A.
Establishment. The City of Saco Zoning Board of Appeals, hereinafter
the "BoA," is hereby created, which BoA shall consist of seven regular
members and two alternates, who shall be appointed by the Mayor, subject
to confirmation by the City Council, none of whom shall hold any elective
office or any other appointive position in the City government. The
BoA shall elect a Chair and a Secretary from its members.
B.
Quorum. A quorum shall consist of four members. All decisions by
the BoA shall be by a majority vote by members present and voting
at the meeting, but under no circumstances shall fewer than three
members comprise a majority. Alternates shall vote only in the absence
of regular members. In the event of the absence of a regular member
or member(s), the alternate who has served the longest time shall
fill the first vacancy, and the other alternate shall fill the second
vacancy. In the event that both alternates shall have served the same
period of time, selection of an alternate shall be at the discretion
of the Chair.
A.
Terms. The term of the members shall be five years, and terms shall
be staggered with twelve-month intervals. Any vacancy during the unexpired
term of a member shall be filled for the remainder of the term.
B.
Vacancies.
(1)
Vacancies on the BoA occur under the following circumstances:
(a)
A member submits their resignation in writing to the Mayor.
(b)
A member's official residence is no longer within the City of
Saco, in which instance the Secretary of the BoA shall notify the
Mayor.
(c)
Upon expiration of the term of a member.
(d)
A member fails to attend three or more consecutive meetings
of the BoA, without being excused by the BoA.
(2)
In the case of vacancies occurring in the manner described in Subsection B(1)(d) above, the Chair shall first contact the absent member to determine their ability to attend future hearings on a regular basis. The BoA shall then recommend appropriate action to the City Council.
(3)
A vacancy during the unexpired term of a member shall be filled
by a person appointed by the Mayor for the duration of the unexpired
term.
(4)
A member of the BoA may be removed for cause by the City Council,
provided that the member shall first be notified in writing and given
the opportunity for a hearing.
The BoA shall hear the following matters:
A.
Administrative appeals from decisions by the CEO. An aggrieved party may appeal a decision of the CEO regarding a zoning violation, a building permit or a certificate of occupancy in those cases where it is alleged the CEO has made an error of law, or has abused their discretion, or the evidence of record compelled a different decision. An aggrieved party may also appeal to the BoA if a permit holder has meaningfully exceeded the authority granted in their building permit or their certificate of occupancy. An appeal filed hereunder must be brought within 30 days of the alleged act, action or failure to act. This provision is intended to effectuate the process set out by the Legislature in 30-A M.R.S.A § 2691(4). The appeal review shall be de novo as set out below in § 230-1605G. The BoA may affirm, reverse or modify the decision of the CEO, and that decision may be appealed as set out in this article.
B.
Variances from decisions by the CEO.
(1)
The BoA has authority to approve, approve with conditions, or
deny applications for variances from decisions made by the CEO regarding
standards of this chapter as allowed under this article. The review
conducted by the BoA on such variances shall be de novo as set out
below in this article. Such decisions by the BoA may be appealed as
set out in this article.
C.
Variances from historic preservation conditions. The BoA shall have authority to approve, approve with conditions, or deny applications for variances as further detailed in Article XIX. The review conducted by the BoA shall be de novo as set out below in this article.
D.
Historic preservation commission. The BoA may hear appeals of decisions
made by the Historic Preservation Commission. A decision by the Historic
Preservation Commission on an application for a certificate of appropriateness
may be appealed, in writing, to the BoA within 30 days of the Commission's
decision. The BoA may affirm the decision, or it may reverse the Commission's
decision upon a finding that there has been an error of law or that
the facts leading to the decision of the Commission were erroneous.
The review made by the BoA shall be appellate. If the BoA reverses
the decision of the Commission, it shall be remanded to the Commission
for further consideration, but not more than once. Thereafter, the
parties shall have their appeal rights as allowed under this article.
E.
Shoreland and natural resource district variances. The BoA shall have authority to approve, approve with conditions, or deny applications for a variance from shoreland and natural resource standards set out in Article VIII of this chapter. The review conducted by the BoA shall be de novo as set out in this article.
A.
Applicability. A variance is authorized only for the following space
and bulk requirements:
(1)
Minimum lot area.
(2)
Lot area per dwelling unit.
(3)
Minimum street frontage.
(4)
Minimum yards and setbacks.
(5)
Maximum lot coverage.
(6)
Maximum height.
(7)
On lots divided by district boundaries, the extension of uses
allowed in the less-restricted zone more than 50 feet into the more-restricted
zone.
(8)
Curb cut standards.
(9)
Sign standards.
B.
Establishment or expansion of a use otherwise prohibited shall not
be allowed by variance, nor shall a variance be granted because of
the presence of nonconforming structures in the particular zone or
adjoining zones.
D.
Standards for a variance.
(1)
That strict application of the ordinance to the petitioner and
the petitioner's property would cause undue hardship. 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)
That the granting of the variance will not alter the essential
character of the locality; and
(d)
The hardship is not the result of action taken by the applicant
or a prior owner.
(2)
No variance shall be granted merely to relieve inconvenience
to the property owner or for economic considerations alone.
(3)
Any variance granted by the BoA shall be the minimum variance
from the terms of this chapter as will relieve the hardship pleaded.
E.
Special standards for certain variances for single-family dwellings.
(1)
Pursuant to 30-A M.R.S.A § 4353, Subsection 4B, the
BoA may also grant setback variances for single-family detached dwellings
under the alternate definition of "undue hardship" below. Variances
granted under this section are limited to single-family detached dwellings
that are the primary year-round residence of the petitioner, and are
subject to the following:
(a)
Variances in front yard or side yard and rear yard, not to exceed
20% of the setback requirement;
(b)
Variances granted under this subsection shall not cause the
area of the dwelling to exceed the maximum lot coverage permitted
in the district;
(c)
Variances granted under this subsection shall be the minimum
variance needed; and
(d)
Variances granted under this subsection shall not cause the
house which receives the variance to be within 10 feet of an occupied
building on the adjacent lot.
(2)
Prior to voting to grant a variance, the BoA shall review the
application and find that all of the following standards of the alternative
definition of "undue hardship" for this subsection have been met:
(a)
The need for the variance is due to unique circumstances of
the property and not to the general conditions of 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.
F.
Disability variance. The BoA 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.
(1)
The BoA shall restrict any variance granted under this section
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 BoA 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, 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.
G.
Standards for a variance in shoreland areas.
(1)
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
BoA. Comments received from the Commissioner prior to the action by
the BoA shall be made part of the record and shall be taken into consideration
by the BoA.
(2)
Prior to voting to grant a variance within the mandated shoreland area, the BoA shall, in addition to the undue hardship standards in Subsection D above, find that the proposed variance:
(a)
Will not result in unsafe or unhealthful conditions;
(b)
Will not result in erosion or sedimentation;
(c)
Will not result in water pollution;
(d)
Will not result in damage to spawning grounds, fish, aquatic
life, bird, and other wildlife habitats;
(e)
Will conserve shoreland vegetation;
(f)
Will conserve visual points of access to waters as viewed from
public facilities;
(g)
Will conserve actual points of public access to waters;
(h)
Will conserve natural beauty; and
(i)
Will avoid problems associated with floodplain development and
use.
(3)
The BoA shall cause written notice of its decision to be mailed
or hand-delivered to the applicant and to the Department of Environmental
Protection within seven days of the BoA's decision.
H.
Conditions of approval. The BoA may impose such conditions on its
approval of a variance as are necessary, in its judgment, to protect
surrounding property owners or the City from adverse impacts resulting
from the variance.
I.
Limits on variances. A variance granted by the BoA shall expire if
the work or change involved is not commenced within six months of
the date on which the variance was granted or if the work or change
is not substantially completed within a twelve-month period, unless
extended by the BoA.
J.
Prior work. Any construction activity commenced prior to the granting
of a required variance shall be a violation of this chapter.
A.
Application for a variance. Application to the BoA for a variance
shall be submitted to the CEO on forms provided for that purpose,
accompanied by a fee as may be established by the City Council for
such applications. The application shall clearly state the location
of the property, the relief sought, and the reason(s) for requesting
the variance.
B.
Denial of building permit. All applicants for building permits denied
for any reason shall be advised, in writing, of the right of appeal.
C.
Application for a variance and filing of an appeal.
(1)
An appeal or application for a variance shall be commenced as set forth below in Subsection C(2).
(2)
Such appeal or application for a variance shall include the
following information:
(a)
A concise, written statement indicating what relief is requested
and why it should be granted.
(b)
A description of the regulation, ordinance provision, or permit
that is subject to review or from which relief is requested.
(c)
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.
(d)
If applicable, a demarcation on the sketch showing low tide
and mean high tide and designating the one-hundred-year flood area,
wetlands, shorelines, or other pertinent natural features.
(e)
If applicable, color pictures of the exterior features at issue
if the appeal or variance concerns a structure found in the Historic
District.
(3)
Upon being notified of an appeal or of an application for a
variance, the CEO or designee shall arrange to secure and transmit
to the BoA all of the papers and evidence constituting the record
of the decision that is to be reviewed.
D.
Public hearing required.
(1)
For all appeals from decisions of the CEO, for all requests
for any variance, the BoA shall hold a public hearing, but the BoA
shall only take and hear new evidence or testimony in those matters
where de novo review is expressly permitted. The BoA will hear argument
from the parties only when it conducts appellate review, and oral
argument will be limited to the record of proceedings before the Planning
Board. The hearing shall be held within 35 days of the receipt of
an appeal or application for variance.
(2)
The BoA shall cause public notice to be posted and published
in both the City Building and at least one newspaper of circulation
in the area, of any public hearing which the BoA shall conduct, indicating
the property involved, the nature of the appeal, and the time and
place of the public hearing.
(3)
The BoA shall also cause to have notified all property owners
of property within 600 feet of the property when the applicant's property
is located in the RR, I, LDR, and MDR Districts, and within 200 feet
when the applicant's property is located in the HDR District or any
business district. The BoA shall cause a list of such property owners
to be drawn from the Assessor's records, and such notices to property
owners shall be sent by mail at least seven days prior to the date
set for the public hearing.
(4)
The BoA shall not continue hearings to a future date except
for good cause. Written notice of the decision of the BoA shall be
sent to the appellant and the CEO.
E.
Time for appeal, forms and fees.
(1)
When a person is aggrieved by a decision of the CEO, by a decision
of the Historic Preservation Commission, or by a decision of the Planning
Board, if an appeal or variance application is authorized elsewhere
under this chapter, the aggrieved person must file their appeal or
variance application with the Code Enforcement Department within 30
days of the day the decision was rendered.
(2)
Any appeal or application for variance to the BoA shall be accompanied
by a fee as established by the City Council.
F.
Rules of procedure. The BoA shall adopt its own rules of procedure
for the conduct of its business not inconsistent with this chapter
and the statutes of Maine and may amend the same after notice and
public hearing. Such rules shall be filed with the BoA Secretary and
the City Clerk. Any rule so adopted and not mandated by this chapter
or the statutes of Maine may be waived by the Chair of the BoA for
good cause shown.
G.
Submission of evidence. Where the BoA conducts de novo review of
a decision, the BoA may receive oral or documentary evidence, including
new evidence and testimony, but shall provide as a matter of policy
for the exclusion of irrelevant, immaterial, or unduly repetitious
evidence. In a de novo proceeding, every party shall have the right
to present their own case or defense by oral or documentary evidence,
to submit rebuttal evidence, and to conduct such cross-examination
as may be required for a full and true disclosure of the facts.
H.
Presence of CEO. The CEO, unless prevented by illness or absence
from the state, shall attend all hearings and shall present to the
BoA all plans, photographs, or other factual material that is appropriate
to an understanding of the appeal.
I.
Conflict of interest. No member of the BoA shall vote on a matter
in which they have a direct or indirect financial or personal interest.
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 majority vote of the members, except the member who
is either requesting a decision or who is being challenged.
J.
Records and decisions.
(1)
The Secretary shall maintain a permanent record of all BoA meetings
and all correspondence of the BoA. The Secretary shall be responsible
for maintaining those records which are required as part of the various
proceedings which may be brought before the BoA. All records to be
maintained or prepared by the Secretary are deemed public, shall be
filed in the City Clerk's office, and may be inspected at reasonable
times.
(2)
The transcript of testimony, if any, and exhibits, together
with all papers and requests filed in the proceedings, shall constitute
the record. All decisions shall become a part of the record and shall
include a statement of findings and conclusions, as well as the reasons
or basis therefor, upon all the material issues of fact, law, or discretion
presented and the appropriate order, relief, or denial thereof.
(3)
Notification of decision. The City Clerk, Planning Board, and
CEO shall be notified, in writing, within seven days of all decisions
of the BoA. Written notice to the appellant shall be sent within seven
days after the date of the decision. The notice shall include, as
every decision of the BoA shall include, findings of fact; shall refer
to the evidence in the record and the exhibits, plans, or specifications
upon which such decision is based; shall specify the reason or reasons
for such decision; and shall contain a conclusion or statement separate
from the findings of fact setting forth the specific relief granted
or denied.
K.
Reapplication. If the BoA denies a variance, a second request of
a similar nature shall not be brought before the BoA within two years
from the date of the first request, unless, in the opinion of a majority
of the BoA, substantial new evidence can be brought forward, or unless
the BoA finds, in its sole and exclusive judgment, 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.
The BoA may reconsider any decision reached under this section within 45 days of its prior decision. A request to the BoA to reconsider a decision must be filed within 10 days of the decision that is to be 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. The BoA may conduct additional hearings and receive additional evidence and testimony as provided in this subsection. Notwithstanding § 230-1607, appeal of a reconsidered decision must be made within 15 days after the decision on reconsideration or within the applicable time period under 30-A M.R.S.A § 4482-A. if the final municipal review of the project is by a municipal administrative review board other than a board of appeal.
Any aggrieved party may take an appeal, within 45 days of the
date of the vote on the original BoA decision, to Superior Court from
any order, relief or denial in accordance with the Maine Rules of
Civil Procedure, Rule 80B.
