[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.
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:
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]
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.
