Agenda - Planning Commission - 12/03/2009

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/n..... r '''::__./ (() i( i. \\>:::/! Zoning Bulletin September 10, 20091 Volume 31 No. 17 nature of the vegetation, or building(s) provides screening that is equal in protection to the required width of buffers." To comply with the'condition in his business permit, Poliquin applied to the Board, seeking a lesser buffer than the 100 foot buffer required by S 1.6. The Board approved the lesser buffer of 65 feet from Wyman's prop- erty. It did so after finding that with the vegetative screening proposed by Poliquin, the 65 feet of buffer was equal in protection to the 100 feet of buffer without the vegetation. Wyman challenged the Board's decision to approve the lesser buffer. Wyman argued that the lesser. buffer permit issued by the Board consti- tuted an "improperly granted variance." He argued that S 1.6 imposed a binding setback requirement that could only be altered by obtaining a variance from the town's Board of Appeals (the "BOA"). Further, he contended that because S 1.6 "[did] not require any particular type of buffering, such as landscaping, it impose[d] a straight distance require- ment that [was] identical in form and purpose to a setback." The BOA affirmed the Board's approval ~f Poliquin's lesser buffer permit. Wyman again appealed, and the superior court affirmed the BOA's decision. Wyman again appealed. DECISION: Affirmed. "'-", The Supreme Judicial Court of Maine held that S 1.6-the "'buffer zone' provision"-did not impose a mandatory setback requirement re- quiring a variance from the town's BOA. The court noted that, as defined by the Ordinance, a "variance" was a "relaxation of the terms of [the] Ordinance." Here, the lesser buffer per- mit did not relax or reduce the Ordinance's buffer requirements. Rather, reading the two "buffer" provisions (i.e., S 1.6 and S 1.7 of the Ordi- nance) together, the Ordinance authorized a developer to comply with the buffer requirements by more than one acceptable means. A developer could either: (1) under S 1.6, create a straight distance of 100 feet; or (2) under S 1.7, demonstrate that the vegetation or topography or nature of the buildings created a buffer "sufficient to afford the same level of screening that the straight distance of [100] feet would afford." Moreover, the court rejected Wyman's argument that S 1.6 imposed a straight distance requirement that was identical in form' and purpose to a setback, which required a variance. Setbacks and buffers differ, ex- plained the court. Setbacks impose straight distance requirements in all circumstances, whereas buffers can be satisfied with reduced distances, provided there is adequate screening through some other means. Further, the purpose of a setback is to prevent the construction of buildings too close together, whereas the purpose of a buffer is to reduce noise and @ 2009 Thomson Reuters 5 63