A.
A Board of Appeals is hereby established in accordance
with the provisions of 30-A M.R.S.A. § 2691. It consists
of not more than seven members. Members of the Board of Appeals are
appointed by the municipal officers. A municipal officer or municipal
officer's spouse may not be a member of the Board of Appeals.
[Amended 3-28-2009 ATM by Art. 21]
B.
The term of office of a member is three years serving
staggered terms. Initial terms are two members appointed for one year,
two for two years, and three for three years.
C.
When there is a permanent vacancy, the municipal officers
must appoint a new member to serve for the remainder of the unexpired
term.
D.
Members of the Board of Appeals must be legal residents
of Alfred when appointed and serving.
E.
Members of the Board of Appeals may be removed from
office by the municipal officers for cause upon written charges and
after public hearing. "For cause" includes failure of a Board member
to attend three consecutive meetings without the recorded consent
of the Chair.
F.
The Board of Appeals must annually elect a Chair,
Vice Chair, and Secretary from its own membership. No member may hold
two Board of Appeals offices simultaneously.
G.
Any question of whether a particular issue involves
a conflict of interest sufficient to disqualify a member from voting
must be decided by a majority of the members, except the member who
is being challenged.
A.
A quorum necessary to conduct business of the Board
of Appeals is four members.
B.
The Board of Appeals must adopt rules necessary to
the conduct of its affairs, in keeping with the provisions of this
chapter and 30-A M.R.S.A. § 2691.
C.
Meetings are held at the call of the Chair and at
such other times as the Board of Appeals may determine. All meetings
are open to the public.
D.
The Board of Appeals must keep minutes of its proceedings,
showing the vote of each member upon each question, or of absence
or failure to vote, and must keep records of its examinations and
other official actions, all of which are a public record and must
be filed with the Town Clerk.
The Board of Appeals has the following powers
and duties:
A.
Administrative appeal of the CEO. 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 written order, requirement,
decision, or determination made by, or failure to act by, the CEO
in the review of and action on a permit application under this chapter.
Any order, requirement, decision or determination made, or failure
to act, in the enforcement of this ordinance is not appealable to
the Board of Appeals.
[Amended 3-28-2009 ATM by Art. 21]
B.
Administrative appeal of the Planning Board. To hear
and decide administrative appeals, on an appellate 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 Planning Board in its administration of this chapter.
[Amended 3-28-2009 ATM by Art. 21]
C.
Variances. To authorize variances when specifically
applied for, but only within the limitations set forth in this chapter.
[Amended 3-8-2003 ATM by Art. 26; 3-8-2008 ATM by Art. 26]
A.
Standards applicable to all variances. Any of the
following types of variances may be granted only under the following
conditions:
[Amended 3-28-2009 ATM by Art. 21]
(1)
Variances may be granted only from dimensional requirements,
including but not limited to lot size, lot frontage, structure height,
lot coverage, and setback requirements, subject to the specific limitations
and restrictions found below in this section.
(2)
The Board shall not grant a variance unless it finds
that the proposed structure or use would meet the provisions of this
chapter except for the specific provision which has created the nonconformity
and from which relief is sought.
(3)
Establishment or expansion of nonconforming uses otherwise
prohibited are not allowed by variance.
(4)
A variance may not be granted simply because of the
presence of nonconformities in the district or uses in adjoining districts.
(5)
The variance granted shall only be the minimum variance
that will make possible the reasonable use of the land or structure
in order to preserve the terms of this chapter as much as possible,
and the Board of Appeals may impose such conditions to a variance
as it deems necessary, to this end. The party receiving the variance
and any subsequent owner of the property shall comply with any conditions
imposed.
(6)
The Board of Appeals may grant a variance only by
the concurring vote of at least four members.
B.
Types of variances allowable and standards for each.
The Board of Appeals may only grant three types of variances, as set
forth below:
(1)
Relaxed setback variances only for single-family dwellings
outside of shoreland areas. The Board may grant a variance from a
setback requirement for a single-family dwelling only when strict
application of the Zoning Ordinance to the petitioner and the petitioner's
property would cause undue hardship. The term "undue hardship" as
used in this subsection 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)
That the granting of a variance is based upon
demonstrated need, not convenience, and no other feasible alternative
is available.
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The use of the above relaxed setback variance
standards is strictly limited to permitting a variance from a setback
requirement for a single-family dwelling that is the primary year-round
residence of the petitioner.
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A variance under this subsection shall not be
granted if the variance would cause the area of the dwelling to exceed
the maximum permissible lot coverage.
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A variance under this subsection may only exceed
20% of a setback requirement, if the petitioner has obtained the written
consent of an affected abutting landowner.
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Under this subsection, variances of setbacks from water bodies in Shoreland Areas as described in Title 38, M.R.S.A. § 435 shall be prohibited. Variances of setbacks from water bodies in Shoreland Areas shall meet the criteria of Subsection B(3) below.
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(2)
Relaxed dimensional standards variance, available
to other uses than single-family outside of shoreland areas. The Board
may grant a variance from the dimensional standards of the Zoning
Ordinance to any uses other than single-family dwellings when strict
application of the ordinance 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 shoreland areas as described in Title 38, M.R.S.A. section
435.
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As used in this subsection, "dimensional standards"
means and is limited to ordinance provisions relating to lot area,
lot coverage, frontage and setback requirements.
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As used in this subsection, "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 zoning district in which the property is located and results
in significant economic injury to the petitioner.
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(3)
Dimensional variances allowable within shoreland areas.
Within shoreland areas as described in Title 38, M.R.S.A. § 435,
the Board of Appeals may grant a variance only if it finds that the
strict application of the terms of this ordinance would result in
undue hardship. The term “undue hardship” shall mean:
[Amended 3-28-2009 ATM by Art. 21]
(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.
Approval of a cluster development is not a variance. The approval of the Planning Board of a cluster development, pursuant to § 160-123 of the Alfred Town Code, shall not be considered the granting of a variance. In a cluster development, the Planning Board is not authorized to reduce the dimensional standards required under the mandatory shoreland zoning laws, Title 38, Chapter 3, Subchapter 1, Article 2-B.[1]
[1]
Editor's Note: See 38 M.R.S.A. §§ 435
through 449.
D.
Variances are not required for the placement of equipment or structures necessary for the sole purpose of making a dwelling accessible to a person with a disability, as defined by this chapter. Such equipment or structures are excluded from the definition of a structure; see Article II, definition of "structure."
[Added 3-28-2009 ATM by Art. 21]
A.
Application procedure.
[Amended 3-11-1995 ATM by Art. 18]
(1)
An aggrieved party may apply for an administrative
appeal, a variance, or both.
[Amended 3-28-2009 ATM by Art. 21]
(2)
An application is made by filing with the Board of
Appeals a written notice of appeal or application for a variance on
forms provided. The application must be received at the Alfred Town
Hall, addressed to the Board of Appeals, within 30 days of the date
of the official, written decision appealed from, and not otherwise,
except that the Board, upon a showing of good cause, may waive the
thirty-day requirement.
[Amended 3-28-2009 ATM by Art. 21]
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The application must include the following:
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(3)
When an application is filed, it must be examined
for completeness and accuracy, and particularly to determine whether
all information necessary to make a determination has been supplied.
Where information is lacking or inadequate at the time of submission,
the applicant must be notified in writing of the incompleteness. A
hearing may not be set until the application is complete. It is the
responsibility of the Board of Appeals Chair to determine completeness.
(4)
Upon being notified of an application for an administrative appeal or a variance, the CEO, or the Planning Board, if the appeal is of their decision in the administration of Article XIX, must transmit to the Board of Appeals copies of all the written documentation which makes up the record of the decision.
(5)
A copy of any variance request located in any
Shoreland Zone, including the application and all supporting information
supplied by the applicant, shall be forwarded by the Board of Appeals
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.
[Added 3-28-2009 ATM by Art. 21[1]]
[1]
Editor's Note: This Article also renumbered
former Subsection A(5) and (6) as Subsection A(6) and (7), respectively.
(6)
All advertising and administrative costs of an appeal
or a variance must be borne by the applicant and must be paid at the
public hearing.
(7)
The Board of Appeals shall hold a public hearing on
the appeal or variance request within 35 days of the receipt of the
completed application, unless this time period is extended by agreement
between the Board and the applicant.
[Amended 3-28-2009 ATM by Art. 21]
B.
Notification.
(1)
At least 10 days prior to the date of the hearing
on the appeal, the Board of Appeals must cause to be posted in the
Town Hall and must cause to be published once in a newspaper of general
circulation in the Town a notice which includes:
(2)
At least 10 days prior to the date set for hearing,
the Board of Appeals must also notify by certified mail:
(a)
All property owners of record whose properties
lie within 200 feet of the property in the Village or Center Village
District and 500 feet of the property in other districts, and
(b)
The person making the appeal.
(c)
The Planning Board, the CEO, and any other party
of record must also be notified in writing.
(3)
The Board of Appeals must keep a record of all parties
notified.
(4)
Failure of any property owner to receive a notice
of any public hearing does not necessitate another hearing or invalidate
any action by the Board of Appeals.
C.
Hearings.
(1)
When the Board of Appeals reviews a decision of the
Code Enforcement Officer or is considering a variance request, 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.
[Amended 3-28-2009 ATM by Art. 21]
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The Board of Appeals may exclude irrelevant,
immaterial, or unduly repetitious evidence. Every party has the right
to present a case or defense by oral or documentary evidence, to submit
rebuttal evidence, and to conduct such cross-examinations as may be
required for a full and true disclosure of the facts.
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When the Board of Appeals hears a decision of
the Planning Board, however, it shall hold an appellate hearing, and
may reverse the decision of the Planning Board only upon finding that
the decision was contrary to specific provisions of the ordinance
or contrary to the facts presented to the Planning Board. The Board
of Appeals may only review the record of the proceedings before the
Planning Board. The Board of Appeals shall not receive or consider
any evidence which was not presented to the Planning Board, but the
Board of Appeals may receive and consider written or oral arguments.
If the Board of Appeals determines that the record of the Planning
Board proceedings are inadequate, the Board of Appeals may remand
the matter to the Planning Board for additional fact finding.
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(2)
The applicant's case is heard first. To maintain orderly
procedure, each side has the right to proceed without interruption.
All persons at the hearing must abide by the order of the Chair.
(3)
At any hearing, a party may be represented by an agent.
(4)
Hearings may not be continued to other times except
for good cause. If the Board of Appeals votes to continue a hearing,
the motion to continue must include the reason for the continuance
and the time and date to which the hearing is continued.
(5)
The CEO or designated assistant, or the Planning Board Chair if the appeals is of the Planning Board's decision in the administration of Article XIX, must attend all hearings and may present to the Board of Appeals all plans, photographs, or other material the CEO or Planning Board deems appropriate for an understanding of the appeal.
(6)
The transcript of testimony, if any, and exhibits,
together with all papers and requests filed in the proceedings, constitute
the record.
(8)
The Board of Appeals may obtain goods and services
necessary to its proper function within the limits of appropriations
made for the purpose and purchasing policies of the Town.
A.
The concurring vote of at least four members of the
Board of Appeals is necessary to grant an administrative appeal or
a variance. A tie vote fails.
B.
The Board of Appeals shall decide all administrative
appeals and variances within 35 days after the close of the hearing,
and shall issue a written decision.
[Amended 3-28-2009 ATM by Art. 21]
C.
All decisions become a part of the record and must
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. Notice
of any decision must be mailed or hand delivered to the applicant
and agent, the Planning Board, the CEO, and the municipal officers
within seven days of the decision date.
D.
Upon notification of the approval of an administrative
appeal or a variance by the Board of Appeals, the CEO or Planning
Board must comply with the order of the Board of Appeals.
E.
The Board shall cause written notice of its decision
to be mailed or hand-delivered to the Department of Environmental
Protection within seven days of the decision.
[Amended 3-28-2009 ATM by Art. 21]
F.
Whenever the Board of Appeals grants a variance, 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 act that a variance, including any conditions
on the variance, has been granted and the date of the granting, must
be prepared in recordable form. This certificate must be recorded
by the property owner in the York 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.
For the purpose of this subsection, the date of the final written
approval is the date stated on the written approval.
G.
Except as provided by 30-A M.R.S.A. § 2691(3)(F),
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.
[Amended 3-28-2009 ATM by Art. 21]
H.
If the Board of Appeals cannot judge information
presented to it because of its technical nature, the Board may, after
notification to, and at the expense of, the applicant, employ one
or more independent consultants to review the information. The estimated
costs of such studies must be deposited with the Town Treasurer prior
to their undertaking. Any money not spent must be reimbursed to the
applicant.
[Added 3-11-1995 ATM by Art. 18]
I.
Reconsideration. In accordance with 30-A M.R.S.A.
§ 2691(3)(F), 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 abuttors and those who testified at the original hearing(s).
The Board may conduct additional hearings and receive additional evidence
and testimony.
[Added 3-28-2009 ATM by Art. 21]
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Appeal of a reconsidered decision to Superior
Court must be made within 15 days after the decision on reconsideration.
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An application to the Board of Appeals for the
granting of an administrative appeal or a variance stays all legal
proceedings related to that administrative appeal or variance unless
the CEO certifies to the Board of Appeals, after the notice of administrative
appeal or variance has been filed with the CEO, that by reason of
facts stated in the certificate a stay would, in the CEO's opinion,
cause irreparable harm to property or create a threat to the life
or health of any person, including the applicant. In such case, the
CEO, if legally authorized by state law or local ordinance, may seek
injunctive relief or, in appropriate cases, refer the matter to the
municipal officers for prosecution.
The application fee must be set annually by
the Board of Selectmen.
