The Board of Zoning Appeals of Westminster is
hereby created and designated the "Board of Appeals."
A.
The Board of Appeals consists of three members who
shall be residents of the City. In addition, there shall be one alternate
member empowered to sit on the Board in the absence of any member
of the Board. When the alternate is absent, a temporary alternate
shall be designated.
B.
The terms of office of the members of the Board are
three years. They shall be appointed by the Mayor, confirmed by the
Common Council and removable for cause, upon written charges and after
public hearing.
C.
Vacancies shall be filled for the unexpired term of
any member whose term becomes vacant.
D.
Members of the Board may receive such compensation
as the Common Council deems appropriate.
E.
Persons appointed to the Board shall be selected for
their understanding of and appreciation for principles of zoning,
knowledge of conditions in the community and its plans, policies,
objectives, general civic interest and fair judicial approach.
F.
Neither the Mayor nor any member of the Common Council
shall serve as either a member, alternate member or temporary alternate
member of the Board of Appeals.
A.
The Board shall have the following powers:
(1)
To hear and decide appeals where it is alleged
that there is an error in any order, requirement, decision or determination
made by an administrative official, including the Zoning Administrator,
in regard to the enforcement of this chapter or of any ordinance adopted
pursuant thereto.
(2)
To hear and decide special exceptions as such
exceptions are authorized by this chapter.
(3)
To authorize upon appeal in specific cases such
variances from the terms of this chapter as are necessary to avoid
arbitrariness and so that the spirit of this chapter shall be observed
and substantial justice done.
(a)
Such variances shall be authorized by the Board
only upon a finding by the Board that:
[1]
There are exceptional or extraordinary circumstances
or conditions applying to the property in question or to the intended
use of the property that do not apply generally to other properties
or classes of uses in the same zone;
[2]
Such variance is necessary for the preservation
and enjoyment of substantial property rights possessed by other properties
in the same zone and in the same vicinity; and
[3]
The authorizing of such variance will not be
of substantial detriment to adjacent properties and will not materially
impair the purpose of this chapter or the public interest.
(b)
This subsection shall not be construed to permit
the Board, under the guise of a variance, to change the use of land.
B.
In exercising the above-mentioned power in appeals,
the Board may, in conformity with the provisions of law and this chapter,
reverse or affirm, wholly or partly, or modify the order, requirement,
decision or determination appealed from and may make such order, requirement,
decision or determination as the Board deems necessary and to that
end shall have all the powers of the office from whom the appeal is
taken.
C.
The Board is also empowered to adopt and promulgate
such rules and regulations as it shall deem necessary to perform its
responsibilities, including the conduct of its hearings and the issuance
of its decision.
A.
The Board shall be organized and its rules shall be
adopted in accordance with the provisions of the Charter and this
chapter. Meetings of the Board shall be held at the call of the Chairman
and at such other times as the Board may determine. The Chairman or,
in his absence, the Acting Chairman may administer oaths and compel
the attendance of witnesses. For assistance in reaching decisions
relative to appeals, special exceptions or variances, the Board may
request testimony at its hearings for purposes of securing technical
aid or factual evidence from the Commission or any agency or person.
B.
All meetings of the Board shall be open to the public.
The Board shall keep minutes of its proceedings, showing the vote
of each member upon each question, or, if absent or failing to vote,
indicating such fact, and shall keep records of its official actions,
all of which shall be immediately filed in the office of the Board
and shall be a public record.
Appeals to the Board shall be taken within 30
days after the decision by filing with the officer from whom the appeal
is taken and with the Board a notice of appeal, specifying the grounds
therefor. The officer from whom the appeal is taken, including the
Zoning Administrator, shall forthwith transmit to the Board all the
papers constituting the record upon which the action appealed from
was taken.
An appeal shall stay all proceedings in furtherance
of the action appealed from unless the official from whom the appeal
was taken certifies to the Board, after the notice of appeal has been
filed with him, that by reasons of facts stated in the certificate
a stay would, in his opinion, cause imminent peril to life or property.
In such case proceedings shall not be stayed otherwise than by a restraining
order which may be granted by the Board or by a court of record, on
application, after notice to the officer from whom the appeal was
taken and on due cause shown.
A.
Filing of petition. Petitions for the grant of special exceptions shall be filed with the Board on forms provided therefor. The petitioner shall submit site development plans, specifications or other data, including architectural plans or explanatory material, stating the methods by which he will comply with the conditions specified for each grant of special exception. At the time of filing his request for a grant of special exception, the petitioner shall pay to the Board the fee provided in § 164-174.
B.
Zoning Map to indicate special exception. Upon receipt
of a notice of a grant of special exception, the Zoning Administrator
shall indicate the same in the proper place on the Zoning Map by use
of appropriate code number or symbol.
Upon the filing of a notice of appeal or a petition
for special exception, the Board shall take the following action preparatory
to holding a hearing:
A.
The Board shall fix a reasonable time for a hearing
of the appeal or petition.
B.
Notice of the hearing shall be advertised in two issues
of a newspaper having general circulation in the City, and the first
insertion shall appear in such newspaper at least 20 days prior to
such hearing.
C.
The property with which the appeal or petition is
concerned shall be posted conspicuously by the Zoning Administrator
stating the time, date, place and purpose of the hearing at least
14 days before the date of the hearing. Said sign shall be maintained
continuously, and at the hearing the appellant or petitioner shall
have the duty of proving by affidavit that this provision has been
met up to the time of the hearing. It shall be unlawful for anyone
except the Zoning Administrator to remove or tamper with any sign
during the period that it is required to be maintained.
D.
Notification by certified mail shall be made to the
appellant or petitioner and to the owners of those properties and
the addresses certified on the notice of appeals or petition for special
exception, respectively, by the appellant or petitioner as being contiguous
to the property with which the hearing is concerned. Properties facing
the property and across a street or public right-of-way shall also
be considered contiguous.
E.
Upon written request to the Board by any interested
party at least 10 days prior to the date of the scheduled hearing,
the Board shall be required to visit the property in question before
the hearing. The Board may otherwise visit the specific property prior
to the hearing.[1]
[1]
Editor's Note: Former Subsection F, regarding petitions for
special exceptions, which immediately followed, was repealed 12-13-2021 by Ord. No.
938.
A.
Before making its decision on any appeal or petition,
the Board shall hold a public hearing, at which time any party may
appear and be heard in person or by agent or by attorney.
B.
The Board in its rules and regulations may prescribe
regulations pertaining to the submission of documentary evidence into
the record prior to the hearing.
C.
Subject to the provisions of Subsection B, any party has the right to submit oral or written testimony or documentary evidence into the record.
D.
The Board may consider the Zoning Map as a part of
the record. It may also exclude evidence which is immaterial, irrelevant
or unduly repetitious.
E.
The Board shall keep minutes of its proceedings, meetings
and hearings.
A.
Requests for postponement of a scheduled hearing shall
be filed, in writing, with the Board not less than 10 days prior to
the date of hearing and shall be accompanied by a sum of money sufficient
to pay the cost of advertising the postponement and the rescheduled
hearing. The granting of such requests shall be at the discretion
of the Chairman of the Board.
B.
Requests for postponement filed later than 10 days prior to the date of a scheduled hearing shall, in addition to the other requirements set forth in Subsection A, be supported by an affidavit of the party making the request or of some other creditable person. The granting of such request shall be at the discretion of the Board, in cases of extreme hardship, or upon good cause shown.
C.
The Board may, upon its own initiative, postpone a scheduled hearing at any time, but shall readvertise the new hearing date in accordance with § 164-166B.
D.
Once started, the Board may continue a hearing to
a date, time and place certain on public announcement given at the
hearing specifying such new date, time and place, and no additional
notice of continued hearings shall be required.
In the exercise of its responsibilities under
this chapter, the Board shall study the specific property involved,
as well as the neighborhood, shall consider all testimony and data
submitted and shall hear any person desiring to speak for or against
the appeal or petition.
A.
In making its determination, the Board may consider
whether the appeal or petition would adversely affect the public health,
safety, security, morals or general welfare, would result in dangerous
traffic conditions or would jeopardize the lives or property of people
living in the neighborhood.
B.
In deciding such matters, the Board may consider the
following factors, together with other relevant factors:
(1)
The number of people residing or working in
the immediate area concerned.
(2)
The orderly growth of a community.
(3)
Traffic conditions and facilities.
(4)
The effect of such use upon the peaceful enjoyment
of people in their homes.
(5)
The conservation of property values.
(6)
The effect of odors, dust, gas, smoke, fumes,
vibrations, glare and noise upon the use of surrounding property values.
(7)
The most appropriate use of land and structure.
(8)
Prior decisions of the courts regarding such
matters.
(9)
The purpose of the regulations as set forth
in this chapter.
(10)
The type and kind of structures in the vicinity
where public gatherings may be held, such as schools, places of worship
and the like.
[Amended 5-13-2019 by Ord. No. 910]
(11)
Facilities for sewers, water, schools, transportation
and other services and the ability of the City to supply such services.
(12)
Limitations of fire-fighting equipment and the
means of access for fire, police and health services.
(13)
The preservation of cultural and historical
landmarks.
(14)
Traffic conditions, including facilities for
pedestrians, such as sidewalks, safety zones, parking facilities available
and the safe access of cars to highways or roads.
(15)
The contribution, if any, that such proposed
use, building or addition would make toward the deterioration of areas
and neighborhoods.
A.
The Board may grant a special exception when it finds
from a preponderance of the evidence of record that:
(1)
The proposed use does not adversely affect the
general plan for the physical development of the district, as may
be embodied in this chapter and in any Master Plan or portion thereof
adopted by the Commission;
(2)
The proposed use at the location selected will
not:
(a)
Adversely affect the health and safety of residents
or workers in the area;
(b)
Overburden existing public services, including
water, sanitary sewer, public roads, storm drainage and other public
improvements; or
(c)
Be detrimental to the use or development of
adjacent properties or the general neighborhood or change the character
of the general neighborhood in which the use is proposed, considering
the service required, at the time of the application, the population,
density, character and number of similar uses; and
(3)
The standards set forth for each particular
use for which a special exception may be granted have been met.
B.
The applicant for a special exception shall have the
burden of proof, which shall include the burden of going forward with
the evidence and the burden of persuasion on all questions of fact
which are to be determined by the Board.
A.
The Board is hereby empowered to add the specific
provisions that it may deem necessary to protect adjacent properties,
the general neighborhood and the residents and workers therein, including
provisions such as special setbacks, landscaping, parking, lighting
restrictions, limited business hours and other restrictions. The Board
may also specify a time limit for the implementation of a special
exception.
C.
Whenever the Board shall find, in the case of any
exception heretofore or hereafter granted pursuant to the provisions
of this article, that any of the terms, conditions or restrictions
upon which such exception was granted are not being complied with,
the Board is authorized, after due notice to all parties concerned
and granting full opportunity for a public hearing, to suspend or
revoke such exception or take other action as it deems necessary to
ensure compliance. The Board is authorized to request and obtain investigations
and reports as to compliance from such City, county or state agencies
or administrative officers as may be appropriate.
A.
Ex parte or private communications. A member shall
not consider any ex parte or private communication from any person,
whether oral or written, which he knows is or reasonably may be intended
to influence unlawfully the decision on the merits of any matter pending
before the Board of Appeals or an appeal therefrom to a court of competent
jurisdiction. Any such ex parte or private communication received
and considered shall be made of public record by the recipient and,
if made orally, shall be written down in substance for this purpose
by the recipient. A communication to the Board of Appeals concerning
the status or procedures of a pending matter shall not be considered
an ex parte or private communication. This subsection shall not apply
to legal advice rendered by the City Attorney or his staff and shall
not apply to technical advice or explanation by governmental agencies
at the request of a member or members of the Board.
B.
The Board shall render its decisions, in writing,
within a reasonable time. Said decisions shall contain a statement
of the grounds and findings upon which they are based. A copy of such
decisions shall be promptly mailed by the Board to the appellant or
petitioner and to all parties to the proceeding or their representatives
before the Board as shown by a list to be maintained by the Board
in each case, and a copy shall be furnished to the Zoning Administrator.
C.
The concurring vote of two members of the Board shall
be necessary to reverse any order, requirement, decision or determination
of any administrative official or to decide in favor of the applicant
on any matters upon which it is required to pass under this chapter
or to effect any variance from this chapter.
If disapproved, no appeal or petition requesting
substantially the same relief in regard to the same property shall
be received or heard by the Board for a period of two years following
the Board's disapproval or, in the event that the Board's decision
is appealed, for a period of two years following the date of final
disposition of such appeal, except that this limitation shall not
affect the Board's right to grant a rehearing in the original proceeding
if such rehearing is provided in the Board's rules of procedure. In
the event of an appeal or application which is withdrawn before the
Board hearing, the above time period shall be reduced to one year.
[Amended 11-24-2008 by Ord. No. 792]
A filing fee shall accompany each appeal or
petition to the Board, as may be determined by the Mayor and Common
Council of Westminster in the General Fee Ordinance.[1]
A.
Who may appeal; procedure. Any person or persons,
jointly or severally, aggrieved by any decision of the Board of Appeals
or any taxpayer or any officer, department, board or bureau of the
City may appeal the same to the Circuit Court for Carroll County.
Such appeal shall be taken according to the Maryland Rules as set
forth in Chapter 1100, Subtitle B of the Annotated Code of Maryland.
B.
Hearing; additional testimony. If upon the hearing
it shall appear to the Court that testimony is necessary for the proper
disposition of the matter, it may take evidence or appoint a referee
to take such evidence as it may direct and report the same to the
Court with his findings of fact and conclusions of law, which shall
constitute a part of the proceedings upon which the determination
of the Court shall be made.
C.
Costs not allowed against Board; exception. Costs
shall not be allowed against the Board unless it shall appear to the
Circuit Court that it acted with gross negligence or in bad faith
or with malice in making the decision appealed from.
D.
Issues under section have preference. All issues in
any proceeding under this section shall have preference over all other
civil actions and proceedings.
E.
Decision of Circuit Court; appeal to Court of Special
Appeals; costs. Upon its determination of a case, the Circuit Court
shall file a formal order embodying its final decision. An appeal
may be taken to the Court of Special Appeals, during the period and
in the manner prescribed by the Maryland Rules, from any decision
of the Circuit Court. In such cases the award of costs shall be subject
to the discretion of the Court of Special Appeals.
