[Amended 5-2-2009 by ATM
Art. 99; 6-20-2022 by ATM Art. 22; 5-4-2024 ATM by Art. 20]
A. Filing of appeal or variance.
(1) In all cases, a party aggrieved by a decision of the
Code Enforcement Officer and/or the Planning Board shall file an appeals
appeal or variance request within 30 days of the action complained
of.
(2) The request for appeal or variance shall be filed
with the Code Enforcement Officer.
(3) The appeal or variance 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) In all administrative appeals, the record on appeal
shall consist of the decision or other action being appealed, the
application (if any) on which the decision or other action was taken,
and all correspondence, exhibits, and other material filed by or with
the Code Enforcement Officer or the Planning Board. It shall be the
responsibility of the appellant to provide a complete record to the
Board of Appeals no later than 14 days in advance of any hearing on
the appeal. The appellant shall be responsible for the costs of producing
the record on appeal. In all appeals and variances, additional information
deemed necessary by the Board of Appeals to make a fair and equitable
decision shall be supplied by the applicant upon request. In all cases,
unless otherwise directed by the Board of Appeals, 10 copies of all
materials submitted shall be delivered to the Code Enforcement Officer
for distribution to the Board of Appeals.
(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.
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.
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:
(1) Other criteria of Article
X, §
170-111, are met; and
(2) The structure or other development is protected by
methods that minimize flood damages during the base flood and create
no additional threats to public safety.
E. Variances may be issued for the repair, reconstruction,
rehabilitation or restoration of historic structures upon the determination
that:
(1) The development meets the criteria of Subsections
A through
D above; and
(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 Chair of the Board of Appeals, that:
[Amended 5-4-2024 ATM by Art. 19]
(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.