A.

The board of appeals is authorized. Such board shall consist of three members, all of whom shall be residents of the Town of Middletown. The members of the board of appeals shall be appointed by the burgess with the consent of the commissioners. The terms of office of the members of the board of appeals are three years; provided, however, that the respective term of each member of the board of appeals in office on the effective date of the ordinance codified on this chapter shall remain unchanged and shall expire on the date previously established for that term. The burgess shall appoint a new member to fill the unexpired term of any member who leaves the board of appeals.

B.

Members of the board shall serve with such compensation as may be established from time to time by resolution of the burgess and commissioners. The commissioners shall designate one alternate member for the board of appeals who may sit on the board in the absence of any member of the board and when the alternate member is absent, the commissioners may designate a temporary alternate.

C.

A member of the board of appeals shall recuse himself or herself from participating in a matter in which the member may have a conflict of interest or an appearance of a conflict of interest.

D.

A member of the board of appeals may be removed:

1.

for cause;

2.

on written charges; and

3.

after a public hearing.

E.

The board of appeals shall have the powers and shall comply with and follow the requirements and procedures for boards of appeal as set forth in the Land Use Article, Title 4, Subtitle 3, Annotated Code of Maryland, as same may be amended from time to time.

(Ord. No. 15-12-02, § I, 12-14-2015; Ord. 04-12-01 § 1, 2005: Ord. 182 § 10.0, 1976)

The members of the board of appeals shall meet as needed at such time and place as they may fix by resolution. They shall select one of their members as chairperson and one vice-chairperson, who shall serve one year and until their successors have been selected. Special meetings may be called at any time by the chairperson or in his or her absence, by the vice-chairperson. A majority of the board shall constitute a quorum for the transaction of business. The board of appeals shall make a transcript of all its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, which shall be immediately filed in the town office and shall be a public record. Copies of the transcript shall be forwarded to the burgess and planning commission. All meetings of the board of appeals shall be open to the public. The chairperson, or in his or her absence the vice-chairperson, may administer oaths and compel the attendance of witnesses.

(Ord. No. 15-12-02, § I, 12-14-2015; Ord. 04-12-01 § 2, 2005: Ord. 182 § 10.1, 1976)

Powers of the board of appeals include:

A.

To hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this title or any ordinance adopted pursuant to the Land Use Article, Title 4, Subtitle 3, Annotated Code of Maryland;

B.

To hear and decide special exceptions in the terms of this title as required under this title;

C.

To authorize upon appeal in specific cases a variance from the terms of this title.

(Ord. No. 15-12-02, § I, 12-14-2015; Ord. 182 § 10.2, 1976)

An appeal to the board of appeals may be taken by any person aggrieved by any officer, department, bureau of the Town of Middletown affected, or by any order, requirement, decision or determination by any governmental officer, department, board or bureau based in whole or in part upon the provisions of this title.

Such appeal shall be filed with the zoning administrator and the board of appeals within thirty (30) days from the decision being appealed from. Upon appeal, the zoning administrator shall transmit to the board of appeals all papers constituting the record upon which the action appealed from was taken. An appeal stays all proceedings in furtherance of the action appealed from unless the zoning administrator certifies to the board that a stay would, in his or her opinion, cause imminent peril to life or property.

(Ord. 182 § 10.3, 1976)

A.

Filing of Variance. An application may be made to the board of appeals for a variance where it is alleged that the provisions of the zoning ordinance inflict unnecessary hardship upon the applicant. The application must be on a form provided for that purpose by the town. The applicant must provide all the information requested on the form, together with any other information and data that may be required to advise the board on the variance, whether such information is called for by the official form or not.

B.

Standards for Variances. Where there is unnecessary hardship, the board may grant a variance in the application of the provisions of this title provided that the following findings are made where relevant in a given case:

1.

That there are unique physical circumstances or conditions including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship is due to such conditions, and not the circumstances or conditions generally created by the provisions of the zoning ordinance in the neighborhood or district in which the property is located;

2.

That because of such physical circumstances or conditions, the property cannot be developed in strict conformity with the provisions of the zoning ordinance without unnecessary hardship and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;

3.

That such unnecessary hardship has not been created by the applicant;

4.

That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare;

5.

That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.

C.

No grant of a variance shall be authorized unless the board specifically finds that the condition or situation of the specific piece of property or intended use of such property, for which the variance is sought, is not of so general or recurrent a nature as to make reasonably practicable the formulation of a general regulation for such conditions or situation.

D.

Conditions. In granting any variance, the board may attach such reasonable conditions and safeguards as it considers necessary to implement purposes of this zoning ordinance.

(Ord. No. 15-12-02, § I, 12-14-2015; Ord. 182 § 10.4, 1976)

A.

Filing of Special Exception. For any use permitted by special exception, a special exception must be obtained from the board of appeals. In addition to the information required on the building permit application, the special exception application must show:

1.

Site plans, ground floor plans and elevations of proposed structures;

2.

Names and addresses of adjoining owners.

 Unless otherwise specified or extended by the board of appeals, a special exception authorized by the board expires if the applicant fails to obtain, where required to do so, a building permit or use certificate within twelve (12) months of the date of the authorization of the special exception.

B.

Temporary Special Exceptions. A temporary special exception must be obtained from the board for any nonconformity which is or will be seasonal or is or will be in the public interest. The board may grant a temporary special exception for a nonconforming use or structure, existing or new, which:

1.

Is beneficial to the public health or general welfare;

2.

Is necessary to promote the proper development of the community;

3.

Is seasonal in nature.

 The temporary special exception may be issued for a period not exceeding one year, and may be renewed for an aggregate period not exceeding three years. The nonconforming structure or use must be completely removed upon the expiration of the special exception without cost to the town.

C.

Referral to Planning Commission. All applications for a special exception shall be referred to the town planning commission for a recommendation.

D.

Conditions. The board of appeals, in passing upon special exception applications, may attach conditions considered necessary to protect the public welfare and the comprehensive plan, including conditions which are more restrictive than those established for other uses in the same zone.

E.

Application of Extent-of-Use Regulations. The lot area, lot width and yard requirements as set forth in this title must be followed as the minimum by the board of appeals. Where no extent-of-use regulations are set forth for the particular use, the board must impose extent-of-use requirements as necessary to protect the public welfare and the comprehensive plan.

F.

General Standards. A special exception may be granted when the board of appeals finds from a preponderance of the evidence produced at the hearing that:

1.

The proposed use, including its nature, intensity and location, is in harmony with the intent of the district;

2.

That adequate water supply, sewage disposal, storm drainage and fire and police protection are or can be provided for the use;

3.

That the use of adjacent land and buildings will not be discouraged and the value of adjacent land and buildings will not be impaired by the location, nature and height of buildings, walls and fences;

4.

That the use will have proper location with respect to existing or future streets giving access to it, and will not create traffic congestion or cause industrial or commercial traffic to use residential streets;

5.

That the specific standards (Chapter 17.48) set forth for each particular use for which a special exception may be granted have been met.

G.

Burden of Proof. The applicant for a special exception shall have the burden of proof, which shall include the gathering and forwarding of evidence and the burden of persuasion on all questions of fact which are to be determined by the board of appeals.

(Ord. 182 § 10.5.1—10.5.6, 1976)

All appeals and applications for variance and special exceptions shall be heard and considered in a public hearing. The board shall schedule the hearing at a reasonable time and shall give not less than ten (10) days' public notice thereof by the posting in a conspicuous place on or near the property of at least one sign of at least three square feet in area and in conformance to Chapter 17.36 Signs and stating the date, time, location and purpose of the hearing. The zoning administrator or agents may require additional posting in a place of common use or entrance to the community if in the judgment of the zoning administrator such posting is needed to adequately notify interested parties. All public hearings to be held by the board of appeals shall be advertised in a weekly or daily newspaper of general circulation in the town. Due notice shall also be given to the parties in interest including all adjoining and adjacent property owners. The board shall render its decision within thirty (30) days of the public hearing. It shall be the responsibility of the applicant to provide the names and addresses of all adjacent and adjoining property owners.

At the hearing, any party may appear in person, by agent or by attorney. The concurring vote of two members of the board shall be necessary to render any decision on the issues raised in the appeal or application.

(Ord. No. 23-03-03, § V, 4-10-2023; Ord. No. 15-12-02, § I, 12-14-2015; Ord. 182 § 10.6, 1976)

Any person or persons aggrieved by any decision of the board of appeals or by any zoning action of the burgess and commissioners, or any taxpayer, or any officer, department, or board of Middletown, may file a request for judicial review of the same to the circuit court for Frederick County. Such appeal shall be taken in the manner prescribed by Title 7, Chapter 200 of the Maryland Rules.

An appeal from any decision of the circuit court reviewing a decision of the board of appeals may be taken to the Court of Special Appeals of Maryland in the manner prescribed by Title 8 of the Maryland rules.

(Ord. No. 15-12-02, § I, 12-14-2015; Ord. 182 § 10.7, 1976)

A.

Orders of Board Authorizing Construction Valid for Twelve Months. No order of the board permitting the erection or alteration of a building shall be valid for a period longer than twelve (12) months, unless a zoning certificate for such erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

B.

Orders of Board Authorizing Use of Building to be Established Within Twelve Months. No order of the board permitting a use of a building or premises shall be valid for a period longer than twelve (12) months, unless such use is established within such period; provided, however, that where such use permitted is dependent upon the erection or alteration of a building, such order shall continue in force and effect if a zoning certificate for the erection or alteration is obtained within such period and such erection or alteration is started and proceeds to completion in accordance with the terms of such permit.

(Ord. No. 15-12-02, § I, 12-14-2015; Ord. 182 § 10.8, 1976)

A fee shall be paid to the town at the time that the notice of appeal is filed. The amount of the fee shall be as established from time to time by resolution of the burgess and commissioners. See Chapter 17.52 for fees. (Amended during 2000 supplement; Ord. 00-04-04 § 4, 2000)