Denton City Zoning Code
ARTICLE XIV
Citizen Boards.
§ 128-177 Planning Commission.
A.
Composition and appointment. There is hereby created a Planning Commission (Commission) consisting of five (5) regular members, appointed by the Town Council. All members shall be residents of Denton. One of the regular members may be a councilperson serving in an ex officio capacity concurrent with the regular member's official term. The Town Council may also designate one alternate member of the Commission who may sit on the Commission in the absence of any regular member of the Commission. The term of office of each member is five (5) years or until the member's successor takes office. The Town Council shall fill vacancies for the unexpired term of any member whose seat becomes vacant. After a public hearing before the Town Council, members may be removed for inefficiency, neglect of duty, or malfeasance in office. The Town Council shall file a written statement or reasons for the removal.
B.
Officers. The Commission shall elect at its first meeting in each calendar year a Chairperson and a Vice Chairperson from among the appointed regular members, each to serve for one year or until his or her successor is elected. In the event of a vacancy in either of said offices, a successor shall be elected to serve for the unexpired term of the vacated office. In the absence of the Chairperson, the Vice Chairperson shall serve as Acting Chairperson. The Director of Planning shall serve as Executive Secretary to the Commission.
C.
General powers and duties. The Commission shall have the following powers and duties:
(1)
To review, evaluate, and approve or disapprove plans for subdivisions, and mobile home subdivisions in accordance with this chapter and Chapter 73, Land Subdivision.
(2)
To review and make recommendations to the Town Council regarding:
(a)
Proposed changes or amendments to the Denton Comprehensive Plan.
(b)
Proposed changes or amendments to this chapter.
(c)
Proposed rezoning.
(e)
Proposed acquisition and development of lands for Town open space or recreation purposes.
(f)
Proposed changes in land use or development arising from local, state, or federal programs or policies.
(h)
Proposed annexations and zoning thereupon.
(3)
To review and make recommendations to the Board of Appeals regarding special exception applications.
D.
Meetings.
(1)
Meetings of the Commission shall be held once each month or at the call of the Chairperson and at such other times as the Commission may determine.
(2)
The presence of a majority of the members of the Commission shall constitute a quorum for the conduct of business. In the event of an absence or vacancy of one or more regular members, the determination of a quorum shall include the alternate member, if in attendance.
(3)
An affirmative vote of the majority present shall be required to effect a decision or recommendation of the Commission.
E.
Rules of procedure.
(1)
The meetings of the Commission shall be open to the public, but the Commission may limit active public participation by resolution. When appropriate, the Commission may adjourn to executive session, but only in accordance with the Open Meetings Act, § 10-501 et seq. of the State Government Article of the Annotated Code of Maryland.
(2)
For proceedings before the Commission which require a public hearing, see Article XVII of this chapter.
(3)
At the meetings of the Commission, any interested person shall have the right to submit, in accordance with the established rules, oral or written testimony and comment.
(4)
The Commission may adopt by resolution additional rules of procedure, provided such rules are consistent with this chapter and applicable state enabling legislation. Such rules shall be available to the public.
(5)
The Department of Planning and Codes shall be represented at all meetings of the Commission and shall answer questions and render advice and assistance. Still, the Department of Planning and Codes shall not participate in any decision of the Commission beyond the submission of a staff recommendation for each proposed action. The Commission shall have the authority to consult legal counsel, when necessary, before rendering any decision or making any recommendations.
F.
Records.
(1)
The Commission shall keep minutes of all its proceedings which shall contain the names of the members present, a summary of all testimony, comment, or evidence presented, the exhibits presented, and the decision or recommendation of the Commission. The minutes shall also show the vote of each member upon each question or, if absent or failing to vote, indicating that fact.
(2)
A permanent file of each proceeding, including applications and the minutes, shall be maintained in the office of the Department of Planning and shall be a public record.
§ 128-178 Board of Appeals.
A.
Organization. The Board of Appeals (Board) shall consist of three (3) regular members, all of whom shall be residents of the Town of Denton. Regular members are to be appointed by the Mayor and confirmed by the Council and shall serve without compensation. After a public hearing before the Town Council, members may be removed for inefficiency, neglect of duty, or malfeasance in office. The Town Council shall file a written statement or reasons for the removal. Of the members first appointed, one shall serve for one (1) year, one for two (2) years, and one for three (3) years. After that, members shall be appointed for terms of three (3) years each. Vacancies shall be filled in a like manner and for the remainder of the unexpired term of the predecessor.
B.
Alternate members. The Town Council shall designate one alternate member for the Board who may sit in the absence of any regular member of the Board. When the alternate is absent, the Town Council may designate a temporary alternate.
C.
Officers. The Board shall elect a Chairperson and a Vice Chairperson from among its members, each to serve for one year or until his or her successor is elected. In the event of a vacancy in either of said offices, a successor shall be elected to serve for the unexpired term of the vacated office. In the absence of the Chairperson, the Vice Chairperson shall serve as Acting Chairperson. The Director of Planning shall serve as Executive Secretary to the Board of Appeals.
D.
General powers. The Board shall have the following general powers:
(1)
To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by the Planning Commission, Director of Planning, or other administrative officer in the enforcement of this chapter. Appeals to the Board of Appeals shall be by way of allegation of error. The party noting the appeal shall allege the error by the officer or agency from which the appeal is taken. The party noting the appeal shall have the burden of proof, which shall include the burden of going forward with the evidence and the burden of persuasion, by a preponderance of the evidence, on all issues of fact. The party noting an appeal from a decision of the Planning Commission shall be responsible for the cost of producing the sound recording, video recording, or transcript of the proceeding before the Planning Commission.
(2)
To hear and decide special exceptions to the terms of this chapter upon which such Board is specifically authorized to pass under this chapter.
(3)
To authorize, upon appeal in specific cases, such variance from the specific terms of this chapter as will not be contrary to the public interest, where, owing to special conditions, the enforcement of the provisions of this chapter will result in unwarranted hardship, and injustice, but which will most nearly accomplish the purpose and intent of this chapter.
(4)
To determine, in cases of uncertainty, the classifications as to district of any use not specifically named in this chapter; provided, however, such use shall be in keeping with uses specifically named in the district regulations.
E.
Meetings.
(1)
Meetings of the Board shall be held at the call of the Chairperson and at such other times as the Board may determine.
(2)
Two (2) members of the Board shall constitute a quorum. In the event of an absence or vacancy of one regular member, the determination of a quorum shall include the alternate member if in attendance.
F.
Rules of procedure.
(1)
The meetings of the Board shall be open to the public, but public participation may be limited to periods during which testimony is permitted.
(2)
The Chairperson or, in their absence, the Acting Chairperson may administer oaths and may compel the attendance of witnesses.
(3)
The Board may adopt by resolution additional rules of procedure, provided such rules are consistent with this chapter and with applicable state enabling legislation. Such rules shall be available to the public.
G.
Decisions of the Board.
(1)
An affirmative vote of two (2) members shall be required to affect any decision of the Board.
(2)
A member of the Board who did not attend the public hearing on an application shall not participate in the decision on said application.
(3)
The Board shall deliberate and render its decision in open session within thirty (30) days following the close of the public hearing.
(4)
All decisions by the Board shall be recorded in the minutes and shall include findings of fact based directly on the particular evidence presented to the Board, the conclusions of the Board, and the reasons therefor.
(5)
Each decision shall also include the names of the members of the Board who voted or who were present when a vote was taken and shall indicate the manner in which each member voted.
(6)
A copy of each decision shall be furnished to the applicant(s), the Department of Planning, and any other party to the proceedings without charge.
H.
Records.
(1)
The Board shall keep minutes of its proceedings. The minutes shall contain the exhibits presented at the hearing, a summary of all testimony or evidence presented, and the decision of the Board.
(2)
All applications for hearings and the minutes shall be a public record.
(3)
All costs incurred by the Town in transcribing records of meetings and hearings shall be borne by the appellants. All fees shall be paid to the Town before any record of the case is submitted to the appropriate court.
I.
Applications.
(1)
All applications for hearings shall be made on forms approved by the Board and shall be available from the Director of Planning.
(2)
The applicant shall sign each application(s), such as an owner, tenant, contract purchaser, or optionee of property involved, the protestant(s), or the agent or attorney of any of them.
(3)
Applications, together with all required information and fees, shall be filed with the Director of Planning according to the predetermined meeting schedule, and the application shall be forwarded to the Board to be considered at the next scheduled meeting.
§ 128-179 Board of Appeals - Appeals.
A.
Appeals to the Board may be taken by any person aggrieved or by an officer, department, board, or bureau of the Town affected by any decisions of the Planning Commission, Director of Planning, or other administrative officer. Such an appeal shall be taken within two weeks following the action so appealed by filing with the Director of Planning and with the Board a notice of appeal, specifying the grounds thereof.
B.
An appeal stays all proceedings in furtherance of the action appealed from unless the Director of Planning certifies to the Board, after notice of appeal filed with them, that by reason of that fact in the case, a stay would, in his opinion, cause imminent peril to life and property.
§ 128-180 Board of Appeals - Special exception.
A.
In order to provide for adjustment in the relative location of uses and buildings of the same or of different classifications, to promote the usefulness of this chapter as an adjustment, and to supply the necessary elasticity to its efficient operation, special exceptions are permitted by the terms of this chapter.
B.
The Board shall have the power to approve special exceptions for any of the uses for which this chapter requires obtaining 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.
C.
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 standards listed for the proposed uses. The Board shall, among other things, require that any proposed use and location be:
(1)
In accord with the Town's Comprehensive 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 effects on street traffic and safety with adequate access arrangements to protect streets from undue congestion and hazards.
(4)
Not detrimental to the property values of adjacent development, do not adversely affect the health, safety, and general welfare of residents of the area, and will not adversely affect the area and surrounding property with adverse environmental effects such as undue smoke, odor, noise, improper drainage, or inadequate access.
D.
The Board may impose whatever conditions regarding layout, circulation, and performance it deems necessary to ensure that any proposed development will secure substantially the objectives of this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the special exception is granted, shall be deemed a violation of this chapter. The Board shall consider the recommendations of the Planning Commission prior to rendering a decision. The Planning Commission shall review and comment on all applications for special exceptions prior to review and decision by the Board. The applicant for a special exception shall have the burden of proof on all points material to the application, which shall include the burden of presenting credible evidence as to each material issue and the burden of persuasion on each material issue. The Board of Appeals may disregard evidence, even if uncontroverted by an opposing party if the Board finds such evidence not to be credible.
§ 128-181 Board of Appeals - Variances.
A.
Subject to the provisions of § 128-178D, the Board shall have the power to grant variances of the following types and in accordance with the following standards:
(2)
Standards for granting a variance.
(a)
Strict enforcement of this chapter would produce unnecessary and undue hardship as distinguished from variations sought by applicants for purposes or reasons of convenience, profit, or caprice.
(b)
Such hardship is the result of special conditions and/or circumstances not generally shared by other properties in the same zoning district or vicinity and which are peculiar to the land, structure, or building involved. Such conditions and/or circumstances may include but are not limited to the following: exceptional narrowness or shallowness, or both, or irregular shape or topography of the property; unusual and limiting features of the building; or the effective frustration or prevention of reception of satellite programming due to the presence of a physical object or objects which obscure the line of sight when such object or objects cannot be easily removed.
(c)
Such special conditions or circumstances must not be the result of any action or actions of the applicant.
(d)
Granting of the variance must be in harmony with the general purpose and intent of this chapter and must not be harmful to adjacent property, the character of the neighborhood, or the public welfare.
(e)
Granting the variance shall not allow a use expressly or by implication prohibited in the zoning district involved.
(f)
The condition, situation, or intended use of the property concerned is not of so general or recurring a nature as to make practicable a general amendment to this chapter.
(g)
The variance granted must be the minimum necessary to afford relief.
(h)
In granting a variance, the Board of Appeals may prescribe appropriate conditions in conformity with this chapter. Violation of such conditions, when made a part of the terms under which the variance is granted, shall be deemed a violation of this chapter.
(i)
The applicant for a variance shall have the burden of proof on all points material to the application, which shall include the burden of presenting credible evidence as to each material issue and the burden of persuasion on each material issue. The Board of Appeals may disregard evidence, even if uncontroverted by an opposing party if the Board finds such evidence not to be credible.
§ 128-182 Standards for granting a variance within the Critical Area District.
A.
In addition to the findings in § 128-181 above, the Board may grant a variance in the Critical Area District, provided that:
(1)
Special conditions or circumstances exist that are peculiar to the land or structure within Denton's Critical Area Program, which would result in an unwarranted hardship. For purposes of this section, "unwarranted hardship" means that without a variance, the applicant will be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.
(2)
A literal interpretation of this subtitle or the Denton Critical Area Program and this chapter will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Critical Area.
(3)
The granting of a variance will not confer upon an applicant any special privilege that would be denied by this subtitle or the Denton Critical Area Program to other lands or structures within the Critical Area.
(4)
The variance request is not based upon 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, nor does the request arise from any condition conforming to any neighboring property.
(5)
The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the Critical Area, and the granting of the variance will be in harmony with the general spirit and intent of the Critical Area Law, and the Denton Critical Area Program.
(6)
The application for a variance has been provided to the Critical Area Commission at least two weeks prior to the variance hearing.
(7)
A decision has been provided to the Critical Area Commission, in writing, immediately after the variance approval or denial.
B.
In considering an application for a variance, the Town 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 Town's Critical Area Program. The applicant has the burden of proof and the burden of persuasion to overcome the presumption of nonconformance set forth herein.
C.
The Board shall make written findings reflecting analysis of each standard, including whether the applicant has overcome the presumption set forth in Subsection B. The Board's decision and written findings may be based upon any competent evidence or testimony introduced or presented by the applicant, the Town or other governmental agency, or other person or entity as deemed appropriate by the Board.
D.
No permit may be issued for the activity that was the subject of the variance within the Critical Area District until the applicable thirty-day appeal period has elapsed.
E.
Reasonable accommodations for the needs of disabled citizens. Notwithstanding any other provision of this section, the Board may make reasonable accommodations to avoid discrimination on the basis of a physical disability. Reasonable accommodations for the needs of disabled citizens may be permitted in accordance with the evidentiary requirements set forth in the following subsections.
(1)
An applicant shall have the burden of demonstrating the following:
(a)
The existence of a physical disability.
(b)
Literal enforcement of the provisions of this chapter would result in discrimination by virtue of such disability.
(c)
A reasonable accommodation would reduce or eliminate the discriminatory effect of the provisions of this chapter.
(d)
The accommodation requested will not substantially impair the purpose, intent, or effect of the provisions of this chapter as applied to the property.
(e)
Environmental impacts associated with the accommodation are the minimum necessary to address the needs resulting from the particular disability of the applicant.
(2)
The Board shall determine the nature and scope of any accommodation under this section. It may award different or other relief than requested after giving due regard to the purpose, intent, or effect of the applicable provisions of this chapter. The Board may also consider the size, location, and type of accommodation proposed and whether alternatives exist that accommodate the need with less adverse effect.
(3)
The Board may require, as a condition of approval, that upon termination of the need for accommodation, the property be restored to comply with all applicable provisions of this chapter. Appropriate bonds may be collected or liens placed in order to ensure the Town's ability to restore the property should the applicant fail to do so.
§ 128-183 General restrictions on the Board.
A.
Where in this chapter special exceptions are permitted, or where the Board is authorized to decide appeals or apply certain uses, and where the Board is authorized to approve variances, such approval, decision, or authorization is limited by such conditions as the case may require, including, if necessary, any of the following specifications.
(1)
No outside signs or advertising structures except professional or directional signs.
(2)
Limitations of signs as to size, type, color, location, or illumination.
(3)
Amount, direction, and location of outdoor lighting.
(4)
Amount and location of off-street parking and loading space.
(5)
Cleaning and painting and other aesthetic aspects.
(6)
Gable roof or other conforming structural components.
(7)
Construction and materials.
(8)
Exits, entrances, doors, or windows.
(9)
Paving, shrubbery, landscaping, or ornamental or screening fence, wall, or hedge.
(10)
Time of day or night for operating.
(11)
Storefront facade or design/renovation.
(12)
Major structural changes to the building exterior.
(13)
Prohibition of smoke, dust, gas, noise, or vibration.
B.
Lapse of special exception or variance. After the Board has approved a special exception or granted a variance, the special exception or variance so approved or granted shall lapse after the expiration of two (2) years if no substantial construction or change of use has taken place in accordance with the plans for which such special exception or variance was granted. The provisions of this chapter shall then govern.
C.
If any application or request is disapproved on the merits by the Board, or after the applicant withdraws the public hearing, after that, the Board of Appeals shall not accept an application for substantially the same proposal on the same premises, until after one (1) year from the date of such disapproval or withdrawal.
D.
Appeals from certain zoning decisions. Any person described in Land Use Article § 4.306 may appeal any decision of the Board and any zoning decision of the Town Council to the Circuit Court for Caroline County in the manner and by the method set forth in the Maryland Rules. Nothing herein contained shall change the existing standards for review of any such appeal.
§ 128-184 Administrative variance.
A.
Intent. The purpose of this section is to authorize the delegation of Board of Appeals approval authority to the Planning Commission to apply the standards for variance as specified § 128-181 herein for certain proposed construction activities.
B.
Applicability. This section applies only to new development or redevelopment within one hundred (100) feet of tidal waters, tidal wetlands, and tributary streams on single-family lots of record as of March 1989.
C.
Criteria.
(1)
New development or redevelopment shall minimize the disturbance in the buffer to the least intrusion necessary.
(2)
Development may not impact any Habitat Protection Area (HPA) as defined in Article II, except the buffer.
(3)
Any development in the buffer approved under the provisions of this subsection shall be mitigated as follows:
(a)
The extent of the lot or parcel shoreward of the new development or redevelopment shall be required to remain, or shall be established and maintained, in natural vegetation; and
(b)
Natural vegetation of an area twice the extent of the impervious surface must be created on the property, preferably in the buffer. If on-site planting proves unfeasible, another similar location may be approved by the Planning Commission.
(4)
An applicant who cannot comply with the planting/offset requirements herein may elect to request a variance from the Board as per Subsection A above.
(5)
Any required reforestation mitigation or offset areas shall be designated under a development agreement or other instrument and recorded among the land records of Caroline County.
(6)
The Critical Area Commission shall be notified of an administrative variance application by the Planning Commission two weeks prior to administrative action.