Town attorney trains Old Orchard Beach Board of Appeals on FOA, conflicts and variance rules

Phil Saucier, an attorney who said he represents the town of Old Orchard Beach, led a comprehensive training for the town’s Board of Appeals that reviewed members’ legal duties, public‑meeting and records rules, conflict‑of‑interest standards and the legal tests for variances.

Saucier told the board that members must “base your decisions on the evidence and the record,” and not on personal views or outside investigations. He said driving past a property is common, but walking a site or conducting independent inspections is discouraged; if board members want a closer view, the proper procedure is a publicly noticed site visit scheduled through staff so applicants and the public can attend.

The training summarized Maine’s rules for recusal. Saucier described the statutory pecuniary‑interest threshold — often called the “10% test” — where being an officer, director or manager and owning at least 10% of an applicant company creates a clear conflict requiring recusal. He also noted family‑relationship limits under state law that extend to second cousins under the relevant consanguinity test and urged members to disclose relationships or other facts that could create the appearance of bias.

On public‑meeting law, Saucier reviewed the Maine Freedom of Access Act (FOA), saying meetings must be open to the public with reasonable notice and that executive sessions are allowed only for limited statutory purposes (for example, consultations with legal counsel) and require a cited statutory basis and a vote to go behind closed doors. He warned members that off‑record communications — including email and social media exchanges about pending applications — can create FOA or due‑process problems and should be handled through staff so all members receive the same information.

Saucier explained the public‑records side of FOA: a municipality must acknowledge records requests within five working days, provide an estimate of time and cost, offer two free hours of staff time, may charge $25 per hour thereafter, and can require prepayment when estimated costs exceed $100. He said the town has a public access officer (the town clerk) and noted an Attorney General‑office ombudsman who handles FOA disputes.

Turning to board authority and appeals, Saucier said state law requires towns to have boards of appeals when they maintain a zoning ordinance, and he described the board’s quasi‑judicial role. He explained that administrative appeals from the code officer are reviewed de novo — meaning the board hears the matter afresh and must base its decision on the evidence and testimony presented at the hearing — and that courts now closely scrutinize written findings.

Saucier walked the board through the four criteria for an undue‑hardship variance: (1) the land cannot yield a reasonable return without the variance (the court has treated this as a demanding standard), (2) the hardship is unique to the property, (3) the variance will not alter the essential character of the locality, and (4) the hardship is not the result of actions by the applicant. He reiterated that applicants must meet all four criteria to succeed.

He also described Old Orchard Beach's narrower procedure for limited reductions in yard size or increases in lot coverage, which is subject to its own four standards and capped percentage limits under the local ordinance; and he outlined optional disability‑related relief (nonconforming means of egress) and how the town might delegate some temporary measures to the code officer to speed relief for applicants.

Throughout the session members asked practical questions about packet completeness, whether staff may coach applicants, how to handle reading letters into the record, and the timing of electing chairs and vice chairs. Saucier advised that staff often performs initial completeness reviews, that staff may guide applicants on submission requirements (but should not write applications), that boards may adopt reasonable rules limiting repetitive public comment, and that written decisions should explicitly tie each finding to evidence to withstand judicial review.

The training concluded with a short procedural exchange and a motion to adjourn. The board then proceeded to its regular meeting.