Wendy Walker, Chair
June 26, 2000
Page 2

        The answers to these questions lie primarily in the text of the Ordinance. First, Section 7.10.C of the Ordinance requires that:

Private roads, including access roads, constructed after the date of this ordinance to provide access to permitted uses in the Resource Conservation District shall meet or exceed the Town's road construction standards for preparation, sub-base, and base (as specified the Town's subdivision review standards), and may not exceed grades of 8%, except for short segments of 200 feet or less, which may not exceed grades of 10%.

As I understand it, the Appeals Board's variance would permit Mr. Harmon to exceed the slope limitations set forth in this section.

        In both the definition of the term "variance" and the substantive rules for considering variance requests, the Ordinance says unequivocally that the Appeals Board may grant variance requests only from dimensional requirements. The Ordinance defines "Dimensional Requirements" as Numerical standards relating to spatial relationships, including but not limited to setback, lot area, shore frontage, and height." The Board is specifically prohibited from granting a variance in order to permit a use that would otherwise be prohibited. Ordinance §10.4.B.

        Your first question can therefore be expressed as whether the slope limitations imposed by section 7.10.C are more like dimensional requirements (in which case the Appeals Board is authorized to relax them by variance) or more like limits on use (in which case the Appeals Board is without authority to relax them). While a case can be made either way, my opinion (based on the usage of the term "Dimensional Requirements" in section 6.3 of the Ordinance and on the nature and purposes of the Resource Conservation District) is that the slope restrictions in section 7.10.C are more like limits on use, and that the Appeals Board therefore exceeded it authority when it granted a variance from those restrictions.

        In any event, however (and in answer to your second question), any error by the Appeals Board is now moot. Once the Appeals Board acts on a variance request, its decision is binding on the Planning Board and the Code Enforcement Officer until and unless the decision is reversed by the Superior Court or the Law Court acting on a timely appeal. My understanding is that no one has appealed the December 1999 Appeals Board

Wendy Walker, Chair
June 26, 2000
Page 3

decision on Mr. Harmon's variance application. If that is correct, the time for appeal has long passed, the decision stands, and the Planning Board and Code Enforcement Officer are bound by it.

        Please let me know if any of this is unclear or if you require further information about these issues. I would also be pleased to offer suggestions about how to handle this matter procedurally if you decide that the Planning Board should reconsider any part of its action on Mr. Harmon's application.

Sincerely, James B. Haddow James B. Haddow

JBH/j

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