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APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:1 Sec. 1. Applicability. The procedures and standards set forth in this article shall apply to appeals that are brought before either the board of appeals or planning board under this Code and, except as otherwise provided in article X, to applications for conditional use permits pursuant to article X. (Ord. No. 89-3, 4-7-89) Sec. 2. Appeal procedures. Petition. A written petition for an appeal shall be filed in the office of the director of code enforcement within the applicable time period as set out in this Code. In the event no specific time period is provided for in this Code, the petition shall be filed within 30 days of the action from which the appeal is taken. When the appeal is taken from a failure or refusal to act, the petition shall be filed within 60 days after the action was first requested. The petition shall be on forms provided by the city for that purpose and shall be addressed to the board of appeals. A nonrefundable application fee, as established from time to time by the city council to cover administrative costs and the costs of a hearing, shall accompany each petition. The petition for appeals shall contain the following information: a. Street address of the property in question; b. The legal name and address of the petitioner; c. The legal name and address of the owner of the property involved; d. The legal name and address of the applicant for any permit which is the subject of the appeal, if different from the owner; e. Description of the property in question; f. Petitioner's description of what is intended to be done; g. A drawing, which is substantially to scale, of the site, showing existing and proposed buildings, roads, drives, parking areas and utilities, the actual relationship of these facilities to each other and the boundaries of the parcel and the location of buildings or abutting lots which are within 50 feet of the property line of the site. Where development approval is required by article XIII of the Code, this drawing shall meet the requirements of article XIII, subsection h. A statement of the reason or reasons why the petitioner believes the appeal should be granted; i. If the appeal challenges the issuance of a permit, a description of the permit which was issued. ---PAGE BREAK--- APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:2 Scheduling. All hearings shall be held within 30 days of the receipt of a complete petition for appeal, unless otherwise agreed between the petitioner and the board of appeals at the hearing of which public notice has been given pursuant to subsection of this section. Public notice. Before taking action on a petition for appeal, the board of appeals shall hold a public hearing. The office of the director of code enforcement shall notify, by regular mail, the following parties of the subject matter, time, date and place of the hearing at least seven days before the date of such hearing: Each member of the board of appeals; The petitioner, the development department, the mayor and city council, the director of code enforcement, and the owner of the property which is the subject matter of the appeal, if other than the petitioner; The owners of property within 300 feet of all the frontage on both sides of the street and all landowners whose property touches upon the lot involved in the appeal. The owners of property shall be considered to be the parties listed by the chief assessor as those against whom taxes are assessed. Failure of any property owner to receive said notice shall not necessitate another hearing and shall not invalidate any action by the board of appeals. Representation. Anyone may appear personally at a public hearing or be represented by an agent or an attorney. When the petitioner is not represented by an attorney, the board shall provide to the petitioner a copy of the provisions of this Code applicable to the appeal. The petitioner, either personally or through an agent or attorney, must appear at the hearing at which the petition is to be heard. Failure to appear shall require that the board dismiss the petition and provide the petitioner with written notice thereof. A continuance may be granted to a petitioner or other party in interest where good cause is shown. Conduct of hearing. All interested persons shall be given a reasonable opportunity to have their views expressed at any hearing. Action by the board. Within 45 days of the hearing of which public notice was given pursuant to subsection of this section, the board shall render its decision, granting the appeal, granting it subject to conditions or denying it. The failure of the board to act within 45 days shall be deemed a denial of the appeal, unless such time period is mutually extended in writing by the petitioner and the board. Within five days of such decision or the expiration of such period, whichever first occurs, the secretary shall mail notice of such decision or failure to act to the petitioner and, if the appeal was granted, shall notify the director of code enforcement, listing all conditions imposed by the board. ---PAGE BREAK--- APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:3 Sec. 3. Standards for the granting of appeals. The Board of appeals shall grant an appeal only when it finds that the following standards have been met: Administrative appeals. That the code enforcement official erred in either his interpretation of the Code or in the application of the Code to the particular circumstances of the application. If the board of appeals finds that the code enforcement official correctly interpreted and applied the provisions of this Code, the board shall affirm his decision. If the board finds that the code enforcement official erred in the interpretation or application of the Code, the decision of the code enforcement official shall be reversed and the board shall make an official interpretation of the Code to be used by the code enforcement official. Variances. a. The board of appeals shall grant a variance only when it finds that the strict application of a provision of this Code to the petitioner and his property would cause undue hardship. 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 because there are physical conditions unique to the property which are of such an extraordinary nature that strict application of the provisions of this Code greatly decreases its value for any use to which it can be put under the provisions of this Code; 2. The need for the variance is due to unique circumstances of the property and not to the general conditions of the neighborhood; 3. The hardship is not the result of action taken by the petitioner or a prior owner; 4. The granting of the variance will not alter the essential character of the locality; 5. The granting of the variance will not result in undue impact on adjacent properties due to the placement of buildings or structures, location of storage, parking or service areas, diversion of surface water or blocking of solar access; and 6. The granting of the variance will not impede the ability of public safety services to reach or service the property or adjacent properties. b. In addition to the standards contained in subsection within mandated shoreland zoning areas or in resource conservation, lake conservation or groundwater conservation districts, the board of appeals shall grant a variance only when it finds that the granting of the variance: 1. Will not result in unsafe or unhealthful conditions; 2. Will not result in erosion or sedimentation; ---PAGE BREAK--- APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:4 3. Will not result in water pollution; 4. Will not result in damage to spawning grounds, fish, aquatic life, bird and other wildlife habitat; 5. Will conserve shoreland vegetation; 6. Will conserve visual points of access to waters as viewed from public facilities; 7. Will conserve actual points of public access to waters; 8. Will conserve natural beauty; and 9. Will avoid problems associated with floodplain development and use, such as erosion, increased risk of flood damage to upstream properties or increased flood damage. c. The board of appeals shall grant a variance from the floodplain management standards of article XIV only when it finds that the granting of the variance: 1. Within any designated regulatory floodway will not result in an increase in flood levels during the base flood discharge; 2. Is supported by good and sufficient cause; 3. Will not result, should a flood comparable to the base flood occur, 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 and ordinances; 4. Will not cause a conflict with other state, federal or local laws or ordinances; and 5. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief, and the board of appeals may impose such conditions to a variance as it deems necessary. d. The board of appeals shall grant a variance for new construction, substantial improvements, or other development for the conduct of a functionally dependent use only when it finds that: 1. Other criteria of article IX and article XIV, subsection 6(k) are met; and 2. The structure or other development is protected by methods that minimize flood damage during the base flood and create no additional threats to public safety. e. The board of appeals may grant a variance for the reconstruction, rehabilitation, or restoration of structures listed on the National Register of Historic Places or a state inventory of historic places. upon the determination that: ---PAGE BREAK--- APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:5 1. The development meets the criteria of subsections 3(2)(a) through above; and 2. The proposed repair, reconstruction, rehabilitation, or restoration will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. f. Any applicant who meets the criteria of article IX, subsections through shall be notified by the board of appeals in writing over the signature of the chairman of the board of appeals that: 1. 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 $25.00 per $100.00 of insurance coverage; 2. Such construction below the base flood level increases risks to life and property; 3. 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; and 4. The board of appeals shall submit to the code enforcement official a report of all variance actions, including justification for the granting of the variance and an authorization for the code enforcement official to issue a flood hazard development permit, which includes any conditions to be attached to said permit. Changes from one nonconforming use to another nonconforming use. That the criteria set out in article VI, section 4 have been met. Determination of zoning district boundaries. That the criteria set out in article IV, section 3 have been met. Appeals of staff decisions on development reviews. That the staff review committee erred in the interpretation or application of the approval criteria set forth in article XIII. If the board finds that the staff review committee correctly interpreted and applied the provisions of this Code, the board shall affirm its decision. If the board finds that the committee erred in its decision, the decision of the committee shall be reversed and the board shall approve, approve with conditions or deny the application. Modifications of off-street parking requirements. That the criteria set out in article XII, section 17, subsections and have been met. ---PAGE BREAK--- APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:6 Modification of wall and fence requirements. That the criteria as set out in article XII, section 7, subsection have been met. Appeals of historic preservation review board actions on certificates of appropriateness. That the historic preservation review board erred in the application of the approval criteria set forth in article XV. If the board of appeals finds that the historic preservation review board correctly interpreted and applied the provisions for granting a certificate of appropriateness, the board of appeals shall affirm its decision. If the board of appeals finds that the historic preservation review board erred in its decision, the decision of the review board shall be reversed and the board of appeals shall approve, approve with conditions, or deny the application. Modifications of setbacks, yards, maximum lot coverage ratio, maximum impervious surface ratio, minimum open space ratios, and maximum building height requirements by not more than 25 percent; for lots in the highway business and community business zoning districts with frontage on Main Street, Sabattus Street or Lisbon Street, the modification may be up to 30 percent. The requested modifications of the aforementioned space and bulk requirements shall meet the following criteria: a. Detached single-family dwellings and their accessory structures may be located a minimum of ten feet from the nearest point of any existing principal structure or building on any adjacent lot. All other residential and nonresidential structures requesting modifications must be constructed in accordance with the current building code. b. The granting of the reduction will not result in undue impact on adjacent properties due to the placement of buildings or structures, location of service, parking or storage areas, diversion of surface water or blocking of solar access; c. The modification will not impede the ability of public safety services to reach or service the property or adjacent properties; d. The modification provisions cannot be used to further modify space and bulk requirements already reduced pursuant to the cluster provisions found under article XIII, sections 7 and 9; or to reduce the minimum lot size, minimum frontage, minimum setback and minimum yard requirements for article XI for single-family cluster developments, mixed residential developments, mixed single-family residential developments and mobile home parks as they apply to the development in its entirety as if it were a single unit; or to further modify yard and setback reductions allowed for awning and canopy installations, and existing service stations, pursuant to article V, subsections 3(q) and respectively. (10) Modifications of front setbacks limited to vertical expansions, side and rear yards, side and rear setbacks, maximum lot coverage ratios, maximum impervious surface ratios, minimum open space ratios, maximum building height requirements by more than 25 percent (or by more than 30 percent for lots in the highway business and community business zoning districts with frontage on Main ---PAGE BREAK--- APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:7 Street, Sabattus Street or Lisbon Street), but not greater than 50 percent. The requested modifications of the aforementioned space and bulk requirements shall meet the criteria contained in subsection 3(9) above and the following additional criteria: For modifications to the front setbacks, side and rear yards, side and rear setbacks, maximum lot coverage ratios, maximum impervious surface ratios, minimum open space ratios and maximum building height requirements, the proposed structure, building, storage area, parking or other impervious area cannot otherwise be practically located on the lot to satisfy the code requirements from which relief is sought. In assessing practicality, the board shall take into consideration impediments to development imposed by floodplains, wetlands, shore land zoning, topography, geology, lot size and configuration and limitations caused due to existing conditions of development. The reviewing authority shall also assess the need for the development and the use of the property in relation to the relief requested such as could the proposed improvements be reduced in scope or be reasonably placed at another location on the lot and still generally meet the petitioners objectives; or are there aesthetic, architectural or structural considerations that warrant that the proposed relief be granted. (11) Modifications of side and rear yard and side and rear setback requirements by more than 50 percent. The requested modification of the aforementioned space and bulk requirements shall meet the criteria contained in subsections 3(9) and 3(10) above. In addition, the reviewing authority shall require that the petitioner obtain a maintenance easement/agreement from the owner(s) of adjacent impacted property(ies), (i.e. those properties that are immediately adjacent to the proposed improvement(s) requiring relief that will, in the reviewing authority's opinion, be impacted due to construction, maintenance, stormwater runoff, snow and the potential to limit future development opportunity). The easement/maintenance agreement shall be in a form acceptable to the reviewing authority and shall be recorded at the Androscoggin County Registry of Deeds by the petitioner prior to the issuance of any required permits. In addition, the property boundary subject to the requested relief shall be established by a licensed land surveyor with verification provided to the code enforcement official prior to the issuance of any permits for the requested improvements. (Ord. No. 89-3, 4-7-89; Ord. No. 90-10, 10-4-90; Ord. No. 91-1, 3-19-91; Ord. No. 93-9, 6-17-93; Ord. No. 94-17, 11-17-94; Ord. No. 94-19, 1-12-95; Ord. No. 98-6, 7-2-98; Ord. No. 98-12, 11-19-98; Ord. No. 99-10, 5-6-99; Ord. No. 02-01, 2-21-02; Ord. No. 06-05, 4-20-06) Sec. 4. Burden of proof. The burden of proof is on the petitioner to demonstrate satisfaction of all standards imposed for the granting of an appeal. Sec. 5. Conditions of approval. In granting any appeal, the board of appeals may impose conditions on that approval that ---PAGE BREAK--- APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:8 it finds necessary to ensure full satisfaction of the standards imposed for the granting of the appeal and other applicable provisions of this Code. Violations of these conditions shall be a violation of this Code. Such conditions may include, but are not limited to, specifications for the following: Vegetation, buffering, and screening; Increased setbacks and yards, and access restrictions; Hours of use and operational controls; Location of signs, parking and lighting; Conservation easements and other deed restrictions; Professional maintenance and inspection of facilities or improvements necessary to ensure adequate maintenance and inspection; Off-site improvements of roads, utilities or drainage facilities. Sec. 6. Limit of variances. The board of appeals shall limit the terms of any variance granted to that which is necessary to relieve the proven hardship. Sec. 7. Reapplication. If the board of appeals denies an appeal, the petitioner may not have a petition seeking the same or similar relief heard within 90 days of the denial unless the board finds at a duly noticed public hearing, substantial new evidence has been brought forward or that an error of law or mistake of fact was made. If the board so finds, the board shall proceed to hear the second petition on the merits. If the board does not so find, the second petition shall be dismissed. Sec. 8. Notification of state. The office of the director of code enforcement shall notify the state department of environmental protection of any variance granted by the board of appeals in areas covered by mandatory shoreline zoning. Sec. 9. Duration of permission. Any right, including but not limited to variances, miscellaneous appeals and changes or extensions of nonconforming uses, secured by action of the board of appeals, shall expire if the work or change involved is not begun within six months and substantially completed within one year of such action. However, the board may grant one or more extensions of time, each not to exceed one year, if, prior to the expiration of the applicable time, the petitioner files a written request with the board stating the reason for such request. Notwithstanding the above, the board may grant an extension of time not to exceed two additional years on the date of action on an appeal if the petition for appeal requests such extension. In all cases, the burden of proof shall be on the petitioner to demonstrate that, under the circumstances, the work or change involved cannot reasonably be begun, or substantially completed, within the applicable time. ---PAGE BREAK--- APPENDIX A – ZONING AND LAND USE CODE ARTICLE IX. APPEALS Lewiston Code A IX:9 Sec. 10. Floodplain notification. Any petitioner who is granted a variance in a flood hazard area shall be notified by the board of appeals in writing that: The construction of a structure below the base flood level may result in greatly increased premium rates for flood insurance; and Such construction below the base flood level increases risks to life and property. Prior to the granting of any such variance, the petitioner must file with the board of appeals a written statement that he is fully aware of all the risks inherent in the use of land subject to flooding, that he assumes those risks and agrees to indemnify and defend the city against any claims filed against it that are related to the petitioner's decision to use land located in a floodplain and that the petitioner individually releases the city from any claims the petitioner may have against the city that are related to the use of land located in a floodplain. Sec. 11. Effect of granting of appeal. The granting of an appeal shall merely authorize the preparation, filing and processing of applications for any permits or approvals which may be required by the codes and ordinances of the city including, but not limited to, a building permit, a certificate of occupancy or a development approval. It shall not authorize the petitioner to proceed with the project unless proper permits and approvals are obtained. Sec. 12. Effect of grant of variance for single-family detached dwelling on individual residential lot. Unless specifically limited by the board of appeal's granting of a space or bulk variance for a single-family detached dwelling on an individual residential lot, subsequent additions or improvements to the lot shall not require an additional variance with respect to the space or bulk standard which was the subject of the prior variance, but shall be subject to all other use and space and bulk standards, existing as of the time of subsequent additions or improvements, for the district in which the lot is located. (Ord. No. 03-12, 9-4-03)