Code of Maine Rules
10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES
144 - DEPARTMENT OF HEALTH AND HUMAN SERVICES - GENERAL
Chapter 243 - MINIMUM LOT SIZE RULES
Section 144-243-1004.0 - MEANS OF APPEAL

Universal Citation: 10 ME Code Rules ยง 144-243-1004.0

Current through 2024-38, September 18, 2024

1004.1 Scope: This Section governs the means of appealing either a municipal or Departmental decision made by the Department pertaining to a minimum lot size reduction request or a Code interpretation. The means of appealing a decision made by the local plumbing inspector acting on behalf of the Municipality will be initially in accordance with the land use procedures of the municipality, with judicial review of municipal decisions through rule 80B of the Maine rules of Civil Procedure.

1004.1.1 Appellant: For the purpose of this Chapter, the "appellant" is any affected party wishing to contest a decision by the Department on a Minimum Lot Size Law waiver request or code interpretation, or a person lawfully acting on the behalf of an appellant.

1004.1.2 Grounds for appeal: For the purpose of this Chapter, the grounds for appeal are limited to:
(1) violation of the law or rules;

(2) misapplication of the law or rules; or

(3) a factual mistake that is likely to affect the decision, including a statement specifying what the violation, misapplication and/or factual mistake is.

1004.1.3 Settlement: Parties to a Formal Conference or a Formal Administrative Hearing may negotiate a mutually acceptable settlement at any point during the proceedings.

1004.1.4 Stopping Work: A formal, written request for a Formal Conference or Formal Administrative Hearing shall be cause for the Local Plumbing Inspector (LPI) to be notified by the Department to issue a Stop Work Order pending completion of the review process.

1004.2 Notice Procedure: The Department shall inform the appellant and any entitled abutters, in writing, of its intention to grant, deny, terminate, or suspend a variance or waiver issued pursuant to this code or code interpretation.

1004.2.1 Written Decision: Granting or denial of a variance, waiver or the issuance of a code interpretation shall be provided in writing.

1004.3 Appeal Procedure: The appeal procedure shall consist of three (3) levels of appeals. It shall proceed in the following sequence:

1004.3.1 Step 1: A formal conference;

1004.3.2 Step 2: A formal administrative hearing; and

1004.3.3 Step 3: A judicial review.

1004.4. Appeal Fee: An administrative appeal fee for a formal conference or a formal administrative hearing shall be levied as follows:

1004.4.1 Formal conference fee: An administrative appeal fee of $50.00.

1004.4.2 Formal administrative hearing fee: An administrative appeal fee of $75.00; and

1004.4.3 Judicial review fee: Subject to judicial procedures.

1004.4.4 Exemption: Individuals who can prove they are qualified to receive public benefits, such as Medicaid or AFDC are exempt from the administrative fees listed in 1004.4.1, "Formal conference fee", and 1004.4.2, "Formal administrative hearing fee". Procedures for demonstrating eligibility shall be consistent with those utilized in the benefit programs. The Commissioner of the Department of Health and Human Services may grant a fee exemption when it is determined to be appropriate.

1004.4.5 Administrative Fee Payment: A check for the appropriate amount shall be made out for the "Treasurer of State". The check shall be sent to: Department of Health and Human Services, Division of Environmental Health, Subsurface Wastewater Program. Payment shall be made prior to scheduling any Formal Conference or Administrative Hearing.

1004.5 Request for Formal Conference: To appeal a decision of the Department, the appellant shall submit a written request for a formal conference. The appellant shall submit the request to the Department within thirty (30) days of the date of the Department's written decision. The request shall include the following:

1004.5.1 Intention: The intended/requested appeal action;

1004.5.2 Reason(s): The reasons that support the intended action, including:
(1) violation of the law or rules;

(2) misapplication of the law or rules; and/or

(3) factual mistake that is likely to affect the decision;

1004.5.3 Affected Party: A description of the manner in which the appellant is harmed or otherwise affected by the decision; and

1004.5.4 Limiting the issues: Before the formal conference, the appellant shall raise all issues upon which he or she appeals the decision.

1004.6 Formal Conference: This section sets forth the procedures to be used for formal conferences.

1004.6.1 Written request: The written request must be mailed to:

Director, Division of Environmental Health

11 State House Station

Augusta, Maine 04333-0011

1004.6.2 Scheduling the conference: As soon as practicable, the Department shall notify the appellant of the date, time, and place of the formal conference.

1004.6.3 Conference officer: The formal conference will be conducted by the Director of the Division of Environmental Health, or his or her designee.

1004.6.4 Conference Location: The Conference Officer shall schedule a conference in Augusta, Maine.

1004.6.5 Representation: At the formal conference, the appellant may be represented by legal counsel or any other representative on his or her behalf.

1004.6.6 Disputed issues: The appellant or representative shall raise all issues about which he or she disagrees with the Department's decision. he or she may present new evidence or information or otherwise present arguments in response to the Department's intended action. Failure to raise any issues at the formal conference shall be deemed a waiver of any appeal rights on those issues.

1004.6.7 Written decision: Following the formal conference, the Director shall issue a written decision to the appellant which shall affirm, modify, or revoke the initial and intended decision of the Department.

1004.7 Formal Administrative Hearing: This section sets forth the procedures to be used for formal administrative hearings.

1004.7.1 Hearing request: If the appellant is dissatisfied with the written decision of the formal conference, he or she may appeal that decision by submitting a written "Request for Administrative Hearing" within thirty (30) days of the date of the written formal conference decision to:

Chief Hearings Officer

Office of Administrative Hearing

11 State House Station

Augusta, Maine 04333-0011

1004.7.2 Request: The request to the office of Administrative Hearings shall be accompanied by a copy of the fair hearing report.

1004.7.3 No Request: If the appellant does not request the hearing within the thirty (30) day time period absent good cause, the hearing may be denied by the Office of Administrative Hearings.

1004.7.4 Issues on appeal: The request shall state the specific issues being appealed. If the appellant does not set forth the issues, the request for hearing may be denied by the Office of Administrative Hearings.

1004.7.5 Hearing officer: An impartial hearing officer shall conduct the administrative hearing.

1004.7.6 Representation: At the hearing, the appellant may be represented by legal counsel or any other representative on his or her behalf.

1004.7.7 Hearing conduct: The hearing will be conducted pursuant to the rules of the Office of Administrative Hearings, as set forth in the Administrative Hearing Manual, and in conformity with the administrative procedure action 5 MRSA §8001, et seq.

1004.7.8 Hearing location and date: A notice will inform the appellant of the time, date, and place of the hearing. The hearing will be held in Augusta, Maine unless otherwise noted. The hearing date will be at least twenty (20) days following the date of the notice of the administrative hearing.

1004.7.9 Decision: The Commissioner may reserve jurisdiction to issue the final decision. The Hearing Officer shall submit recommended findings of facts and a recommended decision to the Commissioner. Parties have twenty (20) days to file written exceptions and responses with the Office of the Commissioner.

1004.8 Judicial review: Any person or party dissatisfied with the hearing officer's decision has the right of judicial review under the Maine Rules of Civil Procedure, Rule 80C.

1005.0 VIOLATIONS

1005.1 Violations: Each day of violation of any provision of this chapter or the rules enacted under this chapter is considered a separate offense. Alternatively, and in addition to being an offense, any use of land in violation of this chapter is considered to be a nuisance and the Department may seek an injunction to prevent or abate a violation of this chapter or rules adopted under this chapter.

Department of Health and Human Services $50.00 REVIEW FEE

Division of Environmental Health Make check payable to:

#11 State House Station "Treasurer of State"

Augusta ME 04333 Appropriation #

Tel: (207)287-5689 014-10A-2426-01-2615

Fax: (207) 287-3165

APPLICATION FOR VARIANCE TO THE MINIMUM LOT SIZE LAW REQUIREMENTS ( 12 MRSA §4807-B, 4807-C )

PLEASE TYPE OR PRINT:

Name of Applicant: ____________________

Address:______________________

Telephone Number:______________________

Local Agent (Name, Address and Tel. #)___________________

___________________________________________

____________________________________________

LOT LOCATION

Name of Project:_______________________

Street or Route Number:_______________________

Municipality or Township:______________________

County:_______________________

By signing this application, the applicant certifies that he/she has (1) sent a copy of the notice form to the owners of property abutting the land upon which the project is located; (2) sent a copy of the public notice form to the chief municipal officer, chairperson of the municipal planning board and the Local Plumbing Inspector, and (3) filed a duplicate of this application in the municipal office.

DATE:___________________

__________________________________

Signature of Applicant

____________________ _________________________

(If signature is other than the applicant attach letter of agent authorization.), Print name and title

PROJECT SUMMARY - MINIMUM LOT SIZE

1. Size of lot: __________________ square feet or acres.

2. Dimensions of lot: _____________' X ___________' X _____________' X ________________'

3. Is the lot owner the owner of adjacent property" (check one) [ ] YES [ ] NO

4. If the answer to question No. 3 is "YES":

(a) Give dimensions of total parcel owned, which includes the lot being applied for:

X ________________ X _____________ X _________________

(b) Give description of present use of adjacent property:

___________________________________________

___________________________________________

(c) Attach a plan showing ENTIRE parcel owned, including lot described in 1 & 2 above, if the entire parcel is not described on the licensed site evaluator's report (HHE-200 form).

(d) Give plans for future use, of any adjacent land owned:

_____________________________________________

_____________________________________________

5. Attach a copy of deed, lease, option or other legal document establishing applicant's title, right or interest in the land described in 1, 2 and 4 above.

6. Is this lot a part of a subdivision" (check one) [ ] YES [ ] NO

7. If the answer to Question No. 6 is "YES" give name of subdivision, date plan filed, and registry location:

___________________________________________

___________________________________________

8. If lot is located within 1/2 mile of any lake, pond, stream, river, tidal area, swamp or marsh:

(a) Give approximate distance: _________________ feet to water.

(b) Give name of water body:___________________

(c) If abutting, give length of shoreline covered by lot:_______________ feet.

MINIMUM LOT SIZE RULES

9. Drinking water supply on lot (existing or proposed):

[ ] Public Water Supply

[ ] Private Community Water Supply

[ ] Private On-Site Water Supply (well, etc.)

[ ] Other, describe

10. Briefly describe the existing land use surrounding the proposed minimum lot.

_______________________________________

_______________________________________

11. Nature of proposed use of lot: (check one)

[ ] Single Family Residential

[ ] Multiple Unit Housing No. of Units__________________

No. of Bedrooms Per Unit_____________________

[ ] Other than Residential

(Please Specify)___________________

12. Nature of Waste:

[ ] Domestic Waste, Including Sanitary Waste

[ ] Other: (Please Specify)______________________

13. Amount of Wastewater (in Gallons Per Day):__________ Gal/Day

NOTE: (1) IF SINGLE FAMILY RESIDENTIAL USE 300 GAL/DAY; (2) IF MULTIPLE UNIT HOUSING MULTIPLY NUMBER OF BEDROOMS TIMES 120 GAL/DAY; (3) IF "OTHER LAND USE ACTIVITY" SET FORTH ACTUAL MEASUREMENT OR COMPUTATION ON A SEPARATE SHEET.

14. Soils examination and type of disposal system:

Attach the HHE-200 Form completed by a licensed site evaluator.

15. The applicant shall set forth below the names and addresses of the owners of property abutting the lot which is the subject of the application. By signing this application the applicant certified that he has provided each with a copy of the notice similar in form to that which is attached to this application.

NAME ADDRESS

___________________ __________________

___________________ __________________

___________________ __________________

___________________ __________________

16. The applicant shall submit copies of any reports or studies pertaining to the lot or the project prepared by any engineer, soil scientist, geologist, licensed site evaluator, or other person for the applicant or owner, referring to possible subsurface wastewater disposal or its impact on the environment.

NOTE: Use this form or one containing identical information:

NOTICE

(to owners of abutting property, municipal officials, and local plumbing inspector)

Please take notice that _____________________

(Name of Applicant)

_________________________________

(Address of Applicant)

is filing an application for a Waiver of Minimum Lot Size Law Requirements with the Department of Health & Human Services, Division of Environmental Health pursuant to the provisions of 12 MRSA Sections4807-B and 4807-C for permission to

_______________________________________

_______________________________________

(State specifically what is to be done)

_______________________________________

_______________________________________

_______________________________________

_______________________________________

_______________________________________

_______________________________________

_______________________________________

_______________________________________

will be filed for public inspection at the Department's office in Augusta and at the municipal offices of

__________________ on _________________.

(Name of Municipality) (Date of Filing)

Written comments from any interested persons must be sent to the Division of Environmental Health #11 State House Station, Augusta, Maine 04333 within 14 days of filing of the application to receive consideration.

Disclaimer: These regulations may not be the most recent version. Maine may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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