City of Havre de Grace, MD
Harford County
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Table of Contents
Table of Contents
[Adopted 4-21-2003 by Ord. No. 837]
[1]
Editor’s Note: Former Art. III was redesignated as Art. IV 3-17-2014 by Ord. No. 953.
The Board of Appeals of Havre de Grace is hereby created. The number of members of said Board shall be five. Their term of office, succession, removal, filling of vacancies, alternate membership, and their powers shall be as provided in § 4.07 of Article 66B of the Annotated Code of Maryland.
A. 
The Board shall have the power to hear and decide appeals and rule on requests as provided under provisions of City ordinances in accordance with § 4.07 of Article 66B of the Annotated Code of Maryland.
B. 
In exercising the above-mentioned power, the Board may reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from, and may make such order, requirement, decision or determination as should be made.
C. 
The Board is empowered to recommend to the Mayor and City Council for adoption such rules and regulations as it deems necessary to facilitate the conduct of its hearings and the issuance of its decisions or testimony pertaining to its hearings.
A. 
Upon the filing of an application to the Board for any type of relief, or upon any remand of the case by the Circuit Court which requires a new hearing, and upon payment of all required fees, the Board shall take the following action in advance of the initial hearing thereon:
[Amended 6-5-2006 by Ord. No. 875]
(1) 
The Board shall set a reasonable date and time for the hearing to begin.
(2) 
Notice of the said hearing shall be advertised at least once in a newspaper having local circulation prior to the date on which the hearing is set to begin; all costs of advertisement shall be borne by the applicant.
(3) 
Property which is the subject of an application or appeal, if any, shall be posted conspicuously by a zoning notice in a form approved by the Mayor and City Council, at least 30 days before the date the hearing is set to begin.
(4) 
Notification of a hearing shall be made by certified mail to the applicant, and to owners of all properties that are contiguous to the property with which the hearing is concerned. The names and addresses of the owners of these contiguous properties shall be as specified in the assessment records of the Maryland Department of Assessments and Taxation. Such notice shall be postmarked at least 25 days prior to the initial hearing. Cost of certified mail notices shall be borne by the applicant.
(5) 
The term “contiguous,” as used herein, includes:
(a) 
All properties that are immediately next to and bordering on any portion of the boundary of the subject property; and
(b) 
Those properties that are separated from the immediate boundary of the subject property only by:
[1] 
A street, lane, alley or roadway of any type;
[2] 
City-owned parkland or open space; or
[3] 
Open space owned or controlled by a homeowners' association.
(6) 
For each hearing, a copy of the agenda shall be mailed to each member of the Board of Appeals, and shall be postmarked at least seven days prior to the date the hearing is to begin. Nothing contained herein may be construed to authorize members of the Board of Appeals to discuss the subject of any hearing with or among with each other, or with any other person(s), in advance of the hearing.
(7) 
All notices required by this section shall contain the identity of the applicant, the subject property, the requested relief, and the time and place the hearing is to begin.
B. 
The following procedures shall be used by the Board in conducting hearings:
(1) 
All hearings of the Board shall be open to the public. At the hearing, any party may appear and be heard in person or by representative.
(2) 
The Chairperson or, in the Chairperson's absence, the Acting Chairperson may administer oaths and request the attendance of witnesses.
(3) 
For assistance in reaching decisions, the Board may request testimony at its hearing for purposes of securing technical aid or factual evidence from City commissions, departments or agencies.
(4) 
The Board shall keep records of all of its official actions, all of which shall be filed with the Department of Economic Development and Planning and shall be public record.
(5) 
Postponement of hearings shall be at the discretion of the Chairperson of the Board in cases of extreme hardship or upon good cause shown. The Board may, upon its own initiative, postpone a scheduled hearing at any time. Assessment of cost for advertisement of rescheduled hearings shall be in the discretion of the Board.
(6) 
The Board may continue a hearing to another time or date once such hearing has been started; however, the Board shall announce the date and hour of continuance of such hearing while in session.
(7) 
The Board shall have the authority to adopt and publish additional rules with the approval of the Mayor and City Council which may be necessary to exercise the Board’s function.
[Amended 10-5-2009 by Ord. No. 908]
C. 
Hearing Examiner.
[Added 4-17-2006 by Ord. No. 874]
(1) 
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.
[Amended 10-5-2009 by Ord. No. 908]
(2) 
General powers and duties of the Board and Hearing Examiner.
(a) 
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 Economic Development and Planning ("the Department") and shall consider, among other things, the following factors when deciding whether to utilize the Hearing Examiner for a particular zoning case:
[Amended 10-5-2009 by Ord. No. 908]
[1] 
The complexity of the zoning or land use case and requested approval;
[2] 
The amount of opposition, if any, to the zoning request;
[3] 
The novelty of the zoning request and whether it is an issue of first impression; and
[4] 
The size and location of the property and/or development that is the subject matter of the zoning request.
(b) 
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.
(c) 
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-exam witnesses, and to rule upon offers of proof and receive relevant evidence.
(d) 
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.
(3) 
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.
(4) 
This subsection 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 subsection, and, insofar as is practicable, in all cases and proceedings pending before the Board of Appeals on the effective date of this subsection.
A. 
In the event the Board receives a request for approval of a conditional use or special exception under the terms of the City Zoning Ordinance,[1] the Board shall:
(1) 
Give consideration to the specific property as well as the neighborhood.
(2) 
Hold a hearing thereon as provided herein and consider all testimony and data submitted.
[1]
Editor's Note: See Ch. 205, Zoning.
B. 
The Board shall grant the request, with such conditions as the Board deems reasonable if the applicant demonstrates to the Board that the proposed building, structure, addition, extension of building or use, use or change of use would not adversely affect the public health, safety, security, morals, or general welfare, result in dangerous traffic conditions, or jeopardize the lives or property of people living in the neighborhood. In deciding such matters and imposing such conditions, the Board shall consider, among the other relevant factors, the following:
(1) 
The number of people residing or working in the immediate area concerned.
(2) 
The orderly growth of Havre de Grace.
(3) 
Traffic conditions and facilities, including adequate off-street parking, sidewalks, and safety zones.
(4) 
The effect of such use upon the peaceful enjoyment of people in their homes.
(5) 
The protection of surrounding property, and the conservation of property values.
(6) 
The effect of odors, dust, gas, smoke, fumes, vibrations, glare and noise upon the use and value of surrounding properties.
(7) 
The most appropriate use of land and structure.
(8) 
Decision of the courts.
(9) 
The purpose of these regulations as set forth herein.
(10) 
Type and kind of structures in the vicinity where public gathering may be held, such as schools, churches, and the like.
(11) 
Facilities for sewer, water, trash and garbage collection and disposal and the availability of such sources.
(12) 
Fire and explosives safety.
(13) 
Environmental contamination.
(14) 
The most appropriate use of the land.
(15) 
The need for the requested use.
(16) 
Preservation of cultural and historic landmarks.
(17) 
Separation from other structures and uses.
(18) 
Population change.
(19) 
Availability of public facilities.
(20) 
Present and future transportation systems.
(21) 
Compatibility with existing and proposed development.
(22) 
Relationship to the adopted Comprehensive Plan.
C. 
Special exception and conditional use approvals shall expire:
(1) 
If an expiration date is stated in the approval, then the approval shall expire on the stated date if no building permit has been issued.
(2) 
If an expiration date is not stated in the approval, then the approval shall expire one year after the date of approval if no building permit has been issued.
(3) 
If a building permit is issued prior to the expiration date provided in Subsection C (1) and (2) above, and the building permit expires after the expiration date provided in Subsection C (1) and (2) above without the issuance of a use and occupancy permit, then the approval shall expire at the time the building permit expires.
(4) 
If a use and occupancy permit is issued prior to the expiration date as provided in Subsection C(1), (2) and (3) above, then the approval may continue indefinitely under the terms of the permit.
A. 
In the event the Board receives a request for approval of a variance from any of the terms of an ordinance contained in this Code or for the substitution or extension of a nonconforming use as provided in the City Zoning Ordinance,[1] the Board shall:
(1) 
Give consideration to the specific property concerned, if any, as well as the neighborhood.
(2) 
Hold a hearing thereon as provided herein and consider all testimony and data submitted.
[1]
Editor's Note: See Ch. 205, Zoning.
B. 
The Board shall not grant a request for a variance unless the Board finds:
(1) 
That literal enforcement of the ordinance would result in practical difficulty or unreasonable hardship; and
(2) 
The grant of the relief requested would not do substantial injury to the public health, safety and general welfare.
C. 
After making the findings specified above, the Board may grant the relief requested if the Board determines that the benefits accruing to the applicant would outweigh the injury, if any, to the public health, safety and general welfare and if the Board determines that all other prerequisites for granting such variance have been complied with.
Appeals shall be taken within 30 days after the decision appealed from by filing with the Director of Economic Development and Planning a notice of appeal specifying the grounds for appeal. The Director of Economic Development and Planning shall forthwith transmit copies of all the papers constituting the record of the action appealed from to the Board and to the authority whose decision is appealed to the Board.
The Board shall render a decision within a reasonable time. Any party aggrieved by a decision of the Board of Appeals may appeal to the Circuit Court of Harford County in a manner set forth in the applicable sections of the Annotated Code of Maryland, as amended.
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.
Any person convicted of committing any unlawful act as provided in 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.