(a) The Director of Permitting Services may waive any requirement of this Article for sidewalks, bikeways, rights-of-way widths, grade percentages, full-width grading, and the construction of both roadways of a dual road, or any combination of them, as allowed in this Section, for any road constructed by the County or a permittee.
(b) The Director must apply the following standards for granting or denying waivers:
(1) Sidewalks and Sidepaths.
(A) Waiver authority. The Director, after consultation with the staff of the Planning Board, may waive any requirement, subject to (B), to install sidewalks or sidepaths if:
(i) the lots abutting the right-of-way are unimproved;
(ii) the street was lawfully graded before August 15, 1950, and the terrain is so steep and uneven that grading for sidewalks or sidepaths cannot be done except at excessive cost, or
(iii) houses or buildings abutting the right-of-way which were constructed before August 15, 1950, are so situated, and the property upon which those houses or buildings are located is so graded, that the construction of sidewalks or sidepaths is undesirable.
(B) Waivers not allowed. The Director must deny a waiver if:
(i) the street involved is an Area Connector, Neighborhood Connector, Industrial Street, Downtown Street, Town Center Street, Downtown Boulevard, Town Center Boulevard, Boulevard, or Controlled Major Highway; or
(ii) the required sidewalks or bikeways are necessary or desirable to provide safe access for pedestrians and/or bicyclists.
(C) Waiver and fee payment. As an alternative to building a sidewalk or bikeway on an existing or proposed street, the Director must require an applicant to pay a fee if the applicant shows that building a sidewalk or bikeway as required would cause extreme hardship or if the Director finds that it would cause significant environmental impact. The sidewalk or bikeway that would be waived must not connect to another existing or proposed sidewalk, bikeway, bus stop, school, or other public facility. The fee must equal the full cost to build the sidewalk or bikeway, including the design and supervision costs. This fee must be paid, any necessary right-of-way must be dedicated, and any necessary perpetual easement must be recorded before the Director issues any road construction permit for the proposed public street. The revenue from these fees must be assigned to a capital account for sidewalk or bikeway construction and may be spent as appropriated by the County Council.
(2) Right-of-way widths. The Director may waive or reduce any right-of-way width if:
(A) the proposed right-of-way connects with an existing right-of-way of substandard width which was lawful when established, but the Director must not waive or reduce any part of the proposed right-of-way which is beyond a four-way intersection or any other logical point of widening;
(B) the proposed right-of-way is the connecting link of a street and the right- of-way at each end is a substandard width which was lawful when established.
(3) Grade percentages. The Director may waive or reduce any required grade percentage if the road connects with another road or private driveway in such manner that the grade percentage required by this Article cannot be provided.
(4) Full-width grading. The Director may waive or reduce any requirement for full- width grading if:
(A) a grading permit was issued before August 15, 1950, all grading required by that permit was done, sidewalks are not required or are waived, further grading is not required to construct the pavement or curbs and gutters, and a majority of the lots abutting the proposed road have been developed;
(B) the reduced width is needed to protect a specimen tree, significant stand of mature trees, or certain trees or other sensitive environmental features designated for preservation in an approved forest conservation plan or other regulatory approval; or
(C) for a Neighborhood Street or Neighborhood Yield Street, the applicant proposes to extend an existing paved road which ends short of an intersection, the right-of-way containing the existing paved road is not graded to its full width and the waiver does not apply beyond the intersection.
(5) Dual roads. The Director may allow the construction of only one roadway of a dual road if:
(A) the applicant for a waiver does not own the property abutting the roadway for which the waiver is requested;
(B) the abutting property is undeveloped;
(C) the temporary use of two-way traffic on the single roadway to be constructed will not interfere with the flow of traffic so as to cause congestion;
(D) each intersection will be constructed completely; and
(E) the main drainage system will be constructed as a part of the roadway first constructed.
(c) In addition to the other provisions of this section, any person may propose temporary or interim improvements to an existing public road by filing a written request for a waiver of any requirement of this Article. The County Executive may grant the request for a waiver in whole or in part when the Executive finds, by notice published in the County Register, that the application satisfies the following conditions:
(1) The Director of Permitting Services, after reviewing detailed plans and specifications of the proposed improvements, must recommend in writing, using waiver criteria developed by the Department of Transportation, that the Executive should approve or disapprove the improvements proposed in the plans submitted by the applicant and state the reasons for the recommendation. The failure of the Director to act on the plans within 30 days after submission constitutes the Director's support of the Executive granting the waiver.
(2) If a road is proposed to be improved by the County, the road is listed for construction or reconstruction in an approved six-year capital improvements program.
(3) An immediate, temporary improvement is necessary to provide safe vehicular access to residents presently residing on or near the road.
(4) The road is a County public road, and all rights-of-way required for the proposed improvements have been acquired by or dedicated to the County.
(5) The applicant for such a waiver has agreed to make, or cause to be made, all of the proposed improvements in the road at no cost to the County. An applicant under this subsection, before beginning any grading or construction, must deliver to the County a cash or corporate bond in the amount estimated to be the total cost of the project. The cash or corporate bond must run to the County and require the applicant to:
(A) comply with all applicable terms, conditions, requirements, standards, and specifications of this Article;
(B) faithfully complete the work for which the permit is issued; and
(C) indemnity the County from any expense incurred through failure of the permittee or the permittee’s agents and employees, to complete the work as required by this Article or from any damages that result from the negligence of the permittee or the permittee’s agents or employees.
(6) The applicant for a waiver under this subsection must submit for recording in the County land records, in a form approved by the County Attorney, covenants which bind the applicant, each petitioner, and their successors in title to accept, as against each of their properties which are adjacent to the road, any future special improvement assessments levied to build the road, reserving the right to challenge any assessment which exceeds the amount by which the property is specially benefitted.
(d) The County may make temporary or interim improvements to an existing public road without construction or reconstructing it, and thereby waive any requirements of this Article, if the County Executive finds, by notice published in the County Register, that:
(1) the road to be improved is listed for planning and design or for construction or reconstruction in the most recently approved six-year capital improvements program;
(2) an immediate, temporary improvement is necessary to provide safe vehicular access to nearby residents;
(3) the road is a County public road, and no additional right-of-way is needed for the proposed improvement; and
(4) waiving of any requirement of this Article will not impair public safety.
(e) The County may make temporary or interim improvements to an existing County public road without constructing or reconstructing it, and thereby waive any requirements of this Article, if the County Executive finds, by notice published in the County Register, that:
(1) the road improvements are needed to relieve hazardous or emergency conditions, or to protect the health and well-being of the community;
(2) the road to be improved is less than 1¼ miles long, not located in a new subdivision, and no additional right-of-way is needed for the proposed improvement;
(3) existing and projected traffic levels are appropriate to the construction standards proposed;
(4) the road improvements are limited to surface treatments and minor drainage improvements;
(5) the road improvements will reduce road maintenance expenses;
(6) the County Executive has received a petition endorsing the proposed improvements signed by a substantial majority of the property owners adjacent to the road; and
(7) the proposed improvements and their estimated costs were expressly included in the County Executive's annual budget, and the Council appropriated all necessary funds.
(f) The County Executive may waive any provision of this Article to respond to an unforeseen emergency or disaster, such as a flood, hurricane, or public health crisis, or to comply with Federal or State rules, regulations or recommendations issued to deal with any emergency or disaster; if the Executive:
(1) issues an Executive order which states the nature of the unforeseen emergency or disaster, the scope and duration and any other conditions of the waiver, and
(2) promptly submits a copy of the order to the County Council. (Mont. Co. Code 1965, § 103-20; Ord. No. 6-122; 1971 L.M.C., ch. 2, § 1; 1971 L.M.C., ch. 3, § 49; 1973 L.M.C., ch. 25, § 8; 1977 L.M.C., ch. 6, § 1; 1978 L.M.C., ch. 1, § 1; 1992 L.M.C., ch. 5, § 1; 1992 L.M.C., ch. 18, § 1; 1996 L.M.C., ch. 4, § 1; 1996 L.M.C., ch. 20, § 1; 1998 L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14, § 1; 2002 L.M.C., ch. 16, § 2; 2007 L.M.C., ch. 8, § 1; 2008 L.M.C., ch. 5, § 1; 2022 L.M.C., ch. 31, § 1.)
Editor’s note—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 to nowhere, but may not collect an “in lieu of” fee if a waiver is granted, unless it is authorized as an excise tax.
2008 L.M.C., ch. 5, § 3, states: Sec. 3. Any regulation in effect when this Act takes effect that implements a function transferred to another Department or Office under Section 1 of this Act continues in effect, but any reference in any regulation to the Department from which the function was transferred must be treated as referring to the Department to which the function is transferred. The transfer of a function under this Act does not affect any right of a party to any legal proceeding begun before this Act took effect.