A.
The Board of Appeals shall hear and decide on the following:
(1)
Appeals from any final order, decision, requirement or interpretation
made by an administrative official in the enforcement of any matter
authorized by Article 66b, Annotated Code of Maryland, as amended,[1] as provided in § 297-417.
[1]
Editor's Note: Said article was repealed by Acts 2012, 426,
effective 10-1-2012. See now the Land Use Article, Division I, Title
2.
(2)
Applications for special exception uses and enlargements, extensions, modifications or revocations of special exceptions, as provided in § 297-415.
(4)
Application for the extension or enlargement of a nonconforming situation, as provided in § 297-418.
(5)
Any other matter the Board is required to act upon by any other
County ordinance adopted pursuant to Article 66b, Annotated Code of
Maryland, as amended.
B.
The Board may adopt rules and regulations governing its procedures
and operations not inconsistent with the provisions of this chapter.
A.
A filing fee will be charged for the Board's processing of any appeal;
special exception; enlargement, extension or modification of a special
exception use; variance; or extension or enlargement of any nonconforming
situation, continuations, reconsiderations or any other decision of
the Board.
A.
Within 60 days of receipt of an application, the Zoning Officer shall
send written notice of the time and date of the hearing to the applicant.
B.
Not less than 14 days prior to the hearing, the applicant or his
agent shall mail a notice by certified mail, return receipt requested,
to each property owner that is within a two-hundred-foot radius of
the property line that is the subject of the hearing, of the time,
date, place and nature of the public hearing. The applicable notification
list shall be provided by the Planning Division to the applicants.
The applicant shall file, with the Zoning Officer, an affidavit of
mailing of such notice as an exhibit in the public hearing prior to
4:30 p.m. of the day of the hearing. Filing the affidavit of mailing
shall constitute substantial compliance with the notice requirement
unless cause to the contrary is shown.
[Amended 11-18-2014 by
Bill No. 2014-09]
C.
At least 14 days prior to a hearing, the applicant shall erect a
sign(s) provided by the Zoning Officer on the subject property. Such
sign(s) will be erected within 10 feet of the boundary line of such
land which abuts every public road, and if the property does not abut
a public road, the sign shall be posted at the nearest public road
which provides access to the subject site. The sign shall be affixed
to a rigid board and be maintained by the applicant until a decision
is issued by the Board. It is a violation of this chapter for anyone
to remove or tamper with such sign during the period it is required
to be posted. The applicant shall file an affidavit, with a picture
of the posted sign, certifying the posting of said sign with the Zoning
Officer prior to 4:30 p.m. of the day of the hearing.
D.
In the case of special exceptions, notice of the time and place of
the public hearing, together with a summary of the proposed regulation,
restriction or boundary, shall be published in at least one newspaper
of general circulation in the jurisdiction once each week for two
successive weeks, with the first such publication of notice appearing
at least 15 days prior to the hearing.
A.
Before making a final decision on any appeal or application, the
Board shall hold a hearing on the matter to be considered.
B.
The hearing shall be open to the public, and all people aggrieved
by the outcome of the appeal or application shall be given an opportunity
to present testimony and evidence and to cross-examine persons who
testify.
C.
The Board may place reasonable and equitable limitations on the presentation of testimony and evidence, arguments and the cross-examination of witnesses consistent with the rules and regulations adopted under § 297-409 so that all relevant issues may be heard and decided without undue delay.
D.
The Board may continue the hearing until a subsequent meeting or
date and time certain and may keep the record of the hearing open
to receive additional evidence or information. The record shall be
closed prior to when the Board issues its written order.
E.
Any interested person shall have the right to submit, in accordance
with the established rules, oral or written testimony at the public
hearing. A record of the case file, including a complete record of
the testimony at the hearing, the votes of all members of the Board,
all properly marked exhibits presented at the hearing and the application,
will be kept by the Zoning Officer.
A.
In all cases a written decision shall be issued by the Board and
shall be provided to the applicant, all parties of interest who appeared
or testified during the hearing and all other persons who make a request
for a copy.
B.
The decision of the Board approving, denying or dismissing any application
shall be issued within 60 days from the close of the last public hearing,
unless such time is extended by an official resolution adopted by
the Board.
A.
Within 15 days after the Board issues its written decision, any party
in interest may file a motion for reconsideration of the decision
or a provision or condition contained in a decision with the Zoning
Officer.
B.
The party filing such a motion shall transmit copies to all parties
to the proceedings and shall file an affidavit of mailing with the
Zoning Officer.
[Amended 12-7-1993 by Ord. No. 93-100; 11-21-1994 by Ord. No.
94-100]
C.
The matter will be placed on the Board's agenda within 30 days after
the Zoning Officer has transmitted the motion to the Board.
D.
The Board, on an affirmative vote of three members, may decide to
reconsider any issue(s) raised in the motion for reconsideration.
E.
If the Board votes to reconsider, the hearing shall be held within
30 days after such vote.
A.
The implementation and enforcement of this chapter is based upon
the division of the County into zones within which the use of land
and buildings and the bulk and location of buildings and structures
in relation to the land are substantially uniform. It is recognized,
however, that there are certain uses which, because of their unique
characteristics, cannot be properly classified in a particular zone
without consideration in each case of the impact of those uses upon
neighboring land and of the public need for the particular use, at
the particular location proposed.
B.
This section establishes procedures and minimum standards for the
consideration and authorization of special exception uses.
C.
The granting of a special exception does not exempt the applicant
from obtaining a zoning permit or complying with all other requirements
of this chapter or any applicable County, state or federal law.
D.
Any property owner or other person with an enforceable legal interest
in a property may file an application to use such land for one or
more of the special exceptions provided in the zone in which the land
is located.
E.
An application for a special exception shall be filed with the Zoning
Officer on a form prescribed by the Zoning Officer. The application
shall be accompanied by such plans and/or data as necessary for the
Board to make a reasoned decision and shall include a statement, in
writing, by the applicant and adequate evidence showing that the proposed
use will conform to the applicable standards. The application shall
be forwarded from the Zoning Officer to the Board of Appeals for review
and decision. The Board of Appeals shall conduct a public hearing
and issue a written decision on the application which contains findings
of fact and conclusions of law to support the Board's decision.
F.
Zoning Officer's reports. The Zoning Officer shall provide a written
report to the Board of Appeals at least 14 days prior to the scheduled
public hearing. The report shall contain preliminary findings as to
the extent that the application conforms to the requirements of this
chapter. The failure to provide a report or to meet the time limitations
herein shall not affect the authority of the Board to hold the public
hearing at its scheduled date and time.
G.
Public hearing. The Board shall require notice pursuant to the requirements of § 297-411 and shall conduct the public hearing and render a decision on the special exception which adheres to the provisions of this article.
H.
The Board of Appeals shall grant a special exception when, from a
preponderance of the evidence of record, the proposed use:
(1)
Will not be detrimental to or endanger the public health, safety
and general welfare.
(2)
Is a permissible special exception in the zone.
(3)
Will not be detrimental to the use, peaceful enjoyment, economic
value or development of surrounding properties or the general neighborhood.
(5)
Will cause no objectionable impact from traffic, noise, type
of physical activity, fumes, odors, dust or glare.
(6)
Will provide adequate utilities, water, sewer or septic system,
access roads, storm drainage and/or other necessary public facilities
and improvements. If a use requires an adequate public facilities
review by the Planning Commission, such review shall be made a condition
of the granting of the special exception by the Board.
(7)
Will provide adequate ingress and egress and be so designed
as to minimize traffic congestion in the public streets.
(8)
Is in accordance with the objectives of the Charles County Comprehensive
Plan.
(9)
Conforms to the applicable regulations of the zone in which
it is located and to the special requirements established for the
specific use.
I.
Conditions and guaranties. In addition to the specific standards contained in Article XIII, guidelines and criteria described in this chapter and other relevant considerations, the Board may impose performance guaranties and conditions, such as but not limited to the following:
(1)
The number of persons living, working or visiting on the site.
(2)
Traffic conditions, including facilities for pedestrians; parking
facilities; the access of vehicles to roads; peak periods of traffic;
and proposed roads, but only if construction of such roads will commence
within the reasonably foreseeable future.
(3)
The orderly growth of the neighborhood and community and the
fiscal impact of the requested special exception on the County.
(4)
The effect of odors, dust, gas, smoke, fumes, vibration, glare
and noise upon the use of surrounding properties.
(5)
The need for additional on-site security, fire protection, waste
disposal or such other facilities not normally provided by the County.
(6)
Limitation of the hours of operation related to the impact of
the requested special exception on surrounding uses, such as schools,
houses of worship, theaters, hospitals and similar places of public
use.
(7)
The purposes set forth in this chapter, the Comprehensive Plan
and related studies for land use, roads, parks, schools, sewers, water,
population, recreation and the like.
(8)
The environmental impact, the effect on sensitive natural features
and opportunities for recreation and open space.
(9)
The requirements of the Critical Area Zone.
(10)
The preservation of cultural and historical landmarks.
J.
Effect of denial of a special exception.
(1)
No application for a special exception use which has been denied
wholly or in part by the Board shall be accepted by the Zoning Officer
for a period of one year from the date of said order of denial.
(2)
Notwithstanding Subsection J(1), the Board of Appeals may, at any time, consider a new application affecting the same property as an application previously denied. A new application is one that differs in some substantial way from the one previously considered, as determined by the Zoning Officer.
K.
Enlargements, extensions or modifications. The Board may permit the
enlargement, extension or modification of an existing special exception
use pursuant to the procedural requirements of this article related
to notice, conduct of the public hearing and the Board's decision.
The initiation of such an action and standards for the Board's decision
shall conform to the requirements of this section for the granting
of an application for a special exception.
L.
Renewals.
(1)
The Board has the authority to grant a special exception for
a specific period of time. A special exception may be renewed from
time to time by the Board at the request of an applicant or a successor
in interest if the special exception runs with the land, provided
that all requirements of the original special exception are satisfied
and:
(a)
All notice requirements of this section are met;
(b)
The Board holds a public hearing as required by this section;
and
(c)
The Board issues a written decision containing findings of fact
and conclusions of law to support the decision on whether the special
exception is renewed pursuant to the requirements of this section
for the granting of an application for a special exception.
(2)
The Board may grant a renewal for a longer or shorter period
of time than was established in the original decision granting the
special exception.
M.
Complaints. Complaints received concerning the operation of any special
exception shall be directed to the Zoning Officer, who shall take
appropriate action as provided by law. All complaints must be in writing.
Anonymous complaints shall not be accepted.
N.
Revocation of special exception. See Article I for enforcement provisions. In addition to any provisions contained elsewhere in this chapter, special exceptions may be revoked as follows:
(1)
Failure to comply with conditions. Whenever the Board shall find, in case of any special exception heretofore or hereafter granted pursuant to the provisions of this article, that any of the terms, conditions or restrictions upon which such special 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 revoke the special exception. The Board is authorized to request and obtain investigations and reports as to compliance from such County or state agencies or administrative officers as may be appropriate. This action may be in addition to any action taken by the Zoning Officer under the provisions of Article XXVI.
O.
Procedures for revocation.
(1)
The Zoning Officer shall transmit a written report to the Board
which indicates which terms or conditions of the special exception
are not being complied with by the special exception holder.
(2)
The Board, by an affirmative vote of at least three members,
shall issue an order to the special exception holder, along with the
report of the Zoning Officer, to show cause why such special exception
should not be revoked.
(3)
The show-cause order shall specify the date, time and place
of the hearing. The date of the hearing will be a minimum of 30 days
after the date of the order to allow the special exception holder
reasonable time to prepare for the hearing.
(4)
Copies of the order shall also be sent by certified mail, return
receipt requested, to the owner of the subject property, if not the
special exception holder, the Zoning Officer, persons who have submitted
complaints concerning the special exception and, at the discretion
of the Board, to those persons who received notice of the original
application for the special exception, as well as to other interested
persons, organizations or governmental agencies.
(5)
The show-cause hearing shall be limited to the consideration
of the issues specified in the show-cause order.
(6)
Within 60 days after the close of record of the hearing, the
Board shall issue a written determination containing findings of fact
and conclusions of law regarding the issues presented. The Board,
by an affirmative vote of at least three members, may reaffirm or
revoke the special exception or amend, add to, delete or modify the
existing terms or conditions of the special exception. If necessary,
the Board may adopt a resolution extending the time in which to issue
its decision.
(7)
A copy of the decision shall be transmitted to the special exception
holder and all parties to the hearing and persons who received copies
of the show-cause order.
P.
Abandonment and failure to initiate. Whenever a special exception
is not in use or does not operate for a period of three years, or
whenever an approved special exception is not initiated and commenced
within three years after the date of approval, the approved special
exception shall be automatically null and void without any further
action by the Board being required.
Q.
Burden of proof. The applicant for a special exception shall have
the burden of proof on all questions of fact which are required to
be determined by the Board or are required to meet any of the provisions
of this section.
A.
An application for a variance shall be submitted to the Board of
Appeals by filing a copy of the application with the Zoning Officer.
Applications shall be handled in the same manner as applications for
special exceptions in conformity with the provisions of this article.
[Amended 6-19-2012 by Bill No. 2011-12]
B.
The Board is authorized to grant variances from the strict application
of these regulations when, by reason of exceptional narrowness, shallowness
or shape of specific parcels of property or by reason of exceptional
topographical conditions or other extraordinary situations or conditions
of specific parcels of property, the strict application of the regulations
of this chapter would result in peculiar and unusual practical difficulties
to, or exceptional or undue hardship upon, the owner of said property.
However, the Board of Appeals shall not grant variances that will
substantially impair the intent, purpose and integrity of this chapter.
This provision shall not be construed to permit the Board, under the
guise of a variance, to change the permitted use of land.
C.
In addition to those general findings required in Subsection B above, variance requests shall not be granted unless the following criteria are met:
(1)
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 classification.
(2)
That strict enforcement of the provisions of this chapter would
deprive the property owner of rights commonly shared by other owners
of property in the area.
(3)
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 same zone/land use classification.
(4)
That the variance request is not based upon conditions or circumstances
which are self-created or self-imposed.
(5)
That greater profitability or lack of knowledge of the restrictions
shall not be considered as sufficient justification for a variance.
(6)
That the proposed variance is consistent with the Charles County
Comprehensive Plan.
D.
In granting variances, the Board may impose such reasonable conditions
as will ensure that the use of the property to which the variance
applies will be compatible with the surrounding properties.
E.
A variance may be issued for an indefinite duration or for a specified
duration.
F.
The nature of the variance and any conditions attached to it shall
be specified in the Board's decision. All conditions are enforceable
in the same manner as any other applicable requirement of this chapter.
The granting of the variance does not constitute issuance of a zoning
permit.
G.
The granting of a variance does not exempt the applicant from complying
with all other requirements of this chapter or any applicable County,
state or federal law.
H.
Reapplication. Whenever the Board disapproves an application for
a variance on any basis other than the failure of the applicant to
submit a complete application, no reapplication will be accepted by
the Zoning Officer or considered by the Board for a period of one
year from the date of the Board's disapproval.
I.
The Board may, at any time, consider a new application affecting
the same property as an application previously denied if the new application
is substantially similar to the application previously denied. A new
application is one that differs in some substantial way from the one
previously considered as determined by the Zoning Officer.
K.
In addition to the above requirements, the following additional provisions
shall apply in the Critical Area Zone:
[Amended 10-25-1994 by Ord. No. 94-93; 6-20-2005 by Bill No.
2005-12; 6-19-2012 by Bill No. 2011-12]
(1)
Requests for variance in the Critical Area Zones shall not be
heard unless the Critical Area Commission has received a copy of the
variance request at least two weeks prior to the scheduled public
hearing.
(2)
A variance will not be granted by the Board unless findings
are made which demonstrate that:
(a)
Special conditions or circumstances exist that are peculiar
to the land or structure which constitute or result in an unwarranted
hardship as defined by this chapter;
(b)
Literal interpretation of the Critical Area Program and related
ordinances will deprive the applicant of rights commonly enjoyed by
other properties in similar areas within the critical area;
(c)
The granting of a variance will not confer upon an applicant
any special privilege that would be denied other lands or structures;
(d)
The variance request is not based upon conditions or circumstances
which are the result of actions by the applicant, nor does the request
arise from any condition conforming, on any neighboring property;
and
(e)
The granting of a variance will not adversely affect water quality
or adversely impact fish, wildlife or plant habitat within the critical
area zones, and the granting of the variance will be consistent with
the spirit and intent of the County's Critical Area Program and associated
ordinances as well as state laws and regulations adopted under Title
8, Subtitle 18, of the Natural Resources Article of the Annotated
Code of Maryland and COMAR 27.01.11.
(f)
The Board 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.
(g)
The Board 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,
buildings or structures. In making this determination for variance
requests in a Critical Area Zone, the Board shall consider the following
as tantamount to a minimum variance:
[1]
That the granting of a variance to the yard and/or Buffer requirements
results in new structures or lot coverage being located as far back
from mean high water, tidal wetlands or tributary streams in the Critical
Area as is feasible; and
[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; and
[c]
Implementation of any mitigation measures which
relate to habitat protection areas as delineated in the Charles County
Critical Area Program and as required by state and/or County agencies.
(3)
Presumption of nonconformance.
(a)
In considering an application for variance, the Board of Appeals
shall presume that the specific development activity in the critical
area that is subject to the application and for which a variance is
required does not conform with the general purpose and intent of Natural
Resources Article, Title 8, Subtitle 18, COMAR Title 27, and the requirements
of the County's Critical Area Program.
(b)
If the variance request is based on conditions or circumstances
that are the result of actions by the applicant, including the commencement
of development activity before an application for a variance has been
filed, the County shall consider that fact.
(c)
An applicant has both the burden of production and the burden of persuasion to overcome the presumption of nonconformance established in Subsection K above.
[1]
Based on competent and substantial evidence, the Board shall
make written findings as to whether the applicant has overcome the
presumption of nonconformance established above.
[2]
With due regard for the person's experience, technical competence,
and specialized knowledge, the written findings may be based on evidence
introduced and testimony presented by:
(4)
In granting the variance, the Board may prescribe such conditions and safeguards as it deems appropriate which comply with the intent of this chapter and the Charles 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 enforceable under Article I.
(5)
Planning staff shall provide a copy of the written decision
to the Critical Area Commission staff within 10 working days after
the written decision regarding a variance application is issued.
(6)
No permits shall be issued for a development activity subject
to a variance until the applicable thirty-day appeal period has elapsed.
A.
An appeal from any final order or decision of an administrative official
may be taken to the Board by an aggrieved applicant. An appeal is
taken by filing a written notice of appeal with the Zoning Officer
and the Board specifying the grounds therefor. The date and time of
filing shall be entered on the notice by the Zoning Officer.
B.
An appeal must be filed within 30 days after the date of the decision
or order appealed from.
C.
Whenever an appeal is filed, the Zoning Officer shall transmit to
the Board the entire record relating to the action appealed from.
All Board hearings or appeals are de novo proceedings.
D.
An appeal stays all construction or activities that are the subject
of a duly issued stop-work order. An appeal stays all other actions
by the Zoning Officer seeking enforcement or compliance with the order
or decision appealed from, unless the Zoning Officer certifies to
the Board that a stay would cause imminent peril to life or property.
In that case, proceedings shall not be stayed except by order of the
Board or a court, issued on application of the party seeking the stay,
for due cause shown.
E.
The Board may reverse or affirm, in whole or in part, or may modify
the order, requirement, decision or determination appealed from and
may make any order, requirement, decision or determination that, in
its opinion, ought to be made in the case before it. To this end,
the Board shall have all the powers of the administrative official
from whom the appeal was taken.
F.
When an appeal is taken to the Board in accordance with this section,
the Zoning Officer 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 have the burden
of persuasion on all questions of fact which are to be determined
by the Board.
[Added 10-23-1998 by Ord. No. 98-85]
A.
An appeal from a final order or decision of the Board of Appeals
for a special exception for surface mining, an asphalt plant, concrete
plant or sand and gravel washing, crushing or screening may be taken
to the County Commissioners by an aggrieved party as described in
Article 66b, § 4.08(a), of the Annotated Code of Maryland.[1] An appeal is taken by filing a written notice of appeal
with the County Commissioners specifying the grounds therefor. The
date and time of filing shall be entered on the notice by the County
Clerk.
[1]
Editor's Note: Said article was repealed by Acts 2012, 426,
effective 10-1-2012. See now the Land Use Article, § 4-401
et seq.
B.
An appeal must be filed within 30 days after the date of the decision
or order appealed from. The term shall be calculated from the date
the order is executed by signature of all participating members and
the Clerk to the Board of Appeals.
C.
Whenever an appeal is filed, the Clerk to the Board shall transmit
to the County Commissioners the entire record relating to the action
appealed from. All Commissioner hearings on appeals are "on the record"
proceedings; however, relevant evidence and testimony may be allowed
in cases where, in the judgment of the Commissioners, it represents
information that could not have been available to the Board at the
time of the Board's public hearing and the testimony is necessary
for the proper disposition of the matter.
D.
An appeal stays all proceedings in furtherance of the action appealed
from, unless the Zoning Officer certifies to the Commissioners that
a stay would cause imminent peril to life or property. In that case,
proceedings shall not be stayed except by order of the Commissioners
or a court, issued on application of the party seeking the stay, for
due cause shown.
E.
The Commissioners may reverse or affirm, in whole or in part, may
modify or remand, the order, requirement, decision or determination
appealed from and may make any order, requirement, decision or determination
that, in its opinion, ought to be made in the case before it. To this
end, the Commissioners shall have all the powers of the Board of Appeals.
F.
The County Commissioners will notify all parties to the proceeding
before the Board of Appeals that an appeal has been filed by mailing
notice that an appeal has been filed within three days of receiving
the notice of appeal. Any party before the Board may participate as
a party in an appeal by filing a written notice of intent to participate
in the appeal with the County Commissioners within 15 days from the
date of the notice that an appeal has been filed. Other aggrieved
parties may file motions as intervenors in the case and present argument.
The burden of presenting evidence is borne by the appellant, who shall
have the burden of persuasion on all questions which are to be determined
by the Commissioners.
G.
The Commissioners shall adopt rules and procedures for considering
an appeal of a special exception under this section, including the
time for filing legal memoranda, presenting oral argument and issuing
a written decision and order deciding the appeal.
