[Amended 6-29-1999 by Bill No. 1999-5; 7-6-2004 by Bill No. 2004-6]
The Wicomico County Board of Appeals is hereby
empowered to grant variances to the provisions of this chapter where,
owing to special features of a site or other circumstances, a literal
enforcement of provisions would result in unwarranted hardship.
[Amended 7-6-2004 by Bill No. 2004-6; 8-2-2011 by
Bill No. 2011-07]
The Board of Appeals shall examine all facts
of the case and render a decision. Variance requests in the Critical
Area District shall not be granted unless the applicant has satisfied
each of the following standards:
A.
That special conditions or circumstances exist that
are unique to the subject property or structure and that a strict
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 management areas (i.e., IDA, LDA or RCA) of the Critical
Area District. Unwarranted hardship means without a variance, an applicant
would be denied reasonable and significant use of the entire parcel
or lot for which the variance is requested.
B.
That strict enforcement of the provisions within the
Critical Area District would deprive the property owner of rights
commonly shared by other owners of property in the same management
area within the Critical Area District.
C.
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 Critical Area District.
D.
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.
E.
That the granting of a variance will not adversely
affect water quality or adversely impact fish, wildlife or plant habitat
within the Critical Area District, and that the granting of the variance
will be consistent with the spirit and intent of the critical area
program and associated chapters.
F.
That greater profitability or lack of knowledge of
the restrictions shall not be considered as sufficient cause for a
variance.
G.
That the proposed variance is consistent with the Wicomico County Comprehensive Plan and Chapter 225, Zoning.
H.
That “after
the fact” variances, permits, and special exceptions are prohibited,
unless there is full compliance with this chapter. This includes,
but is not limited to, paying all fines and costs, preparing a planting
plan which is then approved by the County and performing all mitigation
required for the violation. The County cannot accept an application
for a variance to legalize a violation unless the County has first
issued a notice of violation and assessed a penalty. Satisfaction
of all fines and penalties is a condition precedent to the issuance
of any permit, approval, variance, or special exception on the affected
property.
I.
That an
applicant has the burden of proof and the burden of persuasion to
overcome the standards established under this section.
J.
That based
on competent and substantial evidence, the County shall make written
findings as to whether the applicant has overcome the standards established
under this section.
[1]
Editor's Note: Former § 125-37,
Site-specific Buffer variances, was repealed 6-29-1999 by Bill No.
1999-5.
[Amended 6-29-1999 by Bill No. 1999-5; 7-6-2004 by Bill No. 2004-6]
A variance will not be granted by the Board
of Appeals unless and until:
A.
A completed application form for a variance is submitted
which demonstrates the applicability of the above criteria. In addition,
requests for variance in the Critical Area District shall not be heard
unless the state's Critical Area Commission has received a copy of
the variance application at least two weeks prior to the scheduled
public hearing.
B.
The Board of Appeals shall find that the reasons set
forth in the application justify the granting of the variance and
that the variance is the minimum variance that will make possible
the reasonable use of land, building or structures. In making this
determination for variance requests in the Critical Area District,
the Board of Appeals shall consider the following guidelines:
(1)
That the granting of a variance results in new structures
or impervious surfaces being located as far back from mean high water,
tidal wetlands or tributary streams in the critical area as is feasible.
(2)
That the applicant takes steps to mitigate impacts,
insofar as possible, including:
(a)
Reforestation on the site to offset disturbed
forested or developed woodlands on at least an equal-area basis.
(b)
Afforestation of areas of the site so that at
least 15% of the gross site is forested.
(c)
Implementation of any mitigation measures which
relate to habitat protection areas, as delineated in the Wicomico
County Critical Area Program, recommended by state and/or County agencies
are included as conditions of approval.
(3)
The Board of Appeals shall further find that the granting
of the variance will be in harmony with the general purpose and intent
of this chapter, 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.
(4)
For variances in the Critical Area District, the Board
of Appeals shall find that the granting of the variance will be in
harmony with the general purpose and intent of this chapter and the
Wicomico County Critical Area Program, shall not result in a use not
permitted in the management area (i.e., IDA, LDA, RCA) or an increase
in the number of permitted dwelling units (i.e., density limits) in
which the property subject to the variance is located and will not
be injurious to the neighborhood or otherwise detrimental to the public
welfare.
(5)
In addition, and to the extent possible based on best
available information, all property owners immediately contiguous
to the application shall be notified by certified mail and furnished
a copy of said application.
(6)
In granting the variance, the Board of Appeals may prescribe such conditions and safeguards as it deems appropriate which comply with the intent of this chapter and the Wicomico County Critical Area Program. Violations of such conditions and safeguards, when made part of the terms under which the variance is granted, shall be deemed a violation of this chapter and punishable under Article IX.
C.
This section
does not apply to County projects requiring building permits or activities
that comply with a Buffer exemption plan or Buffer management plan,
which has been approved by the Critical Area Commission.
[Added 8-2-2011 by Bill No. 2011-07]
