Charles County Unincorporated
City Zoning Code
City Zoning Code
ARTICLE XXV
Board of Appeals
§ 297-409 Powers and duties.
A.
The Board of Appeals shall hear and decide on the following:
(1)
Appeals from any final order, decision, requirement or interpretation made by an administrative official in the enforcement of any matter authorized by Article 66b, Annotated Code of Maryland, as amended,[1] as provided in § 297-417.
[1]
Editor's Note: Said article was repealed by Acts 2012, 426, effective 10-1-2012. See now the Land Use Article, Division I, Title 2.
(2)
Applications for special exception uses and enlargements, extensions, modifications or revocations of special exceptions, as provided in § 297-415.
(4)
Application for the extension or enlargement of a nonconforming situation, as provided in § 297-418.
(5)
Any other matter the Board is required to act upon by any other County ordinance adopted pursuant to Article 66b, Annotated Code of Maryland, as amended.
B.
The Board may adopt rules and regulations governing its procedures and operations not inconsistent with the provisions of this chapter.
§ 297-410 Filing fees.
A.
A filing fee will be charged for the Board's processing of any appeal; special exception; enlargement, extension or modification of a special exception use; variance; or extension or enlargement of any nonconforming situation, continuations, reconsiderations or any other decision of the Board.
§ 297-411 Notice of hearing.
A.
Within 60 days of receipt of an application, the Zoning Officer shall send written notice of the time and date of the hearing to the applicant.
B.
Not less than 14 days prior to the hearing, the applicant or his agent shall mail a notice by certified mail, return receipt requested, to each property owner that is within a two-hundred-foot radius of the property line that is the subject of the hearing, of the time, date, place and nature of the public hearing. The applicable notification list shall be provided by the Planning Division to the applicants. The applicant shall file, with the Zoning Officer, an affidavit of mailing of such notice as an exhibit in the public hearing prior to 4:30 p.m. of the day of the hearing. Filing the affidavit of mailing shall constitute substantial compliance with the notice requirement unless cause to the contrary is shown.
[Amended 11-18-2014 by Bill No. 2014-09]
C.
At least 14 days prior to a hearing, the applicant shall erect a sign(s) provided by the Zoning Officer on the subject property. Such sign(s) will be erected within 10 feet of the boundary line of such land which abuts every public road, and if the property does not abut a public road, the sign shall be posted at the nearest public road which provides access to the subject site. The sign shall be affixed to a rigid board and be maintained by the applicant until a decision is issued by the Board. It is a violation of this chapter for anyone to remove or tamper with such sign during the period it is required to be posted. The applicant shall file an affidavit, with a picture of the posted sign, certifying the posting of said sign with the Zoning Officer prior to 4:30 p.m. of the day of the hearing.
D.
In the case of special exceptions, notice of the time and place of the public hearing, together with a summary of the proposed regulation, restriction or boundary, shall be published in at least one newspaper of general circulation in the jurisdiction once each week for two successive weeks, with the first such publication of notice appearing at least 15 days prior to the hearing.
§ 297-412 Public hearing required.
A.
Before making a final decision on any appeal or application, the Board shall hold a hearing on the matter to be considered.
B.
The hearing shall be open to the public, and all people aggrieved by the outcome of the appeal or application shall be given an opportunity to present testimony and evidence and to cross-examine persons who testify.
C.
The Board may place reasonable and equitable limitations on the presentation of testimony and evidence, arguments and the cross-examination of witnesses consistent with the rules and regulations adopted under § 297-409 so that all relevant issues may be heard and decided without undue delay.
D.
The Board may continue the hearing until a subsequent meeting or date and time certain and may keep the record of the hearing open to receive additional evidence or information. The record shall be closed prior to when the Board issues its written order.
E.
Any interested person shall have the right to submit, in accordance with the established rules, oral or written testimony at the public hearing. A record of the case file, including a complete record of the testimony at the hearing, the votes of all members of the Board, all properly marked exhibits presented at the hearing and the application, will be kept by the Zoning Officer.
§ 297-413 Written decision.
A.
In all cases a written decision shall be issued by the Board and shall be provided to the applicant, all parties of interest who appeared or testified during the hearing and all other persons who make a request for a copy.
B.
The decision of the Board approving, denying or dismissing any application shall be issued within 60 days from the close of the last public hearing, unless such time is extended by an official resolution adopted by the Board.
§ 297-414 Revisory powers.
A.
Within 15 days after the Board issues its written decision, any party in interest may file a motion for reconsideration of the decision or a provision or condition contained in a decision with the Zoning Officer.
B.
The party filing such a motion shall transmit copies to all parties to the proceedings and shall file an affidavit of mailing with the Zoning Officer.
[Amended 12-7-1993 by Ord. No. 93-100; 11-21-1994 by Ord. No. 94-100]
C.
The matter will be placed on the Board's agenda within 30 days after the Zoning Officer has transmitted the motion to the Board.
D.
The Board, on an affirmative vote of three members, may decide to reconsider any issue(s) raised in the motion for reconsideration.
E.
If the Board votes to reconsider, the hearing shall be held within 30 days after such vote.
§ 297-415 Special exceptions.
A.
The implementation and enforcement of this chapter is based upon the division of the County into zones within which the use of land and buildings and the bulk and location of buildings and structures in relation to the land are substantially uniform. It is recognized, however, that there are certain uses which, because of their unique characteristics, cannot be properly classified in a particular zone without consideration in each case of the impact of those uses upon neighboring land and of the public need for the particular use, at the particular location proposed.
B.
This section establishes procedures and minimum standards for the consideration and authorization of special exception uses.
C.
The granting of a special exception does not exempt the applicant from obtaining a zoning permit or complying with all other requirements of this chapter or any applicable County, state or federal law.
D.
Any property owner or other person with an enforceable legal interest in a property may file an application to use such land for one or more of the special exceptions provided in the zone in which the land is located.
E.
An application for a special exception shall be filed with the Zoning Officer on a form prescribed by the Zoning Officer. The application shall be accompanied by such plans and/or data as necessary for the Board to make a reasoned decision and shall include a statement, in writing, by the applicant and adequate evidence showing that the proposed use will conform to the applicable standards. The application shall be forwarded from the Zoning Officer to the Board of Appeals for review and decision. The Board of Appeals shall conduct a public hearing and issue a written decision on the application which contains findings of fact and conclusions of law to support the Board's decision.
F.
Zoning Officer's reports. The Zoning Officer shall provide a written report to the Board of Appeals at least 14 days prior to the scheduled public hearing. The report shall contain preliminary findings as to the extent that the application conforms to the requirements of this chapter. The failure to provide a report or to meet the time limitations herein shall not affect the authority of the Board to hold the public hearing at its scheduled date and time.
G.
Public hearing. The Board shall require notice pursuant to the requirements of § 297-411 and shall conduct the public hearing and render a decision on the special exception which adheres to the provisions of this article.
H.
The Board of Appeals shall grant a special exception when, from a preponderance of the evidence of record, the proposed use:
(1)
Will not be detrimental to or endanger the public health, safety and general welfare.
(2)
Is a permissible special exception in the zone.
(3)
Will not be detrimental to the use, peaceful enjoyment, economic value or development of surrounding properties or the general neighborhood.
(5)
Will cause no objectionable impact from traffic, noise, type of physical activity, fumes, odors, dust or glare.
(6)
Will provide adequate utilities, water, sewer or septic system, access roads, storm drainage and/or other necessary public facilities and improvements. If a use requires an adequate public facilities review by the Planning Commission, such review shall be made a condition of the granting of the special exception by the Board.
(7)
Will provide adequate ingress and egress and be so designed as to minimize traffic congestion in the public streets.
(8)
Is in accordance with the objectives of the Charles County Comprehensive Plan.
(9)
Conforms to the applicable regulations of the zone in which it is located and to the special requirements established for the specific use.
I.
Conditions and guaranties. In addition to the specific standards contained in Article XIII, guidelines and criteria described in this chapter and other relevant considerations, the Board may impose performance guaranties and conditions, such as but not limited to the following:
(1)
The number of persons living, working or visiting on the site.
(2)
Traffic conditions, including facilities for pedestrians; parking facilities; the access of vehicles to roads; peak periods of traffic; and proposed roads, but only if construction of such roads will commence within the reasonably foreseeable future.
(3)
The orderly growth of the neighborhood and community and the fiscal impact of the requested special exception on the County.
(4)
The effect of odors, dust, gas, smoke, fumes, vibration, glare and noise upon the use of surrounding properties.
(5)
The need for additional on-site security, fire protection, waste disposal or such other facilities not normally provided by the County.
(6)
Limitation of the hours of operation related to the impact of the requested special exception on surrounding uses, such as schools, houses of worship, theaters, hospitals and similar places of public use.
(7)
The purposes set forth in this chapter, the Comprehensive Plan and related studies for land use, roads, parks, schools, sewers, water, population, recreation and the like.
(8)
The environmental impact, the effect on sensitive natural features and opportunities for recreation and open space.
(9)
The requirements of the Critical Area Zone.
(10)
The preservation of cultural and historical landmarks.
J.
Effect of denial of a special exception.
(1)
No application for a special exception use which has been denied wholly or in part by the Board shall be accepted by the Zoning Officer for a period of one year from the date of said order of denial.
(2)
Notwithstanding Subsection J(1), the Board of Appeals may, at any time, consider a new application affecting the same property as an application previously denied. A new application is one that differs in some substantial way from the one previously considered, as determined by the Zoning Officer.
K.
Enlargements, extensions or modifications. The Board may permit the enlargement, extension or modification of an existing special exception use pursuant to the procedural requirements of this article related to notice, conduct of the public hearing and the Board's decision. The initiation of such an action and standards for the Board's decision shall conform to the requirements of this section for the granting of an application for a special exception.
L.
Renewals.
(1)
The Board has the authority to grant a special exception for a specific period of time. A special exception may be renewed from time to time by the Board at the request of an applicant or a successor in interest if the special exception runs with the land, provided that all requirements of the original special exception are satisfied and:
(a)
All notice requirements of this section are met;
(b)
The Board holds a public hearing as required by this section; and
(c)
The Board issues a written decision containing findings of fact and conclusions of law to support the decision on whether the special exception is renewed pursuant to the requirements of this section for the granting of an application for a special exception.
(2)
The Board may grant a renewal for a longer or shorter period of time than was established in the original decision granting the special exception.
M.
Complaints. Complaints received concerning the operation of any special exception shall be directed to the Zoning Officer, who shall take appropriate action as provided by law. All complaints must be in writing. Anonymous complaints shall not be accepted.
N.
Revocation of special exception. See Article I for enforcement provisions. In addition to any provisions contained elsewhere in this chapter, special exceptions may be revoked as follows:
(1)
Failure to comply with conditions. Whenever the Board shall find, in case of any special exception heretofore or hereafter granted pursuant to the provisions of this article, that any of the terms, conditions or restrictions upon which such special exception was granted are not being complied with, the Board is authorized, after due notice to all parties concerned and granting full opportunity for a public hearing, to revoke the special exception. The Board is authorized to request and obtain investigations and reports as to compliance from such County or state agencies or administrative officers as may be appropriate. This action may be in addition to any action taken by the Zoning Officer under the provisions of Article XXVI.
O.
Procedures for revocation.
(1)
The Zoning Officer shall transmit a written report to the Board which indicates which terms or conditions of the special exception are not being complied with by the special exception holder.
(2)
The Board, by an affirmative vote of at least three members, shall issue an order to the special exception holder, along with the report of the Zoning Officer, to show cause why such special exception should not be revoked.
(3)
The show-cause order shall specify the date, time and place of the hearing. The date of the hearing will be a minimum of 30 days after the date of the order to allow the special exception holder reasonable time to prepare for the hearing.
(4)
Copies of the order shall also be sent by certified mail, return receipt requested, to the owner of the subject property, if not the special exception holder, the Zoning Officer, persons who have submitted complaints concerning the special exception and, at the discretion of the Board, to those persons who received notice of the original application for the special exception, as well as to other interested persons, organizations or governmental agencies.
(5)
The show-cause hearing shall be limited to the consideration of the issues specified in the show-cause order.
(6)
Within 60 days after the close of record of the hearing, the Board shall issue a written determination containing findings of fact and conclusions of law regarding the issues presented. The Board, by an affirmative vote of at least three members, may reaffirm or revoke the special exception or amend, add to, delete or modify the existing terms or conditions of the special exception. If necessary, the Board may adopt a resolution extending the time in which to issue its decision.
(7)
A copy of the decision shall be transmitted to the special exception holder and all parties to the hearing and persons who received copies of the show-cause order.
P.
Abandonment and failure to initiate. Whenever a special exception is not in use or does not operate for a period of three years, or whenever an approved special exception is not initiated and commenced within three years after the date of approval, the approved special exception shall be automatically null and void without any further action by the Board being required.
Q.
Burden of proof. The applicant for a special exception shall have the burden of proof on all questions of fact which are required to be determined by the Board or are required to meet any of the provisions of this section.
§ 297-416 Variances.
A.
An application for a variance shall be submitted to the Board of Appeals by filing a copy of the application with the Zoning Officer. Applications shall be handled in the same manner as applications for special exceptions in conformity with the provisions of this article.
[Amended 6-19-2012 by Bill No. 2011-12]
B.
The Board is authorized to grant variances from the strict application of these regulations when, by reason of exceptional narrowness, shallowness or shape of specific parcels of property or by reason of exceptional topographical conditions or other extraordinary situations or conditions of specific parcels of property, the strict application of the regulations of this chapter would result in peculiar and unusual practical difficulties to, or exceptional or undue hardship upon, the owner of said property. However, the Board of Appeals shall not grant variances that will substantially impair the intent, purpose and integrity of this chapter. This provision shall not be construed to permit the Board, under the guise of a variance, to change the permitted use of land.
C.
In addition to those general findings required in Subsection B above, variance requests shall not be granted unless the following criteria are met:
(1)
That special conditions or circumstances exist that are unique to the subject property or structure and that a strict enforcement of the provisions of this chapter would result in unwarranted hardship which is not generally shared by owners of property in the same land use classification.
(2)
That strict enforcement of the provisions of this chapter would deprive the property owner of rights commonly shared by other owners of property in the area.
(3)
That the granting of a variance will not confer upon an applicant any special privilege that would be denied to other owners of like property and/or structures within the same zone/land use classification.
(4)
That the variance request is not based upon conditions or circumstances which are self-created or self-imposed.
(5)
That greater profitability or lack of knowledge of the restrictions shall not be considered as sufficient justification for a variance.
(6)
That the proposed variance is consistent with the Charles County Comprehensive Plan.
D.
In granting variances, the Board may impose such reasonable conditions as will ensure that the use of the property to which the variance applies will be compatible with the surrounding properties.
E.
A variance may be issued for an indefinite duration or for a specified duration.
F.
The nature of the variance and any conditions attached to it shall be specified in the Board's decision. All conditions are enforceable in the same manner as any other applicable requirement of this chapter. The granting of the variance does not constitute issuance of a zoning permit.
G.
The granting of a variance does not exempt the applicant from complying with all other requirements of this chapter or any applicable County, state or federal law.
H.
Reapplication. Whenever the Board disapproves an application for a variance on any basis other than the failure of the applicant to submit a complete application, no reapplication will be accepted by the Zoning Officer or considered by the Board for a period of one year from the date of the Board's disapproval.
I.
The Board may, at any time, consider a new application affecting the same property as an application previously denied if the new application is substantially similar to the application previously denied. A new application is one that differs in some substantial way from the one previously considered as determined by the Zoning Officer.
K.
In addition to the above requirements, the following additional provisions shall apply in the Critical Area Zone:
[Amended 10-25-1994 by Ord. No. 94-93; 6-20-2005 by Bill No. 2005-12; 6-19-2012 by Bill No. 2011-12]
(1)
Requests for variance in the Critical Area Zones shall not be heard unless the Critical Area Commission has received a copy of the variance request at least two weeks prior to the scheduled public hearing.
(2)
A variance will not be granted by the Board unless findings are made which demonstrate that:
(a)
Special conditions or circumstances exist that are peculiar to the land or structure which constitute or result in an unwarranted hardship as defined by this chapter;
(b)
Literal interpretation of the Critical Area Program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the critical area;
(c)
The granting of a variance will not confer upon an applicant any special privilege that would be denied other lands or structures;
(d)
The variance request is not based upon conditions or circumstances which are the result of actions by the applicant, nor does the request arise from any condition conforming, on any neighboring property; and
(e)
The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the critical area zones, and the granting of the variance will be consistent with the spirit and intent of the County's Critical Area Program and associated ordinances as well as state laws and regulations adopted under Title 8, Subtitle 18, of the Natural Resources Article of the Annotated Code of Maryland and COMAR 27.01.11.
(f)
The Board shall further find that the granting of the variance will be in harmony with the general purpose and intent of this chapter, shall not result in a use not permitted in the zone in which the property subject to variance is located and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(g)
The Board shall find that the reasons set forth in the application justify the granting of the variance and that the variance is the minimum variance that will make possible the reasonable use of land, buildings or structures. In making this determination for variance requests in a Critical Area Zone, the Board shall consider the following as tantamount to a minimum variance:
[1]
That the granting of a variance to the yard and/or Buffer requirements results in new structures or lot coverage being located as far back from mean high water, tidal wetlands or tributary streams in the Critical Area as is feasible; and
[2]
That the applicant takes steps to mitigate impacts, insofar as possible, including:
[a]
Reforestation on the site to offset disturbed forested or developed woodlands on at least an equal area basis;
[b]
Afforestation of areas of the site so that at least 15% of the gross site is forested; and
[c]
Implementation of any mitigation measures which relate to habitat protection areas as delineated in the Charles County Critical Area Program and as required by state and/or County agencies.
(3)
Presumption of nonconformance.
(a)
In considering an application for variance, the Board of Appeals 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 the County's Critical Area Program.
(b)
If the variance request is based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance has been filed, the County shall consider that fact.
(c)
An applicant has both the burden of production and the burden of persuasion to overcome the presumption of nonconformance established in Subsection K above.
(4)
In granting the variance, the Board may prescribe such conditions and safeguards as it deems appropriate which comply with the intent of this chapter and the Charles County Critical Area Program. Violations of such conditions and safeguards, when made part of the terms under which the variance is granted, shall be deemed a violation of this chapter and enforceable under Article I.
(5)
Planning staff shall provide a copy of the written decision to the Critical Area Commission staff within 10 working days after the written decision regarding a variance application is issued.
(6)
No permits shall be issued for a development activity subject to a variance until the applicable thirty-day appeal period has elapsed.
§ 297-417 Appeals.
A.
An appeal from any final order or decision of an administrative official may be taken to the Board by an aggrieved applicant. An appeal is taken by filing a written notice of appeal with the Zoning Officer and the Board specifying the grounds therefor. The date and time of filing shall be entered on the notice by the Zoning Officer.
B.
An appeal must be filed within 30 days after the date of the decision or order appealed from.
C.
Whenever an appeal is filed, the Zoning Officer shall transmit to the Board the entire record relating to the action appealed from. All Board hearings or appeals are de novo proceedings.
D.
An appeal stays all construction or activities that are the subject of a duly issued stop-work order. An appeal stays all other actions by the Zoning Officer seeking enforcement or compliance with the order or decision appealed from, unless the Zoning Officer certifies to the Board that a stay would cause imminent peril to life or property. In that case, proceedings shall not be stayed except by order of the Board or a court, issued on application of the party seeking the stay, for due cause shown.
E.
The Board may reverse or affirm, in whole or in part, or may modify the order, requirement, decision or determination appealed from and may make any order, requirement, decision or determination that, in its opinion, ought to be made in the case before it. To this end, the Board shall have all the powers of the administrative official from whom the appeal was taken.
F.
When an appeal is taken to the Board in accordance with this section, the Zoning Officer shall have the initial burden of presenting to the Board sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall have the burden of persuasion on all questions of fact which are to be determined by the Board.
§ 297-418 Expansion or extension of nonconforming uses.
§ 297-419 Appeals to County Commissioners.
[Added 10-23-1998 by Ord. No. 98-85]
A.
An appeal from a final order or decision of the Board of Appeals for a special exception for surface mining, an asphalt plant, concrete plant or sand and gravel washing, crushing or screening may be taken to the County Commissioners by an aggrieved party as described in Article 66b, § 4.08(a), of the Annotated Code of Maryland.[1] An appeal is taken by filing a written notice of appeal with the County Commissioners specifying the grounds therefor. The date and time of filing shall be entered on the notice by the County Clerk.
B.
An appeal must be filed within 30 days after the date of the decision or order appealed from. The term shall be calculated from the date the order is executed by signature of all participating members and the Clerk to the Board of Appeals.
C.
Whenever an appeal is filed, the Clerk to the Board shall transmit to the County Commissioners the entire record relating to the action appealed from. All Commissioner hearings on appeals are "on the record" proceedings; however, relevant evidence and testimony may be allowed in cases where, in the judgment of the Commissioners, it represents information that could not have been available to the Board at the time of the Board's public hearing and the testimony is necessary for the proper disposition of the matter.
D.
An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Officer certifies to the Commissioners that a stay would cause imminent peril to life or property. In that case, proceedings shall not be stayed except by order of the Commissioners or a court, issued on application of the party seeking the stay, for due cause shown.
E.
The Commissioners may reverse or affirm, in whole or in part, may modify or remand, the order, requirement, decision or determination appealed from and may make any order, requirement, decision or determination that, in its opinion, ought to be made in the case before it. To this end, the Commissioners shall have all the powers of the Board of Appeals.
F.
The County Commissioners will notify all parties to the proceeding before the Board of Appeals that an appeal has been filed by mailing notice that an appeal has been filed within three days of receiving the notice of appeal. Any party before the Board may participate as a party in an appeal by filing a written notice of intent to participate in the appeal with the County Commissioners within 15 days from the date of the notice that an appeal has been filed. Other aggrieved parties may file motions as intervenors in the case and present argument. The burden of presenting evidence is borne by the appellant, who shall have the burden of persuasion on all questions which are to be determined by the Commissioners.
G.
The Commissioners shall adopt rules and procedures for considering an appeal of a special exception under this section, including the time for filing legal memoranda, presenting oral argument and issuing a written decision and order deciding the appeal.