A.
Appeal. Any person or persons aggrieved by any decision of the enforcing officers as identified in § 225-11, or by a decision by the Wicomico County Planning and Zoning Commission authorized by the provisions of this chapter, may appeal said decision to the Wicomico County Board of Appeals.
B.
Time for appeal. A written notice of appeal shall
be submitted to the Department of Planning, Zoning and Community Development
within 30 days from the officer's decision.
C.
Costs. Costs of the appeal shall be established by
the County Council and may be changed from time to time as necessary.
[Amended 10-17-2006 by Bill No. 2006-11]
D.
Stay. An appeal stays all proceedings in furtherance
of the action appealed from, unless the officer from whom the appeal
was taken certifies to the Board of Appeals, after notice of appeal
shall have been filed, that by reason of the 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 an
order which may be granted by the Board of Appeals on due cause shown.
A.
Purpose. It is the purpose of this section to establish
the procedures and criteria for evaluating special exceptions authorized
by the terms of this chapter.
(1)
A special exception is a land use activity authorized
only after a public hearing held before the Board of Appeals or Planning
Commission pursuant to the provisions of this chapter.
(2)
All such uses have been legislatively predetermined
to be compatible with inherently permitted uses in a particular zoning
district, provided that each use meets the specific standards of approval
as required and that the proposed location and site are appropriate
for the type of use proposed.
B.
Special exceptions permitted.
(1)
It is the duty of the Board of Appeals or Planning
Commission to evaluate all such special exceptions herein authorized
and to decide in each case, under the standards set forth below, whether
or not each special exception does in fact meet the Council's presumed
compatibility for the location and area in which it is located.
(2)
All those special exceptions specifically listed in each zoning district defined in this chapter shall be heard by the Board of Appeals, except those special exceptions which require a development plan or site plan approval to be reviewed by the Planning Commission shall be heard and may be granted by the Planning Commission in accordance with the provisions and criteria of this Part 13.
C.
Criteria for approval. A special exception may be
granted when the Board of Appeals or Planning Commission finds from
a preponderance of the evidence produced at a public hearing, where
applicable, that:
(1)
The proposed use is consistent with the Comprehensive
Plan or a specific area plan for the physical development of the county
or a portion thereof, as adopted by the County Council.
(2)
The proposed use will not adversely affect the
health, safety and general welfare of the residents or workers in
the area.
(3)
The proposed use is compatible with and will
not be detrimental to the use or development of adjacent properties
or the general neighborhood.
(4)
The proposed use meets all of the standards
set forth for each particular use for which a special exception may
be granted.
(5)
The proposed use has been designed so as to
minimize possible adverse effects on adjacent properties or on the
immediately surrounding area.
(6)
The proposed use will not adversely affect the
transportation network or unduly burden water, sewer, school, park,
stormwater management areas, including streams, or other public facilities.
(7)
The proposed use will not adversely affect the
environmental, archeological or historical assets of particular interest
to the community as may be identified in any adopted plan of the county.
D.
Before granting any final approval for a special exception in Part 4, Article XI, Institutional, Business and Industrial District, the Board or Commission, at its discretion, may require:
(1)
An impact analysis of the proposed activity,
including but not limited to governmental service impacts, environmental
impacts, traffic impacts, financial impacts or any other matter deemed
pertinent to the issue before the Board or Commission. Any such analysis
shall be conducted in a manner as determined by the Board or Commission.
The costs of any such analysis shall be borne by the applicant.
(2)
The posting of bonds or other financial guaranty
to assure compliance with all conditions established by the Board
or Commission.
E.
Failure to comply with such conditions or restrictions
imposed shall be grounds to render the special exception null and
void.
F.
No special exception may be altered, expanded, or
modified without the approval of the approving authority with current
jurisdiction over the use. At such time as an alteration, expansion,
or modification is approved, the Board of Appeals or Planning Commission
may imposed additional conditions or modify existing conditions and
shall evaluate the expansion or modification of the special exception
under the same criteria as the initial approval.
G.
Setback requirements. Wherever a special exception
shall be granted within a district, the special exception shall conform
to the permitted uses within the district in respect to front, side
and rear setback requirements unless otherwise modified by the Board
of Appeals or Planning Commission.
H.
A special exception which shall remain idle and unused
for a continuous period of more than one year, whether or not fixtures
or equipment are removed, shall be considered null and void.
A.
Authorization. The Board of Appeals may authorize, upon application in conformance with § 225-157, Application for matters of original jurisdiction, before the Board, a variation or modification from the quantitative numerical requirements of this chapter if such variation or modification would not be contrary to the public health, safety or welfare.
B.
Criteria. In order to vary or modify the noncritical
area provisions of this chapter, the Board of Appeals must determine
that the application meets all of the criteria set forth below.
(1)
Certain unique physical characteristics exist,
such as unusual size or shape of the property or extraordinary topographical
conditions, such that a literal enforcement of the provisions of this
chapter would result in practical difficulty in enabling the applicant
to develop the property;
(2)
The granting of the variance is not based upon
circumstances which are self-created or self-imposed;
(3)
The need must be substantial and urgent and
not merely convenient;
(4)
Applicant's grounds are not based on financial
difficulty alone;
(5)
The granting of the variance will not be contrary
to the public interest and will not be a detriment to adjacent or
neighboring properties;
(6)
The variance will not exceed the minimum adjustment
necessary to relieve the practical difficulty or unreasonable hardship;
and
(7)
Greater profitability or lack of knowledge of
the restrictions shall not be considered sufficient cause for a variance.
A.
Before any land may be used for a special exception
which is permitted in this chapter or a variance granted to these
regulations, an application must be made that shall be accompanied
by a site diagram and such other information as may be necessary to
provide for the enforcement of this chapter or upon which to base
an inspection prior to passing on the application, as required by
the Planning Director and the Zoning Administrator.
C.
When granting special exceptions or variances, the
authorizing authority shall instruct the Zoning Administrator to issue
the zoning authorization in accordance with any conditions of approval
and an approved site design or site plan, as appropriate.
(1)
In authorizing a variance or special exception,
the Board or Commission may impose such conditions and restrictions
upon the site design, architectural character, location, type of construction,
ingress and egress, landscaping, screening and operation as deemed
necessary to mitigate any potential adverse impacts upon adjacent
properties or the general area and to ensure compliance with the standards,
criteria or other specific requirements set forth in this chapter
as it may deem necessary, consistent with the spirit and intent of
the zoning regulations.
(2)
The decision and supporting findings and any
conditions attached to the decision shall become a part of the written
record of the public hearing.
D.
Whenever a special exception or variance is granted
under the provisions of this chapter, it shall be exercised by the
grantee therein named within 12 months from the date of its issuance,
or it shall become null and void.
E.
The authorizing authority may grant extensions to Subsection D above if the grantee provides just cause for the delay to the satisfaction of the Board or Commission.
F.
Notwithstanding any other provisions of this chapter,
and without regard to the standards for appeals, variances or special
exceptions set forth elsewhere in this Code, the Board of Appeals
and other permitting authorities and officials shall made reasonable
accommodations for the benefit of disabled citizens and religious
practices in the consideration of any building permit, administrative
appeal, special exception or variance.
A.
Administrative official appeals on the record. When
an appeal is taken to the Board of Appeals from the decision of any
administrative officer or board authorized within this chapter or
another chapter of the Wicomico County Code granting authority of
appeal to the Board of Appeals, the Zoning Administrator shall have
the initial burden of presenting to the Board sufficient evidence
and argument to justify the order or decision appealed from. The burden
of presenting evidence and argument to the contrary then shifts to
the appellant, who shall also have the burden of persuasion.
B.
Original jurisdiction applications. The burden of
presenting evidence sufficient to allow the Board of Appeals to reach
the conclusions, as well as the burden of persuasion on those issues,
remains with the applicant seeking the variance, special exception
or any other matter heard de novo by the Board.
A.
Any person or persons, jointly or severally aggrieved
by any decision of Board of Appeals, or any taxpayer or any 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 after filing of the decision
in the office of the Board of Appeals.
B.
Costs of appeal. In the event of an appeal to the
Circuit Court, the appellant shall bear the cost of preparing the
necessary documents as required by the Court.
(1)
These charges shall include, but not be limited
to, 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 or the appellant
for payment.
(3)
No permits shall be issued unless the Board
has been reimbursed for its costs.
C.
An appeal stays all proceedings in furtherance of
the action appealed from, unless the officer from whom the appeal
was taken certifies to the Board of Appeals, after notice of appeal
shall have been filed, that, by reason of the 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 an order which may be granted by the Board of Appeals or by
a court of record on application and notice to the officer from whom
the appeal is taken and on due cause shown.
