[Amended 11-4-2008, effective
4-1-2009]
A.
A Board of Appeals, hereafter in this section designated as the "Board,"
is hereby established. The Board shall consist of five full members
and two alternate members who shall be residents and registered voters
of the Town of Ogunquit and shall be appointed by the Select Board
of the Town. The term of office of the members of the Board shall
be three years, except that the five full members first appointed
shall serve respectively for one term of one year, two terms of two
years, and two terms of three years. The term of office of alternate
members shall be one year. The vacancy in the office of a member shall
be filled for the unexpired term only. Midterm vacancies in the office
of full members shall be filled first by the first alternate then
by the second alternate. Each member's term of office shall expire
at the first regular Select Board's meeting following the regular
Annual Town Meeting of the year in which the member's term ends, except
that a member may continue to serve until reappointed or until a successor
has been appointed to the position. When a member is unable to act
because of conflict of interest or physical incapacity or is otherwise
unable to participate, the Chair shall designate an alternate to act
in his stead. No business of the Board shall be transacted under this
chapter unless three members thereof are present and participating.
Any member of the Board may be removed for cause as determined by
the Select Board upon written charges and after a public hearing,
for which at least 10 days' notice shall be given in the same manner
as other public municipal meetings are noticed. The Board shall annually
elect a Chair and Secretary from its own membership, and shall adopt
and annually revise or renew bylaws setting forth procedural rules,
regulations and guidelines governing the conduct of the Board, its
members, employees and other interested parties who regularly appear
before the Board. These bylaws may be amended from time to time throughout
the year and may include such rules and regulations as the Board deems
necessary to clarify its duties set forth in this chapter.
[Amended 6-8-2021 ATM by Art.
9]
B.
The Board shall keep minutes of its proceedings and shall create
a written decision of its findings and conclusions, including recording
the vote of each member upon each matter coming before the Board for
vote, and indicating the absence or failure to vote, as the case may
be, of any member. The minutes of the Board's proceedings, decisions,
application files, and all the writings required by this chapter to
be made by the Board shall be kept at its office and shall be a public
record.
C.
A municipal officer or spouse thereof shall not serve as a member.
D.
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 vote of the members, except the member who is being
challenged.
E.
In no case may an appeal carry without at least three members voting
in its favor. Members must vote on all issues unless excused for cause
by the Board.
[Amended 11-4-2008, effective
4-1-2009]
Appeals from the decision of the Code Enforcement Officer shall
go to the Board and from the Board to the Superior Court in accordance
with Maine law. The Board shall have the following powers and duties:
A.
Administrative appeals. 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 or other application under
this chapter. 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. The action of the Code Enforcement Officer may be
affirmed, modified or reversed by the Board by vote of the Board.
Any notice of violation, or any related order, stop-work order, requirement,
decision or determination made, or failure to act, in the enforcement
of this chapter is not appealable to the Board of Appeals. Such enforcement
actions are appealable only to the courts as allowed by law and rules
of civil procedure.
[Amended 6-12-2012]
B.
Variance appeals.
(1)
Standards applicable to all variance appeals. Any of the following types of variances set forth below in Subsection B(2) may be permitted only under the following conditions:
(a)
The Board may grant a variance only from the dimensional requirements
relating to lot area, lot coverage, frontage, height and setback requirements
of this chapter, subject to the specific limitations and restrictions
found below in this section.
(b)
Establishments or expansions of a use otherwise prohibited shall
not be allowed by variance, nor shall a variance be granted because
of the presence of nonconforming uses in the particular district or
adjoining district.
(c)
The 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.
(d)
For cases involving any Shoreland Zone, a copy of each variance
request, including the application and all supporting information
supplied by the applicant, shall be forwarded by the Code Enforcement
Officer 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 the action by the Board of
Appeals shall be made part of the record and shall be taken into consideration
by the Board of Appeals.
(2)
Three types of variances allowable and standards for each. The
Board of Appeals may only grant three types of variances, as set forth
below:
(a)
Relaxed dimensional standards variance, available outside of
Shoreland Zones.
[1]
For structures located outside of any Shoreland Zone, the Board may grant a variance only from those dimensional standards listed in Subsection B(1)(a) above, and only when strict application of this 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 the Shoreland Zone.
[2]
As used in this subsection, "practical difficulty" means that
the strict application of this 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.
(b)
Dimensional standards variances for structures located in Shoreland Zones. For structures located in any Shoreland Zone, the Board may grant a variance only from those dimensional standards listed in Subsection B(1)(a) above, and only when strict application of the terms of this chapter would result in undue hardship. The words "undue hardship," as used in this subsection, when evaluating a variance application for any structure in any Shoreland Zone, shall 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 to the general conditions in the neighborhood;
[3]
That the granting of the 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.
(c)
Disability variances. The Board 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.
The Board shall restrict any variance granted under this subsection
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. 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.
For the purposes of this subsection, a "disability" has the same meaning
as a physical or mental disability under 5 M.R.S.A. § 4553-A
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 6-8-2021 ATM by Art.
9]
C.
Written decisions shall be issued, including a statement of findings
and conclusions, as well as the reasons or basis therefor.
[Amended 11-4-2008, effective
4-1-2009]
A.
In all cases where the Code Enforcement Officer renders a written
decision to a party, any aggrieved party may file an administrative
or variance appeal within 30 calendar days of the date of the official,
written decision. The Board of Appeals may grant exceptions to this
thirty-day rule only where, in its sole and exclusive judgment, extraordinary
circumstances have been shown which would result in a flagrant miscarriage
of justice unless the said thirty-day time period is extended. The
appeal application shall be filed with the Board of Appeals on forms
to be approved by the Board, and the application shall include:
B.
Following the filing of a completed application for an administrative
appeal or variance, the Land Use Office shall notify the Code Enforcement
Officer, the Select Board, and the Planning Board, and shall transmit
to the Board of Appeals all of the papers constituting the record
of the decision appealed from. The Board of Appeals shall hold a public
hearing on an administrative appeal or a request for a variance within
35 days of its receipt of a complete written application with all
supporting materials, unless this time period is extended with the
consent of both the Board and the applicant.
C.
The Board shall hold a public hearing prior to making a decision
on an appeal. In all appeals, the Board of Appeals shall send a notice
by first class mail at least 10 days prior to the hearing, to the
appellant and to the owners of all abutting properties. Notification
shall include the nature of the appeal and the time and place of the
public hearing. The Land Use Office shall prepare a written certification
of the date, time, and location when and where notices were mailed.
Notice of all appeals shall also be posted in at least three prominent
public places within the Town at least 10 days prior to the hearing.
A notice shall also be published twice in a newspaper of local circulation,
with the first advertisement appearing at least seven days prior to
the hearing date.
[Amended 6-12-2012]
D.
For the purpose of this section, the owners of property should be
considered to be the parties listed by the Tax Assessor for the Town
as those against whom taxes are assessed. Failure of any property
owner to receive a notice of public hearing shall not necessitate
another hearing or invalidate any action by the Board.
E.
The Code Enforcement Officer shall attend all hearings and shall
present to the Board all plans, photographs or other material he deems
appropriate for an understanding of the appeal.
F.
The appellant's case shall be heard first. The aggrieved party may
appear by agent or attorney. To maintain orderly procedure, each side
shall proceed without interruption. Questions may be asked through
the Chair. The person filing the appeal shall have the burden of proof.
All persons at the hearing shall abide by the order of the Chair.
Hearings may be continued to other times.
G.
Within 35 days of the close of the hearing, the Board of Appeals
shall make findings of fact and grant, grant with conditions, or deny
the appeal. Written notice of the decision of the Board shall be sent
to the appellant, the Code Enforcement Officer, the Planning Board,
and the Select Board within seven days of the decision. For appeals
or variances in any Shoreland Zone, the Board shall cause written
notice to be mailed to the Department of Environmental Protection
within seven days of the Board's decision. Decisions shall be in writing
and shall contain a statement of findings and conclusions, as well
as the reasons or basis therefor. Decisions shall be sent to the appellant
via certified mail.
H.
If the Board grants a variance under this section, 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, has been granted and the date of the granting, shall
be prepared in recordable form. This certificate must be recorded
in the York County Registry of Deeds within 90 days of the date stated
on the written approval or the variance is void. The variance is not
valid until recorded as provided in this subsection. Appeals granted
under the provision of this section by the Board shall expire if the
work or change involved is not commenced within six months of the
date on which the appeal is granted, and/or if the work or change
is not substantially completed within one year of the date on which
such appeal is granted, unless as otherwise provided for in the appeal.
I.
If the Board shall deny an appeal, another appeal of a similar nature
shall not be brought before the Board within one year from the date
of the denial, unless, in the opinion of a majority of the Board,
substantial new evidence shall be brought forward, or unless the Board
finds, in its sole and exclusive judgment, that an error or mistake
of law or misunderstanding of facts shall have been made.
J.
The appellant shall pay a fee to the Town of Ogunquit to cover the
costs of notification and advertisements concerning an appeal. These
fees are to be determined by the Select Board.
K.
Appeal to Superior Court. Except as provided by 30-A M.R.S.A. § 2691,
Subsection 3F, any aggrieved party who participated as a party during
the proceedings before the Board of Appeals may take an appeal to
Superior Court in accordance with state laws within 45 days from the
date of any decision of the Board of Appeals.
L.
Reconsideration. In accordance with 30-A M.R.S.A. § 2691,
Subsection 3F, the 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. Appeal of a reconsidered decision to Superior Court
must be made within 15 days after the decision on reconsideration.
