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Merit Systems Protection Board

Variance


If you plan an addition or renovation to your property - such as a garage, an extra bedroom, or an enlarged kitchen - but cannot do so within the area in which the Zoning Ordinance will allow you to build, you must apply for a variance. The first step is to apply for a building permit from the Department of Permitting Services (DPS). When DPS reviews your plans and determines that you need a variance, you then have to visit the Board of Appeals for the necessary application forms. Although the Board will mail you the forms, we suggest that you come in person so that our staff can explain the filing procedure.




The Board needs four copies of all the necessary documents. For a small fee, you may make copies on the copying machine in the Board's office. With the completed application forms you will need to give us the following pieces of information:

  • The building permit denial from DPS.
  • An accurate site plan showing the boundaries, dimensions, area, topography, and frontage of the property and all the existing or proposed structures and the distances of these structures from the property line. (Please note: The site plan must illustrate the requested variance(s) and all applicable setbacks for the subject property.
  • Plans or architectural drawings, photographs, elevations, and other detailed information showing fully the exterior appearance of the existing structure and the proposed construction.
  • A certified copy of the official zoning vicinity map showing the surrounding property within a 1,000-foot radius (this is available at the Information Desk of the Maryland National Capital Park and Planning Commission, 8787 Georgia Avenue, Silver Spring, Maryland.)
  • The names and addresses, lot and block of adjoining and confronting property owners (This is available at Tax Records, One Metro Building, Third Floor, 51 Monroe Street, Rockville, Maryland.)
  • A summary of how your application meets the standards for a variance (See Reasons for Granting a Variance.)
  • The names of expert witnesses, if any, who will testify at the hearing.
  • A check, payable to Montgomery County, for the filing fee and the fee for the sign that you must post on your property. (The staff will give you the fee schedule for specific variances.)

When you have filled out the entire form, attached all the necessary information, and paid the two fees, you have officially filed for a variance. The staff will schedule your hearing date approximately 30 days after you have filed. Staff cannot accept an incomplete application.



Having scheduled your hearing date, the staff will give you a sign and directions for posting it. You must post the sign within three days. If you have not already spoken to your neighbors about your plans, it is a good idea to do so before posting the sign. You must keep the sign up until you receive the Board's written opinion. If there was opposition to your variance, you must keep the sign posted for 30 days after you receive the written opinion.

If you return the sign within 21 days of the date on which you were permitted to remove it, you will receive a partial refund of your sign fee



Using the list you submitted, the Board will send notices of the hearing to the confronting and adjoining property owners. The Board will also notify the appropriate civic association and other governmental agencies.



When your application has been accepted officially, the staff assigns a number to your case and then places all material pertaining to the case in a file. The case file is open to the public, and you should look at the file before the day of the hearing to see if in addition to your own material, other people have submitted letters of support or opposition. Anyone interested may copy material from the file on the Board's copying machine, for a small fee.



The Board of Appeals may grant petitions for variances as authorized in section 59-A-4.11(b) of the Zoning Ordinance upon proof by a preponderance of the evidence that:

By reason of exceptional narrowness, shallowness, shape, topographical conditions, or other extraordinary situations or conditions peculiar to a specific parcel of property, the strict application of these regulations would result in peculiar or unusual practical difficulties to, or exceptional or undue hardship upon, the owner of such property;

  • Such variance is the minimum reasonably necessary to overcome the aforesaid exceptional conditions;
  • Such variance can be granted without substantial impairment to the intent, purpose and integrity of the general plan or any duly adopted and approved area master plan affecting the subject property; and
  • Such variance will not be detrimental to the use and enjoyment of adjoining or neighboring properties. These provisions, however, shall not permit the Board to grant any variance to any setback or yard requirements for property zoned for commercial or industrial purposes when such property abuts or immediately adjoins any property zoned for residential purposes unless such residential property is proposed for commercial or industrial use on an adopted master plan. These provisions shall not be construed to permit the Board, under the guise of a variance, to authorize a use of land not otherwise permitted.
  • Any allegation of error or any appeal from any action, inaction, order or decisions pertaining to calculation of building height or approved floor area ratio (FAR) standard shall be considered according to the provisions governing appeals for a variance (section 59-G-3.1), rather than as an administrative appeal (section 59-A-4.11(c)).

An appellant seeking a variance will be subject to the requirements for filing and notice in section 59-A-4.2 and section 59-A-4.46. The Board may request technical advice from the Planning Board or technical staff. Upon request, the Planning Board or its technical staff must respond by submitting a written report making a recommendation. If there is an issue of public interest, the Planning Board or its technical staff may, on its own initiative, submit a written report making a recommendation on a variance under this section. Any response will be submitted at least 5 working days before the date set for public hearing, with a copy sent to the parties of record.


At the public hearing the chairperson will ask you to explain why you are requesting the variance and to prove that you meet the conditions for granting it. The chairperson will also ask if anyone who is present opposes the variance. Once you have given your explanation, Board members and anyone in opposition may ask you questions. Following such questions, those opposing the request may explain the reasons for their opposition (see section on Opposition). The Board members and you can ask questions of the opposition. After all those attending the hearing and wishing to speak have made their cases, the chairperson usually will close the record.

In most cases, the Board will make its decision as soon as the chairperson closes the record. If for some reason the Board does not make its decision at the hearing, it will decide the case at a worksession. The chairperson will usually announce the proposed date of the worksession, but you should telephone the office to verify the date.

A written opinion is mailed to you and to everyone who received notice of the hearing. The Board's decision becomes effective on the date indicated on the written opinion. If the Board grants your requested variance, and no one opposed your variance, you can apply for a building permit as soon as you receive the written opinion.



The Board holds hearings every Wednesday at 9:30 a.m. 

 Worksessions are held every other Wednesday. Items are accepted for the Agenda on a first come, first serve basis and Agendas are limited to a maximum number of items. The deadline for submissions is noon on the Tuesday prior to a hearing or Worksession. Late submissions will be considered on a case by case, space available basis and should consist of 10 copies of all materials requested for inclusion.

PLEASE NOTE:

(a) In all special exception and special exception modification cases applicants are required to submit duplicate copies of all final plans. Both copies will be entered into the case record, with one copy designated for Department of Permitting Services' use.

(b) Please do not file applications on a Wednesday, as public hearings are being held.


 

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