Sec. 59-G-1.3. Compliance with special exception grant.

   (a)   Inspection of operations. The Department, in conjunction with the Board, must establish a regular inspection program for special exception uses. All special exception uses must be inspected annually; except that the Board and the Department may specifically agree that a particular special exception use or category of uses requires a more frequent or less frequent schedule of inspections. The Department must inspect all special exceptions as scheduled in the inspection program.

      (1)   If the inspection shows that the operation of the special exception does not comply with all terms and conditions of its grant, the Department must direct the special exception holder to correct the violation within a time certain.  The special exception holder must be granted at least 15 days to correct each violation.  This Section does not prohibit the Department from ordering the special exception holder to correct the violation in less than 15 days where an emergency poses an immediate threat to the public health, safety, welfare, or convenience, or delay in correcting the violation would impose unusual individual or community hardship.

         When the time to correct the violation has expired, the Department must reinspect the premises to determine whether the violation has been corrected.

      (2)   Within 30 days after any inspection required by this section, the Department must file with the Board written findings which indicate any noncompliance with any term or condition of the special exception use.

      (3)   If the Department finds that no violations exist, the written findings must state that the special exception complies with the terms and conditions of the special exception grant. However, if the Department finds that the operation of the special exception does not comply with the terms and conditions of its grant, the written findings must describe the nature of the violation, the corrective action ordered by the Department, and the time allowed to correct the violations.

      (4)   Within 30 days after any reinspection required by this subsection, if the Department finds that the noted violations have been corrected, it must file written findings with the Board. If, however, violations continue to exist, the Department must notify the Board of its findings; the Department may recommend modification of the terms and conditions of the special exception, or propose appropriate remedial action. Upon receipt of the Department's findings and recommendations, the Board must take action as provided in this section.

   (b)   Complaints. A complaint alleging failure to comply with the terms or conditions of a special exception grant may be filed with the Department or Board by any person or government agency.  The Department may also initiate a complaint.

      (1)   The complaint must be in writing and must state the name and address of the complainant, the name and address of the special exception holder, if known, the name and address of the premises and describe the nature of the alleged violation.

      (2)   Within 21 days after receipt of a complaint, or more promptly if requested by the Board, the Department must inspect the premises of the subject special exception to determine the validity of the complaint. If the inspection reveals that there exists a violation of the terms and/or conditions of the special exception grant, the Department must direct the special exception holder to correct the violation within a time certain; provided, that the special exception holder is granted at least 15 days in which to correct such violation; provided further, that nothing herein prohibits the Department from ordering the special exception holder to correct the violation in less than 15 days if an emergency poses an immediate threat to the public health, safety, welfare or convenience, or delay in correcting the violation would impose unusual individual or community hardship. When the time to correct the violation expires, the Department must reinspect the premises to determine whether the violation has been corrected.

      (3)   Within 14 days after any inspection provided for in this section, or more promptly if requested by the Board, the Department must forward to the Board written findings which must state the nature of the complaint and the results of the inspection and provide a description of the corrective action ordered; the department may recommend modification of the terms and/or conditions of the special exception and/or propose remedial action as deemed appropriate under the circumstances.

      (4)   Upon receipt of the Department's findings and recommendations, the Board may dismiss the complaint if the Department report indicates that such complaint is without merit, or the Board may initiate action as provided for in this section. The complainant must be notified by the Board of the action taken.

   (c)   Modification. The Board may amend or modify the terms or conditions of a special exception on request of the special exception holder or recommendation of the Department, or after a show cause hearing held under subsection (e).

      (1)   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. However, if the matter involves an accessory apartment, the Board must not act until 10 days after the posting of the property with a special exception for accessory apartment sign under Section 59-A-4.43.  The sign must remain posted until at least 15 days after the mailing of the Board's resolution. The affirmative vote of at least 4 members of the Board is required to modify the terms or conditions.

         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 at 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.

      (2)   If the proposed modification substantially alters the nature, character, intensity of use or the conditions of the original grant, the Board must convene a public hearing to consider the proposed modification. The Board must notify the special exception holder that, except as otherwise provided in this section, such request for modification is subject to the requirements set forth in Sections 59-A-4.2 and 59-A-4.4. The Board must receive and process petitions for modification of a special exception in accordance with the provisions of those sections.

      (3)   Petitions for modification of the terms or conditions of a special exception must be scheduled for hearing as promptly as possible, provided that hearings on petitions for modifications of a special exception must be held not less than 30 days following the date of public notice. Nothing herein prohibits the Board from convening a hearing within a shorter period of time if the Board determines by the vote of at least 3 members that an emergency exists which poses an immediate threat to the public health, safety, convenience, welfare or necessity, or that delay would impose unusual individual or community hardship.

      (4)   The public hearing must be limited to consideration of the proposed modifications noted in the Board's notice of public hearing and to (1) discussion of those aspects of the special exception use that are directly related to those proposals, and (2) as limited by paragraph (a) below, the underlying special exception, if the modification proposes an expansion of the total floor area of all structures or buildings by more than 25%, or 7,500 square feet, whichever is less.

         (A)   After the close of the record of the proceedings, the Board must make a determination on the issues presented. The Board may reaffirm, amend, add to, delete or modify the existing terms and/or conditions of the special exception.  The Board may require the underlying special exception to be brought into compliance with the general landscape, streetscape, pedestrian circulation, noise, and screening requirements of 59-G-1.26, if (1) the proposed modification expands the total floor area of all structures or buildings by more than 25%, or 7,500 square feet, whichever is less, and (2) the expansion, when considered in combination with the underlying special exception, changes the nature or character of the special exception to an extent that substantial adverse effects on the surrounding neighborhood could reasonably be expected.

Decisions of the Board to amend or modify the terms or conditions of a special exception must be by the affirmative vote of at least 4 members as indicated by the adoption of a written resolution reflecting its decision, opinion and order.

   (d)   Abandonment. For the purposes of this section, “abandoned” and “property owner” are defined as follows:

      (i)   Abandoned. The cessation of use of the special exception or the cessation of activity necessary to the operation of the special exception use for a period of at least 6 months' duration;

      (ii)   Property owner. Any person or persons who, as of the date of the Board's notice, is recorded in the record of assessments of real property maintained by the Montgomery County Department of Finance as the party chargeable for the payment of taxes on any assessment upon the property.

      (1)   If, after making an inspection of a property governed by special exception, the Department finds that the special exception use as granted has been abandoned, it must forward written notice of its findings to the last recorded holder of the special exception and to the property owner, advising of the Department's finding and directing that they forward to the Department, within 60 days from the date of mailing of the notice, a written statement confirming the Department's finding that the special exception has been abandoned or challenging said finding and requesting that said special exception be continued.

      (2)   If the Department receives a written response from the special exception holder and the property owner acknowledges that the special exception has been abandoned, the Department must notify the Board of its findings, and the Board, upon receipt of such notice, must adopt and issue a written resolution finding the special exception to have been abandoned and ordering the special exception revoked.

      (3)   If within the provided 60-day period, the Department receives a written statement from either the special exception holder or the property owner challenging the Department's findings and requesting that the special exception be continued, the Department must notify the Board, and the Board must convene a public hearing, in accordance with the provisions of subsection (e) of this section, to determine whether or not the special exception was abandoned and whether or not the special exception should be revoked.

      (4)   If after 60 days from the date of mailing of the Department's notice, the Department has received no response from either the special exception holder or the property owner, the Department must notify the Board of its findings, and the Board must issue to the special exception holder and the property owner an order to appear before the Board to show cause why the special exception should not be revoked.

      (5)   If neither the special exception holder nor the property owner appears before the Board to show cause why the special exception should not be revoked, the Board must adopt and issue a resolution finding the special exception to have been abandoned and ordering the special exception revoked.

      (6)   The show cause proceedings are subject to the provisions of subsection (e) of this section.

      (7)   Written notice of the proposed show cause hearing must be issued to the special exception holder, the property owner and to the Department. Written notice may also be sent, at the discretion of the Board, to those parties entitled to receive notice of the original petition for the special exception and to other interested persons, organizations or agencies.

      (8)   Any notice mailed to a special exception holder or to a property owner, pursuant to any provision of this section, must be by certified mail, return receipt requested.

   (e)   Show cause hearing for revocation of a special exception. If, under this Article, the Board receives a written notice from the Department that the terms or conditions of a special exception grant or that the terms, conditions or restrictions attached to the grant of any permit issued under this Article are not being complied with, the Board, by an affirmative vote of at least 3 members, may order the special exception holder and the property owner to appear before the Board at a date, time, and place specified to show cause why the special exception should not be revoked.

      (1)   The notice of a show cause hearing must be issued to the special exception holder, the property owner, the Department and to all parties who have submitted written complaints concerning the special exception. Written notice may also be sent, at the discretion of the Board, to those parties entitled to receive notice of the original petition for the special exception and to other interested persons, organizations or agencies.

      (2)   The notice of show cause hearing must contain the name of the special exception holder, the location and zoning classification, the case number, the telephone number, office address and business hours of the Board and the date, time and place fixed for the hearing.

      (3)   The notice of show cause hearing must state in detail the nature of the complaints received concerning the operation of the special exception and/or the nature of the alleged violations reported by the Department, and must state that the hearing is limited to a consideration and a determination of the validity of the allegations. The notice must further advise the special exception holder and the property owner that failure to attend and participate in the hearing may result in issuance of an order revoking the special exception.

      (4)   The Board must give such matters priority on its docket and must schedule show cause hearings as promptly as possible; provided, that such hearing must be held not less than 30 days following the date on which the notice was mailed. Nothing herein prohibits the Board from convening a hearing within a shorter period of time if the Board determines by the vote of at least 3 members that an emergency exists which poses an immediate threat to the public health, safety, convenience, welfare or necessity, or that delay would impose unusual individual or community hardship.

      (5)   The show cause hearing is be limited to consideration of the issues noted in the order and notice of hearing.

      (6)   Within 15 days after the close of the record of the proceedings, the Board must make a determination on the issues presented. The Board, by the affirmative vote of at least 4 members, may reaffirm or revoke the special exception, or amend, add to, delete or modify the existing terms or conditions of the special exception. The decision of the Board must be by the adoption of a written resolution. If necessary, the Board may adopt a resolution extending the time in which to issue its decision.

      (7)   A copy of the Board's decision must be transmitted to the special exception holder, the property owner, the Department, the Planning Commission, the Department of Finance, the County Attorney, and all parties who participated in or received notice of the show cause hearing.

      (8)   Any notice mailed to a special exception holder or property owner pursuant to any provision of this section must be by certified mail, return receipt requested.

      (9)   Revocation by the Board of any special exception must be so noted in the official zoning maps of the Department and the Planning Commission.

   (f)   Hearing Examiner and District Council.  For those special exceptions which are issued under the authority specified in Sections 59-G-1.12 and 59-G-1.13, the Hearing Examiner and the District Council may conduct all proceedings authorized under subparagraphs (c), (d), and (e) of this section relating to modification, abandonment, or show cause hearing for revocation of a special exception.

   (g)   Review on Transfer of Land Ownership.  The terms and conditions of a special exception may be reviewed by the Board, Hearing Examiner, or District Council, as the case may be, for good cause shown, upon a transfer of land ownership to determine the effectiveness of the conditions placed on the use and for new conditions to be established, if determined necessary.  A review on a transfer of land ownership may take place at the request of the Department of Permitting Services, any aggrieved person, or at the initiative of the Board of Appeals, only upon a showing of substantial evidence that the terms and conditions of the original grant are ineffective for preventing adverse effects.  Parties entitled to notice must be notified of the review and a public hearing held on reasonable notice.  If, after the public hearing, it is determined that the terms and conditions of the special grant are not effective or the special exception is or will be operated in a manner previously unanticipated, new conditions may be established to address the adverse effects on nearby properties and the general neighborhood.  It is the responsibility of the special exception holder to notify the Board of Appeals of any change in land ownership or change in circumstances or conditions affecting the special exception.

(Legislative History: Ord. No. 8-61, §§ 8, 9; Ord. No. 9-14, § 1; Ord. No. 10-39, § 10; Ord. No. 10-80, §1; Ord. No. 11-13, § 1; Ord. No. 12-54, § 1; Ord. No. 13-35, § 1; Ord. No. 13-112, § 1; Ord. No. 14-11, § 2; Ord. No. 14-36, § 1; Ord. No. 14-47, § 1; Ord. No. 14-49, § 1.)

   Editor's note—Section 59-G-1.3 is cited and quoted in Purich v. Draper Properties, Inc., 395 Md. 694, 912 A.2d 598 (2006).  Section 59-G-1.3 was cited in Ehlers-Renzi v. Connelly School of the Holy Child, Inc., 224 F.3d 283 (4th Cir. 2000).  Section 59-G-1.3(c) is quoted and interpreted in Pierce v. Montgomery County,  116 Md. App. 522, 698 A.2d 1127 (1997).