A.
There shall be a Zoning Board of Appeals of seven members, all of
whom shall be residents of the Town of Kennebunkport. The members
of the Zoning Board of Appeals shall be appointed by the Board of
Selectmen, in conformance with the provisions of 30-A M.R.S.A. § 2691.
B.
Terms of members shall be for three years, except that initial appointments
shall be such that the terms of office of no more than three members
shall expire in any single year. The members of the Zoning Board of
Appeals shall annually elect one of their number to serve as Chair
to preside at all meetings of the Board. The Board shall annually
elect one of their number to serve as Vice Chair to act as Chair when
the Chair is unable to serve, and to assume such other responsibilities
as the Board may direct. The Board shall annually elect a secretary/recorder
from its own membership, who shall provide for the keeping of the
minutes of the proceedings of the Board. The minutes shall show the
vote of each member upon each question. All minutes of the Board shall
be public record. A quorum shall consist of four members.
The Zoning Board of Appeals shall have the following powers
and duties:
A.
Administrative appeals.
(1)
To hear and decide, 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. The action of the Code Enforcement
Officer may be modified or reversed by the Zoning Board of Appeals
by a majority vote. Any notice of violation, or any order, requirement,
decision or determination made, or failure to act, in the enforcement
of this chapter is not appealable to the Zoning Board of Appeals.
Such enforcement actions are appealable only to the courts as allowable
by law and rules of civil procedure.
(2)
In hearing appeals or considering applications under this chapter,
whenever there is uncertainty as to the meaning and/or intent of any
part of this chapter, the Zoning Board of Appeals shall have the power
to interpret such part.
B.
Variance appeals. Variances may be granted by the Zoning Board of
Appeals only for lot size, lot width, frontage, height, lot coverage
and setbacks and:
(1)
Only when strict application of the chapter, or a provision
thereof, to the petitioner and his property would cause undue hardship;
and
(2)
When the proposed structure or use would meet all the provisions
of this chapter except for the specific provision(s) from which relief
is sought. Variances shall not be granted for establishment of any
uses otherwise prohibited by this chapter. The words "undue hardship"
as used in this subsection shall mean:
(a)
That the land in question cannot yield a reasonable return unless
a variance is granted;
(b)
That the need for a variance is due to the unique circumstances
of the property and not to the general conditions in the neighborhood;
(c)
That the granting of a variance will not alter the essential
character of the locality; and
(d)
That the hardship is not the result of action taken by the applicant
or a prior owner.
C.
Practical difficulty variance.
(1)
Notwithstanding Subsection B, the Zoning Board of Appeals may grant a variance, but only from the dimensional standards of this chapter, when strict application of the provisions of the chapter would create a practical difficulty, as defined herein, and when all the following conditions are found to exist:
(a)
The need for a variance is due to the unique circumstances of
the property, and not to the general conditions of the neighborhood;
(b)
The granting of the variance will not produce an undesirable
change in the character of the neighborhood and will not have an unreasonably
detrimental effect on either the use or fair market value of abutting
properties;
(c)
The practical difficulty is not the result of action taken by
the applicant or a prior owner;
(d)
No other feasible alternative is available to the applicant;
(e)
The granting of a variance will not have an unreasonably adverse
effect on the natural environment; and
(f)
The property is not located, in whole or in part, within a Shoreland
area, as defined in 38 M.R.S.A. § 435, nor within a Shoreland
Zone or flood hazard zone as defined by this chapter.
(2)
The following words have the meanings set forth below:
(a)
Dimensional standards. Those provisions of this chapter which
relate to lot area, lot coverage, frontage and setback requirements.
(b)
Practical difficulty. A case where strict application of the
dimensional standards of the chapter to the property for which a variance
is sought would both preclude a use of the property which is permitted
in the zone in which it is located and would also result in significant
economic injury to the applicant.
(c)
Significant economic injury. The value of the property if the
variance were denied would be substantially lower than its value if
the variance were granted. To satisfy this standard, the applicant
need not prove that denial of the variance would mean the practical
loss of all beneficial use of the land.
(3)
Except as modified above, the other provisions of Article 9
will apply to practical difficulty variances.
(4)
A practical difficulty variance may not be used to grant relief
from the provisions of the land use standards of the chapter, to increase
either volume or floor area, nor to permit the location of a structure,
including, but not limited to, single-component manufactured homes,
to be situated on a lot in a way which is contrary to the provisions
of this article.
D.
Setback variance for single-family dwellings. The Zoning Board of
Appeals may grant a variance from required setbacks from lot lines
only, for single-family dwellings subject to the following limitations:
(1)
The Board must find that strict application of the chapter to
the applicant and the applicant's property would cause undue hardship.
For purposes of this subsection only, the term "undue hardship" means:
(a)
The need for a variance is due to the unique circumstances of
the property and not to the general conditions in 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.
(2)
A variance may be granted only pursuant to this subsection for
a single-family dwelling that is the applicant's primary year-round
residence.
(3)
A variance granted under this subsection may not exceed 20%
of the applicable setback requirement.
(4)
A variance shall not be granted under this subsection if the
variance would cause the area of the dwelling to exceed the maximum
permissible lot coverage.
F.
Granting of variances to be handled strictly. The Zoning 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.
G.
Copy of application to Department of Environmental Protection. For
any application within the Shoreland Zone, a copy of each variance
request, including the application and all supporting information
supplied by the applicant, shall be forwarded by the Zoning Board
of Appeals 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.
H.
Conditional uses.
(1)
Conditional uses subject to Zoning Board of Appeals review under
Article 4 may be approved by the Zoning Board of Appeals after considering
the characteristics and location of the proposed use and of other
properties in the surrounding neighborhood, provided that the petitioner
shall submit to the Zoning Board of Appeals statements in writing,
which may be accompanied by diagrams or photographs which shall become
part of the record of such petitions, demonstrating that the proposed
use:
(a)
Will meet the definition and specific requirements set forth
in this chapter for such particular use;
(b)
Will not have a significant detrimental effect on the use and
peaceful enjoyment of abutting property as a result of noise, vibrations,
fumes, odor, dust, light, glare or other cause;
(c)
Will not have a significant adverse effect on adjacent or nearby
property values;
(d)
Will not result in significant hazards to pedestrian or vehicular
traffic or significant traffic congestion;
(e)
Will not result in significant fire danger; and
(f)
Will not result in significant flood hazards or flood damage,
drainage problems, ground or surface water contamination, or soil
erosion.
(2)
In addition, when the proposed use is to be located in the Shoreland Zone or Resource Protection Zone, the Zoning Board of Appeals shall make a positive finding that the proposed use will comply with all the standards established in § 240-10.10B(1) to (8) of this chapter.
A.
Any person aggrieved by a decision of the Code Enforcement Officer, other than a decision or failure to act related to an enforcement-related matter as described in § 240-9.2A(1) of this chapter, may appeal that decision by filing an administrative appeal application on forms provided for that purpose with the Town Clerk within 30 days of the decision. The Board, upon showing of good cause, may waive the thirty-day requirement. Such application forms shall be used also by any person requesting a variance and by any person requesting approval of a conditional use subject to Zoning Board of Appeals review. The application form shall be completed in full, shall include:
(1)
The names and addresses of the owners of all property within
200 feet of the property in question and shall be signed by the applicant;
(2)
A concise written statement indicating what relief is requested
and why the administrative appeal, variance, or conditional use should
be granted; and
(3)
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.
B.
When the Zoning Board of Appeals reviews such a decision of the Code Enforcement Officer, other than a decision or failure to act related to an enforcement-related matter as described in § 240-9.2A(1) of this chapter, in an administrative appeal, the Zoning 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 Zoning 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.
D.
The Town Clerk shall give the application immediately to the Zoning
Board of Appeals, which shall schedule a public hearing within 35
days of receipt of a complete written application by the Clerk, unless
this time period is extended by the parties. Upon receiving an application
for an administrative appeal or a variance, the Code Enforcement Officer
shall transmit to the Zoning Board of Appeals all of the papers constituting
the record from which the decision was appealed.
E.
The Town Clerk shall publish a notice of the hearing in a newspaper
of general circulation in Kennebunkport at least three days prior
to the hearing date and publish a notice on the Town of Kennebunkport's
webpage at least 10 days prior to the hearing date. The notice shall
identify the property involved, the name of the applicant, the nature
of the application, and the time and place of the public hearing.
[Amended 3-3-2020]
F.
A copy of the notice shall be sent by certified mail to the owners
of all property within 200 feet of the property in question at least
seven days in advance of the hearing. The owners of property shall
be considered to be those shown on the tax lists as those against
whom taxes are assessed. The Zoning Board of Appeals shall maintain
as a part of the record for each case a completed list of all property
owners so notified. Failure of any property owner to receive a notice
shall not necessitate another hearing or invalidate the action of
the Zoning Board of Appeals.
G.
The Zoning Board of Appeals shall keep a written record of all applications,
noting the date the application is received, the date of the hearing,
the person who presented the application at the hearing, any pertinent
testimony presented at the hearing, and the finding of facts and decision
of the Zoning Board of Appeals. All records of the Zoning Board of
Appeals shall be maintained at the Municipal Offices in a permanent
file which shall be available to the public.
H.
The Code Enforcement Officer, or his/her designated assistant, may
attend all hearings, and may present to the Zoning Board of Appeals
plans, photographs, or other materials which will assist the Zoning
Board of Appeals in making a decision.
I.
The applicant's case shall be heard first. If the applicant is not
present at the hearing, any person acting as the applicant's representative
must demonstrate that he/she has written authority to appear on the
applicant's behalf. To maintain orderly procedure, each side shall
proceed without interruption. The person filing the appeal shall have
the burden of proof. All persons at the hearing shall abide by the
order of the Chair of the Zoning Board of Appeals.
J.
After the public hearing, the Zoning Board of Appeals shall make
findings of fact, based on the record of the hearing, and issue a
decision on the application. The applicant shall be notified in writing
of the findings and decision of the Zoning Board of Appeals within
seven days of the Board's decision, with copies sent to the Code Enforcement
Officer, the Planning Board, and the Municipal Officers.
K.
In approving an application for an appeal, conditional use or variance,
the Zoning Board of Appeals may impose reasonable conditions and restrictions,
which shall then be enforceable as if part of this chapter.
L.
Except as provided by Title 30-A M.R.S.A. § 2691, Subsection
3F, any aggrieved party who participated as a party during the proceedings
before the Zoning Board of Appeals may appeal to the Superior Court,
as provided by law, within 45 days of the date of the vote on the
decision by the Zoning Board of Appeals.
M.
Reconsideration. In accordance with Title 30-A M.R.S.A. § 2691,
Subsection 3F, the Zoning 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.
N.
If the Zoning Board of Appeals grants an appeal, conditional use
or variance, the applicant's legal rights, determined thereby, shall
expire if any construction or alteration involved is either not commenced
within one year or not substantially completed within two years of
the date on which the appeal, conditional use or variance was granted.
O.
A copy of all variances granted by the Zoning Board of Appeals affecting
properties in the Shoreland and Resource Protection Zones shall be
submitted to the Department of Environmental Protection within seven
days of the decision.
P.
The granting of a variance must be recorded in the York County Registry
of Deeds within 90 days of issuance of the final written approval
in order for it to be deemed valid.
