A.
A Board of Appeals is hereby established (hereinafter called the "Board"). The Board shall consist of five members to be appointed by the Mayor and Council. Of the initial appointees to the Board, one shall be designated to serve until the first day of January following the date of the enactment of this chapter, two until the first day of the second January thereafter and two until the first day of the third January thereafter or until their successor takes office. Their successors in office shall be appointed on the expiration of their respective terms to serve three years. Members may be removed for cause by the Mayor and Council, upon written charges and after a public hearing. Vacancies shall be filled for the unexpired term of any member whose seat becomes vacant.
B.
The persons appointed to this Board shall be selected for their understanding of and appreciation for zoning principles, knowledge as to the conditions in the community and of its planning objectives and policies, general civic interest, as opposed to special or private interest, and a fair, judicial approach.
A.
The Board shall elect a Chairman from its membership. The Chairman's term shall be 12 months with eligibility for reelection.
B.
The Board shall have at least three members present and voting to conduct business. When a quorum (three members) is present at least two members must vote in favor of any matter in order for it to be approved.
C.
The Board shall adopt rules for the transaction of business which shall be posted and be available to the public in written form.
D.
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. All meetings of the Board shall be open to the public.
E.
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 examinations and other official actions, all of which shall be filed immediately in the office of the Board and shall be public record. All actions of the Board shall be by resolution and in keeping with all applicable state and federal laws and regulations. As to every application heard by the Board, it shall issue a written finding of facts and decision.
F.
The Board may call upon any Town official or department head for assistance in the performance of its duties, and it shall be the duty of such officers to render such assistance to the Board as may reasonably be required.
G.
It shall be the duty of the Code Enforcement Officer to serve as Secretary and administrative officer for the Board of Appeals. One of his duties shall be to investigate each case and prepare a report thereon for the information and assistance of the Board.
A.
Applications: when and by whom taken. An application, in cases in which the Board has original jurisdiction under the provisions of this chapter, may be made by any property owner or contract purchaser or by a governmental officer, department, board or bureau. Such application shall be filed with the Code Enforcement Officer who shall transmit the same to the Board.
B.
Appeals: when and by whom taken. An appeal to the Board may be taken by any person aggrieved or by any officer, department, board or bureau affected by any decision of the Code Enforcement Officer. Such appeal shall be taken within 20 days after the decision by filing with the Code Enforcement Officer and with the Board a notice of appeal specifying the grounds thereof. The Code Enforcement Officer shall transmit to the Board all the papers constituting the record upon which the action appealed from was taken.
C.
Fees. A filing fee shall accompany each application or appeal to the Board, as may be determined by the Mayor and Council (See § 200-27).
D.
Hearings.
(1)
The Board shall fix a reasonable time for the hearing of the application or appeal.
(2)
The Board shall give at least 14 days' notice of the time and place of such hearing in a newspaper of general circulation in the community once each week for two successive weeks with the first notice appearing 14 days prior to the hearing.
(3)
Notice shall be given to the parties in interest.
(4)
The property shall be posted conspicuously with a notice of the hearing.
(5)
The Board shall decide the same within a reasonable time.
(6)
At the hearing, any party may appear in person or by agent or attorney.
E.
Stay of proceedings. An appeal shall stay all proceedings by all agencies and by all persons affected by the action appealed from unless the Code Enforcement Officer certifies to the Board, after notice of appeal shall have been filed with him, that by reason 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 on notice to the officer from whom the appeal is taken and on due cause shown. This section shall not be construed to permit the continuance of any action constituting or compounding a violation hereof, it being the intent that all agencies and persons, including the applicant and the department involved in the matter, cease all actions affecting the same (unless exception is made as herein provided) until the Board has decided the matter.
F.
Action of the Board. In exercising its powers, the Board may, in conformity with the provisions of statute and of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may 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.
G.
Repeated applications. If an application or appeal is disapproved by the Board of Appeals, thereafter the Board shall not be required to consider another application for substantially the same proposal on the same premises until after one year from the date of such disapproval. If an appeal to the Board is perfected and the public hearing advertised and thereafter the applicant withdraws the application or appeal, he shall be precluded from filing another application or appeal for substantially the same proposal on the same premises for one year. In the case of withdrawal of an application by the applicant, the Board may, by formal resolution, specify that the time limitation shall not apply.
A.
Who may appeal. The Planning Commission, the Mayor and Council or any person with standing aggrieved by any decision of the Board of Appeals or by a reclassification by the Mayor and Council may appeal the same to the Circuit Court for Worcester County.
B.
Time for appeal. The time for appeal shall be governed by the Maryland Rules of Procedure and shall run from the date of the mailing of the decision and findings of fact to the applicant and all other parties who have requested the findings and decision, in writing, at the hearing. In the event that a decision of the Board of Appeals is announced prior to such mailing or delivery, a permit may be issued based on such decision, but the permittee shall take the same at his own risk.
C.
Record; additional testimony. If, upon the reading of the record, it shall appear to the court that additional testimony or other evidence 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 its 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.
D.
Costs against Board of Appeals. Costs shall not be allowed against the Board of Appeals unless it shall appear to the Circuit Court that the Board acted with gross negligence or in bad faith or with malice in making the decision appealed from.
E.
Decision of Circuit Court; appeal to other courts; costs. An appeal may be taken to the State Court of Special Appeals or the State Court of Appeals during the period and in the manner prescribed by the rules of the Court of Appeals from any decision of the Circuit Court. In such cases, the award of costs shall be subject to the discretion of the Court of Appeals.
A.
Administrative errors. The Board of Appeals shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter.
B.
Interpretation and adjustment of Zoning Map and district lines. The Board may determine, after notice to the owners of the properties affected and after public hearing, boundaries of districts as follows:
(1)
Where the street or lot actually on the ground or as recorded differs from the street or lot lines shown on the Zoning Map, the Board shall interpret the map in such a way as to carry out the intent and purpose of this chapter for the particular section or district in question.
(2)
Where the boundary of a district divides a lot held in a single ownership on the effective date of this chapter, the Board may permit the extension of either district, but not more than 200 feet beyond said boundary line.
C.
Determination of use categories and subcategories.
(1)
When a use cannot be reasonably classified into a use category, subcategory or specific use type, or appears to fit into multiple categories, subcategories or specific use types, the Board of Appeals is authorized to determine the most similar and thus most appropriate use category, subcategory or specific use type based on the actual or projected characteristics of the principal use or activity in relationship to the use category, subcategory and specific use type descriptions provided in this section. In making such determinations, the Board of Appeals must consider:
(a)
The types of activities that will occur in conjunction with the use;
(b)
The types of equipment and processes to be used;
(c)
The existence, number and frequency of residents, customers or employees;
(d)
Parking demands associated with the use; and
(e)
Other factors deemed relevant to a use determination.
(2)
If a use can reasonably be classified in multiple categories, subcategories or specific use types, the Board of Appeals must categorize the use in the category, subcategory or specific use type that provides the most exact, narrowest and appropriate "fit."
(3)
If the Board of Appeals is unable to determine the appropriate use category for a proposed use, the Board of Appeals is authorized to classify the use as a prohibited use.
D.
Temporary uses. Upon the showing of good cause, the Board may authorize by way of special exception the temporary use of a building or premises in any district for a purpose or use that does not conform to the regulations prescribed by this chapter for the district in which it is located, provided that such use is of a temporary nature and does not involve the erection of substantial buildings. In granting such a special exception, the Board may impose such conditions as will safeguard the public health, safety, convenience and general welfare. Such a temporary use shall not be permitted for a period of longer than 12 months, shall not be renewable except when the Board of Appeals finds that the temporary use is solely dedicated to performing a service that is in the public interest and shall be recoverable at any time by the Board.
E.
Special exceptions.
(1)
The Board shall have the power to hear and decide applications for only such special exceptions as the Board is specifically authorized to pass on according to provisions of this chapter and to decide such questions as are involved in determining whether special exceptions should be granted. A special exception may be granted only when the Board finds from a preponderance of the evidence of record that the proposed use or structure:
(a)
Will be consistent with the Comprehensive Plan.
(b)
Will be in harmony with the general character of the neighborhood considering population density, design, scale and bulk of any proposed new structures, intensity and character of activity, traffic and parking conditions or number of similar uses.
(c)
Will not be detrimental to the use, peaceful enjoyment, economic value or development of surrounding properties or surrounding neighborhoods and will cause no objectionable noise, vibration, fumes, odors, dust, glare or physical activity.
(d)
Will have no detrimental effect on vehicular or pedestrian traffic.
(e)
Will not adversely affect the health, safety, morals, security or general welfare of residents, workers or visitors in the area.
(f)
Meets the definitions and specific standards set forth elsewhere in this chapter for such use.
(2)
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.
(3)
Unless otherwise designated by the Board, any special exception shall be implemented within 12 months from its approval. If it has not been so implemented, it shall be considered abandoned and shall terminate.
(4)
In the event that any special exception which has been implemented is abandoned or ceased for a period of 12 consecutive months, it shall be considered abandoned and shall terminate.
F.
Variances.
(1)
The Board of Appeals shall have the power to authorize, upon appeal, in specific cases such variances from the terms of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of this chapter would result in unwarranted hardship. A variance from the terms of this chapter shall not be granted unless and until the applicant has demonstrated each of the following:
(a)
Special conditions and circumstances exist which are peculiar to the land, structure or building involved.
(b)
Literal interpretation of the provisions of this chapter would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this chapter.
(c)
The special conditions or circumstances did not result from actions of the applicant.
(d)
Granting the variance requested will not confer upon the applicant any special privilege that is denied by this chapter to other lands, structures or buildings in the same district.
(2)
A variance shall only be granted which modifies the density, bulk or area provisions of this chapter and under no circumstances shall the Board of Appeals grant a variance which would allow a use not permissible under the terms of this chapter in the district involved.
H.
Conditions. In granting any variance, special exception or expansion of a nonconforming use or structure, the Board may prescribe appropriate conditions and safeguards in conformity with this chapter and other regulations. Violations of such conditions and safeguards, when made a part of the terms under which the variance or special exception is granted, shall be deemed a violation of this chapter and shall be punishable under the provisions of § 200-24 hereof and, at the discretion of the Board after notice and hearing, shall be grounds for termination or revocation of the variance or special exception itself.
I.
Bond. The Board may require a bond in cases where it deems such to be appropriate. Such bond will be to the Mayor and Council and shall be to the satisfaction of the Mayor and Council.
