[Adopted 1-24-2022 by Ord. No. 22-01[1]. Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also superseded former Ch. 16.9,
Design and Performance Standards for Natural Environment, as amended.
A.
General. The purpose of maritime and shoreland development reviews
function as a control for the Town to oversee proposed developments
located in, or in close proximity to, designated resource protected
areas so as to ensure the safe and healthful conditions of significant
natural, wildlife, cultural and maritime resource.
B.
Applicability.
(1)
Kittery port authority. The Kittery Port Authority's ("Port
Authority") jurisdiction extends to applications proposing any development
from the navigable tidal waters to the highest annual tide or upland
edge of a coastal wetland. The Port Authority, through its established
rules and regulations, reviews and approves applications for piers,
wharves, landings, floats, bridges, other water-dependent structures
or uses.
(2)
Planning Board. The Planning Board's jurisdiction for review and approval extends to applications proposing any upland development from the highest annual tide of any water bodies or upland edge of a costal or freshwater wetland or any development located within the Shoreland, Resource Protection, and Commercial Fisheries/Maritime Uses Overlay Zones or all other structures not requiring Port Authority approval, except for applications as provided under § 16.9.1B(1).
C.
General review process and notification.
(1)
Process.
(a)
Prior to the submission of a shoreland development application
with the Port Authority or the Planning Board, a preliminary application
meeting between the Town Planner, Code Enforcement Officer, or designee,
and the applicant or agent, shall occur to review the proposed project,
performance standards and procedural requirements thereof.
(b)
If Port Authority or Planning Board review is not required,
the Code Enforcement Officer and Town Planner shall review the application
for compliance with this title.
(c)
If the Planning Board must review and approve a development
plan application involving a pier, ramp, flotation system or principal
marine structure, prior to the submission of the development plan
application requiring Planning Board review, the Port Authority must
review and approve any proposed pier, ramp and float system or principal
marine structure application.
(d)
All required local approvals (excluding Town building permits),
federal and state approvals and/or permits shall be received by the
Code Enforcement Officer, prior to the issuance of a building permit.
(e)
Prior to the commencement of construction on any pier, dock,
wharf, marina or any other proposed use that projects into a water
body, the owner and/or developer shall apply for, and obtain, a building
permit from the Code Enforcement Officer.
(2)
Notification.
(a)
If Port Authority or Planning Board review is not required,
the Code Enforcement Officer shall send a written record of their
findings to both the Planning Board and Port Authority.
(b)
The Town Planner must transmit copies of Planning Board decisions
and the Code Enforcement Officer must transmit copies of Board of
Appeals decisions and all documentation constituting the record of
the decision for marine-related development to the Port Authority.
(c)
The Port Authority shall notify the applicant and the Code Enforcement
Officer, in writing, of the granting of, or denial of, the applicant's
request.
A.
Review for completeness. The Code Enforcement Officer and Town Planner
shall review Port Authority applications for completeness prior to
the Port Authority's Chairperson placing the application on the
Port Authority's agenda.
B.
Application process. All Port Authority applications for shoreland
development review shall adhere to the listed procedures as enumerated
in its rules and regulations.
C.
Submission requirements. Shoreland development plans for marine-related
uses requiring Port Authority approval shall include the following
elements:
(1)
Aerial photographs (images available in the public domain) and vicinity
maps and plans showing the property in relation to surrounding properties,
and the location of the lots that would have use of the pier, ramp
and float system. Maps and plans are to include:
(2)
Rights granted for access to the pier, ramp and float system or to
any water-dependent structure; public and private access paths.
(3)
Documentation addressing visual impact and controls to assure continuing
conformance to the shorefront development plan and this title.
(4)
All necessary applications for permits, leases, approvals, and any
supporting documentation as may be required have been filed, including
the following:
(a)
Department of Environmental Protection permit application pursuant
to the Natural Resources Protection Act, 38 M.R.S.A. § 480C;
(b)
Army Corps of Engineers permit application;
(c)
Maine State Department of Conservation, Bureau of Parks and
Lands, Submerged Land Coordinator application; and
(d)
Building permit application.
(5)
Any other details requested by the Port Authority, including, but
not limited to, information as enumerated in the Port Authority's
rules and regulations.
D.
Performance standards. Development involving piers, wharves, marinas
and other uses projecting into water bodies must conform to the following
standards:
(1)
In accordance with 38 M.R.S.A. § 435 et seq., mandatory
shoreland zoning, all dimensional and other standards (excluding setbacks
from water bodies) of this title apply to structures and uses projecting
into a water body beyond the highest annual tide.
(2)
Boathouses, while convenient to locate near the water, are not considered
functionally water-dependent uses and must meet the same setback requirement
as principal structures. The State of Maine no longer issues permits
for construction of boathouses below the highest annual tide due to
the adverse environmental impact; therefore, new boathouses must be
located on uplands.
(3)
Only functionally water-dependent uses are allowed on, over or abutting
a pier, wharf or other structure beyond the highest annual tide.
(4)
Access from shore must be developed on soils appropriate for such
use and constructed so as to control erosion.
(5)
The location must not interfere with existing developed recreational
and maritime commerce or natural beach areas.
(6)
The facility must be located so as to minimize adverse effects on
fisheries.
(7)
The facility must be a water-dependent use and no larger in dimension
than necessary to carry on the activity and must be consistent with
existing conditions, use and character of the area.
(8)
No new structure may be built on, over or abutting a pier, wharf,
dock or other structure extending beyond the highest annual tide of
a water body or within a wetland unless the structure requires direct
access to the water as an operational necessity.
(9)
No existing structures built on, over or abutting a pier, dock, wharf
or other structure extending beyond the highest annual tide of a water
body or within a wetland may be converted to residential dwelling
units in any district.
(10)
Except in the Commercial Fisheries/Maritime Uses Overlay Zone,
structures built on, over or abutting a pier, wharf, dock or other
structure extending beyond the highest annual tide of a water body
or within a wetland must not exceed 20 feet in height above the pier,
wharf, dock or other structure.
(11)
Applicants proposing any construction or fill activities in
a waterway or wetland requiring approval by the U.S. Army Corps of
Engineers pursuant to Section 404 of the Clean Water Act,[1] Section 9 or 10 of the Rivers and Harbors Act, or Section
103 of the Marine Protection, Research and Sanctuaries Act,[2] must submit proof of a valid permit issued.
(12)
Proposals for any principal marine structure use, any residential
joint- and/or shared-use pier, or any residential-development-use
pier require Planning Board approval.
(13)
A residential development containing five or more lots in a
zone permitting a residential-development-use pier may construct only
one residential-development-use pier.
(14)
Commercial development of the shorefront must provide for access
by the general public as part of a shorefront development plan.
(15)
Only one pier, ramp and float structure is permitted on any
noncommercial or nonindustrial lot.
(16)
Marine-related permanent structures located below the mean low-water
line require the following permits, leases and approvals:
(a)
Port Authority approval;
(b)
Department of Environmental Protection permit pursuant to the
Natural Resources Protection Act, 38 M.R.S.A. § 480-C;
(c)
Army Corps of Engineers permit;
(d)
Maine State Department of Conservation, Bureau of Parks and
Lands, Submerged Land Coordinator approval; and
(e)
Building permit.
(17)
Any other performance standards as enumerated in the Port Authority's
rules and regulations.
E.
Findings of fact. An application shall be approved or approved with
conditions if the Port Authority makes a positive finding based on
the information presented. The application must be demonstrated that
the proposed use will shall:
(1)
Maintain safe and healthful conditions;
(2)
Not result in water pollution, erosion or sedimentation to surface
waters;
(3)
Adequately provide for the disposal of all wastewater;
(4)
Not have an adverse impact on spawning grounds, fish, aquatic life,
bird or other wildlife habitat;
(5)
Conserve shore cover and visual, as well as actual, points of access
to inland and coastal waters;
(6)
Protect archaeological and historic resources;
(7)
Not adversely affect existing commercial fishing or maritime activities
in a commercial fisheries/maritime activities district;
(8)
Avoid problems associated with floodplain development and use; and
(9)
Is in conformance with the provisions of this title.
F.
The approved plan must be recorded with the York County Registry
of Deeds.
A.
Review process.
(1)
Following a preapplication meeting with the Town Planner or Code Enforcement Officer, the applicant filing a shoreland development review permit shall submit to the Code Enforcement Officer or Town Planner a complete application and site plan, drawn to scale as indicated in accordance with § 16.7.10C(4).
(2)
Within 35 days of the receipt of a written application, the Town
Planner must notify the applicant, in writing, that the application
is or is not complete. If the application is incomplete, the written
notification must specify the additional material required to complete
the application.
(3)
A decision on the application will occur within 35 days after the
first available date on the Planning Board's agenda following
receipt of the completed application, or within 35 days of the public
hearing, if one is held.
C.
Submission requirements.
(1)
All applications shall be signed by the owner, or an agent with written
authorization from the owner to apply for a shoreland development
review permit, certifying that the information in the application
is complete and correct.
(2)
All applications shall be dated, and the Town Planner or designee
shall note upon each application the date and time of its receipt.
(3)
Whenever the nature of the proposed structure requires the installation
of a subsurface sewage disposal system, a complete application for
a subsurface wastewater disposal permit shall be submitted. The application
shall include a site evaluation approved by the Plumbing Inspector.
D.
Exempt uses and development not requiring shoreland development review
by the Planning Board.
(1)
Proposed development of principal and accessory structures in compliance with § 16.4.28D, when not subject to Planning Board review as explicitly required elsewhere in this title, shall be reviewed and approved by the Code Enforcement Officer (CEO) prior to issuing a building permit, subject to but not limited to the following requirement:
(a)
The total devegetated area of the lot (that portion within the
Shoreland Overlay Zone) shall be calculated by the applicant and verified
by the CEO and recorded in the Town's property records.
(2)
Clearing of vegetation for activities other than timber harvesting.
These are subject to review and approval by the Shoreland Resource
Officer or Code Enforcement Officer.
(4)
A permit is not required for the replacement of an existing road
culvert, provided the replacement culvert is not:
(a)
More than one standard culvert size larger in diameter than
the culvert being replaced;
(b)
More than 25% longer than the culvert being replaced; and
(c)
Longer than 75 feet.
(d)
When replacing an existing culvert, the watercourse must be
protected so that the crossing does not block fish passage, and adequate
erosion control measures must be taken to prevent sedimentation of
the water in the watercourse.
(5)
A permit is not required for an archaeological excavation, provided
the excavation is conducted by an archaeologist listed on the State
Historic Preservation Officer's Level 1 or Level 2 approved list
and unreasonable erosion and sedimentation is prevented by means of
adequate and timely temporary and permanent stabilization measure.
E.
Nonexempt uses requiring shoreland development review.
(1)
After the effective date of this title, no person may, without first
obtaining a permit, engage in any activity or use of land or structure
requiring a permit in the Shoreland or Resource Protection Overlay
Zones in which such activity or use would occur, or expand, change
or replace an existing use or structure, or renew a discontinued nonconforming
use.
(2)
Any development proposed in the Resource Protection (OZ-RP) and Shoreland-Stream
Protection Area (OZ-SL-75) Overlay Zones must be approved by the Planning
Board.
(3)
Any permit required by this section is in addition to any other permit
required by other law or ordinance.
F.
Findings of fact.
(1)
Permits shall be approved, or approved with conditions, if the proposed
use or structure is found to be in conformance with the purposes and
provisions of this section and all other applicable provisions found
in this title, except where expressed relief has been lawfully granted.
(2)
An application shall be approved or approved with conditions if the
Planning Board makes a positive finding based on the information presented.
The application must demonstrate that the proposed use shall:
(a)
Maintain safe and healthful conditions;
(b)
Not result in water pollution, erosion or sedimentation to surface
waters;
(c)
Adequately provide for the disposal of all wastewater;
(d)
Not have an adverse impact on spawning grounds, fish, aquatic
life, bird or other wildlife habitat;
(e)
Conserve shore cover and visual, as well as actual, points of
access to inland and coastal waters;
(f)
Protect archaeological and historic resources;
(g)
Not adversely affect existing commercial fishing or maritime
activities in a commercial fisheries/maritime activities district;
(h)
Avoid problems associated with floodplain development and use;
(i)
Is in conformance with the provisions of this title; and
(j)
Be recorded with the York County Registry of Deeds.
G.
Final plan approval and recording.
(1)
An approval by the Planning Board must take the form of an agreement
between the Town and the applicant, incorporating as elements the
application, the Planning Board's findings of fact, and such
conditions as the Planning Board may impose upon approval.
(2)
The Planning Board must send copies of the agreement to Code Enforcement
Officer.
(3)
A plan has final approval only when the Planning Board has indicated
approval by formal action and the plan has been properly signed by
a majority of the Planning Board members or by the Chair only, if
so voted by the Planning Board.
(4)
Approved final plan recording. An approved plan involving the division
of land, easements, or property boundary modification must be recorded
by the York County Registry of Deeds. A paper copy and an electronic
version of the recorded plan must be returned to the Town Planner.
I.
Plan revisions after approval. No changes, erasures, modifications or revisions may be made to any Planning Board approved shoreland development plan, unless in accordance with the Planner's and CEO's powers and duties as found in Chapter 16.4 and elsewhere found in Title 16, or unless the plan has been resubmitted and the Planning Board specifically approves such modifications. In the event a final plan is recorded without complying with this requirement, the same is null and void, and the Planning Board must institute proceedings to have the plan stricken from Town records and the York County Registry of Deeds.
J.
Appeal of shoreland development plan decision. Appeal of a Planning Board shoreland development plan decision may be made pursuant to § 16.2.12B.
K.
Other references to shoreland development review within Title 16.
(1)
Below are other pertinent sections within Title 16 referencing shoreland
development provisions:
(d)
Section 16.2.13D(2): Notice of violation within the shoreland or resource protection overlay zones.
(g)
Section 16.5.27N: Road and driveway standards in Shoreland and Resource Protection Overlay Zones.
(h)
Section 16.5.29A(1): Timber harvesting in the Shoreland Overlay Zone.
(k)
Section 16.8.9C(3)(a)[2]: Scheduling public hearings for shoreland development applications.
A.
General. Right-of-way plans are intended to demonstrate to the Planning
Board that a lot will have a sufficient ROW to provide both the required
frontage to that lot and to allow safe vehicular access. Such a lot
may exist as a "landlocked" lot which requires a right-of-way plan
approval because necessary access doesn't meet driveway standards
or the lot may be a proposed division from an existing lot which wouldn't
have required frontage without a new ROW. When a lot is proposed for
division, such division must not create a nonconforming lot or structure.
Right-of-way plans do not apply to any lot that requires subdivision
approval.
C.
Review process and submission requirements.
(1)
Preapplication and conference.
(a)
Process. Before submitting a proposed right-of-way plan to the
Board, the owner and/or applicant must meet with the Town Planner
to discuss the conceptual design regarding road design, stormwater
management, dimensional requirements, and any potential impacts to
existing or proposed development and the environment.
(2)
Sketch plan.
(a)
Process. The applicant must submit a right-of-way application
and sketch plan for review and consideration by the Planning Board.
(b)
Plan requirements.
[1]
The sketch plan must show the proposed road and lot division
(if applicable), including structures, site improvements and landscape
features, in relation to existing conditions and municipal land use
regulations. Any proposed buildings must also be shown.
[2]
If the proposed ROW could or will provide frontage to lots other
than the lot under consideration, those abutting lots and their structures,
if any, must also be shown on the sketch plan.
[3]
While not required, a plan prepared by a surveyor is recommended.
(c)
Planning Board review and decisions, including site walk.
[1]
The Planning Board must determine whether the right-of-way sketch
plan proposal complies with municipal land use regulations regarding
both submission content and design and must, when necessary, make
specific suggestions to be incorporated by the applicant in subsequent
submissions.
[2]
If the sketch plan is accepted and approved, with or without
conditions, the next application step will be a final plan.
[3]
A site walk may be scheduled at the Planning Board's discretion.
(3)
Final plan.
(a)
Failure to submit final plan application. If a right-of-way
final plan is not submitted to the Planning Board within six months
after the approval of the sketch plan, the Planning Board may, at
its discretion, refuse to act on the final plan and require resubmission
of the sketch plan. Any plan resubmitted must comply with all application
requirements, including payment of application fees.
(b)
Process, including optional public hearing.
[1]
The applicant must submit a final right-of-way plan for review
and consideration by the Planning Board. Any conditions imposed by
sketch plan approval must be addressed in the submission.
[2]
The Planning Board may, at its discretion, choose to hold a
public hearing. If a public hearing will be held, the proceedings
must conform to public hearings as described by 16.8.9C(3).
[3]
The Planning Board may, at its discretion, request a review
of the plans by the Town's peer review engineer. The cost of
this peer review will be borne by the applicant.
[4]
The Technical Review Committee (TRC) must review the final plan
and submit comments prior to final plan approval.
[5]
The Board must accept the application as complete and after
consideration and review, which may span more than one regularly scheduled
meeting, vote to approve with or without conditions or deny the plan.
(c)
Plan requirements.
[1]
A complete final plan application must fulfill all the requirements
as indicated on the application checklist and described by § 16.8.9D(10)
unless the Planning Board, by formal action, upon the applicant's
written request, waives or defers any requirement(s) for submission.
The Board may request any additional information pertinent to complete
understanding of the application.
(d)
Findings of fact.
[1]
Action by the Planning Board must be based upon findings of fact which certify or waive compliance with all the required standards of this section, and which certify the right-of-way plan meets the requirements as listed in § 16.8.9D(4)(b).
(e)
Street naming.
[1]
Prior to submission of the final plan for Planning Board signatures {see § 16.9.4C(3)(f)[1] below}, the applicant must apply for and be approved for, a street name which complies with Chapter 8.5 of this Code.
[2]
Once approved, the street name must be placed on the final plan
prior to submission for Planning Board signature.
(f)
Final plan approval and recording.
[1]
A plan has final approval only when the Planning Board has indicated
approval by formal action and the plan has been properly signed by
a majority of the Planning Board members or by the Chair or Vice Chair,
only if so voted by the Planning Board.
[2]
An approved right-of-way plan involving the division of land,
easements, or property boundary modification must be recorded by the
York County Registry of Deeds. A paper copy and electronic copy of
the recorded plan must be returned to the Town Planner. An as-built
plan and electronic files may also be required at the discretion of
the Town Planner or Director of Planning.
(g)
Performance guaranty.
[1]
Prior to the issue of a building permit, the applicant must,
in an amount and form acceptable to the Town Manager, file with the
Municipal Treasurer an instrument to cover the full cost of the required
improvements. A period of one year (or such other period as the Planning
Board may determine appropriate, not to exceed three years) is the
guaranty time within which required improvements must be completed.
[2]
In cases where the right-of-way plan consists of an extension
of an existing road and as approved, will remain unpaved with minimal
site improvements required, the Director of Planning may waive the
performance guaranty.
[3]
Where applicable, a maintenance agreement must be included in
the document of covenants, homeowners' documents and/or as riders
to the individual deed.
(h)
Modifications to approved plans. No modifications to an approved right-of-way final plan may be made unless such modifications comply with § 16.9.4.
(i)
Appeal of Planning Board decision. Appeal of a right-of-way plan decision by the Planning Board may be made per § 16.2.12B.[1]
[1]
Editor's Note: Former Chs. 16.10, Development Plan Application
and Review, 16.11, Marine-Related Development, and 16.12, Affordable
Housing, which immediately followed this chapter, were repealed 1-22-2022
by Ord. No. 22-01.
