Gaithersburg City Zoning Code

(A)

Permissions for accessory uses.

(1)

Uses that are not explicitly listed as by-right within a comprehensive use table within this chapter and not otherwise prohibited may only be allowed on a given lot if they are classified as being customarily associated with and subordinate to the established uses and/or buildings on the lot per the provisions of section 24-2.2, Rules of interpretation.

(2)

Accessory uses that are addressed with use-specific standards shall be further regulated by any applicable standards within this article 5, Use-Specific Standards.

(B)

Prohibited uses. Uses that are prohibited in a zone shall not be considered an accessory use regardless of if they are customarily associated with and subordinate to the principal use.

(C)

Nonconforming accessory uses. Nonconforming accessory uses shall be subject to the provisions of section 24-10.4, Nonconforming uses.

(D)

Locations restricted. All accessory uses must be located on the same lot as the associated principal use.

(Ord. No. O-5-24, 7-15-24)

(A)

Application. A request to approve an accessory dwelling unit shall be subject to a minor amendment application process pursuant to section 24-12.6(J). A request to approve an accessory dwelling unit shall not require approval of a new preliminary or final site development plan for the entire property pursuant to section 24-12.6, Site development plans.

(B)

Exemption from maximum allowed residential units. Accessory dwelling units shall not be counted towards the maximum allowed number of units approved pursuant to a conceptual site plan, sketch plan, schematic development plan, or preliminary or final site development plan.

(C)

Number restricted. Where accessory dwelling units are allowed, not more than one accessory dwelling unit shall be allowed on a lot, parcel, or tract of land associated with a single-family residential dwelling.

(D)

Required permits. New construction or alterations of an existing structure to accommodate an accessory dwelling unit, requires the issuance of a building permit, pursuant to section 24-12.13, Building permits.

(E)

Applicable standards. Accessory dwelling units may only be allowed when the following requirements are met:

(1)

The applicable district or zone allows accessory dwelling units pursuant to table 24-3.1-1, Residential Zoning Districts Comprehensive Principal Use Permissions Table; per table 24-3.10-1, Non-Residential Zoning Districts Comprehensive Principal Use Permissions Table; or per table 24-4.1-1, Floating Zoning Districts Comprehensive Principal Use Permissions Table;

(2)

If the lot, parcel, or tract is located within a local historic district so designated by the city historic district commission, and the lot, parcel, or tract or a building or structure thereon is considered contributing, then approval of a historic area work permit pursuant to section 24-9.4, Historic area work permits, from the historic district commission shall be required;

(3)

If the lot, parcel, or tract is located within a local historic district so designated by the city historic district commission, and the lot, parcel, or tract and all buildings and structures thereon are considered non-contributing, then approval of a historic area work permit (pursuant to section 24-9.4, Historic area work permits) from staff shall be required;

(4)

Accessory dwelling units that are integral or attached to the primary structure shall not exceed forty-nine (49) percent of the gross floor area of the primary structure;

(5)

Accessory dwelling units that are detached from the primary structure shall not exceed eight hundred (800) square feet in size or, with planning commission approval as a site development plan, no more than one thousand two hundred (1,200) square feet;

(6)

Accessory dwelling units built with a foundation as a new addition onto the primary dwelling unit shall be measured for both lot coverage pursuant to section 24-2.3(M) and impervious area coverage pursuant to section 24-2.3(K).

(7)

A detached accessory dwelling unit shall not count towards the maximum permitted lot coverage of the district in which it is located or FAR calculations within the CD zone; however, the accessory dwelling unit shall count toward maximum impervious area coverage pursuant to section 24-2.3(K), if applicable;

(8)

Accessory dwelling units shall not be required to provide off-street parking except as modified below:

(a)

One off-street parking space in addition to the required off-street parking for the primary structure shall be required if located in an area subject to a city parking permit program, unless a waiver is granted pursuant to section 24-7.6 and subject to the following considerations:

(i)

The cost to construct off-street parking spaces;

(ii)

Whether sufficient curb area exists along the front line of the property to accommodate on-street parking;

(iii)

The increase in impervious surface due to the creation of new off-street parking and the relation to any applicable stormwater plans; and

(iv)

Variability due to the size of the lot, parcel, or tract on which the accessory dwelling unit or primary dwelling unit is located.

(9)

Accessory dwelling units that are detached from the primary structure shall provide a minimum setback in accordance with section 24-6.4(B)(2) except as modified below:

(a)

Where an accessory dwelling unit is provided above a detached garage, both the garage and accessory dwelling unit shall provide the minimum setbacks for a detached garage or reflect the approved, existing garage setbacks;

(b)

Where a previously approved site development plan establishes a setback for an accessory dwelling unit that is less than the minimum setback required by this section, the setback established by the approved site development plan shall apply;

(c)

The planning commission may reduce the required setback for an accessory dwelling unit as part of a site development plan.

(10)

Accessory dwelling units that are detached from the primary structure shall not be permitted in the front yard; however, for lots with multiple frontages on a street, accessory dwelling units may be permitted in any side yard that is not coincident with the front of the building, as established in section 24-2.3(F);

(11)

Accessory dwelling units that are detached from or attached to the primary structure shall not exceed the height of the primary structure on the lot, except as modified below:

(a)

An accessory dwelling unit constructed above a detached garage on a lot with a one-story principal structure may extend one additional story above the height of the principal structure and shall not exceed the maximum building height permitted in the applicable zone.

(12)

An integral or attached accessory dwelling unit must have a separate entrance from the primary building;

(13)

The accessory dwelling unit shall not be used as a short-term rental as defined;

(14)

An accessory dwelling unit may only be used for a home-based business if permission is received from the property owner and all other applicable provisions of this chapter, including section 24-5.5, Home-based business, are met.

(F)

Subdivision of lots with accessory dwelling units. A lot with a detached accessory dwelling unit shall not be subdivided, including through a condominium regime's lot lines, in a manner that causes the detached accessory dwelling unit to become the primary structure on the lot unless all applicable standards for subdivisions and all applicable dimensional standards (including, but not limited to, setback requirements) are met.

(Ord. No. O-5-24, 7-15-24; Ord. No. O-06-26, 5-4-26)

(A)

Requirements. A bed and breakfast use may be established in any single-family detached dwelling units in any zoning district, subject to the following requirements:

(1)

The minimum area of the subject lot or parcel must be the greater of:

(a)

Nine thousand (9,000) square feet; or

(b)

The minimum lot size required by the applicable zone.

(2)

A bed and breakfast use may only be established following approval of a special exception, subject to approval by the board of appeals pursuant to the procedures and requirements contained in section 24-12.7, Special exceptions, relating to special exceptions. Provided, however, that where no exterior building modifications are proposed and only minor external site modifications are requested, the city manager or designee may waive the requirements for filing of a site plan and/or exterior elevation drawings. All applicable building and fire code requirements shall apply.

(3)

A guest must not remain in a bed and breakfast lodging for more than fourteen (14) days within a thirty-day period. To preclude adverse neighborhood impact, the board of appeals may limit the number of guests who may be accommodated at any one time or the number of visits in any one-month period.

(4)

The owner of the premises must maintain a register of all guests, listing the guests' names, dates of arrival and departure, room number and number of occupants per room. If requested, this register must be made available to appropriate city officials.

(5)

Breakfast is the only meal that may be served to a guest, and it must not be served to any other nonresident of the premises. Hors d'oeuvres are permitted for social gatherings. Food service shall, where applicable, be subject to health regulations and inspection. No separate cooking areas or appliances shall be maintained other than in the main kitchen.

(6)

Off-street parking must be provided in accordance with the requirements of article 7, Off-Street Parking and Loading, or on-street parking maybe allowed by the board of appeals upon finding that:

(a)

Such on-street parking will not have an adverse impact on neighboring residents; and/or

(b)

The creation of required off-street parking would be detrimental to the historic character of the residential building, its environmental appurtenances, or the historic district.

(B)

Signage standards. To preserve the residential character of a bed and breakfast, the following regulations apply to a sign installed on a property with a bed and breakfast use, and modify the provisions of article 8, Signage Standards:

(1)

Bed and breakfast uses may display only one non-illuminated permanent building sign at the premises.

(2)

Such a sign must not exceed three (3) square feet in size.

(3)

The board of appeals may approve a sign larger than three (3) square feet in size.

(4)

Limited indirect lighting is allowed but must be approved by the board of appeals.

(5)

Window signs are not allowed.

(6)

Notwithstanding other provisions of article 8, such a sign must obtain a permit, pursuant to section 24-8.6, Sign permits.

(Ord. No. O-5-24, 7-15-24)

Signage standards. Signage proposed at family day care uses must meet the signage standards applicable to a home-based business, pursuant to section 24-5.5, Home-based business.

(Ord. No. O-5-24, 7-15-24)

(A)

Purpose.

(1)

The purpose of this section is to allow home based businesses in enumerated zones as a permitted use or special exception use, dependent upon the intensity and impact of such businesses and to ensure compatibility with adjoining uses and the neighborhood in which they are located.

(2)

It is intended that these uses:

(a)

Be confined to the interior of any dwelling, dwelling unit, or accessory structure;

(b)

Be conducted by resident(s) of the dwelling or dwelling unit;

(c)

Be incidental and subordinate to the primary residential use of the premises;

(d)

Be conducted without changing the characteristics of the neighborhood, or the residential appearance or condition of the structure in which they are located; and

(e)

Be of limited scope and intensity in terms of interior area occupied by the business, the volume and frequency of visitors, traffic generated and parking demands.

(3)

Home based businesses are not intended to be conducted in such a manner or scope, either by the number of workers, volume of business or visitors, interior building modifications, installation of equipment and fixtures, amount of stock in trade or parking demands, as to become a commercial use or enterprise normally found in or better accommodated in a commercial zoning district.

(4)

This section is not intended to prevent a common ownership community's ability to enforce the community's covenants, by-laws, and rules.

(5)

This section recognizes a dual regulatory process with respect to a home-based business and the owner or operator of such business is separately subject to the standards, requirements, and restrictions of this section and the covenants, by-laws, and rules of the applicable common ownership community.

(B)

Standards and requirements. No home-based business shall be permitted to operate unless such operation complies with the following requirements:

(1)

Full time remote working from home for an external organization is not considered a home-based business.

(2)

Occupants of an accessory dwelling unit may not operate a home-based business without the property's residential owner's written permission.

(3)

The home-based business is clearly subordinate to the primary residential use of the dwelling or dwelling unit or property within which it is located.

(4)

The home-based business does not change the residential character or appearance of the dwelling, dwelling unit, property, or neighborhood within which it is located. No alterations to the exterior of the premises, other than allowed by this section or required by city ordinance or regulation, will be permitted.

(5)

The business use conducted on site, with the exception of allowed parking and signage, shall be conducted entirely within the confines of the interior walls of the dwelling, dwelling unit, or accessory structure. Provided, however, components of the business may be operated off-site, but not in any other dwelling or dwelling unit controlled by the owner or operator of the home-based business.

(6)

The person conducting the business must use the home as their primary residence.

(7)

More than one home-based business may exist within the same dwelling, dwelling unit, or accessory structure so long as the cumulative scope and impact of all such businesses does not exceed the standards and limits for a single minor impact business, as specified in subsection (C), below.

(8)

The home-based business shall not occupy more than one-third (⅓) of the gross floor area of all structures and accessory structures on the lot.

(9)

Parking for business purposes shall be allowed as follows:

(a)

Between the hours of 8:00 a.m. and 4:00 p.m. unrestricted;

(b)

Between the hours of 4:00 p.m. and 8:00 a.m. parking for business purposes must be off-street;

(c)

Where applicable, the off-street parking requirements of article 7, Off-Street Parking and Loading, shall apply. Where a special exception is required for any home-based business, the board of appeals may promulgate conditions and establish such parking requirements different from these standards as may be necessary to accommodate the business and prevent inharmonious impacts upon adjacent properties and roadways.

(10)

The home-based business may sell and store product samples and/or inventory, so long as:

(a)

The items are incidental to the home-based business;

(b)

Where sold and/or stored on site, they are located completely within the confines of the dwelling, dwelling unit, or accessory structure. No product samples or inventory may be displayed, stored, or sold in any open yard area;

(c)

The area devoted to the display and storage of samples and/or inventory shall be included in the allowable gross floor area calculation. No portion of the dwelling or dwelling unit devoted to residential purposes may be used to store samples or inventory; and

(d)

The business may not store, maintain, or use hazardous, toxic, or combustible materials which require a fire department or other governmental agency permit or approval for use in the business.

(11)

The home-based business may not use any equipment, facilities, or process, or conduct any activity which creates noise, odor, electrical interference, vibration, fumes or glare detectable at levels beyond those normally incidental to the operation of household appliances.

(12)

Deliveries to a home-based business must be from common, commercial delivery services or by local merchants that ordinarily deliver to residential areas. Deliveries are not allowed by a dedicated truck or interstate common carrier greater than fourteen thousand (14,000) pounds or class 3 which is normally used to deliver inventory to commercial businesses.

(13)

A home-based business shall not commence operation until a license has been issued by the city.

(14)

The home-based business must be operated in compliance with the definition and purpose of such use.

(15)

Cannabis-related businesses and short-term rentals are not allowed as home-based businesses.

(16)

The rental of outdoor facilities on private residential lots for other's use such as renting yards for dog play areas and swimming pools or barbeque areas for parties is prohibited and not considered a home-based business.

(C)

Classifications of home-based businesses. Home-based businesses shall fall within one of the three (3) following categories, and shall be subject to the requirements set forth below and other applicable requirements:

(1)

No impact home-based business. Operating limitations:

(a)

No non-resident employees are allowed; and

(b)

There is no discernible adverse impact upon adjacent properties or the neighborhood.

(c)

The operator of a no impact business shall register with the city manager or their designee upon forms provided and provide any additional information or documentation as may be reasonably requested.

(2)

Minor impact home-based business. Operating limitations:

(a)

Not more than one non-resident employee is permitted; and

(b)

Not more than twenty (20) visits shall be allowed per week where a "visit" is defined as a stop at the business premises by one automobile transporting one or more clients, customers, or business associates; A visit does not include the operator of a business, member of their family, or the business employee; and

(c)

There is no discernible adverse impact upon adjacent properties or the neighborhood.

(d)

The operator of a minor impact business shall register with the city manager or their designee upon forms provided and provide any additional information or documentation as may be reasonably requested. The operator shall pay a fee as shall be established by resolution of the city council.

(3)

Material impact home-based business. Any home-based business not qualifying under the limitations applicable to either a no impact or minor impact home-based business shall be a special exception use and shall require approval by the board of appeals under the provisions of section 24-12.7, Special exceptions. The board of appeals may establish conditions upon its approval in addition to those requirements established in subsection (B), above, to ensure that the home-based business does not have an adverse impact on the surrounding properties or the neighborhood.

(D)

Renewal, inspection, and revocation.

(1)

Registration approved for the conduct of a no impact or minor impact home-based business shall be valid for a period of three (3) years from the date of approval. Registration shall be renewed triennially; at which time the city manager or designee shall update any information relative to changes in circumstances and use of the home-based business and evaluate the registrant's current compliance.

(2)

The board of appeals may require periodic reviews of material impact home-based business special exceptions to evaluate compliance by the special exception holder with the terms and conditions of the board's approval, and the necessity to modify or impose additional conditions to ensure compliance and compatibility with adjacent properties and the neighborhood.

(3)

The city manager or their designee shall have the right to inspect the premises of any applicant for a home-based business registration or special exception, and once approved, to inspect the premises for conformance with the provisions of this section or any other applicable governmental code. The continued refusal or the unavailability of the premises for inspection or the violation of any provision of the zoning ordinance or condition of approval shall be grounds for revocation of any approved registration or a request to the board of appeals to revoke any home-based business special exception. The city manager or the city board of appeals, where applicable, may suspend or revoke any home-based business registration that:

(a)

No longer conforms to the provisions of this article or conditions under which the registration was approved or the special exception granted; or

(b)

Was found to be issued upon false or mistaken information supplied by the applicant; or

(c)

Is determined to be in violation of any governmental code or regulation relating to the operation of the business or premises.

(4)

A person aggrieved by a decision of the city manager may, within thirty (30) days after a decision or action is rendered, appeal the decision to the board of appeals. Appeals shall be governed by the provisions of section 24-12.9, Administrative review.

(5)

The board of appeals may revoke the special exception of any material impact home-based business pursuant to the provisions of section 24-12.7, Special exceptions.

(E)

Signage standards. To preserve the residential character of a home-based business, the following regulations apply to a sign installed on a property with a home-based business use, and modify the provisions of article 8, Signage Standards:

(1)

A home-based business use may display only one non-illuminated permanent building sign at the premises.

(2)

Such a sign must not exceed nine (9) inches by twelve (12) inches in dimensions, nor exceed a total area of seventy-face hundredths (0.75) square feet in size.

(3)

Such a sign must not protrude more than two (2) inches from the building.

(4)

Such a sign must only be placed on a façade that faces a public street or has a public entrance.

(5)

Notwithstanding other provisions of this article, such a sign may only be installed if permitted and in conformance with a permit, pursuant to section 24-8.6, Sign permits.

(Ord. No. O-5-24, 7-15-24)

(A)

Exemptions. The following activities are exempt from the provisions of this section:

(1)

The delivering of any goods or merchandise by vehicle where such goods or merchandise have been ordered in advance for such delivery from any business located at a permanent location and which goods or merchandise is being delivered from such location to the customer by vehicle, regardless of the point of sale thereof;

(2)

In-person visits to a residence or business with the intent to sell, or offer for sale, goods or services at the request or invitation of the owner or occupant;

(3)

Any person engaged in the vending of goods or merchandise on public property where such persons have been authorized by the city to engage in such activity by a permit, special event permit, lease, real property license, agreement or other entitlements issued by the city for such purpose;

(4)

Produce standards or temporary farmers markets; and

(5)

Roadside assistance vehicles such as towing and windshield replacement.

(B)

Parking.

(1)

Mobile commercial uses must be located within a standard parking stall.

(2)

Mobile commercial vehicles may be stored overnight at the owner's residence but may not operate or complete sales from said residence except as may be allowed per subsection (3), below.

(3)

Food trucks on residential lots must be for catering purposes only and may only serve the residents and guests of that lot and are precluded from serving the greater area.

(C)

Signage. A mobile commercial use vendor may advertise their business with signage affixed to the mobile vending vehicle. The mobile vendor may also place one temporary sandwich board (or similar) sign not to exceed six (6) square feet on any one face, provided that such sign:

(1)

Is placed on the same site within twenty (20) feet of the mobile vending unit;

(2)

Is placed on a public sidewalk, where the placement of the sign leaves no less than five (5) feet of unimpeded pedestrian walkway; and

(3)

Must be removed from its placement upon cessation of business operations on a daily basis.

(D)

Separation from non-food sales businesses. Mobile commercial uses not related to food sales may not operate within three hundred (300) feet of a commercial business offering the same or similar goods or services, with the following exceptions:

(1)

Mobile vendors operating as part of a city-approved special event;

(2)

The commercial outlet and the mobile vendor are operated by the same entity; or

(3)

The mobile vendor has prior written permission of a business owner to operate within three hundred (300) feet and has written permission from the property owner where the mobile vendor is operating.

(E)

Separation from food sales businesses. Mobile food vendors (food trucks) shall not operate within three hundred (300) feet of an existing restaurant, during the restaurant's normal business hours, with the following exceptions:

(1)

Mobile vendors operating as part of a city-approved special event;

(2)

The restaurant and the mobile vendor are operated by the same entity;

(3)

Permitted at breweries, distilleries, and wineries that do not serve food;

(4)

Prohibited in the CBD Olde Towne Special District (except as allowed in subsections (1), (2), and (3), above);

(5)

The mobile vendor has prior written permission of a property owner to operate within three hundred (300) feet of the property of that existing business and has written permission from the property owner where the mobile food vendor is operating; and

(6)

No more than one food truck per lot except for subsection (1), above.

(Ord. No. O-5-24, 7-15-24)

(A)

Applicability.

(1)

No satellite antennas, as hereinafter defined, shall be erected, constructed, maintained, or operated except in conformance with the regulations of this section and any other applicable regulations.

(2)

For the purposes of this section, satellite antennas are defined as any device greater than one meter in diameter used or designed for receiving radio or electromagnetic signals from one or more orbitally based satellites and are external to or are attached to the exterior of any building.

(B)

Specified residential and commercial uses and zones. Within any single-family detached or attached residential use or zone, residential buffer zone, or commercial buffer zone:

(1)

Such antenna shall be located only in the rear yard of any lot or upon a building on said lot. If a usable satellite signal cannot be obtained in a rear yard, due to obstruction of the antenna's reception window, then the antenna may be installed in any side yard of the property. All installations shall be located to prevent obstruction of the antenna's reception window from potential permitted development on adjoining property.

(2)

No portion of the structure shall be located within any minimum required yard setback or closer to any property line or electric power line than the height of such structure.

(3)

No more than one satellite antenna shall be installed on any lot less than one acre in size.

(4)

All satellite antenna installations shall employ (to the extent possible) materials and colors that blend with the surroundings.

(5)

No satellite dish antenna shall exceed four (4) meters in size.

(6)

All non-roof-mounted satellite antenna installations, including wires, supporting structures and accessory equipment, shall be screened by architectural or landscape treatments along the antenna's non-reception window axis and low-level landscape treatment along the reception window axis of the antenna base. Screening shall be of a height and nature to provide minimum opacity from the ground level, yet not interfere with signal reception.

(7)

A roof-mounted satellite antenna shall not exceed twelve (12) feet in height, measured from the lowest point at which the antenna is attached to the building.

(C)

Multifamily uses and zones. Within any multifamily residential use or zone containing multifamily residential structures, the provisions of subsection (B), above shall apply, except that one satellite antenna may be permitted for each building.

(D)

Commercial, employment, or industrial zones. Within any commercial, employment, or industrial zone:

(1)

Such antenna may be located anywhere upon the lot or buildings thereon, but may not be located within any yard setback area or cross the vertical plan of the property line;

(2)

All ground-mounted installations shall employ (to the extent possible) materials and colors that blend with the surroundings;

(3)

All ground-mounted installations, including wires, supporting structures, and accessory equipment, shall be screened by architectural or landscape treatments along the antenna's non-reception window axis and low-level landscape treatment along the reception window axis of the antenna base. Screening shall be of a height and nature to provide minimum opacity from the ground level, yet not interfere with signal reception.

(4)

No rooftop satellite antenna installation shall exceed eleven (11) meters in diameter.

(5)

More than one satellite antenna may be located upon a lot, tract, or parcel, subject to the following requirements:

(a)

The antennas shall be part of an ancillary or accessory use associated with buildings and uses contained within an office or industrial park; and

(b)

The antennas shall be located within the same subdivision as the office or industrial park or on land abutting or confronting said subdivision; and

(c)

All antennas shall be either individually or collectively fenced for security purposes and screened to minimize visual impact on surrounding properties and from the public street.

(E)

General satellite standards.

(1)

All such antennas shall be located and designed to minimize visual impact on surrounding properties and from public streets.

(2)

All antennas and the construction and erection thereof shall conform to applicable city building code and electrical code regulations and requirements. A building permit shall be required for the location, relocation, erection, and installation of any satellite television antenna.

(3)

All antennas shall meet all manufacturers' specifications, be of noncombustible and corrosive resistant material, and be erected in a secure, wind-resistant manner. Every antenna shall be adequately grounded for protection against a direct strike of lighting.

(4)

These regulations shall apply to and be enforceable against the owner of any such satellite television antenna, the owner or tenant of any property upon which such antenna is located, and any contractor, business, or individual installing a satellite antenna.

(F)

Reception antenna standards. Reception antennas, including towers, poles, antennas, or other structures intended for use in connection with transmission or receipt or radio or television signals or both, other than satellite antennas, provided, that they are not used in connection with the operation of a commercial radio or television broadcasting station, are permitted subject to the following standards:

(1)

Such structures may be freestanding or fastened to a building.

(2)

No portion of any such structure shall be erected within any minimum required yard or closer to any property line in a residential zone, or to any electric power line serving a lot other than the lot on which such structure is located, than the height of such structure.

(3)

The height of any such structure shall be measured from the lowest point at which such structure touches the ground, provided, that if such structure is attached to a building and does not touch the ground, its height shall be measured from the lowest point at which such structure is attached to the building. This standard shall not be construed to prevent the construction of such a structure on the roof of any building, provided that the height of such structure does not exceed twenty (20) feet.

(4)

Such structures are not approved by the city and shall not be used for co-located telecommunications facilities.

(5)

Any reception antenna which was lawfully erected prior to November 7, 1974, shall, notwithstanding anything to the contrary herein, continue to be deemed lawful.

(6)

All installations shall employ, to the extent possible, materials and colors that blend with the surroundings.

(7)

All non-roof-mounted satellite antenna installations, including wires, supporting structures, and accessory equipment, shall be screened by architectural or landscape treatments along the antenna's non-reception window axis and low-level landscape treatment along the reception window axis of the antenna base. Screening shall be of a height and nature to provide minimum opacity from the ground level, yet not interfere with signal reception.

(8)

Such structures shall also be subject to the provisions of subsections (C), (D), and (E), above.

(G)

Conditional use. Where satellite antennas, towers, and related or similar structures are allowed as a conditional use, such a conditional use may only be approved by the city council per the provisions of section 24-12.10, Conditional use, upon the following affirmative findings:

(1)

The proposed structure will not endanger the health and safety of residents, employees, or travelers, including, but not limited to, the likelihood of the failure of such structures;

(2)

The proposed structure will not substantially impair the use of, or prove detrimental to, neighboring properties, considering, among other relevant factors, the following:

(a)

The topography and elevation of the property on which such structure is proposed to be located and the appearance and visibility of such structure from neighboring and surrounding properties and from public rights-of-way;

(b)

The location of surrounding residences, buildings, structures and public rights-of-way and their use;

(c)

The character of the surrounding neighborhood and the master plan recommendations for the ultimate use of surrounding properties; and

(d)

The likelihood of interference with existing radio, television, telephone or microwave reception or service;

(3)

The proposed structure will cause no objectionable noise, fumes, odors, glare, physical activity, or effect that would impair the peaceful enjoyment of neighboring properties;

(4)

The proposed buildings, structures and use will be in harmony with the general character of the neighborhood; and

(5)

The proposed structure will be served by adequate public services and facilities, including police and fire protection, water and sanitary sewers, storm drainage, public roads, and other public improvements.

(H)

Telecommunications facilities: standards when allowed as permitted use. The following standards apply in those zones in which new telecommunications facilities or major modifications of telecommunications facilities are allowed as a permitted use, where the telecommunications facilities do not satisfy the standards in subsection (J), below:

(1)

A telecommunications facility may be installed on the rooftop of a building on privately owned land which is at least thirty (30) feet in height. An antenna or any related equipment may be mounted on the wall of a building at a height of at least thirty (30) feet. A telecommunications facility antenna must not be mounted on the façade of any building designed or used as a single-family residential dwelling. Other equipment and structures associated with the telecommunications facility (other than cabling and the equipment required to attach the antenna, and any concealment elements associated with the antenna or cabling) may be located on the roof of a building provided it and all other roof structures do not occupy more than twenty-five (25) percent of the roof area. If such other equipment and structures, considering any existing telecommunications facilities at the site, increase the roof coverage of all roof structures to occupy more than twenty-five (25) percent of the roof area, the same may be approved by the board of appeals as a special exception in accordance with subsection (I), below.

(2)

Telecommunications facilities may be attached to a free-standing monopole or tower on privately owned land. A free-standing monopole including antenna structure for a telecommunications facility is permitted up to one hundred seventy-nine (179) feet in height with a setback of one foot for every foot of height from all adjoining residentially zoned properties, and a setback of one-half (½) foot for every foot of height from adjoining non-residential properties. Towers are only permitted by special exception when approved by the board of appeals under subsection (I), below, unless the tower is a stealth telecommunications facility. A monopole or tower mounted on a rooftop of a building is not permitted unless it is designed as a stealth telecommunications facility.

(3)

Antennas on privately owned land are limited to the following types and dimensions:

(a)

Omni-directional (whip) antennas not exceeding fifteen (15) feet in height and three (3) inches in diameter; or

(b)

Directional or panel antennas not exceeding eight (8) feet in height and two (2) feet in width. Antennas not meeting these criteria may be permitted by special exception when approved by the board of appeals under subsection (I), below.

(4)

An unmanned equipment building or cabinet included as part of a telecommunications facility on privately owned land must not exceed five hundred sixty (560) square feet and twelve (12) feet in height. Any such equipment building or cabinet must be so located as to conform to the applicable setback standards of the zone in which the property is classified.

(5)

A private telecommunications facility or new telecommunications facility support structure may be located on public property, other than a city right-of-way or attached to an existing structure on public property and shall be a permitted use on such public property or structure in all zones. The use of any public property or structure owned or operated by the city shall be at the discretion of the city council and shall not be subject to the same conditions and requirements as are applicable to such facilities on privately owned property.

(6)

A private telecommunications facility and/or a new telecommunications facility support structure which is not a monopole or tower may be located within a city right-of-way by entities that are eligible to apply under subsection (M), below, and that hold an applicable city franchise or license to use the rights-of-way and that have paid all applicable fees, and shall, as specified in sections 19-9A(c) and 20-62(j) of the Gaithersburg City Code, be subject to applicable requirements, approval and appeal procedures set forth in right-of-way standards adopted by regulation pursuant to section 2-10 of the Gaithersburg City Code. The city council may, but is not required to, hold a public hearing or meeting prior to its decision to allow the use of property owned or under the control of the city, including public rights-of-way.

(7)

A telecommunications facility may be located on property or attached to an existing structure owned or operated by a county, state, federal or other non-city governmental agency or on the property of an independent fire department or rescue squad subject to the same conditions and requirements as are applicable to such facilities on privately owned property.

(8)

All such telecommunications facilities and new telecommunications facility support structures shall be located and designed to minimize visual impact on surrounding properties and from public streets.

(9)

No signs are permitted in connection with any telecommunications facility, except as required by law.

(10)

No lights are permitted on any tower, monopole, or antenna, except as required by law or as may be required as part of a stealth installation.

(11)

Where otherwise consistent with subsection (H)(8), above, and with all applicable height limits. All towers and monopoles erected as part of a telecommunications facility which are not stealth telecommunications facilities must maintain at least three (3) telecommunications carriers provided, however, that a tower or monopole or other support structure designed or engineered to accommodate less than three (3) telecommunications carriers may be permitted by special exception when approved by the board of appeals.

(12)

Except for approved stealth towers, no more than one ground-mounted tower or monopole is permitted on a lot or parcel of land and, no two (2) ground-mounted towers or monopoles may be located within one thousand (1,000) feet of each other in any zone in which such facilities are permitted uses. In any such zone, more than one ground-mounted tower or monopole may be permitted on a lot or parcel and two (2) or more ground-mounted towers or monopoles may be located within one thousand (1,000) feet of each other by special exception approved by the board of appeals. A special exception to permit either the location of more than one ground-mounted tower or monopole on a lot or parcel or two (2) or more ground-mounted towers or monopoles within one thousand (1,000) feet of each other may only be approved by the board of appeals if the applicant establishes that existing telecommunications facilities serving the same service area have no additional capacity to include the applicant's antenna or that co-location on an existing tower or monopole is technically impractical and that engineering criteria establish the need for the requested facility. In addition, any such application must comply with all the other standards and requirements applicable to special exceptions for telecommunications facilities.

(13)

Every telecommunications facility must be removed at the cost of owner or operator of the facility when the telecommunications facility is no longer in use by any personal wireless service or Wi-Fi provider. This section does not require removal of the supporting structure to which the telecommunications facility was attached if (a) the supporting structure was an existing supporting structure whose dimensions were not modified, and which remain in authorized use or (b) the supporting structure is being used by other entities which have a permit from the city to use the supporting structure. Subject to the foregoing, all affected property must be restored to its prior condition, or to such other condition as may be required by applicable regulations.

(I)

Special exceptions for new telecommunications facilities or major modification. An application for a special exception for a new or major modification to a telecommunications facility may be approved by the board of appeals if the board finds that:

(1)

The application complies with all applicable standards provided in subsection (H), above.

(2)

The location selected is necessary for public convenience and service.

(3)

The location selected is not in an area in which there is an over concentration of freestanding monopoles, towers, or similar structures.

(4)

The location selected for a tower or monopole is more than three hundred (300) feet from either the nearest boundary of a historic district or more than three hundred (300) feet from the nearest boundary of the environmental setting of a historic resource that is not within a historic district.

(5)

The location selected for a tower or monopole is suitable for the co-location of at least three (3) telecommunication antennas and related unmanned cabinets or equipment buildings and the facility is designed to accommodate at least three (3) antennas. The holder of a special exception may not refuse to permit the co-location of two (2) additional antennas and related equipment buildings or cabinets unless co-location is technically impractical because of engineering and because it will interfere with existing service. The refusal to allow such co-location without just cause may result in revocation of the special exception.

(6)

In the event a telecommunications facility is proposed to be located on a rooftop or structure, the board of appeals must find that the building is at least thirty (30) feet in height on any multifamily residential or non-residential building. Rooftop telecommunications facilities may not be located on a single-family residence unless they are stealth telecommunications facilities.

(7)

In the event a telecommunications antenna is proposed to be located on the façade of a building, the board of appeals must find that it is to be located at a height at least thirty (30) feet on a multifamily residential or non-residential building. A telecommunications antenna must not be mounted on the façade of a single-family residence.

(8)

In any residential zone the board of appeals must find that the equipment building or cabinet does not exceed five hundred sixty (560) square feet and twelve (12) feet in height, and is faced with brick or other suitable material on all sides and that the façades are compatible with the other building or buildings located on the lot or parcel. Equipment buildings and cabinets must be landscaped to provide a screen of at least three (3) feet. The board may require that towers or monopoles:

(a)

Be camouflaged;

(b)

Be placed within a part of an existing structure; or

(c)

Be constructed in such a way that the tower or monopole appears to be part of an existing structure.

(9)

Any equipment building or cabinet is located in conformity to the applicable setback standards of the zone.

(10)

The addition of an equipment building or cabinet proposed to be located on the roof of a building, in combination with all other roof structures, does not create the appearance of an additional story and does not increase the roof coverage by more than an additional ten (10) percent. The board must also find that the structure is not visually intrusive.

(11)

The board of appeals may, upon request of the applicant, waive the dimensional restrictions of an antenna, equipment cabinet or support structure provided the board of appeals makes the additional finding that the increased size is integrated into the structure and limits the visual impact to the maximum extent possible.

(12)

Area requirements. The following requirements apply to towers, monopoles, and other support structures:

(a)

The minimum parcel or lot area is sufficient to accommodate the location requirements for the tower, monopole, or other support structure as hereinafter set forth in subsection (I)(13), below;

(b)

In no event may the minimum parcel or lot area be less than the lot area required for the zone in which the monopole or support structure is located;

(c)

For the purposes of this section, the location requirement is measured from the base of the monopole or other support structure to the perimeter property line;

(d)

The board of appeals may, upon request from the applicant, reduce the location requirement to not less than the building setback for the applicable zone, provided the board of appeals makes the additional finding that the reduced location requirement results in a less visually obtrusive location for the monopole or other support structure. In making that additional finding, the board of appeals shall consider the height of the structure, topography, existing vegetation, planned landscaping, the impact on adjoining and nearby residential properties, if any, and the visibility of the monopole or other support structure from adjacent streets.

(13)

Location requirements for structures. A monopole or tower must be located as follows: (a) In residential zones, monopoles or towers must be located a minimum distance of one foot from the property line for every foot of height of the monopole or tower; (b) In non-residential zones, monopoles and towers must be located at a distance of one-half (½) foot from the property line of adjacent non-residentially zoned property for every foot of height of the monopole or tower. Such structures must be located a minimum distance of one foot from the property line of adjacent residentially zoned property for every foot of height of such structure.

(14)

Signage. No signs are permitted in connection with the establishment of a telecommunications facility, except as required by law.

(15)

Lights. No lights or other illumination devices are permitted on a monopole or other support structure, except as required by law or as a necessary part of a stealth installation.

(16)

Removal of telecommunications facilities. The requirements of subsection (H)(13), above, must be satisfied.

(17)

Extended establishment period. Due to the extensive and prolonged review by regulatory agencies of applications for licenses to operate commercial radio or television broadcasting stations, the establishment of such use may be initiated for up to five (5) years from the date of the decision of the city council, or from the date of a final decision of any appeal filed therefrom. Appeals may be filed to any decision of the city council under subsection (G) per the provisions of section 24-11.3, City council.

(18)

Minor modifications. Minor modifications of existing telecommunications facilities, whether permitted by right or by special exception, in any zone may be granted by staff in compliance with section 24-12.6, Site development plans.

(J)

Special rules for allowed telecommunications facilities in certain zones. A telecommunications facility satisfying the following requirements may be granted by staff, subject to appeal to the city, provided that the telecommunications facility and associated support structure are subject to such concealment elements that the facility may not be expanded beyond the size limits specified in any permit without the approval of the city:

(1)

Outside of a right-of-way, antennas may not be larger than a maximum height of four (4) feet, six (6) inches and a maximum width of two (2) feet, six (6) inches and all antennas on the structure, including any pre-existing antennas on the structure, must in aggregate fit within enclosures (or if the antennas are exposed, within imaginary enclosures, i.e., ones that would be the correct size to contain the equipment) that total no more than six (6) cubic feet in volume, with an unmanned equipment building or cabinet included as part of a telecommunications facility must not exceed two hundred (200) square feet and five (5) feet in height. Any such equipment building or cabinet must be so located as to conform to the applicable setback standards of the zone in which the property is classified.

(2)

Within a right-of-way, the telecommunications facility, and any modifications to the supporting structure may not be larger than the dimensions specified in applicable requirements set forth in right-of-way standards adopted by regulation pursuant to section 2-10 of the Gaithersburg City Code.

(3)

The telecommunications facility shall be placed on an existing supporting structure, or within the rights-of-way, on a replacement supporting structure that satisfies the right-of-way standards adopted by regulation pursuant to section 2-10 of the Gaithersburg City Code.

(4)

A telecommunications facility may be installed on a support structure on privately held land under the following conditions:

(a)

At a height of at least twenty (20) feet on an existing multifamily residential building in any zone;

(b)

At a height of at least fifteen (15) feet on an existing non-residential or mixed-use structure in any zone; or

(c)

There will be no hazardous materials at the site.

(5)

Equipment associated with the telecommunications facility on privately held land may be ground mounted within an equipment cabinet or located on a support structure, within a building, within an equipment cabinet outside a building, or on a rooftop.

(6)

Ground equipment shall have a maximum footprint of twenty (20) square feet with a maximum height of four (4) feet and must be so located and installed a minimum of three (3) feet from any property line.

(7)

Rooftop equipment may be installed on privately owned land under the following conditions:

(a)

At a height of at least twenty (20) feet on an existing multifamily residential building in any zone;

(b)

At a height of at least fifteen (15) feet on an existing non-residential or mixed-use structure in any zone; or

(c)

Equipment cabinets shall have a maximum footprint of thirty-six (36) square feet with a maximum height of five (5) feet, in combination with all other roof structures may not occupy more than twenty-five (25) percent of the roof area, and must be screened in accordance with the building code.

(8)

Equipment may be installed on a support structure on privately owned land under the following conditions:

(a)

At a height of at least twenty (20) feet on an existing multi-family residential building in any zone;

(b)

At a height of at least fifteen (15) feet on an existing non-residential or mixed-use structure in any zone; or

(c)

Equipment cabinets shall have a maximum size of twenty (20) cubic feet with a maximum height of four (4) feet.

(9)

In residential zones, small cell facilities shall be integrated into the architecture of the structure on which it is placed.

(10)

An installation of a telecommunications facility that does not increase the size or height of the support structures, excluding antennas, by more than twenty (20) percent is permitted on privately held land provided the expansion does not create a public health or safety concern.

(11)

A telecommunications facility that increases the size or height of the support structure by more than twenty (20) percent on privately held land is approvable by the planning commission under the following conditions:

(a)

The applicant shall provide, by mail or personal delivery, written notice in a form approved by the city planning department to owners of property abutting and confronting the property that is the subject of the request within two (2) business days of filing the request and shall certify the same to the planning department;

(b)

The applicant shall demonstrate that the expansion of the support structure is integrated into the surrounding area and limits the visual impact to the maximum extent possible; and

(c)

The expansion of the support structure does not create a public health or safety concern.

(12)

On privately held land, a telecommunications facility must not be installed on or within thirty (30) feet of a single-family detached or attached dwelling unit or any accessory structures to these units.

(13)

The applicant shall provide proof that the proposed facility is a telecommunications facility within the meaning of this chapter, and that the entities that will own the telecommunications facilities are authorized to occupy the properties that will be used for the purposes proposed, and will comply with all applicable federal, state and city laws and regulations.

(14)

For privately held land, the applicant shall provide certification of property owner approval; for public property and rights-of-way, applicant shall provide proof of authority to use and occupy the rights-of-way or other public property.

(15)

Telecommunications facilities must be installed as stealth telecommunications facilities on properties that are within a historic district or that have been designated by the city as a historic resource. The historic district commission must review such an application in accordance with article 9, Historic Preservation.

(16)

The planning commission may, upon request of the applicant, grant an adjustment to the dimensional restrictions of an antenna or equipment cabinet provided the applicant demonstrates that the increased size of the facility is integrated into the structure and limits the visual impact to the maximum extent possible.

(17)

A telecommunications facility may be located on public property or attached to an existing structure owned or operated by the city and shall be an allowed use in all zones. The use of any property owned or operated by the city shall be at the discretion of the city council and shall not be subject to the same conditions and requirements as are applicable to such facilities on privately owned property. The city council shall hold a public hearing or meeting prior to its decision to allow the use of property owned or under the control of the city.

(18)

A telecommunications facility may be located on public property or attached to an existing structure owned or operated by a county, state, federal or other non-city governmental agency or on the property of an independent fire department or rescue squad subject to the same conditions and requirements as are applicable to such facilities on privately owned property.

(19)

A telecommunications facility may be installed in city right-of-way or attached to an existing structure in city right-of-way subject to applicable requirements set forth in right-of-way standards adopted by regulation pursuant to section 2-10 of the Gaithersburg City Code.

(20)

All such telecommunications facilities, including visible cables, shall be located and designed to minimize visual impact on surrounding properties and from public streets to the extent possible.

(21)

No signs are permitted in connection with any telecommunications facilities, except as required by law.

(22)

No lights are permitted on any monopole or antenna, except as required by law.

(23)

All telecommunications facilities are subject to the requirements of subsection (H)(13), above.

(24)

The city may permit installation of a telecommunications facility, or attachment to or construction of a supporting structure not otherwise permitted under this section, where an applicant submits proof that absent approval, it would be effectively prohibited from providing personal wireless services, as that term is defined by applicable federal law. An application that seeks approval under this section must be signed or co-signed by a provider of personal wireless services, which provider is responsible for responding to questions that the city may have regarding the effective prohibition claim.

(K)

Exemptions from land use approval. Notwithstanding the foregoing, the following are not subject to land use approval by city under this chapter, and any modification, addition or replacement that would result in a facility that is not exempt shall be treated as a new telecommunications facility installation. The exemption from land use approval does not exempt a person from compliance with applicable safety and other codes:

(1)

No excavation is required in connection with the installation of the telecommunications facility, or facilities required for its operation and no new support structure is required; and

(2)

No hazardous materials may be located at the site; and

(3)

The telecommunications facility will not be located on or within an historic structure, or in an historic district, where any portion of the telecommunications facility would be visible from ground level; and

(4)

The telecommunications facility is two (2) cubic foot or less in size, and strand-mounted; if any other wireless facility is supported by the same strand is within fifty (50) feet of the proposed facility, the facilities will cumulatively total two (2) cubic feet or less in size; and

(5)

The telecommunications facility is a modification or replacement of an approved, existing facility, where the modification does not involve changes in the supporting structure or the size, noise levels, appearance, location, or visibility of the telecommunications facility; and

(6)

The telecommunications facility is a carriers on wheels where the placement is permitted, and complies with, applicable FCC regulations for temporary placement of telecommunications facilities.

(L)

Eligible facilities requests. If an applicant contends that its proposal is an eligible facilities request within the meaning of federal law, the following rules shall apply:

(1)

An application must be submitted clearly stating in a subject line that the request is for approval of an "eligible facilities" request, and must notify residents within five hundred (500) feet of the proposed facility of the request, and the date by which applicant contends it will be deemed granted. The application submitted to the city must contain such material as the city may require, and at a minimum shall:

(a)

Identify the facility that is being modified;

(b)

Describe the modification in full, including by identifying the existing dimensions of the telecommunications facilities being modified and all changes in any dimension of the existing telecommunications facility, and all additions to it;

(c)

Provide photo simulations of the facility before and after modification to provide a three hundred sixty-degree view;

(d)

Provide a copy of the documents approving the facility being modified, including any conditions on the approval (which documents shall include any approvals of any modification of the facility from its original installation);

(e)

The original dimensions of the telecommunications facility being modified as installed; and

(f)

A statement as to whether any new supporting structure is being installed.

(2)

The application must be filed simultaneously with the city manager and the city attorney.

(3)

The city manager may take all steps necessary under federal laws and regulations to review and act upon the application and is specifically delegated the authority to approve or deny the application after consultation with the city attorney, and without hearing or review by the city council, if necessary, to comply with federal law.

(M)

Restrictions on filing applications. An applicant for approval under subsection (H), subsection (I), or subsection (J) must be one of the following:

(1)

A provide of personal wireless services or Wi-Fi to the public; or

(2)

An entity that proposes to construct and operate facilities that will be used by wireless services providers, is licensed by the Maryland Public Service Commission as a public service corporation and shows to the city's reasonable satisfaction that it has a customer for the facilities proposed. Speculative facilities will not be approved.

(Ord. No. O-5-24, 7-15-24)