A big part of the development process, and the problem, is that the Code allows the ALJ, following a hearing, to grant variances to the Zoning regulations. These requests are rarely denied. Anyone who is willing to spend a few hundred dollars can get permission to do pretty much whatever they want.
There are very few cases in the BCZR where specific variances are prohibited, for example, BCZR §404.13, Creameries, where the limits (e.g. size of 12,000 sq ft) are not subject to the variance process. This prohibition was added at my insistence.
As quoted in virtually every order issued, the granting of a variance is subject to two things:
- "It must be shown the property is unique in a manner which makes it unlike surrounding properties, and that uniqueness or peculiarity is what necessitates the requested variance relief."
- "If variance relief is denied, Petitioner will experience practical difficulty or hardship."
"Uniqueness" is most often declared because the parcel is not a perfect flat rectangle. But I can show you one where it was a perfect rectangle, in a sea of hundreds of similar rectangles, yet was declared to be "unique". As a friend recently said "every parcel is unique". In some cases, a parcel was declared unique because it had "water frontage" or "frontage on two public streets".
I once joked to the ALJ, after a hearing, that, if he ever declared a property to be "not unique", that itself would make it "unique". He, in turn, (half) joked that, when he really felt that someone deserved a variance, he had to kind of stretch the definition, for example, deciding that it was unique because it was the "only property in the area that had a red car in the driveway". Like I said, he was only half joking, it seems. In many cases, the Order issued, while stating the parcel is "unique", does not state why.
Although most Orders quote the "general rule" as being "the authority to grant a variance should be exercised sparingly and only under exceptional circumstances", almost every variance request in Baltimore County is granted.
For example, the Order for case 2020-004-A provides a full description of the criteria for granting a variance, which the ALJ actually denied in this case. So the ALJ uses this policy as justification for occasionally denying a request, but ignores it when granting one.
Looking at the map in MyNeighborhood, there seems to be areas where up to a third of the parcels have had some zoning hearing, usually a variance, in the past. This is making a mockery of our zoning regulations and simply results in the equivalent of a hodge-podge of zones.
The following fixes should be made:
- Go through the BCZR and prohibit variances (or limit them) in most cases. Otherwise, why have limits at all?
- Limit the cases in which a parcel can be declared unique and require that the Order very explicitly explain the rational. It should pretty much rule out "shape" as a criteria, since that is usually the shape when the property was purchased.
- Severely limit the granting of set-back variances from other residential properties without the agreement of that adjoining property owner.
- Limit the application of the "practical difficulty" so that it cannot be applied when the petitioner brought the condition on themselves, for example, purchased the property with the condition which they are now claiming is a "difficulty", or converted their garage to a living room and now wanting a set-back variance to build a new garage.