# Montgomery County Code — Part II. Local Laws, Ordinances, Resolutions, Etc. ## Chapter 50. Subdivision of Land. ### Article Iv. Administration #### Division 50.9. Waivers From This Chapter **Section 9.1. Authority of Planning Board** The Board may grant a waiver from a requirement of this Chapter after making the required findings. **Section 9.2. Application** A request for a waiver must be submitted to the Board in writing, stating all facts supporting approval of a waiver. **Section 9.3. Findings** A. To grant a waiver, the Board must find that: 1. due to practical difficulty or unusual circumstances of a plan, the application of a specific requirement of the Chapter is not needed to ensure the public health, safety, and general welfare; 2. the intent of the requirement is still met; and 3. the waiver is: a. the minimum necessary to provide relief from the requirements; and b. consistent with the purposes and objectives of the General Plan. **Section 9.4. Conditions** The Board may condition the waiver approval. **Section 9.5. Procedure for Granting Waivers** A. Referral for recommendations. The Director must send a copy of each waiver request to the applicable Development Review Committee agencies for investigation, report, and written recommendation before acting on the request. For waivers requested as part of a preliminary plan or pre-preliminary plan, those agencies must submit any report and recommendation on the waiver in the timeframes required for those plans. For separate waiver requests, final recommendation must be provided to the Director within 30 days after receiving the request, or the recommendation must be treated as favorable. B. The Director must publish a report and recommendation at least 10 days before the scheduled Board hearing. A waiver request filed under this Section may be used as grounds for a request to extend the time requirements in Sections 4.2 and 8.2. C. Resolution. The Board must make its decision by resolution. D. Non-waiver of other ordinances. When granting a waiver, the Board must not change any other requirement of law. #### Division 50.10. Administrative Procedures **Section 10.1. Regulations** The Board may adopt regulations and necessary procedures under Chapter 2A, Section 15, Method (2) to administer this Chapter. **Section 10.2. Bonding and Surety** A. Guarantee of completion of improvements before recording final plat. 1. Before plat recordation, the subdivider must demonstrate to the Board or the Director that the subdivider has obtained the necessary permits and bonds or provided other surety that ensures completion of all required public and private improvements on the land covered by the plat being recorded. 2. As an alternative to the requirements of Subsection 10.2.A.1, if approved by the applicable public agency, a public improvement agreement may be executed between the applicant and the agency to ensure completion of public improvements. 3. When the subdivider or developer is required by regulations of the WSSC to record a final plat dedicating public roads in excess of a current building phase to obtain installation of water and sewer to the site, surety as required by the Road Design and Construction Code for road improvements for such excess platting may be delayed under the approved timing sequence of the proposed development approved by the applicable County agency. **Section 10.3. Establishment of Adequate Public Facilities Guidelines** A. The Council must establish by resolution, after public hearing, the process to determine the adequacy of public facilities and services. A Growth and Infrastructure Policy approved by the Council may serve this purpose if it contains those guidelines. To provide the basis for the Council resolution, the Board and the County Executive must provide the following information and recommendations to the Council: 1. the Board must provide analyses of current growth and the amount of additional growth that can be accommodated by public facilities and services. The Board must also provide recommendations of any changes in preliminary plan approval criteria it deems appropriate; and 2. the County Executive must provide comments on the Board’s analyses and recommendations and recommend criteria to determine the adequacy of public facilities. **Section 10.4. Establishment of a Development Review Committee** The Board must establish a review committee consisting of Planning Department Staff and staff of any County, State, and Federal agency; municipality; and utility companies to which a plan has been referred. The committee must meet with applicants and other interested persons to facilitate agency review of the plan, and may reconcile conflicting requirements by different agencies. Each reviewing agency must designate a representative to the committee. For the purpose of plan review, the head of any participating County agency must delegate authority to a representative to speak for the agency. **Section 10.5. Establishment of Fees** The Board must approve by resolution the fees necessary to cover the cost of administering this Chapter. **Section 10.6. Enforcement of Chapter** A. Notice of violation. 1. The Director may issue a notice of violation to a person whom the Director believes committed a violation of a Planning Board Action or this Chapter. A notice of violation issued under this Subsection must be served on the alleged violator personally, on the alleged violator’s agent at the site of the alleged violation, or by certified mail to the alleged violator’s last known address. 2. The notice of violation must contain at least the following information: a. the name of the person charged; b. the nature of the violation; c. the place where and the approximate date when the violation occurred; and d. a statement advising the alleged violator of the corrective or remedial action that must be taken and the date by which the corrective or remedial action must be completed. The corrective or remedial action may include a meeting with Planning Department Staff to establish a compliance plan. B. Administrative citation. 1. The Director may deliver an administrative citation to a person whom the Director believes committed a violation of a Planning Board Action, Director Action, or this Chapter. The Director must attest to the truth of the facts and allegations in the administrative citation. An administrative citation issued under this Subsection must be served on the alleged violator personally, on the alleged violator’s agent at the site of the alleged violation, or by certified mail to the alleged violator’s last known address. 2. The administrative citation must contain at least the following information: a. the name and address of the person charged; b. the nature of the violation; c. the place where and the approximate date when the violation occurred; d. the amount of fine assessed; e. where, when, and to whom the fine may be paid; and f. a statement advising the violator of the right to a hearing before the Board or its designee. C. Notice of hearing. 1. The Director may issue a notice of hearing to a person whom the Director believes committed a violation of a Planning Board Action, Director Action, or this Chapter. The notice of hearing must be served on the alleged violator personally, on the alleged violator’s agent at the site of the alleged violation, or by certified mail to the alleged violator’s last known address. 2. The notice of hearing must contain at least the following information: a. the name of the person charged; b. the nature of the violation; c. the place where and the approximate date when the violation occurred; and d. a statement advising the alleged violator of the date, time, and location of the hearing before the Board or its designee. D. Civil fine and penalty. 1. A citation may require the recipient to pay a civil fine for a violation of a Planning Board Action or Director Action. 2. The fine for each violation of a Planning Board Action or Director Action is the maximum allowed by the Land Use Article §23-505 of the Maryland Code for each day that the violation continues. 3. Each day that a violation has not been corrected is a separate violation, and the applicable fine may continue to accrue each day until the violation is corrected without issuing a new citation each day. 4. In addition to any other remedy under this Article, a person who violates this Chapter, a Planning Board Action, any applicable regulation or any associated agreement or restriction may be subject to an administrative civil penalty. The administrative civil penalty must not exceed 150 percent of the estimated cost to bring the violation into compliance. 5. In setting the amount of the administrative civil penalty, the Board or its designee must consider: a. the willfulness of the violation; b. the degree of deviation from the approved Planning Board Action or Director Action; c. the cost of any needed corrective action or restoration; d. any adverse impact on the immediate neighborhood and the larger community; e. the extent to which the subject violation is part of a recurrent pattern of the same or similar violations committed by the violator; f. any economic benefit that accrued to the violator or any other person as a result of the violation; g. the degree of cooperation shown, or voluntary mitigation measures taken, by the violator; h. the extent to which any other person contributed to the violation; i. the impact, if any, on the violator’s ability to perform corrective actions because of a change in ownership of the property; and j. any other relevant factor. 6. The Board, after a public hearing on the violation, must adopt a resolution specifying the amount of any administrative civil penalty and the Board’s reason for imposing the penalty. E. Nonpayment of fine. 1. If a person who receives an administrative citation does not pay the fine by the administrative citation’s due date or file a request for hearing, a notice must be sent to the person’s last known address. If the administrative citation is not satisfied within 15 days after the notice is issued, the recipient is liable for an additional fine, as specified in the notice. The additional fine must be less than twice the original fine. 2. If the fine due is not paid within 35 days from the date the notice is issued, the Board may schedule and hold a hearing. F. Hearing. 1. A person who receives a citation imposing a civil fine may elect a hearing before the Board or its designee by filing a written request for hearing with the Director. The request for a hearing must be received by the Director within 15 days after the administrative citation was issued. The filing of a request for a hearing does not stay an administrative order to stop work, stabilize a site, or stop a violation. 2. If the Director receives a request to hold a hearing under this Article, the Director must promptly schedule a hearing, unless the requestor consents to a delay, and must issue a notice of hearing. 3. The Board may assign a hearing officer, including a Hearing Examiner from the Office of Zoning and Administrative Hearings, to conduct a public hearing and submit a report and recommendation on any alleged violation of this Chapter or a Planning Board Action or Director Action. The hearing officer must submit the required report and recommendation to the Board not later than 30 days after the hearing record closes. The hearing officer may extend the time to file the report by notifying all parties. 4. After holding the hearing, the Board may impose any civil fine or administrative civil penalty authorized by this Section, and also may: a. suspend or revoke the plan that is the subject of a Planning Board Action; b. approve a compliance program that lists each remedial action that must be taken; c. require the violator to post a bond or other surety to guarantee completion of a compliance program; d. allow the violator to propose modifications to the plan; or e. take any combination of these actions. 5. All fines, penalties, or forfeitures collected under this Section must be remitted to the Board and placed in the general funds. 6. The Board may spend funds from fines and penalties for project corrections, plan enforcement or, subject to Council appropriations, other Board purposes. The Board, in its sole discretion, may spend collected fines or penalties to perform or correct some or all violations noted in an administrative citation without obligating the Board, instead of the person responsible, to correct any violation. G. Enforcement rules; conduct of hearing. 1. The Board must: a. adopt regulations to administer and enforce this Section as a method (2) regulation, subject to Council review under Chapter 2A, Section 15; and b. conduct any proceeding under this Section as provided in those regulations. H. Stop work order. 1. The enforcement agent may issue a stop work order if the enforcement agent reasonably finds that: a. a person is violating any element of a Planning Board Action; and b. the violation threatens or may threaten the public health, safety, or welfare. 2. A stop work order must include the following information as applicable: a. the name and address of the person charged; b. the nature of the violation; c. the place where and the approximate date when the violation occurred; and d. a clear statement of the action that must be taken or discontinued to cure the violation, including any requirement to prepare a plan of compliance. 3. The enforcement agent must attest to the truth of the facts and allegations in the order. 4. The enforcement agent must prominently display the order near where the violation has occurred. In addition, the enforcement agent may deliver or mail a copy of the order to the last known address of the person who secured approval of the Planning Board Action. 5. When a stop work order is posted, the recipient must immediately discontinue any further work activities until the order is rescinded. A stop work order suspends the Board approval of the entire underlying plan, unless: a. the Board approves phasing of the project; and b. the enforcement agent finds that the violation involves only: i. one or more phases of a project, but not other phases of the same project; or ii. activities on a single lot or parcel. In these instances, the order may only suspend the Board’s approval as it relates to those phases or lots where the violation exists. 6. The recipient of a stop work order may request a hearing to contest the validity of the order. If the enforcement agent finds that a hearing before the Board is not practical in a reasonable time, the Chair or Vice-Chair of the Board may review the order. A determination by the Chair or Vice-Chair has the same effect as if the Board reviewed the order. The Board or Chair, if applicable, must review the order de novo. If the violation is corrected and a plan of compliance prepared by the recipient of the order before the hearing is confirmed by the enforcement agent, the hearing must be cancelled. 7. At the Board hearing, the enforcement agent must justify to the Board the grounds and reasoning for issuing the order. The recipient must explain why the order should be discontinued and may propose a plan of compliance indicating how and when the violations will be corrected. The Board must decide if the order should be continued, modified, or rescinded, and if a plan of compliance should be approved. The Board’s decision that a stop work order must continue suspends any underlying Board approvals for the entire project or any part of the project as the Board specifies until the violation is corrected. 8. A Board decision to continue or modify an order may be the subject of a petition for judicial review to the Circuit Court under the rules for the review of administrative agency actions. 9. A stop work order must be rescinded when the Board or the enforcement agent finds that all violations specified in the order have been satisfactorily corrected, which determination must not be unreasonably withheld, or the Board approves a compliance plan that addresses any uncorrected violation. I. Other remedies. The authority in this Section to impose civil fines, administrative civil penalties, and stop work orders is in addition to any other authority of the Board to enforce its actions, including seeking injunctive, declaratory, or other relief. The decision to pursue one remedy does not preclude the Board from pursuing any other available remedy. J. Authority of the Office of the General Counsel. The General Counsel of the Maryland- National Capital Park and Planning Commission may prosecute and take any other necessary legal action regarding any violation under this Section. K. Exclusive authority. The Board or its designee has exclusive authority to enforce violations of a Planning Board Action or Director Action and any violations of this Chapter. The authority granted in this Chapter supersedes any other authority to enforce a Planning Board Action or Director Action granted to any other County or State agency. **Section 10.7. Amendment of Chapter** A. Procedures. The procedures for amending Chapter 50 must satisfy Section 23-104 of the Land Use Article, Maryland Code, and the Council Rules of Procedure. B. Hearing. A public hearing under the Council Rules of Procedure is required. C. Expiration. Any subdivision regulation introduced to amend this Chapter expires 18 months after its introduction if it is not approved.