[Added as part of Section 203 of the 1999
Code of Ordinances; amended 7-13-2004 by Ord. No. 2004-03; 10-8-2019 by Ord. No. 2019-04; 12-8-2020 by Ord. No. 2020-05]
A.
The Board of Appeals is hereby established. It shall consist of five members. The terms of office of the members of the Board shall be three years. They shall be appointed by the Mayor, confirmed by the Town Council and removable for cause, upon written charges, and after public hearing. Notwithstanding any other provision of law, including but not limited to Chapter 30 of this Code, each member shall, during their tenure on the Board, maintain their primary residence within the corporate limits of the Town of Myersville. Any member who fails to maintain such residency within the Town shall, upon moving such residence outside of the Town, automatically forfeit and render vacant his or her membership on the Board without the necessity of written charges or public hearing. The Mayor shall appoint a new member to fill the unexpired term of any member who leaves or forfeits his or her membership on the Board of Appeals.
[Added as part of Section 203 of the 1999
Code of Ordinances; amended 10-11-2005]
The Board shall organize and adopt rules in
accordance with the provisions of this Code. Meetings of the Board
shall be held at the call of the Chairman and at other times as determined
by the Board or, in his absence, the Acting Chairman may administer
the oath and compel the attendance of witnesses. All meetings of the
Board shall be open to the public. The Board shall make a transcript
of its proceedings, showing the vote of each member upon each question,
or, if absent or failing to vote, indicating such fact, and shall
keep records of its examinations and other official actions, all of
which shall be immediately filed in the office of the Board and shall
be a public record.
[Added as part of Section 203 of the 1999
Code of Ordinances; amended 10-11-2005; 1-13-2015 by Ord. No. 2014-09]
The Board of Appeals shall have the following powers:
A filing fee shall accompany each application
for a hearing before the Board of Appeals. Such fee shall be established,
from time to time, by the Town Council upon the recommendation of
the Planning Commission. The fee schedule shall be maintained on file
in the office of the Town Clerk.
The Board shall schedule a hearing within 60
days of the filing and acceptance of an application or appeal, shall
give at least 10 days' notice in a newspaper of general circulation
in the Town or the county, of the time and place of such hearing,
to the public and to the parties in interest, and decide the same
within a reasonable time after it is submitted. At the hearing, any
party may appear in person or by agent or attorney. The adjacent property
owners shall be notified and the property shall be posted with a placard,
as provided by the Town, within 10 days of the hearing date.
If the application is disapproved by the Board
of Appeals, thereafter the Board shall take no 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 is perfected and the public hearing date set by the posting
of the property and thereafter the applicant withdraws the appeal,
he shall be precluded from filing another application for substantially
the same proposal on the same premises for six months.
[Amended 4-11-2017 by Ord. No. 2017-04]
Any party adversely affected by a decision of
the Board may appeal to the Circuit Court of Frederick County in accordance
with Maryland state law.
A.
An appeal to the Board may be take by any person aggrieved,
or by any officer, department, board or bureau of the Town affected,
by any decision of the Zoning Administrator. Such appeal shall be
taken within 30 days after the decision by filing with the Zoning
Administrator and with the Board a notice of appeal specifying the
grounds thereof. The Zoning Administrator shall forthwith transmit
to the Board all the papers constituting the records upon which the
action appealed from was taken.
[Amended 4-11-2017 by Ord. No. 2017-04]
B.
An appeal shall stay all proceedings in furtherance
of the action appealed from, unless the Zoning Administrator certifies
to the Board, after notice of appeal shall have been filed with him,
that by reason of facts stated in the certificate a stay would, in
his opinion, cause imminent peril to life or property. In such a case,
proceedings shall not be stayed otherwise than by restraining order,
which may be granted by the Board or by the Circuit Court of Frederick
County, on application after notice to the Zoning Administrator and
on due cause shown.
C.
In exercising its power, the Board may, in conformity
with the provisions of statute and of this chapter, reverse or affirm,
wholly or partly, or may modify the order, requirements, decision,
or determination appeal from, and may make such order, requirement,
decision or determination as ought to be made, and to that end shall
have all powers of the officer from whom the appeal is taken.
A.
Filing of variance. An application may be made to
the Board of Appeals for a variance where it is alleged that the provisions
of this chapter inflict unnecessary hardship upon the applicant. The
application must be on a form provided for that purpose by the Town.
The applicant must provide all the information requested on the form,
together with any other information and data that may be required
to advise the Board on the variance, whether such information is called
for by the official form or not. Unless otherwise specified or extended
by the Board, a variance authorized by it expires if the applicant
fails to obtain a building permit or use certificate within 12 months
from the date of authorization of the variance.
B.
Standards for variances.
(1)
Where there is unnecessary hardship, the Board may
grant a variance in the application of the provision of this chapter,
provided that the following findings are made where relevant in a
given case:
(a)
That there are unique physical circumstances
or conditions, including irregularity, narrowness, or shallowness
of lot size or shape, or exceptional topographical or other physical
conditions peculiar to the particular property, and that the unnecessary
hardship is due to such conditions, and not the circumstances or conditions
generally created by the provisions of this chapter in the neighborhood
or district in which the property is located.
(b)
That because of such physical circumstances
or conditions, there is no possibility that the property can be developed
in strict conformity with the provisions of this chapter and that
the authorization of a variance is therefore necessary to enable the
reasonable use of the property.
(c)
That such unnecessary hardship has not been
created by the applicant.
(d)
That the variance, if authorized, will not alter
the essential character of the neighborhood or district in which the
property is located, nor substantially or permanently impair the appropriate
use or development of adjacent property, nor be detrimental to the
public welfare.
(e)
That the variance, if authorized, will represent
the minimum variance that will afford relief and will represent the
least modification possible of the regulation in issue.
(2)
No grant of a variance shall be authorized unless
the Board specifically finds that the condition or situation of the
specific piece of property or intended use of such property, for which
the variance is sought, is not of so general or recurrent a nature
as to make reasonably practicable the formulation of a general regulation
for such conditions or situation.
C.
Conditions. In granting any variance, the Board may
attach such reasonable conditions and safeguards as it considers necessary
to implement purposes of this chapter.
A.
Filing of special exception; expiration.
(1)
For any use permitted by special exception, a special
exception must be obtained from the Board of Appeals. In addition
to the information required on the building permit application, the
special exception application must show:
(2)
Unless otherwise specified or extended by the Board
of Appeals, a special exception authorized by the Board expires if
the applicant fails to obtain, where required to do so, a building
permit or use certificate within 12 months of the date of the authorization
of the special exception.
B.
Temporary special exceptions.
(1)
A temporary special exception must be obtained from
the Board for any nonconformity which is or will be seasonal or is
or will be in the public interest. The Board may grant a temporary
special exception for a nonconforming use or structure, existing or
new, which is:
(2)
The temporary special exception may be issued for
a period not exceeding one year, and may be renewed for an aggregate
period not exceeding three years. The nonconforming structure or use
must be completely removed upon the expiration of the special exception
without cost to the Town.
C.
Referral to Planning Commission. All applications
for a special exception shall be referred to the Town Planning Commission
for a recommendation.
D.
Conditions. The Board of Appeals, in passing upon
special exception applications, may attach conditions considered necessary
to protect the public welfare and the Myersville Comprehensive Plan,
including conditions which are more restrictive than those established
for other uses in the same zone.
E.
Application of extent-of-use regulations. The lot
area, lot width and yard requirements as set forth in this chapter
must be followed as the minimum by the Board of Appeals. Where no
extent-of-use regulations are set forth for the particular use, the
Board must impose extent-of-use requirements as necessary to protect
the public welfare and the Myersville Comprehensive Plan.
F.
General standards.
(1)
A special exception may be granted when the Board
of Appeals finds from a preponderance of the evidence produced at
the hearing that:
(a)
The proposed use, including its nature, intensity
and location, is in harmony with the intent of the Myersville Comprehensive
Plan and the orderly and appropriate development of the district.
(b)
Adequate water supply, sewage disposal, storm
drainage and fire and police protections are or can be provided for
the use.
(c)
The use of adjacent land and buildings will
not be discouraged and the value of adjacent land and buildings will
not be impaired by the location, nature and height of buildings, walls
and fences.
(d)
The use will have proper location with respect
to existing or future streets giving access to it, and will not create
traffic congestion or cause industrial or commercial traffic to use
residential streets.
(e)
The specific standards following, as set forth
for each particular use for which a special exception may be granted,
have been met.
(2)
The applicant for a special exception shall have the
burden of proof, which shall include the burden of going forward with
the evidence and the burden of persuasion on all questions of fact
which are to be determined by the Board of Appeals.
