Hardship Variances

Some proposals require that the applicant obtain a hardship variance from the commission. Any proposal that does not meet today’s regulations must request a hardship variance. When it is determined that an applicant must obtain a hardship variance, the application process is very similar to that of an ordinary application. The only difference is that the applicant or agent must present testimony for the hardship to the commissioners during a public hearing. During this public hearing, a four-part test must be proved in order for the commission to consider granting a hardship variance request.

The Saco River Corridor Act (Title 38 M.R.S.A. Section 951 et. seq.) states that the burden of proof is upon the applicant to demonstrate “undue hardship,” which is defined in Title 30-A M.R.S.A. Section 4353 as the following:

  • the land cannot yield a reasonable return unless a hardship variance is granted;
  • the need for the hardship variance is due to unique circumstances of the property and not to the general conditions in the neighborhood;
  • the granting of a hardship variance will not alter the essential character of locality; and
  • the hardship variance is not the result of action taken by the applicant or a prior owner.

The act further states that the applicant must meet the following tests in addition to establishing undue hardship:

  • The hardship variance, if granted, will not subvert the intent of the Saco River Corridor Act; and
  • The proposed use will not unreasonably interfere with the use and enjoyment of their lands by adjacent landowners, or result in any unreasonable
    • degradation of air and water quality;
    • harmful alteration of wetlands;
    • increasing erosion or sedimentation;
    • danger of increased flood damage;
    • obstruction of flood flow;
    • damage to fish and wildlife habitat;
    • despoliation of the scenic, rural, and open space character of the corridor;
    • overcrowding;
    • excessive noise;
    • obstructions to navigation; or
    • interference with the educational, scenic, scientific, historic, or archeological values of those areas designated and approved for inclusion within the Resource Protection District.

When preparing your argument to the commission, please review the points and examples listed below regarding the four-part test:

No Reasonable Return

  • Reasonable return, not maximum return
  • Practical loss of all beneficial use (taking)
  • Hardship must relate to land, not personal circumstances

Examples:

  • Land unsuitable for any permitted use
  • Conformance possible only at great cost
  • Ordinance limited to non-productive uses

Due to Unique Circumstances

  • Of property, not person
  • Uncommon condition, not shared by neighborhood

Examples:

  • Substandard lot where most or all others conform
  • Unusual location or topographical features

Will Not Alter Neighborhood Character

Essential character refers to residential, commercial, industrial, etc.

Examples:

  • Accessory apartment in mixed single-family or multi-family zone
  • Setback reduction in densely development neighborhood

Is Not Self-Created

  • Action contributing to hardship
  • By applicant or prior owner

Examples:

  • Ordinance adopted or amended after purchase
  • No hardship where applicant acquired property with actual/constructive knowledge of restrictions