Appeals
(1) Jurisdiction and authority. In addition to the power granted by 30-A M.R.S.A. § 2691, the Board of Appeals shall have the following jurisdiction and authority:
(a) Administrative appeals. Subject to the provisions of this chapter, to hear and decide administrative appeals on a de novo basis where it is alleged by an aggrieved party that there is an error in any order, requirement, decision or determination made by, or failure to act by, the Code Enforcement Officer in his or her review of and action on a permit application under this chapter. Any order, requirement, decision or determination made, or failure to act, in the enforcement of this chapter is not appealable to the Board of Appeals.
(b) Variance appeals. Subject to the provisions of this chapter, to hear and grant or deny application for variances from the terms of this chapter.
(c) Home occupations. Subject to the provisions of this chapter, to determine if various types of commercial activities would fall within the category of a home occupation.
(2) Variance appeals.
(a) A variance may be granted for lot area, lot coverage by structure, setbacks and off-street parking.
(b) A variance shall not be granted to permit a use or structure otherwise prohibited by this chapter.
(c) The Board shall not grant a variance unless it finds that:
[1] The proposed structure or use would meet the provisions of
§ 185-15: Land use standards except for the specific provision which has created the nonconformity and from which relief is sought; and
[2] The strict application of the terms of this chapter would result in undue hardship. "Undue hardship" is defined to mean:
[a] That the land in question cannot yield a reasonable return unless the variance is granted;
[b] That the need for a variance is because of unique circumstances of the property (such as location of existing structures, topographical features, etc.) and not to the general conditions of the neighborhood;
[c] That the granting of a variance will not change 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.
(d) Permitted variances run with the land and thus pass from one owner to the next.
(e) Notwithstanding Subsection (2)(b) above, the Board of Appeals, or the Code Enforcement Officer if authorized in accordance with 30-A M.R.S.A. § 4353-A, 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 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 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" shall include railing, wall or roof systems necessary for the safety or effectiveness of the structure. Any permit issued pursuant to this subsection is subject to Subsection (2)(g) and Subsection (5)(b) below, (Appeal procedure).
(f) The Board of Appeals shall limit any variances granted as strictly as possible in order to ensure conformance with the purposes and provisions of this chapter to the greatest extent possible, and in doing so may impose such conditions to a variance as it deems necessary. The party receiving the variance shall comply with any conditions imposed.
(g) A copy of each variance request, including the application and all supporting information supplied by the applicant, shall be forwarded by the municipal officials to the Commissioner of the 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 shall be made part of the record and shall be taken into consideration by the Board of Appeals.
(h) Expiration date. The right of any variance from the terms of this chapter granted by the Board of Appeals shall expire if the work or change permitted under the variance is not begun within six months or substantially completed within one year of the date of the vote by the Board.
(3) Administrative appeals. When the Board of Appeals reviews a decision of the Code Enforcement Officer, the Board of Appeals shall hold a de novo hearing. At this time, the Board may receive and consider new evidence and testimony, be it oral or written. When acting in a de novo capacity, the Board of Appeals shall hear and decide the matter afresh, undertaking its own independent analysis of evidence and the law, and reaching its own decision.
(4) In hearing appeals under this section, the Board of Appeals shall require that attention be given to the following wherever applicable:
(a) Location, character and natural features.
(b) Fencing and screening.
(c) Landscaping, topography and natural drainage.
(d) Vehicular access, circulation and parking.
(e) Pedestrian circulation.
(f) Signs and lighting.
(g) All factors which affect health, welfare and safety.
(5) In granting appeals under this section, the Board of Appeals may impose such conditions as it deems necessary in furtherance of the intent and purpose of this chapter.
Appeal procedure.
(1) The Board of Appeals is established pursuant to
Chapter 120: Land Use, and shall operate according to the rules and procedures set forth therein unless otherwise modified by this chapter.
(2) Appeals. Any person and any municipal official or board of officials aggrieved by a decision of the Code Enforcement Officer or who wishes to request a variance from this chapter or who wishes a use permit may file an application with the Board of Appeals.
(a) An appeal of a decision made by the Code Enforcement Officer, except for enforcement-related matters as described in Subsection (2)(a) (Appeals), above, must be filed within 30 days of the date of the official written decision.
(b) Applications for appeals shall be made by filing with the Board of Appeals a written notice of appeal, which includes:
[1] A completed application form.
[2] A concise written statement indicating what relief is requested and why the appeal or variance should be granted.
[3] A sketch drawn to scale showing lot lines, location of existing buildings and structures and other physical features of the lot pertinent to the relief sought.
[4] A fee as approved by the Windham Town Council, which must be submitted to the Code Enforcement Officer at the time the appeal request is submitted.
(c) All application materials must be submitted for the Board's review at least 14 days prior to the Board meeting at which the applicant wishes to be heard.
(d) All meetings of the Board are public hearings. At the public hearing, the applicant or his representative must appear before the Board to present the proposal and to answer questions. Other interested parties, such as adjacent property owners, will also be permitted to speak for or against the appeal.
(e) Written notice of the decision of the Board shall be sent to the appellant within seven days of the date of the decision.
(f) Any aggrieved party may appeal from the decision of the Board to the Superior Court within 45 days of the decision date.
(g) Upon receiving an application for an administrative appeal or a variance, the Code Enforcement Officer shall transmit to the Board of Appeals all of the papers constituting the record of the decision appealed from.
(h) The Board of Appeals shall hold a public hearing on administrative appeal or a request for a variance within 35 days of its receipt of a complete written application, unless this time period is extended by the parties.
(i) The person filing the appeal shall have the burden of proof.
(3) Decision by Board of Appeals.
(a) A majority of the full voting membership of the Board shall constitute a quorum for the purpose of deciding an appeal.
(b) The Board shall decide all administrative appeals and variance appeals within 35 days after the close of the hearing, and shall issue a written decision on all appeals.
(c) The Board of Appeals shall state the reasons and basis for its decision, including a statement of the facts found and conclusions reached by the Board. The Board shall cause written notice of its decision to be mailed or hand-delivered to the applicant and to the Department of Environmental Protection within seven days of the Board's decision. Copies of written decisions of the Board of Appeals shall be given to the Code Enforcement Officer and the municipal officers.
(d) After a decision has been made by the Board of Appeals, a new appeal of similar import shall not be entertained by the Board until one year shall have elapsed from the date of said decision, except that the Board may entertain a new appeal if the Board believes that, owing to a mistake of law or misunderstanding of fact, an injustice was done or it finds that a change has taken place in some essential aspect of the case sufficient to warrant a reconsideration of the appeal.
(4) Appeal to Superior Court. Except as provided by 30-A M.R.S.A. § 2691(3)(F), any aggrieved party who participated as a party during the proceedings before the Board of Appeals may take an appeal to Superior Court in accordance with state laws within 45 days of the date of any decision of the Board of Appeals.
(5) Reconsideration.
(a) In accordance with 30-A M.R.S.A. § 2691, Subsection 3F, the Board of Appeals may reconsider any decision within 45 days of its prior decision. A request to the Board to reconsider a decision must be filed within 10 days of the decision that is being 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 shall require a positive vote of the majority of the Board members originally voting on the decision, and proper notification to the landowner, petitioner, Planning Board, Code Enforcement Officer, and other parties of interest, including abutters and those who testified at the original hearing(s). The Board may conduct additional hearings and receive additional evidence and testimony.
(b) Appeal of a reconsidered decision to Superior Court must be made within 15 days after the decision on reconsideration.
