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.