Town of Wells, ME Article IX Zoning Board of Appeals

§ 145-65 Membership; qualifications; terms of office.

The Board of Selectmen of the Town of Wells shall appoint a Zoning Board of Appeals consisting of five members and three associate members who shall all be residents of the Town of Wells. The appointments shall be for three years with the terms being staggered. Neither a Selectman nor his spouse may be a member or associate member of the Board. A member of the Board may be dismissed for cause by the Board of Selectmen, after a public hearing, before the expiration of his term.

§ 145-66 Associate members; officers; quorum; conflicts of interest.

A. An associate member, selected by the Chairman, shall act in place of any member who may be unable to act due to interest, absence or physical incapacity.

B. At the first meeting of the calendar year the Board shall elect from its membership a Chairman to preside at all meetings of the Board, a Vice Chairman and a Secretary, who shall provide for the keeping of the minutes of the proceedings of the Zoning Board of Appeals, which shall show the vote of each member upon each question.

C. A quorum shall consist of four members, and all motions shall require an affirmative vote of at least a majority of the full Board to pass.

D. Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting thereon shall be decided by a majority vote of the members, except the member who is being challenged.

§ 145-67 Powers and duties.

[Amended 11-8-1994; 4-28-1995; 4-19-1997]

A. The Zoning Board of Appeals shall have the following powers and duties:

(1) Administrative appeals.

(a) To hear and decide where it is alleged there is an error in any written order, requirement, decision or determination made by the Code Enforcement Officer to:

[1] Approve or deny a building permit pursuant to § 145-61C;

[2] Determine the proper reviewing authority for a site approval application pursuant to § 145-74A(1);

[3] Determine whether or not the proposed use in a site plan approval application is a permitted use and meets the requirements of Article V pursuant to § 145-74A(1);

[4] Determine whether or not an application for site plan approval meets the requirements of Articles V, VI and VII pursuant to § 145-74B, C or D; or

[5] Issue or fail to issue a certificate of occupancy pursuant to § 145-62.[1]

[Amended 6-13-2017]

[1] Editor's Note: Former Subsection A(1)(a)[6], which immediately followed, which listed issuing a notice of violation pursuant to § 145-63, as amended, was repealed 11-6-2012.

(b) The action of the Code Enforcement Officer may be upheld, modified or reversed by the Zoning Board of Appeals by majority vote.

(2) To permit variations in nonconformance as prescribed in Article III.

(3) Variance appeals. To hear and decide, upon appeal, in specific cases such variance from the dimensional requirements of this chapter as will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the dimensional requirements of this chapter would result in undue hardship. A variance may be granted by the Board only where the strict application of the requirements of this chapter to the petitioner and his property would cause undue hardship. The words "undue hardship" as used in this chapter shall mean:

(a) That the land in question cannot yield a reasonable return (use) 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.

(4) Disability variance. To hear and permit a variance, pursuant to 30-A M.R.S.A. § 4353(4-A)(B), to an owner of a dwelling who resides in the dwelling and who is a person with a permanent disability for the construction of a place of storage and parking for a noncommercial vehicle owned by that person and no other purpose. The width and length of the structure may not be larger than two times the width and length of the noncommercial vehicle. The owner shall submit proposed plans for the structure with the request for the variance pursuant to this subsection to the Board. The person with the permanent disability shall prove by a preponderance of the evidence that the person's disability is permanent.

[Amended 11-7-2000; 6-10-2014]

(a) For purposes of this subsection, "noncommercial vehicle" means a motor vehicle as defined in 29-A M.R.S.A. § 101(42) with a gross vehicle weight of no more than 6,000 pounds, bearing a disability registration plate issued pursuant to 29-A M.R.S.A. § 521 and owned by the person with the permanent disability.

(5) Mislocated building appeal. To hear and decide upon appeal in specific cases where existing buildings are found to be in violation of the setback requirements and where such location of buildings will not be contrary to the public interest whether an appeal should be granted. In order to grant a mislocated building appeal the Board must find that there was no willful or premeditated action (or gross negligence) to build within the setback.

(6) To permit roads and driveways in the Resource Protection District as authorized by § 145-32E(2) and in the Shoreland Overlay District as authorized by § 145-33F(1).

[Amended 11-2-2010]

(7) To permit additional off-premises business directional signs as authorized in § 145-40I.

B. Any appeal, the granting of which would allow a structure within the required setbacks from water bodies, tributary streams or wetlands or within the Resource Protection District, may only be granted if the Board finds that the proposed construction will not result in unsafe or unhealthful conditions; erosion or sedimentation; water pollution; or damage to spawning grounds of fish, aquatic life or other wildlife habitats and will conserve shoreland vegetation and, to the extent possible, visual access to waters as viewed from public facilities, points of public access to waters and natural beauty and will avoid problems with floodplain development and use.

§ 145-68 Considerations and conditions.

In hearing appeals under this chapter, the Zoning Board of Appeals shall consider the conformance of the proposed use and structures with the provisions of this chapter. In granting appeals under this chapter, the Zoning Board of Appeals may impose such reasonable conditions as it deems necessary to fulfill the intent and purpose of this chapter.

§ 145-69 Appeal procedure.

A. In all cases, a person aggrieved by a decision of the Code Enforcement Officer shall file an appeal within 31 days after the issuance of the written decision from the Code Enforcement Officer. The appeal shall be filed with the Zoning Board of Appeals on forms to be approved by the Board, and the aggrieved person shall specifically set forth on the form the grounds for the appeal. A filing fee as established by the Board of Selectmen, following notice and a public hearing, shall accompany any appeal. The Board shall also be reimbursed for the cost of the notification of the abutters before the public hearing.

B. Before taking action on any appeal, the Zoning Board of Appeals shall schedule a public hearing within 31 days of the filing of an appeal, and the hearing shall be publicly advertised 10 days before the specified date of such hearing. In the case of administrative appeals pursuant to § 145-67A(1), such hearing shall be held within 60 days of the filing of the appeal. The Zoning Board of Appeals shall notify by mail, at least 10 days before the hearing, the owners of lots abutting the subject lot, of lots directly across a street or water body (less than 200 feet in width) from the lot on which an appeal is taken and of lots located within 100 feet of the property lot on which the appeal is taken of the nature of the appeal and of the time and place of the public hearing thereon.

[Amended 4-18-1998; 4-12-2003]

C. For this section, the owners of a lot shall be considered to be the parties listed by the Assessor of taxes for the Town of Wells as those against whom taxes are assessed. Failure of any lot owner to receive a notice of public hearing shall not necessitate another hearing nor invalidate any action by the Zoning Board of Appeals.

D. The Zoning Board of Appeals shall notify the Code Enforcement Officer, Board of Selectmen and Planning Board of the appeal at least 14 days before the hearing.

E. Written notice of the decision of the Zoning Board of Appeals shall be sent to the appellant, his representative or agent, the Code Enforcement Officer, the Maine Department of Environmental Protection (if the subject property is located within the Shoreland Overlay District or Resource Protection District), the Board of Selectmen and the Planning Board within seven days of the decision. The decision shall be deemed rendered at the time the Board shall vote thereon.

F. The Code Enforcement Officer or the designated assistant shall attend all hearings and may present to the Zoning Board of Appeals all plans, photographs or other material needed to understand the appeal.

G. The petitioner's case shall be heard first. To maintain an 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 Chairman. The concurring vote of a majority of the members of the Zoning Board of Appeals present and voting shall be required to reverse an order, requirement, decision, or determination of the Code Enforcement Officer, to grant a variance, to grant a mislocated building appeal, to permit roads and driveways in the Resource Protection District and in the Shoreland Overlay District, to permit additional off-premises business directional signs, or to decide in favor of the applicant on any matter which the Zoning Board of Appeals is required to decide under this chapter. The applicant shall have the burden of proof. The Zoning Board of Appeals may modify or reverse a decision of the Code Enforcement Officer only if it finds an error of law, misinterpretation of this Code or misapplication of the law to the facts. If the Zoning Board of Appeals modifies or reverses a decision of the Code Enforcement Officer, the Zoning Board of Appeals shall remand with instructions for such further action as may be necessary. The Zoning Board of Appeals may receive and consider evidence and testimony and oral or written argument; however, the Chairperson may exclude any irrelevant or redundant testimony or other evidence.

[Amended 4-12-2003]

H. If the Zoning Board of Appeals shall deny an appeal, a second appeal of a similar nature shall not be brought before the Board within one year from the date of denial by the Board of the first appeal, unless in the opinion of a majority of the Board substantial new evidence shall be brought forward or unless the Board finds that an error, mistake or misunderstanding of facts has occurred.

I. Any appeal granted under the provisions of this chapter by the Zoning Board of Appeals shall expire if:

(1) The work or change involved is not started within one year of the date on which the appeal is granted and/or if the work or change is not substantially completed within two years of the date on which the appeal is granted unless otherwise specifically provided for by the Zoning Board of Appeals; and

(2) A certificate indicating the name of the current lot owner, identifying the lot by reference to the last recorded deed in its chain of title and indicating that a variance has been granted, including any conditions on the variance and the date the variance was granted, is not recorded at the York County Registry of Deeds within 90 days of the final written approval.

J. Appeal of Board's decision. Any decision of the Zoning Board of Appeals may be appealed to Superior Court within 45 days after the decision is rendered according to the Maine Rules of Civil Procedure, Rule 80B.