CHAPTER 10, ARTICLE V:
PROCESSES AND ADMINISTRATION

Note to Users: Disclaimer: The online “unofficial” version of the 1999 Montgomery County Zoning Ordinance is being provided as a public service and includes materials (charts, technical data sheets, additional definitions, and diagrams) not found in the printed version of the ordinance. In addition, differences in order, punctuation, and numbering between the printed version and the online version may exist. For these reasons, the printed (hardcopy) version of the 1999 Montgomery County Zoning Ordinance, available from the Montgomery County Department of Planning and Inspections, is the controlling legal authority. Please be advised that the information contained in the online version of the 1999 Montgomery County Zoning Ordinance is subject to constant change and that Montgomery County, its agents, consultants, contractors, or employees collectively referred to as "the County" do not guarantee that the information presented is accurate or complete. Additional information provided in the online version, either through links or editorial addendum (all red text), are meant only as additional educational and public information resources and have no legal authority (ed.).

Zoning Amendment Chart

Text color indicates proposed changes in the ordinance

§10-51 BOARD OF ZONING APPEALS

10-51(1) Purpose

10-51(2) Authority and Establishment

10-51(3) Membership

10-51(4) Officers

10-51(5) Meetings and Hearings

10-51(6) Powers and Duties

10-51(7) Records

10-51(8) Periodic Report

10-51(9) Limitations

10-51(10) Decisions Subject to Judicial Review

§10-52 ADMINISTRATION, ENFORCEMENT AND PUBLIC HEARINGS

10-52(1) Administration

10-52(2) Enforcement and Penalties

10-52(3) Public Hearings

§10-53 REQUIRED DEVELOPMENT APPROVALS

10-53(1) Zoning Permits

10-53(2) Occupancy Permits

10-53(3) Site Plan Review

10-53(4) Additional County, Other Approvals

10-53(5) Subdivision Approval

10-53(6) Commission Approval

§10-54 SPECIAL DEVELOPMENT APPROVALS

10-54(1) Zoning Amendment

10-54(2) Rezoning to Planned Unit Development Districts

10-54(3) Special Use Permit

§10-55 PROCEDURES BEFORE THE BOARD OF ZONING APPEALS

10-55(1) Variances

10-55(2) Appeals

ARTICLE V. PROCESSES AND ADMINISTRATION

§10-51 BOARD OF ZONING APPEALS

(1) Purpose

The Board of Zoning Appeals is established to perform those duties as set forth in §15.2-2309 of the Code of Virginia.

(2) Authority and Establishment

The Board of Zoning Appeals heretofore established shall continue as the Board of Zoning Appeals for the purpose of this Ordinance. Such body shall be known by the abbreviation "BZA".

(3) Membership

(a) The BZA shall consist of five (5) residents of the County, appointed by the Circuit Court of Montgomery County, Virginia.

(b) The term of office of the membership shall be for five (5) years, with the term of one (1) member expiring each year.

(c) The Secretary of the BZA shall notify the court at least thirty (30) days in advance of the expiration of any term of office and shall also notify the court promptly of any vacancy. Appointments to fill such vacancies shall be only for the unexpired portion of the term. Members may be reappointed to succeed themselves.

(d) A member whose term expires shall continue to serve until his successor is appointed and qualifies.

(e) Members of the BZA shall hold no other public office in the County, except that one (1) member may be a member of the Planning Commission.

(f)A ny BZA member may be removed for malfeasance, misfeasance or nonfeasance in office, or for other just cause by the court which appointed the member, after a hearing held on at least fifteen (15) days notice to the member sought to be removed.

(g) Any member of the BZA shall be disqualified to act upon a matter before the BZA with respect to property, pursuant to §2.1-639.(11) of the Code of Virginia.

(4) Officers

(a) The BZA shall elect, from its own membership, a Chair and a Vice Chair who shall each serve an annual term and who may succeed themselves. The Vice Chair shall act as chair in the absence of the chair.

(b) The Zoning Administrator shall serve as secretary to the BZA, prepare minutes of meetings, keep all records and conduct official correspondence. A court stenographer may be employed to record such proceedings as the Board of Zoning Appeals may direct. In the absence of the Zoning Administrator at any meeting, the BZA shall appoint some other person to prepare the minutes thereof.

(5) Meetings and Hearings

(a) Meetings or hearings of the BZA shall be held at the call of the chair, or acting chair, or at the request of any two (2) members, provided that notice thereof has been mailed or delivered to each member of the BZA at least seven (7) days before the time set, or that a waiver or notice is obtained from each member.

(b) For the conduct of a hearing, the taking of any action, or the transaction of any official business, a quorum shall be necessary. No less than a majority of all members of the BZA shall constitute a quorum.

(c) The Zoning Administrator may not vote on matters before the BZA.

(d) The presiding chair may administer oaths, for the benefit of the BZA, and compel the attendance of witnesses.

(e) Every person before the rostrum shall abide by the order and direction of the chair or acting chair. Discourteous or disorderly or contemptuous conduct shall be regarded as a breach of the privileges extended by the BZA and shall be dealt with as the chair deems proper.

(f) All hearings of the BZA shall be open to the public.

(6) Powers and Duties

The BZA shall have the following powers and duties:

(a) To hear and decide appeals as provided in §10-55(2) (Appeals) of this Ordinance.

(b) To authorize upon application in specific cases variances from the terms of this Ordinance as provided in §10-55(1) (Variances) of this Ordinance.

(c) To hear and decide appeals from decisions of the Zoning Administrator regarding interpretation of the official Zoning Map where there is uncertainty as to the location of a zoning district boundary. After notice to the owners of the property affected by any such interpretation, and after a public hearing thereon, the BZA shall interpret the map in such away as to carry out the purpose and intent of this Ordinance for the particular district in question and shall be guided by the provisions of §10-4 of this Ordinance. The BZA shall not have the power, however, to rezone property or to change the location of zoning district boundaries as established by this Ordinance.

(d) To hear and decide all other matters referred to and upon which it is required to pass by this Ordinance.

(e) To make, alter and rescind rules and forms for its procedures, consistent with the ordinances of the County and the general laws of the State.

(f) To prescribe procedures for the conduct of public hearings that it is required to hold.

(7) Records

The BZA shall cause written records and minutes to be kept of all its proceedings, showing evidence presented, findings of fact by the BZA, and the vote of each member upon each question, or if absent or failing to vote, such fact. All such records shall be filed in the office of the Zoning Administrator.

(8) Periodic Report

Periodic Report. The BZA shall report to the Board of Supervisors periodically, at intervals of not greater than twelve (12) months, summarizing all appeals and applications made to it since its last previous report and summarizing its decisions on such appeals and applications. At the same time that each such report is filed with the Board, copies thereof shall also be filed with the Zoning Administrator, the Planning Commission, the County Attorney, and the Planning Director.

(9) Limitations

Limitations. All provisions of this Ordinance relating to the BZA shall be strictly construed. The BZA, as a body of limited jurisdiction, shall act in full conformity with all provisions and definitions in this Ordinance and in strict compliance with all limitations contained therein.

(10) Decisions Subject to Judicial Review

All decisions and findings of the BZA shall be final decisions, and shall, in all decisions and findings of the instances, be subject to judicial review in the following manner:

(a) Any person or persons jointly or severally aggrieved by any decision of the Board of Zoning Appeals, or any taxpayer or any officer, department, board or bureau of the County, may present to the Circuit Court of Montgomery County a petition specifying the grounds on which aggrieved within thirty (30) days after the filing of the decision in the office of the BZA.

(b) Upon the presentation of such petition, the court shall allow a Writ of Certiorari to review the decision of the BZA and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten (10) days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the BZA and on due cause shown, grant a restraining order.

(c) The BZA shall not be required to return the original papers acted upon by it but it shall be sufficient to return certified or sworn copies thereof or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

(d) If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a commissioner to take such evidence as it may direct and report the same to the court with the commissioner’s findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which a determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

(e) Costs shall not be allowed against the BZA, unless it shall appear to the court that the BZA acted in bad faith or with malice in making the decision appealed from. In the event the decision of the BZA is affirmed and the court finds that the appeal was frivolous, the court may order the person or persons who requested the issuance of the writ of certiorari to pay the costs incurred in making a return of the record pursuant to the Writ of Certiorari.

§10-52 ADMINISTRATION, ENFORCEMENT AND PUBLIC HEARINGS

(1) Administration

(a) Zoning Administrator. It shall be the responsibility of the Zoning Administrator to administer, interpret and enforce the provisions of this Ordinance. The Zoning Administrator shall be guided in all of his actions pursuant to this Ordinance by the terms, purposes, intent and spirit of this Ordinance. The Zoning Administrator may be assisted in the enforcement of this Ordinance by the Health Officer, Sheriff and all other officials of Montgomery County, Virginia, pursuant to their respective fields. Specifically, the duties and powers shall include:

1. To receive and/or review:

a. Applications for variances.

b. Notices of appeal to the BZA.

c. Applications for certificates of occupancy.

d. Applications for zoning permits.

e. Applications for commission permits.

f. All other applications, certifications, or materials required by this Ordinance to be submitted to the Zoning Administrator.

2. To issue zoning permits where the requirements of this Ordinance have been met.

3. To issue interpretations of this Ordinance upon proper application. Such interpretations shall be binding as to the applicant and as to the specific facts presented in the application for interpretation after the completion of the thirty (30) day appeal period. In administering this Ordinance and rendering determinations as to the uses permitted or allowed by Special Use Permit in the various zoning districts, the Zoning Administrator shall have the power and authority to render decisions as to whether a specific proposed use, although not listed as permitted or allowed by Special Use Permit, is so substantially similar in substance and effect to a permitted use or a use allowed by Special Use Permit, that it should be allowed as if expressly permitted or allowed by Special Use Permit. Such interpretations shall include notification of appeal procedures and timelines.

4. To conduct inspections of buildings, structures and uses of land to determine compliance with the provisions of this Ordinance.

5. To maintain accurate records of proffered conditions as required by §10-54(1)(i) of this Ordinance.

6. To enforce the provisions of this ordinance, the decisions of the BZA and conditions and proffers subject to which approvals of the BZA, Planning Commission and Board of Supervisors were made.

7. To perform such other duties and functions as may be required by this Ordinance and the Board of Supervisors.

8. To maintain and make available for public inspection and copying the official Zoning Map, the Zoning Ordinance, and the minimum submission requirements adopted by Board of Supervisors resolution.

9. To maintain a compilation of the interpretations and opinions of the Zoning Administrator for public review.

(b) Fees. The County Administrator shall recommend and the Board of Supervisors shall adopt a schedule of fees to be paid upon the filing of each application specified in this Ordinance. Application fees are hereby waived for the following:

1. Applications for requested amendment from any district to a C-1 district.

2. Applications for amendment, Special Use Permit, or commission permit sought by the following governmental agencies:

a. Montgomery County School Board.

b. PSA- Public Service Authority

c. Fire and rescue companies serving Montgomery County.

d. Any agency, board or division acting in the name of the Board of Supervisors of Montgomery County.

(c) Submission Requirements. The Board of Supervisors shall adopt by resolution regulations enumerating those materials required to be included with each application provided for in this Ordinance, which materials shall constitute the minimum submission requirements for such application and be consistent with the requirements of this Ordinance. Such submission requirements shall include a letter signed by the applicant and by the owner of the property granting the right of entry upon the property to the Zoning Administrator, law enforcement agents, and County inspectors for the purpose of inspecting, and bringing law enforcement to the property, during the term of any permit which may be issued. Such submission requirements shall also include, in the case of any application for a Zoning Map Amendment, Zoning Ordinance Modification, Zoning Concept Development Plan Amendment, Special Use Permit, Variance, Site Plan or Zoning Permit, the provision of satisfactory evidence from the Treasurer's Office that any real estate taxes due and owed to the County which have been properly assessed against the property have been paid and that the property shall be in compliance with all county ordinances upon submission of such application. Revisions to the list of those materials required necessitated by an amendment to this Ordinance shall be attached to such amendment for concurrent consideration and adoption by resolution of the Board of Supervisors. If the application is a reclassification to a non-Planned Unit Development district, a rezoning plat shall be required.

(d) Inactive Applications. Any Zoning Map Amendment application, Zoning Modification application, or Concept Development Plan Amendment application officially accepted by the County for processing but which has had processing suspended either by request of the applicant or by having no contact or activity occur in regards to the application by the applicant for a period of twelve months or any Special Use Permit application officially accepted by the County for processing but which has had such processing suspended either by request of the applicant or by having no contact or activity occur in regards to the application by the applicant for a period of six months shall be deemed inactive. An application may remain inactive for up to three (3) years at the end of which period it will be processed to a final decision. If an applicant wishes to reactivate their application prior to the end of this three (3) year period, the applicant must notify the County in writing of intent to proceed with the application, grant the County an appropriate timeline extension and pay a reactivation fee as established by the Board of Supervisors.

(2) Enforcement and Penalties

(a) Zoning Administrator.

The Zoning Administrator shall have the authority and the duty to ensure that all buildings and structures and the use of all land complies with the provisions of this Ordinance.

(b) General Provisions.

1. Any building or structure erected contrary to any of the provisions of this Ordinance and any use of any building or land which is conducted, operated or maintained contrary to any of the provisions of this Ordinance or the provisions of any approval granted by the County under this Ordinance shall be a violation of this Ordinance and the same is hereby declared to be unlawful.

2. Any person, whether owner, lessee, principal, agent, employee or otherwise, who violates any of the provisions of this ordinance, or permits any such violation, or fails to comply with any of the requirements hereof, or who erects any building or structure or uses any building, structure or land in violation of the provisions of this Ordinance or the provisions of any approval granted by the County under this Ordinance shall be subject to the enforcement provisions of this Section.

3. In addition to the remedies provided in this Section, the Zoning Administrator may initiate injunction, mandamus, abatement or any other appropriate action to prevent, enjoin, abate or remove any unlawful building, structure or use.

4. Upon becoming aware of any violation, the Zoning Administrator shall serve notice of such violation on the person committing or permitting the same, and the land owner. The Administrator shall, in the notice of violation, state the nature of the violation, the date that it was observed, and the remedy or remedies necessary to correct the violation. The Administrator may establish a reasonable time period for the correction of the violation, however in no case shall such time period exceed thirty (30) days from the date of written notification, except that the Administrator may allow a longer time period to correct the violation if the correction would require the structural alteration of a building or structure. If the violation is not corrected within the time period specified in the first notification, a second written notice shall be sent. The second notification shall request compliance with these provisions within a period not to exceed seven (7) days. If such violation has not ceased within such reasonable time as the Zoning Administrator has specified in such notice, the Zoning Administrator shall institute such action as may be necessary to terminate the violation.

5. If the person responsible for the alleged violation denies that a violation exists, the person may appeal the decision of the Zoning Administrator pursuant to the provisions of §10-51 of this ordinance.

6. Whenever a violation occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint stating fully the cause and basis thereof shall be filed with the Zoning Administrator. The Zoning Administrator shall record such complaint, investigate, and take action thereon as provided by this Ordinance.

(c) Criminal Violations.

1. Any violation of the provisions of this Ordinance shall be deemed a Class 2 criminal misdemeanor and, upon conviction thereof, shall be punishable by a fine of not more than $1,000.00 for each separate offense. Each day during which the violation is found to have existed shall constitute a separate offense.

2. The designation of a particular violation shall preclude criminal prosecution or sanctions, except when such violation results in injury to any person.

(d) Civil Violations.

1. Any violation of the provisions shall be deemed a civil violation and, upon an admission of liability or finding of liability, shall be punishable by a fine of $100.00 for each individual charge. The civil penalties set forth herein shall be in lieu of criminal penalties. Each day during which the violation is found to have existed shall constitute a separate offense. However, in no event shall specified violations arising from the same operative set of facts be charged more frequently than once in any ten 10 day period, and in no event shall a series of specified civil violations rising from the same operative set of facts result in civil penalties which exceed a total of $3,000.00. Nothing in this subsection shall be construed as to prohibit the Zoning Administrator from initiating civil injunction procedures in cases of repeat offenses.

2. After having served a notice of violation on any person committing or permitting a violation of the Zoning Ordinance provisions and if such violation has not ceased within such reasonable time as is specified in such notice, the Zoning Administrator shall cause two (2) copies of a summons to be personally served upon such person. If a person complies in writing to a notice of violation, and agrees to cease said violation, no further fines shall be levied after the date of such agreement, provided such agreement is complied with.

3. The summons shall provide that any person summoned for a violation may elect to pay the civil penalty by making an appearance in person or in writing by mail to the County Treasurer's office at least 72 hours prior to the time and date fixed for trial and, by such appearance, may enter a waiver of trial, admit liability, and pay the civil penalty established for the offense charged. Such summons shall provide that a signature to an admission of liability shall have the same force and effect as a judgment of court, however, an admission shall not be deemed a criminal conviction for any purpose.

4. If a person charged with a violation does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided by law. A finding of liability shall not be deemed a criminal conviction for any purpose.

(3) Public Hearings

Notice Required For Public Hearings. Each public hearing involving planning and zoning matters before the Planning Commission, the Board of Supervisors and the Board of Zoning Appeals, requires notice as set forth in §15.2-2204 of the State Code and below.

(a) Written Notice.

1. Contents of Written Notice. All required written notice shall contain:

a. The time, date and place of hearing;

b. A brief description of the matter being heard,

c. Identification of the land subject of the application including the tax map number of the property and complete street address of the property.

2. Second Notice Remailed If Hearing Continued. If a public hearing is continued, then the second notice required in such case shall be remailed.

3. Notice by County. Notwithstanding any other provisions of this section, whenever the notices required under this Section are sent on behalf of an agency, department or division of the County, such notice shall be sent by the Zoning Administrator and may be sent by first class mail; however, the Zoning Administrator shall make affidavit that such mailings have been made and file such affidavit with the papers in the case.

4. Certification. At least five 5 calendar days prior to the hearing, an affidavit, prepared by the person or persons, or their representative providing notice, shall be filed with the Director of Planning certifying that first and second notices have been sent and such affidavit shall include a list of names of those to whom notice was sent. A counterpart of such affidavit shall be presented at the beginning of the public hearing on the application.

5. Failure to Receive Notice. Failure to receive any notice of a hearing required by this Section, in and of itself, shall not invalidate any action taken at or subsequent to the hearing.

6. Condominium Ownership. In the case of a condominium, written notice may be sent to the unit owner's association instead of to each individual unit owner.

(b) Placard Notice. Each application shall be posted by the applicant, using a form of placard provided by the Zoning Administrator , at least fourteen (14) and no more than thirty (30) calendar days prior to each public hearing. County-initiated amendments involving more than 10 parcels shall be exempt from placard requirements.

1. Location of Placards. Placards shall be affixed to a pole, post, fence or other structure to be clearly visible from each public road abutting the property. If no public roads abut the property, then the placard shall be posted so as to be clearly visible from at least two abutting properties and at the access points to said property.

2. Maintenance and Removal of Placards. The applicant shall maintain all placards up to the time of the hearing and shall remove all posted placards no later than fifteen 15 calendar days after the public hearing has been closed. Public hearing(s) may proceed even if placards are missing, damaged or vandalized.

3. Penalties. It shall be unlawful for any person to destroy, deface or remove such placard notice. Any person taking such action shall be subject to the penalties set forth in §10-52(2)(c) of this Ordinance.

(c) Newspaper Notice. The County shall give newspaper notice prior to each public hearing in accord with §15.2-2204 A of the State Code.

1. Contents of Newspaper Notice. The notice shall contain:

a. The time, date and place of the hearing

b. A brief description of the matter being heard

c. If the matter is one for which an additional public hearing is necessary and has been scheduled before the BZA or Board of Supervisors, the time, date and place of the scheduled BZA or Board of Supervisors hearing; and

d. Identification of the land that is the subject of the application including the tax map number and complete address of the property.

e. In the case of a zoning map amendment, including an amendment to an approved Concept Development Plan, or a modification of ordinance regulations, the general usage and density range of the proposed zoning amendment, and the general usage and density range, if any, set forth in the Comprehensive Plan shall be included within the notice.

(d) Notice Requirements for Particular Hearings. The following particular hearings require the following form of notice:

1. Appeals to Board of Supervisors. Public hearings on appeals to the Board of Supervisors require that the County provide newspaper notice of the hearing.

2. Appeals to Board of Zoning Appeals. Public hearings on appeals to the BZA require that the County provide newspaper notice of the hearing.

(e) Additional Notice Required

1. Deferral. If an item is not heard at the time for which it was noticed but is deferred at that time to another date, all notice required by this Section shall be given of the deferred public hearing.

2. Recessed Public Hearings. If a public hearing is begun but the agenda not completed, thereby requiring the meeting to be recessed, no additional notice is required as long as the dates for completion of the public hearing agenda is announced at the hearing which has been recessed.

(f) Speakers at Public Hearings. All witnesses and speakers presenting facts and evidence at any public hearing shall provide their name, address and affiliation, if any, for the record. At the discretion of the person presiding over the hearing, witnesses or speakers may be required to give oath or affirmation regarding the truth of their statements.

§10-53 REQUIRED DEVELOPMENT APPROVALS

(1) Zoning Permits

(a) Zoning Permits. No building permit or certificate of occupancy shall be issued, building or structure shall be erected or occupied, no use, or change in use commenced, and no excavation or grading commenced relating thereto unless a zoning permit therefore has been issued by the Zoning Administrator and is still valid; except that a conditional grading permit may be obtained prior to construction plans and profiles or site plan approval in accord with the prevailing adopted standards in applicable County ordinances including this ordinance and the subdivision ordinance

(b) Application for Zoning Permit. An application for a zoning permit, signed by the property owner, shall be filed with the Zoning Administrator and shall be accompanied by as much of the following information as the Zoning Administrator deems pertinent and such additional information as the Zoning Administrator may require to determine whether the proposed use or structure will be in compliance with the provisions of this Ordinance.

1. Certificate from the Health Official that the proposed location complies with relevant Chapters of the Codified Ordinances and/or applicable state laws regarding sewage disposal and/or water supply or, where a public water and/or sewerage system approved by a health official is involved, a statement from the system permittee that all applicable regulations and requirements have been complied with.

2. A grading permit, if required by State law or County ordinance.

3. The intended use.

4. If a dwelling, the number of families.

5. An approved site plan or a plot plan drawing signed by the applicant drawn to scale showing dimensions of any structures and their location with respect to property lines and public roads.

6. A location clearance for property located in the Floodplain or Airport Safety Overlay Districts.

7. Number, size, location and lighting of signs, if any.

8. Number, size, and location of off-street parking lots or spaces.

(c) Standards for Issuance. No zoning permit shall be issued where the structure to be constructed or the use contemplated would be in violation of the provisions of this Ordinance or any other applicable County law, ordinance or regulation. In addition, no permit shall be issued if the proposed use violates the terms of approval of a rezoning, subdivision, Special Use Permit, proffer, variance, or other approval. The issuance of such zoning permit, however, shall not afford protection to any owner who is found to be violating this or any other applicable law, ordinance or regulation.

(d) Duration of Valid Zoning Permit. Any zoning permit issued shall become invalid if the authorized work is not commenced within six (6) months of the date of issuance, or is suspended or abandoned for a continuous period of six (6) months. The Zoning Administrator may, upon good cause shown, extend a permit with or without charge for an additional period not exceeding six (6) months.

(2) Occupancy Permits

Land may be used or occupied and buildings structurally altered or erected may be used or changed in use only after a certificate of occupancy has been issued by the Administrator. Such a permit shall state that the building or the proposed use, or the use of the land complies with the provisions of this chapter. A similar certificate shall be issued for the purpose of maintaining, renewing, changing or extending a nonconforming use. A certificate of occupancy either for the whole or a part of a building, shall be applied for simultaneously with the application for a zoning permit. The permit shall be issued within ten (10) days after the erection or structural alteration or such building or part has conformed with the provisions of this chapter.

(3) Site Plan Review

(a) Requirements. A site development plan is required for the following:

1. New construction or development in any zoning district, except for farm structures, single or two-family dwellings, or accessory buildings for single or two-family dwellings.

2. The conversion of any farm building or single family or two-family dwelling unit to any other use, or a higher intensity residential use, or the conversion of any building or property to a different use category, (e.g., commercial to industrial).

3. Any development in which any required off-street parking space is to be used by more than one establishment.

4. When an alteration or amendment is proposed to the site improvements or design of a previously approved site plan.

5. All other uses involving a building required to be reviewed by the Planning Commission under §15.2-2232 of the Code of Virginia, as amended.

6. Additions or modifications to any buildings or uses, except for farm structures, single or two-family dwellings, or accessory buildings for single or two-family dwellings.

(b) Site development plans shall be prepared by a professional engineer, architect, landscape architect or land surveyor licensed to practice in the Commonwealth of Virginia. This requirement may be waived by the Zoning Administrator for minor projects with limited impact on adjacent properties.

(c) Contents. Information, format and accompanying materials required for site plans shall be detailed on the Site Plan Checklist to be prepared and maintained by the Zoning Administrator with advice from the Planning Commission, Planning Director and other staff designated by the County Administrator. In all cases and applications, sufficient information will be provided for review and approving officials to determine compliance with all zoning regulations of Montgomery County. The number of copies of the plan to be submitted shall be determined by the Zoning Administrator.

(d) Review and approval.

1. Plans submitted for review must be accompanied by payment of the plan review fee. Plan review fees shall be established by resolution of the Board of Supervisors.

2. The Zoning Administrator shall coordinate the county review of any site development plan submitted in accord with county administrative procedures, and shall have the authority to request opinions or decisions from other county departments, agencies or authorities of the Commonwealth of Virginia, or from other persons as may from time to time be consulted.

3. No building or zoning permit shall be issued by any county official for any building, structure or use depicted on a requested site development plan, until such time as the plan is approved by the county.

4. Site plans shall be acted upon within A time limit of 60 days from filing or as otherwise allowed in §15.2-2259 of the Code of Virginia, whichever is less.

5. Approval of a site development plan pursuant to the provisions of this chapter shall be valid in accordance with §15.2-2261 of the Code of Virginia, as amended.

6. The construction of infrastructure improvements, amenities and safeguards may be assured by bonding and/or letters of credit using procedures and guarantees in the Montgomery County Land Subdivision Ordinance, as determined by the Zoning Administrator.

7. No change of an approved site development plan is permitted, unless a revised plan or a plan amendment is approved by the Zoning Administrator.

(4) Additional County, State and Federal Approvals Required For Development.

Approvals obtained pursuant to this Ordinance shall not relieve any person from the requirement to obtain any other necessary approvals under Federal, State or local law.

(5) Subdivision Approval.

1. Subdivision approval is required in the circumstances specified in the Land Subdivision Ordinance

(6) Commission Permit

(a) Permit Required.

1. No street or connection to an existing street, park or other public area, public building or public structure, public utility facility or public service corporation facility other than a railroad facility, whether publicly or privately owned, shall be constructed, established or authorized, unless and until the general location or approximate location, character and extent thereof has been submitted to and approved by the Planning Commission as being substantially in accord with the adopted Comprehensive Plan.

2. Widening, narrowing, extension, enlargement, vacation or change of use of streets or public areas shall be submitted for approval, but paving, repair, reconstruction, improvement, drainage or similar work and normal service extensions of public utilities or public service corporations shall not require approval unless involving a change in location or extent of a street or public area.

3. Any public area, facility or use which requires a permit under (A) above which is identified within, but is not the entire subject of, an application for approval of subdivision or site plan or both may be deemed to be a feature already shown on the Comprehensive Plan if the County has defined standards governing the construction, establishment or authorization of such public area, facility or use or has approved it through acceptance of a proffer made pursuant to §10-54(1)(i). In such case, application for a commission permit is not necessary.

4. Application for a commission permit is not necessary in such instances where the public area, facility or use is deemed to be a feature already shown on the Comprehensive Plan.

(b) Application. An application for a commission permit shall be filed with the Zoning Administrator and shall meet the minimum submission requirements prescribed pursuant to §10-52(1)(c).

(c) Planning Commission Action.

1. The Planning Commission shall review the application to determine if the feature for which approval is sought is substantially in accord with the adopted Comprehensive Plan.

2. The Planning Commission may hold a public hearing on the matter, with notice provided in accordance with Section 5-203.

3. The Planning Commission shall communicate its findings to the Board, indicating its approval or disapproval with written reasons therefor.

4. Failure of the Planning Commission to act within sixty (60) days of acceptance of an application shall be deemed approval, unless such time shall be extended by the Board of Supervisors.

(d) Board of Supervisors. Within sixty (60) days after the Planning Commission has acted or failed to act, the Board of Supervisors may act on the application by a vote of a majority of the membership thereof.

(e) Appeal. Within ten (10) days of the decision of the Planning Commission, the owner or owners or their agents may appeal the Commission's decision to the Board of Supervisors by filing a written petition with the Zoning Administrator setting forth the reasons for the appeal. The appeal shall be heard by the Board of Supervisors and determined within sixty (60) days from its filing.

§10-54 SPECIAL DEVELOPMENT APPROVALS

(1) Zoning Amendment

(a) Authority. The Board of Supervisors may, by ordinance, amend, supplement, change or repeal the provisions of this Ordinance or the boundaries of zoning classifications established in the official Zoning Map.

(b) Initiation of Amendment. Either a zoning map or text amendment may be proposed by resolution of the Board of Supervisors or Planning Commission. In the case of a zoning map amendment, an application may be filed by a person who owns or has a legal interest in or is a duly authorized representative of the owner. In all events, the application must exhibit the consent of all those who have a legal ownership interest in the property under consideration. In the case of a zoning text amendment, a landowner may file a petition for a resolution of intent to amend the ordinance text to be acted upon by the Board of Supervisors. The Board shall either adopt such resolution, initiating the text amendment requested, or deny such petition.

(c) Review of Application. An application for a zoning map amendment shall be filed, contain such material and be reviewed pursuant to the following:

1. Pre-Application Conference. Prior to filing an application, an applicant may meet with the Zoning Administrator and discuss the intentions with regard to a given application and questions regarding the procedures or substantive requirements of this Ordinance. In connection with all such conferences, the Director of Planning shall be consulted as appropriate. A request for a pre-application conference shall be made to the Zoning Administrator and shall be accompanied by a sketch map of the site, a description of the proposed project or use, and a list of the issues to be discussed at the conference. No matters discussed at said meeting shall be binding on either the applicant or the County.

2. Review of Application for Completeness. No application shall be accepted and reviewed unless determined by the Director of Planning to be complete. A complete application is one which meets such minimum submission requirements as may be established pursuant to §10-52(1)(c), including a rezoning plat. Each application shall be reviewed to determine if it includes the minimum submission requirements. The County shall maintain a current log of all pending applications.

3. Acceptance of Complete Application. The Planning Director shall either accept the application if it is complete and forward to the applicant a notice of acceptance or reject the application if it is incomplete and forward to the applicant a notice of incompleteness specifying those areas of additional information necessary for acceptance and review.

a. If notice of incompleteness is sent, the applicant may resubmit the application with the additional data required, in which event the Planning Director shall review the resubmitted application in the manner provided in this Section for the application.

b. If the application is not resubmitted, the Planning Director shall notify the applicant that the original application has been rejected as incomplete.

(d) Staff Review of Application.

1. Referrals. Upon acceptance of the application for zoning amendment, the Planning Director shall forward a copy of the application to any town and any county or state agencies whose comments are necessary or desirable for full and appropriate review of the merits of the application.

2. Referral Responsibilities. Each reviewing agency shall prepare a staff report which sets out in writing its comments and recommendations regarding the application and shall forward such staff report to the Director of Planning.

3. Review of Referrals. Referral comments shall be obtained and reviewed by the Director of Planning within thirty (30) calendar days after a final application has been accepted. The Planning Director shall forward to the applicant a written review of the issues raised by the application.

4. Applicant Response. Upon receipt of the written review, an applicant may request a meeting with the Director of Planning to discuss the matters contained in the written review and the application generally. Such request shall be in writing and shall include a response to the matters raised in the written review received. If the applicant's response and/or such a meeting results in an amended application, the provisions of §10-54(1)(e) shall apply.

5. Required Action By Other Board. In the event this Ordinance requires that an application not be granted until acted upon by some government board or agency other than the Planning Commission or Board of Supervisors, then the Director of Planning shall forward the application for amendment to such board or agency for appropriate action prior to the notification to an applicant that an application is ready to be presented to the Board of Supervisors or Planning Commission. If it deems it appropriate, the Planning Commission may recommend, and the Board of Supervisors may approve, an application contingent on required action by the other board or boards.

6. Report and Notice to Applicant. The Director of Planning shall compile the referrals and any other necessary information, prepare a written staff report with proposed findings and a recommendation, and notify the applicant that the report is complete and the application is ready to be presented to the Board of Supervisors or Planning Commission, as appropriate, for hearing.

(e) Amendment to Application.

An application may be amended by the submission of additional information or proposed changes to the application after it has been accepted. If the additional information or proposed changes submitted are to conform with recommendations made by County staff, commissions or boards, then it shall not be deemed an amendment and the application shall continue to be processed on its original time line. However, if the additional information or proposed changes submitted by the applicant are at the applicant's request, then the Director of Planning shall review the information within fifteen (15) calendar days of receipt and render a finding as to whether the submitted information necessitates repeating any portion of the reviewing process including public hearings. If any portion must be repeated, the Director will notify the applicant in writing within the fifteen (15) calendar day period that the additional information or proposed changes will require an extension of the time limits prescribed in this Section and such notice shall specify the required extension. The applicant will then have fifteen (15) calendar days to provide the Director with a written response either granting the necessary extension or withdrawing the additional information or proposed changes which necessitated the extension. If the applicant chooses to withdraw the information, then the application will proceed based on its original timeline.

(f) Withdrawal of Application.

An application may be withdrawn upon written request by the applicant any time prior to the public hearing with the consent of either the Planning Commission or the Board of Supervisors, whichever body has advertised the hearing. No new application concerning any or all of the same property which is substantially the same as the one withdrawn shall be filed within three (3) months of the date of withdrawal, unless the respective body approving withdrawal specifies at the time it consents to withdrawal that said time limitation shall not apply.

(g) Limitation on Application After Denial. After the official denial of an application by the Board of Supervisors, substantially the same application concerning any or all of the same property shall not be filed within one (1) year of the date of denial.

(h) Conditional Zoning. As part of classifying land within the County into areas and districts by legislative action, the County may allow reasonable conditions governing the use of such property, such conditions being in addition to, or modification of, the regulations provided for a particular zone or zoning district by this Ordinance.

(i) Proffered Conditions. As part of an application for a rezoning, a property owner may proffer in writing the provision of reasonable conditions to apply and be part of the rezoning sought to be approved by said application. Proffered conditions may include written statements, development plans, profiles, elevations, or other demonstrative materials and shall be subject to the following procedures and regulations:

1. When Proffers Are Made.

a. It is the intent of this Ordinance that any proffered conditions be submitted for staff review as part of an initial application for rezoning. Further, it is the intent of this Ordinance that revised proffers be publicly available prior to the Planning Commission public hearing on the application.

b. In no event shall the applicant's proposed statement of proffered conditions be submitted later than fourteen (14) calendar days prior to the scheduled public hearing before the Board of Supervisors.

2. Nothing in this paragraph shall prevent the Board of Supervisors from approving an application subject to changes in proffers agreed to by an applicant at the public hearing so long as the change imposes a more restrictive standard and the ordinance adopted accurately reflects such changes.

3. Contents of Proffer. Proffered conditions shall be signed by all persons having an ownership interest in the property and shall be notarized. Proffered conditions shall contain a statement that the owners voluntarily enter into the conditions contained therein.

4. Filing And Notice Of Accepted Proffers. If the amendment to the Zoning Map is adopted subject to proffered conditions, then the property in question shall be appropriately annotated on the Zoning Map and the proffers shall be placed in the Zoning Administrator's official proffer file.

5. Proffers Govern Development. Upon final approval by the Board of Supervisors proffered conditions shall become a part of the zoning regulations applicable to the property unless subsequently changed by an amendment to the Zoning Map, which amendment is not part of a comprehensive implementation of a new or substantially revised zoning ordinance, and such conditions shall be in addition to the specific regulations set forth in this Ordinance for the zoning district in question.

6. Substantial Conformance Required. Upon approval of a rezoning with proffers, any site plan, subdivision plat, development plan or other application for development thereafter submitted shall be in substantial conformance with all proffered conditions. No development shall be approved by any County official in the absence of said substantial conformance.

7. Substantial Conformance Defined. For the purpose of this Section, substantial conformance shall be determined by the Zoning Administrator and shall mean that conformance which leaves a reasonable margin for adjustment due to final design or engineering data but conforms with the general nature of the development, the specific uses, and the general layout depicted by the plans, profiles, elevations, and other demonstrative materials proffered by the applicant.

8. Enforcement of Proffers. The Zoning Administrator shall be vested with all necessary authority on behalf of the Board of Supervisors to administer and enforce proffered conditions. Such authority shall include the ability to order, in writing, the remedy of any noncompliance with a proffered condition and the ability to bring legal action to ensure compliance including injunction, abatement, or other appropriate action or proceedings, as provided for in §10-55 of this Ordinance. Any person, group, company, or organization aggrieved by an interpretation of the Zoning Administrator may appeal such interpretation as defined by §10-54(1)(k) of this Ordinance.

9. Guarantee for Construction of Improvements. A guarantee, satisfactory to the Board, may be required in an amount sufficient for and conditioned upon the construction of any public improvements required by the proffered conditions. This guarantee may be reduced or released by the Board or agent thereof, upon the submission of satisfactory evidence that the construction of such improvements has been completed in whole or in part. Said guarantee shall be required no later than final site plan or subdivision approval.

10. No Permits Shall Be Issued Not In Compliance With Proffers. Failure to meet or comply with any proffered conditions shall be sufficient cause to deny the issuance of any site plan or subdivision approvals, grading permits, zoning permits, building permits, or certificates of occupancy as may be determined appropriate by the Zoning Administrator. In addition to the other penalties appropriate for violations of this Ordinance, failure to meet or comply with any proffered condition shall be sufficient cause to deny the issuance of any development approvals or permits relating to the land area which was the subject of the conditional zoning. To this end, each application for a development approval or permit shall include an affidavit by the applicant that all applicable proffers have or will be complied with as agreed upon at the time of rezoning. The burden shall be on the applicant to verify that proposed development complies with any and all proffered conditions.

11. Appeal of Proffer Decision. Any person aggrieved by a decision of the Zoning Administrator regarding any proffered condition may appeal such decision to the Board of Supervisors. Such appeal shall be filed within thirty (30) calendar days from the date of the decision appealed by filing a notice of appeal with the Zoning Administrator. Such notice shall be a written statement specifying the grounds on which aggrieved and the basis for the appeal. Upon receipt of the appeal notice, the Board of Supervisors shall take such testimony as it deems appropriate and shall render its decision within sixty (60) calendar days after receipt of the appeal notice. The Board of Supervisors may reverse or affirm wholly or partly or may modify the decision of the Zoning Administrator.

(j) Planning Commission Hearing. No later than forty five (45) calendar days after an application has been accepted, the Planning Commission shall hold a duly noticed public hearing on an application for a zoning amendment.

(k) Report by Planning Commission. The Planning Commission shall report to the Board of Supervisors its recommendation with respect to the proposed amendment.

1. The Planning Commission need not confine its recommendation to the proposed amendment as set forth in the application. If the proposed amendment consists of a change in the text of this ordinance, it may recommend a revision to the proposal. If the proposed amendment consists of a change in zoning district boundaries, it may reduce or enlarge the extent of land that it recommends be rezoned; or it may recommend that the land be rezoned to a different zoning district classification than that requested if, in either case, the Commission is of the opinion that such revision is in accordance with sound zoning practice and the adopted Comprehensive Plan, and is in furtherance of the purposes of this ordinance. Before recommending a larger extent of land or a rezoning to a more intensive classification than was set forth in the application, the Commission shall hold an additional duly noticed public hearing on the matter.

2. In recommending the adoption of any proposed amendment to this Ordinance, the Planning Commission may state its reason for such recommendation, describing any changes in conditions, if any, that it believes make the proposed amendment advisable and specifically setting forth the manner in which, in its opinion, the proposed amendment would be in harmony with the adopted comprehensive plan and would be in furtherance of the purpose of this Ordinance.

3. Text Amendments. If the request is for an amendment of the text of this Ordinance, the Planning Commission shall consider the following matters:

a. Whether the proposed text amendment is consistent with the Comprehensive Plan.

b. Whether the proposed text amendment is consistent with the intent and purpose of this Ordinance.

4. Zoning Map Amendments. If the application is for a reclassification of property to a different zoning district classification on the Zoning Map, the applicant shall address all the following in its statement of justification or plat unless not applicable. The Planning Commission shall give reasonable consideration to the following matters:

a. Whether the proposed zoning district classification is consistent with the Comprehensive Plan.

b. Whether there are any changed or changing conditions in the area affected that make the proposed rezoning appropriate.

c. Whether the range of uses in the proposed zoning district classification are compatible with the uses permitted on other property in the immediate vicinity.

d. Whether adequate utility, sewer and water, transportation, school and other facilities exist or can be provided to serve the uses that would be permitted on the property if it were rezoned.

e. The effect of the proposed rezoning on the County's ground water supply.

f. The effect of uses allowed by the proposed rezoning on the structural capacity of the soils.

g. The impact that the uses that would be permitted if the property were rezoned will have upon the volume of vehicular and pedestrian traffic and traffic safety in the vicinity and whether the proposed rezoning uses sufficient measures to mitigate the impact of through construction traffic on existing neighborhoods and school areas.

h. Whether a reasonably viable economic use of the subject property exists under the current zoning.

i. The effect of the proposed rezoning on environmentally sensitive land or natural features, wildlife habitat, vegetation, water quality and air quality.

j. Whether the proposed rezoning encourages economic development activities in areas designated by the Comprehensive Plan and provides desirable employment and enlarges the tax base.

k. Whether the proposed rezoning considers the needs of agriculture, industry, and businesses in future growth.

l. Whether the proposed rezoning considers the current and future requirements of the community as to land for various purposes as determined by population and economic studies.

m. Whether the proposed rezoning encourages the conservation of properties and their values and the encouragement of the most appropriate use of land throughout the County.

n. Whether the proposed rezoning considers trends of growth or changes, employment, and economic factors, the need for housing, probable future economic and population growth of the county.

o. The effect of the proposed rezoning to provide moderate housing by enhancing opportunities for all qualified residents of Montgomery County.

p. The effect of the rezoning on natural, scenic, archaeological, or historic features of significant importance.

The Planning Commission shall make its recommendation to the Board within sixty (60) calendar days after the public hearing of the Commission.

(l) Hearing Before Board of Supervisors.

No later than one hundred (100) calendar days after an application has been accepted, a duly noticed public hearing shall be held by the Board of Supervisors regarding an application for zoning amendment.

(m) Action by Board of Supervisors.

After the conclusion of its public hearing, the Board of Supervisors shall act on the application for rezoning. The Board of Supervisors need not confine its action to the proposed amendment as set forth in the application. If the proposed amendment consists of a change in the text of this ordinance, it may act on a revision to the application. If the proposed amendment consists of a change in zoning district boundaries, it may reduce or enlarge the extent of land that it rezones or it may rezone the land to a different zoning district classification than that requested if, in either case, it is of the opinion that such revision is in accordance with sound zoning practice and the adopted Comprehensive Plan and is in furtherance of the purposes of this Ordinance. Before rezoning a larger extent of land or rezoning the land to a more intensive classification than was set forth in the application, the Board shall hold a further duly noticed public hearing on the matter.

(n) Evidentiary Matters Before Board of Supervisors.

All information, testimony or other evidence presented by an applicant for zoning amendment shall be presented to the Planning Commission in conjunction with its review and hearing on the application. If the Board of Supervisors determines that an applicant is presenting evidence which is substantially or materially different from that presented to the Commission, the Board may refer the application back to the Commission for such additional consideration and action as the Board may deem appropriate.

(2) Rezoning to Planned Unit Development District

(a) Purpose. The provisions of this Section establish special procedures for approving Concept Development Plans for [residential and commercial] Planned Unit Development districts. The procedures herein established are in recognition of the fact that traditional density, bulk, spacing and use regulations, which may be useful in protecting the character of substantially developed areas, may impose inappropriate and unduly rigid restrictions upon the development of parcels or areas which lend themselves to a unified, planned approach. A Planned Unit Development shall be designed to ensure that the following general goals will be achieved.

1. The proposed development shall be of such design that it promotes achievement of the stated purposes of the Comprehensive Plan and is consistent with the Plan as well as other adopted plans and policies of the County.

2. The development will efficiently use available land and will protect and preserve, to the extent possible, natural features of the land such as trees, streams and topographic features.

3. The development will be located in an area in which transportation, police and fire protection, schools and other public facilities and public utilities, including water and sewerage, are or will be available and adequate for the uses proposed. The applicant may, where appropriate, make provision for such facilities or utilities which are not presently available.

(b) Modifications. The regulations of the PUD district sought shall apply after rezoning is approved unless the Board of Supervisors finds that the zoning, subdivision or other requirements that would otherwise apply should be modified because the actions, designs or solutions proposed by the applicant, although not literally in accord with the applicable regulations, will satisfy public purposes to at least an equivalent degree. No modifications shall be permitted which affect uses, density, or floor area ratio of the district. Modifications to an approved Concept Development Plan may be approved as set forth in §10-54(2)(i).

(c) Concept Development Plan/Submission Requirements.

Purpose and Effect. An application for rezoning to a Planned Unit Development district shall include a Concept Development Plan incorporating the format and information required as detailed in the PUD checklist and such additional information as the applicant may deem necessary to provide a detailed understanding of the proposed Planned Unit Development. The number of copies shall be determined by the Zoning Administrator.

(d) Contents of an Approved Concept Development Plan.

The Concept Development Plan shall contain provisions to regulate the intensity of development within the Planned Unit Development district, including estimated acreage of land bays or subareas with accompanying densities. Such provisions may apply to the project as a whole or to subareas within the project. Without limiting the foregoing, the plan shall depict:

1. Nonresidential Densities. For nonresidential development, (a) the floor area ratio or ratios; (b) the maximum gross floor area for the project as a whole or for components or subareas within the project; (c) the setbacks, height, and bulk restrictions for the project as a whole or for components or subareas within the project. In addition, non-residential development plans shall specify any applicable performance standards that are imposed and restrictions regarding the location and nature of industrial, commercial and other nonresidential activities.

2. Residential Densities. For residential developments, (a) the maximum number of dwelling units for the project, (b) individual lot size, height and other building restrictions for the project as a whole or for individual subareas within the project; and (c) the distribution of residential densities for the project or individual subareas within the project sufficient to enable the County to judge the plan and compare future development to it for consistency.

3. Public Facilities. For residential and nonresidential developments, the approved conditions, restrictions and standards relating to ensuring the timely provision of necessary public facilities based on conformity with the existing Comprehensive Plan and Capital Improvements Program and any proffers made by the applicant.

4. Transportation/Access. For residential and nonresidential development, the approved location and general design of transportation improvements and ingress and egress to the project, along with such access restrictions as are imposed to promote and ensure the integrity and function of the County's thoroughfare system and the safe and efficient circulation of vehicles and pedestrians within the [residential and commercial] Planned Unit Development district.

5. Modification. For residential and nonresidential developments, any approved modifications to any provisions of this Ordinance, the Land Subdivision and Development Ordinance, or any other applicable County ordinance which would otherwise be applicable to the development and which are to be modified. The statement regarding modifications shall set forth clearly the text of the approved modification and the justification therefore.

(e) Optional Joint Approvals. At the applicant's option, an application for site plan and/or preliminary subdivision plat approval may be submitted in conjunction with an application for a rezoning to a Planned Unit Development district. In such case, the applications shall be reviewed together pursuant to their respective standards, the time limits for rezoning shall apply to the joint application, and no approval of a site plan or preliminary subdivision plat shall be effective unless and until the application for rezoning to Planned Unit Development has been approved by the Board of Supervisors. The application for site plan and/or subdivision approval may be for the entire Planned Unit Development site or for a phase thereof which is consistent with the phasing plan ultimately adopted by the Board.

(f) Approved Changes to Concept Development Plan After Approval.

1. Minor Change. Any proposed change or changes to an approved Concept Development Plan which meets the following criteria shall be considered a minor change and may be permitted if approved by the Zoning Administrator.

a. Decreases by less than five percent (5%) the area approved for public and private open space.

b. Relocates or modifies approved circulation elements as a result of more detailed engineering or changes requested by staff or VDOT, unless the change would decrease the ability of such elements to function efficiently, adversely affect their relation to surrounding lands and circulation elements, or would reduce their effectiveness as buffers or amenities.

c. Any decrease in residential units or non-residential floor space.

(g) Special Use Permit Change. The following change or changes to an approved development plan may be made by Special Use Permit approved by the Board of Supervisors.

1. Increases by less than five percent (5%) of the total number of units to be devoted to any particular residential or nonresidential use.

2. Increases by less than five percent (5%) of the total floor area to be devoted to any particular nonresidential use.

3. Alteration of the arrangement of land uses, or land bays, within the Planned Unit Development.

(h) Major Change. Other than the minor adjustments authorized by §10-54(2)(f) above, if an approved Development Plan is amended, varied or altered, such change shall be reviewed pursuant to the procedures established by this Section for its original approval.

(i) The minimum submission requirements for changes to an approved concept development plan shall be the same for either a new or an amended plan. Changes being made may be shown only for those areas affected, not the entire concept development plan.

(3) Special Use Permits

(a) Purpose. The Special Use Permit procedure is designed to provide the Board of Supervisors with an opportunity for discretionary review of requests to establish or construct uses or structures which have the potential for a deleterious impact upon the health, safety, and welfare of the public; and, in the event such uses or structures are approved, the authority to impose conditions that are designed to avoid, minimize or mitigate potentially adverse effects upon the community or other properties in the vicinity of the proposed use or structure.

(b) Authorized Special Use Permit Uses. Only those Special Use Permits that are expressly authorized as such in a particular zoning district, or elsewhere in this Ordinance may be approved.

(c) Review of Application. The Board of Supervisors may permit a Special Use Permit as part of a zoning map amendment, or by Special Use Permit procedures at any time after a zoning map amendment.

(d) An application for a Special Use Permit shall be filed, contain such material and be processed in the same general fashion as detailed for zoning amendments at §10-54(1)(c)(1) through §10-54(1)(g).

(e) Planning Commission Hearing. Prior to a decision by the Board of Supervisors each application for Special Use Permit shall be the subject of a public hearing and a recommendation made by the Planning Commission.

(f) Board Hearing. A duly noticed public hearing on an application for a Special Use Permit shall be held by the Board of Supervisors and a decision made by it within ninety (90) calendar days of the date on which the application was accepted for processing unless the applicant agrees to a longer time period.

(g) Issues for Consideration. In considering a Special Use Permit application, the following factors shall be given reasonable consideration. The applicant shall address all the following in its statement of justification or Special Use Permit plat unless not applicable, in addition to any other standards imposed by this Ordinance:

1. Whether the proposed Special Use Permit is consistent with the Comprehensive Plan.

2. Whether the proposed Special Use Permit will adequately provide for safety from fire hazards and have effective measures of fire control.

3. The level and impact of any noise emanating from the site, including that generated by the proposed use, in relation to the uses in the immediate area.

4. The glare or light that may be generated by the proposed use in relation to uses in the immediate area.

5. The proposed location, lighting and type of signs in relation to the proposed use, uses in the area, and the sign requirements of this Ordinance.

6. The compatibility of the proposed use with other existing or proposed uses in the neighborhood, and adjacent parcels.

7. The location and area footprint with dimensions (all drawn to scale), nature and height of existing or proposed buildings, structures, walls, and fences on the site and in the neighborhood.

8. The nature and extent of existing or proposed landscaping, screening and buffering on the site and in the neighborhood.

9. The timing and phasing of the proposed development and the duration of the proposed use.

10. Whether the proposed Special Use Permit will result in the preservation or destruction, loss or damage of any topographic or physical, natural, scenic, archaeological or historic feature of significant importance.

11. Whether the proposed Special Use Permit at the specified location will contribute to or promote the welfare or convenience of the public.

12. The traffic expected to be generated by the proposed use, the adequacy of access roads and the vehicular and pedestrian circulation elements (on and off-site) of the proposed use, all in relation to the public's interest in pedestrian and vehicular safety and efficient traffic movement.

13. Whether, in the case of existing structures proposed to be converted to uses requiring a Special Use Permit, the structures meet all code requirements of Montgomery County.

14. Whether the proposed Special Use Permit will be served adequately by essential public facilities and services.

15. The effect of the proposed Special Use Permit on groundwater supply.

16. The effect of the proposed Special Use Permit on the structural capacity of the soils.

17. Whether the proposed use will facilitate orderly and safe road development and transportation.

18. The effect of the proposed Special Use Permit on environmentally sensitive land or natural features, wildlife habitat and vegetation, water quality and air quality.

19. Whether the proposed Special Use Permit use will provide desirable employment and enlarge the tax base by encouraging economic development activities consistent with the Comprehensive Plan.

20. Whether the proposed Special Use Permit considers the needs of agriculture, industry, and businesses in future growth.

21. The effect of the proposed Special Use Permit use in enhancing affordable shelter opportunities for residents of the County.

22. The location, character, and size of any outdoor storage.

23. The proposed use of open space.

24. The location of any major floodplain and steep slopes.

25. The location and use of any existing non-conforming uses and structures.

26. The location and type of any fuel and fuel storage.

27. The location and use of any anticipated accessory uses and structures.

28. The area of each use; if appropriate.

29. The proposed days/hours of operation.

30. The location and screening of parking and loading spaces and/or areas.

31. The location and nature of any proposed security features and provisions..

32. The number of employees.

33. The location of any existing and/or proposed adequate on and off-site infrastructure.

34. Any anticipated odors which may be generated by the uses on site.

35. Whether the proposed Special Use Permit uses sufficient measure to mitigate the impact of construction traffic on existing neighborhoods and school areas.

(h) Conditions and Restrictions. In approving a Special Use Permit, the Board of Supervisors may impose such conditions, safeguards and restrictions upon the premises benefited by the Special Use Permit as may be necessary to avoid, minimize or mitigate any potentially adverse or injurious effect of such Special Use Permits upon other property in the neighborhood, and to carry out the general purpose and intent of this Ordinance. Conditions and restrictions may include, but are not limited to, those related to fencing, planting or other landscaping, additional set backs from property lines, location and arrangement of lighting, setting of reasonable time limitations and other reasonable requirements deemed necessary to safeguard the interest of the general public. The Board may require a guarantee or bond to ensure that conditions imposed will be complied with. All required conditions shall be set out in the documentation approving the Special Use Permit.

(i) Effect of Issuance of a Permit for a Special Use Permit. The issuance of a permit for a Special Use Permit shall not authorize the establishment or extension of any use nor the development, construction, reconstruction, alteration or moving of any building or structure, but shall merely authorize the preparation, filing and processing of applications for any permits or approvals which may be required by the codes and ordinances of the County, including, but not limited to, a building permit, a certificate of occupancy, site plan and subdivision approval and a zoning permit.

(j) Period of Validity.

1. Authorization of a Special Use Permit shall be void after two (2) years or such lesser time as the authorization may specify unless substantial construction has taken place. However, the Board of Supervisors may extend authorization for an additional period not to exceed one (1) year, upon request by the applicant.

2. If any special use authorized by this article is discontinued for a period exceeding two (2) years, it shall be deemed abandoned, and the Special Use Permit shall be void.

§10-55 PROCEDURES BEFORE THE BOARD OF ZONING APPEALS

(1) Variances

(a) Jurisdiction and Authority. Upon application, the Board of Zoning Appeals (BZA) shall exercise the jurisdiction and authority to grant a variance from the literal terms of this Ordinance in accordance with the procedures, standards, and limitations contained in this Section. This authorization shall not be construed to grant the BZA the power to rezone property.

(b) Authorized Variances. Variances, defined as reasonable deviations] from the regulations and restrictions contained in this Ordinance, may be granted by the Board of Zoning Appeals only in the following instances and in no others:

1. A variance from those provisions regulating the size or area of a lot or parcel of land.

2. A variance from those provisions regulating the size, height, area, bulk, setback, open space, yards, or location of a building or structure.

(c) Unauthorized Variance. The BZA shall not be empowered to grant a variance from any of the provisions of this Ordinance relating to the use or density of land, buildings or structures. Nor shall the BZA grant a variance for any use or activity within the floodway portion of the Floodplain Overlay district if any increase in the hundred (100) year flood elevations would result.

(d) Application for Variance. Any person owning property, or having a possessory or contract interest in property and the consent of the owner, may file an application for variance in regard to such property with the Zoning Administrator for one or more of the variances authorized above. The application shall contain the following information and such additional information as the Board of Zoning Appeals may, by rule, require or as may be required by §10-52(1):

1. The particular provisions or requirements of this Ordinance which prevent the proposed construction on, or use of, the property.

2. The existing zoning of the property, including any previously approved modifications, conditions, or proffers.

3. The special conditions, circumstances or characteristics of the land, building or structure that prevent the use of the land in compliance with the requirements of this Ordinance.

4. The particular hardship which would result if the specified provisions or requirements of this Ordinance were to be applied to the subject property.

5. The extent to which it would be necessary to vary the requirements of this Ordinance in order to permit the proposed construction on, or use of, the property.

6. An explanation of how the requested variance conforms to each of the applicable standards set out in §10-55(1)(g).

(e) Decision on Variance Application. Upon receipt of a complete application for a variance, the Zoning Administrator shall notify the BZA which shall, within ninety (90) days, hold a duly noticed public hearing thereon. Such public hearing shall be advertised in the manner provided by §15.2-2204 of the Code of Virginia, and in addition, the property shall be posted in conformity with §10-52(3). The BZA shall, after such hearing, either approve, deny or approve with conditions the application for a variance. Its decision shall be supported by findings of fact and conclusions with respect to the standards of Section 5-501.7. No such variance shall be granted by the BZA unless it makes all of the following required findings:

1. The strict application of this Ordinance would produce undue hardship to the property owner.

2. Such hardship is not shared generally by other properties in the same zoning district and the same vicinity.

3. Such variance is not contrary to the public interest nor to the intended spirit and purpose of this Ordinance.

4. The granting of such variance will not be substantial detriment to adjacent property nor change the character of the zoning district in which the property is located.

5. Such variance would result in substantial justice being done.

6. The condition or situation of the property which gives rise to the need for such variance is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to this Ordinance.

(f) Planning Commission Recommendation. The Zoning Administrator may transmit a copy of the application to the Planning Commission which may send a recommendation to the BZA or appear as a party at the hearing.

(g) Standards for Variances. The Board of Zoning Appeals shall base its required findings upon the particular evidence presented to it in each specific case where the property owner can show that:

1. The strict application of the terms of this Ordinance would effectively prohibit or unreasonably restrict the utilization of the property because of:

a. The exceptional narrowness, shallowness, size, or shape of the property at the time of the effective date of this Ordinance, or

b. The exceptional topographic conditions or other extraordinary situations or condition of the property, or

c. The condition, situation, or development of property immediately adjacent thereto;

2. The granting of such variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant.

3. The property was acquired in good faith.

4. Satisfactory evidence exists to support all of the required findings of §10-55(1)(e).

(h) Burden of Applicant. The applicant for a variance shall bear the burden of producing evidence to support the required findings of Section 5-501.5 and to establish that the requested variance satisfies the Standards for a Variance of §10-55(1)(g).

(i) Conditions and Restrictions. The BZA may impose such conditions and restrictions upon the location, character and other features of the proposed structure or use as it may deem necessary in the public interest and may require a guarantee or bond to ensure that the conditions imposed are being and will continue to be complied with. Failure to comply with any such conditions and restrictions shall constitute a violation of this Ordinance.

(j) Withdrawal of Application. A variance may be withdrawn by the applicant at any time prior to the deadline for cancellation of the newspaper advertisement for the public hearing on the application. After said deadline, an application may be withdrawn only with the permission of the BZA.

(k) Re-Application. If a variance is denied by the BZA on the merits, no application requesting the same relief with respect to all or part of the same property shall be considered by the BZA within twelve (12) months after the date of such denial.

(2) Appeals

(a) Appeals from Administrative Ruling. The Board of Zoning Appeals is authorized to hear appeals from any order, requirement, decision or determination made by the Zoning Administrator in the administration or enforcement of this Ordinance. In this capacity the Board exercises appellate jurisdiction as a quasi-judicial body, and its task is to determine what the Ordinance means and how the Ordinance applies to a particular fact situation.

(b) When Appeals May Be Taken. Appeals to the BZA may be taken by any person aggrieved by an officer, department, board or agency of the County or affected by a decision of the Zoning Administrator. Appeals shall be taken within thirty (30) days after the decision has been rendered by filing with the Zoning Administrator from whom the appeal is taken and with the chair of the BZA a notice of appeal specifying the grounds of the appeal. The Zoning Administrator shall forthwith forward to the chair of the BZA all the papers constituting the record upon which the action appealed from was taken.

(c) When Appeals to Stay Proceedings. A notice of appeal properly filed as herein provided shall stay all proceedings in furtherance of the action appealed from, unless the Zoning Administrator certifies to the BZA that by reason of facts stated in the certificate a stay would, in the Zoning Administrator’s opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed except by a restraining order which may be granted by the BZA or by a proper court order on notice to the Zoning Administrator and for good cause shown.

(d) Decisions on Appeal. Within ninety (90) days after the notice of appeal has been filed, the BZA shall hold a public hearing, give public notice thereof required by §15.2-2204 of the Code of Virginia as well as due notice to the parties in interest, decide the appeal, and file with the Zoning Administrator its findings of fact and conclusions with respect to the appeal. The Zoning Administrator shall serve a copy of the decision on the appellant and upon each other person who was a party of record at the hearing. In exercising its powers, the BZA may reverse or affirm, wholly or partly, or may modify the decision appealed from. The concurring vote of a majority of BZA members shall be necessary to reverse a decision.

(e) Withdrawal of Application. An appeal may be withdrawn by the appellant at any time prior to the deadline for cancellation of the newspaper advertisement for the public hearing on the application. After said deadline, an appeal may be withdrawn only with the permission of the BZA.

(f) Proceedings to Prevent Construction of a Building. Where a building permit has been issued and the construction of the building for which such permit was issued is subsequently sought to be prevented, restrained, corrected or abated as a violation of the zoning ordinance, by suit filed within fifteen (15) days after the start of construction by a person who had no actual notice of the issuance of the permit, the court may hear and determine the issues raised in the litigation even though no appeal was taken from the decision of the Zoning Administrator to the Board of Zoning Appeals.