Sec. 59-G-2.59. Theater, legitimate.

The use of any lot, parcel or tract of land for a legitimate theater, including a dinner theater, and for buildings accessory to such theater, may be allowed, upon a finding by the board that:

   (a)   Such use will not constitute a nuisance because of traffic, noise, lighting, hours of operation, or number of patrons who will attend such theater;

   (b)   Such use will not affect adversely the present character or future development of the surrounding residential community; and

   (c)   Such lot, parcel or tract of land on which the theater, accessory buildings and parking areas are located, or are to be located, has a minimum area of 5 acres; and a minimum frontage of 300 feet; and that the buildings and parking used in connection with the theater are set back a minimum of 50 feet from all property lines.

(Legislative History: Ord. No. 10-24, § 3; Ord. No. 12-1, § 1; Ord. No. 14-47, § 1.)

Sec. 59-G-2.60. Theaters, indoor.

An indoor theater may be allowed; provided that the size of such theater is not so large as to be inconsistent with the purpose of the C-1 zone.

Sec. 59-G-2.61. Reserved.

   Editor's note-Section 59-G-2.61, granting a special exception to outdoor theaters, was repealed by Ord. No. 12-4, § 6.

Sec. 59-G-2.62. Tire, battery, and accessory stores.

A tire, battery, and automobile accessory store may be permitted in an integrated shopping center subject to the following requirements:

   (a)   The use is incidental to a primary, permitted use and contains no more than 5 percent of the total floor area of such primary use.

   (b)   The use will not constitute a nuisance because of noise, illumination, fumes, odors or physical activity in the location proposed.

   (c)   Installation service shall be limited to those related products which are retailed by the primary user on the premises.

   (d)   Installation service shall be limited to enclosed buildings.

   (e)   No outdoor displays or storage of tires or like objects is allowed.

Sec. 59-G-2.63. Winery.

A special exception may be granted for a winery, subject to the following requirements:

   (a)   The minimum area of the lot must be 10 acres.

   (b)   The minimum setback from any property line must be 75 feet, except that the minimum setback from the street may be reduced to 50 feet if the board finds that:

      (1)   The site is in an agricultural rather than a residential area; and

      (2)   The smaller setback would be compatible with surrounding uses.

   (c)   The board may regulate hours of operation, numbers of vehicles and personnel employed and other on-site operations so as to prevent adverse impact on adjoining uses.

   (d)   The property must front on and have access to a road built to primary or higher standards.

   (e)   The board must be notified if the winery intends to conduct public tours.

   (f)   Adequate parking must be provided on site in accordance with the requirements for an industrial or manufacturing establishment or warehouse, as stated in article 59-E. In addition, there must be a minimum of 10 additional visitors' spaces if the winery conducts public tours.

   (g)   In evaluating the compatibility of this special exception with surrounding land uses, the Board must consider that the impact of an agricultural special exception on surrounding land uses in the agricultural zones does not necessarily need to be controlled as stringently as the impact of a special exception in the residential zones.

(Legislative History: Ord. No. 10-69, § 9; Ord. No. 13-107, § 3.)

Division 59-G-3. Variances.

Sec. 59-G-3.1. Authority-Board of Appeals.

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

   (a)   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;

   (b)   Such variance is the minimum reasonably necessary to overcome the aforesaid exceptional conditions;

   (c)   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

   (d)   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.

   (e)   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.

(Legislative History: Ord. No. 8-61, § 1; Ord. No. 12-3, § 2.)

   Editor’s note—Section 59-G-3.1 is cited and quoted in Montgomery County v. Rotwein, 169 Md. App. 716, 906 A.2d 959 (2006).  Former Section 104-22(a) of the zoning ordinance regarding variances (currently Section 59-G-3.1) was cited in Alviani v. Dixon, 365 Md. 95, 775 A.2d 1234 (2001).  Section 59-G-3.1(e) is cited in Permanent Financial Corporation v. Montgomery County, 308 Md. 239, 518 A.2d 123 (1986).

   See County Attorney Opinion dated 8/27/03 advising the Council of the prohibition against granting a variance for a condition of a special exception.

Sec. 59-G-3.2. Authority-Director of Department of Permitting Services.

The Director may grant variances from the strict application of this Chapter to setback and side yard requirements, where the request for a variance is in connection with a moderate price development as provided in Chapter 50. The variances must be limited in scope or number to that necessary to achieve the objectives of the development and which will not substantially impair the intent, purpose and integrity of the general plan, as embodied in this Chapter and Chapter 50.

(Ord. No. 13-35, § 1; Ord. No. 13-112, § 1; Ord. No. 14-36, § 1; Ord. No. 14-49, § 1.)