Westminster City Zoning Code
ARTICLE XXII
Board of Zoning Appeals
§ 164-160 General provisions.
The Board of Zoning Appeals of Westminster is hereby created and designated the "Board of Appeals."
A.
The Board of Appeals consists of three members who shall be residents of the City. In addition, there shall be one alternate member empowered to sit on the Board in the absence of any member of the Board. When the alternate is absent, a temporary alternate shall be designated.
B.
The terms of office of the members of the Board are three years. They shall be appointed by the Mayor, confirmed by the Common Council and removable for cause, upon written charges and after public hearing.
C.
Vacancies shall be filled for the unexpired term of any member whose term becomes vacant.
D.
Members of the Board may receive such compensation as the Common Council deems appropriate.
E.
Persons appointed to the Board shall be selected for their understanding of and appreciation for principles of zoning, knowledge of conditions in the community and its plans, policies, objectives, general civic interest and fair judicial approach.
F.
Neither the Mayor nor any member of the Common Council shall serve as either a member, alternate member or temporary alternate member of the Board of Appeals.
§ 164-161 Powers and duties.
A.
The Board shall have the following powers:
(1)
To hear and decide appeals where it is alleged that there is an error in any order, requirement, decision or determination made by an administrative official, including the Zoning Administrator, in regard to the enforcement of this chapter or of any ordinance adopted pursuant thereto.
(2)
To hear and decide special exceptions as such exceptions are authorized by this chapter.
(3)
To authorize upon appeal in specific cases such variances from the terms of this chapter as are necessary to avoid arbitrariness and so that the spirit of this chapter shall be observed and substantial justice done.
(a)
Such variances shall be authorized by the Board only upon a finding by the Board that:
[1]
There are exceptional or extraordinary circumstances or conditions applying to the property in question or to the intended use of the property that do not apply generally to other properties or classes of uses in the same zone;
[2]
Such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same zone and in the same vicinity; and
[3]
The authorizing of such variance will not be of substantial detriment to adjacent properties and will not materially impair the purpose of this chapter or the public interest.
(b)
This subsection shall not be construed to permit the Board, under the guise of a variance, to change the use of land.
B.
In exercising the above-mentioned power in appeals, the Board may, in conformity with the provisions of law and this chapter, reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as the Board deems necessary and to that end shall have all the powers of the office from whom the appeal is taken.
C.
The Board is also empowered to adopt and promulgate such rules and regulations as it shall deem necessary to perform its responsibilities, including the conduct of its hearings and the issuance of its decision.
§ 164-162 Meetings.
A.
The Board shall be organized and its rules shall be adopted in accordance with the provisions of the Charter and this chapter. Meetings of the Board shall be held at the call of the Chairman and at such other times as the Board may determine. The Chairman or, in his absence, the Acting Chairman may administer oaths and compel the attendance of witnesses. For assistance in reaching decisions relative to appeals, special exceptions or variances, the Board may request testimony at its hearings for purposes of securing technical aid or factual evidence from the Commission or any agency or person.
B.
All meetings of the Board shall be open to the public. The Board shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its official actions, all of which shall be immediately filed in the office of the Board and shall be a public record.
§ 164-163 Appeals.
Appeals to the Board shall be taken within 30 days after the decision by filing with the officer from whom the appeal is taken and with the Board a notice of appeal, specifying the grounds therefor. The officer from whom the appeal is taken, including the Zoning Administrator, shall forthwith transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
§ 164-164 Stay of proceedings.
An appeal shall stay all proceedings in furtherance of the action appealed from unless the official from whom the appeal was taken certifies to the Board, after the notice of appeal has been filed with him, that by reasons of facts stated in the certificate a stay would, in his 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 or by a court of record, on application, after notice to the officer from whom the appeal was taken and on due cause shown.
§ 164-165 Special exception petitions.
A.
Filing of petition. Petitions for the grant of special exceptions shall be filed with the Board on forms provided therefor. The petitioner shall submit site development plans, specifications or other data, including architectural plans or explanatory material, stating the methods by which he will comply with the conditions specified for each grant of special exception. At the time of filing his request for a grant of special exception, the petitioner shall pay to the Board the fee provided in § 164-174.
B.
Zoning Map to indicate special exception. Upon receipt of a notice of a grant of special exception, the Zoning Administrator shall indicate the same in the proper place on the Zoning Map by use of appropriate code number or symbol.
§ 164-166 Actions prior to hearing.
Upon the filing of a notice of appeal or a petition for special exception, the Board shall take the following action preparatory to holding a hearing:
A.
The Board shall fix a reasonable time for a hearing of the appeal or petition.
B.
Notice of the hearing shall be advertised in two issues of a newspaper having general circulation in the City, and the first insertion shall appear in such newspaper at least 20 days prior to such hearing.
C.
The property with which the appeal or petition is concerned shall be posted conspicuously by the Zoning Administrator stating the time, date, place and purpose of the hearing at least 14 days before the date of the hearing. Said sign shall be maintained continuously, and at the hearing the appellant or petitioner shall have the duty of proving by affidavit that this provision has been met up to the time of the hearing. It shall be unlawful for anyone except the Zoning Administrator to remove or tamper with any sign during the period that it is required to be maintained.
D.
Notification by certified mail shall be made to the appellant or petitioner and to the owners of those properties and the addresses certified on the notice of appeals or petition for special exception, respectively, by the appellant or petitioner as being contiguous to the property with which the hearing is concerned. Properties facing the property and across a street or public right-of-way shall also be considered contiguous.
E.
Upon written request to the Board by any interested party at least 10 days prior to the date of the scheduled hearing, the Board shall be required to visit the property in question before the hearing. The Board may otherwise visit the specific property prior to the hearing.[1]
[1]
Editor's Note: Former Subsection F, regarding petitions for special exceptions, which immediately followed, was repealed 12-13-2021 by Ord. No. 938.
§ 164-167 Public hearings.
A.
Before making its decision on any appeal or petition, the Board shall hold a public hearing, at which time any party may appear and be heard in person or by agent or by attorney.
B.
The Board in its rules and regulations may prescribe regulations pertaining to the submission of documentary evidence into the record prior to the hearing.
C.
Subject to the provisions of Subsection B, any party has the right to submit oral or written testimony or documentary evidence into the record.
D.
The Board may consider the Zoning Map as a part of the record. It may also exclude evidence which is immaterial, irrelevant or unduly repetitious.
E.
The Board shall keep minutes of its proceedings, meetings and hearings.
§ 164-168 Postponement or continuation of hearing.
A.
Requests for postponement of a scheduled hearing shall be filed, in writing, with the Board not less than 10 days prior to the date of hearing and shall be accompanied by a sum of money sufficient to pay the cost of advertising the postponement and the rescheduled hearing. The granting of such requests shall be at the discretion of the Chairman of the Board.
B.
Requests for postponement filed later than 10 days prior to the date of a scheduled hearing shall, in addition to the other requirements set forth in Subsection A, be supported by an affidavit of the party making the request or of some other creditable person. The granting of such request shall be at the discretion of the Board, in cases of extreme hardship, or upon good cause shown.
C.
The Board may, upon its own initiative, postpone a scheduled hearing at any time, but shall readvertise the new hearing date in accordance with § 164-166B.
D.
Once started, the Board may continue a hearing to a date, time and place certain on public announcement given at the hearing specifying such new date, time and place, and no additional notice of continued hearings shall be required.
§ 164-169 Criteria for determination.
In the exercise of its responsibilities under this chapter, the Board shall study the specific property involved, as well as the neighborhood, shall consider all testimony and data submitted and shall hear any person desiring to speak for or against the appeal or petition.
A.
In making its determination, the Board may consider whether the appeal or petition would adversely affect the public health, safety, security, morals or general welfare, would result in dangerous traffic conditions or would jeopardize the lives or property of people living in the neighborhood.
B.
In deciding such matters, the Board may consider the following factors, together with other relevant factors:
(1)
The number of people residing or working in the immediate area concerned.
(2)
The orderly growth of a community.
(3)
Traffic conditions and facilities.
(4)
The effect of such use upon the peaceful enjoyment of people in their homes.
(5)
The conservation of property values.
(6)
The effect of odors, dust, gas, smoke, fumes, vibrations, glare and noise upon the use of surrounding property values.
(7)
The most appropriate use of land and structure.
(8)
Prior decisions of the courts regarding such matters.
(9)
The purpose of the regulations as set forth in this chapter.
(10)
The type and kind of structures in the vicinity where public gatherings may be held, such as schools, places of worship and the like.
[Amended 5-13-2019 by Ord. No. 910]
(11)
Facilities for sewers, water, schools, transportation and other services and the ability of the City to supply such services.
(12)
Limitations of fire-fighting equipment and the means of access for fire, police and health services.
(13)
The preservation of cultural and historical landmarks.
(14)
Traffic conditions, including facilities for pedestrians, such as sidewalks, safety zones, parking facilities available and the safe access of cars to highways or roads.
(15)
The contribution, if any, that such proposed use, building or addition would make toward the deterioration of areas and neighborhoods.
§ 164-170 Conditions for grant of special exceptions.
A.
The Board may grant a special exception when it finds from a preponderance of the evidence of record that:
(1)
The proposed use does not adversely affect the general plan for the physical development of the district, as may be embodied in this chapter and in any Master Plan or portion thereof adopted by the Commission;
(2)
The proposed use at the location selected will not:
(a)
Adversely affect the health and safety of residents or workers in the area;
(b)
Overburden existing public services, including water, sanitary sewer, public roads, storm drainage and other public improvements; or
(c)
Be detrimental to the use or development of adjacent properties or the general neighborhood or change the character of the general neighborhood in which the use is proposed, considering the service required, at the time of the application, the population, density, character and number of similar uses; and
(3)
The standards set forth for each particular use for which a special exception may be granted have been met.
B.
The applicant for a special exception shall have the burden of proof, which shall include the burden of going forward with the evidence and the burden of persuasion on all questions of fact which are to be determined by the Board.
§ 164-171 Other restrictions; remedies.
A.
The Board is hereby empowered to add the specific provisions that it may deem necessary to protect adjacent properties, the general neighborhood and the residents and workers therein, including provisions such as special setbacks, landscaping, parking, lighting restrictions, limited business hours and other restrictions. The Board may also specify a time limit for the implementation of a special exception.
C.
Whenever the Board shall find, in the case of any exception heretofore or hereafter granted pursuant to the provisions of this article, that any of the terms, conditions or restrictions upon which such exception was granted are not being complied with, the Board is authorized, after due notice to all parties concerned and granting full opportunity for a public hearing, to suspend or revoke such exception or take other action as it deems necessary to ensure compliance. The Board is authorized to request and obtain investigations and reports as to compliance from such City, county or state agencies or administrative officers as may be appropriate.
§ 164-172 Decisions.
A.
Ex parte or private communications. A member shall not consider any ex parte or private communication from any person, whether oral or written, which he knows is or reasonably may be intended to influence unlawfully the decision on the merits of any matter pending before the Board of Appeals or an appeal therefrom to a court of competent jurisdiction. Any such ex parte or private communication received and considered shall be made of public record by the recipient and, if made orally, shall be written down in substance for this purpose by the recipient. A communication to the Board of Appeals concerning the status or procedures of a pending matter shall not be considered an ex parte or private communication. This subsection shall not apply to legal advice rendered by the City Attorney or his staff and shall not apply to technical advice or explanation by governmental agencies at the request of a member or members of the Board.
B.
The Board shall render its decisions, in writing, within a reasonable time. Said decisions shall contain a statement of the grounds and findings upon which they are based. A copy of such decisions shall be promptly mailed by the Board to the appellant or petitioner and to all parties to the proceeding or their representatives before the Board as shown by a list to be maintained by the Board in each case, and a copy shall be furnished to the Zoning Administrator.
C.
The concurring vote of two members of the Board shall be necessary to reverse any order, requirement, decision or determination of any administrative official or to decide in favor of the applicant on any matters upon which it is required to pass under this chapter or to effect any variance from this chapter.
§ 164-173 Effect of disapproval.
If disapproved, no appeal or petition requesting substantially the same relief in regard to the same property shall be received or heard by the Board for a period of two years following the Board's disapproval or, in the event that the Board's decision is appealed, for a period of two years following the date of final disposition of such appeal, except that this limitation shall not affect the Board's right to grant a rehearing in the original proceeding if such rehearing is provided in the Board's rules of procedure. In the event of an appeal or application which is withdrawn before the Board hearing, the above time period shall be reduced to one year.
§ 164-174 Filing fees.
§ 164-175 Appeals from Board.
A.
Who may appeal; procedure. Any person or persons, jointly or severally, aggrieved by any decision of the Board of Appeals or any taxpayer or any officer, department, board or bureau of the City may appeal the same to the Circuit Court for Carroll County. Such appeal shall be taken according to the Maryland Rules as set forth in Chapter 1100, Subtitle B of the Annotated Code of Maryland.
B.
Hearing; additional testimony. If upon the hearing it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the Court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court shall be made.
C.
Costs not allowed against Board; exception. Costs shall not be allowed against the Board unless it shall appear to the Circuit Court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.
D.
Issues under section have preference. All issues in any proceeding under this section shall have preference over all other civil actions and proceedings.
E.
Decision of Circuit Court; appeal to Court of Special Appeals; costs. Upon its determination of a case, the Circuit Court shall file a formal order embodying its final decision. An appeal may be taken to the Court of Special Appeals, during the period and in the manner prescribed by the Maryland Rules, from any decision of the Circuit Court. In such cases the award of costs shall be subject to the discretion of the Court of Special Appeals.