Appendix J. Board of Appeals Rules of Procedure.*

   *Editor’s note—This appendix originally consisted of the rules of procedure for the County Board of Appeals which were adopted on July 18, 1974, and approved by the County Council by Res. No. 7-1901, amended by Res. Nos. 8-1294, 8-1884, 9-800, 9-1853, and 9-1854. New rules of procedure were approved by the County Council by Res. No. 12-865, adopted October 27, 1992, amended by Res. No. 14-742 and Res. No. 15-554. Revised rules of procedure were approved by the County Council by Res. No. 17-1223, adopted October 30, 2014.

   Cross reference—County Board of Appeals, § 2-108 et seq.

1.0   Applications for Variances.

   1.1   Application Forms.
   1.2   Requirements for Variances.
   1.3   Amendments to Applications.
   1.4   Filing Fees.
   1.5   Refund of Fees.
   1.6   Consolidation of Cases.
   1.7   Notice Requirements.
   1.8   Sign Requirements.

2.0   Applications for Administrative Appeals.

   2.1   Application Forms; Time.
   2.2   Filing Fees.
   2.3   Refund of Fees.
   2.4   Consolidation of Cases.
   2.5   Notice Requirements.
   2.6   Additional Information.

3.0   Preliminary Motions.

4.0   Statements in Support of or Opposition to Applications.

   4.1   Filing Statements.
   4.2   Exceptions to Procedures.

      4.2.1   Expedited Hearings.
      4.2.2   Late Filings.

5.0   Powers of the Board.

6.0   Assistance for the Board.

   6.1   County Attorney.
   6.2   Staff of Maryland-National Capital Park and Planning Commission.
   6.3   Other.

7.0   Hearings and Worksessions.

   7.1   General Information.
   7.2   Hearings.

      7.2.1   Schedules.
      7.2.2   Agenda.
      7.2.3   Evidentiary rules.
      7.2.4   Procedures.
      7.2.5   Continuation.
      7.2.6   Closing the record.
      7.2.7   Transcript.

   7.3   Worksessions.

8.0   Decisions.

9.0   Opinions.

   9.1   Mailing Requirements.
   9.2   Extension of Time for Mailings.
   9.3   Correction of Clerical Errors.

10.0   Reconsideration and Rehearing—Conditional Uses and Variances.

      10.1.1   In general.
      10.1.2   Grounds.

   10.2   Requesting Reconsideration.
   10.3   Notice of Requests to Reconsider.
   10.4   Response.
   10.5   Board Action on Requests to Reconsider.
   10.6   Time for Appeals From Decisions.

11.0   Reconsideration of Decisions on Administrative Appeals.

12.0   Modifications to Conditional Uses Granted by the Board.

   12.1   Requirements.
   12.2   Transfers of Conditional Uses.

13.0   Records.

   13.1   Opinion Book.
   13.2    Docket File.
   13.3   Case Files.

14.0   Computing time.

15.0   Amendment procedure.

   The procedures of the Board of Appeals, Montgomery County, Maryland are governed by the following laws:

Maryland Annotated Code, Land Use Article, Sections 22-301, 22-305, and 22-403
Maryland Annotated Code, State Government Article, Sections 10-501 through 512
Montgomery County Code:
   Sections 2A-1 through 2A-11
   Sections 2-108 through 2-116
Chapter 59 (Zoning Ordinance)
   These laws are further explained and supplemented by rules adopted by the Board and approved by the County Council pursuant to Article V, Section 2-113 of the County Code as stated below. Copies of these laws are available at County regional libraries and at the office of the Board of Appeals.

   Please consult the office of the Board of Appeals at 100 Maryland Avenue, Room 217, Rockville, Maryland, phone: [phone], for further information and assistance.

1.0. Applications for variances.

   1.1   Application Forms. To request a variance, an applicant must submit completed application forms, accompanied by a check or money order in the amount of the applicable fee, to the Board’s office. Application forms are available at the Board’s office.

      Applications may be filed any weekday during regular office hours.

      Applications must contain the information required by section 7.3.2.B of the Zoning Ordinance. For further pre-hearing filing requirements see below.

   1.2   Requirements for Variances. An application for a variance must include the information required by section 7.3.2.B of the Zoning Ordinance and a short statement by the applicant with the reasons for the request. The information required by section 7.3.2.B must be filed at least 30 days before the hearing date.

      An application for a variance is not considered filed until all forms are correctly completed, all required supporting material is submitted and the fee is paid.

   1.3   Amendments to Applications. See section 7.3.2.D.4 of the Zoning Ordinance.

   1.4   Filing Fees. Filing fees are adopted by the County Council. Fee schedules are available at the Board office; the fee for a specific case can be obtained by telephone.

   1.5   Refund of Fees. On written request, the Board may refund filing fees:

      a.   if an application is withdrawn within 48 hours after it is filed or before public notice is issued (90% refunded);

      b.   if an application is withdrawn before a public hearing (50% refunded); or

      c.   if an action of the County Executive, County Council or an administrative board or agency resolves or moots the issues pending before the Board, whether or not the Board has held a public hearing (all or a portion refunded).

   1.6   Consolidation of Cases.

      a.   If an applicant files more than one variance or administrative appeal involving the same property, the Board may, on written request, grant:

         1.   consolidation of cases; and

         2.   payment of only the highest applicable fee.

      b.   If an applicant files a variance application involving property for which the applicant has also filed a conditional use application with the Hearing Examiner, the Board may, on written request:

         1.   refer the variance(s) to the Hearing Examiner in accordance with Section 7.6.2.B.2 to conduct a hearing and write a report and recommendation; and

         2.   waive the variance fee.

   1.7   Notice Requirements. At the time of filing the applicant must furnish the Board with a list of persons entitled to notice as specified in sections 7.3.2.B and 7.5.2.E of the Zoning Ordinance.

      If an adjacent or contiguous property is a condominium or co-op the following information is required:

      a.   the mailing address of the governing body of the condominium or co-op;

      b.   the name and address of the developer of the condominium or co-op if one is still involved in the project.

   1.8   Sign Requirements. Signs must be posted by the applicant according to the requirements of section 7.5.2.C of the Zoning Ordinance.

      Signs are available at the office of the Board of Appeals. The deposit specified in the fee schedule is required.

      At the time of the hearing, the applicant must sign an affidavit that the sign was properly posted. The affidavit will be furnished by the Board office.

      In uncontested cases, an applicant may remove the sign on receipt of the written opinion.

      If the case was opposed - either through letters or personal appearance - the sign must remain posted for 30 days following receipt of the written opinion.

      If there is a request for reconsideration or rehearing, the sign must remain posted for 30 days after the Board issues a final opinion.

      The applicant must return the sign to the Board’s office to receive a partial refund of the deposit.

      If the sign is not returned within 21 days after the date on which applicant was permitted to remove it, the refund is forfeited.

2.0. Applications for administrative appeals.

   2.1   Application Forms; Time. Unless the applicable law specifies a shorter time, an appeal from an administrative decision must be filed within 30 days after the day the decision was mailed. The required forms must be obtained at the office of the Board of Appeals.

   2.2   Filing Fees. Filing fees are adopted by the County Council. Fee schedules are available at the Board office; the fee for a specific case can be obtained by telephone.

   2.3   Refund of Fees. On written request, the Board may refund filing fees:

      a.   if an application is withdrawn within 48 hours after it is filed or before public notice is issued (90% refunded);

      b.   if an application is withdrawn before a public hearing (50% refunded); or

      c.   if an action of the County Executive, County Council or an administrative board or agency resolves or moots the issues pending before the Board, whether or not the Board has held a public hearing (all or a portion refunded).

   2.4   Consolidation of Cases. If an applicant files more than one administrative appeal involving the same property, the Board may, on written request, grant:

      a.   consolidation of cases; and

      b.   payment of only the highest applicable fee.

   2.5   Notice Requirements. At the time of filing the applicant must furnish the Board with a list of persons entitled to notice as specified in section 7.5.2.E of the Zoning Ordinance.

      If an adjacent or contiguous property is a condominium or co-op the following information is required:

      a.   the mailing address of the governing body of the condominium or co-op;

      b.   the name and address of the developer of the condominium or co-op if one is still involved in the project.

   2.6   Additional Information. Refer to the Montgomery County Code, sections 2A-1 through 11, and section 7.6.1.C of the Zoning Ordinance.

3.0. Preliminary motions.

   3.1   Notification. Any party filing motions, oppositions thereto, legal memoranda or procedural requests must serve copies on all parties entitled to original notice in the case and must certify the date and manner of this service in writing. The Board may direct staff to notify other interested parties.

   3.2   Motions to dismiss.  

      3.2.1   Motion to dismiss for lack of jurisdiction. A party may at any time move to dismiss any issue in a case on the grounds that the Board lacks jurisdiction.

      3.2.2.   Motion for summary disposition. Any party may file a motion to dismiss any issue in a case on the grounds that the application and other supporting documentation establish that there is no genuine issue of material fact to be resolved and that dismissal or other appropriate relief should be rendered as a matter of law. The motion should be supported by documents, affidavits, applicable precedent, or other appropriate materials. Unless otherwise approved by the Board, the motion must be made no later than 20 days prior to the hearing. The Board on its own motion may consider summary disposition or other appropriate relief.

      3.2.3   Response. A response to a motion for summary disposition must be filed no later than 10 days prior to the hearing. A response may not rest upon mere allegations or denials but must show, by documents, affidavits, applicable precedent, or other appropriate materials, that there is a genuine issue to be determined at the hearing.

      3.2.4   Oral argument. The Board may, at its discretion, hear oral argument on a motion to dismiss. Any party may request oral argument.

      3.2.5   Decision. The Board must decide the motion after the close of oral argument or at a worksession. If the Board’s decision disposes of the case, the Board must issue its resolution in accordance with section 7.6.1.B.3 of the Montgomery County Zoning Ordinance. If summary disposition is denied, or if partial summary disposition is granted, the hearing must proceed as necessary.