This brochure is a summary of how to file applications and participate in the processes for variances, administrative appeals, modifications of existing special exceptions, and appeal and oral argument regarding conditional use decisions rendered by the Hearing Examiner. Chapter 59-7 of the current (2014) Zoning Ordinance, Chapter 59-G of the previous (2004) Zoning Ordinance, the Rules of Procedure of the Board of Appeals, and Chapters 2 and 2A of the Montgomery County Code contain the legal requirements for these various undertakings. The staff of the Board of Appeals is available to answer any questions you may have.
This brochure will tell you how to apply for a variance, modification of an existing special exception, or appeal and oral argument on a conditional use decision - or how to oppose those applications – as well as how to file an administrative appeal. It will also tell you what to expect at the hearing and what happens once the Board has made a decision about a request. We want our process to be fair and easy to understand for all participants.
The Board of Appeals is a five member quasi-judicial body. The County Council appoints the members of the Board of Appeals, who serve staggered four-year terms and may be reappointed. Board members cannot serve more than two full terms (but can serve more than eight years if initially appointed to fill a mid-term vacancy), and not more than three of the five members can be from the same political party.
The Board holds public hearings on Wednesdays, and worksessions usually every other Wednesday. All meetings are open to the public except when legal advice or personnel matters are discussed. We encourage the public to participate at hearings, but the worksessions are for members to discuss and decide cases that already have had public hearings. Therefore, while worksessions are open to the public, public participation is generally limited at worksessions.
The Board members standing are, from left to right: Bruce A. Goldensohn and Edwin S. Rosado.
The Board members seated are, from left to right: Stanley B. Boyd, Carolyn J. Shawaker, Chair, and John H. Pentecost, Vice Chair.
Major modifications of existing special exceptions are referred to the Montgomery County Planning Department for technical evaluation. The Board of Appeals may also refer variances to the Planning staff, but usually does not. In the case of variances, the Planning staff comments only if they perceive a problem or if the Board specifically requests comments. For modification applications, the Planning staff presents its technical report in a hearing before the Planning Board. This hearing usually is held two or three weeks before the Hearing Examiner is scheduled to hear the case. The Planning Board hearings are open and anyone may testify. As an applicant, you should attend the Planning Board hearing; other interested parties certainly may do so. Call (301) 495-4600 for the date of the hearing.
The Planning Board can add conditions or change the staff's recommended conditions, after which the technical staff report is forwarded to the Hearing Examiner and becomes part of the record in the case. The recommendations from the Planning Board and its staff are advisory. However, they carry considerable weight because of the staff's technical expertise.
Applications are also sent to several departments of county government, to the State Highway Administration, and to the Board of Education. These departments and agencies may submit comments to the Board.
The County Department of Permitting Services administers and enforces the Zoning Ordinance and the Board of Appeals’ decisions.
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 can apply for a variance. Before you file, you need to consult with the Department of Permitting Services (DPS) about your project and the precise variance(s) needed. When the DPS reviews your plans and determines that you need a variance, you then can visit the Board of Appeals for the necessary application forms. Forms are available online , or the Board can mail you the forms. The Board’s staff is available Monday through Friday from 8:30 a.m. – 4:00 p.m. to help you with the filing process.
Please submit an original and two 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:
When you have filled out the entire form, attached all the necessary information, and paid the application and sign fees , you have officially filed for a variance. The staff will schedule your hearing for the first available hearing date that is at least 35 days after you have filed (to allow time for processing and notice). 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 five days of filing your application. 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.
When you return the sign, you will receive a 50% refund of the sign fee.
Using the list you submitted, the Board will send notices of the hearing to the abutting and confronting property owners . The Board will also notify the appropriate civic associations and other governmental agencies.
This notice alerts those around you to your plans. Individuals who oppose your petition for a variance may appear at the hearing without prior notice to express their personal opposition. Persons who are represented by counsel, or who represent an organization such as a homeowners’ organization or a citizens association, must inform the Board in writing of their intention to appear ten days before the hearing date. The pre-hearing submission requirements for organizations or citizens represented by counsel are specified in the Board's Rules of Procedure, which are available online and in our office. Organizations such as homeowners’ associations and citizens associations must be represented by counsel if they wish to participate in the actual hearing.
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. Similarly, any person or group opposed to your variance request is also encouraged to come look at the file prior to the hearing date. 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 59-7.3.2 of the Zoning Ordinance upon proof by a preponderance of the evidence that:
An applicant seeking a variance will be subject to the requirements for filing and notice in Section 59-7.3.2 and Section 59-7.5.C. 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. 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.
All the land uses permitted in the various zones in the county are listed in the Zoning Ordinance. By legislation, the County Council has specified which uses are permitted by right, and which are limited uses, and which are permitted as conditional uses (under the previous Zoning Ordinance, conditional uses were called special exceptions). By enacting such legislation, the County Council has determined that if certain standards are met, a conditional use is compatible with the uses permitted by right in the zone. The Zoning Ordinance has tables for each zone.
The Board of Appeals does not have jurisdiction over new applications for conditional uses; instead, the Hearing Examiner will hear and decide new applications for conditional uses.
Under Section 7.3.1.F.1.c of the Zoning Ordinance, a party of record in a Conditional Use proceeding before the Hearing Examiner may appeal the decision issued by the Hearing Examiner by filing a written request with the Board of Appeals and the Hearing Examiner to present oral argument to the Board of Appeals. The request must be filed within 10 days after issuance of the Hearing Examiner’s decision on a conditional use and must concisely identify the matters to be presented at the oral argument. Any party of record may, no later than five days after a request for appeal and oral argument is filed, file a written opposition or request to participate in oral argument. A request for oral argument transfers jurisdiction over the matter to the Board of Appeals while the appeal is pending.
The Board has the discretion to grant or deny oral argument, and will consider a request for oral argument and any opposition at a worksession. If oral argument is granted, the Board will hear argument at a later date, and will then approve or deny the conditional use application, or remand it to the Hearing Examiner for clarification or the taking of additional evidence. If oral argument is denied, the Board will still approve or deny the conditional use application, or remand it to the Hearing Examiner for clarification or the taking of additional evidence.
The Board will accept and decide applications for modifications of special exceptions filed or granted prior to October 30, 2014, under the standards in effect on October 29, 2014, unless the applicant elects to proceed under the new Zoning Ordinance (2014). The Board typically takes this action at a worksession.
Section 59-G-1.3(c) (Montgomery County Code, 2004, as amended) sets forth the standard that will be used in evaluating a request for an administrative modification, unless an applicant elects to proceed under the new Zoning Ordinance (2014), and provides, with respect to modification of existing special exceptions, that:
If the proposed modification is such that the terms or conditions could be modified without substantially changing the nature, character or intensity of the use and without substantially changing the effect on traffic or on the immediate neighborhood, the Board, without convening a public hearing to consider the proposed change, may modify the term or condition.
Modification of a special exception without a public hearing is called administrative or minor modification.
If an applicant elects to proceed under the Zoning Ordinance (2014), the Board will use the standard set forth in Section 59-7.3.1.K.2.a (Montgomery County Code, 2014, as amended) to evaluate the minor amendment. A minor amendment under the Zoning Ordinance (2014) is an amendment:
[t]hat does not change the nature, character, or intensity of a 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.
If the Board of Appeals grants an administrative modification and the applicant is proceeding under the old Zoning Ordinance (2004), Section 59-G-1.3(c)(1) provides:
A copy of the Board’s resolution must be transmitted to the petitioner, the Planning Commission, the Department, the Department of Finance, all parties entitled to notice a the time of the original filing, and current adjoining and confronting property owners. The resolution must state that any party may, within 15 days after the Board’s resolution is mailed, request a public hearing on the Board’s action. The request must be in writing, and must specify the reasons for the request and the nature of the objections or relief desired. If a request for a hearing is received, the Board must suspend its decision and conduct a public hearing to consider the action taken.
If the Board of Appeals grants the administrative modification and is proceeding under the Zoning Ordinance (2014), Section 59-7.3.1.K.2.b provides that:
… 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. 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 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. …
In the event that a public hearing is requested, individuals or groups opposing the modification should consult Board Rule 4 for guidance regarding filing statements.
In accordance with Rule 12.2 of the Board of Appeals’ Rules of Procedure, the transfer of a special exception is considered a modification of the special exception. Requests for the transfer of a special exception are decided by the Board at its bi-weekly worksessions.
Transfer of special exceptions other than accessory apartments. A request to transfer a special exception (other than an accessory apartment) can only be granted if the current special exception holder requests the transfer or agrees to it in writing. Persons or entities requesting that a special exception be transferred to their name must submit a letter to the Board requesting the transfer and describing their interest in the property/use. The letter should also indicate that the person or entity requesting the transfer agrees to be bound by the terms and conditions of the special exception. In addition to this letter, requests for transfer must include:
Transfer of special exceptions for accessory apartments. A request to transfer a special exception for an accessory apartment does not require consent from the current special exception holder, but does require the submission of evidence of ownership of the special exception property, such as a deed. In addition, the transfer of an accessory apartment special exception requires the posting of a sign, which Board staff will provide, in accordance with Sections 59-G-1.3(c)(1) and 59-G-2.00(f) of the Zoning Ordinance (2004). The Board cannot act on the requested transfer until the sign has been posted for at least 10 days, and the sign must remain posted until at least 15 days after the mailing of the Board’s written resolution.
The person or entity requesting the transfer of an accessory apartment special exception must submit a letter to the Board expressing their desire to have the special exception transferred to their name and stating their ownership interest in the property. In addition, the letter should state that the person or entity requesting the transfer agrees to be bound by the terms and conditions of the special exception. In addition to this letter, requests for transfer of an accessory apartment must include:
The fees for the transfer of an accessory apartment special exception include (A) a $220.00 transfer fee; and (B) a $220.00 sign deposit and fee ($110.00 of which is refundable after the sign is returned). These fees can be submitted in a single check or in two checks, made out to Montgomery County.
NOTE: As is the case with administrative/minor amendments to a special exception, a major modification to a special exception is considered under the standards and procedures of the property’s zoning in effect on October 29, 2014, unless the applicant elects otherwise. Applicants who elect to proceed under the new Zoning Ordinance (2014) may wish to consult the Office of Zoning and Administrative Hearings website (http://www.montgomerycountymd.gov/ozah/) to review the instructions for filing a new conditional use application, and should call or visit the Board of Appeals for the specific applicability of that process to their major modification filing. Instructions for applicants who wish to file under the standards and procedures of the old Zoning Ordinance (2004) are set forth in the ensuing paragraphs, below.
Forms to apply for a major modification of a special exception are available to download on this website. It is also helpful to visit the office of the Board of Appeals to go over the application forms. The staff will advise you how to complete the application, what fees you must pay, and what documents you need to submit at the time of filing. When you submit your completed application, you will need a check, payable to Montgomery County, for the filing fee and the sign fee.
For major modifications, the Board needs one original set and seven copies of all documents. For a small fee, you may make copies on the Board's copying machine. You will need to submit the following documents and information, listed on the back of the application form:
Once you have assembled all the necessary information, bring it and the application and sign fees to the Office of the Board of Appeals for filing. You have not officially filed for the modification until the Board has all of this information. Board of Appeals staff will review your application materials. If they are complete, the Office of Zoning and Administrative Hearings will schedule a public hearing on your application. A Hearing Examiner from the Office of Zoning and Administrative Hearings will hold the public hearing, and prepare a detailed, written Report and Recommendation on the application, which is referred back to the Board of Appeals for final action. Staff cannot accept an incomplete application.
Before you file for a major modification of a special exception, it is advisable for you to speak with all adjoining and confronting property owners to explain the nature of the proposed changes and the impact they might have on the neighborhood. You may also find it helpful to contact the Montgomery County Planning Department and discuss your application with a Zoning Analyst.
Having scheduled your hearing date, the staff will give you a sign and directions for posting it. You must post the sign within five days. You must keep the sign up until you receive the Board's written opinion. If there was opposition to your request, you must keep the sign posted for 30 days after you receive the Board's written opinion.
Using the list you submitted, the Board will send notices of the hearing to the confronting and abutting property owners. The Board will also notify the appropriate civic association and other governmental agencies.
This notice lets those around you know that you are proposing a change to your use. Individuals who oppose your proposed modification may appear at the hearing without prior notice to express their personal opposition. Persons who are represented by counsel, or who represent an organization such as a homeowners’ organization or a citizens association, must inform the Board in writing of their intention to appear ten days before the hearing date. The pre-hearing submission requirements for organizations or citizens represented by counsel are specified in the Board's Rules of Procedure, which are available online and in our office. Organizations such as homeowners’ associations and citizens associations must be represented by counsel if they wish to participate in the actual hearing.
The Zoning Ordinance in effect prior to October 30, 2014 sets forth the general standards (Section 59-G-1.21 and 59-G-1.23) that all special exceptions filed or approved before October 30, 2014, must meet and the specific standards for each different use (Section 59-G-2). Further standards for some uses are located in the section on definitions (Section 59-A-2).
At the public hearing, you must explain the modification - what you plan to do, how many employees you will have, what equipment you will use, what hours you will operate, the appearance of the exterior of any buildings on the property, your proposed landscaping, lighting, and parking arrangements. You also must prove that your application meets all of the general standards as well as the specific standards for the use you are requesting.
If there are people opposing your request, they will have an opportunity to explain their position. Cross-examination is permitted and the Hearing Examiner will explain the process before the hearing begins. It is not necessary for you to be represented by an attorney. However, if the case is complicated or there is much opposition, it may help to have counsel who is experienced in special exception cases.
After all those attending the hearing and wishing to speak have presented their cases and completed their questioning, the Hearing Examiner usually will close the record. The Hearing Examiner then has 30 days in which to prepare a detailed, written Report and Recommendation on the application. This Report and Recommendation is referred back to the Board of Appeals for final action. There is a ten day opportunity for parties in the special exception hearing to request oral argument on the Report and Recommendation before the Board of Appeals. Following that ten-day period, the Board will either schedule oral argument or take final action on the application, and issue a written opinion of its decision.
The Board's decision becomes effective on the date indicated on the written opinion.
The Board of Appeals has the authority to hear appeals from decisions of several governmental agencies, as specified in the County Code (Section 2-112). For example, if you believe that a department or agency of the county government was in error either in issuing or in withholding a permit or license, and the County Council has designated the Board of Appeals to hear the appeal, you may file an administrative appeal with the Board. If an agency has denied a request for a permit or license, it will usually inform the applicant how the denial can be appealed and within what period of time.
To file an Administrative Appeal, you must submit an original and two copies of the completed form and the supporting documents, including a copy of the action you wish to appeal, as well as the filing fee . The staff will assign the case a number and schedule a hearing no sooner than 45 days after the filing date. Board of Appeals staff can help you complete the application. The staff cannot accept an incomplete application.
The Board of Appeals will hold a pre-hearing conference prior to the hearing to discuss the appeal. Twenty days before the hearing, the County Attorney, who represents the government agency whose decision is being appealed, must file a pre-hearing submission that outlines the County's case and lists the witnesses the County will call. You, the applicant, are required to file a similar statement ten days before the hearing.
The procedures for hearing administrative appeals are different from those that apply to variances and special exceptions. These are more formal hearings and are governed by Chapter 2A of the County Code. The Board of Appeals hears the entire case as if it were the governmental agency at issue, hearing the case for the first time (de novo). Board members may ask questions of any witness.
The County Attorney will represent the government agency and may call several witnesses, all of whom have been listed in the County's pre-hearing submission. As the appellant you may choose whether or not you wish to be represented by an attorney. You may present the witnesses you have listed in your pre-hearing submission. Cross-examination is permitted and the chairperson will explain that process before the hearing begins.
After both sides have presented their cases and completed their cross-examination, the chairperson usually will close 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.
The decision of the Board will either sustain the governmental agency or grant the appeal.
The decision of the Board becomes effective on the date indicated on the written opinion.
Any decision of the Board may be appealed to the Circuit Court within 30 days of the effective date of the written decision in accordance with Section 2-114 of the County Code, Section 2A-11 of the County Code, Section 59-7.3.1.G of the Zoning Ordinance, and Section 59-7.3.2.F.2 of the Zoning Ordinance, as appropriate.