1.1.

Creation of Board and terms of Members. There shall be and is hereby created a Board of Adjustment, also known as the Watershed Review Board, hereinafter call the Board, consisting of five (5) members. The members of the Board shall be residents of the zoned area of the county, shall be appointed by the Board of Commissioners, and shall have initial terms of office as follows: One member appointed for a term of one year, two members appointed for terms of two year, and two members for terms of three years. At the completion of the initial term of office for each member, all additional appointments to vacancies of the Board shall be for three-year terms. Two alternate members, meeting residency requirements for regular members, may be appointed by the County Board to serve on the Board in the absence, for any cause, of any regular member. Alternate members shall have an initial term of one year. At completion of the initial term of office, all additional appointments shall be for three-year-terms. In the absence of the Board of Adjustment, the County Commissioners will serve as the Board of Adjustment, upon which all conditions, procedures and terms follow Commissioners guidelines.

1.2.

Officers and Meetings. The Board shall elect one of its members as chairman and shall appoint a secretary and such other subordinates as may be authorized by the County Board. The Board shall draw up and adopt the rules of procedures under which it will operate. Meetings of the Board shall be held at the call of the chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote, indicating such fact, and also keep records of its examination and any other official action.

2.1.

Filing an Appeal. Appeals from the enforcement and interpretation of this Ordinance and requests for variances shall be filed with the Zoning Administrator specifying the grounds thereof and, in the case of appeals, shall be filed within thirty (30) days after the decision by the Zoning Administrator which is being appealed. The Zoning Administrator shall transmit to the Board all applications and records pertaining to such appeals and variances. An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the Board that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life and property, in which case proceedings shall not be stayed otherwise that by a restraining order, which may be granted by the Board or by a court of record on application or notice to the officer from whom the appeal is taken and due cause shown.

2.2.

Hearing of Appeal. After receipt of notice of an appeal, the Board Chairman shall schedule the time for a hearing which shall be at a regular or special meeting within thirty (30) days from the filing of such notice of appeal.

2.3.

Notice. At least one week prior to the date of the hearing, the county shall furnish adjoining property owners with written notice of the hearing and notice of the hearing will be published according to Article II, Section 4.

2.4.

Fees for Appeals or Variances. A nonrefundable fee for each application shall be paid to the county at the time of filing according to Article II, Section 7.

The Board of Adjustment shall have the following powers and duties:

3.1.

Administrative Review. To hear and decide appeals where it is alleged by the applicant that there is error in order, requirement, permit, decision, determination, or refusal made by the Zoning Administrator in the carrying out or enforcement of any provision of this Ordinance. A concurring vote of four-fifths of the members of the Board shall be necessary to reverse, wholly or partly, any such decision.

3.2.

Zoning Variances. To authorize upon appeal in specific cases such variances from the terms of this Ordinance as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this Ordinance would result in unnecessary hardship.

In granting the variances, the Board may prescribe appropriate conditions and safeguards in conformity with this Ordinance. A variance for the terms of this Ordinance shall not be granted by the Board unless and until the following findings are made.

(1)

That special conditions and circumstances exist which are peculiar to the land, structure or building involved and which are not applicable to other lands, structures, or buildings in the same district;

(2)

That literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this Ordinance;

(3)

That the special conditions and circumstances do not result from the actions of the applicant;

(4)

That granting the variance requested will not confer on the applicant any special privilege that is denied by this Ordinance to other land, structures, or buildings in this same district;

(5)

The requested variance will be in harmony with the purpose and intent of this Ordinance and will not be injurious to the neighborhood or to the general welfare; and

(6)

The variance requested is the minimum variance that will make possible the legal use of the land, building, or structure.

In considering all proposed variances from this Ordinance, the Board shall, before making any finding in a specified case, first determine that the proposed variance will not constitute any change in the zone shown on the zoning map and will not impair an adequate supply of light and air to adjacent property or materially diminish or impair established property values within the surrounding area, or in any other respect impair the public health, safety, morals, and general welfare.

No existing nonconforming use in the same district and no permitted use of land in other districts shall be considered grounds for the issuance of a variance. Under no circumstances shall the Board of Adjustment grant a variance to allow a use not permissible under the terms of this Ordinance in the district involved, or any expressly or by implication prohibited by the terms or this Ordinance in said district.

In granting a variance, the Board may attach thereto such conditions regarding the location, character, and other features of the proposed building, structure, or use as it may deem advisable in furtherance of the purposes of this Ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation of this Ordinance and punishable under Article I, Section 9, and the variance may be revoked as described in Article II, Section 5.

3.3.

Watershed Protection Variances. For all proposed watershed variances, the county shall notify and allow a reasonable comment period for all other local governments having jurisdiction within the watershed as well as the county, municipalities, or private water companies, as user of the water supply.

The Board may authorize minor variances in those areas relating to the state water supply watershed protection rules if the request meets the conditions for zoning variances given in Section 3.2. A minor watershed protection variance is defined as the reduction of the required vegetative buffer of up to ten percent (10%). Residential density and built upon area requirements cannot be granted minor variances.

Any variance requested which meets the conditions for a zoning variance and is greater than ten percent (10%) reduction in the vegetative buffer or requests an increase in the residential density or built upon area shall be heard by the Board of Adjustment. A decision by the Board to deny the major variance shall be final. Appeal shall be to a court of competent jurisdiction as provided in Section 4. If it decides in favor of the major variance, the Board shall prepare a preliminary record of the hearing with all deliberate speed. The preliminary record of the hearing shall include:

A.

The variance application;

B.

The hearing notices;

C.

The evidence presented;

D.

Motions, offers of proof, objections to evidence, and rulings of them;

E.

Proposed findings and exceptions; and

F.

The proposed decision, including all conditions proposed to be added to the permit.

The preliminary record shall be sent within thirty (30) days to the Environmental Management Commission for its review as follows:

A.

If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that (a) the property owner can secure no reasonable return from, nor make any practical use of the property unless the proposed variance is granted, and (b) the variance, if granted, will not result in a serious threat to the water supply, then the Commission shall approved the variance as proposed or approve the proposed variance with conditions and stipulations. The Commission shall prepare a Commission decision and send it to the Watershed Review Board. If the Commission approves the variance as proposed, the Board shall prepare a final decision, including such conditions and stipulations, granting the proposed variance.

B.

If the Commission concludes from the preliminary record that the variance qualifies as a major variance and that (a) the property owner can secure a reasonable return from or make a practical use of the property without the variance or (b) the variance, if granted, will result in a serious threat to the water supply, then the Commission shall deny approval of the variance as proposed. The Commission shall prepare a Commission decision and send it to the Watershed Review Board. The Board shall prepare a final decision denying the variance as proposed.

Appeal from the decision of the Board of Adjustment may be made to the Montgomery County Superior Court within thirty (30) days after the decision is made by the Board, but not thereafter.