A.
Variances; Generally.
1.
The Board of Appeals shall have the authority to grant variances
from the strict application of the lot area, lot width, setback, and
height requirements of this Ordinance. The Board may also grant variances
from other requirements as stipulated in this Ordinance.
2.
A variance may only be granted if peculiar and unusual practical
difficulties or unwarranted hardships[2] exist on a parcel, and such difficulties and hardships
are created by exceptional narrowness, shallowness, or shape of the
parcel, by reason of exceptional topographical conditions, or by other
extraordinary situations or conditions affecting the property.
[2]
Unwarranted hardship means that without a variance, an applicant
would be denied reasonable and significant use of the entire parcel
or lot for which the variance is requested.
3.
A variance shall be granted only if the applicant demonstrates, and
the Board finds that:
a.
the variance will not result in injury to the public interest; and
b.
granting the variance will not adversely affect the implementation
of the Comprehensive Plan; and
c.
the variance is the minimum adjustment necessary to afford relief
from the regulations; and
d.
the variance request is not based upon conditions or circumstances
which are the result of actions by the applicant.
B.
Variances; Critical Area.
1.
The Board of Appeals shall have the authority to grant variances
from the Critical Area requirements of Section 8-1 of this Ordinance.
2.
In considering an application for a 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.
3.
An applicant has the burden of proof and the burden of persuasion
to overcome the presumption of nonconformance established in paragraph
'2' of this Section.
4.
With due regard for the person's
technical competence, and specialized knowledge, the written findings
may be based on evidence introduced and testimony presented by:
[Amended 5-4-2010]
5.
An application for a variance shall be made in writing to the Board
of Appeals with a copy provided to the Maryland Critical Area Commission.
6.
A variance may be granted only if the applicant demonstrates, and
the Board makes written findings that the applicant has met each of
the following variance standards:
a.
the variance will not result in injury to the public interest; and
b.
granting the variance will not adversely affect the implementation
of the Comprehensive Plan; and
c.
the variance is the minimum adjustment necessary to afford relief
from the regulations; and
d.
special conditions or circumstances exist that are peculiar to the
land or structure within Calvert County and that a literal enforcement
of provisions within the County's Critical Area Program would result
in unwarranted hardship; and
e.
a literal interpretation of the Critical Area Legislation and the
Calvert County Critical Area Program and related ordinances will deprive
the applicant of rights commonly enjoyed by other properties in similar
areas within the Critical Area of the County; and
f.
the granting of a variance will not confer upon an applicant any
special privilege that would be denied by the Calvert County Critical
Area Program to other lands or structures within the County's Critical
Area; and
g.
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 relating to land or building use, either
permitted or non-conforming, on any neighboring property. 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
Board of Appeals may consider that fact; and
h.
the granting of a variance will not adversely affect water quality
or adversely impact fish, wildlife, or plant habitat within the County's
Critical Area, and that the granting of the variance will be in harmony
with the general spirit and intent of the Critical Area law.
7.
Within ten working days after a written decision regarding a variance
application is issued, a copy of the decision will be sent to the
Critical Area Commission. Within 30 days after the date the Critical
Area Commission receives the order or decision of the Board, the Commission
may file a petition for judicial review of that decision. The County
may not issue a permit for the activity that was the subject of the
order or decision until the Commission's 30-day appeal period has
elapsed.
[Amended 5-4-2010]
C.
Variances; Forest Conservation.
1.
The Board of Appeals shall have the authority to grant variances
from the Forest Conservation requirements of Section 8-3 of this Ordinance.
2.
The Department of Planning and Zoning shall send notice of a request
for a variance to the Maryland Department of Natural Resources within
15 days of receipt of a request for a variance.
3.
A variance may be granted only if the criteria set forth in paragraph
'A.2' of this Section are met, the Board of Appeals makes the findings
required by paragraph 'A.3' of this Section, and the applicant demonstrates
and the Board further finds:
a.
That special conditions or circumstances exist that are peculiar
to the land or structure within Calvert County and that a literal
enforcement of provisions within the County's Forest Conservation
Program would result in unwarranted hardship;
b.
That a literal interpretation of the Calvert County Forest Conservation
Program will deprive the applicant of rights commonly enjoyed by other
properties in similar areas;
c.
That the granting of a variance will not confer upon an applicant
any special privilege that would be denied to other applicants;
d.
That the variance request does not arise from any condition relating
to land or building use, either permitted or non-conforming, on any
neighboring property; and
e.
That the granting of a variance will not adversely affect water quality.
D.
Variances; Floodplain.
[Amended 12-14-2011]
1.
a.
The Board of Appeals shall have the power to consider and authorize or deny variances from the strict application of the requirements of Section 8-2.03. Administrative variances are not allowed for variances to floodplain criteria.
b.
Upon consideration of the purposes of these regulations, the individual
circumstances, and the considerations and limitations of this section,
the Board of Appeals may attach such conditions to variances as it
deems necessary to further the purposes of these regulations.
c.
The Board of Appeals shall notify any applicant to whom a variance
is granted to construct or substantially improve a building or structure
with its lowest floor below the elevation required by these regulations
that the variance is to the floodplain management requirements of
these regulations only, and that the cost of Federal flood insurance
will be commensurate with the increased risk, with rates up to $25
per $100 of insurance coverage.
d.
A record of all variance actions, including justification for issuance
shall be maintained pursuant to Section 8-2.03.H.2.k of these regulations.
2.
Application for a Variance to the Floodplain Regulations (Section 8-2.03)
a.
The owner of the property, or the owner's authorized agent, for which
a variance is sought shall submit an application for a Building Permit
to the Office of Inspections and Permits. The Department of Community
Planning and Building will review the permit and write a referral
to the Board of Appeals for all required variances. The owner of the
property, or the owner's authorized agent, for which a variance is
sought shall submit an application for a variance to the Board of
Appeals in accordance with the referral.
[Amended 11-10-2014 by Ord. No. 43-14]
b.
At a minimum, the application to the Board of Appeals shall contain
the following information: name, address, and telephone number of
the applicant and property owner; legal description of the property;
parcel map; description of the existing use; description of the proposed
use; site map showing the location of flood hazard areas, designated
floodway boundaries, flood zones, and base flood elevations; description
of the variance sought; and reason for the variance request. Variance
applications shall specifically address each of the considerations
in Section 3, below.
[Amended 11-10-2014 by Ord. No. 43-14]
c.
If the application is for a variance to allow the lowest floor (A
Zones) or bottom of the lowest horizontal structural member (V Zones
and Coastal A Zones) of a building or structure below the applicable
minimum elevation required by these regulations, the application shall
include a statement signed by the owner that, if granted, the conditions
of the variance shall be recorded in the County land records.
d.
If the application is for a variance for a historic feature pursuant
to Section 8-2.03.I.6 of these regulations, the application shall
contain documentation that the proposed work does not preclude the
structure's continued eligibility and designation as a historic feature.
The documentation shall be obtained from a source that is authorized
to make such determinations (see definition of "Historic Feature").
3.
Considerations for Variances
The Board of Appeals Administrator shall request comments on
variance applications from MDE (NFIP State Coordinator) and County
Floodplain Administrator and shall provide such comments to the Board
of Appeals. In considering variance applications, the Board of Appeals
shall consider and make findings of fact on all evaluations, all relevant
factors, requirements specified in other sections of the Zoning Ordinance
including Section 11-1.01.A and the following factors:
a.
The danger that materials may be swept onto other lands to the injury
of others.
b.
The danger to life and property due to flooding or erosion damage.
c.
The susceptibility of the proposed development and its contents (if
applicable) to flood damage and the effect of such damage on the individual
owner.
d.
The availability of alternative locations for the proposed use which
are not subject to, or are subject to less, flooding of erosion damage.
e.
The necessity to the facility of a waterfront location, where applicable,
or if the facility is a functionally dependent use.
f.
The compatibility of the proposed use with existing and anticipated
development.
g.
The relationship of the proposed use to the Comprehensive Plan and
Hazard Mitigation Plan for that area.
[Amended 11-10-2014 by Ord. No. 43-14]
h.
The safety of access to the property in times of flood for passenger
vehicles and emergency vehicles.
i.
The expected heights, velocity, duration, rate of rise, and sediment
transport of the floodwaters and the effects of wave action, if applicable,
expected at the site.
j.
The costs of providing government services during and after flood
conditions, including maintenance and repair of public utilities and
facilities such as sewer, gas, electrical, and water systems, and
streets and bridges.
k.
The comments provided by MDE (NFIP State Coordinator).
4.
Limitations for Granting Variances
The Board of Appeals shall make an affirmative decision on a
variance request only upon:
a.
A showing of good and sufficient cause. Good and sufficient cause
deals solely with the physical characteristics of the property and
cannot be based on the character of the improvement, the personal
characteristics of the owner/inhabitants, or local provision that
regulate standards other than health and public safety.
[Amended 11-10-2014 by Ord. No. 43-14]
b.
A determination that failure to grant the variance would result in
exceptional hardship due to the physical characteristics of the property.
Increased cost or inconvenience of meeting the requirements of these
regulations does not constitute an exceptional hardship to the applicant.
c.
A determination that the granting of a variance for development within
any designated floodway, or flood hazard area with base flood elevations
but no designated floodway, will not result in increased flood heights
beyond that which is allowed in these regulations.
d.
A determination that the granting of a variance will not result in
additional threats to public safety; extraordinary public expense,
nuisances, fraud or victimization of the public, or conflict with
existing local laws.
e.
A determination that the building, structure or other development
is protected by methods to minimize flood damages.
f.
A determination that the variance is the minimum necessary to afford
relief, considering the flood hazard.
g.
The approval of the variance is not contrary to the public interest.
E.
Change to Land Use Not Permitted.
The provisions of this Section shall not be construed to permit
the Board, under the guise of a variance, to change the permissible
use of land.
F.
Imposition of Conditions.
1.
In granting a variance, the Board of Appeals may impose conditions
or restrictions as it deems necessary or advisable for the protection
of surrounding and neighboring properties.
2.
When appropriate, the Board may require a written agreement to be
recorded among the land records maintained by the Clerk of the Circuit
Court stipulating these conditions or restrictions.
3.
Any violation of conditions imposed by the Board of Appeals shall
be considered a violation of this Ordinance and subject to the enforcement
provisions of Section 1-7.
G.
If any application for a variance is denied by a final order of the
Board, a second application involving substantially the same subject
matter shall not be filed within one year from the date of the final
order. If any such denial by the Board is appealed to a higher Court
and the Board's denial is upheld, a second application involving substantially
the same subject matter shall not be filed within one year from the
date of the final order of the Court.
[1]
Note: This Section applies to variances granted by the Board
of Appeals. For Administrative Variances granted by the Administrative
Variance Officer, see Section 11-3. [Amended 6-10-2008]
A.
The Board of Appeals shall have the authority to hear and decide
petitions for special exceptions. Uses that require special exception
approval are listed in the Land Use Charts (Article 3). A special
exception is defined as, "A grant of a specific use that would not
be appropriate generally or without restriction. Approval of a special
exception is based upon a finding that certain conditions as detailed
in the Zoning Ordinance are met, that the use conforms to the Comprehensive
Plan and is compatible with the existing neighborhood."
B.
A special exception may be granted provided the applicant demonstrates
and the Board of Appeals finds that:
1.
the proposed special exception does not adversely affect the implementation
of the Comprehensive Plan for the physical development of the County,
and
2.
the proposed special exception will not be detrimental to the permissible
use and enjoyment of adjacent properties, or to the health, safety
or general welfare of the County, and
3.
the proposed special exception will not create congestion on roads
or streets, create fire hazards, tend to overcrowd land or unduly
concentrate population, interfere with adequate provisions for schools,
parks, water, sewerage, transportation or other public services, or
adversely interfere with the surrounding environment, and
4.
the applicant can meet the conditions required by the Board and/or
those specified in the Ordinance. The Board may waive the conditions
spelled out in the Ordinance if such a waiver is specifically permitted
by the Ordinance.
5.
Where the special exception is a use based upon the Historic District
status of the property, the proposed use will not be detrimental to
the historic integrity of the property.
C.
Imposition of Conditions.
1.
In granting a special exception, the Board of Appeals shall impose
conditions or restrictions as it deems necessary or advisable for
the protection of surrounding and neighboring properties.
2.
When appropriate, the Board may require that a written agreement
be recorded among the land records maintained by the Clerk of the
Circuit Court stipulating these conditions or restrictions.
3.
Any violation of conditions imposed by the Board of Appeals shall
be considered a violation of this Ordinance and subject to the enforcement
provisions of Section 1-7. In addition, the Board of Appeals may rescind
its approval of the special exception under the provisions of paragraph
'F' of this Section.
D.
The grant of a special exception shall lapse if:
1.
the proposed use or the proposed construction has not commenced within
a period of two years after the effective date of the special exception,
or
2.
where the grant of the special exception has been appealed, the proposed
use or the proposed construction has not commenced within two years
of the date of a final order of the last appellate court to hear the
matter including the granting of a special exception upon the remand
by an appellate court.
E.
If the Board of Appeals finds that conditions unforeseeable at the
time of the granting of the special exception have occurred, it may
grant an extension to the two-year lapse provisions contained in paragraph
'D' of this Section, provided that application for an extension is
made at least 30 days prior to the expiration date of the special
exception.
F.
The Board of Appeals shall have the authority to rescind approval
of a special exception if the conditions of approval are not met.
The Department of Planning and Zoning may initiate action to have
the special exception rescinded following the procedures listed below,
in addition to other enforcement procedures authorized by Section
1-7 of this Zoning Ordinance.
1.
If a violation is not corrected within the time specified by a violation
notice issued by the Department of Planning and Zoning, the Department
may forward a copy of the violation notice to the Board of Appeals
so that a public hearing can be scheduled to consider rescinding the
special exception.
2.
The Board of Appeals shall schedule and advertise a public hearing
and notify parties of the hearing in accordance with its Rules of
Procedure.
3.
The public hearing shall be limited to consideration of issues relating
to the alleged violation(s).
4.
After holding a public hearing, the Board of Appeals shall issue
a written Order revoking or reaffirming the special exception. If
the special exception is reaffirmed, the Board may amend, add to,
or delete any of the conditions of the original approval. The Board
may also reaffirm the special exception subject to a schedule for
correction of specified violations, with provisions for automatic
revocation if the property is not brought into compliance within the
time period specified by the schedule.
G.
If any application for a special exception is denied by a final order
of the Board, a second application involving substantially the same
subject matter shall not be filed within one year from the date of
the final order. If any such denial by the Board is appealed to a
higher Court and the Board's denial is upheld, a second application
involving substantially the same subject matter shall not be filed
within one year from the date of the final order of the Court.
[Amended 9-21-2010]
The Board of Appeals shall have the authority to hear and decide
other special requests as specified in this Ordinance.
A.
Unless otherwise provided in this Ordinance, the Board of Appeals
shall have the authority to hear and decide appeals where it is alleged
that there is an error:
[Amended 8-28-2007]
1.
in any denial of an application for a building permit, or
2.
in any other order, requirement, decision or determination made by
the Zoning Officer or the Zoning Officer's designee or any other administrative
official in the administration and enforcement of this Ordinance.
This provision does not include decisions made by the Planning Commission.
See Section 11-2 for appeals of Planning Commission decisions.
B.
An appeal noted under paragraph 'A' of this Section shall be filed
with the Board of Appeals within 30 days after issuance of the decision
on which the appeal is based.
C.
An appeal to the Board of Appeals may be filed by: any person or
any officer, department, board, or bureau of the County aggrieved
by any order, requirement, decision or determination made by the Zoning
Officer or the Zoning Officer's designee or an administrative official
in the administration or enforcement of this Ordinance.
D.
In exercising its powers, the Board of Appeals shall have all the
powers of the Zoning Officer or administrative official from whom
the appeal is taken and may:
A.
The Board of Appeals may include provisions that allow for the accommodation
of persons with disabilities.
B.
Accommodations for the needs of persons with disabilities may be
permitted if the applicant demonstrates and the Board of Appeals finds
that:
1.
the applicant or owner of the property has a physical disability;
2.
that literal enforcement of the provisions of this ordinance would
result in discrimination by virtue of such disability;
3.
special accommodations would reduce or eliminate the discriminating
effect of the provisions of this Ordinance; and
4.
the accommodation requested will not substantially impair the purpose,
intent, or effect, of the provisions of this Ordinance as applied
to the property; and
5.
environmental impacts associated with the accommodation are the minimum
necessary to address the needs resulting from the physical disability
of the applicant or the owner of the property.
C.
The Board of Appeals shall determine the nature and scope of any
accommodation under this Section and may award different or other
relief than requested after giving due regard to the purpose, intent,
or effect of the applicable provisions of this Ordinance. The Board
may also consider the size, location, and type of accommodation proposed
and whether alternatives exist which will accommodate the need with
less adverse effect.
D.
The Board of Appeals may require, as a condition of approval, that
upon termination of the need for accommodation, the property be restored
to comply with all applicable provisions of this Ordinance.
The Board of Appeals shall establish rules of procedure which
shall, at a minimum, set a reasonable time for the hearing of an appeal,
provide for public notice and set a reasonable time for rendering
a decision after the hearing. At the hearing, any party may appear
in person or be represented by an agent or attorney.
Board of Appeals decisions may be appealed to the Circuit Court
of Calvert County by: (1) any person aggrieved by any decision of
the Board of Appeals or (2) any taxpayer, or (3) any officer, department,
board or bureau of Calvert County. Such appeal shall be taken according
to the Maryland Rules as set forth in Title 7, Chapter 200, as amended
from time to time, within 30 days of the Board of Appeals Order. [Amended 8-8-2006]
