(a) Written request. An applicant may request in writing a variance from this Chapter or any regulation adopted under it if the applicant shows that enforcement would result in unwarranted hardship. A request for a variance suspends the time requirements in Section 22A-11 until the Planning Board or Planning Director acts on the request.
(b) Application requirements. An applicant for a variance must:
(1) describe the special conditions peculiar to the property or other conditions which would cause the unwarranted hardship;
(2) describe how enforcement of this Chapter will deprive the landowner of rights commonly enjoyed by others in similar areas;
(3) verify that State water quality standards will not be violated and that a measurable degradation in water quality will not occur as a result of granting the variance; and
(4) provide any other information appropriate to support the request.
(c) Referral to other agencies.
(1) The Planning Director must send a copy of each variance request related to Section 22A-12(b)(3)(A) or (B) to the County Arborist and any other appropriate agency for a written recommendation before the Board acts on the request.
(2) The Planning Director may send a copy of each variance request related to Section 22A-12(b)(3)(C) to the County Arborist and any other appropriate agency for a written recommendation before the Board acts on the request.
(3) If a recommendation on the variance is not submitted to the Planning Board, or Planning Director, as appropriate, within 10 days after the referral, the recommendation must be presumed to be favorable.
(d) Minimum criteria. A variance may only be granted if it meets the criteria in subsection (a). However, a variance must not be granted if granting the request:
(1) will confer on the applicant a special privilege that would be denied to other applicants;
(2) is based on conditions or circumstances which result from the actions by the applicant;
(3) is based on a condition relating to land or building use, either permitted or nonconforming, on a neighboring property; or
(4) will violate State water quality standards or cause measurable degradation in water quality.
(e) If the applicant is granted a variance to remove any of the subject trees listed as priority for retention in Section 22A-12(b)(3), the applicant must replant mitigation trees at a minimum ratio of 1 caliper inch replaced for every 4 inches of trunk diameter removed, measured at 4.5 feet above the ground, regardless of whether those trees are within or outside of forest area, in addition to any reforestation, afforestation, or landscape credit requirements. Mitigation for trees that are part of an historic site or associated with an historic structure is only required for the removal of trees located outside of forest.
(f) If the applicant is granted a variance in connection with disturbance of forest in a floodplain or stream buffer under Section 22A-12(b)(3)(D), the applicant must reforest at a minimum ratio of:
(1) 2:1, if the reforestation is occurring within the same 8-digit watershed as the project or a priority 8-digit watershed under Section 22A-12(c); or
(2) 2 ½:1, if the reforestation is occurring within the County outside of the same 8-digit watershed and outside of a priority 8-digit watershed under Section 22A-12(c).
(g) Approval procedures; conditions. The Planning Board must find that the applicant has met all requirements of this Section before granting a variance. However, the Planning Director may grant a variance if the Director is authorized to approve the forest conservation plan and the applicant meets all requirements of this Section. The Board or Director may impose appropriate conditions to promote the objectives of this Chapter and protect the public interest.
(h) Notice to State Department of Natural Resources; right to initiate or intervene in proceedings.
(1) Notice of a pending variance request must be given to the Department of Natural Resources within 15 days of receipt of a request for a variance.
(2) The Department of Natural Resources may initiate or intervene in an administrative, judicial or other original proceeding or appeal in the State concerning an approval of a variance. (1992 L.M.C., ch. 4, § 1; 2010 L.M.C., ch. 6, § 1; 2010 L.M.C., ch. 55, § 1; 2017 L.M.C., ch. 34, §1; 2021 L.M.C., ch. 1, §1; 2023 L.M.C., ch. 6, §1.)
Editor’s note—2010 L.M.C., ch. 6, § 2, states in part: Applicability. (b) Any amendment to County Code Chapter 22A made by Section 1 of this Act applies to any enforcement action that begins after this Act takes effect even if the alleged violation on which the enforcement action is based was committed before this Act took effect.