[Adopted 1-24-2022 by Ord. No. 22-01[1]. Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. 16.2,
Definitions, as amended.
This chapter describes general administration and enforcement
of the requirements of this title.
A.
Appointment and composition.
(2)
The Board consists of seven members, who are Kittery residents, serving
staggered terms of office of three years.
(3)
Members of the Board are appointed by the Town Council.
(4)
A municipal officer, or spouse thereof, may not serve as a member
of the Board.
(5)
Members serve until their successors are appointed and qualified.
(6)
The number of consecutive terms by any Board member is limited by § 8.01(3) of the Town Charter.
(7)
A member of the Board may be dismissed for cause by the Town Council
before the expiration of such member's term after notice and hearing.
(8)
Vacancies are filled by Town Council appointment for the unexpired
term.
B.
Powers and duties.
(1)
The Board shall elect annually a Chairperson and Vice Chairperson
from its membership and a Secretary. It is the duty of the Secretary
to keep and maintain a permanent record of all meetings of the Board
and show the vote of each member upon each question.
(2)
A quorum consists of four or more members. All decisions must be
made by a minimum of four like votes, except on procedural matters.
(3)
The Board shall adopt bylaws to govern routine proceedings and set
agendas and hold meetings to perform duties.
(4)
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 present, excluding the
member who is being challenged, who may not vote on the issue.
(5)
All records of the Board are public records, except as excluded by
statute.
(6)
The Board shall:
(a)
Perform duties as provided by law.
(b)
Hear and decide on required development plans, including special
exception use requests, that require Planning Board review, using
the development application and review procedures and criteria and
other provisions in this title.
(c)
Prepare and recommend for Council adoption a Comprehensive Plan
and initiate plan implementation by zoning ordinance, other land use
and development regulations, and other means; and monitor and report
on Plan implementation progress.
A.
Appointment and composition.
(2)
The Board consists of seven members, who are Kittery residents, serving
staggered terms of office of three years.
(3)
Members of the Board are appointed by the Town Council.
(4)
A municipal officer, or spouse thereof, may not serve as a member
of the Board.
(5)
Members serve until their successors are appointed and qualified.
(6)
The number of consecutive terms by any Board member is limited by § 8.01(3) of the Town Charter.
(7)
A member of the Board may be dismissed for cause by the Town Council
before the expiration of such member's term, after notice and hearing.
(8)
Vacancies are filled by Town Council appointment for the unexpired
term.
B.
Powers and duties.
(1)
The Board shall elect annually a Chairperson and Vice Chairperson
from its membership and a Secretary. It is the duty of the Secretary
to keep and maintain a permanent record of all meetings of the Board
and show the vote of each member upon each question.
(2)
A quorum consists of four or more members. All decisions must be
made by a minimum of four like votes, except on procedural matters.
(3)
The Board shall adopt bylaws to govern routine proceedings and set
agendas and hold meetings to perform duties.
(4)
Any question of whether a particular issue involves a conflict of
interest sufficient to disqualify a member from voting thereon is
decided by a majority vote of the members present, except the member
who is being challenged, who may not vote on the issue.
(5)
All records of the Board are public records, except as excluded under
1 M.R.S.A. § 402(3) and (3-A).
(6)
The Board is to:
(a)
Perform duties as provided by law.
(b)
Administrative decision appeal. Hear and decide on an administrative
decision appeal where it is alleged by an aggrieved party that there
is an error in any order, requirement, decision or determination made
by the Code Enforcement Officer in review of an action on a permit
application under this title.
(c)
Variance request. Hear and decide on a variance request within
the limitations set forth in this title and 30-A M.R.S.A. § 4353(4).
(d)
Miscellaneous variation request. To hear and decide on a miscellaneous
variation request to permit variation in:
A.
Appointment and composition.
(1)
The Port Authority is established by Maine Private and Special Law
1961, Chapter 163, as amended, and Town Charter, Article IX.
(2)
The Port Authority consists of seven members, who are Kittery residents,
serving staggered terms of office of five years.
(3)
Members of the Port Authority are appointed by the Town Council.
(4)
A municipal officer, or spouse thereof, may not serve as a member
of the Port Authority.
(5)
Members serve until their successors are appointed and qualified.
(6)
No member shall serve more than two consecutive terms of five years.
Any member who has served two consecutive terms of five years is ineligible
to serve on the Board for a period of one year. Computation of term
limits commences with the first term of five years following the effective
date of this provision. Computation of term limits does not include
service prior to the effective date of this provision nor to terms
of fewer than five years after the effective date.
(7)
A member of the Port Authority may be dismissed for cause by the
Town Council before the expiration of such member's term after notice
and hearing.
(8)
Vacancies are filled by Town Council appointment for the unexpired
term.
B.
Powers and duties.
(1)
The Board shall elect annually a Chairperson and Vice Chairperson
from its membership and a Secretary. It is the duty of the Secretary
to keep and maintain a permanent record of all meetings of the Port
Authority and show the vote of each member upon each question.
(2)
The Port Authority is to:
(a)
Perform duties as provided by law.
(b)
Where Town Council action is required under 38 M.R.S.A. § 1021
et seq., Wharves and Fish Weirs, the Council may appoint the Port
Authority as its designee for on-site inspection and to issue a written
report on the same to the Council.
(c)
Water area development powers and duties.
[1]
The Port Authority is to provide advice to the Planning Board
on development applications dealing with piers, wharfs, marinas and
other uses projecting into water bodies.
[2]
Where Port Authority review is required, such review must be
completed prior to Planning Board review.
[3]
Port Authority review and approval authority under this title
applies to structures extending into a water body beyond the mean
high-water line or the upland edge of a coastal wetland and extends
from the water body to the mean high-water line or upland edge of
a coastal wetland.
[4]
The Port Authority may approve, for convenience of access to
a pier from land upland of the mean high-water line or the edge of
a coastal wetland, an extension of the pier that is the shortest practicable
extension at its nominal height and width. All other structures upland
of, and abutting or built on or over, a structure extending into a
water body beyond the mean high-water line or the edge of a coastal
wetland require Planning Board approval. Only one pier, ramp and float
structure is permitted on any noncommercial or nonindustrial lot.
[5]
Where the Planning Board is the lead reviewing authority, a
shorefront development plan must be submitted for Planning Board approval.
A Port Authority ruling on the shorefront development plan's conformance
with Port Authority rules and regulations and navigational aspects
of any proposed pier, ramp and float system or principal marine structure
is required prior to Planning Board approval.
A.
Responsibilities. The Town Planner is responsible for the overall
planning in accordance with applicable federal, state and municipal
law, codes and ordinances. The Town Planner is responsible for all
municipal planning functions, including the administration of this
title, and the implementation of the Kittery Growth Management Program.
These functions include but are not limited to land and water use
planning; providing technical assistance and staff support to the
Planning Board; researching, developing, coordinating and administering
land and water use and planning related projects; maintaining accurate
planning records; and interacting with members of the public involved
with the planning process.
B.
Plan submission.
(1)
All plan submission requirements for an application for land/water
area use and development are to be submitted to the Town Planner.
(2)
The Town Planner must review all plan submission contents to ascertain
that they meet the requirements of this title before they are delivered
for review or consideration by the Planning Board.
(3)
The Town Planner, upon confirmation of a plan's submission contents
sufficiency, is to place the application on the Planning Board's agenda
for a scheduling hearing. Note: Town Planner confirmation does not
constitute substantive review under Maine law, which commences at
the first public hearing for an application held by the Planning Board.
C.
Staff coordination. The Town Planner is to coordinate with appropriate
municipal department heads to ensure they have received required plan
information for the performance of their duties under this title.
D.
Reporting. The Planner must report the status of all active plans
(received, pending, under review, and approved not built - past expiration
date) to the Board annually.
A.
Responsibility. It is the duty of the Code Enforcement Officer or
other person duly authorized by the Town to enforce the provisions
of this title.
B.
Permits. The CEO is to issue required permits for building, occupancy,
plumbing, electrical or such other as may be required.
C.
Appeal/request initiation. The CEO must initiate the forms required
for appeals/requests to the Board of Appeals.
D.
Inspection. The CEO must inspect all buildings, developments, subdivisions
and such other facilities/uses within the requirements of this title.
E.
Business use changes. The Town Planner and the Code Enforcement Officer are to review and approve, or refer to the Planning Board for action, all business use changes which occur that fall below Planning Board review thresholds as outlined in § 16.7.2B. Approval must be based on compliance with all requirements of this title.
If the Code Enforcement Officer (CEO) finds any of the provisions
of this title are being violated, the CEO must notify by certified
mail, return receipt requested, the person responsible for such violations,
indicate the nature of the violation, and order the action necessary
to correct it. The CEO must order discontinuance of illegal use of
land, buildings or structures; removal of illegal buildings or structures
or of additions, alterations or structural changes thereto; a discontinuance
of any illegal work being done; or take any other action authorized
by this title to ensure compliance with or to prevent violations of
its provisions.
Building/regulated activity permits and certificates of occupancy
are required to control development to ensure that such development
conforms to this title. This chapter outlines the requirements of
this process.
A.
Permit. No building, including municipal buildings, or structure
may be erected, moved, added to or otherwise structurally altered
and no regulated activity is to commence without a permit, issued
by the Code Enforcement Officer and in compliance with all applicable
state and federal requirements.
B.
Conformity. No building/regulated activity permit may be issued except
in conformity with this title, except after written order of the Board
of Appeals.
C.
Permit records. The CEO must maintain a public record of all building/regulated
activity permits and applications thereof.
D.
Permit period.
(1)
A permit expires if the Code Enforcement Officer determines no substantial
work has been commenced within six months from date of issue. A permit
expires if work is not substantially complete within two years from
date of issue. Expired permits may be renewed upon written request
and justifiable cause demonstrated to the Code Enforcement Officer's
satisfaction. Written request for renewal must be made prior to the
permit expiration.
(2)
The permit may be renewed one time only for a single six-month period
to commence work, upon payment of the base application fee. If the
Code Enforcement Officer determines substantial work has not commenced
upon expiration of the six-month renewal period, a new permit application
and payment of all applicable new permit fees must be submitted.
(3)
The permit may be renewed one time only for a single six-month period
to complete work, upon payment of the base application fee. If work
is not substantially complete as determined by the Code Enforcement
Officer upon expiration of the six-month renewal period, a new permit
application and payment of all applicable new permit fees must be
submitted based on the value of the remaining permitted work.
(4)
Any work commenced or completed without the issue of a permit as
required by this title is subject to an after-the-fact permit with
all applicable fees doubled.
E.
Permit threshold. A permit is required if the activity involves any
of the following thresholds, as determined by the Code Enforcement
Officer:
(1)
Fair market value of the work is greater than $2,000;
(2)
Changes to electric, plumbing or septic systems;
(3)
Increase in coverage;
(4)
Construction of a building or expansion of a structure;
(5)
Structural alteration;
(6)
Change in use or new business occupancy;
(7)
Erection or expansion of signage;
(8)
Installation or expansion of piers and docks;
(9)
An activity that requires inspection by the CEO to determine compliance
with this title; or
(10)
Creates one or more acres of disturbed area;
(11)
Structure demolition.
F.
Application.
(1)
Plans.
(a)
All applications for building/regulated activity permits are
to be accompanied by plans showing the actual dimensions and shape
of the lot to be built upon, including but not limited to property
and setback lines; the exact sizes and locations and dimensions of
the proposed building or alteration of any existing structures and
the proposed sewage disposal systems as designed by a Maine-licensed
site evaluator. The Code Enforcement Officer may waive the requirement
for plans in the case of minor interior alterations which in the CEO's
opinion do not result in a change in use. The application is to include
such other information as lawfully may be required by the Code Enforcement
Officer to determine conformance with and provide for the enforcement
of this title. All plans and correspondence are to include the map
and lot designation of the property concerned in the upper right-hand
corner.
(b)
At any time between the initial request for a building/regulated
activity permit and the granting of final occupancy certificate the
CEO or designated representative is to have access to the subject
property and structures without obtaining prior permission, written
or oral, from the property owner or applicant, except when a temporary
occupancy permit has been given to the dwelling owner or applicant.
(2)
Drainage and sewage disposal. Wherever on-site subsurface disposal is contemplated, the approval of building/regulated activity permit applications are subject to evidence of satisfactory subsurface soil conditions for drainage and sewage disposal and prior obtainment of a subsurface wastewater disposal permit. Such evidence must be furnished in compliance with the Maine State Plumbing Code and Chapter 16.7 or Chapter 16.8.
(3)
Fee. Except for municipality permits, application for a building/regulated
activity permit must be accompanied by a fee which is established
by the Town Council. (See Appendix A, Fee Schedules.)
(4)
Flood hazard ordinance. Any building or structure that might be erected in an area subject to periodic flooding must meet all conditions of Chapter 15.3, relating to flood hazard permit and review procedure, of this Code and the applicable Federal Emergency Management Agency (FEMA) regulation(s). No alteration of the natural contour of the land by grading or filling for any purpose is permitted in an area subject to periodic flooding.
(5)
Conformance to standards.
(a)
All developments must be in conformance with the procedures,
standards and requirements of this title.
(b)
All work that requires a building/regulated activity permit
must conform to the Maine Uniform Building and Energy Code (MUBEC),
pursuant to 10 M.R.S.A. § 9721 et seq., which is adopted
by the Department of Public Safety, Bureau of Building Codes and Standards,
Maine Technical Building Codes and Standards Board, by Rule 16-635,
Chapters 1 through 6, as may be amended from time to time.
(c)
The following codes, standards, rules and their amendments are
in full force and effect in their entirety and are not affected by
the operation of Title 16 or the MUBEC:
[1]
National Electrical Code® standards
(NFPA 70), adopted pursuant to 32 M.R.S.A. § 1153-A.
[2]
Maine State Plumbing Codes standards, adopted pursuant to 32
M.R.S.A. § 3403-B.
[3]
Standard for the Installation of Oil-Burning Equipment standards
(NFPA 31), adopted pursuant to 32 M.R.S.A. § 18123.
[4]
National Fuel Gas Code Standards (NFPA 54), adopted pursuant
to 32 M.R.S.A. § 18123.
[5]
Boiler and pressure vessel standards, adopted pursuant to 32
M.R.S.A. § 15105.
[6]
Elevator standards, adopted pursuant to 32 M.R.S.A. § 15205-A.
[7]
National Fire Protection Association (NFPA) firesafety codes
and standards, adopted pursuant to 25 M.R.S.A. § 2452 and
§ 2465, as follows:
(6)
Permit review time constraints. The Code Enforcement Officer must
approve or deny an application for a building/regulated activity permit
within 14 working days of receiving said application. The Town Manager
may approve or deny an application if no action is taken by the Code
Enforcement Officer within 14 working days.
A.
Certificate requirement. It is unlawful to use or occupy or permit
the use or occupancy of any building or premises, or both, or part
thereof hereafter created, erected, changed, converted or wholly or
partly altered or enlarged in its use or structure until a certificate
of occupancy has been issued by the Code Enforcement Officer and endorsed
to the effect that the proposed use of the building or land conforms
with the requirements of this title and all applicable state and federal
requirements.
B.
Certificate application requirement. No building/regulated activity
permit may be issued until an application has been made for a certificate
of occupancy and the certificate of occupancy is issued in conformity
with the provisions of this title upon completion of the work.
C.
Temporary certificate.
(1)
A temporary certificate of occupancy may be issued by Code Enforcement
Officer for a period of six months during construction or alterations
for partial occupancy of a building pending its completion, provided
that such temporary certificate requires such conditions and safeguards
as will protect the safety of the occupants and the public.
D.
Commercial establishments may not be granted a temporary certificate
of occupancy. Occupancy may be granted when construction is complete,
all Planning Board conditions have been met, and all applicable state
and local code requirements have been met to the satisfaction of the
CEO. Phased construction may be approved by the Planning Board, and
certificate of occupancy may be issued by the CEO, when phase conditions
have been met.
E.
Records. The Code Enforcement Officer must maintain a public record
of all certificates of occupancy.
F.
Failure to obtain certificate. Failure to obtain a certificate of
occupancy is a violation of this title.
G.
Minor interior alterations. An occupancy permit is not required for
minor interior alterations during which the building would be considered
occupied and which, in the judgment of the Code Enforcement Officer,
does not constitute a change in use of the building.
A.
Street-numbering map.
(1)
All buildings must bear a distinctive street number in accordance
with and as designated upon the street-numbering map on file with
the Town's Assessing Department. The Town Assessor is responsible
to maintain and keep current said map.
(2)
No person may affix, or allow to be affixed, a different street
number from the one designated on the street-numbering map.
B.
Display of number. The number is to be displayed upon the front of
the building and/or on the side facing the street. The number must
be plainly visible from the street. Owners of buildings and houses
that are set back out of view from the road must place a post or sign
at the driveway entrance with the specified numbers. Said post/sign
is not considered a structure which must conform to Land Use and Development
Code setbacks. In place of a post/sign, the number may be affixed
to a mailbox. Said post/sign must be placed out of the Town's right-of-way
and be six feet in height.
C.
Multifamily dwellings. For multifamily dwellings, the house number is to be displayed as outlined in Subsection B. Each individual apartment or living unit must be clearly sublettered.
D.
Number dimensions and color. Numbers must be no less than three inches
in height and contrast in color with the color of the building or
background to which they are attached.
E.
Time limit for compliance; violation; penalty. Any person who, after
being notified by the Police Chief or any law enforcement officer
from the Town, fails to comply with any of the provisions of this
section within the time limit of not more than 30 days specified in
such notice is liable to a fine of not less than $50 nor more than
$100 per violation.
A.
Applicability. This section applies to fees charged by the Town for
plumbing and subsurface wastewater disposal system permits issued
by the Town pursuant to 30-A M.R.S.A. § 4201 et seq. and
pursuant to rules promulgated by the Department of Health and Human
Services (DHHS) under the authority of 30-A M.R.S.A. § 4201
et seq. (State Plumbing Code). For purposes of this section, the terms
contained in this section have the meanings given to them in the State
Plumbing Code.
B.
Plumbing permit fees.
(1)
At the time of issuance by the Town of a plumbing permit pursuant
to 30-A M.R.S.A. § 4201 et seq. and the State Plumbing Code,
the plumbing permit applicant must pay a fee in accordance with the
following schedule and at the rate provided for each classification
shown herein:
(a)
Any person who begins any work for which a permit is required
by the State Plumbing Code without first having obtained a permit
therefor, if subsequently eligible to obtain a permit, is liable to
pay double the permit fee fixed by this section for such work. However,
this provision does not apply to emergency work when it is proven
to the satisfaction of the local plumbing inspector that such work
was urgently necessary and that it was not practical to obtain a permit
before the commencement of the work. In all such emergency cases,
a permit must be obtained within four working days, or else a double
permit fee as hereinabove provided is to be charged.
(b)
For the purpose of this section, a sanitary plumbing outlet
on or to which a plumbing fixture or appliance may be set or attached
is construed to be a fixture. Fees for reconnection and retest of
existing plumbing systems in relocated buildings are to be based on
the number of plumbing fixtures, water heaters, etc., involved.
(c)
The following permit fees are to be charged:
[1]
Minimum fee for all permits, see Appendix A.
[2]
Fixture fee, see Appendix A.
[3]
Reinspection fee, see Appendix A. A reinspection fee must be
charged by the local plumbing inspector in those instances when work
has not been completed upon an inspection or when work was not in
compliance with the State Plumbing Code.
[4]
When only new water distribution and/or drainage pipes are installed
or relocated in a building, but no fixtures installed, the fee is
as set out in Appendix A.
[5]
A hookup fee as set out in Appendix A is to be charged for the
connection of a mobile home which bears the Housing and Urban Development
(HUD) seal or a modular home which bears the Manufactured Housing
Board seal to a building sewer.
[6]
A hookup fee as set out in Appendix A is to be charged for connection
to a public sewer when piping is installed beyond the jurisdiction
of the sanitary district.
[7]
Relocated mobile homes, modular homes or any other similar structures
are considered as new conventional stick-built structures, and a plumbing
fixture fee is to be charged based on this section.
[8]
A permit is valid only for the named applicant but may be transferred
by payment of a transfer fee as set out in Appendix A.
A.
Purpose. This chapter describes the minimum requirements for aggrieved parties to file an appeal under this title and related state statutes or to seek the granting of a special exception as found in Chapter 16.4, as well as a variance or miscellaneous variation request to the standards as provided herein.
B.
Appeal of Planning Board, Board of Appeals or Port Authority decision.
(1)
An aggrieved party with legal standing may appeal a final decision
of the Planning Board to the York County Superior Court in accordance
with Maine Rules of Civil Procedures Rule 80B within 45 days from
the date the decision by the Planning Board was rendered.
(2)
An aggrieved party with legal standing may appeal a final decision
of the Board of Appeals to the York County Superior Court in accordance
with Maine Rules of Civil Procedures Rule 80B within 45 days from
the date the decision by the Board of Appeals was rendered.
(3)
An aggrieved party with legal standing may appeal a final decision
of the Port Authority to the York County Superior Court in accordance
with Maine Rules of Civil Procedures Rule 80B within 45 days from
the date the decision by the Port Authority was rendered.
C.
Appeal of code enforcement officer decision. A Code Enforcement Officer decision may be appealed to the Board of Appeals as provided below in § 16.2.12D(1).
D.
Appeals/requests to Board of Appeals. For the purposes of this chapter,
an appeal or request means any of the following:
(1)
Administrative decision appeal. When the Board of Appeals reviews
an administrative decision appeal of a decision made by the Code Enforcement
Officer, the Board of Appeals may receive new evidence and testimony
consistent with this title and the rules of the Board of Appeals.
At the conclusion of the hearing and deliberation, the Board of Appeals
may uphold, modify or reverse the decision of the Code Enforcement
Officer.
(2)
Variance request.
(a)
A variance may be granted only by the Board of Appeals under
the following conditions:
[1]
For a reduction in dimensional requirements related to height,
area and size of structure or size of yards and open spaces;
[2]
The use is not prohibited by this title; and
[3]
Only if the strict application of the terms of this title would
result in undue hardship. The term "undue hardship" means the applicant
must demonstrate all of the following:
[a]
The land in question cannot yield a reasonable
return unless a variance is granted.
[b]
The need for a variance is due to the unique circumstances
of the property and not to the general conditions in the neighborhood.
[c]
The granting of a variance will not alter the essential
character of the locality.
[d]
The hardship is not the result of action taken
by the applicant or a prior owner.
(b)
Notwithstanding § 16.2.12D(2)a, the Board of Appeals may grant a variance to an owner of a residential dwelling for the purpose of making that dwelling accessible to a person with a disability who resides in or regularly uses the dwelling. The Board of Appeals must restrict any variance granted under this subsection solely to the installation of equipment or the construction of structures necessary for access to or egress from the dwelling by the person with the disability. The Board of Appeals may impose conditions on the variance, including limiting the variance to the duration of the disability or to the time that the person with the disability lives in the dwelling. The term "structures necessary for access to or egress from the dwelling" includes railing, wall or roof systems necessary for the safety or effectiveness of the structure.
(c)
A copy of each variance request within the Shoreland Overlay
Zone, including the application and all supporting information supplied
by the applicant, must be forwarded by the Code Enforcement Officer
to the Commissioner of the Maine Department of Environmental Protection
at least 20 days prior to action by the Board of Appeals. Any comments
received from the Commissioner prior to the action by the Board of
Appeals will be made part of the record to be taken into consideration
by the Board of Appeals.
(d)
The Board of Appeals must limit any variance granted as strictly
as possible to ensure conformance with the purposes and provisions
of this title to the greatest extent possible and, in doing so, may
impose such conditions of approval to a variance as it deems necessary.
The party receiving the variance must comply with any conditions imposed.
(3)
Miscellaneous variation request. The Board of Appeals may hear,
decide and approve variations in:
(4)
Special exception use request.
(b)
The Planning Board will review, decide and may approve an applicant's special exception use request where the proposed project requires Planning Board review as defined in § 16.7.2B or is located in a Shoreland or Resource Protection Overlay Zone. The Planning Board must find the proposed project and use meets the criteria set forth in § 16.7.10D and § 16.2.12F.
E.
BOA appeal/request filing procedures.
(1)
Making an appeal/request. An administrative decision appeal,
variance request or miscellaneous variation request may be submitted
to the Board of Appeals. An administrative appeal must be submitted
within 30 days of the date of the official written decision being
appealed. Other requests may be filed at will.
(a)
The appeal or request must be filed with the Code Enforcement
Officer on forms approved by the Board of Appeals and the party must
specifically state on such forms the grounds for such appeal or request,
including claimed discrepancies in the interpretation of this title
and reasons why the appeal or request should be granted. Incomplete
applications for appeals and/or requests will not be accepted. Upon
receipt of an appeal or request application, the Code Enforcement
Office must stamp a receipt date on the appeal or required form. Said
date constitutes the filing date of the appeal or request. Applications
for appeals or requests must include the following:
[1]
The appeal or request must be made by the property owner, an
aggrieved party or their respective duly authorized agent.
[2]
The appeal or request must include a concise written statement,
indicating what relief is requested and why the appeal or request
should be granted.
[3]
Where the appeal or request is made from a decision by the Code
Enforcement Officer, the applicant must submit plans, maps and related
documentation to the code enforcement office for distribution to the
Board of Appeals members at least two weeks prior to the meeting of
the Board of Appeals. A minimum of 10 sets of all submissions is required.
[4]
The Board of Appeals must hold a public hearing on an appeal
or request within 35 days of its receipt of a complete written application,
unless this time period is extended by the applicant and BOA.
(b)
At any time between the initial acceptance by the Code Enforcement
Officer of an appeal/request and final approval or denial of the appeal/request
by the Board of Appeals, the owner or applicant must allow members
of the Board of Appeals full access to the subject property, not including
building interiors, without obtaining prior permission, written or
oral.
(2)
Hearing and notice.
(a)
Before taking any action on any appeal/request, the Board of
Appeals must hold a public hearing and provide the following notifications:
[1]
By mail at least seven and not more than 14 days prior to the
scheduled hearing date, to owners of abutting property that an appeal/request
is made, the nature of the appeal/request and the time and place of
the public hearing thereon; and
[2]
Notice of all such actions must also be published in a newspaper
of general circulation in the Town at least seven days prior to the
public hearing.
(b)
Failure of any property owner to receive a notice of public
hearing will not necessitate another hearing or invalidate any action
by the Board of Appeals.
(3)
Notification and timing constraints. Following the filing of
an appeal/request, the Code Enforcement Officer must notify the Board
of Appeals, Planning Board and Conservation Commission of the filing.
The appeal or request must be complete for hearing at a subsequent
meeting of the Board of Appeals occurring no less than 10 days after
the mailing of notices but within 30 days of the appeal filing date.
(4)
Decisions of the Board of Appeals.
(a)
The person filing the appeal or request has the burden of proof.
(b)
A minimum of four like votes is required for a decision by the
Board of Appeals, except on procedural matters.
(c)
The Board of Appeals must decide the appeal or request within
30 days after the close of the hearing and issue a written decision.
(d)
Written notice of the decision of the Board of Appeals must
be sent to the appellant or petitioner, the Code Enforcement Officer,
Conservation Commission, Planning Board and municipal department heads
within seven days of the decision. The vote of each member must be
part of the record. The written notice of the decision of the Board
of Appeals must include the statement of findings. In the case of
denials, the statement of findings must include the reason for the
denial.
(5)
Order of review.
(a)
Where a special exception request or appeal is necessary as
an integral part of a development review process, Board of Appeals
action is encouraged prior to Planning Board review where required.
The findings of the Board of Appeals as well as any file material
must be made available to the Planning Board.
(b)
The Planning Board may give approval to the preliminary plan
as an overall development prior to the applicant filing an appeal/request.
(6)
Special exception referral.
(a)
Before granting any special exception, the Board of Appeals
may refer the application to the Planning Board and/or Port Authority
for a report prior to any subsequent BOA review of the application.
(b)
The Planning Board and/or Port Authority report must be considered
informational in character and may take into consideration the effect
of the proposal upon the character of the neighborhood or any other
pertinent data.
(c)
The Planning Board and/or Port Authority report must be submitted
to the BOA for its consideration prior to the officially scheduled
time of public hearing on the request.
(7)
Venue and representation. At any hearing, a party may appear
by agent or attorney. Hearings may be continued to other times/places.
(8)
Code Enforcement Officer attendance. The CEO or designated assistant
must attend all hearings and may present to the BOA all plans, photographs
or other material the CEO deems appropriate for an understanding of
the appeal/request.
(9)
Appellant's case first. The appellant's case must be heard first.
To maintain orderly procedure, each side shall proceed without interruption.
Questions may be asked through the Chair. All persons at the hearing
shall abide by the order of the Chairperson.
(10)
Expiration of approval.
(a)
Approvals granted under the provisions of this chapter expire
if work or change in use involved is not commenced within six months
of the date on which approval is granted, or if the work or change
in use is not substantially completed within one year of the date
on which such approval is granted, unless as otherwise provided for
in the approval decision.
(b)
When circumstances are such that a plan with an approved appeal
or special exception is required to be reviewed by another agency
(e.g., DEP, Planning Board, Port Authority), any period the plan is
at that agency, from time of submission to time of decision inclusive,
verified by recorded documentation, will not be counted as part of
the cumulative time periods described in the section above.
(c)
Should a successful appellant not be able to commence and/or substantially complete the work or change in use before the time constraints contained in Subsection E(10)(a) above, the appellant may reappear before the Board before the original approval expires and request an extension of the approval.
(d)
Such a request must be submitted, in writing, to the Code Enforcement
Officer prior to the date of said approval expiration.
(11)
Reconsideration. In accordance with 30-A M.R.S.A. § 2691(3)(F),
the Board of Appeals may reconsider any decision within 45 days of
its prior decision.
(a)
A request for the Board of Appeals to reconsider a decision
must be filed with the Code Enforcement Officer within 10 days of
the decision that is to be reconsidered. 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. Reconsideration
of a decision requires a positive vote of the entire Board and proper
notification to the landowner, petitioner, Planning Board, the Town
Planner, including abutters and those who testified at the original
hearing(s). The Board may conduct additional hearings and receive
additional evidence and testimony.
(b)
Appeal of a reconsidered decision to the Superior Court must
be made within 15 days after the decision on reconsideration.
(12)
Second appeals/requests. If the Board of Appeals denies an appeal/request,
a second appeal/request of a similar nature may not be brought before
the BOA within one year from the date of original denial, unless the
appellant submits new evidence and the BOA, by formal action, decides
the evidence is significant and warrants a new hearing, or unless
the BOA finds in its sole and exclusive judgment that an error or
mistake of law or misunderstanding of facts has been made.
(13)
Fees. The appellant must pay a fee for filing an appeal or special
exception request in an amount as set by the Town Council.
F.
Basis for decision.
(1)
Conditions.
(a)
In hearing appeals/requests under this section, the appropriate
jurisdictional board must first establish that it has a basis in law
to conduct the hearing and decide the question.
(b)
In hearing appeals/requests under this section, the appropriate
jurisdictional board must use the following criteria as the basis
of a decision, that:
[1]
The proposed use will not prevent the orderly and reasonable
use of adjacent properties or of properties in adjacent use zones;
[2]
The use will not prevent the orderly and reasonable use of permitted
or legally established uses in the zone wherein the proposed use is
to be located or of permitted or legally established uses in adjacent
use zones;
[3]
The safety, the health and the welfare of the Town will not
be adversely affected by the proposed use or its location; and
[4]
The use will be in harmony with and promote the general purposes
and intent of this title.
(2)
Factors for consideration. In making such determination, the
appropriate jurisdictional board must also give consideration, among
other things, to:
(a)
The character of the existing and probable development of uses
in the zone and the peculiar suitability of such zone for the location
of any of such uses;
(b)
The conservation of property values and the encouragement of
the most appropriate uses of land;
(c)
The effect that the location of the proposed use may have upon
the congestion or undue increase of vehicular traffic congestion on
public streets or highways;
(d)
The availability of adequate and proper public or private facilities
for the treatment, removal or discharge of sewage, refuse or other
effluent (whether liquid, solid, gaseous or otherwise) that may be
caused or created by or as a result of the use;
(e)
Whether the use, or materials incidental thereto, or produced
thereby, may give off obnoxious gases, odors, smoke or soot;
(f)
Whether the use will cause disturbing emission of electrical
discharges, dust, light, vibration or noise;
(g)
Whether the operations in pursuance of the use will cause undue
interference with the orderly enjoyment by the public of parking or
of recreational facilities, if existing, or if proposed by the Town
or by other competent governmental agency;
(h)
The necessity for paved off-street parking;
(i)
Whether a hazard to life, limb or property because of fire,
flood, erosion or panic may be created by reason or as a result of
the use, or by the structures to be used, or by the inaccessibility
of the property or structures thereon for the convenient entry and
operation of fire and other emergency apparatus, or by the undue concentration
or assemblage of persons upon such plot;
(j)
Whether the use, or the structures to be used, will cause an
overcrowding of land or undue concentration of population or unsightly
storage of equipment, vehicles or other materials;
(k)
Whether the plot area is sufficient, appropriate and adequate
for the use and the reasonably anticipated operation and expansion
thereof;
(l)
Whether the proposed use will be adequately screened and buffered
from contiguous properties;
(m)
The assurance of adequate landscaping, grading and provision
for natural drainage;
(n)
Whether the proposed use will provide for adequate pedestrian
circulation;
(o)
Whether the proposed use anticipates and eliminates potential
nuisances created by its location; and
(3)
Additional special exception conditions. Special exception approvals
may be subject to additional conditions as determined by the appropriate
jurisdictional board, including the following:
(a)
Front, side or rear yards in excess of minimum requirements;
(b)
Modifications of the exterior features of buildings or other
structures;
(c)
Limitations on the size of buildings and other structures more
stringent than the minimum or maximum requirements;
(d)
Regulation of design of access drives, sidewalks and other traffic
features;
(e)
Off-street parking and loading spaces in excess of the minimum
requirements; or
(f)
Restrictions on hours of operation.
(4)
Findings of fact. After reaching a decision on an appeal/request
under this section, the appropriate jurisdictional board must verify
on the record its findings of fact supporting the basis of its decision.
(5)
Outstanding violations. No variance, special exception or miscellaneous
variation request may be granted for premises on which outstanding
violations of this title exist, unless the effect of such variance,
special exception or miscellaneous variation would remedy all such
violations.
(6)
Appeals and variances. The Board of Appeals may, upon written application of an aggrieved party, hear and decide appeals from determinations of the Code Enforcement Officer in the administration of the provisions of this chapter. The Board of Appeals may grant a variance from the requirements of § 16.5.11, Floodplain Management, § 16.5.11A et seq., consistent with state law and the following criteria:
(a)
Variances may not be granted within any designated regulatory
floodway if any increase in flood levels during the base flood discharge
would result.
(b)
Variances may be granted only upon:
[1]
A showing of good and sufficient cause; and
[2]
A determination that, should a flood comparable to the base
flood occur, the granting of a variance will not result in increased
flood heights, additional threats to public safety, public expense,
or create nuisances, cause fraud or victimization of the public or
conflict with existing local laws or ordinances; and
[3]
A showing that the existence of the variance will not cause
a conflict with other state, federal or local laws or ordinances;
and
[4]
A determination that failure to grant the variance would result
in "undue hardship," which in this subsection means:
[a]
That the land in question cannot yield a reasonable
return unless a variance is granted; and
[b]
That the need for a variance is due to the unique
circumstances of the property and not to the general conditions in
the neighborhood; and
[c]
That the granting of a variance will not alter
the essential character of the locality; and
[d]
That the hardship is not the result of action taken
by the applicant or a prior owner.
(c)
Variances may only be issued upon a determination that the variance
is the minimum necessary, considering the flood hazard, to afford
relief.
(d)
Variances may be issued by the Board of Appeals for new construction,
substantial improvements, or other development for the conduct of
a functionally dependent use, provided that:
[1]
Other criteria of this section and § 16.5.11H(9) are met; and
[2]
The structure or other development is protected by methods that
minimize flood damages during the base flood and create no additional
threats to public safety.
(e)
Variances may be issued by the Board of Appeals for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or a State Inventory of Historic Places, without regard to the procedures set forth in Subsection F(6)(a) through (d) of this section.
(f)
Any applicant who meets the criteria of Subsection F(6)(a) through (e) of this section is to be notified by the Board of Appeals, in writing, over the signature of the Chairperson of the Board of Appeals, that:
[1]
The issuance of a variance to construct a structure below the
base flood level will result in greatly increased premium rates for
flood insurance, up to amounts as high as $25 per $100 of insurance
coverage;
[2]
Such construction below the base flood level increases risks
to life and property; and
[3]
The applicant agrees, in writing, that the applicant is fully
aware of all the risks inherent in the use of land subject to flooding,
assumes those risks and agrees to indemnify and defend the municipality
against any claims filed against it that are related to the applicant's
decision to use land located in a floodplain and that the applicant
individually releases the municipality from any claims the applicant
may have against the municipality that are related to the use of land
located in a floodplain.
(g)
The Board of Appeals must submit to the Planning Board a report
of all variance actions, including justification for the granting
of the variance and an authorization for the Code Enforcement Officer
to issue a flood hazard development permit, which includes any conditions
to be attached to said permit.
When any violation of any provision of this title or § 16.5.19, Nonstormwater Discharge, is found to exist, the Town Attorney or the CEO, as provided by Maine Rules of Civil Procedure Rule 80K and any provisions of this title and relevant statute, with the advice and consent of the Town Manager, is authorized and directed to institute any and all appropriate actions and proceedings either legal or equitable that may be appropriate or necessary for the enforcement of the provisions of this title, the same to be brought in the name of the Town.
A.
Owner or persons liable. Any person(s), firm, corporation or legal
entity, being the owner of or having control or use of any buildings
or premises, who participates in, assists, directs, creates or maintains
any situation that is contrary to the requirements of this title,
is responsible for the violation and is subject to the penalties and
the remedies herein provided.
B.
Applications for permits or approvals involving sites with a violation. An application for a building/regulated activity permit (see § 16.2.8), certificate of occupancy permit, sign permit, subdivision approval or development review approval will be denied for any property where a violation exists until such violation has been corrected or resolved.
C.
Purpose of enforcement provisions. The purpose of these title enforcement provisions is to provide an alternative method in addition to § 16.2.7 for enforcing and securing compliance with the provisions of this title in a just, speedy and cost-effective manner, and thereby to protect, preserve and enhance the public health, safety and general welfare.
D.
Notice of violation and order (notice).
(1)
It is the duty of the CEO to serve written notice on the landowner or the landowner's agent and any other person or entity responsible (hereafter termed "violator") for such violation. The notice must describe the nature of the violation, include a specific reference to the provision(s) of this title and/or state statute violated, and direct the discontinuance of the illegal action or condition. The notice must also contain an order setting forth the action necessary to correct the violation specifying a time period for correction as provided in § 16.2.13H and must set forth a fine to be imposed as authorized by § 16.2.13I and/or 30-A M.R.S.A. § 4452
(2)
Notwithstanding any other provision of this chapter, when the
notice involves a violation of this title pertaining to shoreland
or resource protection zoning or 30-A M.R.S.A. § 4452(3),
the notice must also set forth, in addition to the fine to be imposed,
an order of remediation or other corrective action(s) consistent with
and in compliance with 30-A M.R.S.A. § 4452 deemed necessary
by the CEO to correct or mitigate the violation to the affected area(s),
unless the correction or mitigation would result in a threat or hazard
to public health or safety, substantial environmental damage or a
substantial injustice.
(3)
All proposed plans for corrective action submitted by the violator
must comply with the standards set forth in this chapter where applicable
and 30-A M.R.S.A. § 4452(3). The acceptance by the CEO of
a violator's proposed plan(s) of correction or mitigation will not
relieve the violator of the requirement to pay the fine set forth
in the notice.
(4)
The notice must also advise the violator of any right to appeal
to the Board of Appeals with respect to the CEO's determination that
a violation of this title and/or 30-A M.R.S.A. § 4452 exists
for which the violator is responsible.
(5)
Additionally, if there is a violation of § 16.5.19, Nonstormwater Discharge, the enforcement authority will order compliance 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:
[Amended 5-8-2023]
(a)
The elimination of nonstormwater discharges to the storm drainage
system, including, but not limited to, disconnection of the premises
from the MS-4;
(b)
The immediate cessation of discharge practices or operations
in violation of this section;
(c)
At the person's expense, the abatement or remediation (in accordance
with best management practices in DEP rules and regulations) of nonstormwater
discharges to the storm drainage system and the restoration of any
affected property; and/or
(d)
The payment of fines, of the municipality's remediation costs,
and of the municipality's reasonable administrative costs and attorneys'
fees and costs. If abatement of a violation and/or restoration of
affected property is required, the notice will set forth a deadline
within which such abatement or restoration must be completed.
(e)
If abatement of a violation and/or restoration of affected property
is required, or if immediate cessation is not possible or if elimination
of the non-stormwater discharge is not possible within 60 days of
identification of the source, the notice shall set forth a deadline
within which such elimination, abatement, or restoration must be completed.
E.
Procedure to serve notice of violation and order. The notice pursuant to § 16.2.13D must either:
(1)
Be served in hand to the violator by the CEO or a person duly
authorized by the CEO;
(2)
Be left at the violator's dwelling house or usual place of abode
with a person of suitable age and discretion then residing therein
or with an agent authorized by appointment or by law to receive service
of process;
(3)
Be mailed by certified U.S. Mail, return receipt requested,
to the violator's last-known address. If the return receipt is not
returned, the notice will be conclusively presumed to have been served.
Such notice sent by regular U.S. Mail, if not returned or undeliverable,
is conclusively deemed to be received by the addressee on the fifth
day following the date of mailing; or
(4)
Any procedure for service of process authorized by Rule 4 of
the Maine Rules of Civil Procedure (MRCP).
F.
Appeal of notice of violation and order.
(1)
The violator served with a notice of violation and order may appeal the notice of violation and order to the Board of Appeals by filing an administrative appeal application in accordance with § 16.2.12E(1).
(2)
If a completed appeal is not filed within 30 days of receipt of the violation and order, then the notice of violation and order is final, and the violator is subject to the penalty contained therein. If a completed appeal application is timely filed, the Board of Appeals (BOA) must hold a public hearing pursuant to § 16.2.12E(2) and render a decision to uphold, modify or reverse the violation notice and order issued by the CEO. The Board must set forth its findings of fact and conclusions of law in support of its decision and give notice of the same to the violator.
(3)
Any adverse decision of the BOA may be further appealed to the
Superior Court pursuant to the provisions of Rule 80(B) of the Maine
Rules of Civil Procedure (MRCP). If a timely appeal is taken, the
notice of violation and order is stayed. If no appeal is taken, or
any appeal once taken is withdrawn or not pursued, the violation notice
and order is final and enforceable as provided in the title.
(4)
Civil proceedings. If the notice of violation and order has not been corrected, and no appeal is pending before the BOA or Superior Court, or the parties have not reached a consent agreement as provided in § 16.2.13J, the Town Attorney or the CEO, as provided by MRCP Rule 80K, upon notice from the Town Manager, may initiate any and all appropriate legal proceedings authorized in this title or state statute to compel the violator to correct the violation, pay any fine imposed, and seek whatever other relief to which the Town may be entitled. Such legal proceedings may include the initiation of a land use complaint pursuant to MRCP Rule 80K and 30-A M.R.S.A. § 4452 et seq., as amended.
G.
Civil proceedings. If the notice of violation and order has not been corrected, and no appeal is pending before the BOA, or the parties have not reached a consent agreement as provided in § 16.2.13J, the Town Attorney or the CEO, as provided by MRCP Rule 80K, upon notice from the Town Manager, may initiate any and all appropriate legal proceedings authorized in this title or state statute to compel the violator to correct the violation, pay any fine imposed, and seek whatever other relief to which the Town may be entitled. Such legal proceedings may include the initiation of a land use complaint pursuant to MRCP Rule 80K and 30-A M.R.S.A. § 4452 et seq., as amended.
H.
Time limit for corrective action.
(1)
The time period within which a violation must be corrected as set forth in the notice of violation and order under § 16.2.13D of this section is 30 days following receipt of the notice of the violation and order, unless:
(a)
The CEO determines a longer reasonable time limit is necessary
considering the nature and extent of the work required to correct
the violation.
(b)
The CEO determines a shorter reasonable time limit is appropriate
due to the threat posed by said violation to the health, safety and
welfare of the public.
(c)
The CEO finds the violator has been previously served a notice
of violation and order for a similar violation within the last 18
months; in which case the time limit for corrective action must be
no more than five days.
(2)
If a violator in a timely fashion files a completed administrative appeal application with the Town Clerk as provided in § 16.2.13F, any period of time from date of receipt of such an appeal to date of decision of the BOA, inclusive, is not counted as part of the cumulative time period described in this section. If the BOA upholds the CEO's determination, the timeline set forth in the notice of violation and order resumes, beginning the day after the decision is rendered, unless it is extended by the BOA.
I.
Penalties.
(1)
The Code Enforcement Officer must impose the following penalties
for the failure to correct a cited violation within the prescribed
time set forth in the notice:
(a)
Fine imposed: $200 for the first seven-day period the violation
continues beyond the time specified for corrective action. Thereafter,
each day the violation continues, a separate and specific violation
with an additional minimum of $100 per day penalty for each day of
the continuing violation up to a maximum penalty imposed of $2,500
for each specific violation, or the maximum as provided by 30-A M.R.S.A.
§ 4452, if greater.
(b)
When the violation set forth in the notice involves any cutting of tree(s) or other vegetation in violation of § 16.8.10O(2) or 30-A M.R.S.A. § 4452(3), the penalty provided by this section will be imposed from the date of notification of the violation in writing in addition to the required corrective action set forth in the § 16.2.13D.
(2)
After the time specified to correct the violation in the notice
of violation and order passes, it is the responsibility of the violator
to inform the Code Enforcement Officer in writing when the violation
has been corrected and seek an inspection to verify the violation
has been corrected. For the purposes of this section, the violation
will be assumed to have continued to exist uncorrected until the violator
has informed the Code Enforcement Officer in writing that the violation
has been corrected or the Code Enforcement Officer discovers through
inspection of the premises that the violation has been corrected,
whichever comes earlier.
J.
Consent agreements.
(1)
In special cases, particularly minor, unintentional violations
that are unduly difficult to correct, the Town Manager, with advice
of the Code Enforcement Officer, is authorized to enter into a consent
agreement with the violator to resolve the violation without further
enforcement action or appeal. Consent agreements are not intended
to allow a violator to substitute fines for corrective actions.
(2)
Any such violation that is allowed to continue pursuant to a
consent agreement is not granted the status of a nonconforming use.
Any further actions by the violator with regard to the property must
comply in all respects to the existing terms and provisions of this
title.
K.
Payment of civil penalties. All civil penalties imposed pursuant to a notice of violation and order as provided in § 16.2.13D are payable to the Town and due within 30 days after the notice of violation and order become final. All such civil penalties not paid when due accrue interest on the unpaid penalties at the rate provided for judgments in 14 M.R.S.A. § 1602-A. If the violator fails to pay this penalty, the penalty may be recovered by the Town in a civil action in the nature of debt.
L.
Fines. Any person, including but not limited to a property owner,
an owner's agent or a contractor, who violates any provision or requirement
of this title will be penalized in accordance with this title and
30-A M.R.S.A. § 4452.
A.
It is the duty of the Code Enforcement Officer to enforce the provisions
of Chapter 16.5.11, Floodplain Management, pursuant to 30-A M.R.S.A.
§ 4452.
B.
The penalties contained in 30-A M.R.S.A. § 4452 apply to
any violation of this chapter.
C.
In addition to any other actions, the Code Enforcement Officer, upon
determination that a violation of applicable floodplain management
regulations exists, is to submit a declaration to the Administrator
of the Federal Insurance Administration requesting a denial of flood
insurance. The valid declaration is to consist of:
(1)
The name of the property owner and address or legal description
of the property sufficient to confirm its identity or location;
(2)
A clear and unequivocal declaration that the property is in
violation of a cited state or local law, regulation or ordinance;
(3)
A clear statement that the public body making the declaration
has authority to do so and a citation to that authority;
(4)
Evidence that the property owner has been provided notice of
the violation and the prospective denial of insurance; and
(5)
A clear statement that the declaration is being submitted pursuant
to Section 1316 of the National Flood Insurance Act of 1968, as amended.
