[HISTORY: Adopted by the County Council of
Talbot County 9-26-2006 by Bill No. 1051. Amendments noted where
applicable.]
GENERAL REFERENCES
County Board of Appeals — See
Charter, Art. V.
Agricultural land preservation — See Ch. 5.
Boards, commissions and committees — See Ch. 24.
Comprehensive Plan — See Ch. 39.
Enforcement of Code — See Ch. 58.
Fees — See Ch. 64.
Floodplain management — See Ch. 70.
Forest conservation — See Ch. 73.
Zoning, subdivision and land development — See Ch. 190.
In this chapter, the following words have the
meanings indicated:
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.
A person who files an 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.
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.
The Talbot County Board of Appeals.
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 Talbot County Council.
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.
A.
General. The Board shall have authority to hear and
decide only such of the following matters as the Council has or may
specify from time to time by ordinance enacted separately from this
chapter:
(1)
An application for a special exception or expansion
of a nonconforming use.
[Amended 4-14-2009 by Bill No.
1162]
(2)
An application for a variance; however, the Board
may not grant any variance that would authorize a use not otherwise
permitted in the zone.
[Amended 4-14-2009 by Bill No.
1162]
(3)
An application for administrative appeal concerning:
(a)
Issuance, renewal, denial, revocation, suspension,
annulment, or modification of any license, permit, authorization,
exemption, waiver, certificate, registration, or other form of permission;
(b)
Issuance of any administrative or adjudicatory
order;
(c)
Assessment of any special benefit tax;
(d)
A final decision by the Planning and Zoning
Commission concerning major subdivisions and commercial and industrial
site plan review;
(e)
Reasonable accommodations for the benefit of
disabled citizens; or
(f)
Determination of zoning district boundaries.
B.
Limitation. This section does not authorize the Board
to hear or decide any of the foregoing matters unless, prior to the
application, the Council shall have adopted separate enabling legislation
authorizing the Board to do so.
A.
Subpoenas and oaths. The Chairperson, or in his absence
the Vice Chairperson, may issue subpoenas to compel attendance of
witnesses and production of documents and other relevant evidence,
administer oaths and take testimony.
B.
Rules of procedure. The Board shall adopt rules of
procedure governing its proceedings, which shall have the force and
effect of law when approved by legislative act of the Council.
C.
Rules of evidence. The Board shall adopt rules of
evidence governing its proceedings, which shall have the force and
effect of law when approved by legislative act of the Council.
D.
Records. The Board shall keep minutes and, where appropriate,
transcripts, voice recordings and other records on matters coming
before the Board, showing the vote of each member upon each question
or, if absent or failing to vote, indicating such fact, all of which
shall be a public record filed in the Planning Office.
E.
Legal counsel. The Board may appoint its own attorney
within budgetary limitations established by the Council.
[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.
A.
Special exceptions, nonconforming uses and variances.
Applications for a special exception, an expansion of a nonconforming
uses, or a variance may be filed by any person, entity, or government
agency with any financial, contractual, or proprietary interest in
the affected property. Applications filed by one other than the owner
of the property must be filed with the owner's written consent.
[Amended 4-14-2009 by Bill No. 1162]
B.
Administrative appeals.
(1)
General. Applications for administrative appeal may
be initiated by any person aggrieved by a final order, requirement,
decision, or determination of an administrative official, department,
or commission. An appeal from the grant or denial of an administrative
variance shall be by an application for administrative appeal.
(2)
Time for filing. Applications for administrative appeal
shall be filed within 30 days of the date of final order, requirement,
decision, or determination, unless separate legislation establishes
a different period.
(3)
Stay. An application for administrative appeal shall
automatically stay all further proceedings to enforce compliance with
the order, requirement, decision, or determination, and shall automatically
stay all further subdivision, site plan, and related development reviews.
There shall be no automatic stay when, in the judgment of the official
having administrative authority to decide the question, a stay would
cause immediate peril to life or property. A stay shall not limit
the County's ability to obtain appropriate injunctive or other relief
from a court.
C.
Planning Commission. Applications for review of any
final order, requirement, decision, or determination of the Planning
Commission shall be by written statement and oral argument based solely
on evidence submitted and received in the proceedings before the Planning
Commission.
A.
Special exceptions and nonconforming uses. An application
for special exception or expansion of a nonconforming use shall be
accompanied by the following materials:
[Amended 4-14-2009 by Bill No. 1162]
(1)
Survey plats, site plans, or other accurate drawings
showing property boundaries, dimensions, area, topography, and frontage,
and the dimensions of all existing and proposed structures and their
locations measured from the nearest property lines.
(2)
Plans, architectural drawings, photographs, elevations,
specifications, or other detailed information depicting fully the
exterior appearance of existing and proposed construction, including
parking, access, exterior lighting, and signs.
(3)
A statement explaining in detail how the use is to
be operated, including hours of operation, number of anticipated employees,
occupants and clientele, traffic impact, and any special equipment,
conditions, or limitations that the applicant proposes.
(4)
A copy of the official Zoning Map showing a 1,000-foot
radius surrounding the subject property and other information to indicate
the use and general conditions of existing improvements on adjacent
properties.
(5)
Names and addresses of adjacent property owners as
required by this chapter.
(6)
If the applicant is not the owner or the authorized
agent of the owner, in addition to the owner's written consent, a
copy of the lease, rental agreement, or contract to purchase by which
the applicant claims the right to file the application.
(7)
All documents, records, and exhibits that the applicant
intends to introduce or rely upon at the public hearing.
(8)
A reference to each specific section of the County
Code that authorizes the Board to hear the application and grant the
requested relief.
(9)
Applications governed by state or federal laws, rules,
or regulations shall provide the materials and information required
by applicable state and federal standards.
B.
Variances. An application for a variance shall be
accompanied by the following materials and information:
(1)
Survey plats, site plans, or other accurate drawings
showing property boundaries, dimensions, area, topography, and frontage,
and the dimensions of all existing and proposed structures and their
locations measured from the nearest property lines.
(2)
Identification and description of all unique physical
characteristics of the property for which the variance is sought,
and information, photographs, maps, or other materials showing that
these physical characteristics are not common to other property in
the neighborhood.
(3)
Identification of the provisions of the County Code
for which the variance is requested.
(4)
A description of how, if the Code requirement were
applied to the property, its unique physical characteristics would
create either extraordinary hardship or practical difficulty, and
not mere inconvenience.
(5)
Other materials required by the separate, enabling
legislation authorizing the application.
(6)
All documents, records, and exhibits that the applicant
intends to introduce or rely upon at the public hearing.
(7)
Names and addresses of adjacent property owners as
required by this chapter.
(8)
A reference to each specific section of the County
Code that authorizes the Board to hear the application and grant the
requested relief.
(9)
Applications governed by state or federal laws, rules,
or regulations shall provide the materials and information required
by applicable state and federal standards.
C.
Administrative appeal. An application for administrative
appeal shall be accompanied by the following materials and information:
(1)
All documents and records upon which the application
is based, including the final order, requirement, decision, or determination
being reviewed.
(2)
A specific reference to each section of the County
Code that authorizes the Board to hear the application and grant the
requested relief.
(3)
Names and addresses of adjacent property owners as
required by this chapter.
(4)
The following materials and information need not be
submitted with the application but shall be submitted no later than
30 days prior to the public hearing:
(a)
All documents, records, and exhibits that the
applicant intends to rely upon at the public hearing.
(b)
A summary of what the applicant expects to prove,
including the names of the applicant's witnesses, summaries of the
testimony of expert witnesses, and the estimated time required for
presentation of the applicant's case. All reports from experts shall
be filed and served on all other persons who have entered an appearance
in the proceeding at least 15 days prior to the public hearing.
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.
Required. The applicant shall post the property for
which an application is pending in accordance with the requirements
of this section.
B.
Location. The applicant shall post the property by
erecting a sign furnished by the Board at least 15 days prior to the
public hearing. The sign shall be located on the property, nearly
centered between its two side property lines, and within 10 feet from
the most traveled public road. If no public road abuts the property,
the sign shall be located so that the public will most readily see
it. Signs shall be posted conspicuously and continuously maintained
upright, visible, and free from obstruction by vegetation or otherwise,
through the conclusion of all public hearings.
C.
Responsibility. The applicant is responsible for and
bears the burden of proof to establish, by affidavit or otherwise,
full compliance with all posting requirements.
D.
Sign return. The applicant shall remove and return
the sign to the Secretary within five calendar days after conclusion
of the public hearing(s). The applicant shall pay a fine of $50 per
calendar day for late return, and the full cost of repair or replacement
for any damaged sign.
B.
Content. The notice shall state:
C.
Mailing. The notice shall be mailed by regular mail,
postage prepaid. For an administrative appeal, the notice shall be
mailed at least 30 days prior to the date scheduled for the public
hearing. For special exceptions and variances, the notice shall be
mailed at least 15 days prior to the date scheduled for the public
hearing. The notice shall be mailed to the property owners' addresses
to which County real estate tax bills are sent.
[Amended 7-24-2007 by Bill No. 1061]
D.
List. The applicant shall furnish the Secretary with a complete, accurate, and verified listing of the tax maps, grids, and parcels, and the names and addresses of all property owners entitled to receive notice under Subsection A of this section.
E.
Renotification. Renotification of adjacent property
owners under this section is not required for any hearing that is
properly convened and continued in accordance with the requirements
of this chapter.
F.
Nonreceipt. Failure of a property owner to receive
notice under this section shall not affect the public hearing or the
action of the Board on the application.
A.
Content. The Secretary shall schedule and provide
public notice of the date, time, and place of the hearing on each
application. The notice shall include the property address, a brief
description of the property, a summary of the relief requested, and
shall be published over the signature of the Secretary in a suitable
format approved by the Board. The applicant shall bear the expense
of publication.
B.
Advertisement. All public hearings shall be advertised
once a week for two successive weeks in a newspaper of general circulation
in the County, with the last advertisement published not more than
10 days prior to the date of the hearing.
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:
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.
A.
Time limit. The Board shall prescribe a time limit
not to exceed 18 months in which an approval shall be implemented.
Failure to obtain required building permits, zoning certificates,
site plan approval, or other necessary authorizations within the prescribed
time voids the approval. The Board, upon written request before expiration
of the initial time limit and for good cause shown, may extend the
time to implement the approval for one like period.
[Amended 7-24-2007 by Bill No. 1061]
B.
Amendment or modification. Upon request of an applicant,
successor, property owner, County department, or Planning Commission,
the Board is authorized to amend or modify any approval, including
the terms, conditions, or limitations imposed on an approval.
C.
Compliance required. An approval shall be implemented
and maintained in compliance with all terms, conditions, restrictions,
and limitations imposed by this Code or by the Board. Noncompliance
shall be a violation of the approval and shall be cause for revocation
of the approval.
D.
Inspections. An inspection shall be conducted by the
appropriate County department to determine compliance with the requirements
of this chapter and all terms, conditions, restrictions, and limitations,
if any, imposed by the Board or by law upon the approval. Additional
inspections may be conducted from time to time to determine ongoing
compliance.
E.
Vested rights. Vested rights in an approval shall
not attach where the applicant, successor, or holder is in violation
of the applicable terms, conditions, restrictions, or limitations
of the approval, or of the requirements of law in effect at the time
of implementation.
F.
Revocation. The Planning Commission, any County department, or any adjacent property owner as defined in § 20-10 may file an application to revoke any approval for noncompliance with § 20-21C. The Board shall schedule the application for a hearing, notify the property owner, provide public notice and conduct a public hearing on the application as set forth in this chapter and the Board's rules of procedure.
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.
