Section 672-10-I-10 - VARIANCESThe Commission may grant variances pursuant to 12 M.R.S. §685-A(10) and adopts this section to interpret and implement the statutory provision.
A.PETITIONSAny property owner or lessee may petition the Commission for permission to develop the property in a manner otherwise prohibited by the Commission's rules. Variances may be granted only from dimensional requirements, but shall not be granted for establishment of uses otherwise prohibited by the Commission's rules.
B.GRANTING OF A VARIANCEThe Commission may grant a variance when the Commission finds that the proposed development is in keeping with the general spirit and intent of this chapter, that the public interest is otherwise protected and that strict compliance with the rules and standards adopted by this Commission would cause unusual hardship or extraordinary difficulties because of the following:
1. The access and use needs of a person with a physical disability as defined in 5 M.R.S. §4553(7-B) who resides in or regularly uses a structure; this provision shall be applicable only under the following circumstances: a. Where necessary for the use of residential structures;b. An alternate proposal approvable under either the provisions of Sub-Chapter III or Section 10.11 would not provide a reasonable accommodation to the disability;c. The variance requested is necessary to afford relief;d. The hardship is not the result of action taken by the petitioner;e. The requirements of Section 10.10,B,4 and 5 are met for variances in special flood hazard areas; andf. The Commission may impose conditions on the variance, including limiting the variance to the duration of the disability or to the time that the person with the disability lives on the property; or2. Exceptional or unique conditions of topography, access, location, shape, size or other physical features of the site; or3. Unusual circumstances that were not anticipated by the Commission at the time the rules and standards were adopted.4. In order to be granted a variance, under either Section 10.10,B,2 or 3 above, a petitioner must demonstrate, by substantial evidence, that: a. The land in question can not yield a reasonable return unless a variance is granted;b. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;c. The granting of a variance will not alter the essential character of the locality; andd. The hardship is not the result of action taken by the petitioner or a prior owner or lessee.5. In addition to the provisions of Section 10.10,B above, in flood prone areas, variances: a. Shall not be granted within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.b. Shall be granted only upon: (1) A showing of good and sufficient cause; and,(2) A determination that should a flood comparable to the base flood occur, the granting of a variance will not result in increased flood heights, additional threats to public safety, public expense, or create nuisances, cause fraud or victimization of the public; and,(3) A showing that the issuance of the variance will not conflict with other state or federal laws.c. Shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief, and the Commission may impose such conditions to a variance as it deems necessary.d. May be issued for development for the conduct of a functionally dependent use provided that: (1) Other criteria of Section 10.10 and Section 10.25,T,2,k are met; and,(2) The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.e. May be issued for Historic Structures upon the determination that the development:(1) Meets the criteria of Section 10.10,B,5,a-d above; and,(2) 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.C.ISSUANCEThe Commission may issue a variance only after making written findings of fact and conclusions indicating that the petition, as modified by such terms and conditions as the Commission deems appropriate, has met the standards of Section 10.10,B. If the Commission denies the requested variance, it shall provide the petitioner with written explanation of the reasons for denial.
D.VARIANCES IN SPECIAL FLOOD HAZARD AREASAny applicant who meets the criteria of Section 10.10,B,5,a-e above shall be notified by the Commission in writing over the signature of the Director 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 per $100 of insurance coverage;2. Such construction below the base flood level increases risks to life and property; and3. The applicant must agree 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 state 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 state from any claims the applicant may have against the state that are related to the use of land located in a floodplain.01-672 C.M.R. ch. 10, § I-10