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Board of Appeals User Guide

Introduction

This brochure is a summary of how to file applications and participate in the processes for variances, administrative appeals, modifications of existing special exceptions and those conditional uses granted by the Board, and oral argument regarding conditional use decisions rendered by the Hearing Examiner. Chapter 59-7 of the current (2014) Zoning Ordinance, Chapter 59-G of the previous (2004) Zoning Ordinance, the Rules of Procedure of the Board of Appeals, and Chapters 2 and 2A of the Montgomery County Code contain the legal requirements for these various undertakings. The staff of the Board of Appeals is available to answer any questions you may have.

Welcome to the Board of Appeals

This brochure will tell you how to apply for a variance, modification of an existing special exception, modification of a conditional use granted by the Board, or oral argument on a conditional use decision - or how to oppose those applications – as well as how to file an administrative appeal. It will also tell you what to expect at the hearing and what happens once the Board has made a decision about a request. We want our process to be fair and easy to understand for all participants.

About the Board

The Board of Appeals is a five member quasi-judicial body. The County Council appoints the members of the Board of Appeals, who serve staggered four-year terms and may be reappointed. Board members cannot serve more than two full terms (but can serve more than eight years if initially appointed to fill a mid-term vacancy), and not more than three of the five members can be from the same political party.

The Board holds public hearings on Wednesdays, and worksessions usually every other Wednesday. All meetings are open to the public except when legal advice or personnel matters are discussed. We encourage the public to participate at hearings, but the worksessions are for members to discuss and decide cases that already have had public hearings. Therefore, while worksessions are open to the public, public participation is generally limited at worksessions.

The Board members standing are, from left to right: Bruce A. Goldensohn and Edwin S. Rosado.
The Board members seated are, from left to right: Stanley B. Boyd, Carolyn J. Shawaker, Chair, and John H. Pentecost, Vice Chair.

Relations With Other Governmental Agencies - top

Conditional use applications, and major modifications of existing special exceptions, are referred to the Montgomery County Planning Department for technical evaluation. The Board of Appeals may also refer variances to the Planning staff, but usually does not. In the case of variances, the Planning staff comments only if they perceive a problem or if the Board specifically requests comments. For new conditional use and modification applications, the Planning staff presents its technical report in a hearing before the Planning Board. This hearing usually is held two or three weeks before the Hearing Examiner is scheduled to hear the case. The Planning Board hearings are open and anyone may testify. As an applicant, you should attend the Planning Board hearing; other interested parties certainly may do so. Call (301) 495-4600 for the date of the hearing.

The Planning Board can add conditions or change the staff's recommended conditions, after which the technical staff report is forwarded to the Hearing Examiner and becomes part of the record in the case. The recommendations from the Planning Board and its staff are advisory. However, they carry considerable weight because of the staff's technical expertise.

Applications are also sent to several departments of county government, to the State Highway Administration, and to the Board of Education. These departments and agencies may submit comments to the Board.

The County Department of Permitting Services administers and enforces the Zoning Ordinance and the Board of Appeals’ decisions.

Variances - top

If you plan an addition or renovation to your property - such as a garage, an extra bedroom, or an enlarged kitchen - but cannot do so within the area in which the Zoning Ordinance will allow you to build, you can apply for a variance. Before you file, we strongly encourage you to consult the Department of Permitting Services (DPS) about your project and the precise variance(s) needed. When the DPS reviews your plans and determines that you need a variance, you then can visit the Board of Appeals for the necessary application forms. Forms are available online , or the Board can mail you the forms. The Board’s staff is available Monday through Friday from 8:30 a.m. – 4:00 p.m. to help you with the filing process.

Applying for a Variance

Required Information

Please submit an original and two copies of all the necessary documents. For a small fee, you may make copies on the copying machine in the Board's office. With the completed application forms you will need to give us the following pieces of information:

  1. Application form , application and sign fees;
  2. If the applicant is not the owner of the subject property, documentation of legal interest in the property;
  3. Statement of justification outlining how the proposed development satisfies the criteria for approving the variance;
  4. Survey plat or scaled drawing showing boundaries, frontage, relevant topography, the location and dimensions of all existing and proposed structures, the distances of such structures from the nearest property lines; the drawing must accurately illustrate the requested variance(s), the lot area and all applicable setbacks for the subject property;
  5. Certified copy of official zoning vicinity map showing the area within at least 1,000 feet surrounding the subject property;
  6. List of abutting and confronting property owners in the County tax records; list of any civic and homeowners associations within ½ mile (this information is available at Maryland Department of Assessments and Taxation, www.dat.state.md.us , 30 West Gude Drive, Rockville, MD 20850, 240-314-4510, and from MCAtlas at http://www.mcatlas.org/HOACA/ and http://www.mcatlas.org/zoning/ );
  7. Scale plans, illustrations, sections, elevations or specifications showing all existing and proposed buildings and structures;
  8. Any supplementary documentation to be introduced in support of the application.

When you have filled out the entire form, attached all the necessary information, and paid the application and sign fees , you have officially filed for a variance. The staff will schedule your hearing for the first available hearing date that is at least 35 days after you have filed (to allow time for processing and notice). Staff cannot accept an incomplete application.

The Sign

Having scheduled your hearing date, the staff will give you a sign and directions for posting it. You must post the sign within five days of filing your application. If you have not already spoken to your neighbors about your plans, it is a good idea to do so before posting the sign. You must keep the sign up until you receive the Board's written opinion. If there was opposition to your variance, you must keep the sign posted for 30 days after you receive the written opinion.

When you return the sign, you will receive a 50% refund of the sign fee.

Notification of Abutting and Confronting Property Owners

Using the list you submitted, the Board will send notices of the hearing to the abutting and confronting property owners . The Board will also notify the appropriate civic associations and other governmental agencies.

This notice alerts those around you to your plans. Individuals who oppose your petition for a variance may appear at the hearing without prior notice to express their personal opposition. Persons who are represented by counsel, or who represent an organization such as a homeowners’ organization or a citizens association, must inform the Board in writing of their intention to appear ten days before the hearing date. The pre-hearing submission requirements for organizations or citizens represented by counsel are specified in the Board's Rules of Procedure, which are available online and in our office. Organizations such as homeowners’ associations and citizens associations must be represented by counsel if they wish to participate in the actual hearing.

The File

When your application has been accepted officially, the staff assigns a number to your case and then places all material pertaining to the case in a file. The case file is open to the public, and you should look at the file before the day of the hearing to see if in addition to your own material, other people have submitted letters of support or opposition. Similarly, any person or group opposed to your variance request is also encouraged to come look at the file prior to the hearing date. Anyone interested may copy material from the file on the Board's copying machine, for a small fee.

Standards for Granting a Variance

The Board of Appeals may grant petitions for variances as authorized in section 59-7.3.2 of the Zoning Ordinance upon proof by a preponderance of the evidence that:

  1. denying the variance would result in no reasonable use of the property; or
  2. each of the following apply:
  • one or more of the following unusual or extraordinary situations or conditions exist:
    • exceptional narrowness, shallowness, shape, topographical conditions, or other extraordinary conditions peculiar to a specific property;
    • the proposed development uses an existing legal nonconforming property or structure;
    • the proposed development contains environmentally sensitive features or buffers;
    • the proposed development contains a historically significant property or structure; or
    • the proposed development substantially conforms with the established historic or traditional development pattern of a street or neighborhood;
  • the special circumstances or conditions are not the result of actions by the applicant;
  • the requested variance is the minimum necessary to overcome the practical difficulties that full compliance with this Chapter would impose due to the unusual or extraordinary situations or conditions on the property;
  • the variance can be granted without substantial impairment to the intent and integrity of the general plan and the applicable master plan; and
  • granting the variance will not be adverse to the use and enjoyment of abutting or confronting properties.

An applicant seeking a variance will be subject to the requirements for filing and notice in Section 59-7.3.2 and Section 59-7.5.C. The Board may request technical advice from the Planning Board or technical staff. Upon request, the Planning Board or its technical staff must respond by submitting a written report making a recommendation. If there is an issue of public interest, the Planning Board or its technical staff may, on its own initiative, submit a written report making a recommendation on a variance under this section. Any response will be submitted at least 5 working days before the date set for public hearing, with a copy sent to the parties of record.

The Hearing

At the public hearing, the chairperson will ask you to explain why you are requesting the variance and to prove that you meet the conditions for granting it. The chairperson will also ask if anyone who is present opposes the variance. Once you have given your explanation, Board members and anyone in opposition may ask you questions. Following such questions, those opposing the request may explain the reasons for their opposition. The Board members and you can ask questions of the opposition. After all those attending the hearing and wishing to speak have made their cases, the chairperson usually will close the record.

In most cases, the Board will make its decision as soon as the chairperson closes the record. If for some reason the Board does not make its decision at the hearing, it will decide the case at a worksession. The chairperson will usually announce the proposed date of the worksession, but you should telephone the office to verify the date.

A written opinion is mailed to you and to everyone who received notice of the hearing. The Board's decision becomes effective on the date indicated on the written opinion. If the Board grants your requested variance, and no one opposed your variance, you can apply for a building permit as soon as you receive the written opinion.

Conditional Uses - top

All the land uses permitted in the various zones in the county are listed in the Zoning Ordinance. By legislation, the County Council has specified which uses are permitted by right, and which are limited uses, and which are permitted as conditional uses (under the previous Zoning Ordinance, conditional uses were called special exceptions). By enacting such legislation, the County Council has determined that if certain standards are met, a conditional use is compatible with the uses permitted by right in the zone. The Zoning Ordinance has tables for each zone.

The Board of Appeals does not have jurisdiction over new applications for conditional uses; instead, the Hearing Examiner will hear and decide new applications for conditional uses.

Request for Oral Argument on a Conditional Use Decision

Under Section 7.3.1.F.1.c of the Zoning Ordinance, a party of record or an aggrieved party in a Conditional Use proceeding before the Hearing Examiner may file a written request with the Board of Appeals and the Hearing Examiner to present oral argument to the Board of Appeals. The request must be filed within 10 days after issuance of the Hearing Examiner’s decision on a conditional use and must concisely identify the matters to be presented at the oral argument. Any party of record or aggrieved party may, no later than five days after a request for argument is filed, file a written opposition or request to participate in oral argument. A request for oral argument transfers jurisdiction over the matter to the Board of Appeals.

The Board has the discretion to grant or deny oral argument, and will consider a request for oral argument and any opposition at a worksession. If oral argument is granted, the Board will hear argument at a later date, and will then approve or deny the conditional use application, or remand it to the Hearing Examiner for clarification or the taking of additional evidence. If oral argument is denied, the Board will still approve or deny the conditional use application, or remand it to the Hearing Examiner for clarification or the taking of additional evidence.

Administrative Modification of Conditional Uses Granted by the Board

The Board has the authority to grant minor amendments to those conditional uses that it has granted. The modification of a conditional use without a public hearing is referred to as an administrative or minor modification. Requests for administrative modifications are typically considered by the Board at a worksession.

Section 59-7.3.1.K.2.a of the Zoning Ordinance defines a minor amendment as an amendment [t]hat does not change the nature, character, or intensity of a conditional use to an extent that substantial adverse effects on the surrounding neighborhood could reasonably be expected, when considered in combination with the underlying conditional use.

This is the standard that the Board will use in assessing whether or not to grant the modification.

Information Required for Administrative Modification

  1. Letter detailing the modification request (original plus 10 copies). [ NOTE: If architectural drawings or plans are submitted, 2 copies are required, one copy will be included in the special exception case file and one copy will be forwarded to the Department of Permitting Services, if more than 3 documents are submitted, please include a list identifying the documents.]
  2. List of abutting and confronting property owners. [This information is available from the Maryland Department of Assessments and Taxation 30 West Gude Drive, Suite 400, Rockville, MD 20850, Phone: 240-314-4510, and from MCAtlas at http://www.mcatlas.org/zoning/ ].
  3. Filing fee – 10% of the prevailing fee for the use, with a minimum of $500. Please make checks payable to Montgomery County.

If the Board of Appeals grants the administrative modification, Section 59-7.3.1.K.2.b provides that:

… the Board of Appeals or Hearing Examiner must send a copy of the resolution or decision, as applicable, to the applicant, the Board of Appeals or Hearing Examiner, as appropriate, the Planning Board, DPS, the Department of Finance, all parties entitled to notice at the time of the original filing, and current abutting and confronting property owners. The resolution or decision, as applicable, must state that any party may request a public hearing on the Board of Appeals’ or Hearing Examiner’s action within 15 days after the resolution or decision is issued. The request must be in writing, and must specify the reason for the request and the nature of the objection or relief desired. If a request for a hearing is received, the deciding body must suspend its administrative amendment and conduct a public hearing to consider whether the amendment substantially changes the nature, character, or intensity of the conditional use or its effect on the immediate neighborhood. If the Board of Appeals or Hearing Examiner determines that such impacts are likely, then the amendment application must be treated as a major amendment application. …

In the event that a public hearing is requested, individuals or groups opposing the modification should consult Board Rule 4  for guidance regarding filing statements.

Additional information regarding modifications to conditional uses can be found in Section 59-7.3.1.K of the Zoning Ordinance (2014).

Special Exceptions- top

The Board will accept and decide applications for modifications of special exceptions filed or granted prior to October 30, 2014, in most cases under the standards in effect on October 29, 2014. The Board typically takes this action at a worksession.

Administrative Modification of Special Exceptions Filed or Granted Before October 30, 2014

Section 59-G-1.3(c) (Montgomery County Code, 2004, as amended) provides, with respect to modification of existing special exceptions, that:

If the proposed modification is such that the terms or conditions could be modified without substantially changing the nature, character or intensity of the use and without substantially changing the effect on traffic or on the immediate neighborhood, the Board, without convening a public hearing to consider the proposed change, may modify the term or condition.

Modification of a special exception without a public hearing is called administrative or minor modification.

Information Required for Administrative Modification

  1. Letter detailing the modification request (original plus 10 copies). [ NOTE: If architectural drawings or plans are submitted, 2 copies are required, one copy will be included in the special exception case file and one copy will be forwarded to the Department of Permitting Services, if more than 3 documents are submitted, please include a list identifying the documents.]
  2. List of abutting and confronting property owners.  [This information is available from the Maryland Department of Assessments and Taxation 30 West Gude Drive, Suite 400, Rockville, MD 20850, Phone: 240-314-4510, and from MCAtlas at http://www.mcatlas.org/zoning/ ].
  3. Filing fee   – 10% of the prevailing fee for the use, with a minimum of $500. Please make checks payable to Montgomery County.

If the Board of Appeals grants an administrative modification, Section 59-G-1.3(c)(1) provides:

A copy of the Board’s resolution must be transmitted to the petitioner, the Planning Commission, the Department, the Department of Finance, all parties entitled to notice a the time of the original filing, and current adjoining and confronting property owners. The resolution must state that any party may, within 15 days after the Board’s resolution is mailed, request a public hearing on the Board’s action. The request must be in writing, and must specify the reasons for the request and the nature of the objections or relief desired. If a request for a hearing is received, the Board must suspend its decision and conduct a public hearing to consider the action taken.

In the event that a public hearing is requested, individuals or groups opposing the modification should consult Board Rule 4  for guidance regarding filing statements.

Major Modifications of Special Exceptions Filed or Granted Before October 30, 2014

Forms to apply for a major modification of a special exception are available to download  on this website. It is also helpful to visit the office of the Board of Appeals to go over the application forms. The staff will advise you how to complete the application, what fees you must pay, and what documents you need to submit at the time of filing. When you submit your completed application, you will need a check, payable to Montgomery County, for the filing fee and the sign fee.

Required Information

For major modifications, the Board needs one original set and seven copies of all documents. For a small fee, you may make copies on the Board's copying machine. You will need to submit the following documents and information, listed on the back of the application form:

  1. An accurate site plan, showing boundaries, dimensions, area, topography and frontage of the property involved, as well as the location and dimensions of all structures existing and proposed to be erected, and the distances of such structures from the nearest property lines.
  2. Plans, architectural drawings, photographs, elevations, specifications or other detailed information depicting fully the exterior appearance of existing and proposed construction, including signs, involved in the petition.
  3. Statement explaining in detail how the special exception is proposed to be operated, including hours of operation, number of anticipated employees, occupants and clientele, equipment involved, and any special conditions or limitations which the applicant proposes for adoption by the Board.
  4. Complete information concerning the size, type and location of any existing and proposed trees, landscaping and screening and any exterior illumination proposed.
  5. An original, certified copy of official zoning vicinity map of 1,000 foot radius surrounding the subject property and other information to indicate the general conditions of use and existing improvements on adjoining and confronting properties. Purchase maps from the Maryland-National Capital Park and Planning Commission, 8787 Georgia Avenue, Silver Spring, Maryland, (Phone: 301-495-4610). The complete, original map (as issued by M-NCPPC) and three (3) copies must accompany the petition.
  6. If petitioner is not the owner of the property involved, lease, rental agreement, or contract to purchase by which petitioner’s legal right to prosecute the petition is established.
  7. Applicable master plan maps reflecting proposed land use, zoning, and transportation, together with any other portions of the applicable master plan deemed pertinent by the petitioner. (Available at M-NCPPC, 8787 Georgia Avenue, Silver Spring.)
  8. Except a petition for a telecommunications facility, a preliminary forest conservation plan prepared under Chapter 22A or a confirmation that the plan is not required under Chapter 22A-5.
  9. An approved natural resources inventory prepared in accordance with the technical manual adopted by the Planning Board or a confirmation that the inventory is not required under Chapter 22A-5
  10. A preliminary or final water quality plan if the property lies in a special protection area subject to the provisions of Chapter 19 of the Code.
  11. All additional exhibits which the petitioner intends to introduce.
  12. Summary of what the petitioner intends to prove, including the names of petitioner’s witnesses, summaries of the testimonies of expert witnesses, and the estimated time required for presentation of the petitioner’s case.
  13. A listing of the names and mailing addresses of the abutting and confronting property owners  (see Section 59-A-4.46) who are entitled to notice of the filing. This information is available from the Maryland Department of Assessments and Taxation 30 West Gude Drive, Suite 400, Rockville, MD 20850, Phone: 240-314-4510, or from MCAtlas at http://mcatlas.org/zoning/ . Please also list any local citizens associations and any municipality or special taxing district within ½ mile of the subject property. This information is available at http://www.mcatlas.org/HOACA/ . Please use BOA Form 5.

Once you have assembled all the necessary information, bring it and the application and sign fees to the Office of the Board of Appeals for filing. You have not officially filed for the modification until the Board has all of this information. Board of Appeals staff will review your application materials. If they are complete, the Office of Zoning and Administrative Hearings will schedule a public hearing on your application. A Hearing Examiner from the Office of Zoning and Administrative Hearings will hold the public hearing, and prepare a detailed, written Report and Recommendation on the application, which is referred back to the Board of Appeals for final action. Staff cannot accept an incomplete application.

Before you file for a major modification of a special exception, it is advisable for you to speak with all adjoining and confronting property owners to explain the nature of the proposed changes and the impact they might have on the neighborhood. You may also find it helpful to contact the Montgomery County Planning Department and discuss your application with a Zoning Analyst.

The Sign

Having scheduled your hearing date, the staff will give you a sign and directions for posting it. You must post the sign within five days. You must keep the sign up until you receive the Board's written opinion. If there was opposition to your request, you must keep the sign posted for 30 days after you receive the Board's written opinion.

Notification of Abutting and Confronting Property Owners

Using the list you submitted, the Board will send notices of the hearing to the confronting and abutting property owners. The Board will also notify the appropriate civic association and other governmental agencies.

This notice lets those around you know that you are proposing a change to your use. Individuals who oppose your proposed modification may appear at the hearing without prior notice to express their personal opposition. Persons who are represented by counsel, or who represent an organization such as a homeowners’ organization or a citizens association, must inform the Board in writing of their intention to appear ten days before the hearing date. The pre-hearing submission requirements for organizations or citizens represented by counsel are specified in the Board's Rules of Procedure, which are available online  and in our office. Organizations such as homeowners’ associations and citizens associations must be represented by counsel if they wish to participate in the actual hearing.

When a Major Modification of a Special Exception Can Be Granted

The Zoning Ordinance in effect prior to October 30, 2014 sets forth the general standards (Section 59-G-1.21 and 59-G-1.23) that all special exceptions filed or approved before October 30, 2014, must meet and the specific standards for each different use (Section 59-G-2). Further standards for some uses are located in the section on definitions (Section 59-A-2).

The Hearing

At the public hearing, you must explain the modification - what you plan to do, how many employees you will have, what equipment you will use, what hours you will operate, the appearance of the exterior of any buildings on the property, your proposed landscaping, lighting, and parking arrangements. You also must prove that your application meets all of the general standards as well as the specific standards for the use you are requesting.

If there are people opposing your request, they will have an opportunity to explain their position. Cross-examination is permitted and the Hearing Examiner will explain the process before the hearing begins. It is not necessary for you to be represented by an attorney. However, if the case is complicated or there is much opposition, it may help to have counsel who is experienced in special exception cases.

After all those attending the hearing and wishing to speak have presented their cases and completed their questioning, the Hearing Examiner usually will close the record. The Hearing Examiner then has 30 days in which to prepare a detailed, written Report and Recommendation on the application. This Report and Recommendation is referred back to the Board of Appeals for final action. There is a ten day opportunity for parties in the special exception hearing to request oral argument on the Report and Recommendation before the Board of Appeals. Following that ten-day period, the Board will either schedule oral argument or take final action on the application, and issue a written opinion of its decision.

The Board's decision becomes effective on the date indicated on the written opinion.

Administrative Appeal- top

The Board of Appeals has the authority to hear appeals from decisions of several governmental agencies, as specified in the County Code (Section 2-112). For example, if you believe that a department or agency of the county government was in error either in issuing or in withholding a permit or license, and the County Council has designated the Board of Appeals to hear the appeal, you may file an administrative appeal with the Board. If an agency has denied a request for a permit or license, it will usually inform the applicant how the denial can be appealed and within what period of time.

Filing an Administrative Appeal

To file an Administrative Appeal, you must submit an original and two copies of the completed form  and the supporting documents, including a copy of the action you wish to appeal, as well as the filing fee . The staff will assign the case a number and schedule a hearing no sooner than 45 days after the filing date. Board of Appeals staff can help you complete the application. The staff cannot accept an incomplete application.

Pre-Hearing Submissions

The Board of Appeals will hold a pre-hearing conference prior to the hearing to discuss the appeal. Twenty days before the hearing, the County Attorney, who represents the government agency whose decision is being appealed, must file a pre-hearing submission that outlines the County's case and lists the witnesses the County will call. You, the applicant, are required to file a similar statement ten days before the hearing.

The Hearing

The procedures for hearing administrative appeals are different from those that apply to variances and special exceptions. These are more formal hearings and are governed by Chapter 2A of the County Code. The Board of Appeals hears the entire case as if it were the governmental agency at issue, hearing the case for the first time (de novo). Board members may ask questions of any witness.

The County Attorney will represent the government agency and may call several witnesses, all of whom have been listed in the County's pre-hearing submission. As the appellant you may choose whether or not you wish to be represented by an attorney. You may present the witnesses you have listed in your pre-hearing submission. Cross-examination is permitted and the chairperson will explain that process before the hearing begins.

After both sides have presented their cases and completed their cross-examination, the chairperson usually will close the record. If for some reason the Board does not make its decision at the hearing, it will decide the case at a worksession. The chairperson will usually announce the proposed date of the worksession, but you should telephone the office to verify the date.

The decision of the Board will either sustain the governmental agency or grant the appeal.

The decision of the Board becomes effective on the date indicated on the written opinion.

Appealing a Board Decision - top

Any decision of the Board may be appealed to the Circuit Court within 30 days of the effective date of the written decision in accordance with Section 2-114 of the County Code, Section 2A-11 of the County Code, Section 59-7.3.1.G of the Zoning Ordinance, and Section 59-7.3.2.F.2 of the Zoning Ordinance, as appropriate.

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