Wicomico County, MD
 
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Table of Contents
Table of Contents
[HISTORY: Adopted by the County Council of Wicomico County 7-6-2004 by Bill No. 2004-6. Amendments noted where applicable.]
GENERAL REFERENCES
Alarms — See Ch. 105.
Building construction — See Ch. 117.
Critical Area resources protection — See Ch. 125.
Forest conservation — See Ch. 126.
Fortune-telling — See Ch. 151.
Housing standards — See Ch. 160.
Motels and places of amusement — See Ch. 170.
Stormwater management — See Ch. 196.
Subdivision of land — See Ch. 200.
Taxicabs — See Ch. 205.
Zoning — See Ch. 225.
A. 
The Wicomico County Board of Appeals is hereby created and established pursuant to the authority of Article 25A, § 5(U) of the Annotated Code of Maryland.
B. 
Membership. The Wicomico County Board of Appeals shall consist of five regular members and two alternate members, all of whom shall be appointed by the Wicomico County Executive and confirmed by the County Council. The County Executive shall designate one regular member as Chairman of the Board of Appeals and one regular member as Vice Chairman.
[Amended 10-17-2006 by Bill No. 2006-11; 5-18-2010 by Bill No. 2010-05]
C. 
Terms. All appointments shall be for a term of three years or until their successors are duly appointed and qualified.
D. 
Vacancies. Vacancies occurring in the Board of Appeals shall be filled for the unexpired term by the County Executive and confirmed by the County Council.
[Amended 10-17-2006 by Bill No. 2006-11]
E. 
Removal. Any member of the Board of Appeals may be removed by the County Executive when, in his discretion, the best interest of the community would be served thereby.
[Amended 10-17-2006 by Bill No. 2006-11]
[Amended 10-17-2006 by Bill No. 2006-11; 5-18-2010 by Bill No. 2010-05]
The Planning Director shall serve as the Secretary to the Board of Appeals. The Board of Appeals may request of the County Executive the employment of such technical or special staff assistants as may be necessary from time to time.
The Board of Appeals shall have and may exercise the following powers, duties and functions:
A. 
Appeals from orders relating to zoning. The Board of Appeals shall have and exercise all the functions and duties relating to zoning described in Article 25A of the Annotated Code of Maryland as such functions and powers may be prescribed by legislative act of the County Council. These duties, functions and powers shall include, but not be limited to:
(1) 
To authorize such variances from the terms of Chapter 225 as will not be contrary to the public interest, and where owing to the uniqueness of the property, topographical or special conditions, the strict enforcement of the provisions of said chapter will result in practical difficulty or unreasonable hardship.
(2) 
To hear and decide applications for special exceptions under Chapter 225 of this Code.
(3) 
To hear and decide matters pertaining to a nonconforming use under Chapter 225 of this Code.
(4) 
To determine unclassified uses as the same shall be required by Chapter 225 of this Code.
(5) 
To hear and decide appeals from any final order, decision, requirement or interpretation made by an administrative official in the enforcement of any matter under Chapter 225.
B. 
Appeals from executive, administrative and adjudicatory orders. The Board of Appeals shall hear and decide appeals from all other administrative and adjudicatory orders as it may be required to act upon, by Article 25A of the Annotated Code of Maryland, as amended, or by legislative act of the County Council not inconsistent therewith. These appeals shall include, but not be limited to:
(1) 
Appeals from Chapter 160, Housing Standards.
(2) 
Appeals or variances from Chapter 125, Critical Area Resource Protection, of the Wicomico County Code.
(3) 
Appeals from Chapter 200, Subdivision of Land, of the Wicomico County Code.
(4) 
Appeals from Chapter 205, Taxicabs.
(5) 
To hear and decided variances under Chapter 149, Floodplain Management.
[Added 12-18-2012 by Bill No. 2012-13]
C. 
Guidelines. All appeals heard and decided by the Board of Appeals shall be determined in accordance with the guidelines for such actions established by legislative act of the County Council as may be adopted or amended from time to time.
D. 
Limitation of authority of the Board of Appeals. Nothing contained in this chapter shall be deemed to authorize:
(1) 
The Board of Appeals to reverse or modify any refusal of a permit or any other order, requirement, decision or determination unless the Board determines it fails to conform to the provisions of this Code. The Board of Appeals shall not be authorized to validate, ratify, or legalize any violation of law or the provisions of this Code.
(2) 
The amendment of any of the provisions of the Code or cause changes to the official Zoning Maps.
A. 
Authority. The Board of Appeals shall have the authority to adopt and amend rules of practice and procedure to cover the conduct of its proceedings. Such rules may include matters relating to meetings and hearings conducted by the Board and all other matters deemed appropriate or necessary for the Board to conduct its proceedings.
B. 
Required procedures. Notwithstanding the authority granted in this section, the following procedures shall be applicable to matters submitted to the Board of Appeals:
(1) 
Scheduling. The Secretary of the Board of Appeals shall schedule matters before the Board of Appeals in accordance with the rules and regulations established by the Board and the County Council of Wicomico County.
[Amended 5-18-2010 by Bill No. 2010-05]
(2) 
Hearings. All matters authorized to be heard by the Board of Appeals pursuant to any provision of this Code shall be heard by not less than three members.
[Amended 5-18-2010 by Bill No. 2010-05]
(3) 
The Chairman shall administer or cause to be administered oaths.
[Amended 5-18-2010 by Bill No. 2010-05]
(4) 
No application for a matter of original jurisdiction, or administrative appeal before the Board shall be heard by the Board of Appeals until such time as a public hearing has been held and the case so heard is advertised at least once a week for two consecutive weeks in a newspaper of general circulation in the county.
(5) 
Each motion shall contain a statement of the grounds and findings forming the basis of such action or decision, and the full text of said motion and record of members' votes shall be incorporated in the minutes of said Board.
(6) 
Tie votes. On a matter of original jurisdiction under § 7-3A, a tie vote shall indicate that the request as submitted by the applicant has received no action by the Board and the application shall be deemed withdrawn and may be resubmitted and readvertised as a new application. A tie vote on appeals shall constitute a failure to achieve the required majority and the previous decision shall stand approved.
[Amended 5-18-2010 by Bill No. 2010-05]
(7) 
Minutes of the Board. The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicting such fact, and shall keep records of its examinations and other official actions, all of which shall be filed in the office of the Secretary of the Board.
(8) 
Decisions. All actions or decision by the Board shall be determined by motion approved by at least a majority of the Board hearing any matter. The Chairman, Vice Chairman or Acting Chairman may vote on any matter to come before it. The Board may request the Secretary to prepare or cause to be prepared written findings of fact for Board approval.
[Amended 5-18-2010 by Bill No. 2010-05]
(9) 
Repetitive applications before the Board. No additional applications under Chapter 225, requesting the same relief in regard to the same property or issue shall be received or heard by the Board for a period of one year following the date of decision.
C. 
Subpoena authority. A subpoena to compel the attendance of witnesses and to require the production of records and other materials in connection with investigations, inquiries or hearings may be authorized by the Board and the Director of the Department of Planning, Zoning and Community Development as follows:
(1) 
Any person who has a direct interest in or would be aggrieved by an adverse ruling of the Board in a matter before the Board may request that a subpoena be issued.
(2) 
All requests for subpoenas shall be submitted, in writing, to the Secretary of the Board, at least 15 days prior to the scheduled public hearing of any case. Once received by the Secretary to the Board, the issuance of a subpoena shall be mandatory.
(3) 
All requests for subpoenas shall clearly state the name and address of the party being subpoenaed, the case in which the subpoena applies, the purpose of the subpoena for either requiring a witness to testify or to deliver documents for the record of the Board and the basis on which the individual requesting the subpoena believes themselves affected as required in Subsection C(1).
(4) 
The party requesting such subpoena shall be responsible for serving the subpoena and shall pay all administrative costs associated thereto. Subpoenas shall be served in the same manner as a subpoena issued by a clerk of court or by certified or registered mail. All subpoenas issued shall give notice to the receiving party that said party may apply for relief from the subpoena to the issuing authority. An application for relief from a subpoena shall be decided by the issuing authority prior to a hearing on the merits of the matter.
(5) 
Upon written request, any person receiving a subpoena may petition the issuing authority to dismiss the subpoena.
(6) 
If a person fails to obey a subpoena, the issuing authority may authorize the person requesting the issuance of the subpoena to certify the default to the Circuit Court for Wicomico County, Maryland, or may request the County Attorney to take appropriate action.
A. 
Original jurisdiction applications. The burden of proof is one of a preponderance of the evidence and is on the applicant to show, by competent, material and substantial evidence that he or she is entitled to the relief requested and that the request meets all prescribed standard and requirements.
B. 
Appeal hearings. The burden of proof shall be on the appellant to show that the action taken by the administrative agency or official was clearly erroneous, and/or arbitrary and capricious, and/or contrary to law.
A. 
Petition for appeal. Any person or persons, jointly or severally aggrieved by any decision of the Board of Appeals, or any taxpayer or an officer, department, board or bureau, upon written authority of the county, may present to the Circuit Court of Wicomico County a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days of the decision of the Board of Appeals.
B. 
Costs of appeal. In the event of an appeal to the Circuit Court, the appellants shall bear the cost of preparing the necessary documents required by the Court. These charges shall include, but not be limited to:
(1) 
The cost of transcribing, preparing and submitting a transcript from the minutes of the Board of Appeals, employee's time involved and required materials.
(2) 
The statement of these expenses shall be itemized and submitted to the attorney representing the appellant for payment or the appellant.
(3) 
No permits shall. be issued by the Building Inspector nor zoning authorization granted by the Zoning Administrator unless the Board has been reimbursed for its costs.