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(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.
(a) The Board may, by vote of 3 members, refer any matter pending before it to be heard by a hearing examiner in the Office of Zoning and Administrative Hearings. The Office must conduct the hearing under the Office’s rules of procedure or, if the Office’s rules do not apply to that type of hearing, the Board’s rules of procedure. The hearing examiner must submit a written report and recommendation to the Board.
(b) Within 10 days after transmittal of the hearing examiner's report and recommendation, any person who, or association which, appeared and testified in person or by counsel at the hearing before the examiner may request, in writing, an opportunity to present oral argument to the Board before it issues a decision. Any request for oral argument must explicitly state the issues to be presented at the oral argument. If oral argument is granted, the party who sought the oral argument must be limited to the issues stated in the request and any other issue specified in the order allowing oral argument. The Board may, in its discretion, grant or deny a request for oral argument.
(c) The Board must, after oral argument if argument is allowed:
(1) decide the matter on the basis of the evidence of record and the hearing examiner’s report and recommendation, or
(2) remand the matter to the hearing examiner for clarification or taking additional evidence, as appropriate. (1976, L.M.C., ch. 44, § 1; 2001 L.M.C., ch. 30, § 1.)
(a) If a party in a matter adjudicated by the Board of Appeals is aggrieved by a final decision of the Board in the matter, the party may seek judicial review of the decision in the Circuit Court under the applicable Maryland Rules of Procedure governing judicial review of administrative agency decisions. A party aggrieved by the decision of the Circuit Court may appeal that decision to the Court of Special Appeals.
(b) Unless the court reviewing the Board’s decision orders a stay, the decision remains in effect pending a final decision of the court. (Mont. Co. Code 1965, § 2-92; 1971 L.M.C., ch. 10, § 3; 2011 L.M.C., ch. 17, § 1.)
Editor's note-In Cohen v. Willet, 269 Md. 194, 304 A.2d 824 (1973), it was held that the Circuit Court cannot remand an appeal from the denial of a special exception for additional consideration unless it finds that the action of the Board of Appeals was not in accordance with law. In the Maryland-National Capital Park and Planning Commission v. Montgomery County, Maryland, 267 Md. 82, 296 A.2d 692 (1972), it was held that such Commission had no right under the above section's predecessor to appeal from a decision of the Board of Appeals granting a special exception. In Hertilendy v. Montgomery County Board of Appeals, 245 Md. 554, 226 A.2d 672 (1967), it was held that a landowner who had sent a letter to the Board protesting the granting of a variance, but who had not appeared personally before the Board was an aggrieved person entitled to appeal. In Bayer v. Siskind, 247 Md. 116, 230 A.2d 316 (1967), it was held that the right to appeal on grounds that cross-examination of witnesses was denied in hearings before the Board of Appeals is waived if an objection to being denied cross-examination is not made at the hearing. In Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 230 A.2d 289 (1967), it was held that an "owner of property immediately contiguous or in close proximity" to property being
rezoned is an aggrieved party with the right to appear and be heard by the Board of Appeals and appeal the board's decision in the courts. In Baxter v. Montgomery County Board of Appeals, 248 Md. 111, 235 A.2d 536 (1967), it was held that persons who sign a petition in opposition to the grant of a special exception are parties aggrieved for the purpose of an appeal from the grant of a special exception. In Montgomery County Board of Appeals v. Walker, 228 Md. 574, 180 A.2d 865 (1965), it was held that a member of the County Board of Appeals was justified in disqualifying himself from a case where he had vigorously opposed a previous rezoning request made by the same parties and had thereafter continuously been legal counsel for a company owned by one of the applicants. Such case also held that the Board was also a party to an appeal to the courts. Section 2-114 [formerly §2-92] is cited in Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52, 225 A.2d 294 (1966). Section 2- 114 [formerly §2-83] is quoted in part in Symonds v. Bucklin, 197 F.Supp. 682 (D.Md. 1961).
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.
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