[HISTORY: Adopted by the Town of Kittery 10-24-2022. Amendments noted where applicable.]
[Amended 11-24-2025]
This chapter will allow new concepts and innovative approaches to housing and environmental design so that the Town's natural, scenic, cultural, marine and historic resources may be preserved, thus meeting the relevant objectives of the Comprehensive Plan, while limiting the costs and impacts of development on the community and mitigating the effects of climate change. Because Kittery's identity is expressed diversely through its natural environment comprising fields, forests, rock outcrops, vernal pools, wetlands, wooded wetlands, salt marshes and shoreland interwoven with its built environment, including both compact neighborhoods and large-lot neighborhoods, conservation subdivisions in different zones may necessarily differ in how they achieve this balance between development and preservation. In all instances the objectives include:
A. 
Preservation of open space, including but not limited to farmland, meadows, forests, and wildlife habitat as well as scenic roads and vistas identified in the Comprehensive Plan.
B. 
Preservation of areas with the highest ecological value as well as areas with significant value not otherwise protected by law.
C. 
Location of buildings, streets and structures on those portions of the site most appropriate for development based on environmentally aware site design.
D. 
Connections to open space on adjoining lands wherever possible.
E. 
Reduction of impacts on water resources and water quality by minimizing land disturbance and impervious surfaces while utilizing nature-based strategies such as low-impact development (LID) combined with best management practices (BMP) for optimal stormwater management.
F. 
Expansion of outdoor recreation opportunities wherever possible.
G. 
Preservation of historic, archaeological, and cultural features, such as, but not limited to, historic structures, stone walls, cellar holes, earthworks, middens, graves, or burial grounds.
H. 
Minimization of residential developments' footprint, including streets, utilities, and driveways, to lower the impact on the municipality, neighboring properties and the natural environment.
I. 
Demonstrated awareness of and response to climate change effects such as:
(1) 
Sea level rise considerations where shoreland exists. Properties that include coastal shoreland must show areas affected by 1.6 feet and 3.0 feet of storm surge plus sea level rise utilizing data from Maine Geological Survey or other sources as approved/adopted by the Town, as well as any existing salt marsh and potential salt marsh migration areas on the plans.
(2) 
Utilization of nature-based adaptation strategies, such as low-impact development (LID) for stormwater management and groundwater quality and preservation of woodlands for wildlife, cooling effects and for their role in carbon capture.
(3) 
Meet Maine Standards for energy efficiency and reduced greenhouse gas emissions in both site design and building design.
(4) 
Protection against salt-water intrusion into freshwater and drinking water supplies. Properties that include coastal shoreland or that are affected by tidal waters must demonstrate that proposed drinking water supplies are located beyond the potential reach [see Subsection I(1) above] of salt water intrusion.
J. 
Conservation of the Town's natural resource(s).
A. 
Conservation subdivisions are a residential use permitted in various zones as indicated in Chapter 16.4. Mobile home parks or manufactured homes on individual lots are not eligible for conservation subdivisions. Subdivisions that are not conservation subdivisions, referred to herein as "conventional subdivisions," are a special exception use.
[Amended 11-24-2025]
A. 
The Planning Board, in reviewing and approving proposed residential development under this chapter, may modify the following dimensional standards to permit flexibility in approaches to site design in accordance with the standards of this chapter: lot area, impervious surface, street frontage and front/rear/side setbacks. The Board may allow such dimensional modifications when the Board finds a determination of benefit consistent with this chapter. Such benefits may include mitigation of impacts to natural resources and abutting properties.
B. 
The Board may also modify density standards when certain affordable housing provisions are met. See § 16.10.9 for applicable modifications.
[Amended 11-24-2025]
All development reviewed under this chapter is subject to the application procedures in Chapter 16.8, Subdivision Review, and the following:
A. 
In addition to the requirements of Chapter 16.8, the following items are required with submission of the sketch plan:
(1) 
The location of each of the proposed building envelopes, as well as the proposed placement of sidewalks, roads, service areas and parking areas. Only developments having complete plans with building envelopes shown will be considered.
(2) 
Proposed dimensional measurements and sizes for all lots and the dimensional standards required in the zone in which the development will be located.
(3) 
All land area identified in § 16.5.18, Net residential acreage, noted with total land areas for each applicable category.
(4) 
Net residential density calculations demonstrating how many dwelling units are allowable based on the net residential acreage arrived at above and how many dwelling units are proposed.
(5) 
Open space as described in § 16.10.7 of this chapter, labeled appropriately.
(6) 
Natural features, with areas of ecological value noted, including those identified by the Maine Natural Areas Program and Maine Inland Fisheries and Wildlife, as well as all water bodies, streams, aquifers, wetlands, vernal pools, salt marshes, floodplains, farmland, forested and non-forested areas and scenic vistas.
(7) 
Area of proposed wetland and wetland buffer impacts.
(8) 
Marsh migration potential for 1.6- and 3.0-foot sea level rise per the Maine Natural Areas Program Potential Tidal Marsh Migration Map data set.
(9) 
Written notification by the applicant to the Kittery Conservation Commission, seven days in advance of the sketch plan submission.
(10) 
Historical, archeological or culturally important features and/or structures.
(11) 
Identification and involvement of potential open space holder(s) in the conceptual plan review.
(12) 
A map or plan showing constraints to development, such as, but not limited to, wetlands, wooded wetlands, vernal pools, resource protection zones, stream protection zones, shoreland zones, rare plant and animal habitat, slopes in excess of 20%, easements, proposed or existing rights-of-way, existing roads, driveway entrances and intersections, existing structures, and existing utilities.
(13) 
Septic test pit data for all proposed lots.
(14) 
If the site includes valuable agricultural soils, such as, but not limited to, prime farmland soils or soils of state-wide importance, a soils map illustrating their locations must be included.
(15) 
A written statement describing the site and the ways the proposed development furthers the purpose and objectives of this chapter, including how natural features will be preserved or enhanced. Describe and quantify proposed impacts to wetland and wetland buffers. Propose efforts to compensate for and mitigate impacts to natural features.
(16) 
If the conservation subdivision will rely on groundwater for its drinking water supply, a written statement prepared by a hydrogeologist must attest to the sufficiency and quality of water for the development and that such a private well or wells will not reduce either the quantity or quality of the groundwater supply for surrounding properties.
B. 
For preliminary plan submission, in addition to the requirements of Chapter 16.8, an applicant with a project that includes proposed public open space such as a park or a nature trail must obtain Town Council approval for accepting the public land prior to the Planning Board's preliminary plan approval. Such open space must be offered to the Town in fee or through an easement to be held by the Town. Town Council acceptance of the public open space is contingent upon receipt of final plan approval by the Planning Board.
C. 
An applicant with a project that includes moderate to high value wildlife habitat or otherwise exceptional natural features as identified by the Maine Natural Areas Program or Maine Beginning With Habitat Map is strongly encouraged to seek a conservation easement to be held by a land trust or other such conservation entity. Refer to § 16.10.10C regarding stewardship responsibilities and costs. Such easements will be counted towards the open space requirements for the subdivision as reserved open space and must be approved by the Planning Board.
D. 
The Planning Board may, at the applicant's expense, seek expert and professional opinions concerning any aspect of the proposed development, including, but not limited to, engineering, site evaluation/septic design, landscaping, natural resources, historic resources, traffic, wetlands of all types including wooded wetlands, wetland buffers soil, stormwater and water quality, and mitigation options to offset adverse impacts.
[Amended 11-24-2025]
A. 
The purpose and objectives as stated above in § 16.10.1 must be upheld for all subdivision reviews conducted under this chapter. In all cases, the subdivision must be designed for the open space first, with avoidance and minimization of environmental impacts in mind, with the remaining area designated and designed for development. The Planning Board has final authority over the site design and type of subdivision (conservation or conventional) permitted.
B. 
A conservation subdivision must meet all requirements for a subdivision and all other applicable federal, state and local ordinances, except as modified by Chapter 16.10 and/or action of the Planning Board, where authorized.
C. 
Public or privately shared sewer and water must be provided unless it is demonstrated by studies prepared by qualified professionals to the Planning Board's satisfaction that alternative methods proposed will result in development that is compatible with the purpose and objectives of Chapter 16.10 and meets all other state and municipal requirements. Criteria for the Board to consider include:
(1) 
Adequate groundwater is available at all locations proposed for any individual water systems.
(2) 
The groundwater source(s) proposed for any individual water systems is safe from both on-site and off-site contamination.
(3) 
Any proposed individual septic systems must in no way endanger groundwater supplies which are currently being utilized as a water source for any existing development.
(4) 
Any proposed individual septic systems must in no way endanger groundwater supplies which will be utilized by any proposed common or individual water system in the conservation subdivision development. The Planning Board has the authority to require an independent third-party feasibility study to identify that advanced wastewater treatment systems shall be utilized where necessary to protect groundwater quality.
(5) 
The costs of providing a common water supply and distribution system and/or a central collection and wastewater treatment system are prohibitive due to characteristics unique to the property. This criteria by itself is not sufficient, but may inform the Board when making decisions.
D. 
Open space designated and set aside in a conservation subdivision will be permanently preserved as required by this performance standard. Land that is designated as reserved or common open space as defined by Title 16 must be separate tax parcels and not included as a part of any residential lot. Public open space must be approved and accepted by Town Council per § 16.10.4B. In all cases, the Planning Board must approve the configuration of the open space.
E. 
Unless a public or shared sewer collection and treatment system is provided, no lot may be smaller than 20,000 square feet per single-family residence.
F. 
Individual lot size shall not exceed 60,000 square feet.
G. 
No individual lot or dwelling unit may have direct vehicular access onto a public road existing at the time of development. This requirement may be modified at the Planning Board's discretion in cases where existing structures included in the proposed subdivision have access from a public road, and the overall site design is improved for allowing such access to remain.
H. 
In cases where proposed development includes shoreland, the entire area that falls within the Shoreland Overlay Zone, the Resource Protection Overlay Zone or the Stream Protection Overlay Zone must be protected as open space. All areas designated as floodplain and the 250-foot radius around a state-designated significant vernal pool must similarly be protected as open space. Where an area falls within two or more such zone designations, the zone with the largest total area will apply. Such open space may not be part of any private house lot.
(1) 
The Planning Board has the authority to allow rights-of-way and driveways within an Overlay Zone if the applicant proves to the satisfaction of the Planning Board that no practical alternative for access exists outside of an Overlay.
I. 
Where a conservation subdivision abuts a body of water, stream, or a significant wetland as defined by the State of Maine, a portion of the shoreline, as well as reasonable and appropriate access to such water body, stream or wetland, as determined by the Planning Board, must be a part of the commonly held open space. Shoreland frontage must not be less than 100 feet. Deeded access to the shoreland frontage must be conveyed to each lot owner in the conservation subdivision.
J. 
Wetlands, as defined by federal, state, and/or Town of Kittery regulations or ordinances, must be included in the open space with a designated "no cut, no disturbance" setback per § 16.10.6E. While wetland and wetland buffer alterations are generally discouraged, there may be circumstances under which an alteration could be considered.
(1) 
Wetlands of all types and wetland buffers under consideration for alteration as part of a conservation subdivision are not eligible for a wetland alteration permit unless all requirements for a wetland alteration permit are met as well as the following conditions:
(a) 
The wetland has been assessed/evaluated using techniques such as those used or developed by the New England Biological Assessment of Wetlands Workgroup, including the Method for Inventorying and Evaluating Freshwater Wetlands in New Hampshire, 2016, and as amended from time to time. Such assessment must be done by a certified professional wetland scientist or a Maine-certified wetland scientist and submitted to the Board.
(b) 
The overall wetland systems in which the impact areas are proposed must not:
[1] 
Be deemed a wetland of special significance (WOSS) by the State of Maine.
[2] 
Be within the Shoreland, Stream Protection or Resource Protection Zones.
[3] 
Contain 10,000 square feet or greater of open water or emergent vegetation.
(c) 
An analysis of the proposed development-related impact to the wetland and wetland buffers must be done and submitted by a professional qualified as in Subsection I(1)(a) above. The analysis shall include mitigation recommendations to address the impacts to the wetland and wetland buffers.
(d) 
The Board may, at its discretion, request a more detailed site study (intensive site assessment) of the wetlands of all kinds, and wetland buffers in question to be done by professionals as qualified in Subsection I(1)(a) above at the expense of the applicant.
(e) 
When proposing a wetland alteration, particularly in order to create access, there is a strong preference for bridging a wetland, rather than using a culvert crossing. If culverts are used, they shall be embedded in accordance with MDEP criteria.
(2) 
The cumulative area of the wetland alteration proposed on the overall parcel must be less than 4,300 square feet. Where the entirety of the wetland impact proposed is for access only, the Planning Board may, upon evidence from the applicant of significant avoidance, minimization and mitigation efforts, approve up to a total of 5,300 square feet of wetland impact on the property. The portion of wetland impact above 4,300 square feet will be charged twice the standard mitigation fee for wetland alterations, set in the fee schedule in Appendix A.
K. 
With the understanding that avoidance of wetland and buffer impacts is foremost, the Planning Board is authorized to allow impacts within a wetland setback if the applicant proposes sufficient mitigation in exchange. Said mitigation could include but is not limited to the restoration of ecosystems on the property that were damaged by artificial or natural impacts, the addition of an invasive Species Management Plan within the HOA documents, a condition of approval on the plan stating the development will use electric heating and cooling for the entire development, and/or payment per square foot of impact within a buffer area equal to the fee set in Appendix A for Wetland Alteration.
(1) 
This provision does not constitute a requirements that the Planning Board allow impact within a buffer area. The Planning Board shall have the sole discretion to determine whether the standards for avoidance, minimization, and mitigation have been adequately met.
L. 
All utilities must be installed underground. Underground utilities and related easements may be located in designated common open space but must be shown on the plans, including the as-built plan. The Planning Board may allow aboveground electrical/utility service installation, but it is incumbent on the developer to demonstrate to the Planning Board's satisfaction that underground installation of utilities is not technically possible.
(1) 
When determining whether or not to permit aboveground utilities, the Board will use the following criteria:
(a) 
The proximity and visibility of such a proposed utility line(s) to the surrounding neighborhood and public streets.
(b) 
The impact that aboveground utilities will have on natural resources, any public recreation areas, scenic views, scenic roads, and conserved land.
(c) 
The ramifications of aboveground utilities on the overall design and functionality of the conservation subdivision and how well the developer has addressed these ramifications.
(2) 
When permitting such aboveground electrical service installations, the Board must require the developer to adopt a prudent avoidance approach in regard to pole and line placements as a condition of approval and include their placement within the site on the final plan. Transformer boxes, pumping stations and meters must be located so as not to be unsightly or hazardous to the public.
M. 
The location of any subsurface wastewater disposal systems and reserve areas, if required, must be shown on the plan. The reserve areas must be labeled as restricted so as not to be built or encroached upon. All necessary information such as the site evaluator report, test pit data, and submittal of state-required permits must be included prior to final plan approval.
[Amended 11-24-2025]
A. 
The developer must take the site's natural features and physical location into consideration as follows:
(1) 
All elements of the site, including the individual buildings, must be designed so scenic vistas, including views from scenic roads, natural, historic and cultural features, are preserved and protected while being integrated into the development.
(2) 
Buildings must be sited to consider sunlight, shade, topography, natural drainage, prevailing winds and ventilation.
(3) 
Buildings must be designed and oriented to protect against light trespass from vehicle headlights and any existing outdoor lighting to the greatest extent possible.
(4) 
It is strongly recommended that all buildings be designed for maximum energy efficiency and use heating and cooling systems that reduce greenhouse gases.
(5) 
All construction materials and soil disturbance must be at least 10 feet from abutting properties’ land except for road access into the development.
(a) 
At the request of an abutting property owner, the Planning Board may consider fencing, screening, buffering, and/or landscaping within the 10-foot setback. All general standards must be met, unless otherwise modified by the Planning Board. Such modifications requested must be found satisfactory by the Planning Board.
(6) 
Existing natural vegetation, including trees, unless diseased or dying, must remain to control soil erosion, provide shade and wildlife habitat and assist in stormwater infiltration to ensure the least amount of disturbance during construction. Existing large healthy trees located near new rights-of-way, driveways or building sites, whose removal is not necessary for construction, must be protected from damage during construction. Such trees must be noted on the plans, and plan notes must include protection details.
B. 
Active recreational facilities such as playgrounds or tennis courts requiring permanent equipment affixed to the ground and/or modification of the site may not be located within the wetland, wetland setback, or shoreland setback areas or within reserved open space areas.
C. 
Where a park or a playground with permanent affixed equipment, either recreational or artistic in nature, is proposed as common open space, the park or playground must be designed by a landscape architect or a professional specializing in playgrounds. The plans for the playground or park must be submitted as part of the preliminary plan or, if the conservation subdivision is less than five lots, part of the final plan. Any impervious surface created as part of the park or playground must be included in the stormwater management report to ensure the design of adequate stormwater management systems.
D. 
Plantings, landscaping, naturally existing vegetation, and the forms and siting of buildings and other improvements must be used to integrate the proposed development with the surrounding landscape and any neighboring development, representative of local arboreal species.
E. 
Development setbacks and buffers from wetlands of all types, streams and water bodies must comply with § 16.5.30 and § 16.10.5G. These setbacks must be permanently maintained as "no cut, no disturb" buffer areas except where common access by the conservation subdivision residents is required per § 16.10.5H. These buffer areas must be identified as such on all subdivision plans, including the as-built plan. The applicant must install signs denoting the boundaries of these buffer areas be placed prior to the issuance of any certificate of occupancy to ensure that encroachment does not occur. If the setback areas do not contain substantial vegetation, as determined by the Planning Board, to provide a sufficient and environmentally appropriate buffer and ecological benefit, the Board may require additional native or Northeastern native climate-tolerant plantings. If plantings are required, any plantings that do not survive must be replaced. This plantings requirement does not expire and runs with the land.
F. 
A vegetated buffer is required in Zones R-C and R-RL along the front lot line (except for access to the development) of the proposed development where designated open space or "no-cut, no disturb buffers" as described in Subsection E above do not exist. The frontage buffer must be at least 40 feet wide and will serve to screen the development from the street, perform carbon capture and aid in stormwater absorption. This buffer may not be built on, paved, mowed or used for parking or storage, nor can it be part of any residential lot. No trees may be cut within the buffer unless they are dead, diseased or dying, are identified as an invasive species or are less than a two-inch caliper. Any invasive plant species, as identified by the State of Maine, that are found in the buffer must be removed. Vegetation will be maintained in its natural state (excluding invasive species) unless the Planning Board deems the buffer insufficiently vegetated to serve its purpose, in which case the Board may also require a variety of additional native or Northeastern native climate-tolerant plantings representative of local arboreal species. If plantings are required, any plantings that do not survive must be replaced. This plantings requirement does not expire and runs with the land.
(1) 
The buffer may be increased to a maximum of 50 feet if, in the Board's judgment, the preservation of natural features or the design of the site as proposed, including how it blends with the surrounding environment, would be improved by wider buffers.
(2) 
The buffer requirement may also be modified by the Board in different ways than described by Subsection F(1) above if, in the Board's judgment, the buffer would impact important objectives, such as preserving views, minimizing impacts to abutters, providing access to a trail/open space, creating LID features for stormwater or protecting natural features.
G. 
The Planning Board may require vegetated buffers in other locations on the site, such as, but not limited to, side lot lines or rear lot lines, when, in the Board's judgment, such a buffer will allow the site design to better meet the criteria and objectives of this conservation subdivision ordinance. Such buffers may not exceed 40 feet in width, and all requirements in Subsection F above apply.
H. 
Low-impact development (LID) must be incorporated into the site design to address treatment of runoff throughout the site and should include simple and effective nature-based strategies such as maintaining significant stands of forest and intact and ecologically functional wetlands of all types. Refer to MDEP design criteria for appropriate LID practices.
I. 
In cases where a proposed conservation subdivision abuts permanently protected land such as property owned by a land trust or private property with a conservation easement, all proposed development, including private house lots, structures, roads, rights-of-way, driveways, utility easements, stormwater management systems, and utilities, must be set back at least 30 feet from the edge of the protected property. This thirty-foot setback also applies to Town-owned land used by the general public, such as but not limited to Rogers Park, the Town Farm Forest and Fort Foster.
[Amended 5-13-2024]
A. 
The amount of open space required varies with the zoning district in which the conservation subdivision is located. The requirements are as follows:
(1) 
In the R-C Zone, the designated open space must be a minimum of 70% of the total land area, with a minimum of 50% of that consisting of net residential acreage as defined by this title.
(2) 
In the R-RL Zone, the designated open space must be a minimum of 60% of the total land area, with a minimum of 40% of that consisting of net residential acreage as defined by this title.
(3) 
In the KP-V Zone, the designated open space must be a minimum of 50% of the total land area, with a minimum of 30% of that consisting of net residential acreage as defined by this title.
(4) 
In the R-S and R-U Zones:
(a) 
For properties of 10 acres or more, the designated open space must be at least 50% of the total land area, with a minimum of 30% of that consisting of net residential acreage as defined by this title.
(b) 
For properties of less than 10 acres with public sewer or common private septic, the designated open space must be at least 25% of the total land area, with a minimum of 5% of that consisting of net residential acreage.
(c) 
For properties of less than 10 acres with private septic, the designated open space must be at least 25% of the total land area, with no minimum net residential acreage requirement.
(5) 
The following is an example of the open space calculation referenced in (1) through (4) above: With a lot of 1,000,000 square feet, using an open space requirement of 60% of the lot, at least 600,000 square feet (60%) must be open space. Of that 600,000 square feet, 240,000 (40% of total open space, or 24% of total lot) must be land that would be considered buildable as described in the definition of "net residential acreage" found in § 16.3.2.
B. 
Wetlands of all types, water bodies, floodplains, and streams located on the site must be protected as reserved open space, except as otherwise allowed in § 16.10.5.
C. 
Natural resources such as wildlife habitat or areas of ecological importance must be included in the designated open space.
D. 
The required designated open space must include any notable natural features found on the site, such as, but not limited to, stands of mature trees, meadows, hillsides, ledge/outcroppings, and former or existing farmland.
E. 
All historic, cultural or archeological resources must be included in the designated open space.
F. 
Open space areas within a site must be contiguous blocks, to the greatest extent possible, and link to open space on abutting land where it exists to protect natural resources, including plant and wildlife habitats. It is incumbent on the applicant to demonstrate to the Planning Board's satisfaction that noncontiguous open space still meets the criteria and intent of this chapter.
(1) 
Narrow strips of open space located around the perimeters of the site will not necessarily meet this standard but such narrow strips may exist for purposes of buffering the development from the street as required in § 16.10.6F.
(2) 
Narrow strips of open space which serve purposes other than those required by § 16.10.6F, such as a buffer to neighboring properties or to provide public access connectors to public open space, public trails or links to neighborhoods, all of which must be approved by the Board, may be counted towards the total open space requirements.
G. 
Open space may not consist entirely of mowed grass areas unless such a space is designated as a park, either public or private. If a park is proposed or included in the development, seating areas and shade trees, at minimum, must also be included in the park. See § 16.10.6 for design details.
H. 
All three types of open space, public, common and reserved, as defined by Title 16, may be used for a proposed development to meet the open space area requirements of the applicable zone. For example, a conservation subdivision may propose common open space for a community garden with mowed areas around the garden for community gatherings while designating the woodlands beyond as reserved open space, with both areas combining to meet the necessary open space requirements. The Planning Board must approve the designations and may require changes in the designations and/or the uses based on the standards of this chapter.
[Amended 11-24-2025]
A. 
This conservation subdivision ordinance will supersede inconsistent provisions regarding buffers, open space and vegetation/landscaping requirements of Title 16 where relevant and applied to a conservation subdivision development being considered by the Board.
B. 
Open space designated and set aside in a conservation subdivision will be permanently protected from development as required by this chapter. Such perpetual protection includes but is not limited to dedication of open space to an approved land conservation entity such as a land trust, conservation easements and declarations of covenants, conditions, and restrictions. Refer to § 16.10.10C regarding costs to the party responsible for stewardship of the open space.
C. 
A conservation easement may be granted to or the declarations may be for the benefit of a qualified not-for-profit conservation organization such as a land trust acceptable to the Planning Board or to the Town of Kittery with the approval of Town Council. Refer to § 16.10.10C regarding costs to the party responsible for stewardship of the open space.
D. 
The Planning Board may require that any conservation easement or declaration of covenants, conditions and restrictions be enforceable by either the Town or a third party as specified and/or approved by the Board.
E. 
On all parcels, open space uses must be appropriate to the site as follows:
(1) 
Parcels that include three acres or more of land suitable for agriculture by reason of former or existing agricultural use or agriculturally valuable soil must be conserved for agriculture or other compatible open space uses such as wildlife habitat, resource conservation and/or passive recreation. A conservation easement to be held by a land conservation entity is strongly encouraged.
(2) 
If any portion of the designated open space will be devoted to an agricultural land use, the developer must submit a management plan to the Planning Board for review and approval demonstrating how the use will be fostered into the future. Examples of such plans include a farm management plan or a community garden plan. If the open space will be leased to another party, a long-term lease (three years or more) must be included with the management plan.
(3) 
When the principal purpose for conserving certain portions of the open space is protection and preservation of natural resources, such as, but not limited to, wetlands, vernal pools, wooded wetlands, wetland buffers, stream corridors, water body shores, wildlife habitat, woodlands, meadows and hillsides, those open spaces must be designated as reserved open space with no use allowed beyond passive recreation.
(4) 
For the purposes of this conservation subdivision ordinance, "forestry" means the practice of planting, managing, and caring for forests. Any portion of the open space designated for forestry must be covered by a plan done by a licensed Maine forester that manages for the health of the forest and, if appropriate, passive recreation. Timber harvesting as a main objective is not allowed, although trees removed for health and/or safety reasons according to the management plan may be sold per state and local regulations.
(5) 
The use of any proposed open space may be limited by the Planning Board prior to final plan approval when the Board finds that it is necessary to protect water quality, sensitive natural features or resources or to protect adjacent properties or uses.
(6) 
No further subdivision of open space is allowed and the deed restrictions must clearly state this. Such deed restrictions must be reviewed by the Town's legal counsel prior to final plan approval at the applicant's expense. A conservation easement may be granted to, or the declarations may be for the benefit of a qualified not-for-profit conservation organization, such as a land trust, acceptable to the Planning Board or the to the Town of Kittery, and with the approval of Town Council. See Subsection F below. Any use of open space other than that designated at the time of Planning Board final approval for agriculture, forestry, recreation and/ or conservation is prohibited except for underground utility easements (see § 16.10.5I) which, if necessary, may be reviewed and approved by the Board as a major modification after final plan approval. Any modification of a previously approved use for open space, if modifications are allowed under the terms of open space deed restrictions, must be reviewed and approved by the Planning Board as a major modification.
(7) 
Proposed structures or buildings accessory to agriculture, recreation or conservation uses of open space are allowed subject to Planning Board approval through the major site plan review process pursuant to this chapter and Chapter 16.7. Such a process may run concurrently with the conservation subdivision approval process.
(8) 
In cases where historic or culturally important sites are included in the open space, the Planning Board may require that extra protections be put into place, such as a fence around a graveyard or a stone wall around an early homestead site. The Board may also require that markers or signs be erected at the developer's expense, describing the site's significance.
(9) 
Adapting an historic or culturally important structure within a proposed conservation subdivision for use either residentially or as an accessory structure is encouraged. For the purposes of this chapter, an "historic structure" means any structure that is significant in the history, architecture or landscape of Kittery and is at least 50 years old. If the proposed open space in the subdivision include an historic or culturally important structure or building, the following options exist:
(a) 
Repurposing of such a building is allowed if all other state and local regulations are met; for example, an historic barn could be used as a clubhouse or for storage of small recreational vehicles and watercraft. The building must be repaired and maintained by the homeowner's association, with the necessary funding put in place for continued upkeep. The proposed use must be reviewed and approved by the Planning Board through the major site plan review process pursuant to this chapter and Chapter 16.7. The site plan review may be done concurrently with the subdivision review.
(b) 
The building's deed can be transferred to an entity, such as an historical society, that can preserve and maintain it. Such a transfer must be approved by the Board.
(c) 
In cases where the building will not be repurposed and an entity cannot be found to accept the deed for the building, the Board may allow the building to be dismantled and given or sold to a willing party, moved to another location off the site by a willing party or demolished. If the building will be dismantled, moved or demolished, the developer must document the building. Such documentation must include dimensions and photographs, inside and out, on its original site prior to any further action taken to remove the building. The Board may require the developer to hire an historian at the developer's expense to create the documentation. A copy of the completed documentation must be given to the Kittery Historical and Naval Museum, and a copy must be filed with the Town Planning Department prior to the issuance of the first building permit and will be a condition of approval.
F. 
Prior to approval of the final plan by the Planning Board, documentation, including plans, homeowners' association documents, such as the covenants, conditions and restrictions as well as bylaws, deed restrictions, deeds for dedication of land conservation, drainage, utility, or access easements and any other legal instruments, for open space concerned with the subdivision and its open space must be submitted to the Town for review by legal counsel at the applicant's expense. Once reviewed by legal counsel and any corrections required are made, the documents must be submitted to the Board as part of the final plan submission. Upon approval of the final plan, all documents described above that apply to the homeowners' association and/or open space must be submitted to the Registry of Deeds and a recorded copy submitted to the Town prior to the issuance of the first building permit.
G. 
The open space must be accurately shown on the development plans, at least by final plan submission and on the as-built plan with appropriate notation to indicate:
(1) 
The open space is permanently protected and must not be used for future building lots or any additional development unless approved by the Planning Board where authorized;
(2) 
The uses or uses applicable, ownership, management, method of preservation and the rights, if any, of the owners of the subdivision to such land or portions thereof;
(3) 
Any open space that will be deeded to a land conservation entity, dedicated for acceptance by the Town or protected by a conservation easement held by a land conservation entity;
(4) 
The type of open space: reserved, common or public; and
(5) 
The book and page of any conservation easements or deed restrictions required to be recorded to implement such protections or restrictions.
H. 
The Planning Board may require that a separate open space plan with full details and notations per Subsection E above be submitted for preliminary or final plan approval, or both. Planning staff may also require such a plan to be included as part of the as-built plan.
I. 
If any, or all, of the open space will be owned in common by the residents of the conservation subdivision, the bylaws of the proposed homeowners' association and/or the recorded covenants, conditions and restrictions must specify maintenance responsibilities, including taxes, insurance, monitoring, maintenance, management of nature resources and trails, invasive species management, enforcement, and other and tasks and be submitted to the Planning Board for review prior to final plan approval. See § 16.10.8D regarding enforcement and Subsection F above.
[Amended 11-24-2025]
A. 
In instances where affordable housing as defined by Title 16 is required, and the affordable housing will be built, either on-site or off-site per § 16.5.4, the Planning Board may allow:
(1) 
In the R-RC, R-RL and R-KP-V Zones, one additional lot for a market-rate single-family dwelling will be created in the conservation subdivision, provided all objectives, requirements and criteria in Chapter 16.10 are met to the Board's satisfaction and as follows:
(a) 
Base zone residential density requirements will be necessarily modified to allow an additional dwelling unit.
(b) 
No lots may be located within 100 feet of a conservation-zoned property.
(2) 
In the R-S and R-U Zones, one additional lot for a market-rate single-family dwelling to be created in the conservation subdivision, provided all objectives, requirements and criteria in Chapter 16.10 are met to the Board's satisfaction and as follows:
(a) 
Base zone residential density requirements will be necessarily modified to allow an additional dwelling unit.
(b) 
Open space requirements may also be modified by the Board when doing so will result in development that meets the intent of Chapter 16.10 while supplying modestly priced housing in a designated growth area per the Comprehensive Plan.
(c) 
To qualify for this allowance, the affordable housing, if not located on the conservation subdivision site itself, must be located in one of these zones: R-S, R-U, B-L, or B-L1.
(d) 
All lots must be served by public water and sewer.
(e) 
No lots may be located within 100 feet of a conservation-zoned property.
[Amended 11-24-2025]
A. 
The homeowners' association (HOA) is responsible for the maintenance of open space(s) owned in common by the residents and other common facilities such as streets, stormwater management systems, and shared septic and water systems. Associations must maintain adequate funds to defray these expenses. The Planning Board shall require an initial capital fund for associations to be paid by the developer to cover these expenses. See also § 16.10.10C regarding stewardship funding.
B. 
Any additional plantings required by the Planning Board must be documented and provisions made in the HOA's documents to ensure that the plantings are maintained and replaced when necessary.
C. 
The Planning Board may require that a qualified independent party or steward be designated and contracted to oversee homeowners'-association-owned open space in instances where natural resources or historical, archeological or cultural features must be expertly observed and monitored. Such an arrangement must be approved by the Board and will be funded by the HOA in perpetuity or until a conservation or historic preservation entity holds a conservation or historic preservation easement for the open space or obtains the open space in fee. Any such transfer of responsibility from the HOA to another entity must be reviewed and approved by the Board as a major modification and include legally binding instruments between the HOA and the new open space owner or stewards. Such instrument may include reasonable funding by the applicant of an endowment to cover costs associated with ongoing stewardship responsibilities. The legal instrument must be reviewed and approved by the Planning Board prior to final approval.
D. 
Stormwater. The stormwater management system must be maintained in accordance with § 16.8.10F, Post-construction stormwater management. As stated in Subsection A above, an initial capital fund will be provided by the developer to cover expenses, but the HOA will be responsible for maintaining adequate funding going forward.
E. 
Transition of responsibility. The developer is responsible for maintenance of all open space and all facilities until development, sufficient to support the HOA, has taken place. At minimum, 75% of the residences must be built and sold before any transfer of responsibility may occur. All HOA documentation must be distributed to the HOA prior to the issuance of the first sale or occupancy permit, whichever comes first, so the transition of responsibilities is transparent and seamless.
Prior to the beginning of any site work, including tree cutting or disturbing any soil, the applicant must:
A. 
Clearly define the limits of clearing and obtain sign-off from Code Enforcement per approved plan; and
B. 
Schedule a pre-construction meeting with the Town and file all required performance guarantees and inspection escrows in forms acceptable to the Town Manager in accordance with § 16.8.11F.