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Introduction

This brochure is a convenient summary of the filing and hearing process. Chapter 59-G of the Zoning Ordinance, the Rules of Procedure of the Board of Appeals, and Chapters 2 and 2A of the Montgomery County Code contain the complete legal requirements for and hearing variances, special exceptions, and administrative appeals. 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 or a special exception - and how to oppose those applications - and 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 easy for all applicants to participate in and to be fair to those who apply and to those who oppose an application.

About the Board

The County Council appoints the five members of the Board of Appeals who serve four-year terms and may be reappointed. Members cannot serve more than 2 full 4-year terms. The Board holds public hearings on Wednesdays and worksessions usually every other week. 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.

Relations with Other Governmental Agencies - top

Because the Board of Appeals has no technical staff that can evaluate the land use or traffic impact of applications, all applications are reviewed by the technical staff of the Planning Board. In the case of variances, the Planning Board staff comments only if they perceive a problem or if the Board specifically requests comments. For special exceptions, the Planning Board staff always sends to the Hearing Examiner or the Board of Appeals a report that contains recommended conditions.

If the technical staff believes that a requested special exception has major impacts or if it is controversial, a hearing is scheduled 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.

If a case has been heard by the Planning Board, the Planning Board sends a letter to the Hearing Examiner and the Board of Appeals that details agreement or disagreement with the staff recommendation. The Planning Board can add conditions or change the staff's recommended conditions. The recommendations from the Planning Board and its staff are advisory. However, they carry considerable weight because of the staff's technical expertise.

At times, Planning Board staff may also attend the hearings of the Board of Appeals to further explain or comment on the written recommendations or to respond to questions that Board members may have.

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

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 must apply for a variance. The first step is to apply for a building permit from the Department of Permitting Services (DPS). When DPS reviews your plans and determines that you need a variance, you then can visit the Board of Appeals for the necessary application forms. Although they are available online, and the Board will mail you the forms, we suggest that you come in person so that our staff can explain the filing procedure.

APPLYING FOR A VARIANCE

Required Information

The Board needs an original and three 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:

  • The building permit denial from DPS.
  • An accurate site plan showing the boundaries, dimensions, area, topography, and frontage of the property and all the existing or proposed structures and the distances of these structures from the property line. (Please note: The site plan must illustrate the requested variance(s) and all applicable setbacks for the subject property.
  • Plans or architectural drawings, photographs, elevations, and other detailed information showing fully the exterior appearance of the existing structure and the proposed construction.
  • A certified copy of the official zoning vicinity map showing the surrounding property within a 1,000-foot radius (this is available at the Information Desk of the Maryland National Capital Park and Planning Commission, 8787 Georgia Avenue, Silver Spring, Maryland.)
  • The names and addresses, lot and block of adjoining and confronting property owners (This is available at Tax Records, One Metro Building, Third Floor, 51 Monroe Street, Rockville, Maryland.)
  • A summary of how your application meets the standards for a variance (See Reasons for Granting a Variance.)
  • The names of expert witnesses, if any, who will testify at the hearing.
  • A check, payable to Montgomery County, for the filing fee and the fee for the sign that you must post on your property. (The staff will give you the fee schedule for specific variances.)

When you have filled out the entire form, attached all the necessary information, and paid the two fees, you have officially filed for a variance. The staff will schedule your hearing date approximately 30 days after you have filed. 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 three days. 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.

If you return the sign within 21 days of the date on which you were permitted to remove it, you will receive a partial refund of your sign fee.

 

Notification of confronting and adjoining property owners

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

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. Anyone interested may copy material from the file on the Board's copying machine, for a small fee.

REASONS FOR GRANTING A VARIANCE

The Board of Appeals may grant petitions for variances as authorized in section 59-A-4.11(b) of the Zoning Ordinance upon proof by a preponderance of the evidence that:

By reason of exceptional narrowness, shallowness, shape, topographical conditions, or other extraordinary situations or conditions peculiar to a specific parcel of property, the strict application of these regulations would result in peculiar or unusual practical difficulties to, or exceptional or undue hardship upon, the owner of such property;

  • Such variance is the minimum reasonably necessary to overcome the aforesaid exceptional conditions;
  • Such variance can be granted without substantial impairment to the intent, purpose and integrity of the general plan or any duly adopted and approved area master plan affecting the subject property; and
  • Such variance will not be detrimental to the use and enjoyment of adjoining or neighboring properties. These provisions, however, shall not permit the Board to grant any variance to any setback or yard requirements for property zoned for commercial or industrial purposes when such property abuts or immediately adjoins any property zoned for residential purposes unless such residential property is proposed for commercial or industrial use on an adopted master plan. These provisions shall not be construed to permit the Board, under the guise of a variance, to authorize a use of land not otherwise permitted.
  • Any allegation of error or any appeal from any action, inaction, order or decisions pertaining to calculation of building height or approved floor area ratio (FAR) standard shall be considered according to the provisions governing appeals for a variance (section 59-G-3.1), rather than as an administrative appeal (section 59-A-4.11(c)).

An appellant seeking a variance will be subject to the requirements for filing and notice in section 59-A-4.2 and section 59-A-4.46. 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 (see section on 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.

 

Special Exceptions - 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 permitted by special exception. By enacting such legislation, the County Council has determined that if certain standards are met, a special exception is compatible with the uses permitted by right in the zone. The Zoning Ordinance has tables for each zone that specify the uses permitted by right (P) or permitted by special exception (SE). Any use not listed is simply not permitted at all.

APPLYING FOR A SPECIAL EXCEPTION

Required Information

Forms to apply for 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.

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, which are also listed in the Zoning Ordinance (Section 59-A-4.22) and 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 and/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 adjoining and confronting property owners (see Section 59-A-4.46) who are entitled to notice of the filing. This information is available from the State Department of Assessments and Taxation, 51 Monroe Street, Third Floor, Rockville, Maryland, 20850, (Phone:  301-279-1355).  Please also list any local citizens associations and any municipality or special taxing district within which the property is located.  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 a special exception 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.

Before you file for a special exception, it is advisable for you to speak with all adjoining and confronting property owners to explain the nature of the proposed special exception and the impact it might have on the neighborhood.

If you are an applicant for an accessory apartment, ask the staff to give you a copy of the questions the chairperson will ask you at the hearing.

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 three 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.

If you return the sign within 21 days of the date on which you were permitted to remove it, you will receive a partial refund of your sign fee.

Notification of confronting and adjoining property owners

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

 

The file

When your application has been accepted officially, the staff assigns a number to your case and 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. Anyone interested may copy material from the file on the Board's copying machine, for a small fee.

WHEN A SPECIAL EXCEPTION CAN BE GRANTED

The Zoning Ordinance sets forth the general standards (Section 59-G-1.21) that all special exceptions 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 how your special exception will operate - 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 (see section on Opposition). Cross-examination is permitted and the Hearing Examiner will explain the process before the hearing begins. It is not necessary 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.

 

Opposition - top

If you oppose a petition for a variance or a special exception, you are urged to come to the Board's office and read the file. You may copy any or all material in the file at your own expense on the Board's copying machine.

If you are coming to the hearing to express your personal opposition, you may appear without prior notice. However, if you represented by counsel or if you represent an organization, such as a homeowners organization or a citizens association, you must inform the Board in writing of your 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. Ask the staff to give you a copy of these rules so you can submit all the required documents.

At the hearing your first chance to speak will be to cross-examine the applicant or the applicant's witnesses, if you have any questions. After the applicant has presented his or her case, you may then make statements or present witnesses in support of your position. The applicant and Board members can then ask questions of you.

 

Administrative Appeals - 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 three copies of the completed form and the supporting documents, as well as the filing fee.  The staff will assign the case a number and schedule a hearing no sooner than 30 days after the filing date. The staff cannot accept an incomplete application.  Board of Appeals staff can help you complete the application.

 

PRE-HEARING SUBMISSIONS

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 Decision / Reconsideration and 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.

 



Montgomery County Council, 100 Maryland Ave, Rockville MD 20850
Phone: (240) 777-7900 (voice) • (240) 777-7888 (fax) • (MD Relay) Dial 711 or 800-201-7165
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