Town of Kittery, ME
York County
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Table of Contents
Table of Contents
This chapter describes the minimum requirements for aggrieved parties to file an appeal under this title and related state statutes or to seek the granting of a special exception as found in Chapter 16.3, as well as a variance or miscellaneous variation request to the standards as provided herein.
A. 
An aggrieved party with legal standing may appeal a final decision of the Planning Board to the York County Superior Court in accordance with Maine Rules of Civil Procedures Rule 80B within 45 days from the date the decision by the Planning Board was rendered.
B. 
An aggrieved party with legal standing may appeal a final decision of the Board of Appeals to the York County Superior Court in accordance with Maine Rules of Civil Procedures Rule 80B within 45 days from the date the decision by the Board of Appeals was rendered.
C. 
An aggrieved party with legal standing may appeal a final decision of the Port Authority to the York County Superior Court in accordance with Maine Rules of Civil Procedures Rule 80B within 45 days from the date the decision by the Port Authority was rendered.
A Code Enforcement Officer decision may be appealed to the Board of Appeals as provided in § 16.6.4A.
For the purposes of this chapter, an appeal or request means any of the following:
A. 
Administrative decision appeal. When the Board of Appeals reviews an administrative decision appeal of a decision made by the Code Enforcement Officer, the Board of Appeals may receive new evidence and testimony consistent with this title and the rules of the Board of Appeals. At the conclusion of the hearing and deliberation, the Board of Appeals may uphold, modify or reverse the decision of the Code Enforcement Officer.
B. 
Variance request.
(1) 
A variance may be granted only by the Board of Appeals under the following conditions:
(a) 
For a reduction in dimensional requirements related to height, area and size of structure or size of yards and open spaces;
(b) 
The use is not prohibited by this title; and
(c) 
Only if the strict application of the terms of this title would result in undue hardship. The term "undue hardship" means the applicant must demonstrate all of the following:
[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.
[4] 
The hardship is not the result of action taken by the applicant or a prior owner.
(2) 
Notwithstanding § 16.6.4B(1), the Board of Appeals may grant a variance to an owner of a residential dwelling for the purpose of making that dwelling accessible to a person with a disability who resides in or regularly uses the dwelling. The Board of Appeals must 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. The term "structures necessary for access to or egress from the dwelling" includes railing, wall or roof systems necessary for the safety or effectiveness of the structure.
(3) 
A copy of each variance request within the Shoreland Overlay Zone, including the application and all supporting information supplied by the applicant, must be forwarded by the Code Enforcement Officer to the Commissioner of the Maine 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 will be made part of the record to be taken into consideration by the Board of Appeals.
(4) 
The Board of Appeals must limit any variance granted as strictly as possible to ensure conformance with the purposes and provisions of this title to the greatest extent possible and, in doing so, may impose such conditions of approval to a variance as it deems necessary. The party receiving the variance must comply with any conditions imposed.
C. 
Miscellaneous variation request. The Board of Appeals may hear, decide and approve variations in:
(1) 
Nonconformance as prescribed in Chapter 16.7, Article III;
(2) 
Parking, loading and traffic standards contained in Chapter 16.8, Article IX;
(3) 
Sign violation and appeal standards contained in § 16.8.10.3; or
(4) 
Accessory dwelling unit standards contained in Chapter 16.8, Article XXV.
D. 
Special exception use request.
(1) 
The Board of Appeals will hear, decide and may grant an applicant's special exception use request where authorized in Chapter 16.3 for any application excluded from Planning Board review as stated in § 16.10.3.2, if the proposed use meets the criteria set forth in § 16.6.6, Basis for decision.
(2) 
The Planning Board will review, decide and may approve an applicant's special exception use request where the proposed project requires Planning Board review as defined in § 16.10.3.2 or is located in a Shoreland or Resource Protection Overlay Zone. The Planning Board must find the proposed project and use meets the criteria set forth in §§ 16.10.8.3D and 16.6.6.
A. 
Making an appeal/request. An administrative decision appeal, variance request or miscellaneous variation request may be submitted to the Board of Appeals. An administrative appeal must be submitted within 30 days of the date of the official written decision being appealed. Other requests may be filed at will.
(1) 
The appeal or request must be filed with the Code Enforcement Officer on forms approved by the Board of Appeals and the party must specifically state on such forms the grounds for such appeal or request, including claimed discrepancies in the interpretation of this title and reasons why the appeal or request should be granted. Incomplete applications for appeals and/or requests will not be accepted. Upon receipt of an appeal or request application, the Code Enforcement Office must stamp a receipt date on the appeal or required form. Said date constitutes the filing date of the appeal or request. Applications for appeals or requests must include the following:
(a) 
The appeal or request must be made by the property owner, an aggrieved party or their respective duly authorized agent.
(b) 
The appeal or request must include a concise written statement, indicating what relief is requested and why the appeal or request should be granted.
(c) 
Where the appeal or request is made from a decision by the Code Enforcement Officer, the applicant must submit plans, maps and related documentation to the code enforcement office for distribution to the Board of Appeals members at least two weeks prior to the meeting of the Board of Appeals. A minimum of 10 sets of all submissions is required.
(d) 
The Board of Appeals must hold a public hearing on an appeal or request within 35 days of its receipt of a complete written application, unless this time period is extended by the applicant and BOA.
(2) 
At any time between the initial acceptance by the Code Enforcement Officer of an appeal/request and final approval or denial of the appeal/request by the Board of Appeals, the owner or applicant must allow members of the Board of Appeals full access to the subject property, not including building interiors, without obtaining prior permission, written or oral.
B. 
Hearing and notice.
(1) 
Before taking any action on any appeal/request, the Board of Appeals must hold a public hearing and provide the following notifications:
(a) 
By mail at least seven and not more than 14 days prior to the scheduled hearing date, to owners of abutting property that an appeal/request is made, the nature of the appeal/request and the time and place of the public hearing thereon; and
(b) 
Notice of all such actions must also be published in a newspaper of general circulation in the Town at least seven days prior to the public hearing.
(2) 
Failure of any property owner to receive a notice of public hearing will not necessitate another hearing or invalidate any action by the Board of Appeals.
C. 
Notification and timing constraints. Following the filing of an appeal/request, the Code Enforcement Officer must notify the Board of Appeals, Planning Board and Conservation Commission of the filing. The appeal or request must be complete for hearing at a subsequent meeting of the Board of Appeals occurring no less than 10 days after the mailing of notices but within 30 days of the appeal filing date.
D. 
Decisions of the Board of Appeals.
(1) 
The person filing the appeal or request has the burden of proof.
(2) 
A minimum of four like votes is required for a decision by the Board of Appeals, except on procedural matters.
(3) 
The Board of Appeals must decide the appeal or request within 30 days after the close of the hearing and issue a written decision.
(4) 
Written notice of the decision of the Board of Appeals must be sent to the appellant or petitioner, the Code Enforcement Officer, Conservation Commission, Planning Board and municipal department heads within seven days of the decision. The vote of each member must be part of the record. The written notice of the decision of the Board of Appeals must include the statement of findings. In the case of denials, the statement of findings must include the reason for the denial.
E. 
Order of review.
(1) 
Where a special exception request or appeal is necessary as an integral part of a development review process, Board of Appeals action is encouraged prior to Planning Board review where required. The findings of the Board of Appeals as well as any file material must be made available to the Planning Board.
(2) 
The Planning Board may give approval to the preliminary plan as an overall development prior to the applicant filing an appeal/request.
F. 
Special exception referral.
(1) 
Before granting any special exception, the Board of Appeals may refer the application to the Planning Board and/or Port Authority for a report prior to any subsequent BOA review of the application.
(2) 
The Planning Board and/or Port Authority report must be considered informational in character and may take into consideration the effect of the proposal upon the character of the neighborhood or any other pertinent data.
(3) 
The Planning Board and/or Port Authority report must be submitted to the BOA for its consideration prior to the officially scheduled time of public hearing on the request.
G. 
Venue and representation. At any hearing, a party may appear by agent or attorney. Hearings may be continued to other times/places.
H. 
Code Enforcement Officer attendance. The CEO or designated assistant must attend all hearings and may present to the BOA all plans, photographs or other material the CEO deems appropriate for an understanding of the appeal/request.
I. 
Appellant's case first. The appellant's case must be heard first. To maintain orderly procedure, each side shall proceed without interruption. Questions may be asked through the Chair. All persons at the hearing shall abide by the order of the Chairperson.
J. 
Expiration of approval.
(1) 
Approvals granted under the provisions of this chapter expire if work or change in use involved is not commenced within six months of the date on which approval is granted, or if the work or change in use is not substantially completed within one year of the date on which such approval is granted, unless as otherwise provided for in the approval decision.
(2) 
When circumstances are such that a plan with an approved appeal or special exception is required to be reviewed by another agency (e.g., DEP, Planning Board, Port Authority), any period the plan is at that agency, from time of submission to time of decision inclusive, verified by recorded documentation, will not be counted as part of the cumulative time periods described in the section above.
(3) 
Should a successful appellant not be able to commence and/or substantially complete the work or change in use before the time constraints contained in Subsection J(1) above, the appellant may reappear before the Board before the original approval expires and request an extension of the approval.
(4) 
Such a request must be submitted in writing to the Code Enforcement Officer prior to the date of said approval expiration.
K. 
Reconsideration. In accordance with 30-A M.R.S. § 2691(3)(F), the Board of Appeals may reconsider any decision within 45 days of its prior decision.
(1) 
A request for the Board of Appeals to reconsider a decision must be filed with the Code Enforcement Officer within 10 days of the decision that is to be 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 requires a positive vote of the entire Board and proper notification to the landowner, petitioner, Planning Board, the Town Planner, including abutters and those who testified at the original hearing(s). The Board may conduct additional hearings and receive additional evidence and testimony.
(2) 
Appeal of a reconsidered decision to the Superior Court must be made within 15 days after the decision on reconsideration.
L. 
Second appeals/requests. If the Board of Appeals denies an appeal/request, a second appeal/request of a similar nature may not be brought before the BOA within one year from the date of original denial, unless the appellant submits new evidence and the BOA, by formal action, decides the evidence is significant and warrants a new hearing, or unless the BOA finds in its sole and exclusive judgment that an error or mistake of law or misunderstanding of facts has been made.
M. 
Fees. The appellant must pay a fee for filing an appeal or special exception request in an amount as set by the Town Council.[1]
[1]
Editor's Note: See § A-23.
A. 
Conditions.
(1) 
In hearing appeals/requests under this section, the Board of Appeals must first establish that it has a basis in law to conduct the hearing and decide the question.
(2) 
In hearing appeals/requests under this section, the Board of Appeals must use the following criteria as the basis of a decision, that:
(a) 
The proposed use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use zones;
(b) 
The use will not prevent the orderly and reasonable use of permitted or legally established uses in the zone wherein the proposed use is to be located or of permitted or legally established uses in adjacent use zones;
(c) 
The safety, the health and the welfare of the Town will not be adversely affected by the proposed use or its location; and
(d) 
The use will be in harmony with and promote the general purposes and intent of this title.
B. 
Factors for consideration. In making such determination, the Board of Appeals must also give consideration, among other things, to:
(1) 
The character of the existing and probable development of uses in the zone and the peculiar suitability of such zone for the location of any of such uses;
(2) 
The conservation of property values and the encouragement of the most appropriate uses of land;
(3) 
The effect that the location of the proposed use may have upon the congestion or undue increase of vehicular traffic congestion on public streets or highways;
(4) 
The availability of adequate and proper public or private facilities for the treatment, removal or discharge of sewage, refuse or other effluent (whether liquid, solid, gaseous or otherwise) that may be caused or created by or as a result of the use;
(5) 
Whether the use, or materials incidental thereto, or produced thereby, may give off obnoxious gases, odors, smoke or soot;
(6) 
Whether the use will cause disturbing emission of electrical discharges, dust, light, vibration or noise;
(7) 
Whether the operations in pursuance of the use will cause undue interference with the orderly enjoyment by the public of parking or of recreational facilities, if existing, or if proposed by the Town or by other competent governmental agency;
(8) 
The necessity for paved off-street parking;
(9) 
Whether a hazard to life, limb or property because of fire, flood, erosion or panic may be created by reason or as a result of the use, or by the structures to be used, or by the inaccessibility of the property or structures thereon for the convenient entry and operation of fire and other emergency apparatus, or by the undue concentration or assemblage of persons upon such plot;
(10) 
Whether the use, or the structures to be used, will cause an overcrowding of land or undue concentration of population or unsightly storage of equipment, vehicles or other materials;
(11) 
Whether the plot area is sufficient, appropriate and adequate for the use and the reasonably anticipated operation and expansion thereof;
(12) 
Whether the proposed use will be adequately screened and buffered from contiguous properties;
(13) 
The assurance of adequate landscaping, grading and provision for natural drainage;
(14) 
Whether the proposed use will provide for adequate pedestrian circulation;
(15) 
Whether the proposed use anticipates and eliminates potential nuisances created by its location; and
(16) 
The satisfactory compliance with all applicable performance standard criteria contained in Chapters 16.8 and 16.9.
C. 
Additional special exception conditions. Special exception approvals may be subject to additional conditions as determined by the BOA, including the following:
(1) 
Front, side or rear yards in excess of minimum requirements;
(2) 
Modifications of the exterior features of buildings or other structures;
(3) 
Limitations on the size of buildings and other structures more stringent than the minimum or maximum requirements;
(4) 
Regulation of design of access drives, sidewalks and other traffic features;
(5) 
Off-street parking and loading spaces in excess of the minimum requirements; or
(6) 
Restrictions on hours of operation.
D. 
Findings of fact. After reaching a decision on an appeal/request under this section, the Board of Appeals must verify on the record its findings of fact supporting the basis of its decision.
E. 
Outstanding violations. No variance, special exception or miscellaneous variation request may be granted for premises on which outstanding violations of this title exist, unless the effect of such variance, special exception or miscellaneous variation would remedy all such violations.
F. 
Appeals and variances. The Board of Appeals may, upon written application of an aggrieved party, hear and decide appeals from determinations of the Code Enforcement Officer in the administration of the provisions of this chapter. The Board of Appeals may grant a variance from the requirements of Chapter 16.9, Article VIII, Floodplain Management, § 16.9.8.1 et seq., consistent with state law and the following criteria:
[Added 9-26-2011 by Ord. No. 11-15]
(1) 
Variances may not be granted within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.
(2) 
Variances may be granted only upon:
(a) 
A showing of good and sufficient cause; and
(b) 
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, public expense, or create nuisances, cause fraud or victimization of the public or conflict with existing local laws or ordinances; and
(c) 
A showing that the existence of the variance will not cause a conflict with other state, federal or local laws or ordinances; and
(d) 
A determination that failure to grant the variance would result in "undue hardship," which in this subsection means:
[1] 
That the land in question cannot yield a reasonable return unless a variance is granted; and
[2] 
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
[3] 
That the granting of a variance will not alter the essential character of the locality; and
[4] 
That the hardship is not the result of action taken by the applicant or a prior owner.
(3) 
Variances may only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.
(4) 
Variances may be issued by a community for new construction, substantial improvements, or other development for the conduct of a functionally dependent use, provided that:
(a) 
Other criteria of this section and § 16.9.8.8I are met; and
(b) 
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.
(5) 
Variances may be issued by a community for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or a State Inventory of Historic Places, without regard to the procedures set forth in Subsection F(1) through (4) of this section.
(6) 
Any applicant who meets the criteria of Subsection F(1) through (5) of this section is to be notified by the Board of Appeals, in writing, over the signature of the Chairperson of the Board of Appeals, that:
(a) 
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;
(b) 
Such construction below the base flood level increases risks to life and property; and
(c) 
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.
(7) 
The Board of Appeals must submit to the Planning Board a report of all variance actions, including justification for the granting of the variance and an authorization for the Code Enforcement Officer to issue a flood hazard development permit, which includes any conditions to be attached to said permit.