Kennebunkport City Zoning Code
ARTICLE 9
Zoning Board of Appeals.
§ 240-9.1 Appointment and composition.
A.
There shall be a Zoning Board of Appeals of seven members, all of whom shall be residents of the Town of Kennebunkport. The members of the Zoning Board of Appeals shall be appointed by the Board of Selectmen, in conformance with the provisions of 30-A M.R.S.A. § 2691.
B.
Terms of members shall be for three years, except that initial appointments shall be such that the terms of office of no more than three members shall expire in any single year. The members of the Zoning Board of Appeals shall annually elect one of their number to serve as Chair to preside at all meetings of the Board. The Board shall annually elect one of their number to serve as Vice Chair to act as Chair when the Chair is unable to serve, and to assume such other responsibilities as the Board may direct. The Board shall annually elect a secretary/recorder from its own membership, who shall provide for the keeping of the minutes of the proceedings of the Board. The minutes shall show the vote of each member upon each question. All minutes of the Board shall be public record. A quorum shall consist of four members.
§ 240-9.2 Powers and duties.
The Zoning Board of Appeals shall have the following powers and duties:
A.
Administrative appeals.
(1)
To hear and decide, on a de novo basis, where it is alleged by an aggrieved party that there is an error in any order, requirement, decision or determination made by, or failure to act by, the Code Enforcement Officer in his or her review of and action on a permit application under this chapter. The action of the Code Enforcement Officer may be modified or reversed by the Zoning Board of Appeals by a majority vote. Any notice of violation, or any order, requirement, decision or determination made, or failure to act, in the enforcement of this chapter is not appealable to the Zoning Board of Appeals. Such enforcement actions are appealable only to the courts as allowable by law and rules of civil procedure.
(2)
In hearing appeals or considering applications under this chapter, whenever there is uncertainty as to the meaning and/or intent of any part of this chapter, the Zoning Board of Appeals shall have the power to interpret such part.
B.
Variance appeals. Variances may be granted by the Zoning Board of Appeals only for lot size, lot width, frontage, height, lot coverage and setbacks and:
(1)
Only when strict application of the chapter, or a provision thereof, to the petitioner and his property would cause undue hardship; and
(2)
When the proposed structure or use would meet all the provisions of this chapter except for the specific provision(s) from which relief is sought. Variances shall not be granted for establishment of any uses otherwise prohibited by this chapter. The words "undue hardship" as used in this subsection 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.
C.
Practical difficulty variance.
(1)
Notwithstanding Subsection B, the Zoning Board of Appeals may grant a variance, but only from the dimensional standards of this chapter, when strict application of the provisions of the chapter would create a practical difficulty, as defined herein, and when all the following conditions are found to exist:
(a)
The need for a variance is due to the unique circumstances of the property, and not to the general conditions of the neighborhood;
(b)
The granting of the variance will not produce an undesirable change in the character of the neighborhood and will not have an unreasonably detrimental effect on either the use or fair market value of abutting properties;
(c)
The practical difficulty is not the result of action taken by the applicant or a prior owner;
(d)
No other feasible alternative is available to the applicant;
(e)
The granting of a variance will not have an unreasonably adverse effect on the natural environment; and
(f)
The property is not located, in whole or in part, within a Shoreland area, as defined in 38 M.R.S.A. § 435, nor within a Shoreland Zone or flood hazard zone as defined by this chapter.
(2)
The following words have the meanings set forth below:
(a)
Dimensional standards. Those provisions of this chapter which relate to lot area, lot coverage, frontage and setback requirements.
(b)
Practical difficulty. A case where strict application of the dimensional standards of the chapter to the property for which a variance is sought would both preclude a use of the property which is permitted in the zone in which it is located and would also result in significant economic injury to the applicant.
(c)
Significant economic injury. The value of the property if the variance were denied would be substantially lower than its value if the variance were granted. To satisfy this standard, the applicant need not prove that denial of the variance would mean the practical loss of all beneficial use of the land.
(3)
Except as modified above, the other provisions of Article 9 will apply to practical difficulty variances.
(4)
A practical difficulty variance may not be used to grant relief from the provisions of the land use standards of the chapter, to increase either volume or floor area, nor to permit the location of a structure, including, but not limited to, single-component manufactured homes, to be situated on a lot in a way which is contrary to the provisions of this article.
D.
Setback variance for single-family dwellings. The Zoning Board of Appeals may grant a variance from required setbacks from lot lines only, for single-family dwellings subject to the following limitations:
(1)
The Board must find that strict application of the chapter to the applicant and the applicant's property would cause undue hardship. For purposes of this subsection only, the term "undue hardship" means:
(a)
The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
(b)
The granting of a variance will not alter the essential character of the locality;
(c)
The hardship is not the result of action taken by the applicant or a prior owner;
(d)
The granting of the variance will not substantially reduce or impair the use of abutting property; and
(e)
The granting of a variance is based upon demonstrated need, not convenience, and no other feasible alternative is available.
(2)
A variance may be granted only pursuant to this subsection for a single-family dwelling that is the applicant's primary year-round residence.
(3)
A variance granted under this subsection may not exceed 20% of the applicable setback requirement.
(4)
A variance shall not be granted under this subsection if the variance would cause the area of the dwelling to exceed the maximum permissible lot coverage.
F.
Granting of variances to be handled strictly. The Zoning Board of Appeals shall limit any variances granted as strictly as possible in order to ensure conformance with the purposes and provisions of this chapter to the greatest extent possible, and in doing so may impose such conditions to a variance as it deems necessary. The party receiving the variance shall comply with any conditions imposed.
G.
Copy of application to Department of Environmental Protection. For any application within the Shoreland Zone, a copy of each variance request, including the application and all supporting information supplied by the applicant, shall be forwarded by the Zoning Board of Appeals to the Commissioner of the Department of Environmental Protection at least 20 days prior to action by the Zoning Board of Appeals. Any comments received from the Commissioner prior to the action by the Zoning Board of Appeals shall be made part of the record and shall be taken into consideration by the Zoning Board of Appeals.
H.
Conditional uses.
(1)
Conditional uses subject to Zoning Board of Appeals review under Article 4 may be approved by the Zoning 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 Zoning Board of Appeals 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:
(a)
Will meet the definition and specific requirements set forth in this chapter for such particular use;
(b)
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, glare or other cause;
(c)
Will not have a significant adverse effect on adjacent or nearby property values;
(d)
Will not result in significant hazards to pedestrian or vehicular traffic or significant traffic congestion;
(e)
Will not result in significant fire danger; and
(f)
Will not result in significant flood hazards or flood damage, drainage problems, ground or surface water contamination, or soil erosion.
(2)
In addition, when the proposed use is to be located in the Shoreland Zone or Resource Protection Zone, the Zoning Board of Appeals shall make a positive finding that the proposed use will comply with all the standards established in § 240-10.10B(1) to (8) of this chapter.
§ 240-9.3 Appeals procedure.
A.
Any person aggrieved by a decision of the Code Enforcement Officer, other than a decision or failure to act related to an enforcement-related matter as described in § 240-9.2A(1) of this chapter, may appeal that decision by filing an administrative appeal application on forms provided for that purpose with the Town Clerk within 30 days of the decision. The Board, upon showing of good cause, may waive the thirty-day requirement. Such application forms shall be used also by any person requesting a variance and by any person requesting approval of a conditional use subject to Zoning Board of Appeals review. The application form shall be completed in full, shall include:
(1)
The names and addresses of the owners of all property within 200 feet of the property in question and shall be signed by the applicant;
(2)
A concise written statement indicating what relief is requested and why the administrative appeal, variance, or conditional use should be granted; and
(3)
A sketch drawn to scale showing lot lines, location of existing buildings and structures and other physical features of the lot pertinent to the relief sought.
B.
When the Zoning Board of Appeals reviews such a decision of the Code Enforcement Officer, other than a decision or failure to act related to an enforcement-related matter as described in § 240-9.2A(1) of this chapter, in an administrative appeal, the Zoning Board of Appeals shall hold a "de novo" hearing. At this time, the Board may receive and consider new evidence and testimony, be it oral or written. When acting in a "de novo" capacity, the Zoning Board of Appeals shall hear and decide the matter afresh, undertaking its own independent analysis of evidence and the law, and reaching its own decision.
D.
The Town Clerk shall give the application immediately to the Zoning Board of Appeals, which shall schedule a public hearing within 35 days of receipt of a complete written application by the Clerk, unless this time period is extended by the parties. Upon receiving an application for an administrative appeal or a variance, the Code Enforcement Officer shall transmit to the Zoning Board of Appeals all of the papers constituting the record from which the decision was appealed.
E.
The Town Clerk shall publish a notice of the hearing in a newspaper of general circulation in Kennebunkport at least three days prior to the hearing date and publish a notice on the Town of Kennebunkport's webpage at least 10 days prior to the hearing date. The notice shall identify the property involved, the name of the applicant, the nature of the application, and the time and place of the public hearing.
[Amended 3-3-2020]
F.
A copy of the notice shall be sent by certified mail to the owners of all property within 200 feet of the property in question at least seven days in advance of the hearing. The owners of property shall be considered to be those shown on the tax lists as those against whom taxes are assessed. The Zoning Board of Appeals shall maintain as a part of the record for each case a completed list of all property owners so notified. Failure of any property owner to receive a notice shall not necessitate another hearing or invalidate the action of the Zoning Board of Appeals.
G.
The Zoning Board of Appeals shall keep a written record of all applications, noting the date the application is received, the date of the hearing, the person who presented the application at the hearing, any pertinent testimony presented at the hearing, and the finding of facts and decision of the Zoning Board of Appeals. All records of the Zoning Board of Appeals shall be maintained at the Municipal Offices in a permanent file which shall be available to the public.
H.
The Code Enforcement Officer, or his/her designated assistant, may attend all hearings, and may present to the Zoning Board of Appeals plans, photographs, or other materials which will assist the Zoning Board of Appeals in making a decision.
I.
The applicant's case shall be heard first. If the applicant is not present at the hearing, any person acting as the applicant's representative must demonstrate that he/she has written authority to appear on the applicant's behalf. To maintain orderly procedure, each side shall proceed without interruption. The person filing the appeal shall have the burden of proof. All persons at the hearing shall abide by the order of the Chair of the Zoning Board of Appeals.
J.
After the public hearing, the Zoning Board of Appeals shall make findings of fact, based on the record of the hearing, and issue a decision on the application. The applicant shall be notified in writing of the findings and decision of the Zoning Board of Appeals within seven days of the Board's decision, with copies sent to the Code Enforcement Officer, the Planning Board, and the Municipal Officers.
K.
In approving an application for an appeal, conditional use or variance, the Zoning Board of Appeals may impose reasonable conditions and restrictions, which shall then be enforceable as if part of this chapter.
L.
Except as provided by Title 30-A M.R.S.A. § 2691, Subsection 3F, any aggrieved party who participated as a party during the proceedings before the Zoning Board of Appeals may appeal to the Superior Court, as provided by law, within 45 days of the date of the vote on the decision by the Zoning Board of Appeals.
M.
Reconsideration. In accordance with Title 30-A M.R.S.A. § 2691, Subsection 3F, the Zoning Board of Appeals may reconsider any decision within 45 days of its prior decision. A request to the Board to reconsider a decision must be filed within 10 days of the decision that is being reconsidered. A vote to reconsider and the action taken on that reconsideration must occur and be completed within 45 days of the date of the vote on the original decision. Reconsideration of a decision shall require a positive vote of the majority of the Board members originally voting on the decision and proper notification to the landowner, petitioner, Planning Board, Code Enforcement Officer, and other parties of interest, including abutters and those who testified at the original hearing(s). The Board may conduct additional hearings and receive additional evidence and testimony.
N.
If the Zoning Board of Appeals grants an appeal, conditional use or variance, the applicant's legal rights, determined thereby, shall expire if any construction or alteration involved is either not commenced within one year or not substantially completed within two years of the date on which the appeal, conditional use or variance was granted.
O.
A copy of all variances granted by the Zoning Board of Appeals affecting properties in the Shoreland and Resource Protection Zones shall be submitted to the Department of Environmental Protection within seven days of the decision.
P.
The granting of a variance must be recorded in the York County Registry of Deeds within 90 days of issuance of the final written approval in order for it to be deemed valid.