LUPC VARIANCE

By Rudman Winchell Attorney Cynthia M. Mehnert

            The State legislature created the Maine Land Use Planning Commission (LUPC) formerly known as the Land Use Regulatory Commission (LURC) by statute entitled 12 MRSA Chapter 206-A Land Use Regulation.  The LUPC is charged with interpreting, applying and enforcing Maine’s Comprehensive Land Use Plan for Maine’s unorganized and deorganized territories including plantations and townships. The Land Use Plan was originally adopted in 1976 and then revised several times, the last time being 2010.  The LUPC’s purpose is to fulfill the requirements of 12 MRSA §685-A(3) which is to create land use standards.  Those standards are designed to enhance sound land use and development and to encourage the most desirable use of air, land and water resources.  This purpose is met by developing minimum requirements that establish, and promote, health, safety and general welfare land use standards.

            Understanding that the LUPC’s focus is to preserve the natural, scenic and historic features of these protected areas has led to the establishment of certain standards of use.  When a landowner wishes to develop or use their property contrary to the planned use set out by LUPC, the landowner may petition for a variance.  The variance process is the focus of the remainder of this article.

            In accordance with 12 MRSA §685-A(1), the LUPC has categorized property within its jurisdiction into three major districts: Protection Districts, Management Districts and Development Districts.  Each of these districts has specific guidelines for development and natural resource preservation specific to the intent of that district.  The LUPC may grant a variance to the dimensional requirements to the district rules and not for uses otherwise prohibited in a district.  A landowner may seek a variance to these district standards providing the reasons meet that 1.) The proposed development is in keeping with the general spirit and intent of 12MRSA §685-A; 2.) The public interest is protected and; 3.) Strict compliance with the LUPC rules and standards would cause undue hardship or extraordinary difficulties because of the following:

                        “A. Exceptional or unique conditions of topography, access, location,

                        shape, size or other physical features of the site; 

  1. The access and use needs of a person with a physical disability…
  2. Unusual circumstances that were not anticipated by the commission

                        at the time the rules and standards were adopted.”

  • RSA §685-A(10))

If one of these three hardships exists then a landowner may petition for a variance.  In order to be granted a variance under Regulation A or C, the landowner must show by substantial evidence that the property will not yield a reasonable return unless the variance is given; that the variance is needed because of the uniqueness of the subject property and not of the surrounding properties; the essential character of the area will not be changed; and, the hardship is not a result of actions taken by the land owner, or prior owner or lessee.  If the property is in a flood prone area then the LUPC has additional requirements.

            Once a landowner has submitted their petition for a variance, the Land Use Planning Commission will issue written findings of fact and conclusions indicating that the Petition for a Variance as modified by such terms and conditions as the Commission deems appropriate has met the standards of the LUPC Regulations.  If a variance is not granted then there is an appeals process.

Disclaimer


These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.