OCEAN CITY – After weeks of deliberation on how to approach an issue concerning nonconforming property uses, the City Council made progress this week on what route seemed most appropriate to guide the Board of Zoning Appeals (BZA) in hearing out cases.
The ordinance on the table is to amend a chapter to change BZA procedures for appeals related to nonconforming property uses. The concern is that a shortage of safe, code compliant, low and moderate income housing exists in the city and past conversions of single-family residences to multifamily residential use provide unsafe and non-code complaint dwelling units that pose a threat to the health, safety, and welfare of the citizens.
According to the ordinance, the Mayor and City Council have decided that an applicant or appellant need to meet a more demanding burden of proof when seeking to have a nonconforming use declared lawful, but this week the council agreed to stray away from moving forward in establishing a higher standard of evidence for nonconforming use cases.
The ordinance to be amended states those hearings other than nonconforming uses the burden of proof is to be determined by the board by a preponderance of the evidence. Hearings on nonconforming uses the burden of proof is to be determined by the board by clear and convincing evidence.
This week the council sat down in an additional work session to discuss its concerns, which included lists to be provided to the BZA of acceptable evidence, such as permits or utility bills. Another concern was standards of evidence should be consistent as to either preponderance of evidence or clear and convincing evidence.
Mayor James Ireton had proposed to base nonconforming use hearing on a clear and convincing standard of evidence, and this week Council President Terry Cohen said that there has been concerns brought forward in using that method.
“Where we should focus is on the deficiencies and remedies because what we have clearly isn’t working,” Council Vice President Deborah Campbell said. “What we have seen … numerous instances where properties that are not legally conforming, or are illegally converted, are not pursued successfully so that tells me that there is a deficiency in the way that our law is written.”
Councilwoman Laura Mitchell said that she would prefer to see the standard of evidence be consistent in the city’s code.
“The way the code is currently written the burden is on the applicant and preponderance is the standard,” City Attorney Paul Wilber said. “Looking at codes across the state preponderance is the code that is used.”
Wilbur added that the practical issue is that the BZA acts as a quasi-judicial body so when it comes to understanding preponderance versus clear and convincing it is not as clear in board members’ mind as it would be for a judge.
“I think that is the one thing that has taken board’s astray is the ability to sift through the evidence to determine what evidence is and what is not evidence,” Councilman Tim Spies said. “I think the hierarchy of evidence just needs to be reiterated to the board.”
The council decided that the starting point would be training the BZA, or quasi-judicial board, in what is preponderance of evidence, burden of proof and the weight of the proof.
“It almost needs to be a plain language document that you will hand out to all quasi-judicial boards,” Wilber said.
The council discussed how much weight should be given to different forms of evidence, for example an affidavit verses a live testimony.
“On affidavits is that it goes to the weight of that piece of paper,” Wilber said. “It does not go to cross examination … I would say affidavits are considered by BZA but it’s the weight that they give them.”
He added that documentary evidence would far outweigh an affidavit.
“I think part of the problem though is the perception that has been cultivated among the board that somehow affidavits are gospel, they are really not,” Cohen said.
Wilber pointed out that there is always public library records, which should also be reviewed by the board.
“Public record like that cannot be tampered with should be held with more weight than somebody’s recollection, and I think that goes to establishing a hierarchy of decisions and guidance for members of that board in how you consider various things,” Campbell said.
Wilber said the board’s procedure in weighing evidence should begin with reviewing documentary evidence and then work its way down to public records.
“An applicant can present what proof they wish that may all be in the category of hearsay, which is allowed by administrative bodies but hearsay should not come close to how you weigh good live testimony or good documentary evidence,” he said.
Campbell said that a method if simplicity needs to be done for applicants as well.
“We need to be clear about the kind of evidence that we expect if they want to make an adequate case, and their affidavits can be in support of that evidence but can’t be absent of that evidence,” she said.
Cohen suggested allowing affidavits but make it known that a second or third piece of evidence needs to be attached as credit, and a list of acceptable evidence could be provided.
She asked the council if it felt the board’s ability to weigh evidence lies in training or if it could be accomplished by guidance through the code.
“I have seen the code run a gamut across Maryland … some of them are far more specific and put a lot of the appeals procedure actually in their ordinance,” she said.
Campbell said she would at least like to see an outline of procedure added to the code.
“You begin to lose that institutional knowledge because as boards change and if they see what they are supposed to be writing their rules, there is an act of guidance,” she said.
During the discussion, the council referred to Carroll County’s BZA code, the American law of Zoning, and the Anderson: American Law of Zoning.
Cohen pointed out that Carroll County has an interesting approach to the problem. Their nonconforming section of their zoning code, in reference to what is done about nonconforming uses includes a portion for certifications and procedures. That county’s BZA procedures are inserted directly into the code as a form of guidance.
Cohen also pointed out that the Anderson: American Law of Zoning clearly states that the burden of proof lies with the nonconforming use owner.
“I think that should lay to rest some of the concerns that were raised to us,” she said. “The issue is not that the owner of the property is being accused of necessarily having done something wrong. Sometimes people buy property and it’s been like that for a long time so this isn’t a judgment call either way on the owner of the property. It’s just a statement of fact on the property itself.”
Last Monday Ireton presented a plan for amortization that would mean gradually giving properties found to be non-conforming a time period over which they need to make the transition and conform to the city’s building and zoning codes.
This week Cohen recognized the mayor’s proposed plan but said that working with the language of the code should come first.
“Amortization was created for the process of eliminating something,” she said. “We understand the goal of what you [mayor] proposed, but we [council] feel like it is not the legally best route we should go but we hear you loud and clear, so we want to look at changing the code in other ways. I think we need to do this first, the next thing is trying to improve this process … the hope is with a better process the decision can be made earlier on and as the message gets out that these are the rules and they are going to be enforced that we will see a lot less.”