[HISTORY: Adopted by the Town of Islesboro as indicated in
article histories. Amendments noted where applicable.]
[Adopted 3-10-1977; amended 1-31-1996; 4-24-2004; 6-5-2007; 6-25-2009]
This article shall be known as the "Islesboro Board of Appeals
and Board of Assessment Review Ordinance."
[Amended 6-6-2012]
This article is enacted under the authority of 30-A M.R.S.A.
§§ 2526(6), 2691 and 4353 and 36 M.R.S.A. § 843.
The purpose of this article is to provide a vehicle and process
of appeal from decisions made by officials and committees of the Town
of Islesboro.
A.
The Board of Appeals (hereinafter "Board") is hereby established.
(1)
The Board of Selectmen shall appoint five regular members and two
alternate members to the Board, all eligible to vote in the Town of
Islesboro.
(2)
Alternate members shall attend all meetings of the Board but shall
only vote when appointed to substitute for a regular member.
(3)
When a regular member is unable to participate in a meeting or hearing,
the Chair or, in the Chair's absence, the Vice Chair shall appoint
an alternate member to substitute for that full member.
(4)
In the absence of both Chair and Vice Chair, the alternate member
substitute shall be appointed by vote of the remaining regular members.
(5)
Alternate members may be counted for purposes of establishing a quorum.
When so appointed, they shall have all the powers of a regular member.
(6)
In the event that a member is unable to serve for an entire hearing,
an alternate member may be appointed in that member's place during
the hearing, provided that the alternate had been in attendance for
all evidence and testimony presented at the hearing prior to his or
her appointment. The replaced member shall not be permitted to vote
on the matter considered at that Board hearing.
B.
Regular members and alternate members of the Board shall serve staggered
terms of three years.
C.
The Board shall elect annually a Chair, Vice Chair and secretary
from its membership.
D.
The following shall be excluded from membership on the Board:
(1)
Members of the Board of Selectmen or their spouses;
(2)
Town employees;
(3)
Planning Board members or their spouses;
(4)
Pollution Control Committee members or their spouses;
(5)
The Codes Enforcement Officer and the officer's spouse; and
(6)
The Assessor, Assessor's agent or employee, or their spouses.
A 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, excluding the
member who is being challenged.
A member of the Board may be dismissed for cause by the Board
of Selectmen before expiration of the member's term.
A.
The Chair shall call meetings and public hearings of the Board as
required.
B.
The Chair shall also call meetings of the Board when requested to
do so by a majority of the members or by a majority of the Selectmen.
C.
The Chair shall preside at all meetings of the Board and shall be
the official spokesman of the Board.
D.
Notice of meetings and public hearings shall be posted at least seven
days before the meeting or public hearing by posting notices of the
date, time, place and nature of the meeting or public hearing in at
least three customary prominent public places in Town.
E.
A quorum of the Board necessary to conduct an official Board of Appeals
meeting or hearing shall consist of at least three members. If only
three members are present, then two votes can constitute a Board action.
F.
The Board may provide rules, which shall be recorded by the secretary,
for any matter relating to the conduct of any hearing, provided that
any rule subsequently may be waived by vote of a majority of the Board.
G.
The Board shall hear appeals from decisions of the Planning Board as set forth in § 15-10A and B on an appellate basis. The Board shall hear appeals from the decision of the Code Enforcement Officer as set forth in § 15-10A and B as well as variance requests on a de novo basis. When acting in an appellate capacity, the Board may reverse the decision of the Planning Board only upon a finding that the decision was contrary to the specific provisions of the ordinance or contrary to the facts presented to the Planning Board. Such appellate review is limited to the record of the proceedings before the Planning Board, and the Board shall not receive or consider any evidence that was not presented to the Planning Board, but the Board may receive and consider oral and written argument. If the Board determines that the record of the Planning Board proceedings is not adequate, the Board may remand the matter to the Planning Board for additional fact finding. When acting in a de novo capacity, the Board shall hear and decide the matter anew, undertaking its own independent analysis of the evidence and the law, and reaching its own decision. For all matters before the Board, the person filing the appeal or request shall have the burden of proof. A violator or complainant may not appeal enforcement matters to the Board.
[Amended 6-6-2012]
H.
Each party shall have the right to:
(1)
Present its case or defense by oral or documentary evidence.
(2)
Submit rebuttal evidence and to conduct such cross-examination as
may be required for a full and true disclosure of the facts.
(3)
Be represented by counsel or by other agent, provided that written
authorization of such representation is submitted to the Board.
I.
The transcript of testimony, if any, and exhibits, together with
all papers and requests filed in the proceeding, shall constitute
the record.
K.
Notice of any decision shall be mailed or hand delivered to the appellant
or petitioner, the appellant's or petitioner's representative
or agent, the Planning Board, or any other concerned agency or office,
and the Board of Selectmen within seven calendar days of the Board's
decision.
L.
The Board may reconsider any decision as set forth in 30-A M.R.S.A.
§ 2691(3) as may be amended. The Board may conduct additional
hearings and receive additional evidence and testimony as provided
in this section.
[Amended 6-6-2012]
A.
The Secretary shall maintain a permanent record of all Board proceedings
and correspondence of the Board.
[Amended 6-6-2012]
B.
Records of the Board shall be kept in the Town Office.
C.
The secretary shall be responsible for maintaining those records
that are required as part of the various proceedings that may be brought
before the Board.
[Amended 6-6-2012]
Any party may take an appeal within 45 days of the date of the
vote on the original decision or 15 days from the date of the vote
on the decision on reconsideration, if the original decision is reconsidered,
to Superior Court from any order, relief or denial in accordance with
Maine Rules of Civil Procedure, Rule 80B.
The Board shall hear appeals only on matters within its jurisdiction.
C.
The Board shall hear appeals from decisions of the Pollution Control Committee and the Codes Enforcement Officer acting under the provisions of Chapter 167, Pollution Control. The Board is limited to hearing appeals from decisions made in § 167-12A, B, and C of that ordinance only.
[Amended 6-6-2012]
D.
The Board shall hear appeals from decisions made under the provisions
of ordinances or regulations that contain an appeal procedure identified
as being within the responsibilities of the Board.
E.
The Board shall hear appeals from the decisions made by the Town
Manager in the following cases only:
(1)
Town employee appeals from disciplinary suspension or disciplinary
termination of employment. Appeals of disciplinary termination of
employment shall be heard within 15 calendar days of the filing of
the appeal.
(2)
Those grievances permitted to be appealed to the Board by the Town
of Islesboro Policies and Procedures Manual. The Board may refuse
to hear appeals by Town employees that are frivolous or do not meet
the limitations on appeal set forth in this section.
The Board may grant variances from the provisions of Chapter 125, Land Use, and the provisions of Chapter 45, Development Review.
A.
Undue hardship. A variance may be granted by the Board only where
strict application of the ordinance, or a provision thereof, to the
petitioner and the petitioner's property would cause undue hardship.
The words "undue hardship" as used here 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 the general condition in 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.
B.
Disability. A variance may be granted by the Board to the 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 Board shall restrict any variance granted under this provision
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 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 in the dwelling.
(3)
For the purposes of this provision, a disability has the same meaning
as a physical or mental disability under the Maine Human Rights Act,[1] 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 6-6-2012]
[1]
Editor's Note: See 5 M.R.S.A. § 4551 et seq.
C.
Setback variance for single-family dwellings. A variance may be permitted
from a setback requirement only when strict application of the ordinance
to the petitioner and the petitioner's property would cause undue
hardship, which means that the application meets each of the criteria
listed below:
(1)
The application is for a single-family dwelling that is the primary
year-round residence of the petitioner.
(2)
A variance under this provision may not exceed 20% of a setback requirement
and may not be granted if the variance would cause the area of the
dwelling to exceed the maximum permissible lot coverage.
(3)
A variance under this subsection may exceed 20% of a setback requirement
(other than minimum setbacks from a wetland or water body required
within shoreland districts by rules adopted pursuant to 38 M.R.S.A.
Chapter 3, Subchapter 1, Article 2-B) if there is undue hardship and
the petitioner has obtained the written consent of affected abutting
landowners.
D.
Variance from dimensional standards. The Board may grant a variance
from the dimensional standards of an ordinance when strict application
of the ordinance to the petitioner and the petitioner's property
would cause a practical difficulty, which means that the application
meets each of the criteria listed below:
|
Note: As used in this provision, "dimensional standards" means
and is limited to ordinance provisions relating to lot area, lot coverage,
frontage and setback requirements. As used in this provision, "practical
difficulty" means that the strict application of the ordinance to
the property precludes the ability of the petitioner to pursue a use
permitted in the district in which the property is located and results
in significant economic injury to the petitioner.
|
(1)
The need for a variance is due to the unique circumstances of the
property and not to the general condition of the neighborhood.
(2)
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.
(3)
The practical difficulty is not the result of action taken by the
petitioner or a prior owner.
(4)
No
other feasible alternative to a variance is available to the petitioner.
(5)
The granting of a variance will not unreasonably adversely affect
the natural environment.
(6)
The property is not located in whole or in part within shoreland
areas as described in 38 M.R.S.A. § 435.
E.
Any variance granted by the Board in a Resource Protection District,
Shoreland Protection District, Meadow Pond District, or Maritime Activities
District shall be reported to the Commissioner of the State of Maine
Department of Environmental Protection.
[Amended 6-6-2012]
A.
B.
The certificate shall be recorded in the Waldo County Registry of
Deeds within 90 days of the final written approval of the variance,
or the variance is void.
D.
The variance is not valid until recorded as provided for in this
section.
[Amended 6-6-2012]
The Board of Assessment Review shall hear appeals from decisions
made by the appointed Assessor pursuant to procedures set forth in
30-A M.R.S.A. § 2691, Subsection 3, and rules set forth
in 36 M.R.S.A. §§ 843 to 849.
If any section, subsection, sentence, clause, phrase or any
other portion of this article is in conflict with any ordinance, manual
or written policy of the Town of Islesboro regarding the right of
appeal, manner of appeal, grounds for appeal or timetable for appeal
to the Board of Appeals or the Board of Assessment Review, the provisions
of this article shall prevail.
A.
This article may be amended from time to time in the manner set forth
by law for the passing of ordinances.
[Adopted 3-14-1985; amended 6-15-1992]
[Amended 6-6-2012]
Pursuant to 30 M.R.S.A. § 3001, the Town of Islesboro
hereby establishes the Town of Islesboro Planning Board.
A.
Board members shall be appointed by the Board of Selectmen and sworn
by the Town Clerk.
B.
The Board shall consist of five members and two associate members.
C.
The term of each member shall be three years except the initial appointments
shall be for one, two, three, four, and five years, respectively.
The term of office of an associate member shall be three years.
[Amended 6-6-2012]
D.
When there is a permanent vacancy, the Board of Selectmen shall within
60 days of its occurrence appoint a person to serve for the unexpired
term. A vacancy shall occur upon the resignation or death of any member,
or when a member ceases to be a voting resident of the Town, or when
a member fails to attend four consecutive regular meetings or fails
to attend at least 75% of all meetings during the preceding twelve-month
period. When a vacancy occurs, the Chair of the Board shall immediately
so advise the Board of Selectmen in writing. The Board may recommend
to the Board of Selectmen that the attendance provisions be waived
for cause, in which case no vacancy will then exist until the Board
of Selectmen disapproves the recommendation. The Board of Selectmen
may remove members of the Planning Board by unanimous vote, for cause,
after notice and hearing.
E.
A member of the Board of Selectmen may not be a member or associate
member.
A.
The Board shall elect a Chair and a secretary from among its members
and create and fill such other offices as it may determine. The term
of all offices shall be one year with eligibility for reelection.
B.
When a member is unable to act because of interest, physical incapacity,
absence or any other reason satisfactory to the chairman, the chairman
shall designate an associate member to sit in his or her stead.
[Amended 6-6-2012]
C.
An associate member may attend all meetings of the Board and participate
in its proceedings but may vote only when that associate member has
been designated by the Chair to sit for a member.
[Amended 6-6-2012]
D.
Any question of whether a member shall be disqualified from voting
on a particular matter shall be decided by a majority vote of the
members except the member who is being challenged.
E.
The Chair shall call at least one regular meeting of the Board each
month.
F.
No meeting of the Board shall be held without a quorum consisting
of three members or associate members authorized to vote.
[Amended 6-6-2012]
G.
The Board shall adopt rules for transaction of business, and the
secretary shall keep a record of its resolutions, transactions, correspondence,
findings and determinations. All records shall be deemed public and
may be inspected at reasonable times.
