Setback Variances for Single Family Dwellings
(from Maine Townsman, June, 1992)
By Rebecca Warren Seel, MMA Senior Staff Attorney

Please Note: Despite this article’s original publication date, it remains a valid resource on the relevant subject matter. Recent cases and statutory references are footnoted to reflect current law (8/98).

During its 1992 session, the Maine Legislature enacted an amendment to the law governing the granting of zoning variances in 30-A M.R.S.A. 4353 [In 1997, the Legislature amended 30-A M.R.S.A. 4353 to include Sub- 4-C authorizing variances for a new category – "Dimensional Standards." See sections II and IV of Information Packet cover pages for further information.]. Effective June 30, 1992, the new section, 4353(4-B), authorizes municipalities to adopt an ordinance which permits the board of appeals to grant setback variances for single family dwellings where the board finds that strict application of the zoning ordinance would cause "undue hardship" as defined in the new statute. Section 4353(4-B) establishes a special "undue hardship" definition for this type of variance which is different from the test familiar to most appeals boards. For the purposes of granting a dwelling setback when authorized to do so by a local ordinance, the "undue hardship" test is as follows:

A. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;

B. The granting of a variance will not alter the essential character of the locality;

C. The hardship is not the result of action taken by the applicant or a prior owner;

D. The granting of the variance will not substantially reduce or impair the use of abutting property; and

E. The granting of a variance is based upon demonstrated need, not convenience, and no other feasible alternative is available.

Standards A, B and C of this test are the same as three of the standards in the traditional "undue hardship" test set out in 30-A M.R.S.A. 4353(4). However, instead of requiring an applicant to show that he cannot realize a reasonable return on his investment in property without the variance, the test for a single-family resident with setback requires evidence that the use of abutting property will not be substantially reduced or impaired and that there is a demonstrated need for the variance and no other feasible alternative exists.

Several additional limits on the granting of these new setback variances are included in the statute:

(1) the dwelling for which the variance is sought must be the primary year-round residence of the applicants

(2) the variance may not exceed 20% of a required setback [A 1993 amendment to Section 4353(4-B) permits a municipality to specify in the ordinance that the setback may be reduced by more than 20% (except for wetland or water setbacks in a shoreland zone) where the applicant for the variance has obtained the written consent of the affected abutting landowner]; and

(3) the variance may not cause the area of the dwelling to exceed the maximum permissible lot coverage.

It should be emphasized that the board of appeals is not automatically empowered to grant these new setback variances once the law becomes effective on June 30. The town or city legislative body must adopt an ordinance which incorporates the provisions of the new statute in order for such a variance to be available. Even if the municipality adopts such an ordinance, not everyone who applies will be legally entitled to receive a setback variance. For example, if a setback variance is sought for a new residence or an addition to an existing residence in a neighborhood where all the lots are too small to enable a dwelling to conform to setback requirements, or where most of the lots have a steep slope or ledge outcropping which makes setback compliance impossible, the board would not be able to find that a variance request was due to the unique circumstances of the applicant's property.

Municipalities should not rush to adopt this setback authority for the board of appeals without careful thought. Since some of the statutory standards are vague and since this "undue hardship" test differs from the existing test with which most boards are familiar, the board of appeals will need to be educated on how to interpret the new law. Moreover, this new variance authority may appear to be a panacea to appeals boards which are sympathetic to landowners with setback problems, thus there exists a potential for much abuse if municipalities are not careful.