Town attorney Phil Saucier tells Scarborough ZBA practical‑difficulty variances are easier than undue‑hardship but still hard to win

Phil Saucier, an attorney with Bernstein Sherr who represents the Town of Scarborough, told the Zoning Board of Appeals at a July 8 training session that practical‑difficulty variances were created by the legislature to be ‘‘less onerous’’ than undue‑hardship variances but remain difficult to obtain in practice. He said the statute sets out seven elements the applicant must satisfy (often considered eight when courts require a separate definition step), and that town practice requires careful, fact‑based written findings to withstand appeal.

The distinction matters, Saucier said, because accessory dwelling units (ADUs) and other changes in housing policy have increased requests that touch on the practical‑difficulty standard. Board members raised repeated questions about whether being the first ADU in a neighborhood or losing ‘‘opportunity value’’ (being unable to pursue the same future gains as neighboring properties) counts as significant economic injury. Saucier answered that ADUs are often permitted by statute and that the variance determination remains highly fact specific: ‘‘It's something less than the undue hardship,’’ he said, but ‘‘still difficult’’ and dependent on the evidence in the record.

Saucier emphasized five practical takeaways for the board. First, uniqueness must be about the specific lot — widespread neighborhood conditions (rock outcrops, marshy soil) are not ‘‘unique.’’ Second, the board must independently assess whether feasible alternatives exist rather than simply accept the applicant’s assertion that none do; boards are not expected to be designers, but they must make a factual determination. Third, evidence quality matters: raw assertions of lost value are weak without supporting materials such as a CMA or professional appraisal, and professional testimony about alternatives is persuasive. Fourth, members should avoid unsanctioned independent research. On that point Saucier advised plainly: "You should not be going and doing your own research" and explained that if a board member receives outside information it must be shared with staff and included in the public record so the applicant and other members can respond. He added that noticed, public site visits are an acceptable and often useful remedy when the packet lacks sufficient facts.

Fourth and fifth, Saucier said zoning boards may attach reasonable, related conditions to a variance and that variances are recorded and run with the land; he cautioned that conditions must be related to the standards applied and proportionate to the requested relief. He noted that shoreland and flood‑hazard areas impose additional limits and that certain variances are not available in shoreland zones under state standards.

Finally, Saucier walked the board through the appeals process. Appeals from municipal zoning decisions proceed under Rule ADB of the Maine civil rules and are decided on the written record and briefs; courts typically review whether the board’s decision was supported by substantial evidence, free of legal error, and not arbitrary or capricious. Because remands to the board for fuller findings are common, Saucier urged clear, factual written findings that cite the evidentiary basis for each element.

The board took no regulatory action on a case during the training; the only formal motion recorded in the transcript was a motion to adjourn, which was seconded and carried. The town attorney offered to provide a memo on shoreland determinations and to supply suggested question lists and draft findings to improve the board’s records going forward.

The training closed with members thanking Saucier. The board adjourned without taking substantive votes on variances during the session.