A special exception is a use permitted within a zoning district, but subject to certain, specific conditions. The applicant must demonstrate compliance with the conditions during a public hearing before the County Administrative Hearing Officer.
Chesapeake Bay Critical Area Requirements
All property in Anne Arundel County within 1,000 feet of tidal waters is located in an area known as the Chesapeake Bay Critical Area. An applicant applying for a special exception within this area must submit a Critical Area report with the special exception application. This report contains written findings addressing the impact of the proposed construction on the property and the measures that will be taken to lessen or eliminate these impacts. It is important to note that the Office and Planning and Zoning will not accept an application for a special exception in the Critical Area without a complete Critical Area Report.
Time to Process Applications
Once an application for a special exception has been accepted by the Zoning Division of the Office and Planning and Zoning, a case number is assigned to the application. It is then transmitted to the following agencies for their review and comments: Health Department, Office of the Fire Marshall, Soil Conservation District, Recreation and Parks, State Highway Administration, Public Schools, Department of Natural Resources and, if applicable the Chesapeake Bay Critical Area Commission. It is also reviewed for compliance with the applicable requirements by the Development Division of the Office and Planning and Zoning.
Several weeks are allotted for the agencies to review the application and provide written comments to the Office and Planning and Zoning. The Zoning Division of the Office and Planning and Zoning will then review the application and the agencies comments in formulating its Findings and Recommendations.
Hearing dates are assigned by the Office of Administrative Hearings and are scheduled in chronological order as the applications are received by that office. Applicants for a special exception should generally allow a minimum of twelve to fourteen weeks from the date the application is accepted by the Zoning Administration Division of the Office and Planning and Zoning to the date of the hearing.
Posting of Signs
It is the responsibility of the applicant to post the required sign(s) on the property for which a special exception is being requested. The sign(s) is provided to the applicant by the Planning Services Section of the Office and Planning and Zoning. After receiving confirmation of a hearing date from the Office of Administrative Hearings, the applicant should contact the Map Information Section
at (410) 222-7463 to inquire as to when the sign will be completed and ready for pickup. It is the applicant's responsibility to pick up the sign and to make sure it is posted on the subject property a minimum of fourteen (14) days prior to the date of the hearing. Signs are to be posted no more than 10 feet from the boundary of the property where it abuts a public street or a body of water.
At the Zoning Hearing the applicant must present evidence to the Administrative Hearing Officer that the sign was posted in accordance with the above requirements.
Written Notice of Hearing
The Office of Administrative Hearings will mail a written notice of the date and time of the hearing to all property owners within 175 feet of the property that is the subject of the variance.
Withdrawal of Request by Applicant, Resubmission of Request
A withdrawal of a variance application will result in denial of the request by the Administrative Hearing Officer.
An application for a variance which has been denied by the Administrative Hearing Officer cannot be reconsidered within 18 months of the date of final action by the Administrative Hearing Office, the County Board of Appeals or a Court, which ever action is the latest.
Postponement of Hearings
After the hearing date has been set a hearing may not be postponed unless a written request specifying compelling circumstances is received in the Office of Administrative Hearings no later than ten (10) days prior to the hearing.
If a postponement is granted and the delay was not caused by the County or by an error, the applicant shall be required to pay all costs incurred by virtue of the requested postponement. This shall include, but not be limited to all re-advertising costs and the Temporary Hearing Officer fee, if any. Note: A case will not be rescheduled until said fees have been received by the Office of Administrative Hearings.
The Zoning Hearing
The Zoning Hearing is a public hearing presided over by the Administrative Hearing Officer and attended by a representative of the Office of Planning and Zoning, the applicant and any other persons interested in the case (e.g. neighbors, community associations, etc.).
The hearing is conducted in the following order: the Office and Planning and Zoning presents its findings and recommendations, the applicant presents testimony as to why the special exception should be granted, and any persons opposing or supporting the applicant's request then present their views. The applicant may call witnesses to testify at the hearing.
Any person testifying at the hearing does so under oath and may be cross-examined by the representative of the Office and Planning and Zoning, the applicant or any persons opposing or supporting the request.
Representation at the Hearing
An individual may appear on his or her own behalf. A member of a partnership may represent the partnership. A bona fide officer of a corporation, trust or association may represent the corporation, trust or association. An officer or employee of a municipal corporation, political subdivision, body or department may represent the municipal corporation, political subdivision, body or department.
A representative of a community or civic association may testify or represent the association provided:
- The association by resolution gives authority to the individual
- The resolution specifies the views of the association and the name of the representative
Forms of resolution for the above may be obtained from the Office of Administrative Hearings.
A person may be represented by an attorney at law admitted to practice before the Court of Appeals of Maryland. An attorney acting in a representative capacity shall file with Administrative Hearing Officer a written notice of appearance. The notice of appearance shall state:
- The attorney's name, office address and telephone number
- The names and addresses of the person(s) represented.
Marking of Exhibits
The applicant is encouraged to bring photographs of the subject property and the area to be affected by the proposed special exception. This gives the Administrative Hearing Officer a clearer understanding of the area to be impacted by the request.
If more than three (3) exhibits are to be introduced by the applicant, it is the responsibility of the applicant to pre-mark all exhibits in the following manner:
Exhibit Number, Title of Exhibit, Case Number, Case Name, Date of Hearing.
This information must be boxed in red or an index card attached to the exhibit. When there are more than three exhibits involved, the applicant should submit a list summarizing the exhibits.
Findings Required for Granting a Special Exception
A special exception may be granted only if, in the opinion of the Administrative Hearing Officer:
- The use will not be detrimental to the public health, safety or welfare.
- The location, nature and height of each building, wall and fence, the nature and extent of landscaping on the site and the location, size, nature, and intensity of each phase of the use and its access streets will be compatible with the appropriate and orderly development of the district in which it is located;
- Operations related to the use will be no more objectionable with regard to noise, fumes, vibration, or light to nearby properties than operations in permitted uses.
- The proposed use will not conflict with an existing or programmed public facility, public service, school, or road.
- The proposed use has the written recommendations and comments of the Health Department and the Department of Public Works.
- The applicant has presented sufficient evidence of public need for the use.
- The applicant has presented sufficient evidence that he meets and will be able to maintain adherence to the criteria for the specific use.
- The application will conform to the Critical Area criteria for sites located in the Critical Area.
- The Administrative Site Plan demonstrates the applicant's ability to comply with the requirements of the Landscape Manual.
In addition to the above requirements, an applicant for a special exception for an industrial use in an W2 or W3 Industrial District shall establish by clear and convincing evidence that the proposed use will not have a hazardous impact on health, safety and the environment and it will not have a detrimental impact on existing public facilities.
An applicant for a special exception has the burden of proof, including the burden of going forward with the evidence and the burden of persuasion, of all questions of fact.
Decision of the Hearing Officer
The Administrative Hearing Officer has thirty (30) days from the close of the hearing to render a decision in the case. Persons interested in obtaining a copy of the written decision in a special exception case may contact the Office of Administrative Hearings at (410) 222-1266. Persons who attended the hearing and have signed in will receive a copy of the Hearing Officer's decision.
Lapse of Special Exception
A special exception that is not extended or tolled expires by operation of law unless the applicant within 18 months of the granting of the special exception (1) obtains a building permit or (2) files an application for subdivision. Thereafter, the special exception shall not expire so long as (1) construction proceeds in accordance with the permit or (2) a record plat is recorded among the land records pursuant to the application for subdivision, the applicant obtains a building permit within one year after recordation of the plat, and construction proceeds in accordance with the permit.
Any person aggrieved by a decision of the Administrative Hearing Officer may appeal the decision to the County Board of Appeals. An appeal must be filed in writing with the Board of appeals within thirty (30) days of the date of the Administrative Hearing Officer's decision. Persons wishing to file appeals should contact the Board of Appeals at (410) 222-1119.
Appeals from a decision of the County Board of Appeals are made to the Circuit Court of Anne Arundel County.
For further information regarding this process, or if you need an application package, please telephone (410) 222-7437.