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1. What Are the Standards for Granting a Variance from the Town’s Building Code?

Obtaining a variance generally is difficult. Because Town regulations are meant to be consistently applied, variances are granted only under unusual and compelling circumstances. Specifically, the Town Council may grant a variance only when the property involved is so exceptionally narrow, shallow, oddly-shaped, or topographically unusual or is subject to such extraordinary conditions that compliance with the Town’s building code is impossible, impractical, or causes undue hardship. If your property does not meet this “physical characteristics” test, the Town cannot grant a variance. Note that your personal circumstances (such as a physical disability) are not relevant to variance decisions.

If your property meets the “physical characteristics” test, the requested deviation from the building code may only be granted if the following conditions are met:

• The variance is reasonably necessary to grant relief from the property’s conditions.
• The proposed variation is the minimum needed to overcome the extraordinary conditions of the property.
• Granting the variance will not have a detrimental impact on your neighbors’ use and enjoyment of their properties.
• Granting the variance will not impair public health, safety and welfare, or the integrity of any approved general or master plan of the Town.

Please note that there are slightly different standards for granting a variance that involves the public right-of-way. See the Town Code for details or ask Town staff.

2. How Do I Apply for a Variance from the Town’s Building Code?

You must file a variance application. The forms are available at the Town Office and on the Town web site. You are required to submit documents that support the variance request. These items may include a boundary survey (required for all building variances), architectural drawings such as floor plans or building elevations, photographs, or other specifications about existing and proposed construction involved in the application. If you are not the property owner, you will be asked to provide a copy of your lease or contract that establishes your right to obtain and exercise the variance. Finally, you will be asked to provide a summary of what you expect to prove in support of your application for the variance, including the names of witnesses and the exhibits that you will produce at the public hearing. Town staff is available to answer your questions about the process and documentation need.

3. Is a Public Hearing Required for a Variance from the Town’s Building Code?

Except for administrative variances (discussed below), variance requests require a public hearing before the Town Council. At least 15 days prior to the hearing, the Town notifies your neighbors and the general public that the hearing is to take place. The public is free to attend the hearing and comment on the variance request or submit comments in writing prior to the hearing.

The applicant generally is notified of the Town Council’s decision about the variance at the hearing; however, the variance is not officially approved or denied until a written decision is approved by the Council (usually several weeks after the hearing). If the variance is granted, it may include whatever conditions the Town Council believes are needed to protect the public interest.

4. How Are Administrative Variances Handled?

Administrative variances can be granted for certain requests that involve fences and walls located either in a front yard or in the public right-of-way and for guardrails located in a front yard. They differ from regular variances only in the manner in which they are processed. Rather than the Town Council deciding on the request following a public hearing, the Mayor and Town Manager decide whether to grant an administrative variance. A variance can only be approved administratively if no objection to the approval of the variance is filed with the Town during a 15 day public comment period. If an objection to the approval of the variance is filed, the variance is required to be considered at a public hearing following the traditional variance process listed above. Administrative variances can be granted only for the following items: • New or relocated front yard retaining walls thirty (30) inches or greater in height, provided they are set back at least two (2) feet from the nearest public sidewalk in the public right-of-way or, if there is no sidewalk, at least six (6) feet from the curb; • New front yard fences measuring four (4) feet or less in height, having a fenestration of at least thirty (30) percent, not constructed of chain link, and on a corner lot abutting any street or on an interior lot abutting East-West Highway, Connecticut Avenue, or Bradley Lane; • Walls in a front yard or in a public right-of-way that replace an existing wall provided the replacement wall does not materially alter the location or increase the height or length of the wall; •  Fences in a front yard that replace an existing fence, but are ineligible for replacement due to a decrease in fenestration, provided the replacement fence does not materially alter the location or increase the height or length of the fence and the replacement fence has a fenestration of at least thirty (30) percent; and fences in a public right-of-way, provided the replacement fence does not materially alter the location or increase the height or length of the fence and the replacement fence has a fenestration of at least thirty (30) percent.• New or relocated retaining walls less than thirty (30) inches in height in a public right-of-way, provided they are set back at least two (2) feet from the nearest public sidewalk in the public right-of-way or, if there is no sidewalk, at least six (6) feet from the curb; • New, relocated, or replacement guardrails, provided the guardrail is set back at least two (2) inches from the retaining wall and located along only portions of the retaining wall measuring thirty (30) inches or more in height; • New or relocated steps, stoops, outside stairways, and their roofing; decks, terraces, porches, and their roofing; chimneys, air conditioners, and heat pumps; and/or oriel entrances, vestibules, and balconies, in a front and/or rear yard; • New or relocated bay windows in a front and/or rear yard, provided they are no more than one (1) story in height and ten (10) feet or less in width; • Additional width of six (6) feet or less for a driveway, other than a shared driveway, in a front yard and/or in a public-right-of-way; • Extension of an existing wall plane (length); or • Replacement of a structure or portion thereof, provided the location is not changed and no dimension is enlarged. You must submit the same documents to apply for an administrative variance as for a regular variance.

5. If I Obtain a Variance from the Town’s Building Code How Soon Must I Apply for a Building Permit?

Once a variance is granted, you will have 12 months to apply for a building permit. If a building permit is not applied for within 12 months, the variance approval expires. The Town Manager can grant an extension, but you must demonstrate that during the past year you have acted diligently to move the project forward and that there has been no material change in the circumstances surrounding your original application. The Town Manager can impose whatever additional conditions he or she believes appropriate when granting an extension.

6. Are the Procedures for Obtaining a Variance from the Town’s Water Drainage Regulations the Same as those for Obtaining a Variance from the Building Code?

The procedures for obtaining a variance from the Town’s water drainage regulations differ slightly from those outlined above. The primary difference is that the variance request is reviewed by the Town’s Water Board, not the Town Council. You still must file a written variance application with the Town (including the same types of supporting documentation) and present your variance request at a public hearing. The Water Board can grant the variance only if it determines that:
1) engineering difficulties exist that create an undue hardship to the applicant;
2) under the proposed variance, the objectives of the water drainage regulations are achieved as nearly as possible; and,
3) the variance will not be detrimental to any nearby property, to any public right-of-way, or to the overall purpose and intent of the Town’s regulations in this area.

7. Can I Appeal a Variance Decision?

A variance decision of the Town Council or of the Town’s Water Board can be appealed to the Maryland courts, if filed within 30 days of the decision. A variance decision of the Town Manager and Mayor (administrative variances) can be appealed to the Town Council.