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Division 59-G-1. Special Exceptions - Authority and Procedure.** [Note]

 

Notes

[Note]
   **Editor's note-The following are cases in which the issuance or denial of a special exception by the County was at issue:  Montgomery County v. Merlands Club, Inc., 202 Md. 279, 96 A.2d 261 (1953); Bakus v. County Board of Appeals, 224 Md. 28, 166 A.2d 241 (1960) (upholds denial of special exception); Creative County Day School of Sandy Spring Inc. v. Montgomery County Board of Appeals, 242 Md. 552, 219 A.2d 789 (1966) (denial of special exception upheld); Levy v. Montgomery County, 248 Md. 347, 336 A.2 738 (1968) (upholds granting of special exception); Springloch Area Citizens Group v. Montgomery County Board of Appeals, 252 Md. 717, 251 A.2d 357 (1969) (upholds granting of special exception); Eger v. Stone, 253 Md. 553, 253 A.2d 372 (1969) (upholds denial of special exception); Tauber v. County Board of Appeals for Montgomery County, 257 Md. 202, 262 A.2d 513 (1970) (upholds denial of special exception); Gerachis v. Montgomery County Board of Appeals, 261 Md. 153, 274 A.2d 379 (1971) (upholds denial of special exception); American Oil Co. v. Board of Appeals of Montgomery County, 270 Md. 301, 310 A.2d 796 (1973) (upholds denial of special exception); Radden v. Montgomery County, 270 Md. 668, 313 A.2d 481 (1974) (reverses granting of special exception); Pemberton v. Montgomery County, 275 Md. 363, 340 A.2d 240 (1975) (upholds granting of special exception); and B. P. Oil, Inc. v. County Board of Appeals for Montgomery County, 42 Md. App. 576, 401 A.2d 1054 (1979) (upholds denial of special exception). 
   See the Editor's note to § 59-G-2.43 regarding the preemption by Maryland Code, art. 78, Public Service Commission Law, of county zoning ordinances purporting to require a public service company to apply for and obtain a special exception in order to construct an overhead transmission line in excess of 69,000 volts.
Sec. 59-G-1.1. Authority to hear and decide petitions.
   59-G-1.11. Board of appeals.
The Board of Appeals may grant petitions for special exceptions as authorized in section 59-A-4.11.
   59-G-1.12.    Hearing examiner.
   (a)   In addition to the authorization given to the Board of Appeals to hear and decide petitions for special exceptions under Section 59-A-4.11, the Hearing Examiner may hear and decide petitions for special exceptions for the following uses:
      (1)   Boardinghouses for 3 guests or fewer in the R-30, R-20, and R-10 zones.
      (2)   Home occupations in the R-30, R-20, or R-10 zones.
      (3)   Noncommercial riding stable for not more than 2 horses, for personal or family use, in the RE-2 zone.
      (4)   Temporary structures, in residential zones.
      (5)   Renewals of temporary special exceptions originally granted by the board, director, or hearing examiner for boardinghouses and home occupations.
      (6)   Farm Tenant mobile homes, for more than one but less than 4; provided such farm tenant mobile homes meet the definition established for such uses by this chapter and that such uses are not within 200 feet of a non-farm residence.
      (7)   Child day care facilities for up to 30 children.
      (8)   Accessory apartments.
   All decisions and actions of the Hearing Examiner under this Section are subject to  Sections 59-G-1.2 through 59-G-2.62.
   (b)   Petitions for special exceptions filed under this section are subject to section 59-A-4.4 as if they were filed with the Board.  The County Council must set the filing fee for each petition filed with the Hearing Examiner to reasonably cover the cost of processing the petition.
   (c)   The Hearing Examiner must hold a public hearing before making a decision regarding any petition for special exception filed. Notice of the public hearing and of the subsequent decision must be provided in accordance with the notice, posting and advertising requirements in section 59-A-4.46. The public hearing on any such petition must be held not sooner than 30 days following the date of mailing of such notice. It is not necessary to make a verbatim record of a hearing before the Hearing Examiner.
   (d)   The Hearing Examiner may continue a hearing as provided in section 59-A-4.46.
   (e)   The decision of the Hearing Examiner must be based on the evidence presented at the hearing. The decision must be in writing and must contain a statement of the grounds and the findings on which it is based.
   (f)   A petition for special exception is subject to the same limits on refiling for the same property as provided in section 59-A-4.123 for cases filed with the Board.
   (g)   Any person, board, association, corporation or official aggrieved by a decision of the Hearing Examiner under this section may, within 10 days after the decision is rendered, appeal the decision to the County Board of Appeals, which must review the decision as an administrative appeal based on the record compiled by the Hearing Examiner.  The Board may hear oral argument on the record. The oral argument, if granted, must not take place sooner than 30 days after the notice of filing of the appeal is mailed under Section 59-A-4.46.  The Hearing Examiner must comply with the prehearing submission requirements of Chapter 2A.  The Board, after considering the evidence of record, may affirm, reverse, or modify the Hearing Examiner's decision or remand the matter for further proceedings.
   59-G-1.13.    Reserved.
*Editor's note -  Former § 59-G-1.13, District Council was repealed by Ord. No. 15-18, § 1
(Legislative History: Ord. No. 8-61, § 6; Ord. No. 8-81, § 17; Ord. No. 9-55, § 1; Ord. No. 9-82, § 1; Ord. No. 10-9, § 2; Ord. No. 10-85, § 6; Ord. No. 11-41, § 12; Ord. No. 11-91, § 5; Ord. No. 12-4, § 4; Ord. No. 12-14, § 1; Ord. No. 12-26, § 1; Ord. No. 12-55, § 1; Ord. No. 12-81, § 3; Ord. No. 13-11, § 1; Ord. No. 13-14, § 6; Ord. No. 13-14, § 6; Ord. No. 13-38, § 3; Ord. No. 13-85, §3; Ord. No. 14-47, § 1; Ord. No. 15-18, § 1; Ord. No. 17-28, § 5.)
   Editor's note-Prior to its amendment by § 6 of Ord. No. 10-85, the first paragraph of § 59-G-1.13 referred to § 59-G-1.2 as well as § 59-G-1.3 and div. 59-G-2. The amendment omitted this reference but did not specifically delete reference to § 59-G-1.2 through the use of brackets or struck-through type.  The above Section is cited in Cowles v. Montgomery County, 123 Md. App. 426, 718 A.2d 678 (1998).
Sec. 59-G-1.2. Conditions for granting.
   59-G-1.2.1.    Standard for evaluation.
   A special exception must not be granted without the findings required by this Article.  In making these findings, the Board of Appeals, Hearing Examiner, or District Council, as the case may be, must consider the inherent and non-inherent adverse effects of the use on nearby properties and the general neighborhood at the proposed location, irrespective of adverse effects the use might have if established elsewhere in the zone.  Inherent adverse effects are the physical and operational characteristics necessarily associated with the particular use, regardless of its physical size or scale of operations.  Inherent adverse effects alone are not a sufficient basis for denial of a special exception.  Non-inherent adverse effects are physical and operational characteristics not necessarily associated with the particular use, or adverse effects created by unusual characteristics of the site.  Non-inherent adverse effects, alone or in conjunction with inherent adverse effects, are a sufficient basis to deny a special exception.
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