§ 7-414. Variances and conditional uses.

(a) In general.

In addition to the general requirements of this Code governing variances and conditional uses, a variance or conditional use in the Critical Area is subject to the standards and procedures of:

(1) State Natural Resources Article Title 8, Subtitle 18;

(2) COMAR Title 27;

(3) the Critical Area Management Program; and

(4) this section.

(b) Existing violations.

No conditional use or variance may be granted to authorize a then-existing violation except as authorized in State Natural Resources Article § 8-1808 {"Critical Area Protection Program: Program development..."}.

(c) Considerations, presumptions, and burden of proof.

(1) In considering an application for a conditional use or variance, the Planning Department and the Board of Municipal and Zoning Appeals must presume that the specific development activity for which a conditional use or variance is required does not conform with the general purpose and intent of State Natural Resources Article, Title 8, Subtitle 18, the general purpose and intent of COMAR Title 27, or the requirements of the Critical Area Management Program.

(2) If the request for a conditional use or variance is based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application is filed, the Board of Municipal and Zoning Appeals may consider that fact.

(3) An applicant has the burden of proof and the burden of persuasion to overcome the presumption of nonconformance established by paragraph (1) of this subsection.

(4) The Board of Municipal and Zoning Appeals must make written findings as to whether, based on competent and substantial evidence, the applicant has overcome this presumption.

(5) With due regard for the person's experience, technical competence, and specialized knowledge, the findings may be based on evidence introduced and testimony presented by either:

(i) the applicant.

(ii) the City or any other government agency; and

(iii) any other person considered appropriate by the Board of Municipal and Zoning Appeals.

(d) Applications.

The Board of Municipal and Zoning Appeals must furnish copies of all applications for a conditional use or variance to the Planning Department and the Chesapeake Bay Critical Area Commission.

(e) Findings – Planning Department.

The Planning Department must find both that:

(1) special conditions or circumstances exist that are peculiar to the land or structure for which the application is made; and

(2) a literal enforcement of the requirements of the Critical Area Management Program would result in the applicant's being denied reasonable and significant use of the entire parcel or lot for which the conditional use or variance is requested.

(f) Findings – Board of Municipal and Zoning Appeals.

In addition, the Board of Municipal and Zoning Appeals must find that all of the following standards are met:

(1) a literal interpretation of the Critical Area Management Program, the State Chesapeake Bay Critical Area law, or related regulations will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Critical Area;

(2) the granting of a conditional use or variance will not confer on the applicant any special privilege that would be denied under the Critical Area Management Program, the Chesapeake Bay Critical Area law, or related regulations to other lands or structures within the Critical Area;

(3) the granting of a conditional use or variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitats within either the Critical Area or any other protected part of the State Chesapeake Bay Critical Area within a neighboring jurisdiction;

(4) the granting of a conditional use or variance will be in harmony with the general spirit and intent of the Critical Area Management Program, the State Chesapeake Bay Critical Area law, and related regulations; and

(5) the application for the conditional use or variance either:

(i) is not based on conditions or circumstances that are the result of the applicant's own actions; or

(ii) does not arise from any condition that relates to a land or building use, whether nonconforming or otherwise allowed, on any neighboring property.