To provide for the competent interpretation
and the full and equitable achievement of the purposes of this chapter,
there is hereby established a Board of Appeals.
The Board shall consist of five members. The
terms of office of the members shall be three years. Members shall
be appointed by the Mayor, confirmed by the Town Council, and removable
for cause upon written charges and after public hearing. The Mayor
shall designate two alternate members for the Board who may be empowered
to sit on the Board in the absence of any member of the Board.
A.
Procedures. The Board shall elect a Chairman from
its membership, shall appoint a Secretary, and shall prescribe rules
in accordance with the provisions of this chapter and any applicable
laws of Maryland for the conduct of its affairs.
B.
Meetings. Meetings of the Board shall be held at the
call of the Chairman and at such other times as the Board may determine.
The Chairman, or in his absence, the Acting Chairman, may administer
oaths and compel the attendance of witnesses. All meeting of the Board
shall be open to the public. Three members present shall constitute
a quorum.
C.
The Board shall keep minutes of its proceedings, showing
the vote of each member upon each question, or, if a member is absent
or abstains from voting, 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 Zoning Administrator and
shall be a public record. All actions or decisions of the Board shall
be taken by resolution in which three members, present during the
proceedings, must concur. Each resolution shall contain or be appended
to a statement of grounds and any findings forming the basis of such
action or decision.
Appeals to the Board may be taken by any person aggrieved by, or by any officer, department, board or bureau of the Town affected by, any decision of the Zoning Administrator. Nothing in this section should be construed as contravening the provisions set forth in Article IX, § 300-62, designating the Zoning Administrator as an agent of the Town government and placing him under the direction of the Mayor and Town Council (see § 300-75 for the appeal process).
Upon appeal from a decision by the Zoning Administrator,
the Board shall decide any question:
A.
Where it is alleged there is error in any order, requirement,
decision or determination, including any order requiring an alleged
violation to stop, cease, and desist, made by the Zoning Administrator
in the enforcement of this chapter; or
B.
Involving the interpretation of any provisions of
this chapter, including determination of the exact location of any
district boundary if there is uncertainty with respect thereto.
A.
Upon appeal from a decision by the Zoning Administrator
and accompanied by a request for a variance, the Board shall have
the power to vary or adapt the strict application of any of the requirements
of this chapter in the case of exceptionally irregular, narrow, shallow
or steep lots, or other exceptional physical conditions whereby such
strict application would result in practical difficulty and unnecessary
hardship depriving the owner of the reasonable use of the land or
building involved, but in no other case.
B.
In general, the power to authorize a variance from
the terms of this chapter shall be sparingly exercised and only under
peculiar and exceptional circumstances.
C.
No variance in the strict application of the provisions
of this chapter shall be granted by the Board unless the Board finds
that the following requirements and standards are satisfied.
D.
The appellant must show that the variance will not
be contrary to the public interest and that practical difficulty and
unnecessary hardship will result if it is not granted. In particular,
the appellant shall establish and substantiate his appeal to show
that the variance is in conformance with the requirements and standards
listed below:
(1)
That the granting of the variance shall be in harmony
with the general purpose and intent of this chapter, and shall not
be injurious to the neighborhood or otherwise detrimental to the public
welfare.
(2)
That the granting of the variance will not permit
the establishment within a district of any use which is not permitted
in that district.
(3)
That special circumstances or conditions, fully described
in the findings, apply to the land or buildings for which the variance
is sought, which circumstances or conditions are such that strict
application of the provisions of this chapter would deprive the applicant
of the reasonable use of such land or building or create unnecessary
hardship. If the hardship is shared generally by land or buildings
in the neighborhood, relief shall be properly obtained only by legislative
action or by court review of any attack on the validity of this chapter.
(4)
That the granting of the variance is necessary for
the reasonable use of the land or building and that the variance as
granted by the Board is the minimum variance that will accomplish
this purpose. It is not sufficient proof of hardship to show that
greater profit would result if the variance were awarded. Furthermore,
hardship complained of cannot be self-created; it cannot be claimed
by one who purchases with or without the knowledge of restrictions;
it must result from the application of this chapter; it must be suffered
directly by the property in question; and evidence of variance granted
under similar circumstances shall not be considered.
E.
The Board may prescribe any safeguard that it deems
appropriate or necessary to secure substantially the objectives of
the regulations or provisions to which the variance applies. Any conditions
set by the Board under the provisions hereof shall be conditions precedent,
and the variance granted by this section shall not become effective
until such conditions are carried out in full. In the event that the
conditions are not fully carried out, and/or kept and maintained as
required, no action can be taken on the property based on the variance
granted, and the nonconforming status of the property, if any, shall
be forfeited, and thereafter the property shall be treated as any
other property.
F.
Persons with disabilities: After having received a
complete written application, the Board may grant a variance allowing
modifications to specific requirements of this chapter that the applicant
proves to the satisfaction of the Board are necessary to provide a
"reasonable accommodation" under the Americans With Disabilities Act
and/or the Federal Fair Housing Act and/or applicable state law, as
amended, to serve persons whom the applicant proves have "disabilities"
as defined in and protected by such laws.
A.
Upon appeal from the decision of the Zoning Administrator, that a person is or would be in violation of this chapter, by changing one nonconforming use to another nonconforming use, the Board shall have the power to approve the change. The Board shall not entertain a request to change a nonconforming use designated by the letters "SE" in Article IV,§ 300-16, Table of Use Regulations, to a use which is designated by the letter "N" in § 300-16 thereof.
B.
The Board shall grant the change, only if the applicant shows to the satisfaction of the Board that the proposed new use will be less objectionable in external effects than the existing nonconforming use in regards to the various criteria set forth in Subsection C hereof.
C.
Before granting the requested change, the Board must
be satisfied that the proposed new use will be less objectionable
with regard to the following specific criteria:
D.
The criteria set forth in Subsection C hereof are designated minimal requirements only. A showing that each of these specific requirements has been met does not entitle an applicant to approval by the Board for changing one nonconforming use to another nonconforming use.
E.
In granting the proposed change, the Board may impose
whatever conditions it deems necessary and appropriate to make the
continued new nonconforming use as compatible as possible with the
rest of the neighborhood in which it is located, including alterations
to the exterior of any building, changes in any traffic flow, or parking,
upon the property, the construction of screening, fencing, planting
of shrubbery, and any other such conditions. Any conditions set by
the Board under the provisions hereof shall be conditions precedent,
and the change granted under this section shall not become effective
until such conditions are carried out. In the event that the conditions
are not fully carried out and/or kept and maintained, and the change
has been made, the nonconforming status of the property, if any, shall
be forfeited, and thereafter the property shall be treated as any
other property.
A.
The Board shall have the power to approve special
exceptions for any of the uses for which this chapter requires obtaining
of such exceptions and for no other use or purpose. The Board shall
not grant a special exception except in conformance with the conditions
and standards of this chapter.
B.
In granting a special exception, the Board shall make
findings of fact consistent with the provisions of this chapter. The
Board shall grant a special exception only if it finds adequate evidence
that any proposed use submitted for a special exception will meet
all of the following general requirements as well as any specific
requirements and standards listed for the proposed use. The Board
shall, among other things, require that any proposed use and location
be:
(1)
In accord with the Town's Comprehensive Development
Plan and consistent with the spirit, purposes, and intent of this
chapter.
(2)
Suitable for the property in question, and designed
to be in harmony with and appropriate in appearance with the existing
or intended character of the general vicinity.
(3)
Suitable in terms of effect on street traffic, present
and future transportation patterns, and safety with adequate access
arrangements to protect streets from undue congestion and hazard.
(4)
Population changes.
(5)
Availability of public facilities.
(6)
Recommendation of the Planning Commission.
C.
In granting the proposed special exception, the Board
may impose whatever conditions it regards as necessary and appropriate
to make the special exception as compatible as possible with the rest
of the neighborhood in which it is located, and to insure that any
proposed developments will secure substantially the objectives of
this chapter, including alterations to the exterior of any building,
changes in traffic flow, or parking, upon the property, the construction
of screening, fencing, planting of shrubbery, and any other such conditions.
Any conditions set by the Board, under the provisions hereof, shall
be conditions precedent, and the special exception granted hereunder
shall not become effective until such conditions are fully carried
out and/or kept and maintained, and any such special exception shall
be void and any development carried out pursuant thereto shall be
illegal insofar as it is not in strict compliance with the provisions
of this chapter.
A.
General rules.
(1)
Any appeal shall be made by filing the same with the
Zoning Administrator within 90 days after the date of the Zoning Administrator's
decision.
(2)
All appeals and applications made to the Board shall
be in writing on standard forms prescribed by the Board.
(3)
All appeals and applications shall list names and
addresses of all adjoining owners including those across the streets
from the subject property.
(4)
All appeals and applications shall refer to the specific
provisions of the ordinance involved.
B.
Appeals concerning the interpretation of any provisions
of this chapter shall exactly set forth the interpretation that is
claimed.
C.
Appeals for variance from the strict application of this chapter shall include a copy of the zoning permit application denied by the Zoning Administrator, if any, together with a statement with any supporting data regarding the applicable requirements in §§ 300-72 and 300-73 or any other applicable requirements.
D.
Applications for special exceptions shall include
a zoning permit application with all information required therein
and a statement with any supporting data regarding the merits of the
proposed use at the proposed location and how the proposal complies
with the general and specific requirements of this chapter.
Upon transmittal to the Board of an application
filed with the Zoning Administrator for a special exception, variance
or appeal from alleged error of the Zoning Administrator, the Board
shall fix a reasonable time (not less than 15 days nor more than 45
days from the transmittal date) for a public hearing thereon and give
notice as follows:
A.
Publish a notice containing the name of the applicant
or appellant; the date, time, and place fixed for the hearing; and
a brief statement of the special exception sought by the applicant,
or the error alleged by the appellant, or of the variance or other
question which is subject to appeal, in at least one newspaper of
general circulation within the Town, once each week for two successive
weeks, with the first such publication of notice appearing at least
14 days prior to the hearing.
B.
Post, in a conspicuous place on the property involved, a notice of pending action containing the same information as in Subsection A above, such posting to take place at least 15 days prior to the date fixed for the public hearing.
C.
Give the written notice of the time and place of such
hearing sent by certified mail to the applicant or appellant and to
the owners of record of property contiguous to or opposite the property
affected.
A.
The Zoning Administrator shall submit to the Board
an advisory opinion from the Planning Commission on any application
for a special exception, and the Board shall consider such advisory
opinion prior to making a decision on an application.
B.
The Board may also request an advisory opinion from
the Planning Commission on any application for a variance, interpretation,
appeal or any other matter upon which the Board is or may be required
to act.
A.
Decisions by the Board shall be rendered within 15
working days of the hearing on said variance, application, exception,
interpretation or appeal, unless a later date is mutually agreed upon
by the Board and applicant.
B.
In exercising its powers concerning interpretation
appeals, the Board may, in conformity with law and the provisions
of this chapter, reverse or affirm, wholly or in part, or may modify
the order, requirement, decision or determination appealed from and
make such order, requirement, decision, or determination as ought
to be made, and to that end shall have all the powers of the officer
from whom the appeal is taken.
C.
In making its decisions pursuant to the authority
conferred by this chapter, the Board shall study the specific property
involved, as well as the neighborhood, and consider all testimony
for and against the issuance of the permit. The application for a
permit shall not be approved where the Board finds the proposed building,
addition, extension of building or use, sign, use or change of use
would adversely affect the public health, safety, security, morals,
or general welfare, or would result in dangerous traffic conditions,
or would jeopardize the lives or property of people living in the
neighborhood. In deciding such matters, the Board may give consideration,
among other things, to the following:
(1)
The orderly growth of the community, as expressed
in the Comprehensive Development Plan or otherwise.
(2)
The number of people residing or working in the immediate
area concerned.
(3)
Traffic conditions and facilities.
(4)
The effect of such use upon the peaceful enjoyment
of their homes and property by surrounding property owners and residents.
(5)
The conservation of property values.
(6)
The effect of odors, dust, gases, smoke, fumes, vibrations,
glare and noise upon the surrounding property values.
(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 gatherings may be held, such as schools, churches and the like.
In any case where the Board of Appeals has set
conditions precedent upon the granting of a variance, special exception,
permission to change one nonconforming use to another nonconforming
use, permission for the continuation of a nonconforming use, such
conditions precedent shall be fully fulfilled and executed prior to
the grant of the Board of Appeals becoming effective. In the event
that such conditions precedent set by the Board are not carried in
full, the grant, permission, special exception, or other action taken
by the Board shall not be effective, and the property or structure
shall be treated as if the Board's action had never been taken. In
the event that the conditions precedent are not carried out within
a period of six months from the date of grant, the Board shall have
the authority, through the Town's Attorney and Zoning Administrator,
to enforce the Town's Zoning Ordinance as against the structure or
property as if the Board had never taken action.
A decision of the Board permitting the erection
or alteration of a building shall be valid for a period of one year,
unless a zoning permit for such erection or alteration is obtained
within said period and the erection or alteration proceeds to completion
in accordance with the terms of the decision. No decision of the Board
permitting further uses of a building or land shall be valid for a
period longer than one year, unless such use is established within
said period; except that, where such use is dependent upon the erection
or alteration of a building, such order shall continue in force and
effect if a zoning permit for such erection or alteration is obtained
within said period, and such erection or alteration proceeds to completion
in accordance with the terms of the decision.
If an application is disapproved, thereafter
the Board shall not receive or act upon the same application or another
application for substantially the same proposal on the same premises
until after 12 months from the date of said disapproval.
Any person or persons, jointly or severally,
aggrieved by any decision of the Board, or any taxpayer of the Town
or any officer, department, board or bureau of the Town may appeal
the same to the Circuit Court for Garrett County.
If any special exception granted by the Board
under the provisions of this article is substantially abandoned, or
in any case, if the use represented by such a special exception is
discontinued for a period of more than one year, the special exception
granted by the Board under the provisions of this article shall become
null and void, and thereafter the property shall revert to its former
zoning status. Thereafter, said special exception shall not be reinstated,
nor the use thereunder resumed, unless a new special exception is
granted by the Board under the provisions of this article.
If any variance, change from one nonconforming
use to another nonconforming use, continuation of a nonconforming
use or special exception granted by the Board under the provisions
of this article is granted subject to conditions precedent, the conditions
precedent must be carried out in full in accordance with the terms
hereof, and must thereafter be kept and maintained for as long as
the variance, change from one nonconforming use to another nonconforming
use, continuation of a nonconforming use or special exception is in
effect. In the event that any such condition precedent is not kept
or maintained, is allowed to lapse, or fall into disrepair, the variance,
change from one nonconforming use to another nonconforming use, continuation
of a nonconforming use or special exception granted by the Board under
the provisions of this article shall become null and void, and thereafter
the property shall revert to its former zoning status. Thereafter,
the said variance, change from one nonconforming use to another nonconforming
use, continuation of a nonconforming use or special exception shall
not be reinstated, nor the use thereunder resumed, unless a new special
exception is granted by the Board under the provisions of this article.
