Federalsburg has established provisions where, owing to special
features of a site or other circumstances, implementation of this
chapter or a literal enforcement of provisions within this chapter
would result in unwarranted hardship to an applicant, a Critical Area
variance may be obtained.
A.
In considering an application for a variance, Federalsburg shall
presume that the specific development activity in the Critical Area,
that is subject to the application and for which a variance is required,
does not conform with the general purpose and intent of Natural Resources
Article, Title 8, Subtitle 18, COMAR Title 27, and the requirements
of this chapter.
B.
"Unwarranted hardship" means that, without a variance, an applicant
would be denied reasonable and significant use of the entire parcel
or lot for which the variance is requested.
The provisions for granting such a variance shall include evidence
submitted by the applicant that the following standards are met:
A.
Special conditions or circumstances exist that are peculiar to the
land or structure involved and that a literal enforcement of provisions
and requirements of this chapter would result in unwarranted hardship;
B.
A literal interpretation of the provisions of this chapter will deprive
the applicant of the use of land or a structure permitted to others
in accordance with the provisions of this Critical Area Chapter;
C.
The granting of a variance will not confer upon an applicant any
special privilege that would be denied by this Critical Area Chapter
to other lands or structures within the Critical Area;
D.
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; and
E.
The granting of a variance shall not adversely affect water quality
or adversely impact fish, wildlife or plant habitats within the Critical
Area and the granting of the variance will be in harmony with the
general spirit and intent of the State Critical Area Law and this
chapter.
Applications for a variance will be made in writing to the Board
of Appeals with a copy provided to the Critical Area Commission. Federalsburg
shall follow its established procedures for advertising and notification
of affected landowners.
A.
After hearing an application for a Critical Area Chapter variance,
the Board of Appeals shall make written findings reflecting analysis
of each standard.
B.
If the variance request is based on conditions or circumstances that
are the result of actions by the applicant, Federalsburg shall consider
that fact.
C.
The applicant has the burden of proof and the burden of persuasion
to overcome the presumption of nonconformance established above.
D.
Federalsburg shall notify the Critical Area Commission of its findings
and decision to grant or deny the variance request.
Based on competent and substantial evidence, the Board of Appeals
shall make written findings as to whether the applicant has overcome
the presumption of nonconformance, as established above, and the standards,
as outlined above. 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:
Appeals from decisions concerning the granting or denial of
a variance under these regulations shall be taken in accordance with
all applicable laws and procedures of Federalsburg for variances.
Variance decisions by the Board of Appeals may be appealed to the
Circuit Court in accordance with the Maryland Rules of Procedure.
Appeals may be taken by any person, firm, corporation or governmental
agency aggrieved or adversely affected by any decision made under
this chapter.
The Board of Appeals shall impose conditions on the use or development
of a property which is granted a variance as it may find reasonable
to ensure that the spirit and intent of this chapter is maintained,
including, but not limited to, the following:
A.
Adverse impacts resulting from the granting of the variance shall
be mitigated as recommended by the appropriate local body or approving
authority, but not less than by planting on the site per square foot
of the variance granted at no less than a 3:1 basis.
B.
New or expanded structures or lot coverage shall be located the greatest
possible distance from mean high water, the landward edge of tidal
wetlands, tributary streams, nontidal wetlands, or steep slopes.
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. Federalsburg may not issue a permit
for the activity that was the subject of the application until the
applicable thirty-day appeal period has elapsed.
