A. Applicability and Description
1. Use of any property for a conditional use under Article 59-3 requires approval of a conditional use application.
2. A conditional use application may include all or part of a property.
3. A conditional use application must satisfy the conditions and binding elements of, and be consistent with, any effective previous approvals on the subject property.
4. An area covered by a conditional use approval requires a site plan only if:
a. the area is included in a sketch plan; or
b. the use standards in Article 59-3 require it.
1. Ownership:
a. An applicant must own the subject property or be authorized by the owner to file the application.
b. If any land or right-of-way is owned or controlled by the State, County, or any other entity or agency, written authorization from that entity or agency must be submitted with the application.
2. The applicant must submit the following for review:
a. application form and fees as approved by the District Council;
b. proof of ownership or authorization;
c. statement of how the proposed development satisfies the criteria to grant the application;
d. certified copy of official zoning vicinity map showing the area within at least 1,000 feet surrounding the subject property;
e. list of abutting and confronting property owners in the County tax records;
f. list of any civic, homeowners, and renters associations that are registered with the Planning Department and located within 1/2 mile of the site;
g. Traffic Statement or Study, accepted for review by the Planning Director;
h. map showing existing buildings, structures, circulation routes, significant natural features, historic resources, zoning, and legal descriptions on the proposed development site and within 500 feet of the perimeter boundary;
i. existing and proposed dry and wet utility plan if changes to these facilities are proposed;
j. written description of operational features of the proposed use;
k. if exterior changes are proposed, plans of the proposed development showing:
i. footprints, ground-floor layout, and heights of all buildings and structures;
ii. required open spaces and recreational amenities;
iii. layout of all sidewalks, trails, paths, roadways, parking, loading, and bicycle storage areas;
iv. rough grading;
v. landscaping and lighting;
vi. approved Natural Resources Inventory/Forest Stand Delineation, if required under Chapter 22A;
vii. Forest Conservation Plan application, if required under Chapter 22A, or an approved preliminary forest conservation plan; telecommunication tower applications must include an approved Forest Conservation Plan or a letter from the Planning Department confirming that a Forest Conservation Plan is not required under Chapter 22A;
viii. Stormwater Management Concept or Water Quality Plan application, if required under Chapter 19 ; and
ix. supplementary documentation showing or describing how the application satisfies previous approvals and applicable requirements.
l. development program and inspection schedule detailing any construction phasing for the project; and
m. for a telecommunication tower application, photographic simulations of the tower and site seen from areas with a direct view of the tower, including a minimum of at least 3 directions.
3. The applicant must submit an initial application to the Planning Director for approval of completeness. The Planning Director must review the application for completeness within 10 days after receipt. An application is incomplete if any required element is missing or is facially defective, e.g., a drawing that is not to scale or lacks proper signatures. The assessment of completeness must not address the merits of the application.
4. The applicant must submit any required revisions to the Planning Director. The Planning Director must review the revised application for completeness within 10 days after receipt.
5. After the Planning Director verifies that the application is complete, the applicant must file the final application with the Hearing Examiner, who will accept the application and establish a hearing date under Section 7.3.1.C.
6. Public notice is required under Division 7.5.
C. Hearing Date
1. The Hearing Examiner must schedule a public hearing to begin within 120 days after the date an application was accepted.
2. The Hearing Examiner may postpone the public hearing and must send notice to all parties of record of the new hearing date.
3. The Hearing Examiner may issue a subpoena to compel the attendance of witnesses at a public hearing and production of documents and administer an oath to any witness.
D. Review and Recommendation
1. Planning Director Review
a. The Planning Director may provide a report and recommendation for review by the Planning Board at a public meeting or issue a report and recommendation directly to the Hearing Examiner. The Planning Director must provide a report and recommendation on a telecommunication tower application directly to the Hearing Examiner.
b. If the Planning Director provides a report and recommendation to the Planning Board, the Planning Director must publish the report and recommendation a minimum of 10 days before the Planning Board public meeting.
c. If the Planning Director provides a report and recommendation to the Hearing Examiner, the Planning Director must publish the report and recommendation a minimum of 10 days before the Hearing Examiner's public hearing.
2. Planning Board Review
a. The Planning Board may consider the Planning Director’s report and recommendation as a consent item on its agenda or hold a public meeting to consider the recommendation.
b. The Planning Board must provide a recommendation on the application to the Hearing Examiner a minimum of 7 days before the Hearing Examiner’s public hearing.
3. Amendment of an Application
a. An applicant may amend the application before the hearing if the Hearing Examiner approves a motion to amend after giving 10 days' notice to all parties entitled to original notice of filing. If an amendment would materially alter an applicant’s proposal or evidence, the Hearing Examiner may postpone the hearing to a date that permits all interested parties adequate time to review the amendment.
b. The applicant must forward a copy of any proposed amendment to the Planning Board. The Hearing Examiner must keep the record open for no more than 30 days to provide an opportunity for the Planning Board or its staff to comment. Within that time, the Planning Board or its staff must comment on the amendment or state that no additional review and comment are necessary.
4. Dismissal or Withdrawal of an Application
a. The Hearing Examiner may dismiss an application if the application has been pending for more than one year and the applicant has not actively pursued the application.
i. The Hearing Examiner must notify the applicant of the contemplated dismissal at the applicant’s last known address at least 60 days before dismissing the case.
ii. The applicant may stay the dismissal by filing a motion before the case is dismissed.
iii. The Hearing Examiner may grant the motion for good cause shown.
b. The Hearing Examiner or the Hearing Examiner's designee must send a notice to all parties entitled to notice of the hearing when an application for a conditional use is withdrawn.
E. Necessary Findings
1. To approve a conditional use application, the Hearing Examiner must find that the proposed development:
a. satisfies any applicable previous approval on the subject site or, if not, that the previous approval must be amended;
b. satisfies the requirements of the zone, use standards under Article 59-3, and to the extent the Hearing Examiner finds necessary to ensure compatibility, meets the intent of the general requirements under Article 59-6;
c. substantially conforms with the recommendations of the applicable master plan;
d. is harmonious with and will not alter the character of the surrounding neighborhood in a manner inconsistent with the plan;
e. will not, when evaluated in conjunction with existing and approved conditional uses in any neighboring Residential Detached zone, increase the number, intensity, or scope of conditional uses sufficiently to affect the area adversely or alter the predominantly residential nature of the area; a conditional use application that substantially conforms with the recommendations of a master plan does not alter the nature of an area;
f. will be served by adequate public services and facilities including schools, police and fire protection, water, sanitary sewer, public roads, storm drainage, and other public facilities. If an approved adequate public facilities test is currently valid and the impact of the conditional use is equal to or less than what was approved, a new adequate public facilities test is not required. If an adequate public facilities test is required and:
i. if a preliminary subdivision plan is not filed concurrently or required subsequently, the Hearing Examiner must find that the proposed development will be served by adequate public services and facilities, including schools, police and fire protection, water, sanitary sewer, public roads, and storm drainage; or
ii. if a preliminary subdivision plan is filed concurrently or required subsequently, the Planning Board must find that the proposed development will be served by adequate public services and facilities, including schools, police and fire protection, water, sanitary sewer, public roads, and storm drainage; and
g. will not cause undue harm to the neighborhood as a result of a non-inherent adverse effect alone or the combination of an inherent and a non-inherent adverse effect in any of the following categories:
i. the use, peaceful enjoyment, economic value or development potential of abutting and confronting properties or the general neighborhood;
ii. traffic, noise, odors, dust, illumination, or a lack of parking; or
iii. the health, safety, or welfare of neighboring residents, visitors, or employees.
2. Any structure to be constructed, reconstructed, or altered under a conditional use in a Residential Detached zone must be compatible with the character of the residential neighborhood.
3. The fact that a proposed use satisfies all specific requirements to approve a conditional use does not create a presumption that the use is compatible with nearby properties and, in itself, is not sufficient to require conditional use approval.
4. In evaluating the compatibility of an agricultural conditional use with surrounding Agricultural or Rural Residential zoned land, the Hearing Examiner must consider that the impact does not necessarily need to be controlled as stringently as if it were abutting a Residential zone.
5. The following conditional uses may only be approved when the Hearing Examiner finds from a preponderance of the evidence of record that a need exists for the proposed use to serve the population in the general neighborhood, considering the present availability of identical or similar uses to that neighborhood:
a. Filling Station;
b. Light Vehicle Sales and Rental (Outdoor);
c. Swimming Pool (Community); and
d. the following Recreation and Entertainment Facility use: swimming pool, commercial.
6. The following conditional uses may only be approved when the Hearing Examiner finds from a preponderance of the evidence of record that a need exists for the proposed use due to an insufficient number of similar uses presently serving existing population concentrations in the County, and the uses at the location proposed will not result in a multiplicity or saturation of similar uses in the same general neighborhood:
a. Funeral Home; Undertaker;
b. Hotel, Motel;
c. Shooting Range (Outdoor);
d. Drive-Thru
e. Landfill, Incinerator, or Transfer Station; and
f. a Public Use Helipad, Heliport or a Public Use Helistop.
F. Decision
1. Hearing Examiner
a. The Hearing Examiner must issue a report and decision no later than 30 days after the close of the record of the public hearing. The decision may approve, approve with conditions, or deny the application. The Hearing Examiner may supplement the specific requirements of this Chapter with any other requirements necessary to protect nearby properties and the general neighborhood. The Hearing Examiner may by order extend the time to issue the report and decision.
b. The Hearing Examiner must issue a notice, on the day the report and decision is issued, to the Board of Appeals, the applicant, and all parties of record that the report and decision has been issued and is available for review. The Hearing Examiner’s report and decision is effective on the date issued, but will be stayed if appealed under Subsection c.
c. Any party of record may appeal the Hearing Examiner’s decision by filing a written request to present oral argument before the Board of Appeals within 10 days after the Office of Zoning and Administrative Hearings issues the Hearing Examiner's report and decision. The filing of such a request transfers jurisdiction over the matter while on appeal from the Hearing Examiner to the Board of Appeals.
i. A written request for an appeal and oral argument must be filed with the Board of Appeals and the Hearing Examiner, and must concisely identify the matters to be presented at the oral argument. A person requesting an appeal must send a copy of that request to the Hearing Examiner, the Board of Appeals, and all parties of record before the Hearing Examiner.
ii. Any party of record may, no later than 5 days after a request for an appeal and oral argument is filed, file a written opposition or request to participate in oral argument. An opposition to a request for an appeal and oral argument must be sent to the Board of Appeals and all parties as listed by the Hearing Examiner, and must be concise and limited to matters raised by the party who requested oral argument.
iii. The Board of Appeals may, in its discretion, grant or deny an oral argument request. If the Board of Appeals grants a request for oral argument, the argument must be limited to matters contained in the record compiled by the Hearing Examiner.
iv. Regardless of whether the Board of Appeals has elected to hear oral argument, the Board of Appeals must, under Section 7.3.1.F.2, approve or deny the appealed conditional use application or remand it to the Hearing Examiner for clarification or the taking of additional evidence, if appropriate.
v. A request for an appeal of the Hearing Examiner’s decision stays the decision of the Hearing Examiner.
2. Board of Appeals
a. If the Board of Appeals is deciding the appeal of an application, it must make the necessary findings under Section 7.3.1.E and must:
i. vote in public session to approve, approve with conditions, or deny the application, or to remand the application to the Hearing Examiner for additional evidence or clarification. An affirmative vote of 4 mem-bers of the Board of Appeals is required to approve a conditional use when 5 members are present, otherwise an affirmative vote of 3 members is required. Any Board of Appeals member who votes on a conditional use and was not present for any portion of the oral argument must read and sign the transcript of that portion of the oral argument; and
ii. issue a resolution reflecting the Board of Appeals’ decision no later than 30 days after voting on the matter, unless such time is extended by the Board of Appeals.
b. All matters decided under Section 7.3.1.F.2 must be decided on the basis of the evidence of record, but the Board of Appeals may decide any matter heard by the Hearing Examiner and presented to the Board of Appeals for decision solely on the basis of the Hearing Examiner's report and decision.
c. The Board of Appeals may supplement the specific requirements of this Chapter with any other requirements necessary to protect nearby properties and the general neighborhood.
G. Appeal
Any party aggrieved by a decision of the Board of Appeals may, within 30 days after the Board of Appeals' action, file a petition for judicial review of the decision under the Land Use Article (Section 22-403).
H. Subsequent Actions
1. If the conditional use application is denied, a new application proposing substantially the same development for the same property may not be filed within 18 months after a final decision, unless the Hearing Examiner finds that the applicant provides material new facts that warrant reapplication.
2. Conforming Permits
DPS must not issue a sediment control permit, building permit, or use-and- occupancy permit for any building, structure, or improvement associated with a conditional use
a. until the Hearing Examiner or Board of Appeals approves a conditional use; and
b. unless any building, structure, or improvement satisfies the approved conditional use.
3. Permits Exempt from Conformance to Approved Conditional Uses
a. On any property with an approved conditional use, DPS may, without a finding of conformance to the approved conditional use, issue a sediment control permit or building permit to:
i. construct an accessibility improvement;
ii. repair an existing structure without changing its height or footprint; or
iii. replace an existing structure to no more than the same footprint and height approved.
b. DPS must submit a copy of any permit issued under Section 7.3.1.H.3 to the Hearing Examiner and the Board of Appeals for inclusion in the record of the conditional use.
c. Any modification or improvement allowed under Section 7.3.1.H.3 does not require an amendment to the conditional use application.
I. Duration of Approval
1. A conditional use that is not established or has not obtained a building permit within 24 months from the date of the issuance of the decision or resolution expires, unless a longer period is established by the decision or resolution.
2. After the decision, the Board of Appeals or the Hearing Examiner may extend the time limit for a conditional use to be established or obtain a building permit if the evidence of record establishes that drawing of architectural plans, preparation of the land, or other factors involved in the particular use will delay the start of construction or the establishment of the use beyond the period of validity. An individual extension must not exceed 12 months. If the Board of Appeals or the Hearing Examiner grants an extension, it must set a date by which the erection or alteration of the building must begin or the use must be established.
3. Development activities under Section 7.3.1 must satisfy the approved conditional use and any conditions, including operational restrictions.
4. The conditional use holder must notify the Board of Appeals or the Hearing Examiner of any change in land ownership or change in circumstances or conditions affecting the conditional use.
J. Recording Procedures
1. The Hearing Examiner or the Board of Appeals must maintain in their per- manent files any conditional use application that they approve, along with any written decision.
2. A copy or notice of the decision of the Board of Appeals or Hearing Examiner on each conditional use application must be sent to the applicant, the Board of Appeals or Hearing Examiner, as appropriate, the Planning Board, DPS, the Department of Finance, and any other parties of record.
3. The Planning Director must indicate the decision on the official zoning map by use of an appropriate code number or symbol.
K. Amendments
1. Major Amendment
a. A major amendment to a conditional use is one that changes the nature, character, or intensity of the conditional use to an extent that substantial adverse effects on the surrounding neighborhood could reasonably be expected, when considered in combination with the underlying conditional use.
b. An application for a major amendment to a conditional use must be filed with the Hearing Examiner, and it follows the same procedures, must meet the same criteria, and must satisfy the same requirements as the original conditional use application, except that:
i. the public hearing must be limited to consideration of the proposed modifications specified in the notice of public hearing and to those aspects of the conditional use that are directly related to those proposals; and
ii. the Hearing Examiner or, if the matter is appealed, the Board of Appeals, may require the underlying conditional use to satisfy the conditional use requirements of the applicable zone, to the extent necessary to avoid substantial adverse effects on the surrounding neighborhood.
c. An application for an amendment to a special exception must be filed with the Board of Appeals, and it follows the procedures and criteria applicable to modifications of special exceptions as determined by the provisions of Section 59.7.7.1.B.
2. Minor Amendment
a. An application for a minor amendment to a conditional use must be filed with the Hearing Examiner, and it may be approved administratively by the Hearing Examiner. An application for a minor amendment to a special exception must be filed with the Board of Appeals, and it may be approved administratively by the Board of Appeals. A minor amendment to a conditional use is one that does not change the nature, character, or intensity of the conditional use to an extent that substantial adverse effects on the surrounding neighborhood could reasonably be expected, when considered in combination with the underlying conditional use.
b. When a minor amendment is granted, the Board of Appeals or Hearing Examiner must send a copy of the resolution or decision, as applicable, to the applicant, the Board of Appeals or Hearing Examiner, as appropriate, the Planning Board, DPS, the Department of Finance, all parties entitled to notice at the time of the original filing, and current abutting and confronting property owners. Except for an amendment for a Telecommunications Tower, the resolution or decision, as applicable, must state that any party may request a public hearing on the Board of Appeals' or Hearing Examiner's action within 15 days after the resolution or decision is issued. The request for public hearing must be in writing, and must specify the reason for the request and the nature of the objection or relief desired. If a request for a hearing is received, the deciding body must suspend its administrative amendment and conduct a public hearing to consider whether the amendment substantially changes the nature, character, or intensity of the conditional use or its effect on the immediate neighborhood. If the Board of Appeals or Hearing Examiner determines that such impacts are likely, then the amendment application must be treated as a major amendment application. A decision of the Hearing Examiner may be appealed on the basis of the Hearing Examiner's record to the Board of Appeals. Any amendment to a Telecommunications Tower is also a minor amendment.
3. Exemption from Amendment Procedure
An amendment to a special exception or a conditional use is not required for a permitted or limited use allowed in the subject property's zone if the enterprise satisfies any unique conditions of the special exception or conditional use approval and the use is located:
a. in a mobile vehicle;
b. in a manner that allows vehicles to access the site from abutting rights-of-way;
c. in a manner that allows all uses on the site to satisfy the minimum parking requirements; and
d. on an area not required for open space or green area.
L. Compliance and Enforcement
1. DPS and the Board of Appeals must establish a regular inspection program for conditional uses. DPS must perform the inspections according to the established schedule, and must perform additional inspections if DPS, the Board of Appeals, or the Hearing Examiner receive a complaint alleging failure to satisfy the terms or conditions of a conditional use. If a complaint is filed, DPS must inspect the premises of the conditional use within 21 days after receiving the complaint, or more promptly if requested by the Board of Appeals or the Hearing Examiner, to determine the validity of the complaint.
2. If the inspection finds a violation of the terms or conditions of the conditional use, DPS must direct the conditional use holder to correct the violation. When the time to correct the violation expires, DPS must reinspect the premises. If the violation has not been corrected, DPS must file a report with the Board of Appeals or the Hearing Examiner describing the nature of the violation, the corrective action ordered by DPS, and the time allowed to correct the violation.
3. If DPS finds that no violation exists, it must report to the Hearing Examiner or Board of Appeals that the conditional use satisfies the terms and conditions of the conditional use approval.
4. If the Board of Appeals or the Hearing Examiner receives a written notice from DPS that the conditional use holder is violating the terms or conditions of a conditional use or the terms, conditions, or restrictions attached to the grant of any permit issued under the conditional use approval, the Board of Appeals or the Hearing Examiner must order the conditional use holder and the property owner to appear before the Board of Appeals or the Hearing Examiner to show cause why the conditional use should not be revoked.
5. The notice of a show cause hearing must be issued to the conditional use holder and the property owner by certified mail, return receipt requested. Notification must also be sent to DPS, and to any party who submitted a written complaint concerning the conditional use, and must:
a. include the nature of the alleged violations;
b. state that the hearing is limited to a consideration and a determination of the validity of the allegations; and
c. advise the conditional use holder and the property owner that failure to attend and participate in the hearing may result in revocation of the conditional use.
6. The Board of Appeals or the Hearing Examiner must conduct a show cause hearing limited to consideration of the issues identified in the notice of hearing. The Board of Appeals or the Hearing Examiner may reaffirm or revoke the conditional use or amend, add to, delete or modify the existing terms or conditions. The Board of Appeals or the Hearing Examiner must make a determination on the issues presented within 15 days after the close of record. The decision of the Board of Appeals or the Hearing Examiner must be by the adoption of a written resolution and copies of the resolution must be transmitted to the conditional use holder, the property owner, DPS, the Planning Director, and other relevant parties.
7. If DPS finds that a conditional use has been abandoned, DPS must forward written notice of its findings to the last recorded holder of the conditional use and to the property owner. The conditional use holder and property owner, within 60 days after the date of sending notice, must submit a written statement confirming the abandonment or challenging it and requesting that the use be continued.
a. If the conditional use holder and the property owner acknowledge that the conditional use has been abandoned, DPS must notify the Board of Appeals or the Hearing Examiner, as appropriate. The Board of Appeals or Hearing Examiner must adopt and issue a written resolution finding the conditional use to have been abandoned and ordering it revoked.
b. If either the conditional use holder or the property owner challenges the abandonment and requests that the conditional use be continued, DPS must notify the Board of Appeals or the Hearing Examiner, as appropriate, and the Board of Appeals or Hearing Examiner must convene a public show cause hearing to determine whether or not the conditional use was abandoned and whether it should be revoked.
c. If neither the conditional use holder nor the property owner responds, DPS must notify the Board of Appeals or Hearing Examiner of its findings, and the Board of Appeals or Hearing Examiner, as appropriate must issue to the conditional use holder and the property owner an order to appear before them to show cause why the conditional use should not be revoked.
d. If neither the conditional use holder nor the property owner appears before the Board of Appeals or Hearing Examiner, as appropriate, to show cause why the conditional use should not be revoked, the deciding body must revoke the conditional use approval.
8. The Planning Director must note the revocation of any conditional use in the official zoning maps.
(Legislative History: Ord. No. 18-08, § 26; Ord. No. 18-11, § 1; Ord. No. 18-25, §1; Ord. No. 20-09, § 10.)