Westbrook City Zoning Code
ARTICLE XV
Zoning Board of Appeals
§ 335-15.1 General statement.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
The following provisions are consistent with 30-A M.R.S.A. § 2691. As such, the Zoning Board of Appeals serves as a quasi-judicial body, providing for appeals made under this chapter.
§ 335-15.2 Appointment and terms of office; powers and duties.
A.
Appointments, membership, and terms of office. In accordance with 30-A M.R.S.A. § 2691, the Zoning Board of Appeals consists of five members selected City-wide and two alternate members. The term of office of a member or alternate member is three years. The alternate will attend all meetings and will vote in the absence of a member. The alternate may be appointed to a full membership when a vacancy occurs.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
B.
Limitations on membership. A member of the City Council or spouse may not be a member or alternate member of the Zoning Board of Appeals.
C.
Officers. Annually on or about January 1, the Board of Appeals shall elect a Chair and Vice Chair. The Chair shall preside at all hearings, and the Vice Chair shall preside in his absence. A record shall be kept of the meetings, including any actions taken by the Board.
D.
Appointments. Appointments are nominated by the Mayor and approved by the municipal officers.
E.
Absence or disability. When a member of the Board of Appeals is unable to act because of interest, physical incapacity, or absence, the Chair shall appoint an associate member to act in his stead.
§ 335-15.3 Appeals.
A.
Appeal to Board of Appeals. A person aggrieved by a decision of the Code Enforcement Officer, as provided by this chapter, may appeal to the Zoning Board of Appeals. The person must file a notice of appeal with the Code Enforcement Officer within 30 days of the action taken. The notice must cite the decision appealed from, identity of the property involved, and state the specific grounds for the appeal. It must be signed by the appellant or legal representative. The appellant shall pay a filing fee to cover the cost of advertising the appeal, as required by Subsection C.
B.
Filing date record. The Code Enforcement Officer shall stamp the filing date on the notice of appeal, give a copy to the appellant, send a copy to the Zoning Board of Appeals, and keep a file a copy in the appropriate Tax Map and lot file.
C.
Appeal advertised. On receipt of the notice of appeal, City staff shall determine a hearing date and have the notice of appeal and the time and place of the hearing published on the City's website and in a newspaper having general circulation in the City at least seven days before the hearing.
D.
Abutters notified. The Code Enforcement Officer shall mail a copy of the notice of appeal and the time and place of the hearing to the property owners within 500 feet of the project at least 14 days prior to the day of the hearing at their last known places of address as shown on the municipal tax record. Public and private rights-of-way do not limit the 500-foot distance measurement. Failure of the Code Enforcement Officer to send or of a property owner to receive a copy of this notice does not invalidate the hearing.
E.
Hearing procedure. The Zoning Board of Appeals shall determine the hearing procedure.
§ 335-15.4 Variances.
[Amended 3-7-2005; 11-2-2009; 11-17-2014]
A.
Variance.
(1)
Except as provided in Subsections B and C, the Zoning Board of Appeals may grant a variance only when strict application of the chapter to the petitioner and the petitioner's property would cause undue hardship. The term "undue hardship" as used in this subsection means:
(a)
The land in question cannot yield a reasonable return unless a variance is granted;
(b)
The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
(c)
The granting of a variance will not alter the essential character of the locality;
(d)
The hardship is not the result of action taken by the applicant or a prior owner;
(e)
No other alternative to a variance is available to the applicant;
(f)
The granting of the variance will not unreasonably adversely affect the natural environment; and
(g)
The property is not located in a Resource Protection Zone.
(2)
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 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.
B.
Disability variance. For the purposes of this section, "disability" has the same meaning as a physical or mental handicap under 5 M.R.S.A. § 4553-A.
(1)
Disability structures. The Code Enforcement Officer may issue a permit to an owner of a dwelling for the purpose of making a dwelling accessible to a person with a disability who resides in or regularly uses the dwelling. If the permit requires a variance, the permit is deemed to include that variance solely for the installation of equipment or the construction of structures necessary for access to or egress from the dwelling for the person with a disability. The Code Enforcement Officer may impose conditions on the permit, including limiting the permit to the duration of the disability or to the time that the person with a disability lives in the dwelling.
(2)
Vehicle storage. A disability variance may be granted pursuant to this subsection [30-A M.R.S.A. § 4353(4-A)].
(a)
The Zoning Board of Appeals may grant a variance to an owner of a dwelling who resides in the dwelling and who is a person with a permanent disability for the construction of a place of storage and parking for a noncommercial vehicle owned by that person and no other purpose. The width and length of the structure may not be larger than two times the width and length of the noncommercial vehicle. The owner shall submit proposed plans of the structure with the request for the variance pursuant to this subsection to the Zoning Board of Appeals.
(b)
The person with the permanent disability shall prove by a preponderance of the evidence that the person's disability is permanent.
(c)
For the purposes of this subsection, "noncommercial vehicle" means a motor vehicle as defined in 29-A M.R.S.A. § 101, Subsection 42, with a gross vehicle weight of no more than 6,000 pounds, bearing a disability registration plate issued pursuant to 29-A M.R.S.A. § 521 and owned by the person with the permanent disability.
(d)
The Board may impose conditions on the variance granted pursuant to this subsection.
C.
Practical difficulty variance.
(1)
The Zoning Board of Appeals may grant a variance from the dimensional standards of this chapter when strict application of the chapter to the petitioner and the petitioner's property would cause a practical difficulty and when the following conditions exist:
(a)
The need for a variance is due to the unique circumstances of the property and not to the general condition of the neighborhood;
(b)
The granting of a variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties;
(c)
The practical difficulty is not the result of action taken by the petitioner or a prior owner;
(d)
No other feasible alternative to a variance is available to the petitioner;
(e)
The granting of a variance will not unreasonably adversely affect the natural environment; and
(f)
The property is not located in whole or in part within shoreland areas as described in 38 M.R.S.A. § 435.
(2)
As used in this section, "dimensional standards" means and is limited to ordinance provisions relating to lot area, lot coverage, frontage and setback requirements.
(3)
As used in this section, "practical difficulty" means that the strict application of the chapter to the property precludes the ability of the petitioner to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury to the petitioner.[1]
§ 335-15.5 Special conditions.
In granting a variance, the Zoning Board of Appeals may impose special conditions consistent with the purposes of this chapter and with the Comprehensive Plan, with which the appellant must comply. The conditions shall be stated specifically in the copy of the decision that is mailed to the appellant as provided in § 335-15.3. The appellant may appeal the imposed conditions to the Superior Court as provided by statute. If the imposed conditions are temporary, they shall expire automatically on the date set by the Board of Appeals. If permanent, they must be stated on the certificate of approval over the signature of the Code Enforcement Officer and be recorded in the Registry of Deeds.
A.
Suspense file. The Code Enforcement Officer shall maintain a suspense file containing records of all conditions granted by the Zoning Board of Appeals. He/she shall review each extension annually, and shall make an on-site inspection to see whether the condition is being observed.
§ 335-15.6 Time limitations of rights granted.
A right of appeal granted by the Zoning Board of Appeals expires unless the work necessary to accomplish the purpose for which it was requested is commenced within one year and completed within two years after it was granted, or is completed in accordance with a phased completion schedule proposed by the applicant and approved, or modified and approved, by the Board of Appeals and incorporated in its decision granting the variance. In determining whether work has been completed in accordance with an approved schedule, allowances may be made for delays in scheduled completions caused by inclement weather, strike, or acts of a natural nature.
§ 335-15.7 Limitation on subsequent appeals.
If the Zoning Board of Appeals denies an appeal with respect to certain building or premises, a second appeal of a similar nature may not be brought to the Board within six months.
§ 335-15.8 Appeal to Superior Court.
[Amended 11-17-2014]
A person aggrieved by the Board of Appeals may appeal to the Superior Court. The appeal shall be taken within 45 days after the date of the vote on decision (30-A M.R.S.A. § 2691).
§ 335-15.9 Recording.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II)]
If the Zoning Board of Appeals grants a variance under this article, then a certificate shall be issued indicating the name of the current owner, identifying the property by reference to the last recorded deed in its chain of title, and stating that a variance has been granted and the date of that action. Any conditions that were granted as part of the approval shall also be listed. This certificate must be recorded with the Registry of Deeds by the applicant within 90 days from the final written approval date on the certificate or the variance is void.