Article Index

SECTION 10 - APPEALS AND VARIANCES
The Board of Appeals of the Town of Swan's Island may, upon written application of an aggrieved
party, hear and decide appeals where it is alleged that there is an error in any order, requirement,
decision, or determination made by, or failure to act by, the Code Enforcement Officer or Planning
Board in the administration of the provisions of this Ordinance. The Board of Appeals may grant a
variance from the requirements of this Ordinance consistent with state law and the following
criteria:
A. Variances shall not be granted within any designated regulatory floodway if any increase
in flood levels during the base flood discharge would result.
B. Variances 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 or conflict with existing local laws or ordinances; and,
3. a showing that the issuance of the variance will not conflict with other state,
federal or local laws or ordinances; and,
4. a determination that failure to grant the variance would result in "undue
hardship," which in this sub-section means:
a. that the land in question cannot yield a reasonable return unless a
variance is granted; and,
b. that the need for a variance is due to the unique circumstances of the
property and not to the general conditions in the neighborhood; and,
c. that the granting of a variance will not alter the essential character of the
locality; and,
d. that the hardship is not the result of action taken by the applicant or a
prior owner.
C. Variances shall only be issued upon a determination that the variance is the minimum
necessary, considering the flood hazard, to afford relief, and the Board of Appeals may
impose such conditions to a variance as it deems necessary .
D. Variances may be issued for new construction, substantial improvements, or other
development for the conduct of a functionally dependent use provided that:
1. other criteria of Section 10 and Section 6.J. 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. Variances may be issued for the repair, reconstruction, rehabilitation, or restoration of
Historic Structures upon the determination that:
1. the development meets the criteria of Section 10, paragraphs A. through D.
above; and,
2. the proposed repair, reconstruction, rehabilitation, or restoration 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.
F. Any applicant who meets the criteria of Section 10, paragraphs A. through E. shall be
notified by the Board of Appeals in writing over the signature of the Chairman of the
Board of Appeals 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;
and,
3. the applicant agrees 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 municipality 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 municipality from any claims the applicant may
have against the municipality that are related to the use of land located in a
floodplain.
G. Appeal Procedure for Administrative and Variance Appeals
1. An administrative or variance appeal may be taken to the Board of Appeals by an
aggrieved party within thirty days after receipt of a written decision of the Code
Enforcement Officer or Planning Board.
2. Upon being notified of an appeal, the Code Enforcement Officer or Planning
Board, as appropriate, shall transmit to the Board of Appeals all of the papers
constituting the record of the decision appealed from.
3. The Board of Appeals shall hold a public hearing on the appeal within thirty-five
days of its receipt of an appeal request.
4. The person filing the appeal shall have the burden of proof.
5. The Board of Appeals shall decide all appeals within thirty-five days after the
close of the hearing, and shall issue a written decision on all appeals.
6. The Board of Appeals shall submit to the Code Enforcement Officer a report of all
variance actions, including justification for the granting of the variance and an
authorization for the Code Enforcement Officer to issue a Flood Hazard
Development Permit, which includes any conditions to be attached to said permit.
7. Any aggrieved party who participated as a party during the proceedings before
the Board of Appeals may take an appeal to Superior Court in accordance with
State laws within forty-five days from the date of any decision of the Board of
Appeals.