City of Augusta, ME
Kennebec County
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Table of Contents
Table of Contents
[Amended 4-20-2017 by Ord. No. 17-067]
It is the intent of this article to promote land use conformities, except that nonconforming conditions that existed before the effective date of this chapter shall be allowed to continue, subject to the requirements set forth in this article. Except as otherwise provided in this chapter, a nonconforming condition shall not be permitted to become more nonconforming.
A. 
In any proceeding before the Code Enforcement Officer/Planning Board, the burden of proof shall be on the applicant/proponent to establish that the application/use is in compliance with the requirements of this chapter.
B. 
In the case of disagreement between the City Assessor's records and a property owner's statement that a nonconforming use of a property existed prior to the effective date of this chapter, the Code Enforcement Officer may require the applicant to submit evidence that the activity was ongoing. Acceptable forms of such evidence are copies of billings, invoices, IRS statements, state licenses and tax number certificates. The address of the property must appear on the evidence submitted.
All projects approved by the Planning Board in accordance with this article shall be commenced within two years of the date of the Planning Board decision and shall be substantially completed within five years of the date of the Planning Board decision, unless a permit extension has been granted by the Board. A permit extension must be requested before expiration of the original approval.
A. 
The use of land, buildings or structures, lawful at the time of the effective date of this chapter, may be continued although such use does not conform with the provisions of this chapter.
B. 
To avoid undue difficulty, nothing in this chapter shall be deemed to require a change in the plans, construction or designated use of any building for which a building permit was legally issued prior to the effective date of this chapter, or any amendment thereto, unless an amendment expressly provides otherwise.
C. 
Transfer of ownership. Ownership of land and structures which remain lawful but become nonconforming by the passage of this chapter may be transferred, and the new owner may perpetuate the nonconformity subject to the regulations herein. Nonconforming structures, lots, and uses may be transferred, and the new owner may continue the nonconforming use or continue to use the nonconforming structure or lot subject to the provisions of this chapter.
[Amended 4-20-2017 by Ord. No. 17-067]
D. 
Repair and maintenance. This chapter allows the normal upkeep and maintenance of nonconforming uses and structures, including repairs or renovations which do not involve expansion of the nonconforming use or structure, and such other changes in a nonconforming use or structure as federal, state, or local building and safety codes may require.
[Amended 12-6-1993 by Ord. No. 311]
A. 
Modifications to nonconforming uses. The following modifications to existing, lawful, nonconforming uses of land and structures require approval by the Planning Board in accordance with the conditional use process and criteria outlined in § 300-603:
(1) 
Expansion of a building in nonconforming use. Outside shoreland areas, expansions of buildings in nonconforming use are allowed upon approval by the Planning Board through the conditional use process. In shoreland areas, expansions of buildings in nonconforming use are prohibited, except that nonconforming residential uses may, after obtaining a permit from the Planning Board, be expanded within existing residential structures or within expansions of such structures as allowed in § 300-310B.
[Amended 4-20-2017 by Ord. No. 17-067]
(2) 
Increase in the area of land in nonconforming use. See definition of "area of land in nonconforming use."
(3) 
Change to another nonconforming use. A nonconforming use shall not be changed to another nonconforming use unless the Planning Board, utilizing the criteria applicable to conditional uses in § 300-603E, finds that the proposed use is equally or more appropriate to the district than the existing nonconforming use, and provided that the proposed use has no greater adverse impact on the subject and adjacent properties and resources, including water-dependent uses as provided for in the appropriate district, than the former use.[1]
[1]
Editor's Note: Former Subsection A(4), Expansion of a conforming use into a district where it would be nonconforming, was repealed 4-20-2017 by Ord. No. 17-067.
B. 
Discontinuance of nonconforming use (see definition).
(1) 
A lot, building or structure in or on which a nonconforming use is discontinued for a period exceeding one year, or which is superseded by a conforming use, may not again be devoted to a nonconforming use, except that the Planning Board may, for good cause shown by the applicant, grant up to a one-year extension to that time period.
[Amended 4-20-2017 by Ord. No. 17-067]
(2) 
This provision shall not apply to the resumption of a use of a residential structure, provided that the structure has been used or maintained for residential purposes during the preceding five-year period.
C. 
Rule of precedence.
(1) 
Whenever a use of land or a structure, whether conforming or nonconforming, is converted to a new conforming use, such land or structure shall thereafter conform to the requirements of the district in which it is located, except when existing yards, setbacks and other dimensional requirements are nonconforming.
(2) 
Whenever a nonconforming use of land, a building or structure is permitted pursuant to § 300-308 and such use is changed to any other nonconforming use, the new nonconforming use must comply with all yard and setback requirements, unless a variance is obtained pursuant to the provisions of this chapter.
[Amended 4-20-2017 by Ord. No. 17-067]
A. 
Reconstruction or replacement of nonconforming structures.
(1) 
Outside shoreland areas, any nonconforming structure which is damaged or destroyed by fire or any cause other than the willful act of the owner or his agent may be restored or reconstructed within one year of the date of said damage or destruction, provided that such replacement or reconstruction shall not enlarge the lesser of the gross floor area or volume or change the location or use (except to more conforming) of the prior nonconforming structure. In no case shall a structure be reconstructed or replaced so as to increase its nonconformity.
(2) 
Outside shoreland areas, any nonconforming structure for which the appropriate maintenance remedy, as determined by the Code Enforcement Officer, is replacement may be replaced, provided that such replacement shall not enlarge the size or change the location or use (except to more conforming) of the prior nonconforming structure.
(3) 
In shoreland areas, the following shall apply:
(a) 
Any nonconforming structure which is located less than the required setback from the normal high-water line from a water body, tributary stream, or wetland and which is removed or damaged or destroyed, regardless of the cause, by more than 50% of the market value of the structure before such damage, destruction or removal, may be reconstructed or replaced, provided that a permit is obtained within 18 months of the date of said damage, destruction, or removal, and provided that such reconstruction or replacement is in compliance with the water body, tributary stream or wetland setback requirement to the greatest practical extent as determined by the Planning Board or its designee in accordance with the purposes of this chapter and the criteria applicable to conditional uses. In no case shall a structure be reconstructed or replaced so as to increase its nonconformity. If the reconstructed or replacement structure is less than the required setback, it shall not be any larger than the original structure, except as allowed pursuant to § 300-310B(2), Expansions, as determined by the nonconforming footprint of the reconstructed or replaced structure at its new location. If the total footprint of the original structure can be relocated or reconstructed beyond the required setback area, no portion of the relocated or reconstructed structure shall be replaced or constructed at less than the setback requirement for a new structure. When it is necessary to remove vegetation in order to replace or reconstruct a structure, vegetation shall be replanted in accordance with § 300-310E, Relocation.
(b) 
Any nonconforming structure which is located less than the required setback from the water body, tributary stream, or wetland and which is removed by 50% or less of the market value, or damaged or destroyed by 50% or less of the market value of the structure, excluding normal maintenance and repair, may be reconstructed in place if a permit is obtained from the Code Enforcement Officer within one year of such damage, destruction, or removal.
(c) 
In determining whether the building reconstruction replacement meets the setback to the greatest practical extent, the Planning Board or its designee shall consider, in addition, the criteria relative to § 300-310E, Relocation, and the physical condition and type of foundation present, if any.
B. 
Expansion of structures with nonconforming setback.
(1) 
Outside shoreland areas, a structure which does not meet the yard or setback requirements specified herein may be expanded, provided that the portion of the structure which does not meet the required setbacks is not expanded in footprint by 30% or more during the lifetime of the structure without Planning Board approval in accordance with the criteria applicable to conditional uses. The portion of the nonconforming structure which meets the required setbacks may be expanded without limitation, provided that all other applicable standards are met. In no case shall the existing nonconforming setbacks be further reduced.
In shoreland areas, all new principal and accessory structures, excluding functionally water-dependent uses, must meet the water body, tributary stream, or wetland setback requirements contained in § 300-528Q, Minimum dimensional requirements in shoreland areas. A nonconforming structure may be added to or expanded after obtaining a permit from the same permitting authority as that for a new structure, if such addition or expansion does not increase the nonconformity of the structure and is in accordance with Subsections B(1)(a) and (b) below.
(a) 
Expansion of any portion of a structure within 25 feet of the normal high-water line of a water body, tributary stream, or upland edge of a wetland is prohibited, even if the expansion will not increase nonconformity with the water body, tributary stream or wetland setback requirement. Expansion of an accessory structure that is located closer to the normal high-water line of a water body, tributary stream, or upland edge of a wetland than the principal structure is prohibited, even if the expansion will not increase nonconformity with the water body, tributary stream, or wetland setback requirement.
(b) 
Notwithstanding Subsection B(1)(a) above, if a legally existing nonconforming principal structure is entirely located less than 25 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland, that structure may be expanded as follows, as long as all other applicable municipal land use standards are met and the expansion is not prohibited by § 300-310B:
[1] 
The maximum total footprint for the principal structure may not be expanded to a size greater than 800 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of the principal structure may not be made greater than 15 feet or the height of the existing structure, whichever is greater.
(c) 
All other legally existing nonconforming principal and accessory structures that do not meet the water body, tributary stream, or wetland setback requirements may be expanded or altered as follows, as long as other applicable municipal land use standards are met and the expansion is not prohibited by § 300-310B or 300-310B(1)(a) above:
[1] 
For structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,000 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of any structure may not be made greater than 20 feet or the height of the existing structure, whichever is greater.
[2] 
For structures located less than 100 feet from the normal high-water line of a great pond classified as GPA or a river flowing to a great pond classified as GPA, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of any structure may not be made greater than 25 feet or the height of the existing structure, whichever is greater. Any portion of those structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland must meet the footprint and height limits in § 300-310B(1)(b)[1] and B(1)(c)[1] above.
[3] 
In addition to the limitations in Subsection B(1)(c)[1] and [2], for structures that are legally nonconforming due to their location within the Resource Protection District when located at less than 250 feet from the normal high-water line of a water body or the upland edge of a wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet or 30% larger than the footprint that existed at the time the Resource Protection District was established on the lot, whichever is greater. The maximum height of any structure may not be made greater than 25 feet or the height of the existing structure, whichever is greater, except that any portion of those structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland must meet the footprint and height limits in § 300-310B(1)(b)[1] and B(1)(c)[1] above.
(d) 
An approved plan for expansion of a nonconforming structure must be recorded by the applicant with the Registry of Deeds within 90 days of approval. The recorded plan must show the existing and proposed footprint of the nonconforming structure, the existing and proposed structure height, the footprint of any other structures on the parcel, the shoreland zone boundary and evidence of approval by the municipal review authority.
(2) 
No structure which is less than the required setback from the normal high-water line of a water body, tributary stream, or upland edge of a wetland shall be expanded toward the water body, tributary stream, or wetland.
C. 
Expansion of structures with nonconforming floor area ratios. Structures existing on the effective date of adoption or amendment of this chapter which exceed the maximum floor area ratios may be permitted to increase the nonconforming ratios by obtaining a variance from the Board of Zoning Appeals.
D. 
Change of use of a nonconforming structure. In shoreland areas:
(1) 
The use (whether a permitted use, conditional use or a nonconforming use) of a nonconforming structure may not be changed to another use unless the Planning Board, after receiving a written application, determines that the new use will have no greater adverse impact on the water body, tributary stream, or wetland or on the subject or adjacent properties and resources than the existing use.
(2) 
In determining that no greater adverse impact will occur, the Planning Board shall require written documentation from the applicant regarding the probable effects on public health and safety, erosion and sedimentation, water quality, fish and wildlife habitat, vegetative cover, visual and actual points of public access to waters, natural beauty, floodplain management, archaeological and historic resources, commercial fishing and maritime activities, and other functionally water-dependent uses.
E. 
Relocation. In all general zoning districts, a nonconforming structure may be relocated within the boundaries of the parcel on which the structure is located, provided that the site of relocation conforms to all setback requirements to the greatest extent possible as determined by the Code Enforcement Officer. In no case shall a structure be relocated in a manner that causes the structure to be more nonconforming. In determining whether the building relocation meets the setback to the greatest practical extent, the Code Enforcement Officer shall consider the size of the lot, the effect on other applicable performance standards, the location of other structures on the property and on adjacent properties, and the location of utilities on or serving the site.
(1) 
In shoreland overlay districts, a nonconforming structure may be relocated within the boundaries of the parcel on which the structure is located, provided that the site of relocation conforms to all setback requirements to the greatest practical extent as determined by the Planning Board or its designee, and provided that the applicant demonstrates that the present subsurface sewage disposal system meets the requirements of state law and the State of Maine Subsurface Wastewater Disposal Rules ("rules") or that a new system can be installed in compliance with the law and said rules. In no case shall a structure be relocated in a manner that causes the structure to be more nonconforming.
(2) 
In determining whether the building relocation meets the setback to the greatest practical extent, the Planning Board or its designee shall consider the size of the lot, the slope of the land, the potential for soil erosion, the location of other structures on the property and on adjacent properties, the location of the septic system and other on-site soils suitable for septic systems, and the type and amount of vegetation to be removed to accomplish the relocation.
(3) 
When it is necessary to remove vegetation within the water or wetland setback area in order to relocate a structure, the Planning Board shall require replanting of native vegetation to compensate for the destroyed vegetation in accordance with § 300-528S, Revegetation requirements. In addition, the area from which the relocated structure was removed must be replanted with vegetation. Replanting shall be required as follows:
(a) 
Trees removed in order to relocate a structure must be replanted with at least one native tree, three feet in height, for every tree removed. If more than five trees are planted, no one species of tree shall make up more than 50% of the number of trees planted. Replaced trees must be planted no further from the water or wetland than the trees that were removed.
(b) 
Other woody and herbaceous vegetation, and ground cover, that are removed or destroyed in order to relocate a structure must be reestablished. An area at least the same size as the area where vegetation and/or ground cover was disturbed, damaged, or removed must be reestablished within the setback area. The vegetation and/or ground cover must consist of similar native vegetation and/or ground cover that was disturbed, destroyed or removed.
(c) 
Where feasible, when a structure is relocated on a parcel, the original location of the structure shall be replanted with vegetation, which may consist of grasses, shrubs, trees, or a combination thereof.
F. 
Foundations. Whenever a new, enlarged, or replacement foundation is constructed under a nonconforming structure, the structure and new foundation must be placed such that the setback requirement is met to the greatest practical extent as determined by the Planning Board or its designee, basing its decision on the criteria specified in § 300-310E, Relocation, above.
A. 
Except in the KBD1, a structure or use of structure which is nonconforming as to the requirements for off-street parking space and/or off-street loading space shall not be enlarged or altered to create additional parking needs unless required off-street parking and/or off-street loading space sufficient to satisfy the requirements of this chapter for the addition or enlargement is provided on site for such addition or enlargements.
B. 
Off-lot parking may be authorized by the Planning Board in accordance with §§ 300-603E and 300-513B(1)(c).
Commentary: Nonconforming lots of record are created by requiring lots to meet minimum dimensional standards, as in conventional zoning. Nonconforming lots are not created under performance zoning (impervious surface ratios, floor area factors, open space ratios) since all lots are developable to the extent that the ratios permit. The following section applies to the conventional zones, shoreland zones and to those parcels regulated by the State of Maine Subsurface Wastewater Disposal Rules.
A. 
Where minimum dimensional requirements are listed, an unimproved single lot of record, at the effective date of adoption of this chapter or amendment thereto, may be built upon without the need for a variance, provided that such lot is in separate ownership and not contiguous with any other lot in the same ownership. Outside the shoreland zone, all provisions of this chapter except lot area, frontage and depth must be met. In shoreland zones, all provisions of this chapter except lot area, lot width and shore frontage must be met. Variances relating to setback or other requirements not involving lot area, frontage, or depth shall be obtained only by action of the Board of Zoning Appeals.
[Amended 4-20-2017 by Ord. No. 17-067]
B. 
Contiguous lots, vacant or partially built.
[Amended 4-20-2017 by Ord. No. 17-067]
(1) 
If two or more contiguous lots or parcels are in single or joint ownership of record at the time of or since adoption or amendment of this chapter, if any of these lots do not individually meet the dimensional requirements of this chapter or subsequent amendments, and if one or more of the lots are vacant or contain no principal structure, the lots shall be combined to the extent necessary to meet the minimum dimensional requirements. The lands involved shall be considered to be a single parcel, and no portion of said parcel shall be built upon or sold which does not meet the minimum dimensional requirements of this chapter, nor shall any division of the parcel be made which creates any dimension or area below these minimum dimensional requirements. See Subsection D of this section.
(2) 
This provision shall not apply to two or more contiguous lots, at least one of which is nonconforming, owned by the same person or persons on June 3, 1991, and recorded in the Registry of Deeds, if the lot is served by a public sewer or can accommodate a subsurface sewage disposal system in conformance with the State of Maine Subsurface Wastewater Disposal Rules and:
(a) 
Each lot contains at least 100 feet of shore frontage and at least 20,000 square feet of lot area; or
(b) 
Any lots that do not meet the frontage and lot size requirements of § 300-312B(2)(a) are reconfigured or combined so that each new lot contains at least 100 feet of shore frontage and 20,000 square feet of lot area.
C. 
Contiguous built lots.
(1) 
If two or more contiguous lots or parcels are in a single or joint ownership of record at the time of adoption of this chapter, if all or part of the lots do not meet the dimensional requirements of this chapter, and if a principal use or structure exists on each lot, the nonconforming lots may be conveyed separately or together, provided that the State Minimum Lot Size Law (12 M.R.S.A. §§ 4807-A through 4807-D) and the State of Maine Subsurface Wastewater Disposal Rules are complied with.
[Amended 4-20-2017 by Ord. No. 17-067]
(2) 
If two or more principal uses or structures existed on a single lot of record on the effective date of this chapter, each may be sold as separate lots, provided that the above-referenced law and rules are complied with. When such lots are divided, each lot thus created must be as conforming as possible to the dimensional requirements of this chapter.
D. 
Previously approved/recorded/existing subdivisions.
(1) 
Notwithstanding other provisions of this chapter, lots in a lawfully recorded subdivision approved, existing or recorded prior to September 23, 1971, shall conform with Subsections B and C, or if located in the RPDS District shall be combined so as to meet a minimum lot area of two acres. Such lots in the RPDS District shall not clear in excess of 25% of the total volume of trees four inches or more in diameter, measured at 4 1/2 feet above the ground, and the total area of all structures, parking lots and other nonvegetated surfaces shall not exceed 7,500 square feet. All other dimensional requirements shall be met.
(2) 
Notwithstanding other provisions of this chapter, lots in a lawfully recorded subdivision approved by the Planning Board between September 23, 1971, and November 9, 1983, which do not meet the lot frontage requirements may be treated as separate lots, provided that the recorded road frontage is at least 75 feet and that all other dimensional requirements applicable under the November 9, 1983, ordinance are met.
(3) 
Notwithstanding other provisions of this chapter, lots in a lawfully recorded subdivision approved by the Planning Board between November 9, 1983, and the effective date of this chapter which do not meet the minimum lot area, frontage and depth requirements effective under this chapter may be treated as separate lots, provided that all other dimensional requirements (impervious surface limits, buffer widths, density, setback, etc.) are met.
See Part 5, Performance Standards, § 300-516, Street graphics; signs.