(a) Generally. The Board of Appeals may vary or modify the provisions of Article 18 of this Code when it is alleged that practical difficulties or unnecessary hardships prevent carrying out the strict letter of that article, provided the spirit of law shall be observed, public safety secured, and substantial justice done. A variance may be granted only upon an affirmative finding that:
(1) because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape, or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility of developing the lot in strict conformance with Article 18 of this Code; or
(2) because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to develop the lot.
(b) Variances in the critical area or a bog protection area. For a property located in the critical area or a bog protection area, a variance to the requirements of the County critical area program or bog protection program may be granted only upon an affirmative written finding that:
(1) because of certain unique physical conditions, such as exceptional topographical conditions peculiar to and inherent in the particular lot, or irregularity, narrowness, or shallowness of lot size and shape, strict implementation of the County's critical area program would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, § 8-1808, of the State Code, to the applicant;
(2) (i) a literal interpretation of COMAR, Title 27, Criteria for Local Critical Area Program Development, or the County critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas, as permitted in accordance with the provisions of the critical area program, within the critical area; or
(ii) the County's bog protection program will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the bog protection area of the County.
(3) the granting of a variance will not confer on an applicant any special privilege that would be denied by:
(i) COMAR, Title 27, or the County critical area program to other lands or structures within the County critical area; or
(ii) the County's bog protection program to other lands or structures within a bog protection area;
(4) that the variance request:
(i) is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance was filed; and
(ii) does not arise from any condition relating to land or building use on any neighboring property;
(5) that the granting of the variance:
(i) will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County's critical area or a bog protection area; and
(ii) will be in harmony with the general spirit and intent of the County critical area program or bog protection program;
(6) the applicant for a variance to allow development in the 100-foot upland buffer has maximized the distance between the bog and each structure, taking into account natural features and the replacement of utilities, and has met the requirements of § 17-9-208 of this Code; and
(7) the applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, § 8-1808, of the State Code.
(c) Conditions for granting a variance in the critical area.
(1) For a property with an outstanding violation the granting of a variance in the critical area under subsection (b) shall be conditioned on the applicant completing the following within 90 days of the date of decision, as applicable:
(i) obtaining an approved mitigation or restoration plan;
(ii) completing the abatement measures in accordance with the County critical area program; and
(iii) paying any civil fines assessed and finally adjudicated.
(2) Notwithstanding the requirements of subsection (c)(1), the Office of Planning and Zoning may extend the time for abatement to the next planting season because of adverse planting conditions. An applicant may also be granted a 180 day extension to satisfy the conditions of a variance upon timely application to the Planning and Zoning Officer and good cause shown.
(d) Lapse. Any critical area variance granted for a property with an outstanding violation shall lapse by operation of law if the conditions of subsection (c)(1) are not satisfied within 90 days or as extended.
(e) Required findings. A variance may not be granted under subsection (a) or (b) unless the Board finds that:
(1) the variance is the minimum variance necessary to afford relief;
(2) the granting of the variance will not:
(i) alter the essential character of the neighborhood or district in which the lot is located;
(ii) substantially impair the appropriate use or development of adjacent property;
(iii) reduce forest cover in the limited and resource conservation areas of the critical area;
(iv) be contrary to acceptable clearing and replanting practices required for development in the critical area or bog protection area; or
(v) be detrimental to the public welfare.
(f) Restrictions relating to the Odenton Town Center Master Plan. A variance may not be granted to the provisions of the Odenton Town Center Master Plan.
(1985 Code, Art. 3, § 2-107) (Bill No. 61-93; Bill No. 12-00; Bill No. 105-01; Bill No. 69-03; Bill No. 65-04; Bill No. 4-05; Bill No. 69-07; Bill No. 93-12; Bill No. 18-18; Bill No. 64-23; Bill No. 84-23)