Variance Authority Exclusive to Appeals Boards

(from Maine Townsman, May 1998)
By Richard P. Flewelling, Senior Staff
Attorney

A recent Maine Supreme Court decision appears to have settled the question of whether the authority to grant zoning variances rests exclusively with boards of appeals.

In Perkins v. Town of Ogunquit, 1998 ME 42, abutters appealed the Planning Board’s waiver of a frontage requirement where the ordinance expressly authorized such waivers for pre-1930 buildings that met certain design review standards. (The waiver was for less than one foot, but the Board of Appeals had earlier denied a variance for lack of undue hardship.) The property owner argued that despite the statutory grant of variance authority to boards of appeals only (30-A M.R.S.A. 4353), the law did not preempt municipalities from delegating to their planning boards the authority to waive zoning requirements under "home rule." The Law Court disagreed, however, holding that the Planning Board’s "waiver" was in reality a variance and that the ordinance provision authorizing it was preempted by the exclusive statutory scheme.

Municipalities should review their zoning ordinances for these unauthorized waivers and either repeal them or reassign the authority to their boards of appeals as variances.