Town of Kittery, ME Maritime and Shoreland-Related Development

Kittery port authority. The Kittery Port Authority's ("Port Authority") jurisdiction extends to applications proposing any development from the navigable tidal waters to the highest annual tide or upland edge of a coastal wetland. The Port Authority, through its established rules and regulations, reviews and approves applications for piers, wharves, landings, floats, bridges, other water-dependent structures or uses.

Planning Board. The Planning Board's jurisdiction for review and approval extends to applications proposing any upland development from the highest annual tide of any water bodies or upland edge of a costal or freshwater wetland or any development located within the Shoreland, Resource Protection, and Commercial Fisheries/Maritime Uses Overlay Zones or all other structures not requiring Port Authority approval, except for applications as provided under § 16.9.1B(1).

General review process and notification.

Process.

Prior to the submission of a shoreland development application with the Port Authority or the Planning Board, a preliminary application meeting between the Town Planner, Code Enforcement Officer, or designee, and the applicant or agent, shall occur to review the proposed project, performance standards and procedural requirements thereof.

If Port Authority or Planning Board review is not required, the Code Enforcement Officer and Town Planner shall review the application for compliance with this title.

If the Planning Board must review and approve a development plan application involving a pier, ramp, flotation system or principal marine structure, prior to the submission of the development plan application requiring Planning Board review, the Port Authority must review and approve any proposed pier, ramp and float system or principal marine structure application.

All required local approvals (excluding Town building permits), federal and state approvals and/or permits shall be received by the Code Enforcement Officer, prior to the issuance of a building permit.

Prior to the commencement of construction on any pier, dock, wharf, marina or any other proposed use that projects into a water body, the owner and/or developer shall apply for, and obtain, a building permit from the Code Enforcement Officer.

Notification.

If Port Authority or Planning Board review is not required, the Code Enforcement Officer shall send a written record of their findings to both the Planning Board and Port Authority.

The Town Planner must transmit copies of Planning Board decisions and the Code Enforcement Officer must transmit copies of Board of Appeals decisions and all documentation constituting the record of the decision for marine-related development to the Port Authority.

The Port Authority shall notify the applicant and the Code Enforcement Officer, in writing, of the granting of, or denial of, the applicant's request.

§ 16.9.2 Port Authority shoreland development review.

Review for completeness. The Code Enforcement Officer and Town Planner shall review Port Authority applications for completeness prior to the Port Authority's Chairperson placing the application on the Port Authority's agenda.

Application process. All Port Authority applications for shoreland development review shall adhere to the listed procedures as enumerated in its rules and regulations.

Submission requirements. Shoreland development plans for marine-related uses requiring Port Authority approval shall include the following elements:

Aerial photographs (images available in the public domain) and vicinity maps and plans showing the property in relation to surrounding properties, and the location of the lots that would have use of the pier, ramp and float system. Maps and plans are to include:

Construction plans for piers, ramps and floats;

Areas of vegetation clearing;

Location of required parking space(s); and

Location of boat and/or float storage.

Rights granted for access to the pier, ramp and float system or to any water-dependent structure; public and private access paths.

Documentation addressing visual impact and controls to assure continuing conformance to the shorefront development plan and this title.

All necessary applications for permits, leases, approvals, and any supporting documentation as may be required have been filed, including the following:

Department of Environmental Protection permit application pursuant to the Natural Resources Protection Act, 38 M.R.S.A. § 480C;

Army Corps of Engineers permit application;

Maine State Department of Conservation, Bureau of Parks and Lands, Submerged Land Coordinator application; and

Building permit application.

Any other details requested by the Port Authority, including, but not limited to, information as enumerated in the Port Authority's rules and regulations.

Performance standards. Development involving piers, wharves, marinas and other uses projecting into water bodies must conform to the following standards:

In accordance with 38 M.R.S.A. § 435 et seq., mandatory shoreland zoning, all dimensional and other standards (excluding setbacks from water bodies) of this title apply to structures and uses projecting into a water body beyond the highest annual tide.

Boathouses, while convenient to locate near the water, are not considered functionally water-dependent uses and must meet the same setback requirement as principal structures. The State of Maine no longer issues permits for construction of boathouses below the highest annual tide due to the adverse environmental impact; therefore, new boathouses must be located on uplands.

Only functionally water-dependent uses are allowed on, over or abutting a pier, wharf or other structure beyond the highest annual tide.

Access from shore must be developed on soils appropriate for such use and constructed so as to control erosion.

The location must not interfere with existing developed recreational and maritime commerce or natural beach areas.

(6)

The facility must be located so as to minimize adverse effects on fisheries.

(7)

The facility must be a water-dependent use and no larger in dimension than necessary to carry on the activity and must be consistent with existing conditions, use and character of the area.

(8)

No new structure may be built on, over or abutting a pier, wharf, dock or other structure extending beyond the highest annual tide of a water body or within a wetland unless the structure requires direct access to the water as an operational necessity.

(9)

No existing structures built on, over or abutting a pier, dock, wharf or other structure extending beyond the highest annual tide of a water body or within a wetland may be converted to residential dwelling units in any district.

(10)

Except in the Commercial Fisheries/Maritime Uses Overlay Zone, structures built on, over or abutting a pier, wharf, dock or other structure extending beyond the highest annual tide of a water body or within a wetland must not exceed 20 feet in height above the pier, wharf, dock or other structure.

(11)

Applicants proposing any construction or fill activities in a waterway or wetland requiring approval by the U.S. Army Corps of Engineers pursuant to Section 404 of the Clean Water Act,[1] Section 9 or 10 of the Rivers and Harbors Act, or Section 103 of the Marine Protection, Research and Sanctuaries Act,[2] must submit proof of a valid permit issued.

Editor's Note: See 33 U.S.C. § 1344.

Editor's Note: See 33 U.S.C. § 1413.

(12)

Proposals for any principal marine structure use, any residential joint- and/or shared-use pier, or any residential-development-use pier require Planning Board approval.

(13)

A residential development containing five or more lots in a zone permitting a residential-development-use pier may construct only one residential-development-use pier.

(14)

Commercial development of the shorefront must provide for access by the general public as part of a shorefront development plan.

(15)

Only one pier, ramp and float structure is permitted on any noncommercial or nonindustrial lot.

(16)

Marine-related permanent structures located below the mean low-water line require the following permits, leases and approvals:

Port Authority approval;

Department of Environmental Protection permit pursuant to the Natural Resources Protection Act, 38 M.R.S.A. § 480-C;

Army Corps of Engineers permit;

Maine State Department of Conservation, Bureau of Parks and Lands, Submerged Land Coordinator approval; and

Building permit.

(17)

Any other performance standards as enumerated in the Port Authority's rules and regulations.

Findings of fact. An application shall be approved or approved with conditions if the Port Authority makes a positive finding based on the information presented. The application must be demonstrated that the proposed use will shall:

Maintain safe and healthful conditions;

Not result in water pollution, erosion or sedimentation to surface waters;

Adequately provide for the disposal of all wastewater;

Not have an adverse impact on spawning grounds, fish, aquatic life, bird or other wildlife habitat;

Conserve shore cover and visual, as well as actual, points of access to inland and coastal waters;

(6)

Protect archaeological and historic resources;

(7)

Not adversely affect existing commercial fishing or maritime activities in a commercial fisheries/maritime activities district;

(8)

Avoid problems associated with floodplain development and use; and

(9)

Is in conformance with the provisions of this title.

The approved plan must be recorded with the York County Registry of Deeds.

Appeal of Port Authority decision. Appeal of a Port Authority shoreland development plan decision by the Planning Board may be made per § 16.2.12B.

§ 16.9.3 Planning Board shoreland development review.

Review process.

Following a preapplication meeting with the Town Planner or Code Enforcement Officer, the applicant filing a shoreland development review permit shall submit to the Code Enforcement Officer or Town Planner a complete application and site plan, drawn to scale as indicated in accordance with § 16.7.10C(4).

Within 35 days of the receipt of a written application, the Town Planner must notify the applicant, in writing, that the application is or is not complete. If the application is incomplete, the written notification must specify the additional material required to complete the application.

A decision on the application will 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 one is held.

Waivers.

Over the course of the application's review, with consideration of the development's overall limited scale and impact to the site, the Planning Board may waive or modify application submittals required in § 16.9.3C.

Submission requirements.

All applications shall be signed by the owner, or an agent with written authorization from the owner to apply for a shoreland development review permit, certifying that the information in the application is complete and correct.

All applications shall be dated, and the Town Planner or designee shall note upon each application the date and time of its receipt.

Whenever the nature of the proposed structure requires the installation of a subsurface sewage disposal system, a complete application for a subsurface wastewater disposal permit shall be submitted. The application shall include a site evaluation approved by the Plumbing Inspector.

Exempt uses and development not requiring shoreland development review by the Planning Board.

Proposed development of principal and accessory structures in compliance with § 16.4.28D, when not subject to Planning Board review as explicitly required elsewhere in this title, shall be reviewed and approved by the Code Enforcement Officer (CEO) prior to issuing a building permit, subject to but not limited to the following requirement:

The total devegetated area of the lot (that portion within the Shoreland Overlay Zone) shall be calculated by the applicant and verified by the CEO and recorded in the Town's property records.

Clearing of vegetation for activities other than timber harvesting. These are subject to review and approval by the Shoreland Resource Officer or Code Enforcement Officer.

Division of a conforming parcel that is not subject to subdivision as defined in Chapter 16.3.

A permit is not required for the replacement of an existing road culvert, provided the replacement culvert is not:

More than one standard culvert size larger in diameter than the culvert being replaced;

More than 25% longer than the culvert being replaced; and

Longer than 75 feet.

When replacing an existing culvert, the watercourse must be protected so that the crossing does not block fish passage, and adequate erosion control measures must be taken to prevent sedimentation of the water in the watercourse.

A permit is not required for an archaeological excavation, provided 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 measure.

Nonexempt uses requiring shoreland development review.

After the effective date of this title, no person may, without first obtaining a permit, engage in any activity or use of land or structure requiring a permit in the Shoreland or Resource Protection Overlay Zones in which such activity or use would occur, or expand, change or replace an existing use or structure, or renew a discontinued nonconforming use.

Any development proposed in the Resource Protection (OZ-RP) and Shoreland-Stream Protection Area (OZ-SL-75) Overlay Zones must be approved by the Planning Board.

Any permit required by this section is in addition to any other permit required by other law or ordinance.

Findings of fact.

Permits shall be approved, or approved with conditions, if the proposed use or structure is found to be in conformance with the purposes and provisions of this section and all other applicable provisions found in this title, except where expressed relief has been lawfully granted.

An application shall be approved or approved with conditions if the Planning Board makes a positive finding based on the information presented. The application must demonstrate that the proposed use shall:

Maintain safe and healthful conditions;

Not result in water pollution, erosion or sedimentation to surface waters;

Adequately provide for the disposal of all wastewater;

Not have an adverse impact on spawning grounds, fish, aquatic life, bird or other wildlife habitat;

Conserve shore cover and visual, as well as actual, points of access to inland and coastal waters;

(f)

Protect archaeological and historic resources;

(g)

Not adversely affect existing commercial fishing or maritime activities in a commercial fisheries/maritime activities district;

(h)

Avoid problems associated with floodplain development and use;

(i)

Is in conformance with the provisions of this title; and

(j)

Be recorded with the York County Registry of Deeds.

Final plan approval and recording.

An approval by the Planning Board must take the form of an agreement between the Town and the applicant, incorporating as elements the application, the Planning Board's findings of fact, and such conditions as the Planning Board may impose upon approval.

The Planning Board must send copies of the agreement to Code Enforcement Officer.

A plan has final approval only when the Planning Board has indicated approval by formal action and the plan has been properly signed by a majority of the Planning Board members or by the Chair only, if so voted by the Planning Board.

Approved final plan recording. An approved plan involving the division of land, easements, or property boundary modification must be recorded by the York County Registry of Deeds. A paper copy and an electronic version of the recorded plan must be returned to the Town Planner.

Modification to an approved plan. Any modification to an approved shoreland development may be considered for approval under § 16.7.12C or § 16.8.11H.

Plan revisions after approval. No changes, erasures, modifications or revisions may be made to any Planning Board approved shoreland development plan, unless in accordance with the Planner's and CEO's powers and duties as found in Chapter 16.4 and elsewhere found in Title 16, or unless the plan has been resubmitted and the Planning Board specifically approves such modifications. In the event a final plan is recorded without complying with this requirement, the same is null and void, and the Planning Board must institute proceedings to have the plan stricken from Town records and the York County Registry of Deeds.

Appeal of shoreland development plan decision. Appeal of a Planning Board shoreland development plan decision may be made pursuant to § 16.2.12B.

Other references to shoreland development review within Title 16.

Below are other pertinent sections within Title 16 referencing shoreland development provisions:

Section 16.4.28: Shoreland Overlay Zone OZ-SL development and performance standards.

Section 16.4.30: Commercial Fisheries/Maritime Activities Overlay Zones OZ-CFMU.

Section 16.4.29: Resource Protection Overlay Zone OP-RP.

Section 16.2.13D(2): Notice of violation within the shoreland or resource protection overlay zones.

Section 16.5.23K: Signs in Shoreland Overlay and Resource Protection Overlay Zone.

(f)

Section 16.5.24: Dwellings in Resource Protection and Shoreland Overlay Zones.

(g)

Section 16.5.27N: Road and driveway standards in Shoreland and Resource Protection Overlay Zones.

(h)

Section 16.5.29A(1): Timber harvesting in the Shoreland Overlay Zone.

(i)

Section 16.7.3A: Shoreland development review during site plan review.

(j)

Section 16.8.4A: Shoreland development review during subdivision review.

(k)

Section 16.8.9C(3)(a)[2]: Scheduling public hearings for shoreland development applications.

§ 16.9.4 Right-of-way plan review.

General. Right-of-way plans are intended to demonstrate to the Planning Board that a lot will have a sufficient ROW to provide both the required frontage to that lot and to allow safe vehicular access. Such a lot may exist as a "landlocked" lot which requires a right-of-way plan approval because necessary access doesn't meet driveway standards or the lot may be a proposed division from an existing lot which wouldn't have required frontage without a new ROW. When a lot is proposed for division, such division must not create a nonconforming lot or structure. Right-of-way plans do not apply to any lot that requires subdivision approval.

Applicability.

A person who has right, title, or interest in a parcel of land must obtain right-of-way plan approval for a site when:

A lot requires a new ROW to meet street frontage requirements.

A lot is proposed for division and requires ROW access and street frontage for the proposed new lot.

A ROW proposed under this section must be and will remain a private road unless the applicant pursues street acceptance and is granted that acceptance by the Town per § 16.8.11L of this title.

Review process and submission requirements.

Preapplication and conference.

Process. Before submitting a proposed right-of-way plan to the Board, the owner and/or applicant must meet with the Town Planner to discuss the conceptual design regarding road design, stormwater management, dimensional requirements, and any potential impacts to existing or proposed development and the environment.

Sketch plan.

Process. The applicant must submit a right-of-way application and sketch plan for review and consideration by the Planning Board.

Plan requirements.

The sketch plan must show the proposed road and lot division (if applicable), including structures, site improvements and landscape features, in relation to existing conditions and municipal land use regulations. Any proposed buildings must also be shown.

If the proposed ROW could or will provide frontage to lots other than the lot under consideration, those abutting lots and their structures, if any, must also be shown on the sketch plan.

While not required, a plan prepared by a surveyor is recommended.

Planning Board review and decisions, including site walk.

The Planning Board must determine whether the right-of-way sketch plan proposal complies with municipal land use regulations regarding both submission content and design and must, when necessary, make specific suggestions to be incorporated by the applicant in subsequent submissions.

If the sketch plan is accepted and approved, with or without conditions, the next application step will be a final plan.

A site walk may be scheduled at the Planning Board's discretion.

Final plan.

Failure to submit final plan application. If a right-of-way final plan is not submitted to the Planning Board within six months after the approval of the sketch plan, the Planning Board may, at its discretion, refuse to act on the final plan and require resubmission of the sketch plan. Any plan resubmitted must comply with all application requirements, including payment of application fees.

Process, including optional public hearing.

The applicant must submit a final right-of-way plan for review and consideration by the Planning Board. Any conditions imposed by sketch plan approval must be addressed in the submission.

The Planning Board may, at its discretion, choose to hold a public hearing. If a public hearing will be held, the proceedings must conform to public hearings as described by 16.8.9C(3).

The Planning Board may, at its discretion, request a review of the plans by the Town's peer review engineer. The cost of this peer review will be borne by the applicant.

[4]

The Technical Review Committee (TRC) must review the final plan and submit comments prior to final plan approval.

[5]

The Board must accept the application as complete and after consideration and review, which may span more than one regularly scheduled meeting, vote to approve with or without conditions or deny the plan.

Plan requirements.

A complete final plan application must fulfill all the requirements as indicated on the application checklist and described by § 16.8.9D(10) unless the Planning Board, by formal action, upon the applicant's written request, waives or defers any requirement(s) for submission. The Board may request any additional information pertinent to complete understanding of the application.

Findings of fact.

Action by the Planning Board must be based upon findings of fact which certify or waive compliance with all the required standards of this section, and which certify the right-of-way plan meets the requirements as listed in § 16.8.9D(4)(b).

In addition, the Board must find that the proposed ROW:

[a]

Does not create any nonconforming lots or buildings; and

[b]

Can reasonably permit vehicular passage.

Street naming.

Prior to submission of the final plan for Planning Board signatures {see § 16.9.4C(3)(f)[1] below}, the applicant must apply for and be approved for, a street name which complies with Chapter 8.5 of this Code.

Once approved, the street name must be placed on the final plan prior to submission for Planning Board signature.

Street signage is required per Chapter 8.5-5.

(f)

Final plan approval and recording.

An approved right-of-way plan involving the division of land, easements, or property boundary modification must be recorded by the York County Registry of Deeds. A paper copy and electronic copy of the recorded plan must be returned to the Town Planner. An as-built plan and electronic files may also be required at the discretion of the Town Planner or Director of Planning.

(g)

Performance guaranty.

Prior to the issue of a building permit, the applicant must, in an amount and form acceptable to the Town Manager, file with the Municipal Treasurer an instrument to cover the full cost of the required improvements. A period of one year (or such other period as the Planning Board may determine appropriate, not to exceed three years) is the guaranty time within which required improvements must be completed.

In cases where the right-of-way plan consists of an extension of an existing road and as approved, will remain unpaved with minimal site improvements required, the Director of Planning may waive the performance guaranty.

Where applicable, a maintenance agreement must be included in the document of covenants, homeowners' documents and/or as riders to the individual deed.

(h)

Modifications to approved plans. No modifications to an approved right-of-way final plan may be made unless such modifications comply with § 16.9.4.

(i)

Appeal of Planning Board decision. Appeal of a right-of-way plan decision by the Planning Board may be made per § 16.2.12B.[1]