The Board of Zoning Appeals shall have the following powers and duties, in addition to those set forth in Chapter 98, Boards, Commissions, Committees and Panels, of the Town Code:
A.
To hear and decide appeals where it is alleged there is an error
in any order, requirement, decision, or determination made by the
Zoning Inspector or the Planning Commission in the enforcement of
this chapter or of any ordinance adopted under this chapter;
B.
To interpret the intent of this chapter where expressly authorized;
C.
Hear and decide special exceptions to the terms of an ordinance on
which the Board is required to pass under this chapter; and
D.
Authorize on appeal in specific cases a variance from the terms of
an ordinance.
E.
Adopt rules necessary to the conduct of its affairs and in keeping
with the provisions of § 4-304 of the Land Use Article of
the Annotated Code of Maryland.
A.
The Board of Zoning Appeals shall have the power to hear and decide
appeals, where it is alleged there is an error in any order, requirement,
decision, or determination made by the Zoning Inspector or the Planning
Commission in connection with the administration and enforcement of
this chapter.
B.
In exercising the above-mentioned powers in appeals, the Board of
Zoning Appeals may, in conformity with the terms of this chapter,
reverse or affirm, wholly or partly, or may modify the order, requirement,
decision or determination as the Board deems necessary, and to that
end shall have powers of the one from whom the appeal is taken.
C.
An appeal is made by filing a written notice of appeal with the Board
of Zoning Appeals and accompanied by the appropriate filing fee.
D.
An appeal must be filed within 30 days after the date of the decision
or order being appealed.
E.
An appeal stays all actions by the Town seeking enforcement or compliance
with the order or decisions being appealed unless the Zoning Inspector
certifies to the Board of Zoning Appeals that (because of facts stated
in the certificate) such stay will cause imminent peril to life or
property. In such a case, action by the Town shall not be stayed except
by order of the Board of Zoning Appeals or a Court, upon application
of the party seeking the stay.
A.
The Board of Zoning Appeals shall have the power to hear and decide
appeals, where it is alleged there is an error in any interpretation,
decision, or determination made by the Historic District Commission.
B.
Upon receiving notice of an appeal being taken from a decision of
the Historic District Commission, the Historic District Commission
shall forthwith transmit to the Board of Zoning Appeals all papers
constituting the record upon which the action appealed from was taken.
C.
The Board of Zoning Appeals shall not receive evidence in addition
to that presented to the Historic District Commission. They may, at
the discretion of the Board of Zoning Appeals, remand the matter to
the Historic District Commission for the taking of additional evidence.
(1)
If the matter is remanded to the Historic District Commission
for the taking of additional evidence, any competent, relevant, and
material evidence may be received from, or on behalf of, any party
or interested person.
(2)
After the taking of additional evidence, the Historic District
Commission shall render its decision considering the new evidence
based on such weight and significance as the Historic District Commission
shall deem appropriate.
(3)
After that, any person so authorized by this chapter may take
an appeal as provided for herein.
D.
In its review of a decision of the Historic District Commission,
the Board of Zoning Appeals shall consider the record of the proceedings
before the Historic District Commission, the written decision of the
Historic District Commission and the arguments made to the Board of
Zoning Appeals at its hearing by a representative of the Historic
District Commission and each party or interested person who appeared
before the Historic District Commission.
E.
Because the members of the Historic District Commission are required
by this chapter to possess qualifications which make them particularly
qualified to decide matters related to historical, architectural and
aesthetic values, the Board of Zoning Appeals shall not reverse a
decision of the Historic District Commission based upon a determination
of historical, architectural or aesthetic values unless erroneous.
A.
In exercising the above-mentioned powers, the Board of Zoning Appeals
may, so long as such action conforms with the terms of this chapter,
reverse or affirm, wholly or partly, or may modify the order, requirement,
decision or determination as ought to be made, and to that end shall
have the same powers as the Zoning Inspector, Historic District Commission,
or Planning Commission from whom the appeal is taken.
B.
The concurring vote of the majority of the members of the Board shall
be necessary to reverse any order, requirement, decision, or determination
of the Zoning Inspector, Historic District Commission, or Planning
Commission, or to decide in favor of the applicant on any matter upon
which it is required to pass under this chapter or to effect any variation
in the application of this chapter.
C.
If the Board disapproves any application or request, and/or by a
final court decision rendered in an appeal from a decision of the
Board, the Board shall not accept an application for substantially
the same proposal, on the same premises, until one year after the
date of such disapproval by the Board or final court decision involving
an appeal from a decision of the Board, whichever shall occur last.
The Board shall not accept an application for approval of substantially
the same proposal, on the same premises, which is the subject of pending
litigation by the Town in which the Town is seeking to enforce this
chapter, and alleges that substantially the same proposal, on the
same premises, violates this chapter.
D.
If an appeal to the Board is perfected and the public hearing date
set, and public notice is given, and after that, the applicant withdraws
the appeal before the public hearing, the applicant shall not be precluded
from filing another application for substantially the same proposal
on the same premises for one year from the date of withdrawal. However,
the applicant shall be responsible for all costs associated with the
first application with such costs paid in full prior to the acceptance
of the new application and fee.
A.
Interpretation and adjustment of Zoning Map and district lines. The
Board may determine, after notice to the owners of the properties
affected and after a public hearing, boundaries of districts as follows:
(1)
Where the street or lot actually on the ground or as recorded
differs from the street or lot lines shown on the Zoning Map, the
Board shall interpret the map in such a way as to carry out the intent
and purpose of this chapter for the particular section or district
in question.
B.
Determination of use categories and subcategories.
(1)
When a use cannot be reasonably classified into a use category, subcategory or specific use type as provided in § 340-133, or appears to fit into multiple categories, subcategories or specific use types, the Board of Zoning Appeals is authorized to determine the most similar and thus most appropriate use category, subcategory or specific use type. This determination shall be based on the actual or projected characteristics of the principal use or activity in relation to the use category, subcategory, and specific use type descriptions provided in this section. In making such determinations, the Board of Zoning Appeals shall consider:
(a)
The types of activities that will occur in conjunction with
the use;
(b)
The types of equipment and processes to be used;
(c)
The existence, number, and frequency of residents, customers
or employees;
(d)
Parking demands associated with the use; and
(e)
Other factors deemed relevant to a use determination.
(2)
If a use can reasonably be classified in multiple categories,
subcategories, or specific use types, the Board of Zoning Appeals
shall categorize the use in the category, subcategory, or specific
use type that provides the most exact, narrowest and appropriate "fit."
(3)
If the Board of Zoning Appeals is unable to determine the appropriate
use category for a proposed use, the Board of Zoning Appeals is authorized
to classify the use as a prohibited use.
(4)
If the Board of Zoning Appeals determines that the use is similar
and meets the intent of the principal permitted uses within the district,
then it shall instruct the Zoning Inspector to issue a zoning certificate.
(5)
If the Board of Zoning Appeals determines that the proposed
use in the district is consistent with the character and intent of
the uses permitted by special exception within the district, then
the applicant shall apply for a special exception in the normal manner.
(6)
Once a use has been allowed or disallowed by the Board, it shall
then be considered classified under the appropriate category in the
district.
A.
The Board of Zoning Appeals shall have the power to hear and decide
only such special exceptions as the Board of Zoning Appeals is expressly
authorized to pass on under the terms of this chapter. The Board of
Zoning Appeals is authorized to decide on such questions as are involved
in determining whether special exceptions should be granted and to
grant special exceptions with such conditions and safeguards as are
appropriate under this chapter, or to deny special exceptions when
not in harmony with the purpose of this chapter and the St. Michaels
Comprehensive Plan. The Board of Zoning Appeals shall not grant a
special exception unless and until:
(1)
A written application for a special exception is submitted,
indicating the section of this chapter under which the special exception
is sought and stating the grounds on which the special exception is
requested and how the request meets the criteria for approval enumerated
in this chapter. The application shall be accompanied by five copies
of a site plan drawn to scale, signed, and sealed by a professional
engineer or other appropriate professionals. When deemed necessary
by the Zoning Inspector, the applicant shall be required to provide
such other written or graphic material necessary or desirable in aiding
the Board of Zoning Appeals in reaching its decision. The required
site plan shall reflect the boundaries of the property, and any disputes
as to the boundary lines shall be resolved before applying.
(2)
The Planning Commission has reviewed the application and made
a recommendation to the Board that the use is consistent with the
purposes and intent of the St. Michaels Comprehensive Plan and that
the use will comply with the standards of the zoning district in which
it is located, except as those standards may have been modified by
the granting of a variance; provided, however, that such recommendation
shall not be interpreted as requiring the grant of the special exception.
[Amended 2-10-2021 by Ord. No. 519]
(4)
A public hearing is held regarding the requested special exception.
Any party may appear in person or by agent or attorney. The Board
may exclude evidence, which is immaterial, irrelevant, or unduly repetitious.
(5)
The Board of Zoning Appeals finds that it is empowered, under
the section of this chapter described in the application, to grant
the special exception.
(6)
The Board of Zoning Appeals finds from a preponderance of the
evidence that the proposed use will satisfy all the following standards:
(a)
The use will be consistent with the purposes and intent of the
St. Michaels Comprehensive Plan.
(b)
The use will comply with the standards of the zoning district
in which it is located, except as those standards may have been modified
by the granting of a variance.
(c)
The scale, bulk, and general appearance of the use will be such
that the use will be compatible with adjacent land uses and with existing
and potential uses in its general area and will not be detrimental
to the economic value of the neighboring properties. For those properties
lying within the Town Historic District, final architectural review
and approval will be required from the Historic District Commission.
(d)
The use will not constitute a nuisance to other properties and
will not have significant adverse impacts on the surrounding area
due to trash, odors, noise, glare, vibration, air and water pollution,
and other health and safety factors or environmental disturbances.
(e)
The use will not have a significant adverse impact on public
facilities or services, including roads, schools, water and sewer
facilities, police and fire protection, or other public facilities
or services.
(f)
The use will not have a significant adverse effect on marine,
pedestrian, or vehicular traffic.
(g)
The use will not adversely affect the public health, safety,
or general welfare.
(7)
Prior or within 30 days of approval by the Board of Zoning Appeals,
three copies of a final site plan shall be prepared by the applicant
in the form of a final plat and meeting such requirements as the Board
of Zoning Appeals may require. The final site plan shall show all
relevant aspects of the special exception, including all conditions
and safeguards which the Board of Zoning Appeals has prescribed in
granting the special exception. In no event shall any permits be issued
for the use proposed in the special exception application without
first filing the site plan required hereby. The final site plans shall
be drawn to scale and shall include the following:
(a)
The site plan shall be marked with the names of the owner of
the subject property, shall be dated, and shall be drawn to scale
with the scale indicated thereon.
(b)
The direction of North shall be indicated thereon.
(c)
Existing zoning, and, if a zone district boundary line is within
100 feet of the subject property, zoning district boundaries shall
be shown.
(d)
The boundary lines of the subject property, setback distances,
buildings, waterways, easements, streets, and other existing physical
features in and adjoining the property shall be indicated.
(e)
The location of proposed streets, alleys, driveways, curb cuts,
entrances, exits, parking and loading areas (including numbers of
parking and loading spaces), outdoor lighting systems, storm drainage,
sanitary facilities and buildings, and HVAC units and other similar
systems shall be shown.
(f)
The general location of proposed lots, setback lines, easements,
reservations for parks, parkways, playgrounds, open spaces, and other
proposed development plans shall be shown.
(g)
Preliminary plans and elevations of major buildings shall accompany
the site plan as may be required by the Board of Zoning Appeals.
(h)
Proposed fences, walls, screen planting, and landscaping shall
be shown.
(i)
A tabulation of a total number of acres in the project, along
with the total number of dwellings or other units proposed, and other
numerical and statistical information as may be required by the Board
of Zoning Appeals shall be shown.
(j)
The Board of Zoning Appeals may require additional information
to be shown upon the site plan as it deems necessary.
(k)
The final site plans shall show the date of approval by the
Board of Zoning Appeals and contain the signature of the Chair of
the Board of Zoning Appeals when approved.
B.
In granting any special exception, the Board of Zoning Appeals may
prescribe appropriate conditions and safeguards in conformity with
this chapter.
C.
Violations of any of the conditions or safeguards prescribed by the Board of Zoning Appeals may, after reviewing by the Board, result in revocation of the granted special exception, and shall be deemed a violation of this chapter and be punishable under § 340-212 of this chapter.
D.
Special exceptions not established. In any case, where a special
exception has not been established within one year after the date
of granting the special exception, the special exception shall expire.
However, the Board of Zoning Appeals, in its discretion and upon a
showing of good cause, may grant up to two successive extensions of
the granting of the special exception for periods of no longer than
six months each, provided that a written request for each extension
is filed while the prior grant is still valid. Review fees shall be
established by the Town Commissioners and shown in the Town's Fee
Schedule.[1]
[1]
Editor's Note: The Fee Schedule is on file in the Town offices.
E.
Cessation of special exception use. A special exception expires if
it ceases for more than 12 months. In the case of a building or structure
which is destroyed or damaged by fire or other casualty or act of
God, the Zoning Inspector may approve the reestablishment of the use,
if restoration is actively and diligently pursued to completion in
a timely fashion.
F.
The enlargement or alteration of use, or of the structure and facilities
occupied by a use, for which a special exception was granted or is
a use listed as a special exception use in this chapter shall require
a special exception use amendment. Such an amendment shall be obtained
following the same procedures required for a special exception established
in this section, except that the Zoning Inspector may approve the
amendment if the amendment involves the following:
(1)
Deviations in the size and location of drainage ways, driveways,
landscape elements, or other similar features based on technical or
engineering considerations and said deviation remains in full compliance
with the regulations of the zoning district.
(2)
Minor amendments to the shape or bulk of the subject building,
which did not exceed 10% of the footprint of the structure at the
time of review by the Board and provided that the modified dimensions
comply with all requirements of the zoning district.
(3)
The addition of minor accessory uses or structures not to exceed
300 square feet in area and no more than 17 feet in height.
The Board of Zoning Appeals shall have the power to authorize
upon appeal in specific cases the requested variance from the terms
of this chapter as will not be contrary to the public interest. A
variance from the terms of this chapter shall not be granted by the
Board of Zoning Appeals unless and until a written application for
a variance is submitted demonstrating:
A.
Special conditions and/or circumstances exist which are peculiar
to the land, structures or building involved that are not generally
shared by other properties in the same zoning district or vicinity.
Such conditions and/or circumstances may include but are not limited
to the following: exceptional narrowness or shallowness or both, or
irregular shape or topography of the property; unusual and limiting
features of the building.
B.
That such special conditions and/or circumstances noted above cause
the strict enforcement of the zoning provision to impact disproportionately
upon the property resulting in unnecessary and undue hardship. Hardship
arises where property, due to unique circumstances applicable to it,
cannot reasonably be adopted to use in conformity with the restrictions.
C.
Such special conditions or circumstances must not be the result of
any action or actions of the applicant.
D.
Granting of the variance must be in harmony with the general purpose
and intent of the chapter. It must not be injurious to adjacent property,
the character of the neighborhood, or the public welfare.
E.
The variance granted must be the minimum necessary to afford relief.
F.
That no nonconforming use of neighboring lands, structures, or buildings
in the same zoning district, and no permitted use of lands, structures,
or buildings in other zoning districts shall be considered grounds
for the issuance of a variance.
A.
Applicability. The Town has established provisions whereby a Critical
Area Program variance may be obtained when, owing to special features
of a site or other circumstances, implementation of this program or
literal enforcement of its provisions would result in unwarranted
hardship to an applicant. In considering an application for a variance,
the Town shall presume that the specific development activity in the
critical area that is the subject of the application and for which
a variance is required does not conform with the general purpose and
intent of the Critical Areas Law, the Critical Areas Regulations,
and the requirements of this chapter.
B.
Process. Application for a variance shall be made in writing to the Board of Zoning Appeals with a copy provided to the Critical Area Commission. The Board of Zoning Appeals shall conduct a public hearing on the application. Notice of the hearing shall be given as in § 340-139. The applicant shall have the burden of proof and the burden of persuasion to overcome the presumption of nonconformance established in Subsection A above. After hearing an application for a Critical Area Program variance, the Board of Zoning Appeals shall make written findings demonstrating that the variance request meets each of the standards in Subsection C below. The Town shall notify the Critical Area Commission of its decision to grant or deny the variance request and make available the findings as needed.
C.
Standards. Before granting a variance to the Critical Area Program
Overlay District, the Board of Zoning Appeals shall make written findings
demonstrating that each of the following standards has been met:
(1)
Special conditions or circumstances exist that are peculiar
to the land or structure involved and that literal enforcement of
provisions and requirements of the Town's Critical Area Program Overlay
District would result in unwarranted hardship. "Unwarranted hardship"
shall mean that without a variance, the applicant would be denied
reasonable and significant use of the entire parcel or lot for which
the variance is sought.
(2)
A literal interpretation of the provisions of the chapter, the
Critical Area Program, and related ordinances will deprive the applicant
of rights commonly enjoyed by other properties per the provisions
of the Town's Critical Area Program.
(3)
The granting of a variance will not confer upon an applicant
any special privilege that would be denied by the Town's Critical
Area Program to other lands or structures following the provisions
of the Town's Critical Area Program.
(4)
The variance request is not based upon conditions or circumstances
which are the result of actions by the applicant, including the commencement
of development activity before an application for a variance has been
filed, nor does the request arise from any condition relating to land
or building use, either permitted or nonconforming on any neighboring
property.
(5)
The granting of a variance shall not adversely affect water
quality or adversely impact fish, wildlife or plant habitat within
the critical area and the granting of the variance will be in harmony
with the general spirit and intent of the Critical Area Law and this
chapter.
(6)
The variance granted is the minimum variance that will make
possible reasonable use of the land, building, or structure.
D.
Evidence. Findings by the Board of Zoning Appeals shall be based
on competent and substantial evidence. 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:
E.
Conditions and mitigation. The Board of Zoning Appeals may impose
conditions on the use of development of a property which is granted
a variance as it may find reasonable to ensure that the spirit and
intent of the Critical Area Program Act are maintained, including,
but not limited to, the following:
(1)
Impacts resulting from the granting of the variance shall be
mitigated by planting on the site per square foot of the variance
granted at no less than a three-to-one basis or as recommended by
the Town Zoning Inspector.
(2)
New or expanded structures or impervious surfaces shall be located
the greatest possible distance from mean high water, the landward
edge of tidal wetlands, tributary streams, nontidal wetlands, or steep
slopes.
F.
Standing. In accordance with § 8-1808(d)(2) of the Natural
Resources Article of the Annotated Code of Maryland, if a person meets
the threshold standing requirements under federal law, the person
shall have standing to participate as a party in the variance proceedings.
G.
Commission notification. Within 10 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. The Town shall not issue
a permit for the activity that was the subject of the application
until the applicable thirty-day appeal period has elapsed.
H.
After-the-fact requests in the critical area.
(1)
The Town may not accept an application for a variance to legalize
a violation of this article in the critical area, including an unpermitted
structure or other development activity until the Town:
(2)
The Town may not approve an after-the-fact variance unless an
applicant has:
(a)
Fully paid all administrative, civil and criminal penalties
imposed under § 8-1808(c)(1)(iii)14-15 and (c)(2)(i) of
the Natural Resources Article of the Annotated Code of Maryland;
(b)
Prepared a restoration or mitigation plan, approved by the Town,
to abate impacts to water quality or natural resources as a result
of the violation; and
(c)
Performed the abatement measures in the approved plan in accordance
with this article.
A.
The Board of Zoning Appeals may make reasonable accommodations to
avoid discrimination based on a physical disability. Reasonable accommodations
for the needs of disabled citizens may be permitted in accordance
with the evidentiary requirements outlined in the following subsections.
(1)
An applicant seeking relief from the critical area standards
contained in this chapter to accommodate the reasonable needs of disabled
citizens shall have the burden of demonstrating by a preponderance
of the evidence the following:
(a)
The alterations will benefit persons with a disability as defined
within the meaning of the Americans with Disabilities Act;
(b)
Literal enforcement of the provisions of this chapter would
result in discrimination by such disability or deprive a disabled
resident or user of the reasonable use and enjoyment of the property;
(c)
A reasonable accommodation would reduce or eliminate the discriminatory
effect of the provisions of this chapter or restore the disabled resident's
or users' reasonable use or enjoyment of the property;
(d)
The accommodation requested will not substantially impair the
purpose, intent, or effect, of the provisions of this chapter as applied
to the property; and
(e)
The accommodation would be environmentally neutral with no greater
negative impact on the environment than the literal enforcement of
the statute, ordinance, regulation, or another requirement; or would
allow only the minimum environmental changes necessary to address
the needs resulting from the particular disability of the applicant/appellant.
B.
The Board of Zoning Appeals shall determine the nature and scope
of any accommodation under this section. It may award different or
other relief than requested after giving due regard to the purpose,
intent, or effect of the applicable provisions of this chapter. The
Board may also consider the size, location, and type of accommodation
proposed and whether alternatives exist which accommodate the need
with less adverse effect.
C.
The Board of Zoning Appeals may require, as a condition of approval,
that upon the termination of the need for accommodation, that the
property be restored to comply with all applicable provisions of this
chapter. Appropriate bonds may be collected, or liens placed to ensure
the Town's ability to restore the property should the applicant fail
to do so.
Public notice shall be provided for hearings required by this
chapter as specified below unless different requirements are specified
elsewhere in this chapter.
A.
Posting of property. The applicant shall post the property, which
is the subject of the hearing, with a sign furnished by staff. The
sign shall be posted for at least 15 days before the meeting date
and shall be removed within five days after the conclusion of the
last public hearing on the application. At the hearing, the applicant
shall affirm that he has fully complied with this provision and has
continuously maintained the posting in compliance with this provision
up to the time of the meeting.
B.
Newspaper publication. The hearing shall be advertised once a week
for two consecutive weeks in a newspaper of general circulation in
the county at the applicant's expense. The first publication date
shall be not more than 15 days prior to the hearing date. The notice
shall provide a summary of the purpose of the proceeding in sufficient
detail to inform the public of the nature of the proceeding. It shall
contain the location of the property, the name of the governmental
body before whom the hearing is to be conducted, and other information
deemed necessary by the Zoning Inspector to inform the public of the
proceeding adequately.
C.
Notice to adjacent property owners. The Zoning Inspector shall mail
a notice of the hearing by regular mail, postage prepaid, to the owners
of all adjacent property. The applicant shall bear the cost of the
mailing. The notices shall be postmarked at least 15 days prior to
the hearing and mailed to the address to which the real estate tax
bill on the property is sent. Failure of a person to receive the notice
prescribed in this section shall not impair the validity of the public
meeting or hearings. The Board may continue a hearing that has been
properly convened without re-advertisement if the Board announces
at or before adjournment of the original hearing the date, time, and
place at which the hearing is scheduled to resume.
Any person or persons who have standing to do so may seek review
of a decision of the Board of Zoning Appeals by the Circuit Court
for Talbot County in the manner provided for by Title 7, Chapter 200,
Maryland Rules of Procedure.
