Appeal Procedures List
1. Variance or Miscellaneous Appeals and request for Special Exceptions, as described in section 16.04.050.B.2 of the Land Use and Development Code Zoning Ordinance, MUST be made by the property owner or duly authorized agent.
2. In ALL cases, a person aggrieved by a decision of the Code Enforcement Officer must commence appeal (ADMINISTRATIVE) within (thirty) 30 days of the date of notification to the applicant of the decision made by the CEO. Notwithstanding the above time limit, a person aggrieved by a decision of the CEO to issue a building/related activity permit MUST commence appeal within (thirty)30 days of the date that the decision is publicly posted at the Kittery municipal offices. A copy of the CEO’s denial letter, if applicable, MUST be included with the appeal package.
3. The complete appeal MUST be filed with the CEO or designate on forms approved by the ZBA.
4. The applicant MUST SPECIFICALLY set forth the grounds for the appeal (i.e. claimed interpretation of this ordinance and reasons why the appeal should be granted).
5. Submittals to the ZBA MUST be available to the ZBA members at least two weeks before the applicant is to appear before the ZBA.
6. TEN sets of all submissions are REQUIRED.
7. A Plot plan, as indicated by 16.24.050.A.3 of the Land Use and Development Code Zoning Ordinance, MUST be included with the appeal package.
8. THE CEO MUST CONSIDER ALL APPLICATIONS COMPLETE BEFORE A HEARING IS SCHEDULED WITH THE ZBA. (Section 16.04.050).
9. Applications considered incomplete by the CEO will NOT be placed on the ZBA agenda. Applicant is responsible to find out the status of their application.
10. The applicant shall pay a fee for filing an appeal or special exception request in an amount as set by the Town Council.
11. Applicant and abutters will be notified of hearing date by first class mail from the Town.
12. Anyone may present information, drawings, written statements or any other information pertinent to the appeal being heard up to 5 days before the date the appeal hearing. All such information MUST be delivered to the CEO for distribution to the members of the ZBA.
13. Information in the form of photographs may be presented to the ZBA anytime including at the hearing. Under no circumstances will written documentation be accepted at the hearing in any form.
14. Correspondence from other Town of Kittery Bodies such as planning board, conservation commission, etc. relevant to an appeal may be presented in any form to the ZBA at any time up to and including the hearing. A written copy of these communications needs to be sent to the CEO for inclusion in the official record. The ZBA chairperson will distribute all correspondence to the individual ZBA members.
Postponing an Appeal
1. Any applicant may request postponement of their appeal for just cause as determined by the ZBA board. The following are examples of just cause:
a. Sickness of the applicant or witnesses who are needed to make a case.
b. Change in appeal facts or details that are not available at the hearing. The lack of this information can not be due to any action by the applicant.
2. The request to postpone an appeal MUST be made prior to testimony being started. Once testimony has begun it must be completed with a vote or withdrawn outright.
3. The lack of a full board is not an excuse to postpone a meeting by itself. There needs to be 4 members present to have a quorum and 4 members can decide an appeal. However if there are 5 or fewer members of the ZBA present and the applicant can specifically explain why they feel they need to wait for a more populated board they can request a postponement. The members of the board present will vote on whether to grant a postponement. A simple majority of the members present is necessary. In case of a tie the postponement passes.
4. There will only be one postponement allowed on any appeal. Extreme circumstances will be considered by the board.
Request for Reconsideration
1. Any applicant or interested party may request reconsideration within 10 days of the decision of the ZBA.
2. The request MUST be filed in the same manor as the original appeal with the CEO or designate with all fees and requirements included. All applications for reconsideration will use the same forms as the original appeal with the word “RECONSIDERATION” prominently written on the cover page.
3. All applicants have standing to request reconsideration. Any interested party must have appeared at the first hearing either personally, through a representative, or commented in writing in a timely fashion.
4. The applicant or interested party requesting reconsideration MUST present writing and/or documents regarding the following two standards which the ZBA will consider in deciding if it should reconsider a prior decision:
a. The new evidence or law that was not presented at the first hearing which could have altered the initial decision of the ZBA.
b. There MUST be an explanation of why this new evidence or law was not presented at the first hearing.
5. At the hearing on the request for reconsideration there shall be no oral comment by any person except members of the ZBA, who shall decide whether to reconsider the prior decision based upon the evidence and documents submitted. Members of the ZBA may ask any persons in attendance at this meeting any questions, but no one shall have the right to speak or be heard.
6. A member of the ZBA who voted contrary to the person requesting the reconsideration MUST make the motion to reconsider the prior decision. If, after the board member discussion, no such member makes a motion to reconsider, then the boards prior decision stands and will not be reconsidered. If a motion to reconsider is made then it must have four “YES” votes to pass, and if it passes then the board will hold a new hearing on the original appeal at that meeting.
7. Any request for reconsideration will be heard in the order they are presented to the Town Clerk after all of the first time appeals on the agenda.
8. All hearings that are being reconsidered will follow the rules and procedures for an initial hearing.
Appeals of a Similar Nature within 1 Year
1. Any applicant may file an appeal on a project within 1 year of a prior ZBA denial; however, the project MUST be altered or changed sufficiently to address the reasons of denial from the original appeal.
2. The request MUST be filed in the same manor as the original appeal with the CEO or designate. All appeals within 1 year of prior ZBA denial will use the same forms as the original appeal with the words “PRIOR ZBA DENIAL” and the date of said denial prominently written on the cover page.
3. The applicant requesting a new hearing MUST present writing and/or documents regarding changes from the original appeal that address the concerns and/or reasons for denial on the original appeal which the ZBA will consider in deciding if it should hear the new appeal:
4. At the hearing on the request for the appeal there shall be no oral comment by any person except members of the ZBA, who shall decide whether the information presented adequately addresses the changes needed to be done to allow a new hearing. Members of the ZBA may ask any persons in attendance at this meeting any questions related to the changes in the appeal, but no one shall have the right to speak or be heard.
5. A member of the ZBA MUST make a motion to hear the new appeal. If, after the board member discussion, no such member makes a motion to hear the new appeal, then the board’s prior decision stands and the new appeal will not be heard. If a motion to hear the new appeal is made then it must have four “YES” votes to pass, and if it passes then the board will hold the hearing on the appeal at that meeting.
6. Any request for a new hearing will be heard in the order they are presented to the Town Clerk after all of the first time appeals on the agenda.
Adopted by the ZBA:
Date: 12/13/05
Michael LaMarca
Chairman ZBA
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