properties. Violations of such conditions, when made part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under Article VII.
E.
A variance may be issued for an indefinite duration or for a specified
duration only.
F.
The nature of the variance and any conditions attached to it shall
be entered on the face of the zoning permit, or the zoning permit
may simply note the issuance of the variance and refer to the written
record of the variance for further information. All such conditions
are enforceable in the same manner as any other applicable requirement
of this chapter.
A.
The Board of Appeals is authorized to interpret the Zoning Map and to pass upon disputed questions of lot or district boundary lines and similar questions. If such questions arise in the context of an appeal from a decision of the Zoning Administrator, they shall be handled as provided in § 440-500.
B.
An application for a map interpretation shall be submitted to the
Board of Appeals by filing a copy of the application with the Zoning
Administrator in the Town Hall. The application shall contain sufficient
information to enable the Board to make the necessary interpretation.
C.
Where uncertainty exists as to the boundaries of districts as shown
on the Official Zoning Map, the following rules shall apply:
(1)
Boundaries indicated as approximately following the center line
of alleys, streets, highways, streams, or railroads shall be construed
to follow such center line;
(2)
Boundaries indicated as approximately following lot lines and
Town boundary lines shall be construed as following such lines, limits
or boundaries;
(3)
Boundaries indicated as following shorelines shall be construed
to follow such shorelines, and in the event of change in the shoreline
shall be construed as following such shorelines;
(4)
Where a district boundary divides a lot or where distances are
not specifically indicated on the Official Zoning Map, the boundary
shall be determined by measurement, using the scale of the Official
Zoning Map;
(5)
Where any street or alley is hereafter officially vacated or
abandoned, the regulations applicable to each parcel of abutting property
shall apply to that portion of such street or alley added thereto
by virtue of such vacation or abandonment.
D.
Interpretations of the location of floodway and floodplain boundary
lines may be made by the Zoning Administrator.
The Board of Appeals shall hear and decide all appeals, variance requests, and requests for interpretations as expeditiously as possible, consistent with the need to follow regularly established agenda procedures. The Board shall provide notice in accordance with § 440-507, and obtain the necessary information to make sound decisions.
A.
When an appeal is taken to the Board of Appeals in accordance with § 440-500, the Administrator shall have the initial burden of presenting to the Board sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion.
A.
With respect to appeals, a motion to reverse, affirm, or modify the
order, requirement, decision, or determination appealed from shall
include, insofar as practicable, a statement of the specific reasons
or findings of facts that support the motion. If a motion to reverse
or modify is not made or fails to receive the majority vote necessary
for adoption, then a motion to uphold the decision appealed from shall
be in order. This motion is adopted as the Board's decision if supported
by a majority of the Board's membership (excluding vacant seats).
B.
A motion to deny a variance may be made on the basis that any one or more of the criteria set forth in § 440-501C are not satisfied or that the application is incomplete. Insofar as practicable, such a motion shall include a statement of the specific reasons or findings of fact that support it. This motion is adopted as the Board's decision if supported by a majority of the Board's membership (excluding vacant seats).
A.
Before making a decision on an appeal or an application for a variance,
special exception, or a petition from the planning staff to revoke
a special exception, the Board of Appeals shall hold a hearing on
the appeal or application.
B.
Subject to Subsection C, the hearing shall be open to the public, and all persons interested in the outcome of the appeal or application shall be given an opportunity to present evidence and arguments and ask questions of persons who testify.
C.
The Board of Appeals may place reasonable and equitable limitations
on the presentation of evidence and arguments and the cross-examination
of witnesses so that the matter at issue may be heard and decided
without undue delay.
D.
The Board may continue the hearing until a subsequent meeting and
may keep the hearing open to take additional information up to the
point a final decision is made. No further notice of a continued hearing
need be published unless a period of six weeks or more elapses between
hearing dates.
The Administrator shall give notice of any hearing required by § 440-506 as follows:
A.
Notice shall be given to the appellant or applicant and any other
person who makes a written request for such notice by mailing to such
persons a written notice not later than 10 days before the hearing.
When lands subject to application of a variance or special exception
are located in the Critical Area, notice shall also be provided to
the Critical Area Commission.
B.
Notice shall be given to neighboring property owners by mailing a
written notice not later than 10 days before the hearing to those
property owners about the lot that is the subject of the application
or appeal. Notice shall also be given by prominently posting signs
in the vicinity of the property that is the subject of the proposed
action. Such signs shall be posted not less than seven days prior
to the hearing.
C.
In the case of special exceptions, notice shall be given to other
potentially interested persons by publishing a notice one time in
a newspaper having general circulation in the area not less than seven
nor more than 15 days prior to the hearing.
D.
The notice required by this section shall state the date, time, and
place of the hearing, reasonably identify the lot that is the subject
of the application or appeal, and give a brief description of the
action requested or proposed.
A.
The provisions of this section apply to all hearings for which a notice is required by § 440-506.
B.
All persons who intend to present evidence to the Board, rather than
arguments only, shall be sworn.
C.
All findings and conclusions necessary to the issuance or denial
of the requested permit or appeal (crucial findings) shall be based
upon reliable evidence. Competent evidence (evidence admissible in
a court of law) shall be preferred when reasonably available, but
in no case may crucial findings be based solely upon evidence other
than competent evidence unless competent evidence is not reasonably
available, the evidence in question appears to be particularly reliable,
and the matter at issue is not seriously disputed.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. III)]
A.
In response to questions or comments by persons appearing at the
hearing or to suggestions or recommendations by the Board of Appeals,
the applicant may agree to modify his application, including the plans
and specifications submitted.
B.
Unless such modifications are so substantial or extensive that the
Board cannot reasonably be expected to perceive the nature and impact
of the proposed changes without revised plans before it, the Board
may approve the application with the stipulation that the permit will
not be issued until plans reflecting the agreed-upon changes are submitted
to the planning staff.
A.
An audio recording shall be made of all hearings required by § 440-506, and such recordings shall be kept for at least two years. Accurate minutes shall also be kept of all such proceedings, but a transcript need not be made.
B.
Whenever practicable, all documentary evidence presented at a hearing
as well as all other types of physical evidence shall be made a part
of the record of the proceedings and shall be kept by the Town for
at least two years.
A.
Any decision made by the Board of Appeals regarding an appeal or
variance or issuance or revocation of a special exception shall be
reduced to writing and served upon the applicant or appellant and
all other persons who make a written request for a copy.
B.
In addition to a statement of the Board's ultimate disposition of
the case and any other information deemed appropriate, the written
decision shall state the Board's findings and conclusions, as well
as supporting reasons or facts, whenever this chapter requires the
same as a prerequisite to taking action.
