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 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.