[HISTORY: Adopted by the Town of Kittery 10-24-2022. Amendments noted where applicable.]
This chapter will allow new concepts and innovative approaches
to housing and environmental design so that the Town's natural, scenic,
cultural, marine and historic resources may be preserved, thus meeting
the relevant objectives of the Comprehensive Plan, while limiting
the costs and impacts of development on the community and mitigating
the effects of climate change. Because Kittery's character is expressed
diversely through its natural environment comprising fields, forests,
rock outcrops, vernal pools, wetlands, salt marshes and shoreland
interwoven with its built environment, including both compact neighborhoods
and large-lot neighborhoods, conservation subdivisions in different
zones may necessarily differ in how they achieve this balance between
development and preservation. In all instances the objectives include:
A.
Preservation of open space, including but not limited to farmland,
meadows, forests, and wildlife habitat as well as scenic views identified
in the Comprehensive Plan.
B.
Preservation of areas with the highest ecological value as well as
areas with significant value not otherwise protected by law.
C.
Location of buildings, streets and structures on those portions of
the site most appropriate for development based on environmentally
aware site design.
D.
Connections to open space on adjoining lands wherever possible.
E.
Reduction of impacts on water resources and water quality by minimizing
land disturbance and impervious surfaces while utilizing nature-based
strategies such as low-impact development (LID) combined with best
management practices (BMP) for optimal stormwater management.
F.
Expansion of outdoor recreation opportunities wherever possible.
G.
Preservation of historic, archaeological, and cultural features,
such as, but not limited to, historic structures, stone walls, cellar
holes, earthworks, middens or graves.
H.
Minimization of residential developments' footprint, including streets,
utilities, and driveways, to lower the impact on the municipality,
neighboring properties and the natural environment.
I.
Demonstrated awareness of and response to climate change effects
such as:
(1)
Sea level rise considerations where shoreland exists. Properties
that include coastal shoreland must show areas affected by 1.6 feet
and 3.0 feet of storm surge plus sea level rise utilizing data from
Maine Geological Survey or other sources as approved/adopted by the
Town, as well as any existing salt marsh and potential salt marsh
migration areas on the plans.
(2)
Utilization of nature-based adaptation strategies, such as low-impact
development (LID) for stormwater management and groundwater quality
and preservation of woodlands for wildlife, cooling effects and for
their role in carbon capture.
(3)
Energy efficiency and reduced greenhouse gas emissions in both
site design and building design.
(4)
Protection against salt water intrusion into freshwater drinking water supplies. Properties that include coastal shoreland or that are affected by tidal waters must demonstrate that proposed drinking water supplies are located beyond the potential reach [see Subsection I(1) above] of salt water intrusion.
J.
Conservation of the Town's natural resource and neighborhood diversity.
A.
Conservation subdivisions are a residential use permitted in various zones as indicated in Chapter 16.4. Mobile home parks or manufactured homes on individual lots are not eligible for conservation subdivisions. Subdivisions that are not conservation subdivisions, referred to herein as "conventional subdivisions," are a special exception use.
A.
The Planning Board, in reviewing and approving proposed residential
development under this chapter, may modify the following dimensional
standards to permit flexibility in approaches to site design in accordance
with the standards of this chapter: lot area, impervious surface,
street frontage and front/rear/side setbacks. The Board may allow
such dimensional modifications when the Board finds a determination
of benefit consistent with this chapter.
All development reviewed under this chapter is subject to the application procedures in Chapter 16.8, Subdivision Review, and the following:
A.
In addition to the requirements of Chapter 16.8, the following items are required with submission of the sketch plan:
(1)
A plan showing the proposed conservation subdivision and a plan
showing a conventional subdivision for the site. Both plans must include
the following information, as applicable:
(a)
The location of each of the proposed building envelopes, as
well as the proposed placement of sidewalks, roads, service areas
and parking areas. Only developments having complete plans with building
envelopes shown will be considered.
(b)
Proposed dimensional measurements and sizes for all lots and
the dimensional standards required in the zone in which the development
will be located.
(c)
All land area identified in § 16.5.18, Net residential acreage, noted with total land areas for each applicable category.
(d)
Net residential density calculations demonstrating how many dwelling units are allowable based on the net residential acreage arrived at above and how many dwelling units are proposed. The number of dwelling units proposed must be the same for both the conventional subdivision and the conservation subdivision unless the conservation subdivision proposes to build or create affordable housing as described in § 16.10.9. In the uncommon circumstance where the number of proposed dwelling units differs between a conventional subdivision plan and a conservation subdivision plan without the affordable housing incentive involved, the smaller number of units prevails, no matter which type of subdivision is pursued.
(f)
Natural features, with areas of ecological value noted, including
those identified by the Maine Natural Areas Program and Maine Inland
Fisheries and Wildlife, as well as all water bodies, streams, aquifers,
wetlands, vernal pools, salt marshes, floodplains, farmland, forested
and non-forested areas and scenic vistas.
(g)
Historical, archeological or culturally important features and/or
structures.
(2)
A map or plan showing constraints to development, such as, but
not limited to, wetlands, vernal pools, resource protection zones,
stream protection zones, shoreland zones, rare plant and animal habitat,
slopes in excess of 20%, easements, proposed or existing rights-of-way,
existing roads, driveway entrances and intersections, existing structures,
and existing utilities.
(3)
If the site includes valuable agricultural soils, such as, but
not limited to, prime farmland soils or soils of state-wide importance,
a soils map illustrating their locations must be included.
(4)
A written statement describing the site and the ways the proposed
development furthers the purpose and objectives of this chapter, including
how natural features will be preserved or enhanced.
(5)
If the conservation subdivision will rely on groundwater for
its drinking water supply, a written statement prepared by a hydrogeologist
must attest to the sufficiency and quality of water for the development
and that such a private well or wells will not reduce either the quantity
or quality of the groundwater supply for surrounding properties.
B.
For preliminary plan submission, in addition to the requirements of Chapter 16.8, an applicant with a project that includes proposed public open space such as a park or a nature trail must obtain Town Council approval for accepting the public land prior to the Planning Board's preliminary plan approval. Such open space must be offered to the Town in fee or through an easement to be held by the Town. Town Council acceptance of the public open space is contingent upon receipt of final plan approval by the Planning Board.
C.
An applicant with a project that includes moderate to high value
wildlife habitat or other exceptional natural features is strongly
encouraged to seek a conservation easement to be held by a land trust
or other such conservation entity. Such easements will be counted
towards the open space requirements for the subdivision as reserved
open space and must be approved by the Planning Board.
D.
The Planning Board may, at the applicant's expense, seek expert and
professional opinions concerning any aspect of the proposed development,
including, but not limited to, engineering, site evaluation/septic
design, landscaping, natural resources, historic resources, traffic,
wetlands, soil, stormwater and water quality.
A.
The purpose and objectives as stated above in § 16.10.1 must be upheld for all subdivision reviews conducted under this chapter. In all cases, the subdivision must be designed for the open space first, with the remaining area designated and designed for development. The Planning Board has final authority over the site design and type of subdivision (conservation or conventional) permitted.
B.
A conservation subdivision must meet all requirements for a subdivision and all other applicable federal, state and local ordinances, except as modified by Chapter 16.10 and/or action of the Planning Board, where authorized.
C.
Public or privately shared sewer and water must be provided unless it is demonstrated to the Planning Board's satisfaction that alternative methods proposed will result in development that is compatible with the purpose and objectives of Chapter 16.10 and meets all other state and municipal requirements. Criteria for the Board to consider include:
(1)
Adequate groundwater is available at all locations proposed
for any individual water systems.
(2)
The groundwater source(s) proposed for any individual water
systems is safe from both on-site and off-site contamination.
(3)
Any proposed individual septic systems must in no way endanger
groundwater supplies which are currently being utilized as a water
source for any existing development.
(4)
Any proposed individual septic systems must in no way endanger
groundwater supplies which will be utilized by any proposed common
or individual water system in the conservation subdivision development.
(5)
The costs of providing a common water supply and distribution
system and/or a central collection and wastewater treatment system
are prohibitive due to characteristics unique to the property. This
criteria by itself is not sufficient, but may inform the Board when
making decisions.
D.
Open space designated and set aside in a conservation subdivision will be permanently preserved as required by this performance standard. Land that is designated as reserved or common open space as defined by Title 16 must be separate tax parcels and not included as a part of any residential lot. Public open space must be approved and accepted by Town Council per § 16.10.4B. In all cases, the Planning Board must approve the configuration of the open space.
E.
Unless a public or shared sewer collection and treatment system is
provided, no lot may be smaller than 20,000 square feet per single-family
residence.
F.
No individual lot or dwelling unit may have direct vehicular access
onto a public road existing at the time of development. This requirement
may be modified at the Planning Board's discretion in cases where
existing structures included in the proposed subdivision have access
from a public road, and the overall site design is improved for allowing
such access to remain.
G.
In cases where proposed development includes shoreland, the entire
area that falls within the Shoreland Overlay Zone, the Resource Protection
Overlay Zone or the Stream Protection Overlay Zone must be protected
as open space. All areas designated as floodplain and the 250-foot
radius around a state-designated significant vernal pool must similarly
be protected as open space. Where an area falls within two or more
such zone designations, the zone with the largest total area will
apply. Such open space may not be part of any private house lot.
H.
Where a conservation subdivision abuts a body of water, stream, or
a significant wetland as defined by the State of Maine, a portion
of the shoreline, as well as reasonable and appropriate access to
such water body, stream or wetland, as determined by the Planning
Board, must be a part of the commonly held open space. Shoreland frontage
must not be less than 100 feet. Deeded access to the shoreland frontage
must be conveyed to each lot owner in the conservation subdivision.
I.
Wetlands, as defined by federal, state, and/or Town of Kittery regulations or ordinances, must be included in the open space with a designated "no cut, no disturbance" setback per § 16.10.6E. While wetland alterations are generally discouraged, there may be circumstances under which an alteration could be considered.
(1)
Wetlands under consideration for alteration as part of a conservation
subdivision are not eligible for a wetland alteration permit unless
all requirements for a wetland alteration permit are met as well as
the following conditions:
(a)
The wetland has been assessed/evaluated using techniques such
as those used or developed by the New England Biological Assessment
of Wetlands Workgroup, including the Method for Inventorying and Evaluating
Freshwater Wetlands in New Hampshire, 2016, and as amended from time
to time. Such assessment must be done by a certified professional
wetland scientist or a Maine-certified wetland scientist and submitted
to the Board.
(b)
The wetland alteration proposed must be less than 4,300 square
feet in size and must constitute a single complete project.
(d)
An analysis of the proposed development-related impact to the wetland must be done and submitted by a professional qualified as in Subsection I(1)(a) above.
(e)
The Board may, at its discretion, request a more detailed site study (intensive site assessment) of the wetland in question to be done by professionals as qualified in Subsection I(1)(a) above at the expense of the applicant.
(f)
When proposing a wetland alteration, particularly in order to
create access, there is a strong preference for bridging a wetland,
rather than using a culvert crossing.
(2)
Wetland alterations that exceed 4,300 square feet are not permitted within a conservation subdivision. If greater wetland alterations are proposed, the applicant must request a special exception conventional subdivision permit from the Planning Board and meet all the requirements of Chapter 16.8. It is incumbent on the applicant to demonstrate the need to exceed the 4,300 square feet. All requirements in Subsection I(1)(a), (c) through (e) apply. The Planning Board has final authority over whether or not to grant such a request and may require additional open space, conservation easements, or buffers when granting such a concession.
J.
All utilities must be installed underground. Underground utilities
and related easements may be located in designated common open space
but must be shown on the plans, including the as-built plan. The Planning
Board may allow aboveground electrical/utility service installation,
but it is incumbent on the developer to demonstrate to the Planning
Board's satisfaction that underground installation of utilities is
not technically possible.
(1)
When determining whether or not to permit aboveground utilities,
the Board will use the following criteria:
(a)
The proximity and visibility of such a proposed utility line(s)
to the surrounding neighborhood and public streets.
(b)
The impact that aboveground utilities will have on natural resources,
any public recreation areas, scenic views and conserved land.
(c)
The ramifications of aboveground utilities on the overall design
and functionality of the conservation subdivision and how well the
developer has addressed these ramifications.
(2)
When permitting such aboveground electrical service installations,
the Board must require the developer to adopt a prudent avoidance
approach in regard to pole and line placements as a condition of approval
and include their placement within the site on the final plan. Transformer
boxes, pumping stations and meters must be located so as not to be
unsightly or hazardous to the public.
K.
The location of any subsurface wastewater disposal systems and reserve
areas, if required, must be shown on the plan. The reserve areas must
be labeled as restricted so as not to be built or encroached upon.
All necessary information such as the site evaluator report and state-required
permits must be included prior to final plan approval.
A.
The developer must take the site's natural features and physical
location into consideration as follows:
(1)
All elements of the site, including the individual buildings,
must be designed so scenic vistas, including views from scenic roads,
natural, historic and cultural features, are preserved and protected
while being integrated into the development.
(2)
Buildings must be sited to consider sunlight, shade, topography,
natural drainage, prevailing winds and ventilation.
(3)
Buildings must be designed and oriented to protect against light
trespass from vehicle headlights and any existing outdoor lighting
to the greatest extent possible.
(4)
It is strongly recommended that all buildings be designed for
maximum energy efficiency and use heating and cooling systems that
reduce greenhouse gases.
(5)
Existing natural vegetation, including trees, unless diseased
or dying, must remain to control soil erosion, provide shade and wildlife
habitat and assist in stormwater infiltration to ensure the least
amount of disturbance during construction. Existing large healthy
trees located near new rights-of-way, driveways or building sites,
whose removal is not necessary for construction, must be protected
from damage during construction. Such trees must be noted on the plans,
and plan notes must include protection details.
B.
Active recreational facilities such as playgrounds or tennis courts
requiring permanent equipment affixed to the ground and/or modification
of the site may not be located within the wetland or shoreland setback
areas or within reserved open space areas.
C.
Where a park or a playground with permanent affixed equipment, either
recreational or artistic in nature, is proposed as common open space,
the park or playground must be designed by a landscape architect or
a professional specializing in playgrounds. The plans for the playground
or park must be submitted as part of the preliminary plan or, if the
conservation subdivision is less than five lots, part of the final
plan. Any impervious surface created as part of the park or playground
must be included in the stormwater management report to ensure the
design of adequate stormwater management systems.
D.
Plantings, landscaping, naturally existing vegetation, and the forms
and siting of buildings and other improvements must be used to integrate
the proposed development with the surrounding landscape and any neighboring
development.
E.
Development setbacks from wetlands, streams and water bodies must comply with § 16.5.30 and § 16.10.5G. These setbacks must be permanently maintained as "no cut, no disturb" buffer areas except where common access by the conservation subdivision residents is required per § 16.10.5H. These buffer areas must be identified as such on all subdivision plans, including the as-built plan. The Planning Board may require signs denoting the boundaries of these buffer areas be placed prior to the issuance of any certificate of occupancy to ensure that encroachment does not occur. If the setback areas do not contain substantial vegetation, as determined by the Planning Board, to provide a sufficient and environmentally appropriate buffer and ecological benefit, the Board may require additional native or Northeastern native climate-tolerant plantings. If plantings are required, any plantings that do not survive must be replaced. This plantings requirement does not expire and runs with the land.
F.
A vegetated buffer is required in Zones R-C and R-RL along the front lot line (except for access to the development) of the proposed development where designated open space or "no-cut, no disturb buffers" as described in Subsection E above do not exist. The frontage buffer must be at least 40 feet wide and will serve to screen the development from the street, perform carbon capture and aid in stormwater absorption. This buffer may not be built on, paved, mowed or used for parking or storage, nor can it be part of any residential lot. No trees may be cut within the buffer unless they are dead, diseased or dying, are identified as an invasive species or are less than a two-inch caliper. Any invasive plant species, as identified by the State of Maine, that are found in the buffer must be removed. Vegetation will be maintained in its natural state (excluding invasive species) unless the Planning Board deems the buffer insufficiently vegetated to serve its purpose, in which case the Board may also require additional native or Northeastern native climate-tolerant plantings. If plantings are required, any plantings that do not survive must be replaced. This plantings requirement does not expire and runs with the land.
(1)
The buffer may be increased to a maximum of 50 feet if, in the
Board's judgment, the preservation of natural features or the design
of the site as proposed, including how it blends with the surrounding
environment, would be improved by wider buffers.
(2)
The buffer requirement may also be modified by the Board in different ways than described by Subsection F(1) above if, in the Board's judgment, the buffer would impact important objectives, such as preserving views, providing access to a trail/open space, creating LID features for stormwater or protecting natural features.
G.
The Planning Board may require vegetated buffers in other locations on the site, such as, but not limited to, side lot lines or rear lot lines, when, in the Board's judgment, such a buffer will allow the site design to better meet the criteria and objectives of this conservation subdivision ordinance. Such buffers may not exceed 40 feet in width, and all requirements in Subsection F above apply.
H.
Low-impact development (LID) must be incorporated into the site design
and should include simple nature-based strategies such as maintaining
significant stands of forest and intact and ecologically functional
wetlands.
I.
In cases where a proposed conservation subdivision abuts permanently
protected land such as property owned by a land trust or private property
with a conservation easement, all proposed development, including
private house lots, structures, roads, driveways, utility easements,
stormwater management systems, and utilities, must be set back at
least 30 feet from the edge of the protected property. This thirty-foot
setback also applies to Town-owned land used by the general public,
such as but not limited to Rogers Park, the Town Farm Forest and Fort
Foster.
A.
The amount of open space required varies with the zoning district
in which the conservation subdivision is located. The requirements
are as follows:
[Amended 5-13-2024]
(1)
In the R-C Zone, the designated open space must be a minimum
of 70% of the total land area, with a minimum of 50% of that consisting
of net residential acreage as defined by this title.
(2)
In the R-RL Zone, the designated open space must be a minimum
of 60% of the total land area, with a minimum of 40% of that consisting
of net residential acreage as defined by this title.
(3)
In the KP-V Zone, the designated open space must be a minimum
of 50% of the total land area, with a minimum of 30% of that consisting
of net residential acreage as defined by this title.
(4)
In the R-S and R-U Zones:
(a)
For properties of 10 acres or more, the designated open space
must be at least 50% of the total land area, with a minimum of 30%
of that consisting of net residential acreage as defined by this title.
(b)
For properties of less than 10 acres with public sewer or common
private septic, the designated open space must be at least 25% of
the total land area, with a minimum of 5% of that consisting of net
residential acreage.
(c)
For properties of less than 10 acres with private septic, the
designated open space must be at least 25% of the total land area,
with no minimum net residential acreage requirement.
(5)
The following is an example of the open space calculation referenced in (1) through (4) above: With a lot of 1,000,000 square feet, using an open space requirement of 60% of the lot, at least 600,000 square feet (60%) must be open space. Of that 600,000 square feet, 240,000 (40% of total open space, or 24% of total lot) must be land that would be considered buildable as described in the definition of "net residential acreage" found in § 16.3.2.
B.
Wetlands of all types, water bodies, floodplains, and streams located on the site must be protected as reserved open space, except as otherwise allowed in § 16.10.5.
C.
Natural resources such as wildlife habitat or areas of ecological
importance must be included in the designated open space.
D.
The required designated open space must include any notable natural
features found on the site, such as, but not limited to, stands of
mature trees, meadows, hillsides, ledge/outcroppings, and former or
existing farmland.
E.
All historic, cultural or archeological resources must be included
in the designated open space.
F.
Open space areas within a site must be contiguous blocks, to the
greatest extent possible, and link to open space on abutting land
where it exists to protect natural resources, including plant and
wildlife habitats. It is incumbent on the applicant to demonstrate
to the Planning Board's satisfaction that noncontiguous open space
still meets the criteria and intent of this chapter.
(1)
Narrow strips of open space located around the perimeters of the site will not necessarily meet this standard but such narrow strips may exist for purposes of buffering the development from the street as required in § 16.10.6F.
(2)
Narrow strips of open space which serve purposes other than those required by § 16.10.6F, such as a buffer to neighboring properties or to provide public access connectors to public open space, public trails or links to neighborhoods, all of which must be approved by the Board, may be counted towards the total open space requirements.
G.
Open space may not consist entirely of mowed grass areas unless such a space is designated as a park, either public or private. If a park is proposed or included in the development, seating areas and shade trees, at minimum, must also be included in the park. See § 16.10.6 for design details.
H.
All three types of open space, public, common and reserved, as defined
by Title 16, may be used for a proposed development to meet the open
space area requirements of the applicable zone. For example, a conservation
subdivision may propose common open space for a community garden with
mowed areas around the garden for community gatherings while designating
the woodlands beyond as reserved open space, with both areas combining
to meet the necessary open space requirements. The Planning Board
must approve the designations and may require changes in the designations
and/or the uses based on the standards of this chapter.
A.
This conservation subdivision ordinance will supersede inconsistent
provisions regarding buffers, open space and vegetation/landscaping
requirements of Title 16 where relevant and applied to a conservation
subdivision development being considered by the Board.
B.
Open space designated and set aside in a conservation subdivision
will be permanently protected from development as required by this
chapter. Such perpetual protection includes but is not limited to
conservation easements and declarations of covenants, conditions,
and restrictions.
C.
A conservation easement may be granted to or the declarations may
be for the benefit of a qualified not-for-profit conservation organization
such as a land trust acceptable to the Planning Board or to the Town
of Kittery with the approval of Town Council.
D.
The Planning Board may require that any conservation easement or
declaration of covenants, conditions and restrictions be enforceable
by a third party as specified and/or approved by the Board.
E.
On all parcels, open space uses must be appropriate to the site as
follows:
(1)
Parcels that include three acres or more of land suitable for
agriculture by reason of former or existing agricultural use or agriculturally
valuable soil must be conserved for agriculture or other compatible
open space uses such as wildlife habitat, resource conservation and/or
passive recreation. A conservation easement to be held by a land conservation
entity is strongly encouraged.
(2)
If any portion of the designated open space will be devoted
to an agricultural land use, the developer must submit a management
plan to the Planning Board for review and approval demonstrating how
the use will be fostered into the future. Examples of such plans include
a farm management plan or a community garden plan. If the open space
will be leased to another party, a long-term lease (three years or
more) must be included with the management plan.
(3)
When the principal purpose for conserving certain portions of
the open space is protection and preservation of natural resources,
such as, but not limited to, wetlands, stream corridors, water body
shores, wildlife habitat, woodlands, meadows and hillsides, those
open spaces must be designated as reserved open space with no use
allowed beyond passive recreation.
(4)
For the purposes of this conservation subdivision ordinance,
"forestry" means the practice of planting, managing, and caring for
forests. Any portion of the open space designated for forestry must
be covered by a plan done by a licensed Maine forester that manages
for the health of the forest and, if appropriate, passive recreation.
Timber harvesting as a main objective is not allowed, although trees
removed for health and/or safety reasons according to the management
plan may be sold per state and local regulations.
(5)
The use of any proposed open space may be limited by the Planning
Board prior to final plan approval when the Board finds that it is
necessary to protect sensitive natural features or resources or to
protect adjacent properties or uses.
(6)
No further subdivision of open space is allowed and the deed restrictions must clearly state this. Such deed restrictions must be reviewed by the Town's legal counsel prior to final plan approval at the applicant's expense. See Subsection F below. Any use of open space other than that designated at the time of Planning Board final approval for agriculture, forestry, recreation and/or conservation is prohibited except for underground utility easements (see § 16.10.5I) which, if necessary, may be reviewed and approved by the Board as a major modification after final plan approval. Any modification of a previously approved use for open space must be reviewed and approved by the Planning Board as a major modification.
(7)
Proposed structures or buildings accessory to agriculture, recreation or conservation uses of open space are allowed subject to Planning Board approval through the major site plan review process pursuant to this chapter and Chapter 16.7. Such a process may run concurrently with the conservation subdivision approval process.
(8)
In cases where historic or culturally important sites are included
in the open space, the Planning Board may require that extra protections
be put into place, such as a fence around a graveyard or a stone wall
around an early homestead site. The Board may also require that markers
or signs be erected at the developer's expense, describing the site's
significance.
(9)
Adapting an historic or culturally important structure within
a proposed conservation subdivision for use either residentially or
as an accessory structure is encouraged. For the purposes of this
chapter, an "historic structure" means any structure that is significant
in the history, architecture or landscape of Kittery and is at least
50 years old. If the proposed open space in the subdivision include
an historic or culturally important structure or building, the following
options exist:
(a)
Repurposing of such a building is allowed if all other state and local regulations are met; for example, an historic barn could be used as a clubhouse or for storage of small recreational vehicles and watercraft. The building must be repaired and maintained by the homeowner's association, with the necessary funding put in place for continued upkeep. The proposed use must be reviewed and approved by the Planning Board through the major site plan review process pursuant to this chapter and Chapter 16.7. The site plan review may be done concurrently with the subdivision review.
(b)
The building's deed can be transferred to an entity, such as
an historical society, that can preserve and maintain it. Such a transfer
must be approved by the Board.
(c)
In cases where the building will not be repurposed and an entity
cannot be found to accept the deed for the building, the Board may
allow the building to be dismantled and given or sold to a willing
party, moved to another location off the site by a willing party or
demolished. If the building will be dismantled, moved or demolished,
the developer must document the building. Such documentation must
include dimensions and photographs, inside and out, on its original
site prior to any further action taken to remove the building. The
Board may require the developer to hire an historian at the developer's
expense to create the documentation. A copy of the completed documentation
must be given to the Kittery Historical and Naval Museum, and a copy
must be filed with the Town Planning Department prior to the issuance
of the first building permit and will be a condition of approval.
F.
Prior to approval of the final plan by the Planning Board, documentation,
including plans, homeowners' association documents, such as the covenants,
conditions and restrictions as well as bylaws, deed restrictions,
conservation easements and any other legal instruments, for open space
concerned with the subdivision and its open space must be submitted
to the Town for review by legal counsel at the applicant's expense.
Once reviewed by legal counsel and any corrections required are made,
the documents must be submitted to the Board as part of the final
plan submission. Upon approval of the final plan, all documents described
above that apply to the homeowners' association and/or open space
must be submitted to the Registry of Deeds and a recorded copy submitted
to the Town prior to the issuance of the first building permit.
G.
The open space must be accurately shown on the development plans,
at least by final plan submission and on the as-built plan with appropriate
notation to indicate:
(1)
The open space is permanently protected and must not be used
for future building lots or any additional development unless approved
by the Planning Board where authorized;
(2)
The uses or uses applicable, ownership, management, method of
preservation and the rights, if any, of the owners of the subdivision
to such land or portions thereof;
(3)
Any open space that will be deeded to a land conservation entity,
dedicated for acceptance by the Town or protected by a conservation
easement held by a land conservation entity;
(4)
The type of open space: reserved, common or public; and
(5)
The book and page of any conservation easements or deed restrictions
required to be recorded to implement such protections or restrictions.
H.
The Planning Board may require that a separate open space plan with full details and notations per Subsection E above be submitted for preliminary or final plan approval, or both. Planning staff may also require such a plan to be included as part of the as-built plan.
I.
If any, or all, of the open space will be owned in common by the residents of the conservation subdivision, the bylaws of the proposed homeowners' association and/or the recorded covenants, conditions and restrictions must specify maintenance responsibilities and tasks and be submitted to the Planning Board for review prior to final plan approval. See Subsection F above.
A.
In instances where affordable housing as defined by Title 16 is required, and the affordable housing will be built, either on-site or off-site per § 16.5.4, the Planning Board may allow:
(1)
In the R-C, R-RL and KP-V Zones, one additional lot for a market-rate single-family dwelling to be created in the conservation subdivision, provided all objectives, requirements and criteria in Chapter 16.10 are met to the Board's satisfaction and as follows:
(2)
In the R-S and R-U Zones, one additional lot for a market-rate single-family dwelling to be created in the conservation subdivision, provided all objectives, requirements and criteria in Chapter 16.10 are met to the Board's satisfaction and as follows:
(a)
Base zone residential density requirements will be necessarily
modified to allow an additional dwelling unit.
(b)
Open space requirements may also be modified by the Board when doing so will result in development that meets the intent of Chapter 16.10 while supplying modestly priced housing in a designated growth area per the Comprehensive Plan.
(c)
To qualify for this allowance, the affordable housing, if not
located on the conservation subdivision site itself, must be located
in one of these zones: R-S, R-U, B-L, or B-L1.
(d)
All lots must be served by public water and sewer.
(e)
No lots may be located within 100 feet of a conservation-zoned
property.
A.
The homeowners' association (HOA) is responsible for the maintenance
of open space(s) owned in common by the residents and other common
facilities such as streets, stormwater management systems, and shared
septic and water systems. Associations must maintain adequate funds
to defray these expenses. The Planning Board shall require an initial
capital fund for associations to be paid by the developer to cover
these expenses.
B.
Any additional plantings required by the Planning Board must be documented
and provisions made in the HOA's documents to ensure that the plantings
are maintained and replaced when necessary.
C.
The Planning Board may require that a qualified independent party
or steward be designated and contracted to oversee homeowners'-association-owned
open space in instances where natural resources or historical, archeological
or cultural features must be expertly observed and monitored. Such
an arrangement must be approved by the Board and will be funded by
the HOA in perpetuity or until a conservation or historic preservation
entity holds a conservation or historic preservation easement for
the open space or obtains the open space in fee. Any such transfer
of responsibility from the HOA to another entity must be reviewed
and approved by the Board as a major modification.
D.
Stormwater. The stormwater management system must be maintained in accordance with § 16.8.10F, Post-construction stormwater management. As stated in Subsection A above, an initial capital fund will be provided by the developer to cover expenses, but the HOA will be responsible for maintaining adequate funding going forward.
E.
Transition of responsibility. The developer is responsible for maintenance
of all open space and all facilities until development, sufficient
to support the HOA, has taken place. At minimum, 75% of the residences
must be built and sold before any transfer of responsibility may occur.
All HOA documentation must be distributed to the HOA prior to the
issuance of the final occupancy permit so the transition of responsibilities
is seamless.
Prior to the beginning of any site work, including tree cutting
or disturbing any soil, the applicant must:
