§ 33-6-116. SPECIAL VARIANCES.

(a)

In general. An applicant may apply for a special variance if the implementation of this title would result in unwarranted hardship to the applicant because of the special features of the site that is the subject of the request or as a result of other circumstances.

(b)

Application.

(1)

An applicant shall submit a petition for special variances under this section to the Department of Permits, Approvals and Inspections on forms and in accordance with regulations adopted by the Department of Permits, Approvals and Inspections.

(2)

The Department of Environmental Protection and Sustainability shall determine the information required to accompany the petition necessary for its review of the petition.

(3)

Petitions for special variances shall, to the extent possible, be filed with the development plan, as defined in § 32-4-101 of the Code.

(4)

Upon acceptance of the petition for special variance, the Director of Permits, Approvals and Inspections shall forward the petition to the Director of Environmental Protection and Sustainability.

(5)

After receiving the petition, the Director of Environmental Protection and Sustainability or the Director's designee shall review the information presented and grant or deny the petition, as authorized in this section.

(c)

Findings.

(1)

In order to grant a special variance, the Director of Environmental Protection and Sustainability or the Director's designee must:

(i)

Find that compliance with the requirements in this title would cause unwarranted hardship; and

(ii)

Make other findings as required in this section.

(2)

The decision shall be presented in writing.

(d)

Unwarranted hardship. For a finding of unwarranted hardship, the applicant must show:

(1)

That the land in question cannot yield a reasonable return if the requirement from which the special variance is requested is imposed and will deprive the applicant of all beneficial use of the applicant's property;

(2)

That the plight of the applicant is due to unique circumstances and not the general conditions in the neighborhood; or

(3)

That the special variance requested will not alter the essential character of the neighborhood.

(e)

Additional findings required. In addition to a finding of unwarranted hardship, the Director must find:

(1)

That granting the special variance will not adversely affect water quality;

(2)

That the special variance request does not arise from a condition or circumstance which is the result of actions taken by the applicant; and

(3)

That the special variance, as granted, would be consistent with the spirit and intent of this title.

(f)

Transmittal of decision. The decision of the Director of Environmental Protection and Sustainability shall be forwarded to the Department of Permits, Approvals and Inspections at least 5 working days before the hearing officer's hearing, for inclusion in the Hearing Officer's file, and to the applicant.

(g)

Hearing.

(1)

At the hearing, the Hearing Officer shall take judicial notice of the Director's decision.

(2)

(i)

If the Director's decision is to grant the special variance, it shall be considered a recommendation to the Hearing Officer, who may either grant or deny the special variance requested.

(ii)

If the Hearing Officer reverses the Director's recommendation to grant the variance, the Hearing Officer's decision shall conform with subsections (c), (d), and (e) of this section.

(3)

If the Director's decision is to deny the special variance, the Hearing Officer may not reverse the decision, and the Director's decision shall be fully incorporated into the Hearing Officer's decision and order.

(h)

Unforeseen circumstances; changes.

(1)

If the petition for special variance cannot be filed with the development plan due to unforeseen circumstances or if material changes are proposed to any special variance granted, the Director of Permits, Approvals and Inspections shall forward the petition or request for material change to the Director of Environmental Protection and Sustainability for the Director's review and comment in accordance with the requirements of this section.

(2)

The Director of Permits, Approvals and Inspections shall then schedule a public hearing before the Hearing Officer in accordance with § 32-4-225(c) of the Code.

(i)

Projects that do not require development approval. If a request for a special variance involves a project that does not require review in accordance with Article 32, Title 4, Subtitle 2 of the Code, the request shall be submitted directly to the Department of Environmental Protection and Sustainability for review and approval subject to subsections (a), (b)(2), (b)(5), (c), and (d) of this section.

(j)

Board of Appeals. The Board of Appeals may grant, deny, or modify, as defined in Article 32. Title 4, Subtitle 2, Part VIII of the Code, a decision of the Director or of the Hearing Officer.

(1988 Code, § 14-415) (Bill No. 224, 1992, § 1, 1-19-1993; Bill No. 94-02, § 2, 7-1-2004; Bill No. 75-03, § 45, 7-1-2004; Bill No. 122-10, §§ 13, 30, 1-16-2011)