Guide to the Variance Process

Before submitting a variance, a pre-file is required if the proposed project is a new single-family dwelling, an accessory dwelling unit, disturbs 5,000 feet or greater of land, is related to the Critical Area Program (e.g. Buffers), or is disturbing environmentally sensitive areas (tidal wetlands, bogs, streams, steep slopes, or their associated buffers). Allow approximately three weeks to process a pre-file, if one is required, prior to the variance application submission. A variance case number is assigned to the application when it is submitted through the Land Use Navigator (LUN) system. The application is reviewed by a planner for acceptance and is then transmitted to the Office of Administrative Hearings for a hearing date to be assigned. The application is also sent to various local, state, and federal government agencies for review and comments. Applicants for a variance should generally allow for a minimum of 8 weeks from the date the application is received to the date of the hearing. During this time agencies review the application and provide written comments to the Zoning Division. A planner from the Zoning Administration will review your application along with comment letters from outside agencies prior to formulating a written Findings and Recommendation Report.

IT IS THE RESPONSIBILITY OF THE APPLICANT TO POST THE REQUIRED SIGN(S) ON THE SUBJECT PROPERTY A MINIMUM OF FOURTEEN DAYS PRIOR TO THE DATE OF THE HEARING. The sign(s) are provided by the Research & GIS Section (4th Floor) of the Office of Planning and Zoning. 410-222-7463.

At the hearing, the applicant must present evidence or give testimony to the Hearing Officer that the sign(s) were posted in accordance with County requirements.

The Office of Administrative Hearings will mail a written notice of the date and time of the hearing to all property owners within 300 feet of the property which is the subject of the variance.

An application that is withdrawn after the hearing is advertised shall be considered as having been denied on the date of the withdrawal.

The same property may not be considered for substantially the same application or for a less restrictive use until eighteen months after the date of denial by the Administrative Hearing Officer, the Board of Appeals, or a court, whichever is latest.

After a hearing has been scheduled, the hearing may not be postponed unless a written motion is filed that demonstrates compelling circumstances for a postponement. If the Administrative Hearing Officer grants a postponement, the sign provisions of § 18-16-203 shall be complied with anew, and the Administrative Hearing Officer shall require the person who requested the postponement to pay all costs caused by the postponement. This shall include, but not be limited to all re-advertising costs and the Temporary Hearing Officers fee, if any. Note that a case will not be rescheduled until said fees have been received by the Office of Administrative Hearings.

The Variance Hearing is a public hearing presided over by the Administrative Hearing Officer and attended by a planner from the Zoning Administration, the applicant, their representative(s), and any other persons interested in the case (e.g. neighbors, community associations, etc.). Hearings are currently being conducted over the internet via Zoom.

The Hearing Officer will identify the parties involved in the hearing, will then inquire as to the posting of the sign(s) on the property, then swear in any persons at the hearing who intend to testify on the case. The planner from the Zoning Administration presents their Findings and Recommendation and can be asked questions by the Administrative Hearing Officer and the applicant. The applicant then presents any testimony or evidence as to why the variance should be granted and may call any witnesses on their behalf. The applicant and any of their witnesses may be asked questions by the Administrative Hearing Officer and the planner from the Zoning Administration. Any persons with opposing or supporting views are then allowed to testify, and can ask questions of any parties at the hearing. The planner and the applicant may ask questions of those witnesses.

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:

1. The association by resolution gives authority to the individual and,
2. 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 the Administrative Hearing Officer prior to the hearing, written notice of appearance, to include the attorney’s name, office address, telephone number, and the name(s) and address(es) of the person(s) represented.

The Hearing Officer may ask and answer questions to/from any individual, throughout the hearing. All testimony is recorded.

You can assist the Hearing Officer by providing essential information about your request such as dimensions, distances, professional drawings or surveys, and photographs of the subject property wherever possible.

A Variance may be granted by the Administrative Hearing Officer only after determining:

1. Because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape, or exceptional topographical conditions peculiar to and inherent in the particular lot, there is no reasonable possibility of developing the lot in strict conformance with this article; or
2. Because of exceptional circumstances other than financial considerations, the granting of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to develop the lot.

A Variance may not be granted unless it is found:

1. That the variance is the minimum necessary to afford relief;
2. That the granting of the variance will not
   1.  Alter the essential character of the neighborhood or district in which the lot is located;
   2. Substantially impair the appropriate use or development of adjacent property;
   3. Reduce forest cover in the limited development and resource conservation areas of the critical area;
   4. Be contrary to acceptable clearing and replanting practices required for development in the critical area or a bog protection area; nor
   5. Be detrimental to the public welfare.

For a property located in the critical area or a bog protection area, a variance to the requirements of the county Critical Area program or bog protection area may be granted if the Administrative Hearing Officer makes the following affirmative findings:

1. Because of certain unique physical conditions, such as irregularity, narrowness or shallowness of lot size and shape or exceptional topographical conditions peculiar to and inherent in the particular lot, strict implementation of the County’s critical area or bog protection program would result in an unwarranted hardship, as that term is defined in the Natural Resources Article, §8-1808, of the State Code, to the applicant;

2.  (i) A literal interpretation of COMAR, Title 27, Criteria of Local Critical Area Program Development or the County’s critical area program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas as permitted in accordance with the provisions of the critical area program within the critical area of the County; or

   (ii) The County’s bog protection program will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the bog protection area of the County;

3. The granting of a variance will not confer on an applicant any special privilege that would be denied by COMAR, 27.01, the County’s critical area program to other lands or structures within the County critical area, or the County’s bog protection program to other lands or structures within a bog protection area;
4. The variance request is not based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development before an application for a variance was filed, and does not arise from any condition relating to land or building use on any neighboring property;
5. The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the County’s critical area or a bog protection area and will be in harmony with the general spirit and intent of the County’s critical area program or bog protection program;
6. The applicant for a variance to allow development in the 100-foot upland buffer has maximized the distance between the bog and each structure, taking into account natural features and the replacement of utilities, and has met the requirements of §17-9-208, of the County Code
7. The applicant, by competent and substantial evidence, has overcome the presumption contained in the Natural Resources Article, §8-1808, of the State Code; and
8. The applicant has evaluated and implemented site planning alternatives in accordance with §18-16-201(c).

The Administrative Hearing Officer has thirty days from the close of the hearing to render a decision in the case. Persons attending the hearing, who have signed in, will receive a copy of the Hearing Officer’s decision. Persons interested in obtaining a copy of the written decision should contact the Office of Administrative Hearings at 410-222-1266. The decision will also be available from the Administrative Hearings Decision Archive.

A variance that is not extended or tolled expires by operation of law unless the applicant within eighteen months of the granting of the variance (1) obtains a building permit or (2) files an application for subdivision. Thereafter, the variance 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 who was a party to the proceedings may appeal the decision to the County Board of Appeals within thirty (30) days of the date of the Administrative Hearing Officer’s decision. The Board of Appeals can be reached at 410-222-1119.