FOR BOARD OF APPEALS APPLICANTS
In order for the Board of Appeals to consider a case, the law requires that you present the Board with a complete application. The purpose of this letter is to provide guidance to help you in meeting your responsibilities so that the Board may hear your case. Please note that the applicant or a representative should plan to attend the hearing and be prepared to discuss the application.
The municipal officers annually set fees; and the Town Office collects fees for Variance, Special Exception, and Administrative Appeal applications. These fees, which are charged to cover the administrative costs of appeals, are non-refundable. Submit the fee, payable to the Town of Frye Island, and the completed application to the Code Enforcement Officer.
Applications to the Board must be submitted in complete form no later than 21 days prior to the date of the meeting where it is scheduled to be heard.
If an application for the project is submitted to the Planning Board at the same time as it is submitted to the Board of Appeals, you must submit separate, complete applications ( including plot plan, information and/or proposal ) to each board.
If you are appealing the denial of a permit, we recommend that you review the municipal ordinance and make sure you understand why your permit application was denied. You will need this information to complete the application. If you do not know the zoning district in which your property is located or the specific zoning restrictions affecting the property, you may obtain this information from the Code Enforcement Officer (CEO).
It is your responsibility to provide the Board with the factual information necessary for consideration of your appeal (use the application form as an initial guide). You must provide the Board with proof that you have a legal interest (such as a deed showing ownership) in the property about which you are bringing an appeal (agents or representatives must present documentation of owner’s authorization to make application), and a copy of the deed showing volume and page where recorded; and, in addition, you must provide accurate information about the property, including details about its physical characteristics (see APPLICATION section below).
You must declare what kind of appeal you wish to bring. Your options are to bring an administrative appeal, a variance appeal, both, or to file for a special exception. The CEO may give you some guidance in making the decision, but ultimately it is your decision to make, not the CEO’s. What are the differences?
An administrative appeal is an appeal from a decision of the CEO or Planning Board which you think is the wrong decision. You may think it is wrong because you do not agree with how the ordinance is being interpreted, or you think the Town made some administrative error when processing your permit application. On the application to the Board you must explain what the decision said, what you want to do with your property, why you think the decision was wrong, and what you would like the Board to do about it.
A variance appeal is an appeal from the denial of a permit because the CEO says you cannot meet one or more of the dimensional standards of the ordinance, such as setback, lot coverage, or parking space requirements. On the application you must illustrate precisely what dimensional standards you do not meet and by how much your proposed project fails to meet them, and you must also do something else—State law requires the Board to find that you will experience “undue hardship” if the appeal is not granted. “Undue hardship” is defined by law. It consists of four (4) tests. You must show that you meet all four tests before the Board can grant you a variance. You bear all the burden of proving to the Board that you actually do meet all those tests. If you do not prove this to its satisfaction, the Board does not have the legal authority to grant you a variance. Those tests are as follows:
1) That the land in question cannot yield a reasonable return unless the variance is granted.
2) That the need for a variance is due to the unique circumstances of the property and not to the general conditions of the neighborhood.
3) That the granting of a variance will not alter the essential character of the locality.
4) That the hardship is not the result of action taken by the applicant or a prior owner.
If you think you can meet all four tests, and you truly need one or more dimensional variances, you should proceed with a variance appeal.
A special exception is a use that would not be appropriate generally or without restriction throughout the zoning district, but which, if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, order, comfort, convenience, appearance, prosperity or general welfare. Such uses may be permitted in such zoning district as “special exceptions” only if specific provision for such special exception is made in the Zoning Ordinance.
The appellant shall submit to the Board statements in writing, which may be accompanied by diagrams and/or photographs which shall become part of the record demonstrating the following:
1. Effect not adverse: That the use requested will not have an unreasonably adverse effect on the health, safety or general welfare of the residents of the area or the general public. In making this determination, the Board shall take into consideration the potential effect for the development on the environment from air, water or soil pollution; noise; traffic congestion; soil erosion; the burden on sewage disposal or water supply systems or other municipal facilities, services or public ways; and any other relevant factors.
2. Value maintained: That the use requested will not significantly devaluate abutting property or property across a public or private way. In making this determination, the Board shall take into consideration the type of structure proposed; the topography of the area; the market value of the surrounding real estate; the availability of utilities and transportation; the availability of schools and hospitals; traffic congestion; and any other relevant factors.
A complete plot plan must be submitted with each application. The plan must comply with the following:
1. Be to scale.
2. Show all property lines.
3. Show any existing structures.
4. Show any proposed structures.
5. Provide measurements of any structures, existing or proposed.
6. Provide distance from all property lines to any structures, existing or proposed.
7. Designate the area of the plot plan to be used for the special exception.
8. Provide additional details on the plot plan as needed (i.e., lighting, parking, sign location, etc.).
Be sure to complete the application form and provide the Board with as much concrete documentation of your case as you can. Keep in mind that the Board will weigh the nature of the evidence submitted and rely on only that evidence it judges substantial, relevant and credible. In addition to any written material submitted with the application, you may also bring to the hearing any witnesses you wish to have present evidence on your behalf about the property in question, any sworn written statements from individuals with personal knowledge of the property, and any documentation of previous building permits or ordinances.
Your appeal must be submitted to the Board within 30 days of the issuance of the CEO’s decision in order for the appeal to be heard by the Board. The Board is not obligated to hear your appeal until you have provided it with a fully completed application. You are also required to submit a fee in order for the application to be judged complete.
The Board may reconsider any decision within 30 days of its prior decision. A vote to reconsider and the action taken on that reconsideration must occur and be completed within 30 days of the date of the vote on the original decision. At its discretion, the Board may conduct additional hearings and receive additional evidence and testimony.
Any party may take an appeal, within 45 days of the date of the vote on the original decision, to Superior Court from any order, relief or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B.