City of Havre de Grace, MD Article IV Board of Appeals [1]

[Adopted 3-21-2022 by Ord. No. 1067[2]]

[1] Editor’s Note: Former Art. III was redesignated as Art. IV 3-17-2014 by Ord. No. 953.

[2] Editor's Note: This ordinance also repealed former Art. IV, Board of Appeals, adopted 4-21-2003 by Ord. No. 837, as amended 4-17-2006 by Ord. No. 874; 6-5-2006 by Ord. No. 875; and 10-5-2009 by Ord. No. 908.

§ 25-13 Creation; composition; appointment and removal of members; compensation; election of Chair and Vice Chair.

There is hereby created and established a Board of Appeals which shall consist of five members and one permanent alternate member who shall be appointed by the Mayor and confirmed by the City Council for three-year terms.

A. Each appointed member of the Board of Appeals shall be a full-time resident of the City of Havre de Grace at the time of appointment and during the term of the member. For the purpose of this subsection, "full-time resident" means declaring the City of Havre de Grace the person's primary residence for tax purposes. The Mayor and City Council may also appoint no more than two members from outside the incorporated limits of the City; however, the appointee must reside within the Havre de Grace zip code.

B. Members of the Board may be removed for cause by the City Council after a public hearing upon written charges. Grounds for removal are set forth in the Land Use Article of the Maryland Annotated Code, § 4-302(d), as amended.

C. The City Council shall appoint a new member to fill the unexpired term of any member who leaves the Board of Appeals for any reason.

D. An alternate member shall act in the place of an absent, recused, or removed Board member until a new member is appointed. If an alternate member is absent or recused, the City Council may designate a temporary alternate.

E. All members shall serve the Board without compensation.

F. The Board shall elect a Chairperson and Vice Chairperson at the first meeting of the Board each calendar year.

§ 25-14 Rules; meetings; oaths; witnesses; record of proceedings.

A. The Board of Appeals shall adopt Rules of Procedure governing conduct of its proceedings and matters under its jurisdiction. Meetings of the Board shall be open to the public and shall be held at the call of the Chairperson and at such other times as a majority of the Board may determine. The Chairperson or, in his absence, the Vice Chairperson or acting Chair, may administer oaths and compel the attendance of witnesses.

B. The Department of Planning shall keep minutes and voice recordings, and, where appropriate, official transcripts and other records on matters coming before the Board and showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact, all of which shall be a public record. If a recording or a transcript of a recording is not prepared in the normal course of the Board's proceedings, the party who requests a copy of the recording or its transcript shall pay the cost of preparing the recording or transcript.

§ 25-15 Powers and duties.

The Board of Appeals shall have the following functions, powers and duties:

A. Administrative review: to hear and decide appeals where it is alleged that there is an error in any final order, requirement, decision or determination made by any administrative official, department of the City government, the Planning Commission or Historic Preservation Commission in the enforcement and administration of the City Code, the Building Code, the Subdivision Regulations or any other ordinance or regulation which may hereafter be designated by the City Council for such administrative review; provided, however, that appeals alleging error by the Planning Commission or Historic Preservation Commission shall be by oral argument or written statement based solely on the evidence submitted and received in the Planning Commission or Historic Preservation Commission proceedings.

B. Special exceptions: to hear and decide only those special exceptions and conditional uses as the Board of Appeals is specifically authorized to act on by the terms of this article. Conditional uses as specified in Chapter 205, Zoning, shall be referenced as special exceptions for the purposes of this article. The Board of Appeals is empowered to prescribe appropriate conditions and limitations upon the approval of special exceptions. Special exceptions approved by the Board shall be implemented in accordance with the terms and/or conditions set forth in the Board's decision and shall include the requirement that the petitioner shall be bound by all of their testimony and exhibits of record, the testimony of their witnesses and representations of their attorneys, to the extent that such evidence and representations are identified in the Board's opinion approving the special exception. Violation of such conditions and limitations shall be deemed a violation of this article and, further, shall constitute grounds for revocation of such special exception. The Planning Commission shall not review a special exception until such time that the Board has rendered its decision, and the decision is not under appeal.

C. Variances: to authorize an appeal in specific cases a variance from the strict application of the terms or requirements of this article. In granting any variance the Board may prescribe appropriate conditions and limitations in conformance with the City Code. Violations of such conditions and limitations shall be deemed a violation of this article and, further, shall constitute grounds for revocation of such variance. These provisions shall not be construed to permit the Board, under the guise of a variance, to authorize a use of land not otherwise permitted by right or as a special exception in the zoning district, otherwise known as a "use variance."

§ 25-16 General requirements and procedures.

A. Initiation of petitions.

(1) Petitions filed for administrative review may be initiated by any person aggrieved by a final order, requirement, decision or determination as set forth this section. Such petition shall be filed within 30 days of the date of the action from which the appeal is filed. The filing of a petition for administrative review shall stay all proceedings in furtherance of the action appealed from unless such stay would cause immediate peril to life or property. Such stay may be granted by the Board of Appeals or by the Circuit Court only for good cause shown and through issuance of a restraining order after notice is given.

(2) Petitions for a special exception or a variance may be filed by any person, entity or government agency with any financial, contractual or proprietary interest in the affected property. Should petitions be filed by anyone other than the owner of the property, those petitions must be filed with the owner's written consent.

B. A petition for special exception or variance shall be submitted to the Department of Planning in writing on forms provided for this purpose and accompanied by a filing fee which shall be established from time to time by the City Council. Petitions for administrative review shall be submitted to the Director of Administration. A petition shall not be accepted for filing which does not contain an appropriate application, filing fee and supporting material set forth in Subsection C below.

C. A petition for special exception, variance or administrative review shall be accompanied by the following materials and/or information and any other information as required by the Director of Administration, Planning or Public Works:

(1) Special exceptions.

(a) Plans and drawings that comply with applicable City Code chapters or as required by the Directors of Planning or Public Works.

(b) A statement explaining in detail how the special exception is to be operated, including hours of operation, number of anticipated employees, occupants and clientele, equipment involved and any special conditions or limitations which the petitioner proposes for adoption by the Board.

(c) List of additional interested parties.

(d) If the petitioner is not the owner of the property involved, the lease, rental agreement or contract to purchase by which the petitioner's legal right to prosecute the petition is established.

(e) All additional exhibits which the petitioner intends to introduce and/or the identification of exhibits intended to be introduced at the public hearing.

(f) A summary of what the petitioner expects to prove, including the names of petitioner's witnesses, summaries of the testimony of expert witnesses and the estimated time required for presentation of the petitioner's case. All expert reports shall be filed at least 15 days prior to the public hearing.

(g) A listing of the names and addresses of all persons required to receive notice pursuant to the requirements of this chapter. If an abutting or confronting property is a condominium, cooperative or is owned by a homeowners' association, then notice shall be given to the governing body and resident agent of the condominium, cooperative or homeowners' association.

(h) Required fee. (See Fee Schedule.)

(2) Variances. All required items contained in § 25-16C(1), above, are applicable to variance petitions unless the Director of Planning determines certain required items are not relevant or applicable.

(3) Administrative review.

(a) The action, document and all records upon which the appeal was filed or based.

(b) List of specific section or sections of the City Code relied upon or authorizing the review.

(c) Copies of additional exhibits or documents upon which the petitioner relies.

(d) Deposit for cost of official transcript of agency proceeding, if required, estimated on length of hearing. Balance to be paid by petitioner prior to scheduling of hearing date.

(e) List of parties.

[1] For administrative review of Planning Commission or Historic Preservation Commission decision, list of parties who participated in the proceeding.

[2] A listing of the names and addresses of all persons required to receive notice pursuant to this chapter. If an abutting or confronting property is a condominium, cooperative or is owned by a homeowners' association, then notice shall be given to the governing body and resident agent of the condominium, cooperative or homeowners' association.

(f) Required fee. (See Fee Schedule.)

D. Notice of a public hearing on any special exception, variance, or when applicable, administrative review, shall be given by certified mail to the petitioner, the owner of the property and all abutting and confronting property owners of the property under consideration at least 15 days' prior to the date of the public hearing. Notice shall also be published on the City's webpage at least 10 days' prior to the date of the public hearing. In addition, notice of such hearing shall be posted by the Department of Planning with a sign provided by the Board of Appeals staff on the property under consideration:

(1) At minimum, the sign shall contain the following information:

(a) The type of petition pending;

(b) The petition or building permit number:

(c) The date, and place of the hearing; and

(d) A phone number to call for additional information.

(2) If the property has frontage on one or more improved streets, there shall be one sign posted by the Department of Planning for each 1,000 feet (or fraction) of frontage on each street. The sign(s) shall be posted on the property near the street right-of-way, so as to be visible from the improved portion of the street. When more than one sign is required to be posted along a street, the signs shall, where practicable, be evenly spaced along the street.

(3) If the property does not have frontage on an improved public street, then one sign shall be placed on the property. This sign shall be near the boundary of the property and visible from an adjoining property. Another sign shall be placed by the Department of Planning near to, and visible from, the improved portion of the nearest, most-traveled street. This sign shall indicate it is not on the subject property.

(4) The minimum size of each sign shall be as prescribed by the City Council.

(5) All signs posted shall be conspicuous and legible.

(6) The petitioner shall be responsible for reasonable maintenance of all signs. In the event a sign is removed, falls down, or otherwise is not on the property or in the right-of-way during the pendency of and until the date of the hearing, it shall be the responsibility of the petitioner to repost the sign.

(7) The Department shall file a written statement in the record acknowledging the posting was completed in accordance with the requirements of this article.

(8) The sign shall remain posted until the Board of Appeals has issued its written opinion.

E. The Department of Planning shall prepare a staff report that incorporates background information on the subject property, provides a recommendation for approval or denial, and incorporates recommended conditions as necessary. The report shall include an analysis of environmental features, zoning, consistency with the Comprehensive Plan, and existing and proposed land uses on the subject property and within the neighborhood. The report shall be forwarded to the Board and the petitioner at least five days prior to the hearing before the Commission.

F. All petitions for special exceptions shall be referred to all applicable City, county and state agencies for review and comment as prescribed by the Director of Planning. Comments and recommendations shall be included in the Department of Planning's staff report that shall be provided to the Board of Appeals prior to the hearing date.

G. The Board shall hold a public hearing on all petitions for special exceptions, variances or administrative review with the exception of appeals alleging error by the Planning Commission or the Historic Preservation Commission, wherein administrative review shall be by oral argument or written statement based solely on the evidence submitted and received in the Commission proceedings. The Board's hearings shall be public, and any party may appear in person or by agent or attorney. The conduct of the hearing shall be conducted pursuant to the Board's Rules of Procedure. Hearings may be adjourned or continued from time to time at the Board's discretion, provided that the time and date of any such adjournment or continuance shall be agreed upon by the Board and announced at the initial hearing.

H. The Board shall have authority to adopt, and amend from time to time, Rules of Procedure to govern the conduct of its proceedings not otherwise provided in this article.

I. The Department of Planning shall maintain a record of the Board's proceedings, including all exhibits filed and accepted, minutes of its proceedings and decisions and transcripts or voice recordings of all testimony presented.

J. The petitioner for a special exception, variance or administrative review shall have the burden of proof that shall include the burden of going forward with the evidence and the burden of persuasion on all issues of fact which are to be determined by the Board of Appeals.

§ 25-17 Findings required.

A. Administrative review. A petition for administrative review may be granted when the Board of Appeals finds from the evidence of record that the final order, requirement, decision or determination which is the subject of the appeal was clearly erroneous or not in accordance with the law.

B. Special exceptions. A special exception may be granted when the Board of Appeals finds from the evidence of record that the proposed use:

(1) Is a permissible special exception within the zone and that the petition complies with all procedural requirements set forth in this article;

(2) Complies with all standards and requirements specifically set forth for such use as may be contained in this article and the development standards for the zoning district within which the intended use will be located;

(3) Will not be detrimental to the use, peaceful enjoyment, economic value or development of surrounding properties or the general neighborhood; and will cause no objectionable noise, vibrations, fumes, odors, dust, toxicity, glare or physical activity;

(4) Will be in harmony with the general character of the neighborhood considering population density, design, scale and bulk of any proposed new structure or conversion of existing structures, as well as the intensity and character of activity, traffic and parking conditions and number of similar uses;

(5) Will be consistent with the Comprehensive Plan or other planning guides or capital programs for the physical development of the district;

(6) Will not adversely affect the health, safety, security, morals or general welfare of residents, visitors or workers in the area;

(7) Will be served by adequate public services and facilities, including police and fire protection, water and sanitary sewer, storm drainage, public roads and other public improvements; and

(8) Will consider the environmental impact, the effect on sensitive features and opportunities for recreation and open space.

(9) Will consider the preservation of cultural and historic landmarks.

(10) That the petitioner has demonstrated a need for the requested use.

C. Variances. A variance from the terms of this article may be authorized by the Board of Appeals upon proof by the evidence of record. If a conflict between this statute and state law exists, the state law prevails. The Board shall not grant a request for a variance unless the Board finds:

(1) Because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape, or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility in pursuing the proposed use or developing the lot in strict conformance with zoning regulations; and

(2) Because of exceptional circumstances other than financial considerations, the granting of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to pursue the proposed use or development of the lot; and

(3) That literal enforcement of the ordinance would result in practical difficulty or unreasonable hardship; and

(4) Granting the relief requested would not do substantial injury to the public health, safety and general welfare and is the minimum necessary relief to permit the petitioners' use or development of the lot.

D. In authorizing a variance, the Board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary, consistent with the purposes of this article and Chapter 205, Zoning, and the laws of the state applicable thereto. No variance shall exceed the minimum adjustment necessary to relieve the hardship imposed by literal enforcement of Chapter 205. The Board may require such guaranty or bond as it may deem necessary to insure compliance with conditions imposed.

§ 25-18 Decisions of Board.

A. The decision of the Board of Appeals on any matter considered under this article shall be made in writing to the petitioner. The Chair of the Board may delegate the writing of the decision to the Director of Planning or their designee. The affirmative vote of a majority of the Board present shall be required to grant a petition for special exception or petition for variance. The same majority vote of the Board shall be required to reverse or affirm, in whole or in part, any order, requirement, decision or determination which is the subject of administrative review. If the necessary total of affirmative votes shall not be achieved, the petition shall be denied.

B. All decisions of the Board under this article shall be based solely upon the evidence of record.

C. The decision of the Board shall not preclude any department or agency of the City, when appropriate, to add specific conditions or requirements at any time that are not inconsistent with the Board's decision, which are necessary to comply with any state law, ordinances or regulations of the City, or where necessary to protect adjacent properties, the general neighborhood and residents, workers and visitors therein.

D. A copy of the Board's decision shall promptly be forwarded to the petitioner and furnished to any other interested party upon request.

§ 25-19 Special exception implementation, modification and abandonment.

A. The Board of Appeals shall prescribe a time limit in which the special exception is required to be completed. The Board of Appeals shall conduct a public hearing upon the failure to complete the special exception within the prescribed time, and following the public hearing may terminate the special exception. The Board may, upon written request and for good cause shown, extend the time for completion of the special exception.

B. The Board of Appeals is authorized to amend or modify the terms or conditions of a special exception upon the request of the special exception holder or upon recommendation of any City department or the Planning Commission, or pursuant to a show cause hearing. No public hearing shall be required unless the Director of Planning determines the proposed modification will substantially change the nature, character or intensity of the use or materially impact the neighborhood in which such use is located. If the Director determines that a hearing is required, the notice and hearing provisions contained in this article shall apply.

C. A special exception shall be deemed abandoned, irrespective of the intent of the holder, where the cessation of the use approved or the activities incident to the operation of the special exception have been discontinued for a period of at least one year after implementation thereof.

§ 25-20 Hearing Examiner.

A. Establishment of a Hearing Examiner. The Board shall employ one or more Hearing Examiners on a part-time basis to preside with the Board over contested zoning and related land uses cases, as assigned by the Chair of the Board on an as-needed basis. The Hearing Examiner shall be an independent contractor of the City of Havre de Grace. The Hearing Examiner shall be admitted to practice law by the Court of Appeals of Maryland and shall demonstrate a knowledge of administrative, zoning and land use law, practice and procedure.

B. General powers and duties of the Board and Hearing Examiner.

(1) The Chair of the Board has the discretion or the Board by majority vote during a public hearing shall determine when the services of the Hearing Examiner will be utilized. The Chair of the Board shall obtain information on each zoning or land use case from the Department of Planning and shall consider, among other things, the following factors when deciding whether to utilize the Hearing Examiner for a particular zoning case:

(a) The complexity of the zoning or land use case and requested approval;

(b) The amount of opposition, if any, to the zoning request;

(c) The novelty of the zoning request and whether it is an issue of first impression; and

(d) The size and location of the property and/or development that is the subject matter of the zoning request.

(2) The Chair of the Board shall open the hearing by introducing the matter before the Board and identifying the parties and their representatives, if any, and shall discuss whether or not the Hearing Examiner is being utilized in the hearing. The Chair and members of the Board shall attend the hearing and observe witnesses. Notwithstanding the foregoing, nothing contained herein shall be interpreted as limiting, removing or revoking any of the Board's powers.

(3) When the Hearing Examiner is utilized, the Hearing Examiner shall participate in the hearing and has the power and duty to explain the rules of the procedure, the legal standard, the burden and order of proof, to examine and cross-examine witnesses, and to rule upon offers of proof and receive relevant evidence.

(4) When the Hearing Examiner is utilized, the Hearing Examiner shall prepare a written recommendation which shall include findings of fact and conclusions of law no later than 45 calendar days after the closing of the record of the case before the Board. The Hearing Examiner shall present the written recommendation to the Board at an open meeting which shall be held within 45 days after the original Board hearing. The Board shall consider and deliberate the written recommendation and shall reverse, affirm, in whole or in part, or modify, the Hearing Examiner's written recommendation. The opinion of the Board shall become a final decision of the Board when it is signed by the Chair. At the close of the evidentiary hearing, the Chair of the Board shall announce the date of the open meeting at which time the Board will hear the written recommendation of the Hearing Examiner. During such announcement, the Chair shall also advise that at such open meeting there shall be no participation from the parties or the public and no additional evidence or memoranda or briefs shall be presented, submitted or accepted.

C. Board of Appeals Rules of Procedure. The Rules of Procedure attached hereto as Appendix A shall be incorporated into this subsection and shall govern zoning appeals, as applicable.[1]

[1] Editor's Note: Appendix A is included at the end of this chapter.

D. This section shall govern the Havre de Grace Board of Appeals and all parties and their attorneys in all Board of Appeals cases or proceedings filed on or after the effective date of this section, and, insofar as is practicable, in all cases and proceedings pending before the Board of Appeals on the effective date of this subsection.

§ 25-21 Appeals from Board decisions.

Any party aggrieved by any decision of the Board of Appeals may within 30 days of the date of the Board's decision appeal the decision to the Circuit Court for Harford County and thereafter to the appellate courts of this state for further review. Appeals shall be subject to the provisions of the Maryland Rules of Procedure governing administrative appeals.

§ 25-21.1 Disapproval of application.

If an application is disapproved by the Board, the Board shall not be required to take further action on another application for substantially the same proposal, on the same premises, until after one year from the date of such disapproval. If an appeal to the Board has met all application requirements and the public hearing date is set and duly advertised and properly posted and thereafter the applicant withdraws the appeal, the Board may, in its sole discretion, refuse to act on another application, for substantially the same proposal on the same premises, for one year from the date of such withdrawal.

§ 25-21.2 Violations and penalties.

Any person convicted of committing any unlawful act in violation of any of the provisions of this article shall be guilty of a misdemeanor. If any unlawful act is continuing, then each day during which such violation continues shall be considered a separate offense. In addition to any criminal penalty which may be imposed, all the provisions of this article may be enforced by petition for injunction filed on behalf of the Mayor and City Council of Havre de Grace.