A.
There shall be a Zoning Board of Appeals in accordance with the provisions
of 30-A M.R.S.A. § 4353, as the same may be amended from
time to time.
B.
The Board shall consist of five members serving staggered terms of
three years, appointed by the Board of Selectmen. The Board of Selectmen
may also appoint three alternate members to serve in the absence of
regular members. Any alternate members appointed to the Zoning Board
of Appeals shall serve one-year terms. During the absence of a regular
member at any meeting, the Chairman of the Zoning Board of Appeals
shall designate the alternate member, who shall serve during the absence
of the absent regular member.
C.
Once a member of the Zoning Board of Appeals has been sworn into
office, he or she shall continue in that office for the remainder
of his or her term without having to renew said oath of office annually.
A.
The Zoning Board of Appeals shall conduct its meetings in accordance
with the provisions of 30-A M.R.S.A. § 4353, as the same
may be amended from time to time.
B.
The presence of three voting members of the Zoning Board of Appeals
shall constitute a quorum.
C.
An appeal or any application for action by the Zoning Board of Appeals
shall be granted or a decision of the Code Enforcement Officer can
be overruled only upon an affirmative vote of at least three members
of the Zoning Board of Appeals on each finding of fact and the final
disposition.
[Amended 11-15-2005]
D.
Before rendering a decision on any appeal, the Zoning Board of Appeals
shall conduct a public hearing, which shall be advertised 10 days
in advance in a local newspaper and posted in other places usually
used for public notices, at the expense of the appellant.
E.
The Zoning Board of Appeals shall not continue hearings to a future
date except for good cause.
F.
Written notice of the decision of the Board shall be sent to the
applicant and the Code Enforcement Officer within seven days of its
decision.
G.
An appeal may be taken from any decision of the Zoning Board of Appeals
to the Superior Court within 45 days after the decision, as provided
by 30-A M.R.S.A. § 4353, as the same may be amended from
time to time.
H.
The Zoning Board of Appeals shall keep records of its proceedings
and such records shall be public.
The Zoning Board of Appeals shall have the following powers
and duties:
A.
Administrative appeals. To affirm, modify or set aside the action
of the Code Enforcement Officer in issuing or denying building or
use permits, sign permits, or certificates of occupancy when it is
alleged that the action is based on an erroneous interpretation of
this chapter.
[Amended 6-12-2012]
B.
Special exception permits. To approve, approve with conditions, or disapprove applications for special exception permits, according to the terms of § 290-7.4 of this article.
C.
Variances. To approve, approve with conditions, or disapprove variances from the strict enforcement of the provisions of this chapter only as they relate to the space and bulk standards of the district regulations or a performance standard contained in Articles X and XA, according to the terms of § 290-7.5 of this article.
D.
Changes in nonconforming uses; or lots, structures, and uses in shoreland
areas. To approve, approve with conditions, or disapprove requests
to:
(2)
Divide a single lot of record that has two or more principal uses or structures, as authorized in Article VI, § 290-6.2B(2);
E.
Standards of home occupation. To approve, approve with conditions, or disapprove requests to exceed the specific standards concerning home occupations concerning the number of employees, traffic generated, and percentage of floor area set forth in Article XA, § 290-10A.8, of this chapter, in accordance with the standards of Article VII, § 290-7.6, of this chapter.
F.
Off-street parking. To grant waivers of the off-street parking requirements in the Downtown, River Business, Harbor Business and Transitional Harbor Business Districts in accordance with Article XA, § 290-10A.5D(3)(e), and Article X, Part II, Section 2(c)(5).[1]
[1]
Editor's Note: So in original.
G.
Stop-work orders, revocation of permits, and other similar notices.
To affirm, modify or set aside the action of the Code Enforcement
Officer in issuing stop-work orders, revocation of permits, notices
of violations of this chapter, and other similar actions when it is
alleged that such action is based upon an error of the Code Enforcement
Officer in concluding that there has been a violation of this chapter
by any person, noncompliance with building permits or other sufficient
cause under this chapter.
I.
To decide an appeal of a decision of the Code Enforcement Officer or the Planning Board, as an administrative appeal, from a decision pursuant to Chapter 282, Wireless Telecommunications Facilities, when it is alleged that the decision is based on an erroneous interpretation of that chapter. The review of the Zoning Board of Appeals shall be based exclusively on the record before the Planning Board. An appeal of a decision of the Code Enforcement Officer shall be de novo (requiring an evidentiary hearing).
A.
Purpose and applicability. The purpose of this section is to enable
the Zoning Board of Appeals to review certain proposed uses of the
land that have the potential of creating unusual or undue impacts
on surrounding properties, municipal facilities, or the natural environment.
A building, structure, or parcel of land may be used for a special
exception use if the use is specifically listed in the regulations
governing the zoning district in which the use is proposed and if
a special exception permit is approved by the Zoning Board of Appeals.
B.
Application for special exception permit. Application for a special
exception permit shall be made to the Code Enforcement Officer on
forms provided for the purposes accompanied by such fee as the Board
of Selectmen shall set on an annual basis for such applications. The
applicant shall:
(1)
Clearly specify the location of the proposed use, including
street address, Assessor's Tax Map and lot number, and a location
map.
(2)
Describe the exact nature of the proposed use.
(3)
Submit such other materials as will enable the Zoning Board
of Appeals to determine that the standards for approval of a special
exception permit have been met. The burden of providing the information
upon which the Board bases its findings and of proving conformity
with the standards shall be the applicant's.
C.
Standards for special exception permit. A special exception may be
granted by the Zoning Board of Appeals only in the event that the
applicant has established to the satisfaction of the Board that:
(1)
Neither the proposed use nor the proposed site upon which the
use will be located is of such a character that the use will have
significant adverse impact upon the value or quiet possession of surrounding
properties greater than would normally occur from such a use in the
zoning district. In reaching a determination on this standard, the
Board shall consider:
(a)
The size of the proposed use compared with surrounding uses;
(b)
The intensity of the proposed use, including amount and type
of traffic to be generated, hours of operation, expanse of pavement,
and similar measures of intensity of use, compared with surrounding
uses;
(c)
The potential generation of noise, dust, odor, vibration, glare,
smoke, litter, and other nuisances;
(d)
Unusual physical characteristics of the site, including size
of the lot, shape of the lot, topography, and soils, which tend to
aggravate adverse impacts upon surrounding properties; and
(e)
The degree to which landscaping, fencing, and other design elements
have been incorporated to mitigate impacts on surrounding properties.
(2)
Municipal facilities serving the proposed use will not be overburdened.
In reaching a determination on this standard, the Board shall consider:
(a)
The ability of traffic to safely move into and out of the site
at the proposed location;
(b)
The presence of facilities to assure the safety of pedestrians
passing by the site;
(c)
The capacity of the street network to accommodate the proposed
use;
(d)
The capacity of public sewerage and water facilities, if they
are to be used, to accommodate the proposed use; and
(e)
The capacity of the public storm drainage system, if it is to
be used, to accommodate the proposed use.
(3)
The natural characteristics of the site, including topography,
drainage, and relationship to groundwater and surface waters and floodplains,
shall not be such that the proposed use when placed on the site will
cause undue harm to the environment or to neighboring properties.
(4)
Undisclosed future uses. In an application for a special exception
requiring renovation or enlargement of an existing building or new
construction, the applicant shall not be required to name specifically
all the uses on the lot if they are not known at the time of renovation,
enlargement or new construction. Instead, the applicant shall state
on his application all the specific uses that are anticipated for
the lot. For the area on the lot for which the use is not then known,
the applicant shall designate those areas as "undisclosed future uses."
The applicant must designate on the application at least one known
special exception use. The Zoning Board of Appeals may grant special
exceptions for the known specific uses and the project may proceed
to site review, if required, and a building permit may be issued after
site plan review, with the condition that any required special exceptions
for the undisclosed future uses will be obtained when the uses are
determined. The lot shall not be used for the undisclosed future uses
which require a special exception until the required special exception
is obtained.
(5)
In considering the foregoing standards, the Zoning Board of
Appeals shall fully review these standards even though the applicant
may also be subject to site plan approval.
D.
Additional standards in shoreland areas. For special exception permit
applications in shoreland areas, the Board shall additionally find
that the proposed use:
(1)
Will not result in unreasonable damage to spawning grounds,
fish, aquatic life, bird and other wildlife habitat;
(2)
Will reasonably conserve shoreland vegetation;
(3)
Will reasonably conserve visual points of access to waters as
viewed from public facilities;
(4)
Will reasonably conserve actual points of public access to waters;
(5)
Will reasonably conserve natural beauty;
(6)
Will reasonably avoid problems associated with floodplain development
or use;
(7)
Access from shore shall be developed on soils appropriate for
such use and constructed so as to reasonably control erosion or sedimentation
on both subject and surrounding properties;
(8)
The use shall not unreasonably interfere with beach areas;
(9)
The facility shall be located so as to minimize adverse effect
on marine harvesting and commercial fishing;
(10)
The facility shall be located so as not to interfere with commercial
or recreational boating and moorings.
E.
Additional standards for marijuana cultivation facilities. For special
exception permit applications for marijuana cultivation facilities,
the Board shall additionally find that:
(1)
Evidence of methods to meet the performance standards in Article XA, Performance Standards Generally, § 290-10A.13, Marijuana cultivation facilities, has been submitted as an addendum to the special exception application;
(2)
The proposed development complies with the space and bulk standards
of the district in which the property in question is located.
F.
Conditions of approval. The Board may attach conditions to its approval
of a special exception permit. These conditions may include, but are
not limited to, such requirements as:
G.
Reapplication. If the Zoning Board of Appeals shall deny a special
exception permit, a second request of a similar nature shall not be
brought before the Board within two years from the date of the first
request unless, in the opinion of the majority of the Board, substantial
new evidence can be brought forward, or unless the Board finds that
an error of law or misunderstanding of facts has been made, or unless
amendment to this chapter has changed the status, circumstances, or
conditions of the matter which was brought before the Board.
H.
Duration of special exception permit.
(1)
Provided all conditions and standards of approval are met, a
special exception permit shall be a permanent grant of permission
and shall run with the land.
(2)
A use granted by special exception may be expanded in area or
function only with the granting of a new special exception by the
Zoning Board of Appeals.
I.
Scope of permit. Any permit or approval granted hereunder is subject
to all elements of the final plans and specifications submitted by
the applicant and to all representations, oral or written, made by
or on behalf of the applicant in support of the application or with
respect to the nature and scope of the use, activity or work proposed,
and all such permits or approvals shall include, as an express condition,
a written statement to said effect.
J.
Special criteria for low-impact uses. A low impact-use, as defined
in this chapter, shall:
(1)
Be located within a building that also includes one or more
dwelling units;
(2)
Occupy no more than 2,000 square feet of total floor area;
(3)
Not cause an existing building, whether or not actually occupied
by a dwelling unit, to be demolished for the purpose of creating a
low-impact use;
(4)
Generate no more than a daily average of 20 vehicular trip ends
on week days, based on a data contained in the latest edition of "Trip
Generation," published by the Institute of Traffic Engineers, or,
if the Code Enforcement Officer is unable to classify the proposed
activity into one of the uses listed in this reference work, based
on the written opinion of a professional traffic engineer;
(5)
Have no more than one curb cut, which shall have a maximum width
of 20 feet;
(6)
Require, in addition to the required number of spaces for the dwelling unit(s), no more than five parking spaces, based on the requirements of Article XA, § 290-10.A5, or, if the type of use cannot be classified as one of the uses listed in § 290-7.4, based on the average rates per 1,000 square feet of building area for peak parking spaces occupied as identified in the latest edition of "Parking Generation," published by the Institute of Transportation Engineers;
(7)
Locate any on-site parking to the rear or side of the building,
with no such parking between the building and any street or in the
lot's required front yard;
(9)
Not generate hourly sound levels resulting from routine operations
in excess of 60 dBA as measured at the property line;
(10)
Not be open for business before 7:00 a.m. or after 8:00 p.m.;
(11)
Comply with the sign regulations of Article XI of this chapter relating to residential districts;
(12)
Neither make nor receive shipments in trucks more than 5 times
a week;
(13)
Store materials or display or sell goods only within a fully
enclosed building;
(14)
If new construction is involved, achieve a residential appearance,
including a roof pitch of at least six in 12 (or 50%) and the use
of exterior materials typical of residences in the area.
A.
Purpose and applicability. The purpose of a variance is to allow
an applicant to exceed a space and bulk standard or a performance
standard under the very limited circumstances set forth in this section.
A variance is authorized only for the space and bulk standards of
the district regulations and for the performance standards of this
chapter. A variance shall not be granted to allow a use or an expansion
of a use not otherwise permitted in the district.
B.
Application for variance. Application for a variance shall be made
to the Code Enforcement Officer on forms provided for that purpose,
accompanied by a fee as the Board of Selectmen shall set on an annual
basis for such applications. The application shall clearly state the
location of the property, the relief sought, and the reason(s) for
requesting the variance.
C.
Standards. Prior to voting to grant a variance, the Zoning Board
of Appeals shall review the application and find that the following
standards have been met:
(1)
That a literal interpretation of the requirement of this chapter
will impose an undue hardship on the property owner. The term "undue
hardship" shall mean specifically that:
(a)
The land in question cannot yield a reasonable return unless
a variance is granted;
(b)
The need for the variance is due to unique circumstances of
the property and not to the general conditions of the neighborhood;
(c)
The hardship is not the result of action taken by the applicant
or a prior owner; and
(d)
The granting of the variance will not alter the essential character
of the locality.
(2)
Notwithstanding the requirement set forth in Subsection C(1)(a) above, that the applicant show that the land in question cannot yield a reasonable return unless a variance is granted, the Zoning Board of Appeals may grant a variance for setbacks for single-family detached dwellings if it finds that the application meets the standards contained in Subsection C(1)(b) through (d) and, in addition, finds that:
(a)
The granting of the variance will not substantially reduce or
impair the use of abutting property;
(b)
The granting of the variance is based upon demonstrated need,
not convenience, and no other feasible alternative is available;
(c)
The dwelling for which the variance is sought is the primary,
year-round residence of the applicant;
(d)
The variance will not exceed 20% of the required setback; and
(e)
The variance will not cause the area of the dwelling to exceed
the maximum permissible building coverage.
(3)
The Board may grant a variance without making a finding of undue
hardship to a property owner for the purpose of making the property
accessible to a person with a disability who is living on the property.
Any such variance granted shall be restricted 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.
For the purposes of this subsection, a "disability" has the same meaning
as a physical or mental handicap under Title 5 M.R.S.A. § 4553,
namely, any disability, infirmity, malformation, disfigurement, congenital
defect or mental condition caused by bodily injury, accident, disease,
birth defect, environmental conditions or illness, and includes the
physical or mental condition of a person that constitutes a substantial
disability as determined by a physician or, in the case of mental
disability, by a psychiatrist or psychologist, as well as any other
health or sensory impairment that requires special education, vocational
rehabilitation, or related services.
(4)
Any variance granted by the Zoning Board of Appeals shall be
the minimum variance from the terms of this chapter that will relieve
the hardship pleaded.
D.
Variance in shoreland areas. Prior to voting to grant a variance
within the mandated shoreland area, the Zoning Board of Appeals shall,
in addition, find that the proposed variance:
(1)
Will not result in unsafe or unhealthful conditions;
(2)
Will not result in unreasonable erosion or sedimentation;
(3)
Will not result in water pollution;
(4)
Will not result in unreasonably damaged spawning grounds, fish,
aquatic life, bird and other wildlife habitat;
(5)
Will reasonably conserve shoreland vegetation;
(6)
Will reasonably conserve visual points of access to waters as
viewed from public facilities;
(7)
Will reasonably conserve actual points of public access to waters;
(8)
Will reasonably conserve natural beauty; and
(9)
Will reasonably avoid problems associated with floodplain development
and use.
E.
Conditions of approval. The Zoning Board of Appeals is empowered
to impose such conditions on its approval of a variance as are necessary,
in its judgment, to protect surrounding property owners or the Town
from adverse impacts resulting from the variance.
F.
Recording of variance. If the Zoning Board of Appeals 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 by the applicant in
recordable form. This certificate must be recorded by the applicant
at the applicant's expense in the Knox County Registry of Deeds within
90 days of the date of the final written approval of the variance
or the variance is void. The variance is not valid until recorded
as provided herein.
G.
Reapplication. If the Zoning Board of Appeals shall deny a variance,
a second request of a similar nature shall not be brought before the
Board within two years from the date of the first request unless,
in the opinion of the majority of the Board, substantial new evidence
can be brought forward, or unless the Board finds that an error of
law or misunderstanding of facts has been made, or unless amendment
has been made to this chapter which changes the status, circumstances,
or conditions of the matter which was appealed.
H.
Duration of variance. Provided all conditions and standards of approval
are met, a variance shall be a permanent grant of permission and shall
run with the land.
A request to exceed the standards of a home occupation that
concerns the number of employees, traffic generated, and percentage
of floor area shall be granted only in the event that the applicant
has established to the satisfaction of the Zoning Board of Appeals
that:
