Code of Maine Rules
01 - DEPARTMENT OF AGRICULTURE, CONSERVATION AND FORESTRY
672 - LAND USE PLANNING COMMISSION (formerly Land Use Regulation Commission)
Chapter 10 - LAND USE DISTRICTS AND STANDARDS
Subchapter I - GENERAL PROVISIONS
Section 672-10-I-11 - NONCONFORMING USES AND STRUCTURES

Universal Citation: 01 ME Code Rules ยง 672-10-I-11

Current through 2024-38, September 18, 2024

A. PURPOSE AND SCOPE

This section governs structures, uses and lots that were created before the Commission's rules or laws were established, but which do not meet the current rules or laws. This section also governs structures, uses and lots that met the Commission's rules or laws when built or created, but no longer are in conformance due to subsequent revisions to those rules or laws.

In accordance with 12 M.R.S. §685-A(5), legally existing nonconforming structures, uses and lots will be allowed to continue. Renovations of these structures, and the construction of certain accessory buildings, are allowed without a permit, except for those located in areas of special flood hazard as defined by rule. However, 12 M.R.S. §685-B(7) authorizes the Commission to regulate or prohibit extensions, enlargement, or movement of nonconforming uses and structures. This section clarifies which activities are allowed with a permit, without a permit, or are prohibited in the modification of a legally existing nonconforming structure, use or lot, including such a structure or use that is legally existing nonconforming pursuant to 12 M.R.S. §685-B(7-B).

B. GENERAL

1. Criteria for Approval. Permits are required for all expansions, reconstructions, relocations, changes of use, or other development of nonconforming structures, uses and lots, except where specifically provided in Section 10.11. In order to obtain a permit, the applicant must meet the approval criteria in 12 M.R.S. §685-B(4) and demonstrate that:
a. the project will not adversely affect surrounding uses and resources; and

b. there is no increase in the extent of nonconformance, except as provided in Section 10. 11,B,9 or in instances where a road setback is waived by the Commission in order to increase the extent of conformance with a water body setback.

2. Extent of Nonconformance with Respect to Setbacks. Section 10.26,D of these rules establishes minimum setbacks from water bodies, roads and property boundaries. Where legally existing, nonconforming structures do not meet these setbacks, an existing setback line will be established. The existing setback line will run parallel to the water body, road or property boundary at a distance equal to the closest point of the existing structure (including attached decks or porches) to the feature from which the setback is established. This is shown graphically below in Figure 10.11 B-1.

Figure 10.11, B-1. Determination of setback

Click to view image

Subject to the other requirements in Section 10.11, a nonconforming structure may be expanded up to the existing setback line without being considered to be more nonconforming than the original structure. Expansions between the existing setback line and the water body, road or property boundary will be considered to increase nonconformity, and will not be allowed, except as provided in Section 10.11,B,9.

3. Transfer of Ownership. Legally existing, nonconforming structures, uses, and lots may be transferred, and the new owner may continue the nonconforming use or continue to use the nonconforming lot or structure as before, subject to the provisions of the Commission's rules.

4. Normal Maintenance and Repair. A permit is not required for the normal maintenance and repair of legally existing nonconforming structures, structures associated with nonconforming uses, or structures on nonconforming lots, except that normal maintenance and repair in areas of special flood hazard shall be regulated in conformance with the requirements of Section 10.23,C and must meet applicable development standards in 10.25,T, Activities in Flood Prone Areas.

5. Renovation. A permit is not required for the renovation of legally existing nonconforming structures, structures associated with nonconforming uses, or structures on nonconforming lots, except that renovations in areas of special flood hazard shall be regulated in conformance with the requirements of Section 10.23,C and must meet applicable development standards in 10.25,T, Activities in Flood Prone Areas, and all other applicable statutory and regulatory requirements.

6. Waiver of Road Setbacks. To allow a structure to become either conforming or less nonconforming to the water body setback, the Commission may reduce the road setback to no less than 20 feet in cases of reconstruction or relocation of legally existing structures or construction of new accessory structures on developed, legally existing nonconforming lots.

7. Conformance with Maine Subsurface Waste Water Disposal Rules. All changes to legally existing nonconforming structures, structures for nonconforming uses or structures on nonconforming lots must comply with the Maine State Subsurface Waste Water Disposal Rules (144A CMR 241), including changes that do not require a permit under this rule.

8. Conflicting Requirements. In cases where two or more provisions of Section 10.11 apply to a particular structure, use or lot, the more restrictive provision shall control.

9. Waiver of Property Line Setbacks. The Commission may reduce the property line setback where there is no practical alternative and upon prior written agreement of the adjoining property owner.

C. NONCONFORMING STRUCTURES

1. Expansion. A permit is required for the expansion of a nonconforming structure, except as provided in Section 10.27,P. In addition to meeting permit requirements, expansions must also comply with the following limitations. These limitations do not apply to water dependent uses as defined in Chapter 2 of the Commission's rules.
a. Certain Expansions Prohibited. If any portion of a structure is located within 25 feet, horizontal distance, of the normal high water mark of a water body, expansion of that portion of the structure, which includes an increase in height or an increase in floor area, is prohibited. That portion beyond 25 feet may be expanded provided the size limitations in Section 10.11,C,1,b are met.

b. Size of Structures Near Water Bodies Limited. The maximum size of expansions of nonconforming structures is limited within areas described by either of the categories below:
(1) The area within 100 feet, horizontal distance, of the normal high water mark of bodies of standing water 10 acres or greater in size or flowing waters draining 50 square miles or more.

(2) The area within 75 feet, horizontal distance, of the normal high water mark of coastal wetlands or bodies of standing water less than 10 acres in size (but excluding bodies of standing water less than three acres in size not fed or drained by a flowing water).

Legally existing, principal and accessory structures located within the areas described in Section C,1,b,(1) and (2) above may be expanded subject to the other requirements of Section 10.11, provided that lot coverage limitations and other applicable land use standards are met. The maximum height of all structures within these areas shall be 25 feet, or existing structure height, whichever is greater. The maximum combined footprint for all structures within these areas may not exceed the limits in Table 10.11,C-1.

Closest Distance of Expansion from Water Body

Maximum Combined Footprint* for all Structures not Meeting Water Body Setbacks

Greater than 25 and less than 50 feet.

750 square feet.

Between 50 and 75 feet.

1,000 square feet.

Greater than 75 and less than 100 feet (if applicable setback is more than 75 feet).

1,500 square feet.

Table 10.11, C-1. Limitations on size of structures near water bodies.

* Expansions that increase the height of a structure or increase the floor area of a structure, such as the addition of a loft or second story, require permits but are not included in the calculation of the footprint of the structure.

c. Structures Located in a Designated Area of Cultural or Special Significance. If legally existing, non-conforming structures that would not otherwise be permitted to expand, are located within a Designated Area of Cultural or Special Significance (DACSS) listed in Appendix G, Section 2 of this chapter, then those structures may be expanded provided that:
(1) The proposed expansion is consistent with the purpose of the designation as described in Appendix G, Section 2 of this chapter; and

(2) The proposed expansion is in conformance with Section 10.11,C,1,a and b.

2. Reconstruction or Replacement. A legally existing, nonconforming structure may be reconstructed or replaced with a permit, provided that the permit application is completed and filed within two years of the date of damage, destruction or removal; the structure was in regular active use within a two year period immediately preceding the damage, destruction, or removal; and if the reconstruction or replacement involves expansion, the structure meets the requirements of Section 10.11,C,1, except that a legally existing, nonconforming structure located within a DACSS listed in Appendix G, Section 2 of this chapter may be reconstructed or replaced in accordance with Section 10.11,C,2,f; and except that a legally existing nonconforming structure within a commercial sporting camp may be reconstructed in accordance with Section 10.11. C.2,e.
a. Meeting Setbacks to the Maximum Extent Possible. Reconstruction or replacement must comply with current minimum setback requirements to the maximum possible extent. In determining whether the proposed reconstruction or replacement meets the setback to the maximum possible extent, the Commission may consider the following factors: size of lot, slope of the land, potential for soil erosion and phosphorus export to a water body, location of other legally existing structures on the property at the time of the damage, destruction or removal, location of the septic system and other on-site soils suitable for septic systems at the time of the damage, destruction or removal, type and amount of vegetation to be removed to accomplish the relocation, and physical condition and type of existing foundation, if any.

b. Reconstruction of Attached Decks. Decks attached to a legally existing, nonconforming structure may be reconstructed in place with a permit, except that replacement of any portion of a deck that extends into or over the normal high water mark is prohibited.

c. Permanent Foundations. The addition of a permanent foundation or the replacement of 50% or more of an existing foundation beneath a legally existing, nonconforming structure constitutes a reconstruction subject to the provisions in Section 10.11,C,2,a.

d. Boathouses. Except in a D-MT subdistrict or in a DACSS listed in Appendix G, Section 2 of this chapter, boathouses shall not be reconstructed or replaced. Normal maintenance and repair or renovation, equaling or exceeding $1,000 in cost, of a boathouse located in a P-FP subdistrict is allowed with a permit. In other subdistricts, normal maintenance and repair, and renovation of a legally existing boathouse is allowed without a permit.

e. Sporting Camps. A legally existing, nonconforming structure within a commercial sporting camp may be reconstructed in place, provided that the reconstruction occurs within 2 years of damage, destruction or removal and the Commission issues a permit [see 12 M.R.S. §685-B(7-A)] . The Commission may, consistent with public health, safety and welfare, waive standards that made the original structure nonconforming. The reconstructed structure must replicate the original structure and use to the maximum extent possible and it must be in the same location and within the same footprint as the original structure, unless the structure is relocated in accordance with Section 10.11,C,3. Minor modifications to dimensions to the structure, including the combining of multiple structures on one lot may be allowed provided the total square footage of the structure or structures is not increased and conforms with Section 10.11,C,1,b.

A legally existing, nonconforming outpost cabin shall have the same reconstruction rights of a commercial sporting camp under Section 10.11,C,2, provided the site containing the outpost cabin is limited by permit condition for a period of not less than 10 years, requiring the site to be utilized only as an outpost cabin in conjunction with a commercial sporting camp, and the permit condition is recorded with the County Registry of Deeds where the real estate is located.

f. Structures in a Designated Area of Cultural or Special Significance. A legally existing, non-conforming structure may be reconstructed in place or replaced in place with a permit, provided that:
(1) The structure is located in a DACSS listed in Appendix G, Section 2 at the time of damage, destruction, or removal of the structure; or within 2 years of damage, destruction, or removal of the structure, an area that includes the proposed site for reconstruction of the structure is designated as a DACSS in accordance with Appendix G, Section 1, or a petition for such designation is filed with the Commission;

(2) A permit application is completed and filed within two years of the date of damage, destruction or removal of the structure, or within two years of the date the area that includes the proposed site for reconstruction is designated as a DACSS, whichever is later, except that the Commission may waive this requirement upon finding that unusual circumstances prevented the applicant from filing a permit application within the two-year period provided in this paragraph;

(3) The structure was in regular active use within a two year period immediately preceding the damage, destruction, or removal, except that the Commission may waive this requirement for good cause;

(4) The proposed reconstruction conforms with the purpose of the designation as described in Appendix G, Section 2 of this chapter;

(5) Reconstruction must, to the maximum extent possible, replicate the prior version of the structure that is in keeping with the designation as described in Appendix G, Section 2 of this chapter, is in the same location, and has the same footprint, as the original structure.

Minor modifications to the dimensions of the structure may be allowed provided the total square footage of the structure or structures is not increased and conforms with Section 10.11,C,1,b.

3. Relocation. In order to make it conforming or less nonconforming, a legally existing, nonconforming structure may be relocated within the boundaries of the lot upon the issuance of a permit, provided that the site of relocation conforms to setback requirements to the maximum extent possible as determined by the Commission in accordance with the provisions of Section 10.11,C,2,a. Cleared openings created as part of a relocation shall be stabilized and revegetated. Relocated structures that are altered such that they meet the definition of reconstruction shall meet the requirements of Section 10.11,C,2. Legally existing, nonconforming structures that are part of a commercial sporting camp or are located in a DACSS listed in Appendix G, Section 2 of this chapter, may be relocated to a site that is less nonconforming.

4. Change of Use of a Nonconforming Structure. The use of a nonconforming structure shall not be changed without permit approval.

5. New, Detached Accessory Structures. New, detached accessory structures associated with pre-1971 residences and operating farms are allowed without a permit if they meet all setbacks, do not cause lot coverage requirements to be exceeded and otherwise conform with the Commission's rules, except that new accessory structures in areas of special flood hazard shall be regulated in conformance with the requirements of Section 10.23,C and must meet the applicable development standards in 10.25,T, Activities in Flood Prone Areas, and all other applicable statutory and regulatory requirements. Permits are required for all other new detached accessory structures.

The construction of new, detached accessory structures that do not meet water body setbacks is allowed with a permit only if the structure cannot be physically sited on the lot to meet the water body setback requirement. In this case, the new accessory structure shall meet setbacks to the maximum extent possible, shall not be located closer to the normal high water mark than the principal structure, shall not be located within 25 feet of the normal high water mark, shall not be located closer than 20 feet to the road in conformance with the provisions of Section 10.11,B,6, and shall be of a size and height that, when combined with legally existing principal buildings will not exceed the size and height requirements of Section 10.11,C,1,b.

6. Enclosure of Decks and Porches. A permit is required for the complete or partial enclosure of decks and porches. Enclosure of decks and porches is not an expansion of floor area. If any portion of the structure is located within 25 feet, horizontal distance, of the normal high water mark of a water body, complete or partial enclosure of that portion of the structure is prohibited.

D. NONCONFORMING USES

1. Expansion of Use. Extension, enlargement or expansion of nonconforming uses requires a permit.

2. Change in Use. A nonconforming use may not be changed to another use without a permit.

3. Resumption of Use. A nonconforming use shall not be resumed if it has been discontinued or abandoned for a period exceeding two years, or if it has been superseded by a conforming use, unless it is in an area designated as a DACSS in Appendix G, Section 2 of this chapter within two years of when the use was discontinued or abandoned. Within a DACSS the Commission may waive this requirement for good cause.

E. NONCONFORMING LOTS

1. Expansion of Structures. Structures on nonconforming lots may not be expanded without a permit, except as provided for in Section 10.27,P.

2. Creation of Nonconforming Lots. A lot which has an established use or structure to which dimensional standards apply may not be divided or altered in a manner that makes the lot, or any structure or use, nonconforming or more nonconforming.

3. Pre-1971, Unimproved, Nonconforming Lots. An unimproved, nonconforming lot, legally existing as of September 23, 1971, may not be developed unless the lot meets criteria set forth in a or b below or the Commission grants a variance to those standards that make the lot nonconforming.
a. If a lot is at least 20,000 square feet in size, has at least 100 feet of shore frontage, and is not a contiguous lot as described in Section 10.11,E,5 below, the Commission may allow for development provided the development would meet the shoreline setback requirements in Section 10.26,D and would meet the other dimensional requirements to the maximum extent possible.

b. If a lot is at least 15,000 square feet in size, has at least 100 feet of shore frontage and 75 feet of road frontage, and is not a contiguous lot as described in Section 10.11,E,5 below, the Commission may allow for one storage structure having a height of no more than 16 feet, and a floor area of not more than 160 square feet provided that the lot is located in a subdistrict that allows residential accessory structures, except for the P-AL or P-GP2 subdistricts, and the proposed development would meet the residential shoreline setback requirements in Section 10.26,D and would meet the other dimensional requirements to the maximum extent possible. This provision may not be used to place such a storage structure on the same lot as a campsite as defined in 12 M.R.S. §682(15). The structure may not be used for human habitation, may not have internal plumbing or a permanent foundation, and may not be used for a home occupation or for commercial use, but may only be used for non-commercial storage purposes.

4. Development of Other Nonconforming Lots. When a lot was lawfully created after September 23, 1971, in conformity with Commission dimensional requirements applicable at the time, the Commission may allow for development provided the development would meet all dimensional requirements to the maximum extent possible except that in no case shall a setback be reduced below that in effect at the time of the creation of the lot.

5. Contiguous Lots. Two or more contiguous lots in the same ownership that individually do not meet dimensional requirements shall be combined to the extent necessary to meet the dimensional requirements, except where:
a. Such lots are part of a subdivision approved by the Commission, or

b. Each lot has a legally existing dwelling unit that conformed to the Commission's rules at the time each lot was developed.

Under these two circumstances the lots may be conveyed separately or together.

6. Expansion of Septic Systems. The conversion from primitive to combined septic systems on legally created and developed lots is allowed without a permit provided authorization is obtained from the local plumbing inspector or from the Maine Department of Health and Human Services, Division of Health Engineering and provided there are no limitations on combined septic systems established by prior permit conditions.

7. Residential Accessory Structures. Notwithstanding the limits on the creation and development of nonconforming lots contained in other provisions of Section 10.11, a residential accessory structure may be built on an existing or newly created nonconforming accessory lot, provided:
a. The accessory structure is accessory to a legally existing residential dwelling;

b. The accessory lot is separated from the residential lot by a roadway. The accessory lot would be contiguous with the residential lot but for the roadway or right-of-way between them;

c. The accessory lot and residential lot are in common ownership or are both leased in common, and the bisecting roadway is in separate ownership or not leased in common with the two lots;

d. The accessory lot is at least 15,000 square feet in size;

e. The accessory lot's road frontage:
(1) Extends along the same segment of road as the residential lot,

(2) Is at least as long as the road frontage of the residential lot, or

(3) Meets the requirements of Section 10.26,C for residential dwellings;

f. The accessory lot and accessory structure satisfy the dimensional requirements for residential uses and dwellings in Section 10.26,B, D, E, and F, as may be affected by Section 10.26,G; and

g. The accessory structure is located in a subdistrict that allows the principal use.

For the purpose of Section 10.11,E,7 the term "residential lot" refers to a lot with a residential dwelling, and the term "accessory lot" refers to a separate nonconforming lot, on which a structure accessory to the residential dwelling is, or is proposed to be, located. Any permit issued by the Commission authorizing construction on an accessory lot must be recorded with the county registry of deeds by the permittee prior to commencing construction. Prior to termination of the common ownership or common lease of the accessory and residential lots, the accessory structure on the accessory lot must be removed. However, if the accessory structure on the accessory lot becomes accessory to a residential dwelling on another residential lot, then the accessory structure may remain, provided that the new residential lot either merges with the accessory lot or conforms with Section 10.11,E,7,b through f. The accessory structure may also be converted into a dwelling if the accessory lot merges with another lot and becomes conforming. In any case, the new owner or lessee of the accessory lot must obtain a change of use permit from the Commission and, if the two lots have not merged, this permit must be recorded with the county registry of deeds.

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