Wicomico County Unincorporated
City Zoning Code
City Zoning Code
PART 13
Appeals, Interpretations, Variances and Special Exceptions
§ 225-154 Appeal from enforcing officer's decision.
A.
Appeal. Any person or persons aggrieved by any decision of the enforcing officers as identified in § 225-11, or by a decision by the Wicomico County Planning and Zoning Commission authorized by the provisions of this chapter, may appeal said decision to the Wicomico County Board of Appeals.
B.
Time for appeal. A written notice of appeal shall be submitted to the Department of Planning, Zoning and Community Development within 30 days from the officer's decision.
C.
Costs. Costs of the appeal shall be established by the County Council and may be changed from time to time as necessary.
[Amended 10-17-2006 by Bill No. 2006-11]
D.
Stay. An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal was taken certifies to the Board of Appeals, after notice of appeal shall have been filed, that by reason of the 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 an order which may be granted by the Board of Appeals on due cause shown.
§ 225-155 Special exceptions.
A.
Purpose. It is the purpose of this section to establish the procedures and criteria for evaluating special exceptions authorized by the terms of this chapter.
(1)
A special exception is a land use activity authorized only after a public hearing held before the Board of Appeals or Planning Commission pursuant to the provisions of this chapter.
(2)
All such uses have been legislatively predetermined to be compatible with inherently permitted uses in a particular zoning district, provided that each use meets the specific standards of approval as required and that the proposed location and site are appropriate for the type of use proposed.
B.
Special exceptions permitted.
(1)
It is the duty of the Board of Appeals or Planning Commission to evaluate all such special exceptions herein authorized and to decide in each case, under the standards set forth below, whether or not each special exception does in fact meet the Council's presumed compatibility for the location and area in which it is located.
(2)
All those special exceptions specifically listed in each zoning district defined in this chapter shall be heard by the Board of Appeals, except those special exceptions which require a development plan or site plan approval to be reviewed by the Planning Commission shall be heard and may be granted by the Planning Commission in accordance with the provisions and criteria of this Part 13.
C.
Criteria for approval. A special exception may be granted when the Board of Appeals or Planning Commission finds from a preponderance of the evidence produced at a public hearing, where applicable, that:
(1)
The proposed use is consistent with the Comprehensive Plan or a specific area plan for the physical development of the county or a portion thereof, as adopted by the County Council.
(2)
The proposed use will not adversely affect the health, safety and general welfare of the residents or workers in the area.
(3)
The proposed use is compatible with and will not be detrimental to the use or development of adjacent properties or the general neighborhood.
(4)
The proposed use meets all of the standards set forth for each particular use for which a special exception may be granted.
(5)
The proposed use has been designed so as to minimize possible adverse effects on adjacent properties or on the immediately surrounding area.
(6)
The proposed use will not adversely affect the transportation network or unduly burden water, sewer, school, park, stormwater management areas, including streams, or other public facilities.
(7)
The proposed use will not adversely affect the environmental, archeological or historical assets of particular interest to the community as may be identified in any adopted plan of the county.
D.
Before granting any final approval for a special exception in Part 4, Article XI, Institutional, Business and Industrial District, the Board or Commission, at its discretion, may require:
(1)
An impact analysis of the proposed activity, including but not limited to governmental service impacts, environmental impacts, traffic impacts, financial impacts or any other matter deemed pertinent to the issue before the Board or Commission. Any such analysis shall be conducted in a manner as determined by the Board or Commission. The costs of any such analysis shall be borne by the applicant.
(2)
The posting of bonds or other financial guaranty to assure compliance with all conditions established by the Board or Commission.
E.
Failure to comply with such conditions or restrictions imposed shall be grounds to render the special exception null and void.
F.
No special exception may be altered, expanded, or modified without the approval of the approving authority with current jurisdiction over the use. At such time as an alteration, expansion, or modification is approved, the Board of Appeals or Planning Commission may imposed additional conditions or modify existing conditions and shall evaluate the expansion or modification of the special exception under the same criteria as the initial approval.
G.
Setback requirements. Wherever a special exception shall be granted within a district, the special exception shall conform to the permitted uses within the district in respect to front, side and rear setback requirements unless otherwise modified by the Board of Appeals or Planning Commission.
H.
A special exception which shall remain idle and unused for a continuous period of more than one year, whether or not fixtures or equipment are removed, shall be considered null and void.
§ 225-156 Variances.
A.
Authorization. The Board of Appeals may authorize, upon application in conformance with § 225-157, Application for matters of original jurisdiction, before the Board, a variation or modification from the quantitative numerical requirements of this chapter if such variation or modification would not be contrary to the public health, safety or welfare.
B.
Criteria. In order to vary or modify the noncritical area provisions of this chapter, the Board of Appeals must determine that the application meets all of the criteria set forth below.
(1)
Certain unique physical characteristics exist, such as unusual size or shape of the property or extraordinary topographical conditions, such that a literal enforcement of the provisions of this chapter would result in practical difficulty in enabling the applicant to develop the property;
(2)
The granting of the variance is not based upon circumstances which are self-created or self-imposed;
(3)
The need must be substantial and urgent and not merely convenient;
(4)
Applicant's grounds are not based on financial difficulty alone;
(5)
The granting of the variance will not be contrary to the public interest and will not be a detriment to adjacent or neighboring properties;
(6)
The variance will not exceed the minimum adjustment necessary to relieve the practical difficulty or unreasonable hardship; and
(7)
Greater profitability or lack of knowledge of the restrictions shall not be considered sufficient cause for a variance.
§ 225-157 Application for matters of original jurisdiction.
A.
Before any land may be used for a special exception which is permitted in this chapter or a variance granted to these regulations, an application must be made that shall be accompanied by a site diagram and such other information as may be necessary to provide for the enforcement of this chapter or upon which to base an inspection prior to passing on the application, as required by the Planning Director and the Zoning Administrator.
C.
When granting special exceptions or variances, the authorizing authority shall instruct the Zoning Administrator to issue the zoning authorization in accordance with any conditions of approval and an approved site design or site plan, as appropriate.
(1)
In authorizing a variance or special exception, the Board or Commission may impose such conditions and restrictions upon the site design, architectural character, location, type of construction, ingress and egress, landscaping, screening and operation as deemed necessary to mitigate any potential adverse impacts upon adjacent properties or the general area and to ensure compliance with the standards, criteria or other specific requirements set forth in this chapter as it may deem necessary, consistent with the spirit and intent of the zoning regulations.
(2)
The decision and supporting findings and any conditions attached to the decision shall become a part of the written record of the public hearing.
D.
Whenever a special exception or variance is granted under the provisions of this chapter, it shall be exercised by the grantee therein named within 12 months from the date of its issuance, or it shall become null and void.
E.
The authorizing authority may grant extensions to Subsection D above if the grantee provides just cause for the delay to the satisfaction of the Board or Commission.
F.
Notwithstanding any other provisions of this chapter, and without regard to the standards for appeals, variances or special exceptions set forth elsewhere in this Code, the Board of Appeals and other permitting authorities and officials shall made reasonable accommodations for the benefit of disabled citizens and religious practices in the consideration of any building permit, administrative appeal, special exception or variance.
§ 225-158 Burden of proof in appeals and matters of original jurisdiction.
A.
Administrative official appeals on the record. When an appeal is taken to the Board of Appeals from the decision of any administrative officer or board authorized within this chapter or another chapter of the Wicomico County Code granting authority of appeal to the Board of Appeals, the Zoning Administrator shall have the initial burden of presenting to the Board sufficient evidence and argument to justify the order or decision appealed from. The burden of presenting evidence and argument to the contrary then shifts to the appellant, who shall also have the burden of persuasion.
B.
Original jurisdiction applications. The burden of presenting evidence sufficient to allow the Board of Appeals to reach the conclusions, as well as the burden of persuasion on those issues, remains with the applicant seeking the variance, special exception or any other matter heard de novo by the Board.
§ 225-159 Appeal from decisions of the Board of Appeals.
A.
Any person or persons, jointly or severally aggrieved by any decision of Board of Appeals, or any taxpayer or any officer, department, board or bureau, upon written authority of the county, may present to the Circuit Court of Wicomico County a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the Court within 30 days after filing of the decision in the office of the Board of Appeals.
B.
Costs of appeal. In the event of an appeal to the Circuit Court, the appellant shall bear the cost of preparing the necessary documents as required by the Court.
(1)
These charges shall include, but not be limited to, the cost of transcribing, preparing and submitting a transcript from the minutes of the Board of Appeals, employee's time involved and required materials.
(2)
The statement of these expenses shall be itemized and submitted to the attorney representing the appellant or the appellant for payment.
(3)
No permits shall be issued unless the Board has been reimbursed for its costs.
C.
An appeal stays all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal was taken certifies to the Board of Appeals, after notice of appeal shall have been filed, that, by reason of the 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 an order which may be granted by the Board of Appeals or by a court of record on application and notice to the officer from whom the appeal is taken and on due cause shown.