A.
Establishment and composition. The Board of Selectmen
shall make appointments to a Board of Appeals as specified in 30-A
M.R.S.A. § 2691, or as amended. The Board of Appeals shall
consist of five members and two alternate members, each of whom shall
be a resident of Boothbay Harbor. The terms of office shall be three
years, except that the initial term of the second alternate member
appointed shall be for two years only. A vacancy in the office of
a member shall be filled for the unexpired term only. No business
of the Board shall be transacted under this article unless three members
are present. Any member of the Board may be removed for cause by the
Selectmen upon written charges and after public hearing. The members
of the Board of Appeals shall receive no compensation for their services.
The Board shall select a Chairman and Secretary from its own membership
and shall adopt from time to time such rules and regulations as it
may deem necessary to carry out the duties conferred on it by this
article. Members may be eligible for appointment for no more than
two consecutive terms, after which one year must elapse before reappointment.
The Chairman shall designate which alternate member shall serve in
place of the absent member who shall function as a full voting member
of the Board for that meeting.
B.
Minutes of proceedings. The Board of Appeals shall
keep minutes and a recording of its proceedings, recording the vote
of each member upon each matter coming before the Board for the vote
and indicating the absence or failure to vote, as the case may be,
of any member. The minutes of the Board's proceedings and all correspondence
required by this article to be made by the Board shall be a public
record.
C.
Conflicts of interest. Members of the Board of Selectmen,
Planning Board members and the Code Enforcement Officer or any of
their spouses shall not simultaneously serve on the Board of Appeals.
Any questions of whether a particular issue involves a conflict of
interest sufficient to disqualify a member from voting thereon shall
be decided by a majority of the members except the member who is being
challenged.
D.
Power and duties.
(1)
Appeals shall be from decisions of the Code Enforcement
Officer to the Board of Appeals except that, for site plan review
and subdivision review, the appeal shall be from the decision of the
Planning Board to the Board of Appeals. For any variance granted from
the requirements of the shoreland zoning regulations,[1] the Department of Environmental Protection shall be notified
within 14 days of the decision. Any appeal denied by the Board of
Appeals may be appealed to the Superior Court in accordance with Maine
State Rules of Civil Procedures, Rule 80B.
[Amended 5-8-2010 by ATM Art. 73]
(2)
The Board of Appeals shall have the following powers
and duties:
(a)
Administrative appeals to hear and decide where
it is alleged there is an error on any order, requirement, decision,
or determination made by the Code Enforcement Officer or by the Planning
Board. When the Board of Appeals hears an appeal of a decision of
the Code Enforcement Officer or the Planning Board, it shall hold
an appellate hearing, and may reverse the decision of the Code Enforcement
Officer or the Planning Board only upon finding that the decision
was contrary to specific provisions of the article or contrary to
the facts presented in the record to the Code Enforcement Officer
or the Planning Board. The Board of Appeals may only review the record
of the proceedings before the Code Enforcement Officer or the Planning
Board at the time that it reached the decision under appeal. The Board
of Appeals shall not receive or consider any evidence which was not
presented to the Code Enforcement Officer or the Planning Board at
that time. The Board of Appeals may receive and consider written or
oral arguments.
[Amended 5-3-2008 by ATM Art. 88; 5-6-2023 ATM
by Art. 21]
(b)
Site plan review: to hear and decide on appeals of any action taken by the Planning Board with respect to site plan review. (See Article V, § 170-80.) The Board of Appeals' jurisdiction shall be limited to hearing requests for a variance from a dimensional requirement, to interpreting the meaning of terms which are called into question, and to hearing a request to determine if the Planning Board acted in accordance with the procedures of Article V. The Board of Appeals shall not have the authority to substitute its judgment for that of the Planning Board with respect to any of the standards of Article V.
(c)
Variance appeals: to hear and decide, in specific
cases, variance from the terms of this article, as defined and limited
as follows: A variance is not justified unless all elements are present
in the case.
[1]
Variances may be granted only from dimensional requirements, including but not limited to lot width, structure height, percent of lot coverage and setback requirements, except for minimum setbacks from a wetland or water body required within shoreland zones. (See § 170-110.)
[2]
Variances shall not be granted for establishment
of any uses otherwise prohibited by this Land Use Code.
[3]
The proposed structure or use would meet the
provisions of this Land Use Code except for the specific provision
from which relief is sought.
[4]
The strict application of the terms of this
Land Use Code would result in undue hardship. The term "undue hardship"
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.
(d)
Interpretations: to interpret the provisions
of this Land Use Code in specific instances where either the Board
of Selectmen, Planning Board, Code Enforcement Officer or a private
party who may be adversely affected by these provisions requests the
Board of Appeals to clarify the meaning and intent.
(e)
Subdivision review: to hear and decide on appeals of any action taken by the Planning Board with respect to subdivision review. (See Article IX, §§ 170-103 to 170-107.) The Board of Appeals' jurisdiction shall be limited to hearing a request to determine if the Planning Board acted in accordance with the procedures of Article IX. The Board of Appeals shall not have the authority to substitute its judgment for the Planning Board with respect to any of the standards of Article IX.
[Added 5-8-2010 by ATM Art. 73]
A.
Filing of appeal.
(1)
In all cases, a party aggrieved by a decision of the
Code Enforcement Officer and/or the Planning Board shall file an appeals
request within 30 days of the action complained of.
(2)
The request for appeal shall be filed with the Code
Enforcement Officer.
(3)
The appeal filed must include:
(a)
A concise written statement indicating what
relief is requested, and why it should be granted, and what Article
of this Land Use Code is involved.
(b)
A sketch drawn to scale showing lot lines, location
of existing and proposed buildings and structures, contours at realistic
intervals, and other physical features of the lot pertinent to the
relief sought.
(c)
The names and addresses of abutting property
owners.
(4)
Additional information deemed necessary by the Board
of Appeals to make a fair and equitable decision shall be supplied
by the applicant upon request.
(5)
The application must be signed by the applicant.
(6)
All variances and administrative appeals by an aggrieved
party shall be accompanied by a fee payable to the Town of Boothbay
Harbor as established by the Boothbay Harbor Board of Selectmen, including
also costs necessary to advertise the hearing twice in the local newspaper
and to notify abutters via certified mail.
[Amended 6-20-2022 by ATM Art. 22]
B.
Notification.
(1)
Notification of Town officials. The Code Enforcement
Officer shall notify the Board of Appeals and the Planning Board of
the request. The Code Enforcement Officer shall advertise the appeals
request in the local newspaper two consecutive weeks and at least
14 days before a hearing is scheduled, and such hearing shall be held
within 30 days of its request.[1]
[1]
Editor's Note: Subsection B(2), Notification of Department
of Environmental Protection, added 5-1-2006 by ATM Art. 87, which
immediately followed this subsection, was repealed 5-2-2009 by ATM
Art. 99.
C.
Notification of abutters. The Code Enforcement Officer
shall notify, by certified mail only, the owners of property abutting
the appellant's property and directly across the public rights-of-way,
including waterways (500 feet or less), for which an appeal is requested,
of the nature of the request and of the date, time and place of the
public hearing thereon. Failure of any property owner to receive a
notice of public hearing shall not necessitate another hearing or
invalidate any action by the Board of Appeals.
D.
Code Enforcement Officer involvement. The Code Enforcement
Officer shall attend all hearings and may present to the Board all
plans, photographs or other material s/he deems appropriate for an
understanding of the appeal.
E.
Planning Board. The Board of Appeals, where it deems
appropriate, may request the Planning Board to review an appeals request
and file an advisory opinion with the Board of Appeals. Any such advisory
opinion shall be requested in a timely fashion in order that it may
be read into the record at the Board of Appeals hearing.
F.
Quorum. To act on any appeal, a quorum of at least
three members must be present at any hearing.
G.
Notice of decision. The Code Enforcement Officer shall
send a copy of the written notice of the decision to the appellant,
the Planning Board and the Maine Department of Environmental Protection
if within the Shoreland Zoning District. A notice of the decision
must be published in the local newspapers within 15 days of the date
of the hearing and within seven days of the decision.
H.
Repetitive appeals. If the Board shall deny any appeal,
another appeal of a similar nature shall not be brought before the
Board within one year from the date of the denial unless, in the opinion
of a majority of the Board, substantial new evidence shall be brought
forward or unless the Board finds, in its sole and exclusive judgment,
that an error or mistake of law or misunderstanding of facts had been
made.
I.
Planning Board jurisdiction. In all appeals where
the Planning Board has jurisdictional review, such review shall be
conducted prior to the Board's hearing of the appeal.
J.
Appeals to Superior Court. Any aggrieved party who
participated as a party during the proceedings either before the Board
of Appeals or in writing before a decision is reached may take an
appeal to Superior Court in accordance with state laws within 30 days
from the date of any decision of the Board of Appeals.
Additional restrictions in areas subject to Article VIII, regarding shoreland zoning as are follows:
A.
Variances from the minimum setback requirements may
only be approved for a single-family dwelling which serves as the
primary year-round residence of the petitioner and may not exceed
20% of the required setback. Variances of greater than 20% may only
be approved by the Board of Appeals with the written consent of an
affected abutting landowner.
B.
In the case of a variance requested from setbacks,
the Board shall not grant a variance unless it finds that undue hardship,
as defined in 30-A M.R.S.A. § 4353, Subsection 4-B, would
result from the strict application of the terms of the setback requirements
of this Land Use Code. In this specific instance only, "undue hardship"
means:
(1)
The need for a variance is due to the unique circumstances
of the property and not to the general condition of the neighborhood;
(2)
The granting of a variance will not alter the essential
character of the locality;
(3)
The hardship is not the result of action taken by
the applicant or a prior owner;
(4)
The granting of the variance will not substantially
reduce or impair the use of the abutting property; and
(5)
The granting of a variance is based upon demonstrated
need, not convenience, and no other feasible alternative is available.
C.
A copy of all variances granted under this section
by the Boothbay Harbor Zoning Board of Appeals shall be submitted
to the Department of Environmental Protection within 14 days of the
decision.
The Board of Appeals of the Town of Boothbay Harbor may, upon written application of an aggrieved party, hear and decide appeals from determinations of the Code Enforcement Officer and the Planning Board in the administration of the provisions of Article VII of this Land Use Code. The Board of Appeals may grant a variance from the requirements of Article VII of this Land Use Code consistent with state law and the following criteria:
A.
Variances shall not be granted within any designated
regulatory floodway if any increase in flood levels during the base
flood discharge would result.
B.
Variances shall be granted only upon:
(1)
A showing of good and sufficient cause; and
(2)
A determination that should a flood comparable to
the base flood occur, the granting of a variance will not result in
increased flood heights, additional threats to public safety or public
expense or create nuisances, cause fraud or victimization of the public
or conflict with existing local laws or ordinances; and
(3)
A showing that the existence of the variance will
not cause a conflict with other state, federal or local laws or ordinances;
and
(4)
A determination that failure to grant the variance
would result in undue hardship, which in this section means:
(a)
That the land in question cannot yield a reasonable
return unless a variance is granted; and
(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; and
(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.
Variances shall only be issued upon a determination
that the variance is the minimum necessary, considering the flood
hazard, to afford relief.
D.
Variances may be issued for new construction, substantial
improvements or other development for the conduct of a functionally
dependent use, provided that:
E.
Variances may be issued for the repair, reconstruction,
rehabilitation or restoration of historic structures upon the determination
that:
(2)
The proposed repair, reconstruction, rehabilitation
or restoration will not preclude the structure's continued designation
as an historic structure and the variance is the minimum necessary
to preserve the historic character and design of the structure.
F.
Any applicant who meets the criteria of Subsections A through E shall be notified by the Board of Appeals, in writing, over the signature of the Chairman of the Board of Appeals, that:
(1)
The issuance of a variance to construct a structure
below the base flood level will result in greatly increased premium
rates for flood insurance up to amounts as high as $25 per $100 of
insurance coverage;
(2)
Such construction below the base flood level increases
risks to life and property; and
(3)
The applicant agrees, in writing, that the applicant
is fully aware of all the risks inherent in the use of land subject
to flooding, assumes those risks and agrees to indemnify and defend
the municipality against any claims filed against it that are related
to the applicant's decision to use land located in a floodplain and
that the applicant individually releases the municipality from any
claims the applicant may have against the municipality that are related
to the use of land located in a floodplain.
G.
The Board of Appeals shall submit to the Board of
Selectmen a copy of the decision, including justification for the
granting of the variance and to the Code Enforcement Officer authorization
to issue a flood hazard development permit, which includes any conditions
to be attached to said permit.
The Board of Appeals 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 that
dwelling. The Board of Appeals shall restrict any variance granted
under this subsection 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. The Board of Appeals
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,
a disability has the same meaning as a physical or mental handicap
under 5 M.R.S.A. § 4553, and 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.
