59-A-4.61. Generally.

   (a)   The Hearing Examiner must conduct public hearings in accordance with rules of procedure approved by the County Council. A hearing may be held no sooner than 60 days after the notice of filing of the petition is mailed under Section 59-A-4.46(a). A hearing may be continued, suspended or deferred in accordance with Section 59-A-4.44. The Planning Board or its technical staff must submit to the Hearing Examiner and the Board of Appeals at least 5 days before the date set for public hearing, a report reviewing any petition for a special exception or appeal in accordance with a format and other requirements established by agreement of the Planning Board, Board of Appeals and Hearing Examiner. The report is a part of the record of the case.

   (b)   Recommended findings, decisions and orders of the Hearing Examiner must be based on the evidence of record.

   (c)   Within 30 days after the closing of the record on any matter, the Examiner must render a written report and recommendation setting forth a description of the case, findings and recommendations, including any conditions the examiner deems necessary. Any recommendation with respect to a special exception use or appeal must be based upon the requirements and standards set forth in Section 59-G-1.2 as well as individual standards and requirements contained within the specific provisions of this zoning ordinance pertaining to the respective zones and the special exception use or to the appeal. Any other matters of record, which, in the opinion of the Examiner, are relevant and pertinent for a decision may be included. The Hearing Examiner by order may extend the time for such report.

   (d)   When the Hearing Examiner transmits a report to the Board of Appeals, the Examiner must at the same time send written notification that the report and recommendation has been issued, by regular mail, to the petitioner, the Planning Board, and all persons or entities who appeared and testified in person or by counsel at the hearing, as evidenced by the hearing transcript.  The notification must briefly describe the special exception requested, state whether the Hearing Examiner recommended approval or denial, provide instructions to locate a readable and printable copy of the report on the County’s web site, and identify the right to request oral argument before the Board of Appeals.  The Hearing Examiner must send a paper copy of the report and recommendation to the Planning Board on request, and to any person or entity entitled to notice of the report’s issuance who states in writing that they do not have access to email and/or the internet.

   (e)   Within 10 days after transmittal of the Examiner's report any aggrieved party may file a written request for an opportunity to present oral argument before the County Council or Board, whichever has the authority to issue a decision on the matter under consideration. An aggrieved party includes any person or association appearing and participating in person, in writing, or by counsel at the hearing before the examiner, or any party who would be aggrieved by the decision. The request must explicitly state the matters desired to be presented at the oral argument and, if oral argument is granted, the argument must be limited to matters contained in the record compiled by the hearing examiner. The Council or Board, as appropriate, may in its discretion, grant or deny an oral argument request. Thereafter, the matter must be decided either as provided below, or remanded to the Examiner for clarification or the taking of additional evidence, if appropriate. Any decision of the Council or Board not appealed within the prescribed time is final.

   (f)   Any matter heard by the Hearing Examiner must be either approved or denied on the merits, or denied for want of the necessary total of affirmative votes or dismissed or allowed to be withdrawn. The Board of Appeals may add to, modify, or delete any conditions to a special exception recommended by the Hearing Examiner.  The Board may dismiss any petition or appeal if it finds that the application does not conform to any stated procedural requirements of this Article or if the petition or appeal is frivolous or filed for purposes of harassment. The Council or Board may allow an application to be withdrawn in accordance with subsection 59-A-4.25; however, if the request for withdrawal is made after publication of the notice of hearing, no application for a special exception for the land which is the subject of the application is allowed within the time limitation set forth in Section 59-A-4.123 after the date of the order of the Council or Board approving the withdrawal. If the application is not dismissed or allowed to be withdrawn, it must either be approved or denied on the merits, or denied for want of the necessary total of affirmative votes.  If an application is denied, a later application for a special exception for the land which was the subject of the previous application is subject to the limitations of Section 59-A-4.123.