Saco City Zoning Code
ARTICLE XVI
Zoning Board of Appeals
§ 230-1601 Organization.
A.
Establishment. The City of Saco Zoning Board of Appeals, hereinafter the "BoA," is hereby created, which BoA shall consist of seven regular members and two alternates, who shall be appointed by the Mayor, subject to confirmation by the City Council, none of whom shall hold any elective office or any other appointive position in the City government. The BoA shall elect a Chair and a Secretary from its members.
B.
Quorum. A quorum shall consist of four members. All decisions by the BoA shall be by a majority vote by members present and voting at the meeting, but under no circumstances shall fewer than three members comprise a majority. Alternates shall vote only in the absence of regular members. In the event of the absence of a regular member or member(s), the alternate who has served the longest time shall fill the first vacancy, and the other alternate shall fill the second vacancy. In the event that both alternates shall have served the same period of time, selection of an alternate shall be at the discretion of the Chair.
§ 230-1602 Terms of office; vacancies.
A.
Terms. The term of the members shall be five years, and terms shall be staggered with twelve-month intervals. Any vacancy during the unexpired term of a member shall be filled for the remainder of the term.
B.
Vacancies.
(1)
Vacancies on the BoA occur under the following circumstances:
(a)
A member submits their resignation in writing to the Mayor.
(b)
A member's official residence is no longer within the City of Saco, in which instance the Secretary of the BoA shall notify the Mayor.
(c)
Upon expiration of the term of a member.
(d)
A member fails to attend three or more consecutive meetings of the BoA, without being excused by the BoA.
(2)
In the case of vacancies occurring in the manner described in Subsection B(1)(d) above, the Chair shall first contact the absent member to determine their ability to attend future hearings on a regular basis. The BoA shall then recommend appropriate action to the City Council.
(3)
A vacancy during the unexpired term of a member shall be filled by a person appointed by the Mayor for the duration of the unexpired term.
(4)
A member of the BoA may be removed for cause by the City Council, provided that the member shall first be notified in writing and given the opportunity for a hearing.
§ 230-1603 Powers and duties.
The BoA shall hear the following matters:
A.
Administrative appeals from decisions by the CEO. An aggrieved party may appeal a decision of the CEO regarding a zoning violation, a building permit or a certificate of occupancy in those cases where it is alleged the CEO has made an error of law, or has abused their discretion, or the evidence of record compelled a different decision. An aggrieved party may also appeal to the BoA if a permit holder has meaningfully exceeded the authority granted in their building permit or their certificate of occupancy. An appeal filed hereunder must be brought within 30 days of the alleged act, action or failure to act. This provision is intended to effectuate the process set out by the Legislature in 30-A M.R.S.A § 2691(4). The appeal review shall be de novo as set out below in § 230-1605G. The BoA may affirm, reverse or modify the decision of the CEO, and that decision may be appealed as set out in this article.
B.
Variances from decisions by the CEO.
(1)
The BoA has authority to approve, approve with conditions, or deny applications for variances from decisions made by the CEO regarding standards of this chapter as allowed under this article. The review conducted by the BoA on such variances shall be de novo as set out below in this article. Such decisions by the BoA may be appealed as set out in this article.
C.
Variances from historic preservation conditions. The BoA shall have authority to approve, approve with conditions, or deny applications for variances as further detailed in Article XIX. The review conducted by the BoA shall be de novo as set out below in this article.
D.
Historic preservation commission. The BoA may hear appeals of decisions made by the Historic Preservation Commission. A decision by the Historic Preservation Commission on an application for a certificate of appropriateness may be appealed, in writing, to the BoA within 30 days of the Commission's decision. The BoA may affirm the decision, or it may reverse the Commission's decision upon a finding that there has been an error of law or that the facts leading to the decision of the Commission were erroneous. The review made by the BoA shall be appellate. If the BoA reverses the decision of the Commission, it shall be remanded to the Commission for further consideration, but not more than once. Thereafter, the parties shall have their appeal rights as allowed under this article.
E.
Shoreland and natural resource district variances. The BoA shall have authority to approve, approve with conditions, or deny applications for a variance from shoreland and natural resource standards set out in Article VIII of this chapter. The review conducted by the BoA shall be de novo as set out in this article.
§ 230-1604 Variances.
A.
Applicability. A variance is authorized only for the following space and bulk requirements:
(1)
Minimum lot area.
(2)
Lot area per dwelling unit.
(3)
Minimum street frontage.
(4)
Minimum yards and setbacks.
(5)
Maximum lot coverage.
(6)
Maximum height.
(7)
On lots divided by district boundaries, the extension of uses allowed in the less-restricted zone more than 50 feet into the more-restricted zone.
(8)
Curb cut standards.
(9)
Sign standards.
B.
Establishment or expansion of a use otherwise prohibited shall not be allowed by variance, nor shall a variance be granted because of the presence of nonconforming structures in the particular zone or adjoining zones.
D.
Standards for a variance.
(1)
That strict application of the ordinance to the petitioner and the petitioner's property would cause undue hardship. The term "undue hardship" shall mean specifically that:
(a)
The land in question cannot yield a reasonable return unless a variance is granted;
(b)
The need for the variance is due to unique circumstances of the property and not to the general conditions of the neighborhood;
(c)
That the granting of the variance will not alter the essential character of the locality; and
(d)
The hardship is not the result of action taken by the applicant or a prior owner.
(2)
No variance shall be granted merely to relieve inconvenience to the property owner or for economic considerations alone.
(3)
Any variance granted by the BoA shall be the minimum variance from the terms of this chapter as will relieve the hardship pleaded.
E.
Special standards for certain variances for single-family dwellings.
(1)
Pursuant to 30-A M.R.S.A § 4353, Subsection 4B, the BoA may also grant setback variances for single-family detached dwellings under the alternate definition of "undue hardship" below. Variances granted under this section are limited to single-family detached dwellings that are the primary year-round residence of the petitioner, and are subject to the following:
(a)
Variances in front yard or side yard and rear yard, not to exceed 20% of the setback requirement;
(b)
Variances granted under this subsection shall not cause the area of the dwelling to exceed the maximum lot coverage permitted in the district;
(c)
Variances granted under this subsection shall be the minimum variance needed; and
(d)
Variances granted under this subsection shall not cause the house which receives the variance to be within 10 feet of an occupied building on the adjacent lot.
(2)
Prior to voting to grant a variance, the BoA shall review the application and find that all of the following standards of the alternative definition of "undue hardship" for this subsection have been met:
(a)
The need for the variance is due to unique circumstances of the property and not to the general conditions of 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.
F.
Disability variance. The BoA 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 the dwelling.
(1)
The BoA shall restrict any variance granted under this section 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.
(2)
The BoA 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, 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.
G.
Standards for a variance in shoreland areas.
(1)
A copy of each variance request, 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 20 days' prior to action by the BoA. Comments received from the Commissioner prior to the action by the BoA shall be made part of the record and shall be taken into consideration by the BoA.
(2)
Prior to voting to grant a variance within the mandated shoreland area, the BoA shall, in addition to the undue hardship standards in Subsection D above, find that the proposed variance:
(a)
Will not result in unsafe or unhealthful conditions;
(b)
Will not result in erosion or sedimentation;
(c)
Will not result in water pollution;
(d)
Will not result in damage to spawning grounds, fish, aquatic life, bird, and other wildlife habitats;
(e)
Will conserve shoreland vegetation;
(f)
Will conserve visual points of access to waters as viewed from public facilities;
(g)
Will conserve actual points of public access to waters;
(h)
Will conserve natural beauty; and
(i)
Will avoid problems associated with floodplain development and use.
(3)
The BoA shall cause written notice of its decision to be mailed or hand-delivered to the applicant and to the Department of Environmental Protection within seven days of the BoA's decision.
H.
Conditions of approval. The BoA may impose such conditions on its approval of a variance as are necessary, in its judgment, to protect surrounding property owners or the City from adverse impacts resulting from the variance.
I.
Limits on variances. A variance granted by the BoA shall expire if the work or change involved is not commenced within six months of the date on which the variance was granted or if the work or change is not substantially completed within a twelve-month period, unless extended by the BoA.
J.
Prior work. Any construction activity commenced prior to the granting of a required variance shall be a violation of this chapter.
§ 230-1605 Procedures.
A.
Application for a variance. Application to the BoA for a variance shall be submitted to the CEO on forms provided for that purpose, accompanied by a fee as may be established by the City Council for such applications. The application shall clearly state the location of the property, the relief sought, and the reason(s) for requesting the variance.
B.
Denial of building permit. All applicants for building permits denied for any reason shall be advised, in writing, of the right of appeal.
C.
Application for a variance and filing of an appeal.
(1)
An appeal or application for a variance shall be commenced as set forth below in Subsection C(2).
(2)
Such appeal or application for a variance shall include the following information:
(a)
A concise, written statement indicating what relief is requested and why it should be granted.
(b)
A description of the regulation, ordinance provision, or permit that is subject to review or from which relief is requested.
(c)
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.
(d)
If applicable, a demarcation on the sketch showing low tide and mean high tide and designating the one-hundred-year flood area, wetlands, shorelines, or other pertinent natural features.
(e)
If applicable, color pictures of the exterior features at issue if the appeal or variance concerns a structure found in the Historic District.
(3)
Upon being notified of an appeal or of an application for a variance, the CEO or designee shall arrange to secure and transmit to the BoA all of the papers and evidence constituting the record of the decision that is to be reviewed.
D.
Public hearing required.
(1)
For all appeals from decisions of the CEO, for all requests for any variance, the BoA shall hold a public hearing, but the BoA shall only take and hear new evidence or testimony in those matters where de novo review is expressly permitted. The BoA will hear argument from the parties only when it conducts appellate review, and oral argument will be limited to the record of proceedings before the Planning Board. The hearing shall be held within 35 days of the receipt of an appeal or application for variance.
(2)
The BoA shall cause public notice to be posted and published in both the City Building and at least one newspaper of circulation in the area, of any public hearing which the BoA shall conduct, indicating the property involved, the nature of the appeal, and the time and place of the public hearing.
(3)
The BoA shall also cause to have notified all property owners of property within 600 feet of the property when the applicant's property is located in the RR, I, LDR, and MDR Districts, and within 200 feet when the applicant's property is located in the HDR District or any business district. The BoA shall cause a list of such property owners to be drawn from the Assessor's records, and such notices to property owners shall be sent by mail at least seven days prior to the date set for the public hearing.
(4)
The BoA shall not continue hearings to a future date except for good cause. Written notice of the decision of the BoA shall be sent to the appellant and the CEO.
E.
Time for appeal, forms and fees.
(1)
When a person is aggrieved by a decision of the CEO, by a decision of the Historic Preservation Commission, or by a decision of the Planning Board, if an appeal or variance application is authorized elsewhere under this chapter, the aggrieved person must file their appeal or variance application with the Code Enforcement Department within 30 days of the day the decision was rendered.
(2)
Any appeal or application for variance to the BoA shall be accompanied by a fee as established by the City Council.
F.
Rules of procedure. The BoA shall adopt its own rules of procedure for the conduct of its business not inconsistent with this chapter and the statutes of Maine and may amend the same after notice and public hearing. Such rules shall be filed with the BoA Secretary and the City Clerk. Any rule so adopted and not mandated by this chapter or the statutes of Maine may be waived by the Chair of the BoA for good cause shown.
G.
Submission of evidence. Where the BoA conducts de novo review of a decision, the BoA may receive oral or documentary evidence, including new evidence and testimony, but shall provide as a matter of policy for the exclusion of irrelevant, immaterial, or unduly repetitious evidence. In a de novo proceeding, every party shall have the right to present their own case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
H.
Presence of CEO. The CEO, unless prevented by illness or absence from the state, shall attend all hearings and shall present to the BoA all plans, photographs, or other factual material that is appropriate to an understanding of the appeal.
I.
Conflict of interest. No member of the BoA shall vote on a matter in which they have a direct or indirect financial or personal interest. 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 either requesting a decision or who is being challenged.
J.
Records and decisions.
(1)
The Secretary shall maintain a permanent record of all BoA meetings and all correspondence of the BoA. The Secretary shall be responsible for maintaining those records which are required as part of the various proceedings which may be brought before the BoA. All records to be maintained or prepared by the Secretary are deemed public, shall be filed in the City Clerk's office, and may be inspected at reasonable times.
(2)
The transcript of testimony, if any, and exhibits, together with all papers and requests filed in the proceedings, shall constitute the record. All decisions shall become a part of the record and shall include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented and the appropriate order, relief, or denial thereof.
(3)
Notification of decision. The City Clerk, Planning Board, and CEO shall be notified, in writing, within seven days of all decisions of the BoA. Written notice to the appellant shall be sent within seven days after the date of the decision. The notice shall include, as every decision of the BoA shall include, findings of fact; shall refer to the evidence in the record and the exhibits, plans, or specifications upon which such decision is based; shall specify the reason or reasons for such decision; and shall contain a conclusion or statement separate from the findings of fact setting forth the specific relief granted or denied.
K.
Reapplication. If the BoA denies a variance, a second request of a similar nature shall not be brought before the BoA within two years from the date of the first request, unless, in the opinion of a majority of the BoA, substantial new evidence can be brought forward, or unless the BoA finds, in its sole and exclusive judgment, that an error of law or misunderstanding of facts has been made, or unless amendment has been made to this chapter which changes the status, circumstances, or conditions of the matter which was appealed.
§ 230-1606 Reconsideration.
The BoA may reconsider any decision reached under this section within 45 days of its prior decision. A request to the BoA to reconsider a decision must be filed within 10 days of the decision that is to be 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. The BoA may conduct additional hearings and receive additional evidence and testimony as provided in this subsection. Notwithstanding § 230-1607, appeal of a reconsidered decision must be made within 15 days after the decision on reconsideration or within the applicable time period under 30-A M.R.S.A § 4482-A. if the final municipal review of the project is by a municipal administrative review board other than a board of appeal.
§ 230-1607 Appeals.
Any aggrieved party may take an appeal, within 45 days of the date of the vote on the original BoA decision, to Superior Court from any order, relief or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B.