CHAIRMAN'S "AIDE MEMOIRE" FOR CONDUCTING ZBA VARIANCE HEARINGS

(from MMA's Handbook for Local Appeals Boards: A Legal Perspective, August 1989)
prepared by Rebecca Warren Seel, Senior Staff Attorney
This outline was prepared by the Southern Maine Regional Planning Commission.

This publication is presented for "Classroom Use Only."  Its intended use is to stimulate and aid in discussion and role playing within a classroom setting.

1. Call meeting to order.

2. Determine quorum.

a. Determine any conflicts of interest.

3. Summarize nature of appeal.

a. Identify denial and application plus any requests to become an "interested party"

4. Determine jurisdiction.

a. Ordinance or statute giving board authority over the matter.

5. Determine "standing."

a. Has appellant been denied a permit, and if so, does he have "right title, or interest" in the land, or is he an authorized agent of the owner?

6. Determine parties to the action.

a. Appellant, Selectmen, CEO, persons adversely affected, and present owner or his agent.

7. Testimony, questioning, rebuttal.

a. Testimony of Appellant

1. Uninterrupted (if confined to subject matter at hand).

2. Evidence to prove undue hardship must be given.

b. Cross-examination of Appellant.

1. By ZBA (to determine if each of the hardship criteria has been met)

2. By interested parties.

c. Testimony of Parties to Action.

1. Supporters.

2. Opponents.

3. CEO.

d. Cross-Examination of Parties to Action.

1. By Appellant

2. By ZBA, thru the Chairman

e. Rebuttals.

1. By all parties.

f. Other testimony.

1. By interested citizens and observers

g. Conclusion.

1. Chairman closes the hearing.

h. Decision.

1. ZBA discusses pros and cons of the case, with respect to criteria for hardship.

2. Chairman summarizes discussion.

3. Chairman reminds ZBA of its powers and duties.

a. Duty to grant variance when undue hardship is proved

- conditions may be attached by ZBA
- variance should be the minimum necessary to relieve hardship

b. Duty to deny variance when undue hardship is not proved.

c. Duty to base decisions on the facts and not on emotional considerations raised by those supporting or opposing the variance.

4. In making the decision

a. The Chairman should summarize the plain facts of the case: ownership, zoning requirements, applicant's proposal, CEO action, applicant's appeal.

b. Each member should state his or her own reasons why he/she concludes that the applicant does or does not meet the statutory criteria for undue hardship.

c. The majority conclusion should be part of the ZBA's written decision and should be signed by a majority of the members voting and present.

d. ZBA may attach reasonable conditions which are consistent with the objectives of the Zoning Ordinance.

- landscaping to protect abuttors
- driveway location for public safety