Biddeford City Zoning Code
ARTICLE IX
Board of Appeals
Section 1 Establishment and organization.
[Ord. of 7-7-1992; Ord. No. 2002.68, 9-3-2002]
A.
A Board of Appeals is a quasijudicial body which shall consist of five voting members plus two associate members, all of whom shall be resident of the City of Biddeford. Members of the Board of Appeals shall reflect as much as possible several geographic areas of the City, and shall have diverse professional and/or employment backgrounds. In no case shall more than two members be from the same ward. Current members whose terms expire after 12/2005 shall have their term reduced to 12/2005. The term of office of a member and an associate member shall be three years, provided that those members and associate members appointed pursuant to this section shall continue in such capacity until the expiration of the term to which they are appointed, so long as they meet the qualifications of membership imposed by this section. In order to comply with the provisions of this ordinance requiring geographical balance, any current members of the Zoning Board of Appeals who reside in the same ward with more than two other members shall have their terms of office reduced to expire on June 30, 2003.
B.
A municipal officer or his spouse may not be a member or associate member of the Board of Appeals. No member shall serve more than three consecutive terms, including any term or part of a term served under any predecessor to this section. Any member appointed to fill a vacancy for which more than half of the unexpired term remains, for purposes of this provision shall be deemed to have served one full term.
C.
Three members of the board shall constitute a quorum for purposes of conducting a meeting and taking action. When a regular member of the board is unable to act because of interest, incapacity or absence, an associate member shall be designated by the Chairman to act in his/her stead. Members of the Board of Appeals shall be nominated by the Mayor and confirmed by the Council. When there is a permanent vacancy, a new member shall be appointed to serve for the remainder of the unexpired term. A permanent vacancy arises upon the death, resignation or removal of a member, or upon the failure of a member at any time during his term to meet any of the qualifications herein provided for appointment as a member. Members of the Board of Appeals may be removed from office by the Mayor, Council or board for cause after notice and hearing before the expiration of their term. Failure to attend three or more consecutive meetings of the board without excuse shall constitute cause for removal of a member.
D.
The chairman shall be appointed by the Mayor and confirmed by the Council. Annually, at its first meeting in January, the Board of Appeals shall elect a vice chairman and secretary from its own membership. The term of these officers shall be one year. The chairman may not be appointed for more than two consecutive terms. The results of the annual election shall be submitted to the municipal officers. The Chairman of the Board of Appeals is a voting member and his/her vote shall be cast at the same time as other members of the board.
Section 2 Proceedings of the Board of Appeals.
[Ord. No. 2002.68, 9-3-2002]
The Board of Appeals shall adopt rules necessary to the conduct of its affairs, and in keeping with the provisions of this ordinance, and shall also adopt Roberts Rules of Order. Meetings shall be held at the call of the chairman and at such other times as the board may determine. The Chairman, or in his absence, the acting Chairman, may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public. The Board of Appeals shall keep minutes of its proceedings, showing the vote of each member upon each question, or of absence or failure to vote, and shall keep records of its examinations and other official actions, all of which shall be a public record and be immediately filed in the offices of the Board.
Section 3 Conflicts.
[Ord. No. 2002.68, 9-3-2002]
Any questions raised by any interested party of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting shall be decided by a majority of the members present except the member who is being challenged.
Section 4 Powers and duties.
[Ord. of 12-19-1995; Ord. No. 2002.68, 9-3-2002]
Appeals shall be from decisions of the Building Inspector or Planning Board to the Board of Appeals. The Department of Environmental Protection shall be notified of the results of the appeals hearing involving land within the Shoreland Zone. Any appeal denied by the Board of Appeals may be appealed to the superior court in accordance with Maine State Rules of Civil Procedures, Rule 80B.
The Board of Appeals shall have the following powers:
A.
Administrative appeals. To hear and decide appeals where it is alleged there is a zoning violation or error in any order, requirement, decision, or determination made by the Building Inspector or Planning Board in the enforcement of this ordinance. The following procedure governs administrative appeals:
1.
When errors of administrative procedures or interpretation are found, the case shall be remanded back to the Building Inspector or Planning Board for correction.
B.
Variance appeals.
1.
The board shall hear and decide cases where a relaxation of this ordinance may be sought. Additional conditions and safeguards may be prescribed by the Board upon the applicant so as to minimize any adverse impact as a result of granting the variance. The burden of proof rests with the applicant to demonstrate that the conditions for a variance exists. A variance may be granted by the Board for undue hardship which shall be interpreted only in strict compliance with all of the following criteria and with the criteria of 30-A M.R.S.A. § 4353:
a.
That the land in question cannot yield a reasonable return unless a variance is granted; and
b.
That the need for a variance is due to the unique circumstances of the property (not desired use or personal hardship) and not to the general conditions in the neighborhood; and
c.
That the granting of a variance will not alter the essential character of the locality; and
d.
That the hardship is not the result of action taken by the applicant or a prior owner; and
e.
Relief, if granted, would not cause substantial detriment to the public good, or impair the purposes and intent of this ordinance.
2.
A variance is not justified unless all of the foregoing five criteria are present in the case. A variance is a relaxation of the dimensional requirements of this ordinance that may be granted by the Board of Appeals only where strict application of this ordinance, or a provision thereof, to the petitioner or his property, would cause undue hardship. A variance may only be granted for a permitted use or legal nonconforming use in that particular district. The Board of Appeals is prohibited from issuing a variance for a new use that is not permitted by this ordinance.
3.
In order to preserve the terms of this ordinance as much as possible, the board may impose such conditions to a variance as it deems necessary. Variances shall be the exception, not the rule. Variances which are granted shall be the minimum necessary to relieve hardship.
Section 5 Appeals to the Board of Appeals.
[Ord. No. 2002.68, 9-3-2002]
A.
Making an appeal.
1.
An appeal may be taken by any person aggrieved by a decision of the Building Inspector or Planning Board to the Board of Appeals within 30 days of such decision, and not otherwise, except that the Board, upon a showing of good cause, may waive the thirty-day requirement.
2.
Such appeal shall be made by filing with the Board of Appeals a written notice of appeal, specifying the grounds for such appeal.
3.
For a variance appeal the applicant shall submit:
(a)
A sketch drawn to scale showing lot lines, location of existing building and other physical features pertinent to the variance request.
(b)
A concise written statement stating what variance is requested.
(c)
A written response to the five criteria which determine undue hardship.
(d)
All documentary evidence shall be submitted at the time of application. Such documentary evidence, along with oral testimony, shall constitute the record of the board's hearing. No documentary material submitted at the hearing shall be reviewed by the board or made part of the record.
4.
Upon being notified of an appeal, the Building Inspector shall forthwith transmit to the Board and Planning Board all the papers specifying the record of the decision under appeal. Each appeal shall be accompanied by a check for $50 to cover advertising and administrative costs. If the actual cost of advertising exceeds $50, the applicant shall pay the balance. The Board of Appeals shall hold a public hearing on the appeal. For appeals involving the issuance of a building permit, the Building Inspector shall issue a cease and desist order.
B.
Procedure on appeal.
1.
least 10 days prior to the date of the hearing the Board shall cause written notice be provided to all property owners of record whose properties lie within 200 feet of the affected property, and/or immediate abutters and property owners across the street or stream; the person making the appeal; and the Planning Board and any other parties of record. Such written notice shall include:
[Amended 3-5-2019 by Ord. No. 2019.14]
(a)
The name of the person appealing;
(b)
A brief description of the property involved;
(c)
A brief description of the decision under appeal, or the nature of the variance appeal; and
(d)
The time and place of the Board's hearing.
The failure of a property owner to receive notice of the hearing shall not invalidate the hearing or the decision of the Board of Appeals.
3.
Hearings.
(a)
The Board may receive any oral or documentary evidence but shall provide as a matter of policy for the exclusion of irrelevant, immaterial or unduly repetitious evidence or hearsay evidence. Every party shall have the right to present his case or defense by oral or documentary evidence, and to submit rebuttal evidence.
(b)
The appellant's case shall be heard first. To maintain orderly procedure, each side shall proceed without interruption. All persons at the hearing shall abide by the order of the Chairman.
(c)
At any hearing, a party may be represented by agent or attorney. Hearings shall not be continued to other times except for good cause as determined by the Board. If a hearing is tabled and rescheduled, proper notice shall be sent to the appellant and abutters and/or property owners of record within 200 feet.
(d)
The Building Inspector or his designated assistant shall attend all hearings and may present to the Board of Appeals all plans, photographs, or other material he deems appropriate for an understanding of the appeal.
(e)
The transcript of testimony, if any, and exhibits, together with all papers and requests filed in the proceedings, shall constitute the record. Proposed findings of fact may be submitted by any party, but shall not be considered as evidence.
(f)
The Board of Appeals may go into executive session only upon a three-fifths vote of the members present and voting. A motion to go into executive session shall indicate the precise nature of the business of the executive session. No other matters may be considered in that particular executive session. An executive session may be held only for the following purposes. No other matters may be considered in executive session.
(1)
Consultations between the Board of Appeals and its attorney concerning the legal rights and duties of the Board, pending or contemplated litigation, settlement offers and matters where the duties of the Board's counsel to his client pursuant to the code of professional responsibility clearly conflict with the requirements of the Public Right to Know Law, 1 M.R.S.A. §§ 401 through 410, or where premature general public knowledge would clearly place the board at a substantial disadvantage.
(2)
Discussions of information contained in records made, maintained or received by a body or agency when access by the general public to those records is prohibited by statute.
Section 6 Decisions of the Board of Appeals.
[Ord. No. 2002.68, 9-3-2002]
A.
The concurring vote of a majority of the membership of the Board shall be necessary to reverse any order, requirement, decision, or determination of Building Inspector, or to decide in favor of the applicant on any matter on which it is required to pass under this ordinance, or to affect any variation in the application of this ordinance.
B.
The Board shall decide all appeals within 30 days after the conclusion of the hearing, and shall issue a written decision on all appeals. A two-to-two vote is a denial.
D.
Notice of any decision shall be mailed or hand delivered to the petitioner, his representative or agent, the Planning Board, agency or office and the municipal officers within seven days of the decision date.
E.
Upon notification of the granting of an appeal by the Board of Appeals, the Building Inspector shall immediately issue a permit in accordance with the conditions of the approval, unless the applicant needs a conditional use permit.
F.
All decisions of the Board of Appeals are final. Appeals may be taken as permitted by law from any decision of the Board of Appeals to superior court.
G.
When a variance is granted, the recipient must apply within one month for a building permit to carry out the terms of the variance, or the variance becomes void.
Section 7 Stay of proceedings.
[Ord. No. 2002.68, 9-3-2002]
An appeal stays all legal proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life and property. In such case proceedings shall not be stayed otherwise than by a court of record on application, on notice to the officer from whom the appeal is taken, and on due cause shown.
Section 8 Rehearing.
[Ord. No. 2002.68, 9-3-2002]
The Zoning Board of Appeals shall not entertain a second application for a variance, conditional use or administrative appeal concerning the same property after the previous application was denied unless two years have passed or there is substantial change in the relief requested. The board shall determine if the requested relief in the second application is substantially different from that requested in the first. The determination shall be made by looking at the physical dimensions of the request only.