A.
Pursuant to 30-A M.R.S.A. § 4352, contract zoning is hereby
authorized where, due to the unusual nature or unique location of
the development proposed, the Town finds it necessary or appropriate
to allow flexibility for the development of the land, and to be able
to impose, by agreement with the property owner, conditions or restrictions
that are not generally applicable to other properties similarly zoned.
All rezoning under this article shall be consistent with the Town
of Kennebunkport Comprehensive Plan and complementary to existing
and permitted uses within the original zones. Use of the provisions
of this article shall be limited to where a rezoning is requested
by the owner of the property or by an applicant with a legal interest
in the property. Nothing in this article shall authorize an agreement
for rezoning that is inconsistent with the Comprehensive Plan.
B.
Contract zoning shall promote the general welfare of the residents of the Town of Kennebunkport. The Board of Selectmen shall approve a contract zoning request for placement on the Town Warrant only if it determines that the proposed contract zoning is in the public interest and will have beneficial effects on the Town as a whole, which would not result if the property were developed under the existing zoning district classification. Guidelines for the Board of Selectmen to apply in making those determinations are set forth in § 240-13.2E of this chapter.
C.
All applications for rezoning under this article shall be subject
to approval by a vote of Town Meeting.
A.
The person proposing contact zoning shall submit an application for
contract zoning to the Town Manager, which shall include, at a minimum,
the following elements:
(1)
A map showing existing and proposed zoning district lines;
(2)
The address or exact location of the request, including the
Kennebunkport Assessor's map references for the property to be rezoned;
(3)
The name, address and telephone number of the property owner
and of the applicant, if the applicant is not the owner;
(4)
Evidence of the applicant's right, title or interest in the
property;
(5)
A site analysis that describes the major features of the property,
allowing the Planning Board and Board of Selectmen to make informed
judgments about how it will be used;
(6)
A conceptual development plan showing the approximate layout
of all buildings, structures, streets, driveways, parking areas and
other significant improvements to be constructed on or above the surface
of the ground plus any proposed open spaces, conservation areas, buffer
areas or other features of the development to show subsurface infrastructure
installations, building plans, engineering plans or other details
which would be required for a subdivision plan or site plan;
(7)
A statement describing the existing use of the property and
the proposed new use and development and describing how the proposed
contract zone will be consistent with the Town of Kennebunkport Comprehensive
Plan, will be consistent with existing and permitted uses within the
existing zoning district classification of the property, will be in
the public interest, and will have beneficial effects on the Town
as a whole which would not result if the property were developed under
the existing zoning district classification;
(9)
Any other information requested by the Town Manager and/or the
Code Enforcement Office; and
(10)
A nonrefundable application fee as specified in the Schedule
of License, Permit and Application Fees established by order of the
Board of Selectmen.
B.
Nothing within this article shall prevent the Board of Selectmen
from meeting in executive session pursuant to 1 M.R.S.A. § 405
to discuss matters relating to a potential or proposed contract zoning
application.
C.
The Town Manager or designee will review the application and, upon
being satisfied that the application is sufficiently complete for
review by the Planning Board and the Board of Selectmen, will schedule
a joint meeting of the Planning Board and the Board of Selectmen,
to commence review of the request for contract zoning, at which time
a public hearing shall be given in accordance with the requirements
of 30-A M.R.S.A. § 4352, Subsection 8. Notice of this hearing
shall be posted in the Town Clerk's office at least 14 days prior
to the public hearing and shall be published at applicant's expense
in a newspaper of general circulation within the Town at least two
times. The date of first publication shall be at least seven days
prior to the hearing. The applicant also shall mail by certified mail,
at least 14 days prior to the public hearing, notice of hearing to
the owners of the property to be rezoned and to the owners of all
property within 500 feet of the affected lot(s) or parcel(s). This
notice shall contain the date, time and location of the hearing and
a copy of the proposed conditions and restrictions, with a map indicating
the property to be rezoned. Evidence of the mailing shall be presented
to the Town. If the area to be rezoned is within a source water protection
area, the applicant must also provide notice, by certified mail, at
least 14 days prior to the public hearing to the public drinking water
supplier.
D.
Joint Planning Board/Board of Selectmen meeting.
(1)
The joint Planning Board/Board of Selectmen meeting shall be conducted
so as to include, but not be limited to, the following elements:
(a)
Meeting is presided over by the Chair of the Board of Selectmen;
(b)
Presentation by the applicant;
(c)
Comments from Town staff;
(d)
Discussion among members of the Planning Board and the Board
of Selectmen, which may include questions posed to the applicant and
staff;
(e)
Comments from members of the public. (This shall constitute
the public hearing by the municipal reviewing authority required by
30-A M.R.S.A. § 4352, Subsection 8);
(f)
Response or rebuttal from applicant;
(g)
Comments from members of the Planning Board concerning the land
use implication of the proposed contract zoning amendment; and
(h)
Preliminary Board of Selectmen discussion of the contract zoning
amendment.
(2)
The joint Planning Board/Board of Selectmen meeting may be continued
from time to time by majority vote of all members from both Boards
present and voting. If the meeting is not continued, the discussion
is concluded. The Planning Board members will, at the conclusion of
the discussion, vote as a recommendation to the Board of Selectmen
either to:
E.
Vote of Selectmen.
(1)
At the conclusion of the discussion, the Board of Selectmen shall,
prior to adjourning, or at a subsequent meeting of the Board of Selectmen
to be held within 30 days, vote either to:
(2)
Before taking its vote on putting the contract zoning request on
the Town Warrant, the Board of Selectmen shall determine whether the
proposed contract zoning amendment is consistent with the Town of
Kennebunkport Comprehensive Plan, is compatible with the existing
and permitted uses within the existing zoning district classification
of the property, is in the public interest, and will have beneficial
effects on the Town as a whole which would not result if the property
were developed under the existing zoning district classification.
The Board of Selectmen will state its reasons for its findings and
conclusions on each of those determinations.
F.
The vote of the Board of Selectmen shall constitute direction from
the Board of Selectmen to the applicant as to how to proceed, but
shall not be binding on either the applicant or the Board of Selectmen
to the Town.
G.
Upon adoption by a vote of Town Meeting, the language of the contract
zone shall be incorporated by reference into Article 4, Zone Regulations,
of this chapter. The location of the contract zone shall be indicated
on the Official Zoning Map. In addition, the contract zone and any
ancillary agreements shall be recorded in the York County Registry
of Deeds, and shall be added as an appendix to this chapter.
H.
Subsequent to adoption of the contract zone by a vote of the Town Meeting, and before any permits can be issued, the proposed development must then undergo a site plan review and be approved by the Planning Board under the terms and conditions of the Kennebunkport Land Use Ordinance. If the proposed development is a subdivision, the review and approval will be done under the Chapter 415, Subdivision Regulations, as well as the Land Use Ordinance.
I.
Any rezoning pursuant to this section that affects a Shoreland area,
as identified by this chapter, shall not take effect until approved
by the Commissioner of Environmental Protection as required by Title
38 M.R.S.A. § 438-A, Subsection 3.
J.
Subsequent to all approvals, the applicant and the Town will finalize
a legal contract and/or any ancillary agreements conforming to the
terms of the approved ordinance changes and Planning Board review.
A.
The contract zoning agreement shall include a provision granting
the Town of Kennebunkport the power to enforce all conditions and
restrictions, both through enforcement action pursuant to this chapter
and through legal action for specific performance.
(1)
Conditions and restrictions imposed under the authority of this
article shall relate only to the physical development and operation
of the property and, though not limited to, may include, by way of
example:
(a)
Limitations on the number and types of uses permitted;
(b)
Restrictions on space and bulk standards and on the scale and
density of the development;
(c)
Specifications for the design and layout of buildings and other
improvements;
(d)
Schedules for commencement and completion of construction;
(e)
Preservation of open space and buffers, provisions for public
access to shorelines and protection of natural areas and historic
sites;
(f)
Contributions toward the provision of municipal services required
by the development;
(g)
Performance guarantees securing completion and maintenance of
improvements;
(h)
Provision for enforcement and remedies for breach of any condition
or restriction; and
(i)
Provision for reservation or dedication of land for public purposes.
B.
Effects of the agreement. The conditions and restrictions set forth
in the agreement shall run with the land and bind all future owners
of the land and any other person who claims an interest in the property,
and may be removed only by subsequent action of the voters at a Town
Meeting expressly removing, relieving or discharging one or more of
the specific conditions or restrictions.
C.
Modifications and amendments. The contract zoning agreement may allow
for changes or modifications to the development, but shall specify
the procedure for approval of any such changes or modifications, setting
forth categories of changes or modifications which would require Planning
Board approval only, those which would require Board of Selectmen
approval, and those that would require approval by a vote at Town
Meeting.
D.
Performance guarantees. As part of the contract zoning agreement,
the Board of Selectmen may, but is not obligated to, require a bond,
escrow agreement, irrevocable letter of credit, or other surety in
such amount as is reasonably necessary to ensure compliance with the
conditions or restrictions required by the rezoning and, where necessary
to ensure continued compliance, may require such surety to remain
in effect after occupancy of the rezoned property. Such surety shall
be posted before the agreement is recorded in the Registry of Deeds.
E.
No rights created before final Town meeting vote. The submission
of a request for contract zoning under this Article 13, the payment
of application fees, or the expenditure of funds by the applicant
in presenting such a request shall not create any vested rights in
the application. The conduct of meetings and hearings, the review
of the application, comments by Town officials or staff, preliminary
votes, findings or determinations, preliminary subdivision or site
plan approval, and the availability of contract zoning under this
Article 13 shall not be construed as creating any entitlement to approval
of a request for contract zoning. The decision whether or not to rezone
remains subject to a vote at Town Meeting, exercising its sole and
exclusive judgment as the legislative body of the Town of Kennebunkport
and will not be made until the Town votes approval of the contract
zone.
If the applicant fails to begin construction in a substantial
manner and in accordance with any approved site plan within five years
of the effective date of the Town Meeting approval of the contract
rezoning, the Planning Board may initiate rezoning to the original
zoning classification.
