Boothbay Harbor City Zoning Code
ARTICLE X
Appeals
§ 170-108 Board of Appeals.
A.
Establishment and composition. The Board of Selectmen shall make appointments to a Board of Appeals as specified in 30-A M.R.S. § 2691, or as amended. The Board of Appeals shall consist of five members and two alternate members, each of whom shall be a resident of Boothbay Harbor. The terms of office shall be three years. When there is a permanent vacancy, the municipal officers may, within 60 days of its occurrence, appoint a qualified person to serve for the unexpired term. A vacancy in the office of a member shall be filled for the unexpired term only. A vacancy shall occur upon the resignation or death of any member or when a member ceases to be a voting resident of the Town or when a member or alternate member fails to attend four consecutive regular meetings or fails to attend at least 75% of all meetings during the preceding twelve-month period. When a vacancy occurs, the Chair shall immediately so advise the municipal officers, in writing. The Board may recommend to the municipal officers that the attendance provision be waived for cause, in which case no vacancy will then exist until the municipal officers disapprove the recommendation. Neither a Selectman, member or alternate member of the Planning Board, nor spouse of a member or alternate member of the Planning Board may be a member or alternate member of the Board of Appeals. No business of the Board shall be transacted under this article unless three members are present. Any member of the Board may be removed for cause by the Selectmen upon written charges and after public hearing. The members of the Board of Appeals shall receive no compensation for their services. The Board shall select a Chair and Secretary from its own membership and shall adopt from time to time such rules and regulations as it may deem necessary to carry out the duties conferred on it by this article. The Chair, or in the absence of the Chair, the member of the Board acting as Chair for that meeting, shall designate which alternate member shall serve in place of the absent member who shall function as a full voting member of the Board for that meeting.
[Amended 5-4-2024 ATM by Art. 19]
B.
Minutes of proceedings. The Board of Appeals shall keep minutes and a recording of its proceedings, recording the vote of each member upon each matter coming before the Board for the vote and indicating the absence or failure to vote, as the case may be, of any member. The minutes of the Board's proceedings and all correspondence required by this article to be made by the Board shall be a public record.
C.
Conflicts of interest. Members of the Board of Selectmen, Planning Board members and the Code Enforcement Officer or any of their spouses shall not simultaneously serve on the Board of Appeals. Any questions of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting thereon shall be decided by a majority of the members except the member who is being challenged.
D.
Power and duties.
(1)
Appeals shall be from decisions of the Code Enforcement Officer to the Board of Appeals except that, for site plan review and subdivision review, the appeal shall be from the decision of the Planning Board to the Board of Appeals. For any variance granted from the requirements of the shoreland zoning regulations,[1] the Department of Environmental Protection shall be notified within 14 days of the decision. 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.
[Amended 5-8-2010 by ATM Art. 73]
(2)
The Board of Appeals shall have the following powers and duties:
(a)
Administrative appeals to hear and decide where it is alleged there is an error on any order, requirement, decision, or determination made by the Code Enforcement Officer or by the Planning Board. When the Board of Appeals hears an appeal of a decision of the Code Enforcement Officer or the Planning Board, it shall hold an appellate hearing, and may reverse the decision of the Code Enforcement Officer or the Planning Board only upon finding that the decision was contrary to specific provisions of the article or contrary to the facts presented in the record to the Code Enforcement Officer or the Planning Board. The Board of Appeals may only review the record of the proceedings before the Code Enforcement Officer or the Planning Board at the time that it reached the decision under appeal. The Board of Appeals shall not receive or consider any evidence which was not presented to the Code Enforcement Officer or the Planning Board at that time. The Board of Appeals may receive and consider written or oral arguments.
[Amended 5-3-2008 by ATM Art. 88; 5-6-2023 ATM by Art. 21]
(b)
Site plan review: to hear and decide on appeals of any action taken by the Planning Board with respect to site plan review. (See Article V, § 170-80.) The Board of Appeals' jurisdiction shall be limited to hearing requests for a variance from a dimensional requirement, to interpreting the meaning of terms which are called into question, and to hearing a request to determine if the Planning Board acted in accordance with the procedures of Article V. The Board of Appeals shall not have the authority to substitute its judgment for that of the Planning Board with respect to any of the standards of Article V.
(c)
Variance appeals: to hear and decide, in specific cases, variance from the terms of this article, as defined and limited as follows: A variance is not justified unless all elements are present in the case.
[1]
Variances may be granted only from dimensional requirements, including but not limited to lot width, structure height, percent of lot coverage and setback requirements, except for minimum setbacks from a wetland or water body required within shoreland zones. (See § 170-110.)
[2]
Variances shall not be granted for establishment of any uses otherwise prohibited by this Land Use Code.
[3]
The proposed structure or use would meet the provisions of this Land Use Code except for the specific provision from which relief is sought.
[4]
The strict application of the terms of this Land Use Code would result in undue hardship. The term "undue hardship" shall mean:
[a]
That the land in question cannot yield a reasonable return unless a variance is granted;
[b]
That the need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
[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.
(d)
Interpretations: to interpret the provisions of this Land Use Code in specific instances where either the Board of Selectmen, Planning Board, Code Enforcement Officer or a private party who may be adversely affected by these provisions requests the Board of Appeals to clarify the meaning and intent.
(e)
Subdivision review: to hear and decide on appeals of any action taken by the Planning Board with respect to subdivision review. (See Article IX, §§ 170-103 to 170-107.) The Board of Appeals' jurisdiction shall be limited to hearing a request to determine if the Planning Board acted in accordance with the procedures of Article IX. The Board of Appeals shall not have the authority to substitute its judgment for the Planning Board with respect to any of the standards of Article IX.
[Added 5-8-2010 by ATM Art. 73]
§ 170-109 Appeals and variance procedure.
[Amended 5-2-2009 by ATM Art. 99; 6-20-2022 by ATM Art. 22; 5-4-2024 ATM by Art. 20]
A.
Filing of appeal or variance.
(1)
In all cases, a party aggrieved by a decision of the Code Enforcement Officer and/or the Planning Board shall file an appeals appeal or variance request within 30 days of the action complained of.
(2)
The request for appeal or variance shall be filed with the Code Enforcement Officer.
(3)
The appeal or variance filed must include:
(a)
A concise written statement indicating what relief is requested, and why it should be granted, and what Article of this Land Use Code is involved.
(b)
A sketch drawn to scale showing lot lines, location of existing and proposed buildings and structures, contours at realistic intervals, and other physical features of the lot pertinent to the relief sought.
(c)
The names and addresses of abutting property owners.
(4)
In all administrative appeals, the record on appeal shall consist of the decision or other action being appealed, the application (if any) on which the decision or other action was taken, and all correspondence, exhibits, and other material filed by or with the Code Enforcement Officer or the Planning Board. It shall be the responsibility of the appellant to provide a complete record to the Board of Appeals no later than 14 days in advance of any hearing on the appeal. The appellant shall be responsible for the costs of producing the record on appeal. In all appeals and variances, additional information deemed necessary by the Board of Appeals to make a fair and equitable decision shall be supplied by the applicant upon request. In all cases, unless otherwise directed by the Board of Appeals, 10 copies of all materials submitted shall be delivered to the Code Enforcement Officer for distribution to the Board of Appeals.
(5)
The application must be signed by the applicant.
(6)
All variances and administrative appeals by an aggrieved party shall be accompanied by a fee payable to the Town of Boothbay Harbor as established by the Boothbay Harbor Board of Selectmen, including also costs necessary to advertise the hearing twice in the local newspaper and to notify abutters via certified mail.
B.
Notification.
(1)
Notification of Town officials. The Code Enforcement Officer shall notify the Board of Appeals and the Planning Board of the request. The Code Enforcement Officer shall advertise the appeals request in the local newspaper two consecutive weeks and at least 14 days before a hearing is scheduled, and such hearing shall be held within 30 days of its request.[1]
[1]
Editor's Note: Subsection B(2), Notification of Department of Environmental Protection, added 5-1-2006 by ATM Art. 87, which immediately followed this subsection, was repealed 5-2-2009 by ATM Art. 99.
C.
Notification of abutters. The Code Enforcement Officer shall notify, by certified mail only, the owners of property abutting the appellant's property and directly across the public rights-of-way, including waterways (500 feet or less), for which an appeal is requested, of the nature of the request and of the date, time and place of the public hearing thereon. Failure of any property owner to receive a notice of public hearing shall not necessitate another hearing or invalidate any action by the Board of Appeals.
D.
Code Enforcement Officer involvement. The Code Enforcement Officer shall attend all hearings and may present to the Board all plans, photographs or other material s/he deems appropriate for an understanding of the appeal.
E.
Planning Board. The Board of Appeals, where it deems appropriate, may request the Planning Board to review an appeals request and file an advisory opinion with the Board of Appeals. Any such advisory opinion shall be requested in a timely fashion in order that it may be read into the record at the Board of Appeals hearing.
F.
Quorum. To act on any appeal, a quorum of at least three members must be present at any hearing.
G.
Notice of decision. The Code Enforcement Officer shall send a copy of the written notice of the decision to the appellant, the Planning Board and the Maine Department of Environmental Protection if within the Shoreland Zoning District. A notice of the decision must be published in the local newspapers within 15 days of the date of the hearing and within seven days of the decision.
H.
Repetitive appeals. If the Board shall deny any appeal, another appeal of a similar nature shall not be brought before the Board within one year from the date of the denial unless, in the opinion of a majority of the Board, substantial new evidence shall be brought forward or unless the Board finds, in its sole and exclusive judgment, that an error or mistake of law or misunderstanding of facts had been made.
I.
Planning Board jurisdiction. In all appeals where the Planning Board has jurisdictional review, such review shall be conducted prior to the Board's hearing of the appeal.
J.
Appeals to Superior Court. Any aggrieved party who participated as a party during the proceedings either before the Board of Appeals or in writing before a decision is reached may take an appeal to Superior Court in accordance with state laws within 30 days from the date of any decision of the Board of Appeals.
§ 170-110 Additional restrictions in areas subject to shoreland zoning.
Additional restrictions in areas subject to Article VIII, regarding shoreland zoning as are follows:
A.
Variances from the minimum setback requirements may only be approved for a single-family dwelling which serves as the primary year-round residence of the petitioner and may not exceed 20% of the required setback. Variances of greater than 20% may only be approved by the Board of Appeals with the written consent of an affected abutting landowner.
B.
In the case of a variance requested from setbacks, the Board shall not grant a variance unless it finds that undue hardship, as defined in 30-A M.R.S.A. § 4353, Subsection 4-B, would result from the strict application of the terms of the setback requirements of this Land Use Code. In this specific instance only, "undue hardship" means:
(1)
The need for a variance is due to the unique circumstances of the property and not to the general condition of the neighborhood;
(2)
The granting of a variance will not alter the essential character of the locality;
(3)
The hardship is not the result of action taken by the applicant or a prior owner;
(4)
The granting of the variance will not substantially reduce or impair the use of the abutting property; and
(5)
The granting of a variance is based upon demonstrated need, not convenience, and no other feasible alternative is available.
C.
A copy of all variances granted under this section by the Boothbay Harbor Zoning Board of Appeals shall be submitted to the Department of Environmental Protection within 14 days of the decision.
§ 170-111 Additional restrictions in areas subject to floodplain management.
The Board of Appeals of the Town of Boothbay Harbor may, upon written application of an aggrieved party, hear and decide appeals from determinations of the Code Enforcement Officer and the Planning Board in the administration of the provisions of Article VII of this Land Use Code. The Board of Appeals may grant a variance from the requirements of Article VII of this Land Use Code consistent with state law and the following criteria:
A.
Variances shall not be granted within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.
B.
Variances shall be granted only upon:
(1)
A showing of good and sufficient cause; and
(2)
A determination that should a flood comparable to the base flood occur, the granting of a variance will not result in increased flood heights, additional threats to public safety or public expense or create nuisances, cause fraud or victimization of the public or conflict with existing local laws or ordinances; and
(3)
A showing that the existence of the variance will not cause a conflict with other state, federal or local laws or ordinances; and
(4)
A determination that failure to grant the variance would result in undue hardship, which in this section means:
(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 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.
C.
Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
D.
Variances may be issued for new construction, substantial improvements or other development for the conduct of a functionally dependent use, provided that:
E.
Variances may be issued for the repair, reconstruction, rehabilitation or restoration of historic structures upon the determination that:
(2)
The proposed repair, reconstruction, rehabilitation or restoration will not preclude the structure's continued designation as an historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.
F.
Any applicant who meets the criteria of Subsections A through E shall be notified by the Board of Appeals, in writing, over the signature of the Chair of the Board of Appeals, that:
[Amended 5-4-2024 ATM by Art. 19]
(1)
The issuance of a variance to construct a structure below the base flood level will result in greatly increased premium rates for flood insurance up to amounts as high as $25 per $100 of insurance coverage;
(2)
Such construction below the base flood level increases risks to life and property; and
(3)
The applicant agrees, in writing, that the applicant is fully aware of all the risks inherent in the use of land subject to flooding, assumes those risks and agrees to indemnify and defend the municipality against any claims filed against it that are related to the applicant's decision to use land located in a floodplain and that the applicant individually releases the municipality from any claims the applicant may have against the municipality that are related to the use of land located in a floodplain.
G.
The Board of Appeals shall submit to the Board of Selectmen a copy of the decision, including justification for the granting of the variance and to the Code Enforcement Officer authorization to issue a flood hazard development permit, which includes any conditions to be attached to said permit.
§ 170-112 Disability variances.
The Board of Appeals may grant a variance to an owner of a dwelling for the purpose of making that dwelling accessible to a person with a disability who resides in or regularly uses that dwelling. The Board of Appeals shall restrict any variance granted under this subsection solely to the installation of equipment or the construction of structures necessary for access to or egress from the dwelling by the person with the disability. The Board of Appeals may impose conditions on the variance, including limiting the variance to the duration of the disability or to the time that the person with the disability lives in the dwelling. For the purposes of this subsection, a disability has the same meaning as a physical or mental handicap under 5 M.R.S.A. § 4553, and the term "structures necessary for access to or egress from the dwelling" is defined to include railing, wall or roof systems necessary for the safety or effectiveness of the structure.