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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a. if an application is withdrawn within 48 hours after it is filed or before public notice is issued (90% refunded);
b. if an application is withdrawn before a public hearing (50% refunded); or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.
2.1 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.
3.1 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.
4.1 Filing statements. Groups and organizations, whether or not they are represented by counsel, and citizens represented by counsel, who wish to testify at the hearing must file 2 copies of their statement at least 10 days before the scheduled hearing. This statement must contain:
a. a list of expert witnesses, if experts are being used, along with
1. a summary of their testimony;
2. a resume setting forth the witness’ qualifications. If the witness has qualified as an expert before this Board within two years before the hearing, a resume is not required; and
3. any formal report an expert witness has prepared;
b. a list of other witnesses who will testify; and
c. an estimate of the time required.
4.2 Exceptions to Procedures.
4.2.1 Expedited hearings. If a variance request is heard on less than 30 days notice, statements may be filed before or at the hearing.
4.2.2 Late filings. If good cause is shown for the requested delay, and the applicant will not be prejudiced by the late filing, the Board may also, upon written request, permit the filing of these statements less than 10 days before the hearing.
In fulfilling its legislative mandate the Board may exercise the following powers:
(a) hold conferences with parties and/or their legal representatives to clarify issues and expedite full and fair handling of a case;
(b) on motion by any party, or by the Board, dispose of procedural requests, including but not limited to the following motions: to amend, to consolidate applications or petitions, or to reopen the record of any case in order to receive additional evidence or information;
(c) on motion by any party, or by the Board, introduce into the record documentary or other evidence, provided that all parties are given reasonable notice;
(d) ask parties to submit proposed findings of fact and memoranda of law;
(e) require parties to provide additional information about the application;
(f) waive minor procedural defects or errors that do not affect substantive rights of the parties in order to proceed on the merits;
(g) on motion by any party, or by the Board, dismiss any issue in a case if it determines that (1) the Board lacks jurisdiction to hear the issue, or (2) there is no genuine issue of material fact to be resolved and dismissal or other relief should be rendered;
(h) take any other action necessary to carry out the intent of the Zoning Ordinance;
(i) exercise all other powers included in section 2A-8(h)(1)-(16) of the County Code; and
(j) visit the site which is the subject of a Board proceeding.
Editor’s note-Rule 5.0 is quoted and applied in Concerned Citizens of Great Falls v. Constellation- Potomac, 122 Md. App. 700, 716 A.2d 353 (1998).
6.1 County Attorney. The Board may ask the County Attorney's office to send a representative to any of its meetings or hearings.
6.2 Staff of Maryland-National Capital Park and Planning Commission. The Board may ask that a member of the staff of MNCPPC attend any of its meetings or hearings to provide technical advice.
6.3 Other. The Board may also ask for help from other offices of the Montgomery County Government or other sources.
7.1 General Information. The Board holds public hearings and has worksessions. All meetings of the Board are open to the public except as otherwise expressly provided by law.
No person may engage in any conduct, including visual demonstration, such as waving or raising of placards, signs or banners, that disrupts the hearing. The wearing of armbands, badges or other objects on clothing is permitted.
A person wishing to videotape, televise, photograph, broadcast or record a hearing must obtain permission from the presiding officer. Such permission will be granted unless the activity will disrupt the hearing.
A recording of a hearing made by a member of the public or any transcript derived from such a recording may not be deemed a part of the official record.
7.2 Hearings.
7.2.1 Schedules. The Board meets at least once a week for public hearings, except during designated vacations or official holidays. If there is a backlog of cases, additional hearings will be scheduled to dispose of pending cases. If a case cannot be heard in one day, the chairman schedules an extra day or days as soon as possible.
7.2.2 Agenda. The agenda must be made available to citizens, organizations and the general public as requested.
A supply of agendas must be available for the public on the hearing day.
7.2.3 Evidentiary rules. For all hearings, the Board follows the evidentiary guidelines in section 2A-8(e) of the County Code.
7.2.4 Procedures.
a. The chairman or vice chairman conducts all hearings.
b. After a case is called, the applicant and all persons wishing to testify in support of the application state their names and addresses for the record.
c. The presiding officer then asks if there is anyone present in opposition. All persons speaking in opposition must state their names and addresses for the record. Witnesses who are temporarily absent from the hearing room or arrive late are not excluded from testifying.
d. All witnesses must be sworn.
e. Unless the Board provides otherwise, the applicants and their supporters are heard first. Each person who speaks is subject to cross-examination.
f. Following the presentation of the applicant, the opponents state their case. Each person is subject to cross-examination.
g. A group or organization is encouraged to designate a person to speak on its behalf. Citizens representing themselves may testify at a hearing without prior notice.
h. Rebuttal witnesses are then permitted.
i. Each side is permitted a closing statement.
j. Board members are free to ask questions at any time.
k. All evidence and exhibits presented to the Board and accepted must be numbered, made part of the case record and included in the case file. The Board may require photographs or reductions to be substituted for large or bulky exhibits.
l. Upon request of any party or upon its own motion, the Board may, in its discretion, visit the site which is the subject of the proceeding on reasonable notice to the parties. The parties may submit, or the Board may require, a listing of those specific areas on the site for the Board’s viewing. Parties and their representatives may be present to observe, but no testimony may be taken. The parties or their representatives are prohibited from engaging in any discussion with the Board members at the site visit. The Board must issue written findings of fact relating to the site visit in any proceeding where a site visit has been conducted. A member who has not participated in the site visit prior to the Board’s vote may not participate in the decision. However, the Board may schedule an additional site visit for the purpose of permitting an absent or new member to visit the site.
7.2.5 Continuation. If, for any reason, a hearing cannot be completed on the date originally scheduled, the Board may continue the hearing to a specific time and date. Except for administrative appeals, no further notice is necessary if the time and place of the continued hearing is announced at the time of the adjournment. If a case is continued to an indefinite time, all parties entitled to original notice and any other party the Board may designate must receive 15 days notice of the continued hearing.
7.2.6 Closing the record. As a rule the record is closed at the end of a hearing. The Board will hold the record open for at least 15 days after the conclusion of a hearing if:
a. an amended application is filed less than 10 days before the hearing or during the hearing; or
b. other circumstances occur to justify holding the record open at the Board’s discretion.
7.2.7 Transcript. A complete verbatim record of all public hearings before the Board must be made. The Board may order a transcript of any proceeding for use by the Board or the County.
Any party may order a written transcript at that party’s expense.
If a Board decision is appealed to the Circuit Court and the Board does not have a transcript of the hearing, the party who files the appeal must, within 10 days of filing the appeal, forward to the Board one original and one copy of the transcript to become a part of the record. If the Board has a transcript of the hearing, the Board will, at the appealing party’s request and expense, make two copies of the transcript.
7.3 Worksessions. Worksessions are held as needed - as a rule biweekly - to decide cases which were not decided at the close of the hearing and to consider minor modifications, correspondence and other matters which may come before the Board. The date and time of worksessions are announced, and the agenda for a worksession is posted outside the hearing room and outside the Board’s office on the morning of the day before the worksessions. All worksessions are open to the public, but only those persons permitted by the Board to offer comments may do so.
Any requests for Board consideration at a worksession must be submitted by the Thursday preceding a scheduled worksession.
Minutes of the previous worksession must be approved at the next worksession.
Editor’s note—Rule 7.2.6 is quoted and applied in Concerned Citizens of Great Falls v. Constellation- Potomac, 122 Md. App. 700, 716 A.2d 353 (1998).
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