Topsham City Zoning Code
ARTICLE X
Board of Appeals
§ 225-68 Establishment; membership; terms of office; appointment; vacancies; officers.
A Board of Appeals is hereby established which shall consist of five members and two associate members. The term of office of a member or associate is five years serving staggered terms. A municipal officer or his spouse may not be a member or associate member of the Board of Appeals. When a regular member of the Board is unable to act because of interest, physical incapacity or absence, an associate member shall act in his stead. Members of the Board of Appeals shall be appointed by the municipal officers. When there is a permanent vacancy, the municipal office shall appoint a new member to serve for the remainder of the unexpired term. Members of the Board of Appeals may be removed from office by the municipal officers for cause upon written charges and after public hearing. The Board of Appeals shall elect a Chairman and Secretary from its own membership.
§ 225-69 Rules; meetings; records; quorum.
The Board of Appeals shall adopt rules necessary to the conduct of its affairs, in keeping with the provisions of this chapter and 30 M.R.S.A. § 2411.[1] 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 filed in the Town offices. A quorum shall consist of three members.
[1]
Editor's Note: 30 M.R.S.A. § 2411 was repealed by Chapter 737 of the Laws of 1987. See now 30-A M.R.S.A. § 2691.
§ 225-70 Powers and duties.
The Board of Appeals shall have the following powers:
A.
Administrative appeals: To hear and decide administrative appeals, on an appellate 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 Planning Board on a conditional use application or Historic District Commission; and to hear and decide administrative appeals 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. Any order, requirement, decision or determination made, or failure to act, in the enforcement of this chapter is advisory only and not appealable to the Board of Appeals.
[Amended 5-15-2019 STM, Art. 15]
When the Board of Appeals reviews a decision of the Code Enforcement Officer, the 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 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. |
When the Board of Appeals hears a decision of the Planning Board or Historic District Commission, it shall hold an appellate hearing, and may reverse the decision of the Planning Board or Historic District Commission only upon finding that the decision was contrary to specific provisions of the ordinance or contrary to the facts presented to the Planning Board or Historic District Commission. The Board of Appeals may only review the record of the proceedings before the Planning Board or Historic District Commission. The Board of Appeals shall not receive or consider any evidence which was not presented to the Planning Board or Historic District Commission, but the Board of Appeals may receive and consider written or oral arguments. If the Board of Appeals determines that the record of the Planning Board or Historic District Commission proceedings are inadequate, the Board of Appeals may remand the matter to the Planning Board or Historic District Commission for additional fact finding. |
B.
Variances. To authorize variances upon appeal in specific cases, but only within the limitations set forth in this chapter.
C.
Interpretations of this chapter.
D.
The Board of Appeals shall not have jurisdiction or authority to hear appeals from site plan or subdivision decisions made by either the Planning Board or the Town Planner.
[Amended 5-15-2019 STM, Art. 15]
§ 225-71 Variances.
[Amended 5-20-1993 ATM, Art. 23; 5-18-1995 STM, Art. 24; 5-15-1996 STM, Art. 29; 5-21-1997 STM, Art. 44; 5-21-1997 STM, Art. 45; 5-15-2002 STM, Art. 21; 1-23-2008 STM, Art. 2; 5-15-2019 STM, Art. 15]
Variances may be permitted only under the following conditions:
A.
Variances may be granted by the Board of Appeals for dimensional standards such as lot area, lot coverage, frontage and setback requirements as allowed by M.R.S.A. 30-A § 4353.
B.
The Board of Appeals may grant a disability variance, if the following criteria are met:
(1)
A disability variance may be granted to a property owner of a single-family dwelling, which dwelling is the primary year-round residence of the petitioner, for the purpose of making that property accessible to a person with a disability who is living on the property. The Board shall restrict such variances solely to the installation of equipment or the construction of structures necessary for access to or egress from the property by the person with the disability.
(2)
The Board may impose conditions on a disability 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.
(3)
For the purpose 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 property" is defined to include railing, wall or roof systems necessary for the safety or effectiveness of the structure.
(4)
Granting of a disability variance shall not cause the area of a dwelling to exceed the maximum permissible lot coverage allowed under this chapter.
C.
(Reserved)[1]
[1]
D.
The Board shall not grant a variance (applies to all but disability variances) unless it finds that all the following criteria are met:
(1)
The land in question cannot yield a reasonable return unless a variance is granted;
(2)
The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
(3)
The granting of a variance will not alter the essential character of the locality; and
(4)
The hardship is not the result of action by the applicant nor a prior owner.
E.
The Board shall not grant a disability variance unless it finds that all of the following criteria are met:
(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.
F.
(Reserved)[2]
[2]
G.
The Board shall limit any variances granted as strictly as possible in order to preserve the terms of this chapter as much as possible, and it may impose such conditions to a variance as it deems necessary, to this end.
H.
If the Board grants a variance, a certificate indicating the name of the current property owner, identifying the property by reference to the last recorded deed in its chain of title and indicating the fact that a variance, including any conditions on the variance, had been granted and the date of the granting shall be prepared in recordable form. This certificate must be recorded in the Sagadahoc County Registry of Deeds within 90 days of the final written approval of the variance or the variance is void. The variance is not valid until recorded. For the purposes of this chapter the date of the final written approval shall be the date stated on the written approval.
§ 225-72 Appeals.
A.
Making an appeal.
[Amended 5-22-1991 ATM, Art. 28; 5-20-1992 ATM, Art. 23; 5-15-2013 STM, Art. 10]
(1)
An appeal may be taken to the Board of Appeals by an aggrieved party from any decision of the Code Enforcement Officer, the Historic District Commission, or the Planning Board on a conditional use application.
[Amended 5-15-2019 STM, Art. 15]
(2)
Such appeals shall be taken within (30) days of the decision appealed from, and not otherwise, except that the Board, upon a showing of good cause, may waive the thirty-day requirement.
(3)
Such appeal shall be made by filing with the Board of Appeals a written notice of appeal specifying the grounds for such appeal. 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.
(4)
Upon being notified of an appeal, the Board of Appeals shall be provided all the papers specifying the record of the decision appealed from. Each appeal shall be accompanied by a fee as described in Chapter 109. The Board of Appeals shall hold a public hearing on the appeal within 45 days.
(5)
A copy of each variance request within 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 20 days prior to action by the Board of Appeals. Any comments received from the Commissioner prior to action by the Board of Appeals shall be made part of the record and shall be taken into consideration by the Board of Appeals.
B.
Procedure on appeal.
(1)
At least 10 days prior to the date of the hearing on such appeal, the Board shall cause to be published in one issue in a newspaper of general circulation in the Town a notice which includes:
(a)
The name of the person appealing.
(b)
A brief description of the property involved.
(c)
A brief description of the decision appealed from or the nature of a variance appeal.
(d)
The time and place of the Board's hearing.
(2)
At least 10 days prior to the date set for hearing, the Board shall give similar written notice to:
(a)
All property owners of record whose properties lie within 200 feet of the affected property;
(b)
The person making the appeal; and
(c)
The Planning Board and any other parties of record.
(3)
The notice will be sent by United States Mail, postage prepaid to those persons as listed on the Town's tax records.
C.
Hearings.
(1)
In a de novo hearing on an appeal of a decision by the Code Enforcement Officer, 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. Every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct such cross-examinations as may be required for a full and true disclosure of the facts.
[Amended 5-15-2019 STM, Art. 15]
(2)
In an appellate hearing on an appeal of a Planning Board decision on a conditional use application or a decision of the Historic District Commission, the Board may receive oral arguments, but may only review the record of the proceedings before the Planning Board or Historic District Commission.
[Added 5-15-2019 STM, Art. 15[1]]
[1]
Editor's Note: This article also redesignated former Subsection C(2) through (6) as Subsection C(3) through (7), respectively.
(3)
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.
(4)
At any hearing, a party may be represented by agent or attorney. Hearing shall not be continued to other times except for good cause.
(5)
If a party does not attend a hearing and is not otherwise represented, its case will be deemed to have been withdrawn without prejudice to refile the appeal. The filing fee of $50 will not be refunded to any applicant whose appeal is withdrawn in this manner.
(6)
The Code Enforcement Officer 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.
(7)
The transcript of testimony, if any, and exhibits, together with all papers and requests filed in the proceedings, shall constitute the record.
§ 225-73 Decisions.
A.
The concurring vote of a majority of the members of the Board shall be necessary to reverse any order, requirement, decision or determination of the Code Enforcement Officer, or to decide in favor of the applicant on any matter on which it is required to pass under this chapter, or to affect any variation in the application of this chapter.
B.
The Board shall decide all appeals within 30 days after hearing and shall issue a written decision on all appeals.
C.
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 therefore, upon all the material issues of fact, law or discretion presented and the appropriate order, relief or denial thereof. 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.
D.
Upon notification of the granting of an appeal by the Board of Appeals, the Code Enforcement Officer shall immediately issue a permit in accordance with the conditions of the approval, unless the applicant needs a conditional use permit.
E.
A conditional use permit or variance secured under the provisions of this chapter by vote of the Board of Appeals shall expire if the work or change involved is not completed within two years of the date on which the conditional use or variance is authorized.
[Amended 5-20-1992 ATM, Art. 23; 5-21-1997 STM, Art. 46; 5-15-2019 STM, Art. 15]
F.
Appeals may be taken as permitted by law from any decision of the Board of Appeals to Superior Court.
G.
The Chairman of the Board of Appeals shall notify the Department of Environmental Protection of variances granted in the shoreland zone within 14 days of the decision.
[Amended 5-20-1992 ATM, Art. 23]
§ 225-74 Stay of proceedings.
An appeal stays all legal proceedings in a furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the Board after the notice of appeal has 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 court of record on application, on notice to the officer from whom the appeal is taken and on due cause shown.
