Town of Bar Harbor, ME Article XI Appeals and Variances

§ 125-102 Variances.

A. Authority. A variance may be granted by the Board of Appeals from the restrictions imposed by this chapter on lot coverage and front, side or rear setback only where a strict application of such restrictions to the petitioner and the petitioner's property would cause undue hardship. A variance shall not be granted to permit a use or structure otherwise prohibited by this chapter.

[Amended 5-2-1994]

B. Hardship defined. "Undue hardship" shall mean that:

(1) The land in question cannot yield a reasonable return unless a variance is granted;

(2) The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;

(3) The granting of a variance will not alter the essential character of the locality; and

(4) The hardship is not the result of action taken by the applicant or a prior owner.

C. Application. An application for a variance shall include the following:

(1) A completed application on a form prescribed by the Planning Department.

(2) An administrative fee and a public notice fee, which fees shall, from time to time, be set by the Bar Harbor Town Council.

(3) If a variance is sought for a project already completed, a late fee which shall, from time to time, be set by the Bar Harbor Council.

(4) A written statement, which may be accompanied by diagrams or photographs and such other evidence as the petitioner may choose to submit, demonstrating:

(a) The exact nature of the hardship alleged;

(b) The physical circumstances that create the alleged hardship;

(c) That such physical circumstances are peculiar to the property in question and are not substantially duplicated on other property adjoining or nearby in the same neighborhood or zoning district;

(d) That the relief sought would not adversely affect property adjoining or nearby in the same neighborhood or the same zoning district and would not endanger the public health, safety or convenience and would not be contrary to this chapter or the Bar Harbor Comprehensive Plan; and

(e) That all other elements of undue hardship, as defined above, are present.

D. Submissions generally.

(1) At least 20 days prior to the Board of Appeals meeting at which a petitioner wishes to be heard, the petitioner shall provide to the Planning Department copies of all application materials in the form and quantity described in § 125-61B, except that each submission shall be conspicuously labeled "Variance Exhibit 1," "Variance Exhibit 2," and so on, in consecutive fashion. The petitioner shall also provide the Commissioner of the Department of Environmental Protection with one copy of all application materials in the form and quantity described in § 125-61B at least 20 days prior to the Board meeting. 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. Comments from the Commissioner must be received at least two days prior to a hearing in order to be included in the record.

[Amended 11-4-2008; 11-3-2009; 6-8-2010]

(2) At least two days prior to the public hearing on a variance request, any other person wishing to present documentary evidence to the Board of Appeals shall provide to the Planning Department copies of all such evidence in form and quantity described in § 125-61B, except that each submission shall be conspicuously labeled with that person's surname followed by "Exhibit 1," "Exhibit 2" and so on, in consecutive fashion.

[Amended 11-5-1991; 5-4-1992]

E. Hearing. Within 45 days of the Planning Department's receipt of the required copies of a variance application, unless delay is caused by the petitioner's failure to comply with the requirements of Subsection D(1), the Board of Appeals shall conduct a public hearing on said application in accordance with the following:

[Amended 11-5-1991; 5-3-2004]

(1) Published notice. Notice of said hearing shall be published in a newspaper of general circulation in the Town of Bar Harbor at least 10 days prior to the hearing date.

(2) Mailed notice. At least 10 days prior to the hearing date, written notice of said hearing shall also be mailed by U.S. Mail first-class postage to the applicant, to the owners of all property within 300 feet of the property in question, and to the Bar Harbor Town Council and the Bar Harbor Planning Board, each of which shall be parties. The owners of property shall be considered to be those shown on the Town's tax list as the persons against whom taxes are assessed. The Board of Appeals shall, in each case, maintain a list of property owners so notified. Notice shall be deemed received if mailed to an owner's last known address according to the Town tax records. Failure of any property owner actually to receive notice shall not necessitate another hearing or invalidate any actions of the Board of Appeals.

[Amended 6-10-2008]

(3) Contents of notice. Notice of said hearing shall identify the petitioner and the property involved, describe the specific nature of the proposal, state the date, time and place of the hearing, and explain how the recipient of the notice may attend and present evidence.

(4) Rules. Said hearing shall be conducted according to rules adopted by the Board of Appeals.

(5) Representation. At any hearing a party may be represented by an agent or attorney; provided, however, that if any party is not present, any person acting as that party's agent or attorney shall provide written evidence of such authority.

(6) Continuation. Any hearing may be continued or recessed to another time for good cause shown.

(7) Staff support. The Code Enforcement Officer and Planning Director may attend all hearings and present to the Board of Appeals plans, photographs or other materials they deem appropriate for the clearer understanding of a pending application.

F. Deliberation and decision. Within 30 days after the public hearing on an application for a variance, the Board of Appeals shall deliberate to determine whether to grant the variance. If the Board of Appeals finds that the petitioner has demonstrated an undue hardship as defined above, it shall issue an order granting the variance requested, subject to such terms and conditions it considers advisable to protect the public's health, safety and general welfare. If the Board of Appeals finds that the petitioner has not demonstrated an undue hardship, it shall issue an order denying the variance. In either case the Board of Appeals shall, within seven working days after the completion of its deliberations, mail or hand deliver to the petitioner, the petitioner's representative, the Chairpersons of the Bar Harbor Planning Board and Town Council, and, if a variance is granted for property located within a shoreland zone, to the Department of Environmental Protection a written copy of its decision, including specific written findings of fact supporting the decision.

[Amended 11-5-1991]

G. Certificate of variance. If the Board of Appeals grants a variance under this section, a certificate indicating 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 thereof, has been granted, and the date of the granting, shall be prepared in recordable form. The certificate must be signed by the Planning Director or his/her designee and recorded in the Hancock County Registry of Deeds within 30 days of the granting of the variance or the variance is void. A variance is not valid until a certificate thereof has been recorded in accordance with this section.

§ 125-103 Administrative appeals.

[Amended 5-3-1999; 11-2-1999; 5-3-2004; 11-7-2006]

A. Authority. The Board of Appeals may, upon written application of an aggrieved party received by the Planning Department within 30 days of any decision or enforcement action by a municipal body or official who or which interprets this chapter, hear appeals from such decision. For purposes of this section, the term "decision" is limited to an order, decision, ruling or enforcement action made in writing.

B. Application. An application for an administrative appeal shall include the following and must be filed with the Planning Department within 30 days of the decision or action being appealed:

(1) A completed application for appellate or de novo review on a form prescribed by the Planning Department;

(2) An administrative fee and a public notice fee, which fees shall, from time to time, be set by the Bar Harbor Town Council;

(3) In the case of an appeal to be heard by appellate review, a notice of the applicable parts of the record to be transcribed at the expense of the appellant;

C. Submissions generally.

(1) Appellate review hearings.

[Amended 6-10-2008]

(a) At least 20 days prior to the Board of Appeals meeting at which an appellant is to be heard in an appellate review hearing, the appellant shall file with the Planning Department 12 copies of the parts of the record on appeal upon which the appellant plans to rely, along with 12 copies of a written statement setting forth the appellant's position as to the basis for the appeal and the relief requested.

(b) No later than seven days prior to the public hearing on the appeal, any other person wishing to present either parts of the record on appeal not submitted by the appellant or a written statement setting forth that person's position on the appeal may file 12 copies of such materials with the Planning Department.

(2) Evidentiary appeals.

(a) At least 20 days prior to the Board of Appeals meeting at which an appellant wishes to be heard, the appellant shall provide to the Planning Department 10 copies of all documentary evidence, except that each submission shall be conspicuously labeled "Appellant's Exhibit 1," "Appellant's Exhibit 2" and so on, in consecutive fashion, along with 10 copies of a written statement setting forth the appellant's position as to the basis for the appeal and the relief requested.

(b) No later than seven days prior to the public hearing on an appeal, any other person wishing to present documentary evidence to the Board of Appeals shall provide to the Planning Department copies of all such evidence, except that each submission shall be conspicuously labeled with that person's surname followed by "Exhibit 1," "Exhibit 2" and so on, in consecutive fashion.

D. Hearing.

(1) Appellate review hearings.

(a) All appeals from decisions of the Planning Board, the Design Review Board and all other decisions in which the applicant had a fair opportunity to present evidence shall be strictly by appellate review.

(b) Appellate review hearings shall be limited to review of the record on appeal. The appellant and other parties may submit written argument and use illustrative aids that highlight or otherwise help the Board understand the record on appeal but may not introduce any evidence that was not presented to the decision-maker below. The record on appeal shall consist of:

[1] Transcripts of the hearings held below;

[2] Exhibits and other documentary evidence submitted to or considered by the decision-maker below; and

[3] The decision being appealed, factual findings made by the decision-maker below and any other rulings or decisions made by the decision-maker below that are relevant to the issues on appeal.

(c) Within 45 days of the Planning Department's receipt of the required copies of an application for an administrative appeal, the Board of Appeals shall conduct a public hearing, which hearing shall not be a de novo hearing, on said application.

(d) Published notice. Notice of said hearing shall be published in a newspaper of general circulation in the Town of Bar Harbor at least 10 days prior to the hearing date.

(e) Mailed notice. At least 10 days prior to the hearing date, written notice of said hearing shall also be mailed by U.S. Mail first-class postage to the appellant, to the owners of all property within 300 feet of the property in question, and to the Bar Harbor Town Council, Design Review Board, and the Bar Harbor Planning Board. The owners of property shall be considered to be those shown on the Town's tax list as the persons against whom taxes are assessed. The Planning Department shall, in each case, maintain a list of property owners so notified. Notice shall be deemed received if mailed to an owner's last known address according to the Town tax records. Failure of any property owner actually to receive notice shall not necessitate another hearing or invalidate any actions of the Board of Appeals.

(f) Contents of notice. Notice of said hearing shall identify the petitioner and the property involved, describe the specific nature of the proposal, state the date, time and place of the hearing, and explain how the recipient of the notice may attend and participate.

(g) Rules. Said hearing shall be conducted according to rules adopted by the Board of Appeals.

(h) Representation. At any hearing a party may be represented by an agent or attorney; provided, however, that if any party is not present, any non-attorney acting as that party's agent or attorney shall provide written evidence of such authority.

(i) Continuation. Any hearing may be continued or recessed to another time for good cause shown.

(j) Staff support. The Code Enforcement Officer and Planning Director may attend all hearings and present to the Board of Appeals plans, photographs or other materials that are part of the record on appeal that they deem appropriate for the clearer understanding of a pending application.

(k) Public participation. If during the public comment part of the hearing a member of the public attempts to testify or otherwise offer evidence that was not presented to the decision-maker below, the Board shall during its deliberations ignore the evidence so presented.

(l) Deliberation and decision. Within 30 days after the public hearing on an application for administrative appeal, the Board of Appeals shall deliberate to determine whether the record on appeal shows that the decision appealed is clearly contrary to the specific provisions of this chapter. The Board shall defer to all findings of fact by the decision-maker below that are supported by substantial evidence.

[1] If the Board of Appeals finds that the decision is, in fact, contrary to the specific provisions of this chapter, it may reverse the decision, subject to such terms and conditions it considers advisable to protect the public's health, safety and general welfare, or it may vacate the decision and may remand it to the Planning Board, Design Review Board or the Code Enforcement Officer for further proceedings consistent with Board of Appeals' decision.

[2] If the Board of Appeals does not find that the decision appealed is clearly contrary to the specific provision of this chapter, it shall deny the appeal.

[3] In either case, the Board of Appeals shall, within seven days of the completion of its deliberations, mail or hand deliver to the Department of Environmental Protection a written copy of its decision, including written reasons supporting the decision, and within seven days of the completion of its deliberations, mail or hand deliver to the appellant, the appellant's representative and the Chairpersons of the Bar Harbor Planning Board, Design Review Board and Town Council a written copy of its decision, including specific written reasons supporting the decision.

[Amended 6-10-2008; 6-8-2010]

(2) Evidentiary hearings.

(a) Appeals from a notice of violation, the granting of a permit by the CEO and all other decisions or actions taken at which the appellant did not have a fair opportunity to present evidence to the decision-maker shall be by evidentiary hearing.

(b) The procedure set forth for appellate review hearings in Subsection D(1)(c) through (j) shall apply to appeals by evidentiary hearing, except that the appellant and other interested parties may submit documentary evidence and other exhibits within the time limits set forth in § 125-103C above and may present oral testimony at the hearing.

(c) Deliberations and decision. Within 30 days after the public hearing on an application for an administrative appeal, the Board of Appeals shall deliberate to determine if a preponderance of the evidence presented in the appeal shows that the appellant is entitled to the relief requested.

[1] If the Board of Appeals finds that the appellant is entitled to relief, it may reverse the decision, subject to such terms and conditions it considers advisable to protect the public's health, safety and general welfare, or it may vacate the decision and may remand it to the Planning Board, Design Review Board or the Code Enforcement Officer for further proceedings consistent with the Board of Appeals' decision.

[2] If the Board of Appeals does not find that the preponderance of the evidence shows that the appellant is entitled to relief, it shall deny the appeal.

[3] In either case the Board of Appeals shall, within seven days of the completion of its deliberations, mail or hand deliver to the Department of Environmental Protection a written copy of its decision, including written reasons supporting the decision, and within seven days of the completion of its deliberations, mail or hand deliver to the appellant, the appellant's representative and the Chairpersons of the Bar Harbor Planning Board, Design Review Board and Town Council a written copy of its decision, including specific findings of fact supporting the decision.

[Amended 6-10-2008; 6-8-2010]

§ 125-104 Proceedings to be recorded.

All proceedings of the Board of Appeals, including public hearings and deliberations, but except proceedings legally conducted in executive session, shall be electronically or stenographically recorded.

§ 125-105 Failure to act.

Failure of the Board of Appeals to act within any of the time requirements set forth herein shall constitute a denial.

§ 125-106 Reconsideration.

[Amended 11-4-2003; 11-7-2006; 6-10-2008]

Upon the written request and the payment of such fee as may be established by the Bar Harbor Town Council, by any party, made within 10 days from the hearing at which a decision was made pursuant to this section, the Board of Appeals may reconsider such decision and, in doing so, may conduct further hearings. A request for reconsideration shall set forth in detail the reasons that the request should be granted. At its next regularly scheduled meeting, the Board of Appeals shall meet to decide whether it shall grant the request and to establish the procedural guidelines for any reconsideration. In no event shall the procedures associated with a reconsideration, including any hearing and the time for deliberation, extend beyond 45 days from the date of the hearing at which a decision was made. In the event of a request for reconsideration, the time for taking an appeal to Superior Court shall be extended to 30 days from the date of the Board of Appeals' ultimate decision on such request.

§ 125-107 Appeal to Superior Court.

[Amended 11-7-2006]

Any party may, within 45 days of the date of the vote on the original decision made pursuant to this article, take an appeal to Superior Court in accordance with Rule 80B of the Maine Rules of Civil Procedure.