1. There shall be a Board of Zoning Appeals consisting of five (5) members and one or two associate members, all of whom shall be residents of the Town of Falmouth.  The members of the Board shall be appointed by the Municipal Officers of the Town of Falmouth.  Terms of members shall be for three (3) years.  The associate members shall be appointed for a term of three (3) years and shall act on the Board in place of members who may be unable to act due to a conflict of interest, absence, or physical incapacity.  The Chairman shall designate which associate member shall serve in the stead of an absent member.  The members of the Board shall annually elect one of their number chairmen to preside at all meetings of the Board.  The members of the Board shall annually elect a secretary who shall provide for the keeping of the minutes of the proceedings of the Board, which shall show the vote of each member upon each question.
2. Neither a municipal officer nor his spouse may be a member or associate member of the Board.
3. Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting thereon shall be decided by a majority vote of the members, except the member who is being challenged.
4. A member of the Board may be dismissed for cause by the municipal officers before the expiration of his term.

Effective on: 12/9/2013

Appeals shall lie from the decision of the Building Inspector to the Board of Zoning Appeals and from the Board of Zoning Appeals to the Superior Court according to the provisions of Maine Revised Statutes.

The Board of Zoning Appeals shall have the authority to hear and decide administrative appeals where it is alleged there is an error in any order, requirements, decision, or determination made by the Building Inspector in the enforcement of this Ordinance. The action of the Building Inspector may be modified or reversed by the Board, by majority vote.

Conditional uses may be granted by the Board of Appeals after considering the characteristics and location of the proposed use and of other properties in the surrounding neighborhood, provided that the petitioner shall submit to the Board statements in writing, which may be accompanied by diagrams or photographs which shall become part of the record of such petitions, demonstrating that the proposed use:

1. will meet the definition and specific requirements set forth in this Ordinance for such particular use:
2. will be compatible with the general character of the neighborhood with regard to design, scale, and bulk of proposed structures;
3. will not have a significant detrimental effect on the use and peaceful enjoyment of abutting property as a result of noise, vibrations, fumes, odor, dust, light or glare.
4. will not have a significant adverse effect on adjacent or nearby property values;
5. will not have a significant adverse impact on water views from adjacent and nearby properties and public right of ways; [Adopted 7/24/06]
6. will not result in significant hazards to pedestrian or vehicular traffic or significant traffic congestion;
7. will not result in significant fire danger;
8. will not result in significant flood hazards or flood damage, drainage problems, ground or surface water contamination, or soil erosion;
9. will be served adequately by, but will not overburden, existing public services and facilities, including fire protection services, sanitary sewers, roads, water and storm drainage systems.
10. upon a showing that a proposed use is a conditional use in the district where it is to be located, a conditional use permit shall be granted unless the Board determines that the proposed use will not meet one of the standards set forth in paragraphs a. through i. of this subsection, or paragraphs a. through g. of subsection 19-123, due to unique or distinctive characteristics or effects associated with the proposed use or its location which differ substantially from the characteristics or effects which would normally occur from such a use in that district.  [Adopted, 4/27/87.]

Effective on: 12/9/2013

1. Variances may be granted by the Board from the restrictions imposed by this Ordinance on height, lot size, lot coverage and setback, only where strict application of this Ordinance, or a provision thereof, would cause undue hardship to the petitioner and his property.
2. The words "undue hardship" as used in this subsection mean:
   1. that the land in question cannot yield a reasonable return unless a variance is granted;
   2. that the need for a variance is due to the unique circumstances of the property and not to the general conditions of the neighborhood;
   3. that the granting of a variance will not alter the essential character of the locality; and
   4. that the hardship is not the result of action taken by the applicant or a prior owner.
3. Each petitioner for a variance shall submit to the Board statements in writing, which may be accompanied by diagrams or photographs, which shall become part of the record of such petition demonstrating the following:
   1. The nature of the hardship to the property under appeal; and the physical circumstances that allegedly would occasion such undue hardship.
   2. That such physical circumstances are peculiar to the property under appeal, and are not substantially duplicated on other property adjoining or nearly in the same neighborhood or the same zoning district.
   3. That the relief sought would not adversely affect property adjoining or nearby in the same neighborhood or the same zoning district and would not endanger the public health, safety or convenience and would not impair the integrity of this Ordinance or of the Falmouth Town Comprehensive Plan.

Effective on: 12/9/2013

Notwithstanding subsection 19-120, the Board may grant a set-back variance for a single-family dwelling when strict application of this Ordinance to the petitioner and the petitioner's property would cause undue hardship.  The term "undue hardship" as used in this subsection means:

1. The need for a variance is due to the unique circumstances of the property and not to the general conditions 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 abutting property; and
5. The granting of a variance is based upon demonstrated need, not convenience, and no other feasible alternative is available.

This subsection is strictly limited to permitting a variance from a set-back requirement for a single-family dwelling that is the primary year-round residence of the petitioner.  A variance under this subsection may not exceed 20% of a set-back requirement and may not be granted if the variance would cause the area of the dwelling to exceed the maximum permissible lot coverage.

Effective on: 12/9/2013

The Board may grant a variance to a property owner for the purpose of making that dwelling accessible to a person with a disability who is living on the property. The Board 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 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 on the property. For the purposes of this subsection, a disability has the same meaning as a physical or mental handicap under Title 5, section 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. [Amended 5/26/09]

Effective on: 12/9/2013

In hearing appeals under this Div. II-19-1-8, the Board shall determine whether the appellant's proposal will satisfy the following criteria, and in granting any appeal it may impose such conditions as it deems necessary to assure compliance with the applicable requirements set forth in subsection 19-119 and 19-120 and with the following criteria:

1. The proposal must include any special screening, fencing, or other buffer necessary to set off the subject property from abutting uses or to assure the continued enjoyment of abutting uses;
2. The proposal must adequately provide for drainage through and for preservation of existing topography within its location, particularly in minimizing any cut, fill, or paving intended;
3. The proposal must not create or increase any fire hazard or any hazards to safe, convenient pedestrian or vehicular flow;
4. The proposal must prevent or avoid the creation of any nuisance affecting adjacent properties;
5. The proposal must include provision for adequate, lawful sewage disposal and healthful domestic water supplies;
6. The proposal should not have a significantly adverse effect on adjacent or nearby property values.
7. The appellant must be found to have adequate financial and technical capacity to satisfy the foregoing criteria and to develop and thereafter maintain the proposed project or use in accordance with all applicable requirements.

Effective on: 12/9/2013

1. In all cases, a person aggrieved by a decision of the Building Inspector shall file his appeal within thirty (30) days after receipt of a written decision from the Building Inspector. The appeal shall be filed with the Town Clerk on forms to be approved by the Board, and the aggrieved person shall specifically set forth on the forms the grounds for appeal. At the time of filing of the appeal, the appellant shall pay fees fee as established by the Town Council. [Amended 8/27/07]. The Town Clerk shall promptly forward the appeal to the Board. [Amended,12/22/86]
2. The Board shall initially review any appeal filed to determine whether to entertain the appeal. The Board may refuse to entertain an appeal if it is clearly frivolous or improperly filed, or for other sufficient reason fails to present an appealable issue. The Board shall cause the appellant, or his agent or attorney if so represented, to be notified of its rejection of the appeal and its reasons therefore. If the stated deficiencies of the appeal can be cured, the appellant may re-appeal at any time.
3. The Board shall hold a public hearing on all appeals to be entertained. In appeals involving the use of buildings or lots, the Board shall notify by mail the owners of all property within five hundred (500) feet of the lots involved of the nature of the appeal and of the time and place of the public hearing thereon.
4. In the case of appeals involving lot size, lot coverage, setback, height, or other space and bulk regulations or interpretation, the following shall apply: [Amended 5/14/18]
   1. For properties located in the Water View Overlay District, the Board shall notify by mail the owners of all property within 250 feet of the property for which an appeal has been filed of the nature of the appeal and of the time and place of the public hearing thereon.
   2. For properties not located in the Water View Overlay District, the Board shall notify by mail the owners of all property abutting the property for which an appeal has been filed of the nature of the appeal and of the time and place of the public hearing thereon.
5. For the purposes of this section, the owners of property shall be considered to be the parties listed by the Assessor of Taxes for the Town of Falmouth as those against whom taxes are assessed. Failure of any property owner to receive a notice of public hearing shall not necessitate another hearing or invalidate any action by the Board.
6. A copy of each variance request in the shoreland zone, including the application and all supporting information supplied by the applicant, shall be forwarded by the municipal officials to the Commissioner of the Department of Environmental Protection at least twenty (20) days prior to action by the Board of Appeals. Any comments received from the Commissioner prior to the action by the Board of Zoning Appeals shall be made part of the record and shall be taken into consideration by the Board of Appeals. [Amended 5/26/09]
7. The appeal shall be in order for hearing at the next meeting of the Board following by at least ten (10) days the mailing of notices, including weekends and holidays, but in no event sooner than twenty-one (21) days after submission of a completed application, with all supporting documentation. A hearing shall not be continued to other times except for good cause. [Amended 12/22/86.]
8. At any hearing a party may be represented by agent or attorney.
9. The Building Inspector or his designated assistant shall attend all hearings and may present to the Board all plans, photographs, or other material he deems appropriate for an understanding of the appeal.
10. The appellant's case shall be heard first. To maintain orderly procedure, each side shall proceed without interruption. Questions may be asked through the Chair. All persons at the hearing shall abide by the order of the Chairman.
11. If the Board grants an appeal, the appellant's legal right, duties or privileges determined thereby shall expire if the construction or alteration involved is either not commenced within one (1) year or not substantially completed within two (2) years of the date on which the appeal was granted. The Board of Zoning Appeals may extend these time limits by not more than one (1) year upon a showing that additional time is needed due to required local, state, or federal permits or approvals.
12. If the Board denies an appeal, a second appeal of a similar nature shall not be brought before the Board within one (1) year from the date of the denial of the first appeal, unless a majority of the Board finds that substantial new evidence exists, or that it committed an error or mistake of law or misunderstood the facts.
13. The Board shall keep a record of each appeal filed, noting the date of filing, the date when received from the Town Clerk, the date of hearing, and the person by whom such appeal was formally presented at the hearing. The Board shall record in writing the reasons for its actions and the final disposition of each appeal entertained, and may similarly record its rejection and reasons for rejection of any request for an appeal not entertained by the Board.

Effective on: 5/14/2018

1. The Chairman shall call meetings of the Board as required. The Chairman shall also call meetings of the Board when requested to do so by a majority of the members or by the municipal officers. A quorum of the Board necessary to conduct an official Board meeting shall consist of at least four (4) members. The Chairman shall preside at all meetings of the Board and be the official spokesman of the Board.
2. The secretary shall maintain a permanent record of all Board meetings and all correspondence of the Board. The secretary shall be responsible for maintaining those records which are required as part of the various proceedings which may be brought before the Board. All records to be maintained or prepared by the secretary are deemed public, shall be filed in the municipal clerk's office, and may be inspected at reasonable times.
3. The Board may provide by rule, which shall be recorded by the secretary, for any matter relating to the conduct of any hearing, provided that any rule may be waived by the Chairman upon good cause shown.

Effective on: 12/9/2013

Whenever a proposed structure or use requires both approval as a conditional use by the Board of Zoning Appeals, and subdivision or site plan review by the Planning Board, the application shall first be submitted to and approved by the Board of Zoning Appeals. Applications that are under review by the Board of Zoning Appeals under this provision shall be considered to be pending before the Planning Board.

Effective on: 12/9/2013

Sec. 19-118.1 Mislocated Single Family Dwelling Appeal [Adopted 11/24/08]

In addition to other powers conferred by this section 19-118, the Board of Zoning Appeals shall have authority to hear and decide appeals taken from decisions made by the Code Enforcement Officer that an existing single family dwelling or its attached garage violates the setbacks for the zoning district in which it is located and that the violation must be remedied by removal or relocation of the portion of the structure which encroaches into the setback or by the acquisition of abutting property. If the Board finds that the violation exists, as found by the Code Enforcement Officer, it may nevertheless grant the appeal and render a decision that permits the existing structure to remain but shall not authorize any expansion, enlargement or relocation of the structure within the required setback area provided that the Board finds that the following criteria are met:

1. It would not serve the public interest to require the removal or relocation of the structure or the acquisition of abutting property;
2. Allowing the structure to remain in its existing location would not be contrary to the public health, safety or welfare and would not unreasonably detrimentally affect the use or market value of abutting properties;
3. The setback violation is not the result of a willful, premeditated act or of gross negligence on the part of the petitioner, a predecessor in title or agent of either;
4. The petitioner has no reasonably available alternative to this appeal.

The appeal application must be accompanied by a survey, stamped by a Maine professional licensed land surveyor, showing the property boundaries and the location of the offending structure.

Any appeal granted under this section shall be conditioned upon the petitioner’s entering into a Consent Agreement with the Town, acting through the Town Council, which provides that the Town will not bring an enforcement action with respect to the violation if the petitioner pays a civil penalty to the Town stated in the Consent Agreement. The Consent Agreement shall reference the action of the Board and shall become effective upon signing by the petitioner and the Code Enforcement Officer and payment of the civil penalty. The Consent Agreement shall be recorded at the Cumberland County Registry of Deeds by the Town.

Effective on: 12/9/2013