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The council shall make such information so published available for general distribution within the county either without charge or upon such charge as the council may deem sufficient in its discretion to cover the actual cost of collecting and publishing such information. (Mont. Co. Code 1965, § 2-35; 1939, ch. 643, § 197C.)
(a) Appointment. The County Board of Appeals consists of 5 members appointed by the County Council for four-year terms. A vacancy occurring before the end of a term must be filled by appointment for the remainder of the term. The Council must ask the County Executive to recommend within 30 days one or more qualified applicants before making any appointment.
(b) Chair. The Council must designate a member of the Board as chair. That member serves as chair at the pleasure of the Council.
(c) Applicant Disclosure.
(1) Each applicant for membership on the Board must submit a sworn confidential financial disclosure statement as required by Chapter 19A. After reviewing the disclosure statement, the County Council or its designee may interview the applicant in private as to any potential conflict of interest. The Council may require the applicant to produce any document relevant to the appointment.
(2) The Council must release to the public the financial disclosure statement submitted by the person appointed not later that 21 days after the appointment. The Council must destroy the statements submitted by all other applicants immediately after the appointment is made without disclosing any information in them to anyone. (Mont. Co. Code 1965, § 2-87; 1971 L.M.C., ch. 10, § 1; 1972 L.M.C., ch. 6, § 1; 1976 L.M.C., ch. 45, § 1; 1977 L.M.C., ch. 28, § 2; 1982 L.M.C., ch. 37, § 1; 1984 L.M.C., ch. 9, § 1; FY 1991 L.M.C., ch. 9, § 1; 1997 L.M.C., ch. 24, §1.)
Editor's note-Section 1 of 1993 L.M.C., ch. 48, reads as follows: "Notwithstanding County Code Section 2-108(a), the County Council must appoint one member of the Board of Appeals for a term beginning in 1993 to a one-year term."
(a) Application. The provisions of this section shall apply only to the members and employees of the county board of appeals.
(b) Conduct prohibited. No member shall:
(1) Decide or participate in a decision in which he has a financial interest, as owner, member, partner, officer, employee, stockholder or other participant of or in any private business or professional enterprise that will be affected by such decision, nor shall a member knowingly participate in a decision affecting a person related to him or his spouse as father, mother, brother, sister or child. This section shall not be construed to prohibit a member from having or holding private investment, business or professional interests, but shall be construed to apply when such interests are or reasonably may be in conflict with the proper performance of duty by the member. Such interests shall be presumed to be in conflict with proper performance of duty by the member when he or his spouse, or the father, mother, brother, sister or child or either, jointly or severally, owns a total of more than three (3) percent of the invested capital or capital stock of any groups, firms, corporations or associations involved in the decision being made by the board of appeals or receives a total combined compensation of more than five thousand dollars ($5,000.00) per year from any individual groups, firms, corporations or associations involved in the decision being made by the board of appeals. Such presumption shall not be construed to apply to or include an interest or investment in land geographically remote from the land involved in the decision, a possibility of reverter, a mortgage or other security interest in which the real party in interest is not as otherwise defined in this section.
(2) Act as broker, agent, attorney, representative or employee of any person in his business dealings with the county, the Maryland-National Capital Park and Planning Commission or Washington Suburban Sanitary Commission nor shall a member decide or participate in a decision on any matter in which a close business or professional associate has acted in any of these capacities or represented private interests before the county or the above agencies; nor shall a member represent private interests or appear in a position of advocacy, other than in the performance of his official duties, either in person or by associate, in any matter or proceeding pending before the county council, Maryland-National Capital Park and Planning Commission, the Washington Suburban Sanitary Commission or the board of appeals.
(3) Solicit or accept any gift, favor, loan, service, promise, employment or thing which might influence or tend to influence the proper performance of his duty.
(4) Voluntarily appear as attorney counsel or otherwise represent private interests or give opinion evidence against the interests of the county or its agencies or agencies of the state operating for the county in any action or proceedings in which the county or agency or any official of the county or agency acting in his official duty is a party, except where the interests of the county or agency are incompatible or adverse one to the other, and the member has been assigned to so appear or give evidence in accordance with his duty.
(5) Disclose any confidential information concerning the property, management, or affairs of the board of appeals, the county or agencies, or use such information to advance the financial or other private interests of himself or other persons.
(6) Attempt to influence for a purpose contrary to the provisions of this section any other county or state official in the conduct of the other official's duties.
(c) Exemptions. No part of this section shall be construed to prohibit a member of the board of appeals from appearing in the pursuit of his private interests as a citizen, or from accepting or receiving any benefit by operation of law, or prosecuting or pursuing any claim, right, privilege or remedy which is his by operation of law.
(d) Disclosure of interests; disqualifications. When a member has any interest as described in this section which is or reasonably may be incompatible with or in conflict with any of his official duties or acts, he shall disclose such interest publicly and he shall disqualify himself and not participate in the decision or act affected thereby.
(e) Ex parte or private communications. An ex parte or private communication from any person to a board member related to any contested case before the board, including special exceptions and variances, or to an appeal pending from an action of the board, is subject to the provisions governing those communications under the County Administrative Procedures Act.
(f) Effect of conflict of interests. If, because of disqualification or disqualifications by interest under the provisions of this section, less than a quorum of the board of appeals is available to act upon any particular matter, except special exceptions, the remaining members of the board shall constitute a quorum and shall have authority to transact business to the extent permitted by law; provided, that this shall not be construed to permit transaction of business contrary to the quorum requirements or other provisions of state or other law. (1972 L.M.C., ch. 6, § 2; 1990 L.M.C., ch. 25, § 2.)
Editor's note-In Montgomery County Board of Appeals v. Walker, 258 Md. 574, 180 A.2d 865 (1962), the court ruled that a member of the Board of Appeals should disqualify himself on the grounds of a conflict of interest and that a tie vote of the Board of Appeals is a denial of rezoning.
Cross reference-Ethics generally, ch. 19A.
Members of the County Board of Appeals must be residents of the County. No more than 3 members may be registered to vote in primary elections of the same political party. Any person appointed to fill a vacancy created other than by the expiration of a term must be registered to vote in primary elections of the same political party as the member replaced. (Mont. Co. Code 1965, §2-88; 1967 L.M.C., ch. 10, § 1; 1968 L.M.C., Ex. Sess., ch. 9, § 1; 1976 L.M.C., ch. 45, § 2; 1997 L.M.C., ch. 24, §1.)
Editor’s note-Section 2-110 [formerly §2-88] is quoted in part in Montgomery County Board of Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1962).
(a) The County Board of Appeals must exercise all functions of a Board of Zoning Appeals. Any reference to a Board of Zoning Appeals for the County in state or County law means the County Board of Appeals.
(b) The Board must hear and decide each special exception or conditional use appeal, unless Chapter 59 directs otherwise.
(c) The Board has the following appellate jurisdiction.
The Board must hear and decide each appeal taken under: | Those appeals involve:
|
The Board must hear and decide each appeal taken under: | Those appeals involve:
|
Section 2B-4 | Agricultural land preservation |
Section 4-13 | Licenses for places of amusement |
Section 8-23 | County building code |
Section 15-18 | Food service facility licenses |
Section 18-7 | Removal of diseased trees |
Section 22-21 | Fire safety licenses and permits |
Section 23A-11 | Group home licenses and deficiency orders |
Section 24A-7 | Historic area work permits |
Section 25-23 | Licenses for hospitals, sanitariums, nursing homes, and care homes |
Section 29-77 | Mobile home parks |
Section 39-4 | Rat control |
Section 41-16 | Commercial campgrounds |
Section 44-25 | Licenses for private educational institutions |
Section 46-6 | Slaughterhouses |
Section 47-7 | Vendors' licenses |
Section 48-28 | Permits and licensing |
Section 49-35 | Right-of-way permits |
Section 49-36 | Permit conditions and procedures |
Section 51-13 | Swimming pool licenses, permits, and registration |
Section 51A-10 | Tanning facilities |
Section 54-27 | Transient lodging facilities |
Chapter 59 | Special exceptions and conditional uses decided by the Hearing Examiner |
(d) The Board must hear and decide any other appeal authorized by law.
(e) Any reference to the County Council as hearing an appeal in any chapter or section of the County Code listed in subsection (c) means the Board of Appeals. (Mont. Co. Code 1965, § 2-90; 1971 L.M.C., ch. 10, § 2; 1975 L.M.C., ch. 2, § 1; 1976 L.M.C., ch. 44, § 1; 1984 L.M.C., ch. 18, § 1; 1987 L.M.C., ch. 23, § 4; 1989 L.M.C., ch. 5, § 1; CY 1991 L.M.C., ch. 20, § 1; 1993 L.M.C., ch. 20, § 1; 1994 L.M.C., ch. 8, § 1; 1994 L.M.C., ch. 34, § 1; 1995 L.M.C., ch. 5, § 1; 1996 L.M.C., ch. 20, § 1; 1998 L.M.C., ch. 12, § 1; 2000 L.M.C., ch. 20
, § 1; 2001 L.M.C., ch. 14
, § 1; 2001 L.M.C., ch. 30
, § 1; 2002 L.M.C., ch. 6, § 1; 2002 L.M.C., ch. 16, § 2; 2002 L.M.C., ch. 15
, § 2; 2011 L.M.C., ch. 17, § 1; 2013 L.M.C., ch. 22
, § 1; 2016 L.M.C., ch. 8, § 1; 2022 L.M.C., ch. 32, §1.)
Editor's note—2013 L.M.C., ch. 22, § 2, states: Effective Date. This Act takes effect on March 1, 2014, and applies to any permit applied for under chapter 8, Chapter 19, or Section 49-35 on or after that date.
Section 2-112 is cited in Montgomery County v. Longo, 187 Md. App. 25, 975 A.2d 312, cert. denied, 411 Md. 357, 983 A.2d 432 (2009) In National Institutes of Health Federal Credit Union v. Hawk, 47 Md. 189, 422 A.2d 55 (1980), the court interprets and enforces the thirty-day rule in paragraph (a)(3) above. In Board of Appeals of Montgomery County v. The Marina Apartments, Inc., 272 Md. 691, 326 A.2d 734 (1974), it was held that the County (and the Board of Appeals) cannot deny a building permit on grounds of inadequate sewage disposal in the area, as that determination is made by the Washington Suburban Sanitary Commission, which either issues or denies a sewer permit. In Robertson v. County Board of Appeals for Montgomery County, 210 Md. 190, 122 A.2d 751 (1956), it was held that the Circuit Court in reviewing the issuance or denial of a special exception cannot reverse the Board of Appeals' decision unless it finds an error of law. If there is no error of law, the Circuit Court cannot modify or reverse the Board's action or remand the case for further evidence. Section 2-112 is quoted in part in Mossburg v. Montgomery County, 320 Md. 494, 620 A.2d 886 (1993).
See County Attorney Opinion dated 7/8/02 describing the extent to which quasi-judicial officials may engage in political activities. See County Attorney Opinion dated 9/2/97 explaining that the director of the Department of Permitting Services has limited authority to grant a sidewalk waiver to avoid a sidewalk leading nowhere, but may not collect an “in lieu of” fee if a waiver is granted, unless it is authorized as an excise tax.
2011 L.M.C., ch. 17, §§ 2 and 3, state:
Sec. 2. Transition. This Act does not apply to any appeal to the Board of Appeals that was filed before this Act took effect.
Sec. 3. Regulations. Regulations 6-06AM and 7-06AM remain in effect, notwithstanding any amendment to the County Code in Section 1 of this Act, except for any provision of the National Fire Code that authorizes or refers to an appeal to the Board of Appeals.
(a) Subject to the approval of the Council, the Board may adopt rules of procedure to govern its proceedings. The Board’s rules may govern filing fees, the conduct of meetings and hearings, and other procedures necessary to hear and decide cases. This Article and other laws, ordinances, rules and regulations under which the Board exercises authority control in any conflict with any rule adopted by the Board.
(b) The Board, and the Hearing Examiner in cases referred by the Board, must allow each party a reasonable opportunity to cross-examine each witness not called by that party on matters within the scope of that witness' direct testimony.
(c) The Board must decide any matter referred to it only after notice and opportunity for hearing and on the basis of the record before it. However, the Board may decide any matter that the Board referred to a Hearing Examiner solely on the basis of the Hearing Examiner's report and recommendation.
(d) All hearings held by the Board or the Hearing Examiner must be open to the public. (Mont. Co. Code 1965, § 2-91; 1967 L.M.C., ch. 13, § 1; 1976 L.M.C., ch. 44, § 1; 1988 L.M.C., ch. 27, § 1; 1997 L.M.C., ch. 24, § 1; 2001 L.M.C., ch. 30 § 1.)
Editor's note-Section 2-113 [formerly §2-91] is cited in Cohen v. Willett, 269 Md. 194, 304 A.2d 824 (1973). In Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 225 A.2d 294 (1966), it was held that it was a denial of due process for the Board of Appeals to refuse to permit aggrieved parties to cross-examine witnesses at a hearing on the grant of a special exception.
Cross reference-Rules of procedure, app. C.
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