Current through 2024-38, September 18, 2024
A.
Administering Bodies and
Agents
(1)
Code Enforcement
Officer.A Code Enforcement Officer shall be appointed or reappointed
annually by July 1st.
(2)
Board of Appeals.A Board of Appeals shall be created in accordance
with the provisions of 30-A M.R.S.A. section 2691.
(3)
Planning Board.A Planning
Board shall be created in accordance with the provisions of State
law.
B.
Permits
Required. After the effective date of this Ordinance no person shall,
without first obtaining a permit, engage in any activity or use of land or
structure requiring a permit in the district in which such activity or use
would occur; or expand, change, or replace an existing use or structure; or
renew a discontinued nonconforming use. A person who is issued a permit
pursuant to this Ordinance shall have a copy of the permit on site while the
work authorized by the permit is performed.
(1) A permit is not required for the
replacement of an existing road culvert as long as:
(a) The replacement culvert is not more than
25% longer than the culvert being replaced;
(b) The replacement culvert is not longer
than 75 feet; and
(c) Adequate
erosion control measures are taken to prevent sedimentation of the water, and
the crossing does not block fish passage in the watercourse.
(2) A permit is not required for
an archaeological excavation as long as the excavation is conducted by an
archaeologist listed on the State Historic Preservation Officer's level 1 or
level 2 approved list, and unreasonable erosion and sedimentation is prevented
by means of adequate and timely temporary and permanent stabilization
measures.
(3) Any permit required
by this Ordinance shall be in addition to any other permit required by other
law or ordinance.
C.
Permit Application
(1) Every
applicant for a permit shall submit a written application, including a scaled
site plan, on a form provided by the municipality, to the appropriate official
as indicated in Section 14.
(2) All
applications shall be signed by an owner or individual who can show evidence of
right, title or interest in the property or by an agent, representative,
tenant, or contractor of the owner with authorization from the owner to apply
for a permit hereunder, certifying that the information in the application is
complete and correct.
(3) All
applications shall be dated, and the Code Enforcement Officer or Planning
Board, as appropriate, shall note upon each application the date and time of
its receipt.
(4) If the property is
not served by a public sewer, a valid plumbing permit or a completed
application for a plumbing permit, including the site evaluation approved by
the Plumbing Inspector, shall be submitted whenever the nature of the proposed
structure or use would require the installation of a subsurface sewage disposal
system.
NOTE: If a municipality intends to take
independent enforcement actions related to the contractor certification
requirements of 38 M.R.S.A. Section 439-B, they should insert the following
into the application requirements of their ordinance:
(5) When an excavation contractor will
perform an activity that requires or results in more than one (1) cubic yard of
soil disturbance, the person responsible for management of erosion and
sedimentation control practices at the site must be certified in erosion
control practices by the Maine Department of Environmental Protection. This
person must be present at the site each day earth moving activity occurs for a
duration that is sufficient to ensure that proper erosion and sedimentation
control practices are followed. This is required until erosion and
sedimentation control measures have been installed, which will either stay in
place permanently or stay in place until the area is sufficiently covered with
vegetation necessary to prevent soil erosion. The name and certification number
of the person who will oversee the activity causing or resulting in soil
disturbance shall be included on the permit application. This requirement does
not apply to a person or firm engaged in agriculture or timber harvesting if
best management practices for erosion and sedimentation control are used; and
municipal, state and federal employees engaged in projects associated with that
employment.
D.
Procedure for Administering Permits.Within 35 days of the date of
receiving a written application, the Planning Board or Code Enforcement
Officer, as indicated in Section 14, shall notify the applicant in writing
either that the application is a complete application, or, if the application
is incomplete, that specified additional material is needed to make the
application complete. The Planning Board or the Code Enforcement Officer, as
appropriate, shall approve, approve with conditions, or deny all permit
applications in writing within 35 days of receiving a completed application.
However, if the Planning Board has a waiting list of applications, a decision
on the application shall occur within 35 days after the first available date on
the Planning Board's agenda following receipt of the completed application, or
within 35 days of the public hearing, if the proposed use or structure is found
to be in conformance with the purposes and provisions of this Ordinance.
The applicant shall have the burden of proving that the
proposed land use activity is in conformity with the purposes and provisions of
this Ordinance.
After the submission of a complete application to the
Planning Board, the Board shall approve an application or approve it with
conditions if it makes a positive finding based on the information presented
that the proposed use:
(1) Will
maintain safe and healthful conditions;
(2) Will not result in water pollution,
erosion, or sedimentation to surface waters;
(3) Will adequately provide for the disposal
of all wastewater;
(4) Will not
have an adverse impact on spawning grounds, fish, aquatic life, bird or other
wildlife habitat;
(5) Will conserve
shore cover and visual, as well as actual, points of access to inland and
coastal waters;
(6) Will protect
archaeological and historic resources as designated in the comprehensive
plan;
(7) Will not adversely affect
existing commercial fishing or maritime activities in a Commercial
Fisheries/Maritime Activities district;
(8) Will avoid problems associated with
floodplain development and use; and
(9) Is in conformance with the provisions of
Section 15, Land Use Standards.
If a permit is either denied or approved with conditions,
the reasons as well as conditions shall be stated in writing. No approval shall
be granted for an application involving a structure if the structure would be
located in an unapproved subdivision or would violate any other local
ordinance, or regulation or statute administered by the municipality.
E.
Special
Exceptions. In addition to the criteria specified in Section 16(D)
above, excepting structure setback requirements, the Planning Board may approve
a permit for a single family residential structure in a Resource Protection
District provided that the applicant demonstrates that all of the following
conditions are met:
(1) There is no location
on the property, other than a location within the Resource Protection District,
where the structure can be built.
(2) The lot on which the structure is
proposed is undeveloped and was established and recorded in the registry of
deeds of the county in which the lot is located before the adoption of the
Resource Protection District.
(3)
All proposed buildings, sewage disposal systems and other improvements are:
(a) Located on natural ground slopes of less
than 20%; and
(b) Located outside
the flood way of the 100-year flood-plain along rivers and artificially formed
great ponds along rivers and outside the velocity zone in areas subject to
tides, based on detailed flood insurance studies and as delineated on the
Federal Emergency Management Agency's Flood Boundary and Floodway Maps and
Flood Insurance Rate Maps; all buildings, including basements, are elevated at
least one foot above the 100-year flood-plain elevation; and the development is
otherwise in compliance with any applicable municipal flood-plain ordinance.
If the floodway is not shown on the Federal Emergency
Management Agency Maps, it is deemed to be 1/2 the width of the 100-year
flood-plain.
(4)
The total footprint, including cantilevered or similar overhanging extensions,
of all principal and accessory structures is limited to a maximum of 1,500
square feet. This limitation shall not be altered by variance.
(5) All structures, except functionally
water-dependent structures, are set back from the normal high-water line of a
water body, tributary stream or upland edge of a wetland to the greatest
practical extent, but not less than 75 feet, horizontal distance. In
determining the greatest practical extent, the Planning Board shall consider
the depth of the lot, the slope of the land, the potential for soil erosion,
the type and amount of vegetation to be removed, the proposed building site's
elevation in regard to the flood-plain, and its proximity to moderate-value and
high-value wetlands.
F.
Expiration of Permit. Permits shall expire one year from the date
of issuance if a substantial start is not made in construction or in the use of
the property during that period. If a substantial start is made within one year
of the issuance of the permit, the applicant shall have one additional year to
complete the project, at which time the permit shall expire.
G.
Installation of Public Utility
Service. A public utility, water district, sanitary district or any
utility company of any kind may not install services to any new structure
located in the shoreland zone unless written authorization attesting to the
validity and currency of all local permits required under this or any previous
Ordinance has been issued by the appropriate municipal officials or other
written arrangements have been made between the municipal officials and the
utility.
H.
Appeals
(1) Powers and Duties of the Board of
Appeals. The Board of Appeals shall have the following powers:
(a)
Administrative Appeals:To
hear and decide administrative appeals, on an appellate basis, where it is
alleged by an aggrieved party that there is an error in any order, requirement,
decision, or determination made by, or failure to act by, the Planning Board in
the administration of this Ordinance; and to hear and decide administrative
appeals on a de novo basis where it is alleged by an aggrieved party that there
is an error in any order, requirement, decision or determination made by, or
failure to act by, the Code Enforcement Officer in his or her review of and
action on a permit application under this Ordinance. Any order, requirement,
decision or determination made, or failure to act, in the enforcement of this
or dinance is not appealable to the Board of Appeals.
NOTE: Whether an administrative appeal is
decided on an "appellate" basis or on a "de novo" basis, or whether an
enforcement decision is appealable to the board of appeals, shall be the
decision of the municipality through its specific ordinance language. The
Department is not mandating one alternative over the other. If a municipality
chooses appeals procedures different from those in Section 16(H), it is
recommended that assistance be sought from legal counsel to ensure that the
adopted language is legally sound.
(b)
Variance Appeals:To
authorize variances upon appeal, within the limitations set forth in this
Ordinance.
(2)
Variance Appeals.Variances may be granted only under the following
conditions:
(a) Variances may be granted only
from dimensional requirements including, but not limited to, lot width,
structure height, percent of lot coverage, and setback requirements.
(b) Variances shall not be granted for
establishment of any uses otherwise prohibited by this Ordinance.
(c) The Board shall not grant a variance
unless it finds that:
(i) The proposed
structure or use would meet the provisions of Section 15 except for the
specific provision which has created the non-conformity and from which relief
is sought; and
(ii) The strict
application of the terms of this Ordinance would result in undue hardship. The
term "undue hardship" shall mean:
a. That the
land in question cannot yield a reasonable return unless a variance is
granted;
b. That the need for a
variance is due to the unique circumstances of the property and not to the
general conditions in the neighborhood;
c. That the granting of a variance will not
alter the essential character of the locality; and
d. That the hardship is not the result of
action taken by the applicant or a prior owner.
(d) Notwithstanding Section
16(H)(2)(c)(ii) above, the Board of Appeals, or the codes enforcement officer
if authorized in accordance with 30-A MRSA §4353-A, may grant a variance
to an owner of a residential dwelling for the purpose of making that dwelling
accessible to a person with a disability who resides in or regularly uses the
dwelling. The board shall restrict any variance granted under this subsection
solely to the installation of equipment or the construction of structures
necessary for access to or egress from the dwelling by the person with the
disability. The board may impose conditions on the variance, including limiting
the variance to the duration of the disability or to the time that the person
with the disability lives in the dwelling. The term "structures necessary for
access to or egress from the dwelling" shall include railing, wall or roof
systems necessary for the safety or effectiveness of the structure. Any permit
issued pursuant to this subsection is subject to Sections 16(H)(2)(f) and
16(H)(4)(b)(iv) below.)
(e) The
Board of Appeals shall limit any variances granted as strictly as possible in
order to ensure conformance with the purposes and provisions of this Ordinance
to the greatest extent possible, and in doing so may impose such conditions to
a variance as it deems necessary. The party receiving the variance shall comply
with any conditions imposed.
(f) A
copy of each variance request, including the application and all supporting
information supplied by the applicant, shall be forwarded by the municipal
officials to the Commissioner of the Department of Environmental Protection at
least twenty (20) days prior to action by the Board of Appeals. Any comments
received from the Commissioner prior to the action by the Board of Appeals
shall be made part of the record and shall be taken into consideration by the
Board of Appeals.
(3)
Administrative Appeals
When the Board of Appeals reviews a decision of the Code
Enforcement Officer the Board of Appeals shall hold a "de novo" hearing. At
this time the Board may receive and consider new evidence and testimony, be it
oral or written. When acting in a "de novo" capacity the Board of Appeals shall
hear and decide the matter afresh, undertaking its own independent analysis of
evidence and the law, and reaching its own decision.
When the Board of Appeals hears a decision of the Planning
Board, it shall hold an appellate hearing, and may reverse the decision of the
Planning Board only upon finding that the decision was contrary to specific
provisions of the Ordinance or contrary to the facts presented to the Planning
Board. The Board of Appeals may only review the record of the proceedings
before the Planning Board. The Board Appeals shall not receive or consider any
evidence which was not presented to the Planning Board, but the Board of
Appeals may receive and consider written or oral arguments. If the Board of
Appeals determines that the record of the Planning Board proceedings are
inadequate, the Board of Appeals may remand the matter to the Planning Board
for additional fact finding.
(4)
Appeal Procedure
(a)
Making an Appeal
(i) An administrative or variance appeal may
be taken to the Board of Appeals by an aggrieved party from any decision of the
Code Enforcement Officer or the Planning Board, except for enforcement-related
matters as described in Section 16(H)(1)(a) above. Such an appeal shall be
taken within thirty (30) days of the date of the official, written decision
appealed from, and not otherwise, except that the Board, upon a showing of good
cause, may waive the thirty (30) day requirement.
(ii) Applications for appeals shall be made
by filing with the Board of Appeals a written notice of appeal which includes:
a. A concise written statement indicating
what relief is requested and why the appeal or variance should be
granted.
b. A sketch drawn to scale
showing lot lines, location of existing buildings and structures and other
physical features of the lot pertinent to the relief sought.
(iii) Upon receiving an
application for an administrative appeal or a variance, the Code Enforcement
Officer or Planning Board, as appropriate, shall transmit to the Board of
Appeals all of the papers constituting the record of the decision appealed
from.
(iv) The Board of Appeals
shall hold a public hearing on an administrative appeal or a request for a
variance within thirty-five (35) days of its receipt of a complete written
application, unless this time period is extended by the parties.
(b)
Decision by Board of
Appeals
(i) A majority of the full
voting membership of the Board shall constitute a quorum for the purpose of
deciding an appeal.
(ii) The person
filing the appeal shall have the burden of proof.
(iii) The Board shall decide all
administrative appeals and variance appeals within thirty five (35) days after
the close of the hearing, and shall issue a written decision on all
appeals.
(iv) The Board of Appeals
shall state the reasons and basis for its decision, including a statement of
the facts found and conclusions reached by the Board. The Board shall cause
written notice of its decision to be mailed or hand-delivered to the applicant
and to the Department of Environmental Protection within seven (7) days of the
Board's decision. Copies of written decisions of the Board of Appeals shall be
given to the Planning Board, Code Enforcement Officer, and the municipal
officers.
(5)
Appeal to Superior Court.Except as provided by 30-A M.R.S.A.
section 2691(3)(F), any aggrieved party who participated as a party during the
proceedings before the Board of Appeals may take an appeal to Superior Court in
accordance with State laws within forty-five (45) days from the date of any
decision of the Board of Appeals.
(6)
Reconsideration.In
accordance with 30-A M.R.S.A. section 2691(3)(F), the Board of Appeals may
reconsider any decision within forty-five (45) days of its prior decision. A
request to the Board to reconsider a decision must be filed within ten (10)
days of the decision that is being reconsidered. A vote to reconsider and the
action taken on that reconsideration must occur and be completed within
forty-five (45) days of the date of the vote on the original decision.
Reconsideration of a decision shall require a positive vote of the majority of
the Board members originally voting on the decision, and proper notification to
the landowner, petitioner, planning board, code enforcement officer, and other
parties of interest, including abutters and those who testified at the original
hearing(s). The Board may conduct additional hearings and receive additional
evidence and testimony.
Appeal of a reconsidered decision to Superior Court must be
made within fifteen (15) days after the decision on reconsideration.
I.
Enforcement
(1)
Nuisances.Any violation of this Ordinance shall be deemed to be a
nuisance.
(2)
Code
Enforcement Officer
(a) It shall be
the duty of the Code Enforcement Officer to enforce the provisions of this
Ordinance. If the Code Enforcement Officer shall find that any provision of
this Ordinance is being violated, he or she shall notify in writing the person
responsible for such violation, indicating the nature of the violation and
ordering the action necessary to correct it, including discontinuance of
illegal use of land, buildings or structures, or work being done, removal of
illegal buildings or structures, and abatement of nuisance conditions. A copy
of such notices shall be submitted to the municipal officers and be maintained
as a permanent record.
(b) The Code
Enforcement Officer shall conduct on-site inspections to insure compliance with
all applicable laws and conditions attached to permit approvals. The Code
Enforcement Officer shall also investigate all complaints of alleged violations
of this Ordinance.
(c) The Code
Enforcement Officer shall keep a complete record of all essential transactions
of the office, including applications submitted, permits granted or denied,
variances granted or denied, revocation actions, revocation of permits,
appeals, court actions, violations investigated, violations found, and fees
collected.
(3)
Legal Actions.When the above action does not result in the
correction or abatement of the violation or nuisance condition, the Municipal
Officers, upon notice from the Code Enforcement Officer, are hereby directed to
institute any and all actions and proceedings, either legal or equitable,
including seeking injunctions of violations and the imposition of fines, that
may be appropriate or necessary to enforce the provisions of this Ordinance in
the name of the municipality. The municipal officers, or their authorized
agent, are hereby authorized to enter into administrative consent agreements
for the purpose of eliminating violations of this Ordinance and recovering
fines without Court action. Such agreements shall not allow an illegal
structure or use to continue unless there is clear and convincing evidence that
the illegal structure or use was constructed or conducted as a direct result of
erroneous advice given by an authorized municipal official and there is no
evidence that the owner acted in bad faith, or unless the removal of the
structure or use will result in a threat or hazard to public health and safety
or will result in substantial environmental damage.
(4)
Fines.Any person, including
but not limited to a landowner, a landowner's agent or a contractor, who
violates any provision or requirement of this Ordinance shall be penalized in
accordance with 30-A, M.R.S.A. section 4452.
NOTE: Current penalties include fines of not
less than $100 nor more than $2500 per violation for each day that the
violation continues. However, in a resource protection district the maximum
penalty is increased to $5000 (38 M.R.S.A. section 4452).
