Division 2. Board of Appeals
*Charter references: Zoning board of appeals, § 902.
Cross references: Boards, committees, commissions, § 2-206 et seq.
State law references: Board of appeals 30-A M.R.S.A. § 2691.
Subdivision I. In General
Sec. 78-66. Organization.
The board of appeals shall annually elect a chairman and vice-chairman from its membership and shall adopt rules to govern its proceedings in accordance with this chapter.
(Ord. of 9-18-2001, § 14.1)
Sec. 78-67. Minutes.
The board of appeals shall keep minutes of all its proceedings and actions taken and the minutes shall, at a minimum show the following:
- The vote of each member upon each question.
- The absence of any member during a vote on any question.
- Abstention of a member from voting on any question because of a conflict of interest.
(Ord. of 9-18-2001, § 14.1)
Sec. 78-68. Notification of public hearing.
- Posting notice. Before making a decision on any appeal or other matter before it, a notice from the chairman of the board of appeals shall be published and posted in the town office at least ten days in advance of the public hearing.
- Abutters. The notice of the public hearing shall be sent to the owners of all properties which touch any lot line of the property which is the subject of the hearing (referred to as “the subject property”) or which is located across a street from the subject property and which touches any line which could be drawn from any part of the subject property at right angles to the street sideline opposite the subject property. The applicant shall mail the notice of public hearing by certified mail, return receipt requested, at least ten days in advance of the hearing. At the time of the hearing the applicant shall submit to the board of appeals proof of mailing in the form of certified mail receipts. Failure of the applicant to produce such proof of mailing shall cause the board to reschedule the hearing until the proper notice has been provided. For purposes of this subsection, the term “owners” means those persons identified as the owners of the property in the records of the town tax assessor.
(Ord. of 9-18-2001, § 14.2.1)
Sec. 78-69. Applications.
- A fee which shall have been determined by the town council shall be paid by the appellant prior to the public hearing as provided in this division.
- An application for a limited reduction of yard size or limited expansion of lot coverage and for the construction of nonconforming means of egress shall be accompanied by a standard boundary survey showing all lot lines of the property, the location of each existing building or structure and the location of each proposed expansion, means of egress, enlargement or new principal building or structure. The code enforcement officer may waive the requirement of the survey if he determines, in his sole discretion, that the locations of the lot lines relevant to the request for a limited reduction in yard size or expansion of lot coverage can be determined accurately without a survey.
(Ord. of 9-18-2001, § 14.2.2)
Sec. 78-70. Meetings.
- Times. Meetings of the board of appeals shall be held at the call of the chairman and at such other times as the board may determine, and they shall be open to the public.
- Quorum. A quorum shall consist of any three regular or alternate members, all of whom shall be present when any action is taken.
- Code enforcement officer’s attendance. The code enforcement officer shall attend all public hearings and may present to the board all plans, photographs, or other material he deems appropriate to a proper understanding of the appeal.
- Applicant’s case first. The applicant’s case shall be heard first. To maintain orderly procedure, each side shall proceed without interruption. Questions may be asked only through the chair. All persons at the hearing shall abide by the orders of the chairman.
- Representation by agent or counsel. At any hearing, a party may appear in person or be represented by agent or attorney.
- Rebuttal. At the discretion of the chairman, rebuttal may be permitted by any person present of any testimony presented on the opposing side.
- Expression of sentiment forbidden. The board shall not request and the chairman shall not permit, by show of hands, voice vote, or any other means, an expression of sentiment among those present of approval or disapproval of the appeal.
- Continuance of hearings. Hearings shall not be continued to other times except to obtain additional evidence which cannot be produced at the scheduled hearing and only after unanimous vote of the those members present to continue the hearing.
(Ord. of 9-18-2001, § 14.2.3)
Sec. 78-71. Recording of certificate granting variance or miscellaneous appeal approval.
Whenever the board of appeals grants a variance or miscellaneous appeal approval, the board shall prepare a certificate indicating the name of the current property owner, identifying the property by reference to the last recorded deed in its chain of title, indicating the variance or miscellaneous appeal has been granted and setting forth the date of the granting. The applicant shall record the certificate in the county registry of deeds within 90 days of approval, or the approval shall be invalid.
(Ord. of 9-18-2001, § 14.2.4)
Secs. 78-72–78-90. Reserved.
Subdivision II. Powers and Duties
Sec. 78-91. Scope.
The board of appeals shall have the powers and duties stated in this subdivision.
(Ord. of 9-18-2001, § 14.3)
Sec. 78-92. Administrative appeals.
- The board of appeals shall have the power and duty to hear and decide appeals where it is alleged there is an error in any order, decision or determination made by the code enforcement officer in writing. The board may affirm or reverse in whole or in part or may modify the code enforcement officer’s order, decision or determination. The affirmative votes of three members of the board are required to grant an administrative appeal.
- An administrative appeal may only be granted by a majority vote of the entire board.
(Ord. of 9-18-2001, § 14.3.1)
Sec. 78-93. Variance appeals.
- Generally. The board of appeals shall have the power and duty to grant variances when strict application of this chapter to the applicant’s property would cause undue hardship, as defined in section 78-1. The board of appeals may attach conditions and safeguards and may limit the variance to the minimum relief necessary to relieve the hardship.
- Conditions not applicable for issuance of variance. No nonconforming use of neighboring lands, structures or buildings in the same district or nonconforming uses of lands, buildings or structures in other districts shall be considered to be grounds for the issuance of a variance.
- Variance granted only by majority. The affirmative votes of at least three members of the board are required to grant a variance.
(Ord. of 9-18-2001, § 14.3.2)
Sec. 78-94. Miscellaneous appeals–Limited reduction of yard size; limited expansion of lot coverage.
- Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:
Limited expansion of lot coverage means the expansion of maximum lot coverage by no more than the sum of five percent of the requirement allowed in the zoning district.
Limited reduction of yard size means the reduction of a required front yard by no more than 25 percent or of a required side or rear yard by no more than 50 percent of the requirement of the zoning district in which the property is located.
Lots in residential use means a lot on which a dwelling exits on February 3, 1998 or a vacant nonconforming lot of record on which a residential dwelling is proposed.
- Authority. The board of appeals shall have the power and duty to hear and decide requests for a limited reduction of required yard size or limited expansion of lot coverage for a lot solely in residential use in order to permit:
- The expansion or enlargement of an existing building or structure; or
- The construction of a new building or structure on a vacant nonconforming lot of record.
- Vote required; conditions. A limited reduction of yard size or limited expansion of lot coverage may only be granted by a majority vote of those members present and voting and may include such conditions and safeguards as are appropriate under this chapter.
- Requirements. The applicant for a limited reduction of yard size or limited expansion of lot coverage must demonstrate the following:
- The existing buildings or structures on the lot for which the limited reduction of yard size or limited expansion of lot coverage is requested were erected prior to the effective date of the ordinance from which this section derives or the lot is a vacant nonconforming lot or record;
- The requested reduction is reasonably necessary to permit the owner or occupant of the property to use and enjoy the property in essentially the same manner as other similar properties are utilized in the zoning district;
- Due to the physical features of the lot and/or the location of existing structures on the lot, it would not be practical to construct the proposed expansion, enlargement or new structure in conformance with the currently applicable yard size or lot coverage requirements; and
- The impacts and effects of the enlargement, expansion or new principal building or structure on existing uses in the neighborhood will not be substantially different from or greater than the impacts and effects of a building or structure which conforms to the yard size requirements.
- Interpretation as variance to relieve hardship. The granting of a limited reduction of yard size or limited expansion of lot coverage pursuant to this section shall not require or be construed as the granting of a variance to relieve hardship. Notwithstanding section 78-113 the denial of a variance requested under section 78-93(b) shall not preclude a subsequent application for a limited reduction of yard size/limited expansion of lot coverage under this section, and the denial of a request under this section shall not preclude a subsequent application for a variance under section 78-93(b). If an application for a variance is pending, the town shall not accept an application for limited reduction of yard size/limited expansion of lot coverage on the same property. If an application for a limited reduction of yard size/limited expansion of lot coverage is pending, the town shall not accept an application for a variance on the same property.
(Ord. of 9-18-2001, § 14.3.3.1; Ord. of 3-7-06)
Sec. 78-95. Same–Nonconforming means of egress construction.
- (a) Generally. The board of appeals shall have the power and duty to hear and decide requests for the construction of means of egress stairways or ramps in order to permit:
- (1) The expansion of a stairway which is legally nonconforming with regard to space and bulk requirements solely to conform to the building code as adopted by the town.
- (2) The construction of a means of egress on a structure that is required by the town fire prevention code or that is required to make a structure or use accessible to a physically disabled person.
- (b) Vote; conditions. An appeal to permit a nonconforming means of egress construction may only be granted by a majority of those members present and voting and may include such conditions and safeguards as are appropriate under this chapter.
- (c) Requirements. Requirements are as follows:
- (1) The use or structure is legally nonconforming, as set forth in section 78-176, if the use or structure is nonconforming.
- (2) The requested stairway or ramp is the minimum structure, dimensionally, as required by the town building code.
- (3) Due to the physical features of the lot or location of structures on the lot, it would not be practical to construct the proposed stairway or ramp in conformance with applicable space and bulk requirements.
- (d) Interpretation as variance to relieve hardship. The granting of a request for a nonconforming means of egress pursuant to this section shall not be construed as the granting of a variance to relieve hardship. Notwithstanding section 78-113, the denial of a variance requested under section 78-93(b) shall not preclude a subsequent application a nonconforming means of egress under this section, and the denial on a request under this section shall not preclude a subsequent application for a variance under section 78-93(b). If an application for a variance is pending, the town shall not accept an application for a nonconforming means of egress on the same property. If an application for a nonconforming means of egress is pending, the town shall not accept an application for a variance on the same property.
(Ord. of 9-18-2001, § 14.3.3.2)
Sec. 78-96. Limitation of powers.
The board of appeals shall not have the power to:
- (1) Authorize the issuance of permits for conditional uses. The planning board shall have jurisdiction over conditional uses as provided in article VII of this chapter.
- (2) Grant a variance which would permit a use not allowed by the zoning district regulations.
(Ord. of 9-18-2001, § 14.3.4)
Secs. 78-97–78-110. Reserved.
Subdivision III. Appeal Procedure
Sec. 78-111. Appeals only from decision of code enforcement officer.
Administrative appeals from orders, decisions or determinations of the code enforcement officer shall be filed in the office of the code enforcement officer on forms authorized by the board of appeals no later than 30 days after the date of the written order, decision or determination from which the appeal is taken. The appeal application shall set forth in detail the grounds for the appeal. Variance appeals and miscellaneous appeals may be commenced without prior order, decision or determination made by the code enforcement officer. They shall be filed in the office of the code enforcement officer on forms authorized by the board of appeals. The application shall set forth in detail the grounds for the appeal.
(Ord. of 9-18-2001, § 14.4.1)
Sec. 78-112. Expiration of approval.
An approval granted by vote of the board of appeals under this division shall expire: (i) if a building permit is not obtained within six months of the date of approval, in those cases where the approval authorized construction activity; or (ii) if the use is not commenced and continued within six months of the date of approval, in those cases where the approval authorizes a use or a change of use. In addition, an approval granted by vote of the board of appeals which authorizes construction shall expire if the construction is not substantially completed within two years of the date of approval. The board of appeals may extend these expiration periods if a request for extension is received by the board before the expiration. These expiration periods are not tolled or stayed by the pendency of any other proceedings or permit applications for the same property.
(Ord. of 9-18-2001, § 14.4.2)
Sec. 78-113. Repetitive appeals not permitted.
If the board of appeals shall deny an appeal, a second appeal of a similar nature for the same property may not be brought before the board within one year of the date of denial by the board of the first appeal, unless, in the majority opinion of the board, substantial new evidence can be brought before the board or unless the board finds, in its sole and exclusive judgment, that an error or mistake of the law or misunderstanding of fact shall have been made.
(Ord. of 9-18-2001, § 14.4.3)