Smithsburg City Zoning Code
ARTICLE X
Board of Zoning Appeals
§ 405-59 Establishment of Board.
To provide for the competent interpretation and the full and equitable achievement of the purposes of this chapter, there is hereby established a five-member Board of Zoning Appeals. Its terms of office, succession, removal, filling of vacancies, alternate membership, and its power and duties shall be as provided in the Land Use Article of the Annotated Code of Maryland.
§ 405-60 Membership; terms of office.
The Board shall consist of five members. The terms of office shall be three years. The members' terms shall be staggered. No member shall be an appointed or elected official of the federal, state, county or Town government. Members shall be appointed by the Mayor and Council and shall be removable for cause upon written charges and after public hearing. Vacancies shall be filled for the unexpired term of any member whose term becomes vacant. The Mayor and Council shall designate one alternate member for the Board who shall be empowered to sit on the Board in the absence of any regular member of the Board. When the Mayor-and-Council-designated alternate member is absent or otherwise unable to sit on the Board, the Mayor and Council shall designate a temporary alternate member. The official title of this Board shall be the "Smithsburg, Maryland, Board of Zoning Appeals."
§ 405-61 Procedures; meetings; records and decisions.
A.
Procedures. The Board shall elect a Chairperson from its membership, shall appoint a Secretary and shall prescribe rules for the conduct of its affairs in accordance with the provisions of this chapter and of the Land Use Article of the Annotated Code of Maryland.
B.
Meetings. Meetings of the Board shall be held at the call of the Chairperson and at such other times as the Board may determine. Such Chairperson or, in his absence, the acting Chairperson may administer oaths and compel the attendance of witnesses. All meetings of the Board shall be open to the public. Three members present shall constitute a quorum.
C.
Records and decisions. The Board shall keep minutes of its proceedings, show the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the Board and shall be a public record. All actions or decisions of the Board shall be taken by vote in which three members, present during the proceedings, must concur. Each decision of the Board shall contain a statement of the grounds and any findings forming the basis of such action or decision. The Board shall notify the Mayor and Town Council, Planning Commission, and Zoning Administrator of all decisions.
§ 405-62 Appeals to Board.
Appeals to the Board may be taken by any person aggrieved or by any officer, department, board or bureau of the Town affected by any decisions of the Zoning Administrator.
§ 405-63 Jurisdiction. [1]
Upon appeal from a decision by the Zoning Administrator, the Board shall decide any question:
A.
Where it is alleged there is error in any order, requirement, decision or determination, including any order requiring an alleged violation to stop, cease, and desist, made by the Zoning Administrator in the enforcement of this chapter; or
B.
Involving the interpretation of any provisions of this chapter, including determination of the exact location of any district boundary if there is uncertainty with respect thereto.
§ 405-64 Variances.
A.
Upon appeal from a decision by the Zoning Administrator, the Board shall have the power to vary or adapt the strict application of any of the requirements of this chapter in the case of exceptionally irregular, narrow, shallow or steep lots, or other exceptional physical conditions whereby such strict application would result in either practical difficulty or unnecessary hardship depriving the owner of the reasonable use of land or building involved, but in no other case.[1]
B.
In general, the power to authorize a variance from the terms of this chapter shall be sparingly exercised and only under peculiar and exceptional circumstances.
C.
No variance in the strict application of the provisions of this chapter shall be granted by the Board unless the Board finds that the following requirements and standards are satisfied. The appellant must show that the variance will not be contrary to the public interest and that either practical difficulty or unnecessary hardship will result if it is not granted. In particular, the appellant shall establish and substantiate his appeal to show that the appeal for the variance is in conformance with the requirements and standards listed below:
(1)
That the granting of the variance shall be in harmony with the general purpose and intent of this chapter and shall not be injurious to the neighborhood or otherwise detrimental to the public welfare.
(2)
That the granting of the variance will not permit the establishment within a district of any use which is not permitted in that district.
(3)
That special circumstances or conditions, fully described in the findings, apply to the land or buildings for which the variance is sought, which circumstances or conditions are such that strict application of the provisions of this chapter would deprive the applicant of the reasonable use of such land or building or create unnecessary hardship.
(4)
That the granting of the variance is necessary for the reasonable use of the land or building and that the variance as granted by the Board is the minimum variance that will accomplish this purpose. It is not sufficient proof of hardship to show that greater profit would result if the variance were awarded. Furthermore, hardship complained of cannot be self-created; it cannot be claimed by one who purchases with or without the knowledge of restrictions; it must result from the application of this chapter; it must be suffered directly by the property in question; and evidence of variance granted under similar circumstances shall not be considered.
D.
The Board may prescribe any safeguard that it deems necessary to secure substantially the objectives of the regulation or provisions to which a variance applies.
§ 405-65 Special exceptions.
A.
The Board shall have the power to approve special exceptions for any of the uses for which this chapter requires obtaining of such exceptions and for no other use or purpose. The Board shall grant a special exception in conformance with the conditions and standards of this chapter.[1]
B.
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 following general requirements as well as any specific requirements and standards listed for the proposed use. The Board shall, among other things, require that any proposed use and location be:
(1)
In accord with the Comprehensive Development Plan for the Town of Smithsburg 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 hazard.
C.
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.
§ 405-66 Rules for filing appeals and applications.
A.
General rules.
(1)
Any appeal shall be made by filing the same with the Zoning Administrator within 30 days after the date of the Zoning Administrator's decision.
(2)
All appeals and applications made to the Board shall be in writing on standard forms prescribed by the Board.
(3)
All appeals and applications shall list names and addresses of all adjoining owners, including those across the streets from the subject property.
B.
Interpretation appeals. Appeals concerning the interpretation of any provisions of this chapter shall exactly set forth the interpretation that is claimed.
C.
Variance appeals. Appeals for variance from the strict application of this chapter shall include the zoning permit application denied by the Zoning Administrator, together with a statement with any supporting data regarding the requirements listed in § 405-64.
D.
Special exception applications. Applications for special exceptions shall include the zoning permit application denied by the Zoning Administrator, with all information required therein, and a statement with any supporting data regarding the merits of the proposed use at the proposed location and how the proposal complies with the general and specific requirements of this chapter.
§ 405-67 Notice of hearings. [1]
Upon transmittal to the Board of an application filed with the Zoning Administrator for a special exception, variance or appeal from alleged error of the Zoning Administrator, the Board shall fix a reasonable time (not less than 30 days nor more than 45 days) from the transmittal date for a public hearing thereon and give notice as follows:
A.
At least 15 days prior to the date fixed for public hearing, publish a notice containing the name of the applicant or appellant; the date, time and place fixed for the hearing; and a brief statement of the special exception sought by the applicant, or the error alleged by the appellant, or of the variance or other question which is subject to appeal, in at least one newspaper of general circulation within the Town.
B.
Post, in a conspicuous place on the property involved, a notice of pending action containing the same information as in Subsection A above, such posting to take place at least 15 days prior to the date fixed for the public hearing.
C.
Give written notice of the time and place of such hearing sent to the applicant or appellant and to the owners of record of property contiguous to or opposite the property affected.
§ 405-68 Effect of appeals.
An appeal stays all proceedings in furtherance of the action appealed from, unless the Zoning Administrator from whom the appeal is taken certifies to the Board of Zoning Appeals, after notice of appeal shall have been filed with the Zoning Administrator, that, by reason of the facts stated in the certificate, a stay would, in the Administrator's opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed otherwise than by a restraining order, which may be granted by the Board of Zoning Appeals or by a court of record on application, on notice to the Zoning Administrator and on due cause shown.
§ 405-69 Review by Planning Commission.
The Board shall request an advisory opinion from the Planning Commission on any application for a special exception, and the Board shall consider such advisory opinion, if any, prior to making a decision on an application.
§ 405-70 Decisions.
A.
Decisions by the Board on special exceptions, variances and interpretation appeals shall be rendered within 30 calendar days of the hearing on said exception, variance or interpretation, unless a later date is mutually agreed upon by the Board and applicant. The Zoning Administrator shall notify the applicant, the Mayor and Council, and the Planning Commission in writing concerning the Board of Zoning Appeals decision.
B.
In exercising its powers concerning interpretation appeals, the Board may, in conformity with law and the provisions of this chapter, reverse or affirm, wholly or in part, or may modify the order, requirement, decision or determination appealed from and make such order, requirement, decision, or determination as ought to be made and, to that end, shall have all the powers of the officer from whom the appeal is taken.
C.
In making its decision pursuant to the authority conferred by this chapter, the Board shall study the specific property involved, as well as the neighborhood, and consider all testimony and data submitted and shall hear any person desiring to speak for or against the issuance of the permit. However, the application for a permit shall not be approved where the Board finds that the proposed building, addition, extension of building or use, sign, use or change of use would adversely affect the public health, safety, security, morals, or general welfare or would jeopardize the lives or property of people living in the neighborhood. In deciding such matters, the Board may give consideration, among other things, to the following:
(1)
The orderly growth of the community, as expressed in the Comprehensive Development Plan for the Town of Smithsburg.
(2)
The number of people residing or working in the immediate area.
(3)
Traffic conditions and facilities.
(4)
The effects of such use upon the peaceful enjoyment of people in their homes.
(5)
The conservation of property values.
(7)
The most appropriate use of land and structure.
(8)
Decision of the courts.
(9)
The purpose of these regulations as set forth herein.
(10)
Type and kind of structures in the vicinity where public gatherings may be held, such as schools, churches and the like.
§ 405-71 Time limitations.
A decision of the Board permitting the erection or alteration of a building shall be valid for a period of one year, unless a zoning permit for such erection or alteration is obtained within this period and the erection or alteration proceeds to completion in accordance with the terms of the decision. No decision of the Board permitting the use of a building or land shall be valid for a period longer than one year, unless such use is established within said period, except that, where such use is dependent upon the erection or alteration of a building, such order shall continue in force and effect if a zoning permit for such erection or alteration is obtained within said period, and such erection or alteration proceeds to completion in accordance with the terms of the decision.
§ 405-72 Appeals to court. [1]
Any person or persons, jointly or severally, aggrieved by any decision of the Board or any taxpayer of the Town or any officer, department, board or bureau of the Town may appeal the same to the Circuit Court of Washington County in a manner set forth in § 4-401 et seq. of the Land Use Article of the Annotated Code of Maryland, as amended.
§ 405-73 Disapproval of application.
If the application is disapproved, thereafter, the Board shall take no further action on another application for substantially the same proposal on the same premises until after 12 months from the date of such disapproval, unless ordered by a court having jurisdiction in such matters.