Delmar City Zoning Code
ARTICLE XXXI
Boards of Adjustments and Zoning Appeals
§ 10-202 Requirement to notify Commission.
When a person or developer wishes to make an application to the Board regarding changes to land use or any other regulation controlled by this chapter, it is the duty of that person to notify and meet with the Commission before meeting with the appropriate Board, thus giving the Commission an opportunity to help resolve the issue directly, allowing the Commission to make an informed recommendation to the Board, and helping to keep the Commission informed about the nature and direction of change.
§ 10-203 Maryland Board of Zoning Appeals.
A.
Nature of the Board of Zoning Appeals in Maryland.
(1)
Organization.
(a)
There shall be a Town of Delmar Board of Zoning Appeals, consisting of five members who shall be appointed by the Commissioners of Delmar, together with their alternates, for three-year terms. One member shall be named by such a Board as Chairman. A vacancy shall be filled by the Commissioners of Delmar for the unexpired term of any member whose term becomes vacant. The members of the Board of Zoning Appeals and their alternates shall be removable for cause by the appointing authorities upon written charges and public hearings.
[Amended at time of adoption of Code (see Ch. 15, Art. II; Ch. 305, Art. I)]
(b)
The Board of Zoning Appeals shall make a request to the Town Manager and Mayor to appoint such employees as may be authorized from time to time by the appointing authorities. The employees of the Commission shall also be the employees of the Board of Zoning appeals and the employees shall receive such compensation as may be fixed by the appointing authorities.
(2)
Board of Zoning Appeals meetings.
(a)
The Board of Zoning Appeals, hereinafter referred to as "the Board" shall adopt rules necessary for carrying out the provisions of this chapter. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. Three members shall constitute a quorum. The Chairman or, in his absence, the Acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes 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 record of its examination and other official action, all of which shall be filed immediately in the office of the Board, and shall be a public record open to inspection during the hours of normal operation. Copies of the minutes shall be made available to interested parties at a cost.
(b)
All action or decisions of the Board shall be taken by resolution, in which at least three members must concur. Each resolution shall contain a statement of the grounds and findings forming the basis of such action or decision, and the full text of said resolution and record of members' votes shall be incorporated in the minutes of the said Board. No appeal requesting the same relief in regard to the same property shall be received or heard by the Board for a period of one year following the date of the said resolution, except that this limitation shall not affect the right of the Board to grant a rehearing as provided in the Board's Rules of Procedure.
B.
Duties, power, and responsibilities of the Board.
(1)
Administration errors. The Board shall have the power to hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative office in the enforcement of Division 1, Title 4 (§ 4-101 et seq.), of the Land Use Article of the Annotated Code of Maryland or any ordinance adopted pursuant thereto.
[Amended at time of adoption of Code (see Ch. 15, Art. II; Ch. 305, Art. I)]
(2)
Temporary uses. The Board may authorize the temporary use of a building or premises in any district for a purpose or use that does not conform to the regulations prescribed by this chapter for the district in which it is located, provided that such use is a temporary nature and does not involve the erection of substantial buildings. Such certificate shall be granted in the form of a temporary and revocable permit for a period of not more than 12 months, subject to such conditions as will safeguard the public health, safety, convenience and general welfare.
(3)
Special exceptions.
(a)
The Board shall have the power to hear and decide applications for conditional uses or for decisions upon other special questions on which the Board is authorized by this chapter to act. All such applications shall be deemed to be for special exceptions authorized by Annotated Code of Maryland, Land Use Article, § 4-305.
[Amended at time of adoption of Code (see Ch. 15, Art. II; Ch. 305, Art. I)]
(b)
A special exception may be granted by the Board in accordance with § 10-205 of this chapter.
[Amended at time of adoption of Code (see Ch. 15, Art. II; Ch. 305, Art. I)]
(c)
In authorizing any use or exception, the Board may impose such requirements and conditions as to location, construction, equipment, operation and maintenance, in addition to those expressly stipulated in this chapter for the particular use or exception, as the Board may deem necessary to prevent or reduce hazardous or congested traffic conditions, odor, dust, smoke, gas, noise, or other similar nuisances. The Board may also impose other requirements as may be necessary in its opinion to protect adjacent properties and neighborhoods and prevent conditions which may become obnoxious or offensive.
(4)
The Board may require from the owner, lessees, or tenants of the property for which the conditional use or exception is granted, such evidence or written agreement as it may deem necessary to ensure that the conditions stipulated by the Board are being and will be complied with. Any such written agreement may be required by the Board to be recorded among the Land Records of the county at the expense of the applicant.
C.
Variances.
(1)
The Board shall have the power upon appeal in specific cases, filed as hereinbefore provided, to authorize a variance from the terms of this chapter as will relieve hardship so that the spirit and purpose of this chapter shall be observed and substantial justice done.
(2)
Cases in which a variance may be granted to relieve a hardship:
(a)
Where, by reason of the exceptional narrowness, shallowness, or unusual shape of a specific piece of property, or by reason of exceptional topographic conditions or other extraordinary situation or condition of such piece of property, a variance is necessary.
(b)
Where the literal enforcement of the requirements of this chapter would involve practical difficulty or would cause unnecessary hardship.
(c)
That such a variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same zoning district and in the same vicinity.
(d)
That the authorizing of such variance will not be of substantial detriment to adjacent property and will not materially impair the purpose of this chapter or the public interest.
(3)
In authorizing a variance, the Board may attach thereto such conditions regarding the location, character, and other features of the proposed structure or use as it may deem necessary in the interest of the furtherance of the purpose of this chapter and public interest.
(4)
In authorizing a variance with attached conditions, the Board may require such evidence and guaranty or bond as it may deem necessary that the condition attached are being and will be complied with.
D.
Burden of proof. The applicant for a special exception or variance shall have the burden of proof, which shall include the presentation of evidence and the burden of persuasion on all questions of facts which are to by determined by the Board.
§ 10-204 Delaware Board of Adjustments. [1]
The powers and functions of the Board of Adjustments are the same as those described for the Board of Zoning Appeals on the Maryland side.
A.
Nature of the Board of Adjustments.
(1)
The Board of Adjustments shall be comprised of the Mayor, the Director of Public Works, (Chief Engineer of the Public Works Department) and the Town Solicitor. This Board receives its power from Title 22, Chapter 3, Section 321 of the Delaware Code, and shall be established as described in the Code. Vacancies shall be filled in the manner provided in Section 322 of the aforementioned Title and Chapter.[2]
[2]
Editor's Note: See 22 Del. C. §§ 321 and 322, respectively.
(2)
The Board of Adjustments shall adopt rules for the conduct of matters before it. Meetings of the Board shall be held at the call of the Chairman and at such times as the Board may determine. Such Chairman or, in his absence, the Acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes 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.
(3)
All actions or decisions of the Board shall be taken by resolution, in which at least two members must concur. Each resolution shall contain a statement of the grounds and findings forming the basis of such action or decision, and the full text of said resolution and record of members' votes shall be incorporated in the minutes of said Board. No appeal requesting the same relief in regard to the same property shall be received or heard by the Board for a period of one year following the date of said resolution, except that this limitation shall not affect the right of the Board to grant a rehearing as provided in the Board's Rules of Procedure.
B.
Duties, power and responsibility of the Board.
(1)
Hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or any ordinance adopted pursuant hereto;
(2)
Hear and decide special exceptions to the terms of the ordinance upon which the Board if required to pass under such ordinance;
(3)
Authorize, in specific cases, such variance from this Chapter 10, Planing and Zoning Regulations, the Code of the Town of Delmar or regulations that will not be contrary to public interest, where, owing, to special conditions or exceptional situations, a literal interpretation of this chapter, the Code or regulations will result in unnecessary hardship or exceptional practical difficulties to the owner of property so that the spirit of this chapter, the Code, or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of this chapter, the Code, regulations or Zoning Map.
C.
In exercising the above powers, the Board may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify, the order, requirement, or determination appealed from and may make such order, requirement, or decision or determination as ought to be made and, to that end, shall have all the powers of the officer from whom the appeal was taken.
[1]
Editor's Note: The number of members of the Board of Adjustments was reduced to three members 2-22-2010 by Ord. No. 157.