[HISTORY: Adopted by the Town Council of the Town of Windham
as indicated in article histories. Amendments noted where applicable.]
[Adopted 8-13-2002; amended 12-19-2017 (Ch. 142 of the 1991 Code)]
The purposes of this article are to prevent and minimize surface
water pollution due to phosphorus contained in stormwater runoff from
developed areas; to promote preventive measures to improve surface
runoff water quality and lessen degradation to receiving watersheds
and bodies of water within the Town of Windham; to prevent and control
water pollution caused by soil erosion and sediment transport resulting
from soil disturbance associated with building development; to protect
and promote safe and healthful conditions for humanity; and to protect
fish spawning grounds, aquatic life, and bird and other wildlife habitat
in the Town.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
This article has been prepared in accordance with the provisions
of 38 M.R.S.A. § 435 et seq.
This article applies to all activities which involve filling,
grading, excavation or other similar activities which result in unstabilized
soil conditions, and a permit shall be required and a written soil
erosion and sedimentation control plan.
A.
The plan shall be submitted to the permitting authority for approval
and shall include, where applicable, provisions for:
(1)
Mulching
and revegetation of disturbed soil.
(2)
Temporary
runoff control features such as hay bales, silt fencing or diversion
ditches. Projects within the Limited Residential District, Resource
Protection District, General Development District, Stream Protection
District, and the Highland Lake watershed must incorporate double
temporary erosion control measures at the perimeter of the project.
[Amended 5-25-2021]
(3)
Permanent
stabilization structures such as retaining walls or riprap.
B.
Exempt from the requirements of this article are the following:[1]
C.
The maximum amount of soil area to be disturbed shall be based on
the slope of the disturbed area, as outlined in Table I.
|
Table I
| |
|---|---|
|
Ground Slope Range
|
Amount of Soil Disturbance
(square feet)
|
|
20%
|
500
|
|
10% to 20%
|
1,000
|
|
5% to 10%
|
2,000
|
|
2% to 5%
|
4,000
|
In order to create the least potential for erosion, development
shall be designed to fit with the topography and soils of the site
and control stormwater runoff through the construction phase and strategic
placement of structures, roads and driveways. The natural features
and drainage patterns of the lot should be preserved using careful
site design prior to any clearing or construction. The natural flow
of water should be identified and undisturbed buffers protected to
minimize off-site transport by stormwater. Areas of steep slopes where
high cuts and fills may be required shall be avoided wherever possible,
and natural contours shall be followed as closely as possible. The
intent of this article is to have a zero off-site impact from any
proposed development.
Any exposed ground area shall be temporarily or permanently
stabilized within one week of the time the work was started by use
of riprap, sod, seed, and mulch, or other effective measures. In all
cases, permanent stabilization shall occur within nine months of the
initial date of exposure. In addition:
A.
Where mulch is used, it shall be applied at a rate of a least one
bale per 500 square feet and shall be maintained until a catch of
vegetation is established.
B.
Anchoring the mulch with netting, peg and twine or other suitable
method may be required to maintain the mulch cover (wood chips are
acceptable).
C.
Additional measures shall be taken where necessary in order to avoid
siltation into the water. Such measures may include the use of staked
hay bales and/or silt fences.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
All land uses shall be located on soils in or upon which the
proposed uses or structures can be established or maintained without
causing adverse environmental impacts, including severe erosion, mass
soil movement, improper drainage, and water pollution, whether during
or after construction. Proposed uses requiring subsurface waste disposal,
and commercial or industrial development and other similar intensive
land uses, shall require a soils report based on an on-site investigation
and be prepared by state-certified professionals. Licensed, registered
or certified professionals may include Maine certified soil scientists,
Maine licensed professional engineers, Maine state-certified geologists
and other licensed, registered or certified professionals who have
proof of training and experience in the recognition and evaluation
of soil properties. The report shall be based upon the analyses of
the characteristics of the soil and surrounding land and water areas,
maximum groundwater elevation, presence of ledge, drainage conditions,
and other pertinent data which the evaluator deems appropriate. The
soils report shall include recommendations for a proposed use to counteract
soil limitations where they exist. Soil conditions that are inappropriate
or uncorrectable in an environmentally acceptable manner shall be
sufficient grounds for denial, even though the proposed use is otherwise
permitted in that zone.
Parking areas shall be adequately sized for the proposed use
and shall be designed to prevent stormwater runoff from flowing directly
into a water body and, where feasible, to retain all runoff on-site.
Where runoff cannot be retained, on-site licensed professionals in
this field shall review and certify, in writing, to assure that the
purpose of this article is upheld.
In order to prevent road surface drainage from directly entering
water bodies, roads shall be designed, constructed, and maintained
to empty onto an unscarified buffer strip at least 50 feet plus two
times the average slope in width between the outflow point of the
ditch or culvert and the normal high-water line of a water body, tributary
stream, or upland edge of a wetland. Road surface drainage which is
directed to an unscarified buffer strip shall be diffused or spread
out to promote infiltration of the runoff and to minimize channelized
flow of the drainage through the buffer strip.
Ditch relief (cross drainage) culverts, drainage dips and water
turnouts shall be installed in a manner effective in directing drainage
onto unscarified buffer strips before the flow in the road or ditches
gains sufficient volume or head to erode the road or ditch. To accomplish
this, the following shall apply:
A.
Ditch relief culverts, drainage dips and associated water turnouts
shall be spaced along the road at intervals no greater than indicated
in the following table:
|
Road Grade
|
Spacing
(in feet)
|
|---|---|
|
0% to 2%
|
250
|
|
3% to 5%
|
200 to 135
|
|
6% to 10%
|
100 to 80
|
|
11% to 15%
|
80 to 60
|
|
16% to 20%
|
60 to 45
|
|
21%+
|
40
|
B.
Drainage dips may be used in place of ditch relief culverts only
where the road grade is 10% or less.
C.
On road sections having slopes greater than 8%, ditch relief culverts
shall be placed across the road at approximately a thirty-degree angle
down slope from a line perpendicular to the center line of the road.
D.
On slopes of 8% or greater, surface materials shall be bituminous
pavement, reclaimed asphalt or well compacted gravel (minimum compaction
95%).
E.
Ditch relief culverts shall be sufficiently sized by a licensed engineer
or professional with expertise in hydrology and open channel flows
and properly installed in order to allow for effective functioning,
and their inlet and outlet ends shall be stabilized with appropriate
materials.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Ditches, culverts, bridges, dips, water turnouts and other stormwater
runoff control installations associated with roads shall be maintained
on a regular basis to assure effective functioning. When maintenance
and/or repair is performed, such performance must be in accordance
with best management practice.
A.
Duration of plan for temporary measures. Erosion and sedimentation
control measures shall apply to all aspects of the proposed project
involving land disturbance and shall be in operation during all stages
of the activity. The amount of exposed soil at every phase of construction
shall be minimized to reduce the potential for erosion.
B.
Duration of plan for permanent measures. Permanent soil erosion and
sedimentation control measures, such as, but not limited to, level-lipped
spreaders, riprap installation, vegetated buffers, drainage dips and
water turnouts, shall be protected with a maintenance agreement.
A.
Construction. All construction and development shall minimize stormwater
runoff from the site in excess of the natural predevelopment conditions.
Where possible, existing natural runoff control features, such as
berms, swales, terraces and wooded areas, shall be retained in order
to reduce runoff and encourage infiltration of stormwater. Areas of
connected impervious surfaces should be minimized to take full advantage
of these features. Where runoff cannot be retained on-site, it shall
be reviewed by licensed professionals in this field.
(1)
Buffers (also know as "vegetative filter" or "filter strips"). Within
the required setback of the corresponding zone, there shall be a vegetative
buffer. Excluded from this requirement are all of the commercial zones.
This buffer shall consist of landscaping, to include but not be limited
to grass, trees, shrubs, and wood chips. Within this buffer, access
to the property can be made for essential services and driveway access.
(2)
Drainageways. Natural and man-made drainageways and drainage outlets
shall be protected from erosion from water flowing through them. Drainageways
shall be designed and constructed in order to carry water from a twenty-five-year
storm or greater, and shall be stabilized with vegetation or lined
with riprap.
B.
Maintenance. Stormwater runoff control systems shall be maintained
as necessary to ensure proper functioning.
C.
Plan required. When required by this article, the Code Enforcement
Officer or the Planning Board, stormwater management plans shall be
designed utilizing the most recent approved version of the Cumberland
County Soil and Water Conservation District's and Maine DEP's Maine
Erosion and Sediment Control Handbook for Construction: Best Management
Practices and the Maine DEP's Stormwater Management for Maine: Best
Management Practices. Completed plans, when required above, may be
reviewed by the Cumberland County Soil and Water Conservation District
or other qualified professional firm, agency, or organization..
D.
General. All activities are expected to employ appropriate stormwater
management practices regardless of the zone or district they are located
in.
E.
Additional requirements for projects in the Limited Residential District,
Resource Protection District, General Development District, Stream
Protection District, and the Highland Lake watershed that are not
subject to subdivision or site plan review.
[Amended 5-25-2021]
(1)
The Code Enforcement Officer shall issue a stormwater and phosphorus
management control permit if the applicant meets or exceeds 50 points
based on the following point schedule. The applicant shall submit
a sketch plan of the lot showing how each of the following point credits
or deductions applies to the proposed development. The sketch plan
shall show approximate locations and dimensions of each stormwater
BMP, or other measure.
(a)
Credits.
[1]
Ten points for correcting an existing erosion problem on the
project site, as approved by the Code Enforcement Officer.
[2]
Twenty points for an impervious area of less than 2,000 square
feet.
[3]
Ten points for a clearing limitation of less than 20% of the
lot, or 15,000 square feet, whichever is less; or 20 points for a
clearing limitation of less than 15% of the lot, or 10,000 square
feet, whichever is less.
[4]
Fifteen points for the installation of rock-lined drip edges
or other infiltration system to serve no less than 50% of the new
impervious area on the site. Test pit information certified by a licensed
site evaluator, certified soil scientists (CSS) or certified geologist
(CG) must show that three feet of separation exists between the seasonal
high groundwater table and the bottom of any proposed infiltration
structure. Infiltration systems must be sized to accommodate one inch
of runoff from contributing impervious areas within the structure
(this will include an assumption of 30% void space in washed stone)
and designed in accordance with the details following approved engineering
practices and techniques as published by the Maine Department of Environmental
Protection's Best Management Practices (BMPs).
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
[5]
Twenty-five points for the installation of rock-lined drip edges
or other infiltration system to serve no less than 75% of the new
impervious building area on the site. Test pit information certified
by a licensed site evaluator, certified soil scientist (CSS) or certified
geologist (CG) must show that three feet of separation exists between
the seasonal high-groundwater table and the bottom of any proposed
infiltration structure. Soil filtration or infiltration systems must
be sized to accommodate one inch of runoff from contributing impervious
areas within the structure (this will include an assumption of 30%
void space in washed stone) and designed in accordance with the details
following approved engineering practices and techniques as published
by the Maine Department of Environmental Best Management Practices
(BMPs).
[6]
Twenty-five points for the installation of rain gardens or a
soil filtration system designed to serve no less than 50% of the total
new impervious area on the site. Rain gardens and soil filter systems
shall be sized to accommodate one inch of runoff from contributing
impervious areas, and designed in accordance with the details following
approved engineering practices and techniques as published by the
Maine Department of Environmental Best Management Practices (BMPs).
[7]
Forty points for the installation of rain gardens or a soil
filtration system designed to serve no less than 75% of the new impervious
area on the site. Rain gardens and soil filter systems shall be sized
to accommodate one inch of runoff from contributing impervious areas,
and designed in accordance with the details following approved engineering
practices and techniques as published by the Maine Department of Environmental
Best Management Practices (BMPs).
[8]
Thirty points for a fifty-foot-wide (no greater than 15% slope)
natural wooded buffer strip, or a seventy-five-foot-wide, man-made,
vegetated buffer (no greater than 8% slope) strip located down gradient
and adjacent to the developed area, provided there is no channelization
within the buffer.
[9]
Thirty-five points for a seventy-five-foot-wide (no greater
than 15% slope) natural wooded buffer strip, or a 100-foot-wide, man-made,
vegetated buffer (no greater than 15% slope) strip located down gradient
and adjacent to the developed area, provided there is no channelization
within the buffer.
[10]
Forty points for a 100-foot-wide (no greater than
15% slope) natural wooded buffer strip, or a 150-foot-wide, man-made,
vegetated buffer (no greater than 15% slope) strip located down gradient
and adjacent to the developed area, provided there is no channelization
within the buffer.
(b)
Deductions.
[1]
Five points deducted for a new structure footprint exceeding
2,000 square feet, and an additional five points deducted for each
additional 500 square feet of structure footprint.
[2]
Five points deducted for clearing more than 50% of the lot.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(2)
Alternate means of calculation. In those cases where the Code Enforcement
Officer determines that use of the points system is inadequate to
achieve the purposes of stormwater and phosphorous management control
or is otherwise inappropriate because of particular circumstances
of the property, the Code Enforcement Officer may assess conformance
with this standard based on the following:
(a)
A licensed State of Maine professional engineer or soil evaluator
or certified professional in soil and erosion control certifies that
the proposed treatment measure matches or exceeds the performance
of the treatment measure under the specific point system allowance.
It shall be the engineer's responsibility to provide evidence that
the measure has been approved by the Maine Department of Environmental
Protection or provide other certification into comparable treatment
by professional testing results.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Permits granted under this article may be made subject to additional
conditions or restrictions to ensure conformity with the purposes
and provisions of this article. Each application for a building permit
shall be accompanied by the building permit fee set by the Town. Each
application to the Code Enforcement Officer for a permit to erect
a new building or structure or to enlarge or to move an existing one
shall be accompanied by a site plan showing the measurements of the
lot and of all buildings, driveways, yards and parking spaces. Drainageways,
storm drains, streams existing and proposed, and the intended use
of land and buildings shall be indicated clearly. Additional measures
may be required in order to comply with this article, such as drainageways
and easements, soil erosion control measures, and all features to
be installed for compliance with this article. Any other application
for a building permit and any application for a permit shall be accompanied
by a description of the proposed use and existing use of the land
and buildings and such further details as the Code Enforcement Officer
may require for a clear understanding of the case.
A.
Board of Appeals. See Chapter 120, Land Use, Article 11, Board of Appeals.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
(1)
The Board shall consist of five members. In addition, said Board
shall have one alternate member, who shall have all the rights of
a full member, except that said alternate may vote only in the absence
of a full member.
(2)
The term of office of members shall be three years, except that initial
appointments of members shall be made for one year, two years and
three years, respectively.
(3)
A municipal official or his spouse shall not be a member of the Board.
(4)
When there is a vacancy, the municipal officers shall appoint a person
to serve for the unexpired term.
(5)
The Board shall elect a Chair and Vice Chair from its own membership.
(6)
Any question of whether a particular issue involves a conflict of
interest sufficient to disqualify a member from voting thereon shall
be decided by a majority vote of the members, except the member who
is being challenged.
(7)
A member of the Board may be dismissed for cause by the municipal
officers before the expiration of his term.
(8)
A Secretary to the Board shall be appointed by the appropriate Town
officials.
B.
Jurisdiction and authority.
(1)
In addition to the power granted by 30-A M.R.S.A. § 2691,
the Board of Appeals shall have the following jurisdiction and authority:
(a)
Subject to the provisions of this article, to hear and decide appeals
from orders, decisions, determinations or interpretations made by
the Code Enforcement Officer.
(b)
Subject to the provisions of this article, to hear and grant or deny
application for variances from the terms of this article. A variance
can only be granted where undue hardship is proven. "Undue hardship"
is defined to mean:
[1]
That the land in question cannot yield a reasonable return unless
the variance is granted;
[2]
That the need for a variance is because of unique circumstances
of the property (such as location of existing structures, topographical
features, etc.) and not to the general conditions of the neighborhood;
[3]
That the granting of a variance will not change the essential
character of the locality; and
[4]
That the hardship is not the result of action taken by the applicant
or a prior owner.
(2)
Permitted variances run with the land and thus pass from one owner
to the next.
(3)
Attention be given to the following wherever applicable:
C.
In granting appeals under this section, the Board of Appeals may
impose such conditions as it deems necessary in furtherance of the
intent and purpose of this article.
A.
The Board of Appeals is established according to the Chapter 120, Land Use, and shall operate according to the rules and procedures set forth therein unless otherwise modified by this article.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
B.
Minutes. The Secretary shall record a permanent record of all Board
meetings. All meeting minutes and all correspondence of the Board
shall be maintained in the Town office. The transcript of testimony,
if any, and exhibits, together with all papers and requests filed
in the proceeding, shall constitute the record. All decisions shall
become a part of the record and shall include a statement of findings
and conclusions, as well as the reasons or basis therefor, upon all
the material issues of fact, law or discretion presented and the appropriate
order, relief or denial thereof. Notice of any decisions shall be
mailed or hand-delivered to the petitioner, his representative or
his agent and the Department of Environmental Protection.
C.
Public hearing. For all appeals, the Board shall hold a public hearing
as prescribed herein. At least seven days before the hearing, the
Code Enforcement Officer or his assistant shall notify by mail the
owners of properties abutting the property for which the appeal or
application is made. Failure to receive this notice shall not invalidate
the proceedings herein prescribed. The owners of properties shall
be considered to be the parties listed by the Assessor as those against
whom those taxes are assessed. Notice of the hearing shall also be
placed at least twice in a newspaper of general circulation at least
seven days prior to the hearing. The Code Enforcement Officer or his
assistant may attend all hearings and present to the Board all plans,
photographs or other factual materials which are appropriate to an
understanding of the case.
D.
Appeals. Any person and any municipal official or board of officials
aggrieved by a decision of the Code Enforcement Officer or who wishes
to request a variance from this article or who wishes a use permit
may file an application with the Board of Appeals. An appeal of a
decision made by the Code Enforcement Officer must be filed within
30 days of the date of the decision. Application materials submitted
to the Board must include a completed application form, including
a location and site plan if appropriate, and a fee set by the Town
Council, which must be submitted to the Code Enforcement Officer at
the time the appeal request is submitted. All application materials
must be submitted for the Board's review at least 14 days prior to
the Board meeting at which the applicant wishes to be heard. All meetings
of the Board are public hearings. At the public hearing, the applicant
or his representative must appear before the Board to present the
proposal and to answer questions. Other interested parties, such as
adjacent property owners, will also be permitted to speak for or against
the appeal. Written notice of the decision of the Board shall be sent
to the appellant within seven days of the date of the decision. Any
aggrieved party may appeal from the decision of the Board to the Superior
Court within 45 days of the decision date.
E.
Decision. After a decision has been made by the Board of Appeals,
a new appeal of similar import shall not be entertained by the Board
until one year shall have elapsed from the date of said decision,
except that the Board may entertain a new appeal if the Board believes
that, owing to a mistake of law or misunderstanding of fact, an injustice
was done or it finds that a change has taken place in some essential
aspect of the case sufficient to warrant a reconsideration of the
appeal.
F.
Reconsideration. In accordance with 30-A M.R.S.A. § 2691,
Subsection 3F, the Board may reconsider any decision reached under
this section within 45 days of its prior decision. A vote to reconsider
and the action taken on that reconsideration must occur and be completed
within 45 days of the date of the vote on the original decision. The
Board may conduct additional hearings and receive additional evidence
and testimony as provided in this section.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
G.
Expiration date. The right of any variance from the terms of this
article granted by the Board of Appeals shall expire if the work or
change permitted under the variance is not begun within six months
or substantially completed within one year of the date of the vote
by the Board.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.
Nuisances. Any violation of this article shall be deemed to be a
nuisance.
B.
Code Enforcement Officer.
(1)
It shall be the duty of the Code Enforcement Officer to enforce the
provisions of this article. If the Code Enforcement Officer shall
find that any provisions of this article is being violated, he or
she shall notify, in writing, the person responsible for such violation,
indicating the nature of the violation and ordering the action necessary
to correct it, including discontinuance of illegal use of land, buildings
or structures, or work being done, removal of illegal buildings or
structures, and abatement of nuisance conditions. A copy of such notices
shall be maintained as a permanent record.
(2)
The Code Enforcement Officer shall conduct on-site inspections to
ensure compliance with all applicable laws and conditions attached
to permit approvals. The Code Enforcement Officer shall also investigate
all complaints of alleged violations of this article.
(3)
The Code Enforcement Officer shall keep a complete record of all
essential transactions of the office, including applications submitted,
permits granted or denied, variances granted or denied, revocation
actions, revocation of permits, appeals, court actions, violations
investigated, violations found, and fees collected.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
C.
Legal actions. When the above action does not result in the correction
or abatement of the violation or nuisance condition, the municipal
officers, upon notice from the Code Enforcement Officer, are hereby
directed to institute any and all actions and proceedings, either
legal or equitable, including seeking injunctions of violations and
the imposition of fines, that may be appropriate or necessary to enforce
the provisions of this article in the name of the municipality. The
municipal officers, or their authorized agent, are hereby authorized
to enter into administrative consent agreements for the purpose of
eliminating violations of this article and recovering fines without
court action. Such agreements shall not allow an illegal structure
or use to continue unless:
(1)
There is clear and convincing evidence that the illegal structure
or use was constructed or conducted as a direct result of erroneous
advice given by an authorized municipal official and there is no evidence
that the owner acted in bad faith; or
(2)
The removal of the structure or use will result in a threat or hazard
to public health and safety or will result in substantial environmental
damage.
D.
Fines. Any person, including but not limited to a landowner, a landowner's
agent or a contractor, who orders or conducts any activity in violation
of this article shall be penalized in accordance with 30-A M.R.S.A.
§ 4452. Current penalties include fines of not less than
$100 nor more than $2,500 per violation for each day that the violation
continues.
[Adopted 6-9-2009 (Ch.
144 of the 1991 Code)]
The purpose of this article is to provide for the health, safety,
and general welfare of the citizens of the Town of Windham, through
monitoring and enforcement of compliance with post-construction stormwater
management plans in order to comply with minimum control measures
requirements of the federal Clean Water Act,[1] of federal regulations and of Maine's small municipal
separate storm sewer systems general permit.
[1]
Editor's Note: See 33 U.S.C. § 1251 et seq.
This article seeks to ensure that post-construction stormwater
management plans are followed and stormwater management facilities
are properly maintained and pose no threat to public safety
For the purposes of this article, the terms listed below are
defined as follows:
A person with requisite right, title or interest or an agent
for such person who has filed an application for new development or
redevelopment that requires a post-construction stormwater management
plan under this article.
Schedules of activities, prohibitions of practices, maintenance
procedures, and other management practices to prevent or reduce the
pollution of waters of the State. BMPs also include treatment requirements,
operating procedures, and practices to control plant site runoff,
spillage or leaks, sludge or waste disposal, or drainage from raw
material storage.
The federal Water Pollution Control Act (33 U.S.C. § 1251
et seq., also known as the "Clean Water Act"), and any subsequent
amendments thereto.
Construction activity, including one acre or more of disturbed
area, or activity with less than one acre of total land area that
is part of a subdivision, if the subdivision will ultimately disturb
equal to or greater than one acre.
Any spilling, leaking, pumping, pouring, emptying, dumping,
disposing or other addition of pollutants to waters of the state.
"Direct discharge" or "point source" means any discernible, confined
and discrete conveyance, including, but not limited to, any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation or vessel or
other floating craft from which pollutants are or may be discharged.
Clearing, grading and excavation. Mere cutting of trees without
grubbing, stump removal, disturbance or exposure of soil is not considered
disturbed area. Disturbed area does not include routine maintenance
but does include redevelopment. "Routine maintenance" is maintenance
performed to maintain the original line and grade, hydraulic capacity,
and original purpose of land or improvements thereon.
The Code Enforcement Officer(s) authorized by the municipality
to administer and enforce this article.
The municipal official or body that has jurisdiction over
the land use approval or permit required for a new development or
redevelopment.
Conveyances for stormwater, including, but not limited to,
roads with drainage systems, municipal streets, catch basins, curbs,
gutters, ditches, human-made channels or storm drains (other than
publicly owned treatment works and combined sewers) owned or operated
by any municipality, sewer or sewage district, fire district, state
agency or federal agency or other public entity that discharges directly
to surface waters of the state.
The Town of Windham.
A permit issued by the U.S. Environmental Protection Agency
(EPA) or by the Maine Department of Environmental Protection (DEP)
that authorizes the discharge of pollutants to waters of the United
States, whether the permit is applicable on an individual, group,
or general area-wide basis.
Any construction activity on unimproved premises.
Any individual, firm, corporation, municipality, quasi-municipal
corporation, state agency or federal agency or other legal entity.
Dredged spoil, solid waste, junk, incinerator residue, sewage,
refuse, effluent, garbage, sewage sludge, munitions, chemicals, biological
or radiological materials, oil, petroleum products or by-products,
heat, wrecked or discarded equipment, rock, sand, dirt and industrial,
municipal, domestic, commercial or agricultural wastes of any kind.
BMPs and stormwater management facilities employed by a new
development or redevelopment to meet the stormwater standards of the
municipality's subdivision, site plan, or other zoning, planning or
other land use ordinances and approved by the municipal permitting
authority.
Any building, lot, parcel of land, or portion of land, whether
improved or unimproved, including adjacent sidewalks and parking strips,
located within the urbanized area of the municipality from which discharges
into the storm drainage system are or may be created, initiated, originated
or maintained.
A person who conducts post-construction stormwater management
facilities inspections for compensation and who has received the appropriate
training for such inspections from DEP.
Construction activity on premises already improved with buildings,
structures, or activities or uses, but does not include such activities
as exterior remodeling.
Any small MS4 regulated by the State of Maine general permit
for the discharge of stormwater from small municipal separate storm
sewer systems (general permit), including all those located partially
or entirely within an urbanized area (UA) and those additional small
MS4s located outside a UA that as of the issuance of the general permit
have been designated by the DEP as regulated small MS4s.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
Any MS4 that is not already covered by the Phase 1 MS4 stormwater
program, including municipally owned or operated storm sewer systems;
state or federally owned systems, such as colleges, universities,
prisons, Maine Department of Transportation and Maine Turnpike Authority
road systems and facilities; and military bases and facilities.
The municipality's regulated small MS4.
Any stormwater runoff, snowmelt runoff, and surface runoff
and drainage; "stormwater" has the same meaning as "storm water."
Any parking areas, catch basins, drainage swales, detention
basins and ponds, pipes and related structures that are part of the
post-construction stormwater management plan for a new development
or redevelopment.
The areas of the State of Maine so defined by the latest
decennial census by the U.S. Bureau of the Census.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
A.
In general. This article applies to all new development and redevelopment
within the urbanized area that discharges stormwater to the municipality's
MS4 and to associated stormwater management facilities.
B.
Exception. This article does not apply to new development or redevelopment
on a lot, tract or parcel disturbing less than one acre.
[Amended 5-23-2023 by Order No. 23-092]
A.
General requirement. Notwithstanding any article provision to the contrary, and except as provided in § 201-19B above, no applicant for a building permit, subdivision approval, site plan approval or other zoning, planning or other land use approval for new development or redevelopment to which this article is applicable shall receive such permit or approval for that new development or redevelopment unless the applicant also receives approval under the municipality's subdivision, site plan or other zoning, planning or other land use ordinances for its post-construction stormwater management plan and stormwater management facilities for that new development or redevelopment, even if the municipality's subdivision, site plan or other zoning, planning or other land use ordinances would not otherwise apply to that new development or redevelopment.
B.
Notice of BMP discharge to municipality's MS4. At the time of application
for a building permit, subdivision approval, site plan approval or
other zoning, planning or other land use approval for new development
or redevelopment to which this article is applicable, the applicant
shall notify the municipal permitting authority if its post-construction
stormwater management plan includes any BMP(s) that will discharge
to the municipality's MS4 and shall include in this notification a
listing of which BMP(s) will so discharge.
A.
General requirements. Any person owning, operating, leasing or having
control over stormwater management facilities required by a post-construction
stormwater management plan approved under the municipality's subdivision,
site plan or other zoning, planning or other land use ordinances shall
demonstrate compliance with that plan as follows:
(1)
A qualified third-party inspector hired by that person shall, at
least annually, inspect the stormwater management facilities, including
but not limited to any parking areas, catch basins, drainage swales,
detention basins and ponds, pipes and related structures, in accordance
with all municipal and state inspection, cleaning and maintenance
requirements of the approved post-construction stormwater management
plan.
(2)
If the stormwater management facilities require maintenance to function
as intended by the approved post-construction stormwater management
plan, that person shall take corrective action(s) to address the deficiency
or deficiencies.
[Amended 5-23-2023 by Order No. 23-092]
(a)
Deficiencies will be corrected within 60 days of notice by the Town
and a record of the correction action taken shall be provided to the
Town’s Enforcement Authority within the same sixty-day period.
(b)
If it is not possible to correct the deficiency within 60 days, the
property owner will coordinate with the Town to establish an expeditious
schedule to correct the deficiency and will provide a record of the
corrective actions taken.
(3)
A qualified third-party inspector hired by that person, shall, on or by June 1 of each year, provide a completed and signed certification to the enforcement authority in a form identical to that attached as Appendix 1 to this article, certifying that the person has inspected the stormwater management facilities and that they are adequately maintained and functioning as intended by approved post-construction stormwater management plan, or that they require maintenance or repair, describing any required maintenance and any deficiencies found during inspection of the stormwater management facilities, and, if the stormwater management facilities require maintenance or repair of deficiencies in order to function as intended by approved post-construction stormwater management plan, the person shall provide a record of the required maintenance or deficiency and corrective action(s) taken based on the timeline outlined in Subsection A(2)(a) and (b) above.
[Amended 5-23-2023 by Order No. 23-092]
B.
Right of entry. In order to determine compliance with this article
and with the post-construction stormwater management plan, the enforcement
authority may enter upon property at reasonable hours with the consent
of the owner, occupant or agent to inspect the stormwater management
facilities.
C.
Annual report. Beginning July 1, 2009, and each year thereafter,
the municipality shall include the following in its annual report
to the Maine Department of Environmental Protection:
(1)
The cumulative number of sites that have stormwater management facilities
discharging into their MS4;
(2)
A summary of the number of sites that have stormwater management
facilities discharging into their MS4 that were reported to the municipality;
(3)
The number of sites with documented functioning stormwater management
facilities; and
(4)
The number of sites that required routine maintenance or remedial
action to ensure that stormwater management facilities are functioning
as intended.
D.
Inspections. The municipality shall annually inspect a percentage
of stormwater management facilities located in the direct watershed
of a lake most at risk from new development or in watersheds of an
urban impaired stream. If the owner or operator of a stormwater management
facility hires a qualified third-party inspector, the permittee will
have no inspection requirements. If the owner or operator of a stormwater
management facility does a self inspection, the municipality is required
to conduct the following inspection schedule:
(1)
One to 10 post-construction sites: inspect at least one site, or
40% (whichever is greater).
(2)
Eleven to 30 post-construction sites: inspect at least four sites,
or 30% (whichever is greater).
(3)
Thirty-one to 60 post-construction sites: inspect at least nine sites,
or 25% (whichever is greater).
(4)
Sixty-one to 100 post-construction sites: inspect at least 15 sites,
or 20% (whichever is greater).
(5)
One hundred one to 160 post-construction sites: inspect at least
20 sites, or 17% (whichever is greater).
(6)
Over 160 post-construction sites: inspect at least 27 sites, or 11%
(whichever is greater).
It shall be unlawful for any person to violate any provision
of or to fail to comply with any of the requirements of this article
or of the post-construction stormwater management plan. Whenever the
enforcement authority believes that a person has violated this article
or the post-construction stormwater management plan, the enforcement
authority may enforce this article in accordance with 30-A M.R.S.A.
§ 4452.
A.
Notice of violation.
(1)
Whenever the enforcement authority believes that a person has violated
this article or the post-construction stormwater management plan,
the enforcement authority may order compliance with this article or
with the post-construction stormwater management plan by written notice
of violation to that person, indicating the nature of the violation
and ordering the action necessary to correct it, including, without
limitation:
(a)
The abatement of violations and the cessation of practices or
operations in violation of this article or of the post-construction
stormwater management plan;
(b)
At the person's expense, compliance with BMPs required as a
condition of approval of the new development or redevelopment, the
repair of stormwater management facilities and/or the restoration
of any affected property; and/or
(c)
The payment of fines, of the municipality's remediation costs
and of the municipality's reasonable administrative costs and attorneys'
fees and costs.
(2)
If abatement of a violation, compliance with BMPs, repair of stormwater
management facilities and/or restoration of affected property is required,
the notice shall set forth a deadline within which such abatement,
compliance, repair and/or restoration must be completed.
B.
Penalties/fines/injunctive relief. Any person who violates this article
or the post-construction stormwater management plan shall be subject
to fines, penalties and orders for injunctive relief and shall be
responsible for the municipality's attorneys' fees and costs, all
in accordance with 30-A M.R.S.A. § 4452. Each day such violation
continues shall constitute a separate violation. Moreover, any person
who violates this article or the post-construction stormwater management
plan also shall be responsible for any and all fines, penalties, damages
and costs, including, but not limited to, attorneys' fees and costs,
incurred by the municipality for violation of federal and state environmental
laws and regulations caused by or related to that person's violation
of this article or of the post-construction stormwater management
plan; this responsibility shall be in addition to any penalties, fines
or injunctive relief imposed under this section.
C.
Consent agreement. The enforcement authority may, with the approval
of the municipal officers, enter into a written consent agreement
with the violator to address timely abatement of the violation(s)
of this article or of the post-construction stormwater management
plan for the purposes of eliminating violations of this article or
of the post-construction stormwater management plan and of recovering
fines, costs and fees without court action.
D.
Appeal of notice of violation. Any person receiving a notice of violation
or suspension notice may appeal the determination of the enforcement
authority to the Board of Appeals. The notice of appeal must be received
within 30 days of the date of receipt of the notice of violation.
The Board of Appeals shall hold a de novo hearing on the appeal within
30 days from the date of receipt of the notice of appeal. The Board
of Appeals may affirm, reverse or modify the decision of the enforcement
authority. A party aggrieved by the decision of the Board of Appeals
may appeal that decision to the Maine Superior Court within 45 days
of the date of the Board of Appeals decision pursuant to Rule 80B
of the Maine Rules of Civil Procedure.
E.
Enforcement measures. If the violation has not been corrected pursuant
to the requirements set forth in the notice of violation or, in the
event of an appeal to the Board of Appeals, within 45 days of a decision
of the Board of Appeals affirming the enforcement authority's decision,
then the enforcement authority may recommend to the municipal officers
that the municipality's attorney file an enforcement action in a Maine
court of competent jurisdiction under Rule 80K of the Maine Rules
of Civil Procedure.
The provisions of this article are hereby declared to be severable.
If any provision, clause, sentence, or paragraph of this article or
the application thereof to any person, establishment, or circumstances
shall be held invalid, such invalidity shall not affect the other
provisions, clauses, sentences, or paragraphs or application of this
article.
The Town of Windham enacts this "Post-Construction Stormwater
Management Control Ordinance" (the "Ordinance") pursuant to 30-A M.R.S.A.
§ 3001 (Municipal Home Rule Ordinance Authority), 38 M.R.S.A.
§ 413 (the "Wastewater Discharge Law"), 33 U.S.C. § 1251
et seq. (the "Clean Water Act"), and 40 CFR Part 122[(U.S. Environmental
Protection Agency's regulations governing the National Pollutant Discharge
Elimination System ("NPDES")]. The Maine Department of Environmental
Protection, through its promulgation of the "General Permit for the
Discharge of Stormwater from Small Municipal Separate Storm Sewer
Systems," has listed the Town of Windham as having a regulated small
municipal separate storm sewer system ("small MS4"); under this general
permit, listing as a regulated small MS4 necessitates enactment of
this article as part of the municipality's stormwater management program
in order to satisfy the minimum control measures required by Part
IV D 5 ("Post-construction stormwater management in new development
and redevelopment").
