[Ord. No. 28-1997, § 304.1, 3-4-1997; Ord. No. 25-2005, 12-7-2004]
The Zoning Board of Appeals is established by the charter and
members are appointed by the City Council. The board shall hear administrative
appeals and grant variances as provided in this division.
[Ord. No. 28-1997, § 304.2.1, 3-4-1997; Ord. No. 25-2005, 12-7-2004; Ord. of 10-21-2008(2)]
(a)
The Zoning Board of Appeals shall
review administrative appeals from final written decisions of the
code enforcement officer, the In-Town Design Review Committee, and/or
the Planning Board. All administrative appeals from decisions relating
to interpretation and operation of the following chapters shall be
made directly to the Zoning Board of Appeals:
(b)
The Zoning Board of Appeals may grant an undue hardship variance, a disability variance or practical difficulty variance in strict compliance with provisions of this chapter. The Zoning Board of Appeals may also grant a certificate of economic hardship for a Type 1 mandatory in-town design review permit issued by the In-Town Design Review Committee; reference Chapter 80, In-Town Design Review, Article III.
(c)
In deciding any appeal, the Zoning Board of Appeals may interpret
the provisions of this chapter which are called into question.
[Ord. No. 28-1997, §§ 304.2.2, 304.2.3, 3-4-1997; Ord. No. 25-2005, 12-7-2004; Ord. No. 22-2006, 2-7-2006]
(a)
Undue hardship variance. A variance may be granted by the Zoning
Board of Appeals only where strict application of this chapter, or
a provision thereof, to the petitioner and his property would cause
undue hardship. An undue hardship variance is authorized only for
dimensional requirements and performance standards that apply to a
use in question. A variance shall not be granted to allow a use or
an expansion of a use not otherwise permitted in a zoning district.
The term "undue hardship," as used in this subsection, means:
(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 the variance will not alter the essential character
of the locality; and
(4)
The hardship is not the result of an action taken by the applicant
or a prior owner.
(b)
Disability variances. Notwithstanding the provisions of section 102-133(a) the Zoning Board of Appeals may grant a variance to a property owner for the purpose of making that property accessible to a person with a physical or mental disability who is living on the property. The board 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 property by the person with the disability. The board 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 on the property. For the purposes of this subsection, the terms "physical or mental disability" and "persons with a disability" are as defined under 5 M.R.S.A. § 4553.
(c)
Practical difficulty variance. Notwithstanding the provisions of subsections (a) and (b) the zoning board of appeals may grant a variance from the dimensional standards stipulated in chapter 102, Zoning, when strict application of the provisions of the subsections would create a practical difficulty, as defined in chapter 66, and when all of the following conditions are found to exist:
(1)
The need for a variance is due to the unique circumstances of
the property, and not to the general conditions in the neighborhood;
(2)
The granting of the variance will not have an unreasonably detrimental
effect on either the use or fair market value of abutting properties;
(3)
The practical difficulty is not the result of an action or actions
taken by the applicant;
(4)
No other feasible alternative is available to the applicant,
except a variance;
(5)
The granting of a variance will not have an unreasonably adverse
effect on the natural environment; and
(6)
The property is not located, in whole or in part, within a shoreland
area, as defined in 38 M.R.S.A. § 435, as amended, nor within
a shoreland zone or flood hazard area, as defined in the City code
of ordinances.
(e)
Recording. If the Zoning Board of Appeals grants a variance under subsection (a), (b) or (c) of this section, a certificate indicating the name of the current property owner, identification of the property by reference to the last recorded deed in its chain of title, the City property tax map and lot number, the fact that the variance, including any conditions on the variance, has been granted, and the date of the granting shall be prepared in recordable form. This certificate must be recorded in the county registry of deeds within 30 days of the date of the final written approval of the variance or the variance is void. The variance is not valid until recorded as provided in this subsection. The date of the final written approval shall be the date stated on the written approval, as required by 30-A M.R.S.A. § 4353(5).
[Ord. No. 28-1997, §§ 304.3.1-304.3.11, 3-4-1997; Ord. No. 25-2005, 12-7-2004]
(a)
Filing. An administrative appeal shall be taken within 30 calendar
days from the vote taken by the board from which a party is aggrieved
or the written decision of the code enforcement officer. In the case
of an administrative appeal of a Planning Board decision regarding
a subdivision, the appeal shall be taken within 30 calendar days of
the date of the written decision from the Planning Board. All appeals
shall be considered filed at the time of delivery to the City department
of planning and community development and copies shall be sent to
the code enforcement officer and the Planning Board. Forms for appeal
shall be those approved by the Zoning Board of Appeals, and the aggrieved
person shall set forth on said forms the grounds for the appeal.
(b)
Public hearing required; notice. Before taking action on any appeal,
the Zoning Board of Appeals shall hold a public hearing. The Zoning
Board of Appeals shall give 10 calendar days' written notice of any
hearing to the appellant, the code enforcement officer, chair of the
Planning Board, and the City Council. The City department of planning
and community development, on behalf of the appellant, shall provide
written notification by mail to each abutter, mailed at least 10 days
prior to the hearing, and the department shall retain proof of such
notification. All interested persons shall be given reasonable opportunity
to have their views expressed at any hearing. Only parties with standing
shall be allowed to participate. Standing shall be decided by a vote
of a majority of a quorum of the Zoning Board of Appeals members as
a preliminary matter to the extent that any party's standing is challenged.
Public notice of each Zoning Board of Appeals public hearing must
be given at least seven days prior to the hearing date by advertising
in a newspaper of general circulation in the City.
(c)
Failure to receive notice. Failure of any abutting property owner
to receive a notice of public hearing shall not necessitate any other
hearing or invalidate any action by the Zoning Board of Appeals unless
said owner can demonstrate substantial actual damages as a result
of the failure to receive notice.
(d)
Right of parties to appear by agent or attorney. At any hearing,
a party may appear by agent or attorney. A properly scheduled and
noticed hearing shall not be continued to another time except for
good cause in the sole discretion of the chair of the Zoning Board
of Appeals.
(e)
Attendance at hearing by City officials. The code enforcement officer
or his designated assistant shall attend all hearings on appeals from
decisions made by him. The code enforcement officer, his designated
assistant, or the director of the City department of planning and
community development, as well as the chair or his appointed representative
of the Planning Board shall attend all hearings on appeals from Planning
Board decisions. At the discretion of the chair of the Zoning Board
of Appeals, the code enforcement officer, his designated assistant,
the director of the department of planning and community development
or Planning Board chair or the chair's appointed representative may,
to the extent necessary for a full understanding of the appeal, be
requested to present an outline of procedure, plans, photographs,
or other material which constitutes the record below.
(f)
Standard of review on appeal. In
all administrative appeals, except appeals from actions of the code
enforcement officer, the Zoning Board of Appeals shall act as an appellate
board which shall entertain all evidence of record submitted in the
underlying hearing, including any transcripts, findings of facts,
and decisions made by the board of original fact-finding jurisdiction.
The Zoning Board of Appeals shall review the entire record and determine
if the evidence of record compels the Zoning Board of Appeals to find
that all or part of the decision on appeal was arbitrary or capricious
and compels a contrary decision based on substantial evidence in the
record. In such administrative appeals, the Zoning Board of Appeals
is hereby authorized to take the following action:
(g)
De novo review. Notwithstanding any other provision contained herein
or in any other ordinance of the City of Belfast, the Zoning Board
of Appeals shall not have jurisdiction to conduct de novo hearings,
except in case of appeals from actions, failure to act or decisions
of the code enforcement officer. In such de novo appeals the appellant
shall have the burden to prove by a preponderance of the evidence
that the code enforcement officer's decision was erroneous.
(h)
Conduct of hearing. The appellant's case shall be heard first, at
which time argument may be made or the appellant may simply submit
written materials supporting the basis of the appeal. In de novo hearings,
the appellant shall be heard first to present evidence, witnesses,
followed by appellee's presentation of evidence and witnesses. Parties
shall be provided an opportunity to cross-examine witnesses directly.
However, the chairman of the Zoning Board of Appeals may require all
questioning of witnesses be asked through him/her. All parties and
members of the Zoning Board of Appeals shall abide by procedural rules
as applied and interpreted by the chairman of the Zoning Board of
Appeals.
(i)
Expiration of approval. Approval of a permit as a result of an appeal
under the provisions of this section shall expire if the work or change
involved is either not commenced within one year of the date on which
the appeal is granted or, if commenced within one year of the date
on which the appeal is granted, is not substantially completed within
two years of the date on which such appeal is granted, unless otherwise
provided for in the appeal, whichever is the more restrictive.
(j)
Filing of a second appeal on same property. If the Zoning Board of
Appeals denies an appeal, no other appeal of a similar nature with
regard to the same site and the same use shall be brought before the
Zoning Board of Appeals unless, in the opinion of a majority of its
members, substantial new evidence shall be brought forward, or unless
the Zoning Board of Appeals finds, in its sole and exclusive judgment,
that its denial was based on an error or mistake of law or misunderstanding
of relevant and material facts.
(k)
Required vote. Three members of the Zoning Board of Appeals will
constitute a quorum. Three affirmative or three negative votes shall
be required to take binding legal action.
(l)
Time limit for decision; notice of decision. The Zoning Board of
Appeals shall decide on any appeal within 30 calendar days of the
hearing and mail or hand deliver written notice of its decision to
all parties and the code enforcement officer and Planning Board within
seven calendar days after the decision is rendered.
(m)
Appeal to superior court. A decision of the Zoning Board of Appeals
may be appealed to the superior court in accordance with the Rule
80B of the Maine Rules of Civil Procedure, within 45 calendar days
after the actual vote of decision.
[Ord. No. 28-1997, § 304.3.12, 3-4-1997; Ord. No. 25-2005, 12-7-2004]
Fees for any administrative appeal or variance shall be set
by the City Council.
