Town of Kittery, ME Chapter 16.9 Maritime and Shoreland-Related Development

[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[1] Editor's Note: This ordinance also superseded former Ch. 16.9, Design and Performance Standards for Natural Environment, as amended.

§ 16.9.1 Maritime and shoreland-related development.

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.

§ 16.9.2 Port Authority shoreland development review.

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:

(a) Construction plans for piers, ramps and floats;

(b) Areas of vegetation clearing;

(c) Location of required parking space(s); and

(d) Location of boat and/or float storage.

(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.

[1] Editor's Note: See 33 U.S.C. § 1344.

[2] Editor's Note: See 33 U.S.C. § 1413.

(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.

G. Appeal of Port Authority decision. Appeal of a Port Authority shoreland development plan decision by the Planning Board may be made per § 16.2.12B.

§ 16.9.3 Planning Board shoreland development review.

[Amended 12-9-2024]

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 a scale no greater than one inch equals 30 feet.

(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.

B. Waivers.

(1) Over the course of the application's review, with consideration of the development's overall limited scale and impact to the site, the Planning Board may waive or modify application submittals required in § 16.9.3C.

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) 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.

(3) Predevelopment photos of the proposed site, including all areas where any kind of change, such as new structures, building additions, walkways, patios or decks, are proposed are required for all applications.

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 that portion of the lot within the Shoreland, Resource Protection or Stream Protection Overlay Zone shall be calculated by the applicant and verified by the CEO and recorded in the Town's property records.

(b) Predevelopment photos as described in § 16.9.3C(3) must be submitted prior to obtaining a building permit.

(2) Clearing of vegetation for activities other than timber harvesting. These are subject to review and approval by the Code Enforcement Officer. See § 16.9.4D(7).

(3) Division of a conforming parcel that is not subject to subdivision as defined in Chapter 16.3.

(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.

(6) A public utility, water district, sanitary district or any utility company of any kind may not install services to any new structure located in the shoreland zones unless written authorization attesting to the validity and currency of all local permits required under this and any previous shoreland ordinance has been issued by the appropriate municipal officials or other written arrangements have been made between the municipal officials and the utility.

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 (OZ-SL-250), Resource Protection (OZ-RP) or Stream Protection (OZ-SL-75) 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, Shoreland or Stream Protection Area 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. If an application is either approved or denied with conditions, the reasons as well as the conditions must be stated in writing. 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 shoreland zoning plan 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.

H. Modification to an approved plan. Any modification to an approved shoreland development may be considered for approval under § 16.7.12C or § 16.8.11H.

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. Post approval. No later than 20 days after completion of the project, photographs of the site's development and shoreland vegetation post-construction must be submitted to the Code Enforcement Officer prior to receiving a certificate of occupancy.

L. Other references to shoreland development review within Title 16.

(1) Below are other pertinent sections within Title 16 referencing shoreland development provisions:

(a) Section 16.4.28: Shoreland Overlay Zone OZ-SL development and performance standards.

(b) Section 16.4.30: Commercial Fisheries/Maritime Activities Overlay Zones OZ-CFMU.

(c) Section 16.4.29: Resource Protection Overlay Zone OP-RP.

(d) Section 16.4.31: Stream Protection Overlay Zone (OZ-SL-75).

(e) Section 16.2.13D(2): Notice of violation within the Shoreland, Stream Protection or Resource Protection Overlay Zones.

(f) Section 16.5.23K: Signs in Shoreland Overlay and Resource Protection Overlay Zone.

(g) Section 16.5.27N: Road and driveway standards in Shoreland and Resource Protection Overlay Zones.

(h) Section 16.7.3A: Shoreland development review during site plan review.

(i) Section 16.8.4A: Shoreland development review during subdivision review.

(j) Section 16.8.9C(3)(a)[2]: Scheduling public hearings for shoreland development applications.

(k) Section 16.9.4, Shoreland zoning development.

§ 16.9.4 Shoreland zoning development.

[Added 12-9-2024[1]]

A. Intent. This section outlines the requirements for all shoreland-zoned development, which includes land and structures, within the Shoreland, Resource Protection, Stream Protection and Commercial Fisheries/Maritime Uses Overlay Zones. Collectively, these four overlay zones are known as shoreland zoning in the Town of Kittery.

(1) Shoreland-zoned property must meet all requirements of the base zone in which it is located as well as the additional restrictions and requirements associated with the pertinent shoreland overlay zone(s). Specific information for each type of shoreland overlay zone can be found as shown below:

(a) § 16.4.28 Shoreland Overlay Zone.

(b) § 16.4.29 Resource Protection Overlay Zone.

(c) § 16.4.30 Commercial Fisheries/Maritime Uses Overlay Zone.

(d) § 16.4.31 Stream Protection Overlay Zone.

(2) Whenever a provision of this section conflicts with or is inconsistent with another provision of this section, or of any other ordinance, regulation or statute administered by the Town of Kittery, the more restrictive provision will control.

(3) The following sections discuss nonconformance and permitting authority in the shoreland zones; and define various development review thresholds, standards and requirements to further the safe and orderly development of the Town while protecting critical natural resources and complying with state and local regulations.

B. Conformity required.

(1) No building, structure or land may be used or occupied, and no building or structure or part thereof may be erected, constructed, expanded, moved or altered, and no new lot may be created except in conformity with all of the regulations in Title 16 specified for the base zone and specific shoreland overlay zone where it is located, unless such structure or use exists as a legally nonconforming use or a variance is granted. See § 16.7.11B and § 16.8.10D for specific requirements related to septic waste disposal systems.

(2) Conformity in all shoreland zones means those properties, structures and uses:

(a) Located outside the applicable shoreland overlay zone; or

(b) Complying with required setbacks to the natural resource as defined by the applicable shoreland overlay zone; or

(c) Expressly permitted to be located within a particular shoreland overlay zone.

C. Nonconformity.

(1) All new principal and accessory structures, excluding functionally water-dependent uses as defined in Title 16, must meet the water body, tributary stream, or coastal or freshwater wetland setback requirements contained in §§ 16.4.28, 16.4.29, 16.4.30 and/or 16.4.31 as applicable.

(2) Repair and maintenance. The normal upkeep and maintenance of nonconforming uses and structures including repairs or renovations that do not involve expansion of the nonconforming use or structure that is not otherwise permitted in the applicable shoreland overlay zone, and such other changes in a nonconforming use or structure as federal, state, or local building and safety codes may require is allowed. Such repairs may be approved and permitted by the Code Enforcement Officer.

(3) Existing structures outside the applicable shoreland overlay zone setback. The Code Enforcement Officer may approve the expansion of a nonconforming structure, provided the proposed expansion is not located in the overlay zone required setback of the Shoreland Overlay Zone, or in any location within the Resource Protection, or Stream Protection Zones, and meets either of the following criteria:

(a) A vertical expansion that follows the existing building footprint;

(b) Will not result in setbacks less than those existing.

(4) Solar energy and storage systems. The Code Enforcement Officer may approve roof-mounted/building-integrated solar energy and/or energy storage systems. The Code Enforcement Officer may also approve the installation or replacement of ground-mounted solar energy systems and energy storage systems associated with residential or home occupation uses provided the proposed installation or replacements are located outside the required 100-foot setback to the Shoreland Overlay Zone only and those solar energy systems are not part of a site plan or subdivision application required to be reviewed by the Planning Board. Any ground-mounted solar and/or energy storage systems not associated with a residential or home occupation use are prohibited in the Shoreland, Resource Protection or Stream Protection Overlay Zones. Ground-mounted solar and/or energy storage systems associated with a residential or home occupation use proposed for location within the 100-foot setback to the Shoreland Overlay Zone or anywhere within the Resource Protection or Stream Protection Overlay Zones, must receive approval from the Planning Board. See § 16.9.4D(18) for ground-mounted solar requirements.

(5) Foundations. Wherever a new, enlarged, or replacement foundation is constructed under an existing nonconforming structure, the structure and new foundation must be placed such that setback requirements are met to the greatest practical extent as determined by the Planning Board, basing its decision on the criteria specified in § 16.9.4C(6), Nonconforming structure relocation, below.

(6) Nonconforming structure relocation. A nonconforming structure may be relocated within the boundaries of the parcel on which the structure is located provided the site of relocation conforms to all dimensional requirements, including those of any applicable Shoreland, Resource Protection, Stream Protection or Commercial Fisheries/Maritime Uses Overlay areas, to the greatest practical extent, as determined by the Planning Board, and provided the applicant demonstrates the present subsurface sewage disposal system meets the requirements of state law and the State of Maine Subsurface Wastewater Disposal Rules, or a new system can be installed in compliance with the law and said rules. In no case may the relocation of a structure be permitted that causes the structure to be more nonconforming. See § 16.7.11B and § 16.8.10D for other specific requirements related to septic waste disposal systems.

(a) In determining whether the structure relocation meets the setback to the greatest practical extent, the Planning Board must consider the following conditions:

[1] The size of the lot.

[2] The slope of the land.

[3] The potential for soil erosion.

[4] The location of other structures on the property and on adjacent properties.

[5] The location of the septic system and other on-site soils suitable for septic systems.

[6] The type and amount of vegetation to be removed to accomplish the relocation.

[7] Relocation of structures in the Commercial Fisheries/Maritime Uses Overlay Zone cannot replace, diminish or adversely impact existing functionally water-dependent uses. See § 16.4.30, Commercial Fisheries/Maritime Uses Overlay Zone.

(b) When it is necessary to remove vegetation within a Shoreland or Resource Protection Overlay Zone's setback area or within a Stream Protection Overlay Zone to relocate a structure, replanting of native vegetation to compensate for the destroyed vegetation is required. The Planning Board may restrict mowing around and pruning of the replanted native vegetation to encourage a more natural state of growth. Tree removal and vegetation replanting is required as follows, effective February 28, 2015.

[1] Prior to the commencement of on-site construction, areas to remain undisturbed must be clearly marked with stakes and caution tape. All stakes, caution tape, silt fences, and other materials used during construction must remain until all on-site work is completed. Prior to removal, written permission to remove such materials must be given by the Code Enforcement Officer.

[2] Trees removed to relocate a structure must be replanted with at least one native tree, six feet in height, for every tree removed. If more than five trees are planted, no one species of tree can be used to make up more than 50% of the number of trees planted. Replaced trees must be planted no farther from the water or wetland than the trees removed.

[3] Other woody and herbaceous vegetation and ground cover that is removed, or destroyed, to relocate a structure must be reestablished. An area at least the same size as the area where vegetation and/or ground cover was disturbed, damaged, or removed must be reestablished within the setback area. The vegetation and/or ground cover must consist of native vegetation and/or ground cover similar to that disturbed, destroyed or removed.

[4] Where feasible, when a structure is relocated on a parcel, the original location of the structure must be replanted with vegetation consisting of native grasses, shrubs, trees or a combination thereof.

(c) If the total footprint of the original structure can be relocated beyond the required setback area, no portion of the relocated structure may be constructed at less than the setback requirement for a new structure.

(7) Nonconforming structure expansion.

(a) Except where otherwise permitted in this title, expansion of a nonconforming structure located in the overlay zone setback of the Shoreland, Resource Protection, or Commercial Fisheries/Maritime Uses Overlays must be approved by the Planning Board. For expansion of a nonconforming structure in the Stream Protection Overlay Zone, a variance for the setback requirement from the Board of Appeals is required, followed by Planning Board approval. All such decisions will be made using criteria found in § 16.2.12F(2).

(b) A nonconforming structure may be expanded in conformity with Shoreland, Resource Protection and Stream Protection-related dimensional requirements, such as setback, height, etc., as contained in this title and in accordance with the following:

[1] If a legally nonconforming principal structure is partially located within 25 feet from the normal high-water line of a water body, tributary stream, or upland edge of a coastal or freshwater wetland included in Shoreland, Resource Protection or Stream Protection Overlay zoning, any expansion of those portions of the structure within that 25 feet is prohibited, even if the expansion will not increase nonconformity with the water body, tributary stream, coastal or freshwater wetland setback requirement.

[2] Expansion of an accessory structure that is located closer to the normal high-water line of a water body, tributary stream, or upland edge of a coastal or freshwater wetland included in Shoreland, Resource Protection or Stream Protection zoning, than the principal structure is prohibited, even if the expansion will not increase nonconformity with the water body, tributary stream, or coastal or freshwater wetland setback requirement.

[3] Notwithstanding § 16.9.4C(7)[b][1] above, if a legally existing nonconforming principal structure is entirely located less than 25 feet from the normal high-water line of a water body, tributary stream, or upland edge of a coastal or freshwater wetland included in Shoreland, Resource Protection or Stream Protection zoning, that structure may be expanded as follows, as long as all other applicable municipal land use standards are met and the expansion is not prohibited by § 16.9.4C(7).

[a] The maximum total footprint for the principal structure may not be expanded to a size greater than 800 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of the principal structure may not be made greater than 15 feet or the height of the existing structure, whichever is greater.

[4] All other legally existing nonconforming principal and accessory structures that do not meet the water body, tributary stream, or coastal or freshwater wetland setback requirements included in Shoreland, Resource Protection or Stream Protection Overlay zoning, may be expanded or altered as follows, as long as other applicable municipal land use standards are met and the expansion is not prohibited by § 16.9.4C(1) and (7) above:

[a] For structures located less than the applicable shoreland overlay zone setback from the normal high-water line of a water body, tributary stream, or upland edge of a coastal or freshwater wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,000 square feet, or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of any portion of a structure that is located within the base zone setback may not be made greater than 20 feet, or the height of the existing structure, whichever is greater.

[b] In addition to the limitations in § 16.9.4C(7)[4][a] above, for structures that are legally nonconforming due to their location within the Resource Protection Overlay Zone when located at less than 250 feet from the normal high-water line of a water body or the upland edge of a coastal or freshwater wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet, or 30% larger than the footprint that existed at the time the Resource Protection Overlay Zone was established on the lot, whichever is greater. The maximum height of any structure may not be greater than 25 feet, or the height of the existing structure, whichever is greater, except that any portion of those structures located less than 100-foot setback from the normal high-water line of a water body, tributary stream, or upland edge of a coastal or freshwater wetland must meet the footprint and height limits in § 16.9.4C(7)(b)[3][a] and [4][a] as applicable above.

(c) Expansion or changes in structures in the Commercial Fisheries/Maritime Uses Overlay Zone cannot replace, diminish or adversely impact existing functionally water-dependent uses. See § 16.4.30, Commercial Fisheries/Maritime Uses Overlay Zone.

(d) An approved plan for expansion of a nonconforming structure must be recorded by the applicant with the York County Registry of Deeds within 90 days of approval. The recorded plan must show the existing and proposed footprint of the nonconforming structure, the existing and proposed structure height, the footprint of any other structures on the parcel, the Shoreland Overlay Zone, Stream Protection Overlay Zone and/or the Resource Protection Overlay Zone boundary as applicable.

(8) Nonconforming structure reconstruction.

(a) In the Shoreland, Resource Protection, or Stream Protection Overlay Zone(s), any nonconforming structure which is located less than the required setbacks from a water body, tributary stream, or coastal or freshwater wetland and is removed, damaged or destroyed, by any cause, by more than 50% of the assessed value of the structure before such damage, destruction or removal, may be reconstructed or replaced, provided that a permit is obtained within 18 months of the date of said damage, destruction, or removal. Such reconstruction or replacement must be in compliance with the water body, tributary stream or coastal or freshwater wetland setback requirement to the greatest practical extent as determined by the Planning Board.

[1] In determining whether the structure reconstruction meets the setback to the greatest practical extent the Planning Board must consider, in addition to the criteria in § 16.9.4C(6)(a), Nonconforming structure relocation, the physical condition and type of foundation of any existing foundation.

(b) In the Shoreland, Resource Protection or Stream Protection Overlay Zone(s), if the total footprint of the original structure can be reconstructed beyond the required setback area, no portion of the reconstructed structure may be reconstructed at less than the setback requirement for a new structure. If the reconstructed or replacement structure is less than the required setback, it may not be any larger than the original structure, except as allowed in § 16.9.4C(7), Nonconforming structure expansion.

(c) Reconstruction of structures in the Commercial Fisheries/Maritime Uses Overlay Zone cannot replace, diminish or adversely impact existing functionally water-dependent uses. See § 16.4.30, Commercial Fisheries/Maritime Uses Overlay Zone.

(d) When it is necessary to remove vegetation to reconstruct a structure, vegetation must be replanted in accordance with § 16.9.4C(6)(b), Nonconforming structure relocation.

(e) Except where expressly permitted in this title, in no case may a structure be reconstructed or replaced so as to increase its nonconformity.

(9) Change of use of a nonconforming structure.

(a) The use of a non-conforming structure in the Shoreland, Resource Protection, Stream Protection or Commercial Fisheries/Marine Uses Overlay Zones may not be changed to another use unless the Planning Board, upon submission of an application, determines that the new use will have no greater adverse impact on the water body, tributary stream, or freshwater or coastal wetland, or on the subject or adjacent properties and resources than the existing use.

(b) In determining that no greater adverse impact will occur, the Planning Board must require written documentation from the applicant, regarding the probable effects on public health and safety, erosion and sedimentation, water quality, fish and wildlife habitat, vegetative cover, visual and actual points of public access to waters, natural beauty, floodplain management, archaeological and historic resources, and commercial fishing and maritime activities, and other functionally water-dependent uses.

(10) Height of a legally existing nonconforming structure in a special flood hazard zone.

(a) The height of a legally existing nonconforming structure may be raised to, but not above, the minimum elevation necessary to be consistent with § 16.5.11, Floodplain management, or to three feet above the base flood elevation, whichever is greater, as long as the structure is relocated, reconstructed, replaced or elevated within the boundaries of the lot so that the water body or wetland (coastal or freshwater) setback requirements are met to the greatest practical extent. This applies to structures that:

[1] Have been or are proposed to be relocated, reconstructed, replaced or elevated to be consistent with § 16.5.11, Floodplain management; and

[2] Are located in an area of special flood hazard as identified in § 16.5.11, Floodplain management.

(11) Nonconforming uses.

(a) Nonconforming use continuance. The use of land, or a structure, lawful at the time such use began, may continue although such a use may not meet the provisions of this title.

(b) Resumption of discontinued use prohibited. A nonconforming use discontinued for a period exceeding one year, or which is superseded by a conforming use, loses its status as a permitted nonconforming use. The uses of the land or structure must thereafter meet the provisions of this title. This provision does not apply to the resumption of a use of a residential structure where it can be demonstrated that the structure has been used or maintained for residential occupancy during the preceding five-year period.

(c) Nonconforming use expansion. Expansion of nonconforming uses is prohibited, except the Planning Board may approve expansion of non-conforming residential uses within an existing residential structure. Expansion of nonconforming residential uses shall not include expanding the number of nonconforming residential units on the property.

[1] Where the expansion of a nonconforming residential use involves the expansion of a structure, the structure must be expanded in conformity with all requirements as outlined § 16.9.4.C(7), Nonconforming structures. In the Stream Protection Zone such a structure expansion must receive a setback variance from the Board of Appeals prior to submission of a Planning Board application.

[2] Expansion or changes in uses, including any pertinent structures, in the Commercial Fisheries/Maritime Uses Overlay Zone cannot replace, diminish or adversely impact existing functionally water-dependent uses. See § 16.4.30, Commercial Fisheries/Maritime Uses Overlay Zone.

(d) Nonconforming use change. An existing non-conforming use may be changed to another non-conforming use provided the Planning Board determines that the proposed use has no greater adverse impact on any water body, tributary stream, coastal or freshwater wetland or on the subject and adjacent properties and resources, including any water dependent uses in the Commercial Fisheries/Marine Uses Overlay Zone (CFMA) district, than the existing use. The Planning Board may require a written evaluation of the change of use prepared by an individual(s) certified and/or qualified to perform such evaluations. The evaluation costs are the responsibility of the applicant and must examine the probable effects on the following:

[1] Public health and safety;

[2] Erosion and sedimentation;

[3] Water quality;

[4] Fish and wildlife habitat;

[5] Vegetative cover;

[6] Visual and actual points of public access to waters;

[7] Natural beauty;

[8] Floodplain management;

[9] Archaeological and historic resources; and

[10] Commercial fishing and maritime activities, and other functionally water-dependent uses.

The applicant is also encouraged to submit any additional supporting documentation such as maps, data and reports that may exist to augment the application for the Planning Board.

(12) Nonconforming lots.

(a) Nonconforming lots of record. A non-conforming lot of record within the Shoreland and/or Resource Protection Overlays as of June 13, 1977, the effective date for the Town's shoreland-related ordinance, may be built upon, without the need for a variance, provided that such lot is in separate ownership and not contiguous with any other lot in the same ownership. All provisions of § 16.9.4 except lot area, lot width and shore frontage must be met. Variances relating to setback or other requirements not involving lot area, lot width or shore frontage must be obtained by submission to and approval from the Board of Appeals. If the lot is also nonconforming according to its base zone requirements, that lot must also meet the requirements of § 16.1.8C(6).

(b) Contiguous developed nonconforming lots. If two or more contiguous lots or parcels were in a single or joint ownership of record prior to June 13, 1977, the effective date of the Town's shoreland-related ordinance, with all or part of the lots not meeting the dimensional requirements of this title, and if a principal use or structure exists on each lot, the nonconforming lots may be conveyed separately or together, provided that the State Minimum Lot Size Law (12 M.R.S.A. §§ 4807-A through 4807-D) and the State of Maine Subsurface Wastewater Disposal Rules are complied with.

[1] If two or more principal uses or structures existed on a single lot of record on the pertinent effective dates noted above of this ordinance, each may be sold on a separate lot provided that the above referenced requirements are complied with. When such lots are divided, each lot created must be as conforming as possible to the dimensional requirements of this title which includes both the base zone and the particular shoreland zoning overlay(s) the lot is located in.

(c) Contiguous vacant or partially built lots. If two or more contiguous lots or parcels are in single or joint ownership of record at the time of or since adoption or amendment of this title (see § 16.9.4C(12)[a] above), if any of these lots do not individually meet the dimensional requirements of this title or subsequent amendments, and if one or more of the lots are vacant or contain no principal structure, the lots shall be combined to the extent necessary to meet the dimensional requirements. This subsection does not apply:

[1] If two or more of the contiguous lots, at least one of which is nonconforming, is owned by the same person or persons as of the effective date in § 16.9.4C(12)[a] above, is served by a public sewer, or can accommodate a subsurface sewage disposal system in conformance with this title, § 16.8.10D, Sewage disposal, and the State of Maine Subsurface Wastewater Disposal Rules; and

[a] If each lot contains at least 100 feet of shore frontage and at least 20,000 square feet of lot area; or

[b] Any lot(s) that do not meet the frontage and lot size requirements of § 16.9.4C(12)(c)[1] are reconfigured or combined so each new lot contains at least 100 feet of shore frontage and 20,000 square feet of lot area.

(d) Adjustment of common boundary line of two nonconforming lots where all or part of either lot is within the Shoreland Overlay Zone(s).

[1] The common property line of two nonconforming lots of record, each with legally created principal structures, and under the same joint or single ownership may be adjusted under the following circumstances:

[a] The CEO determines the proposed lot line adjustment makes the lot within the Shoreland Overlay Zone more nonconforming, which requires the Planning Board to determines that each resulting lot is as conforming as practicable to the dimensional requirements of this title and meets the following requirements:

[i] Each resulting lot is not less than 20,000 square feet in lot size and has no less than 100 feet in shore frontage; and

[ii] A lot that is currently conforming to the minimum lot standards for principal-structures and uses found in §§ 16.4.28, 16.4.29 and 16.4.31 remains conforming to those requirements; and

[iii] Common boundary lines may not be adjusted when both subject lots are nonconforming per §§ 16.4.28, 16.4.29 and 16.4.31 minimum lot standards; and

[iv] Adherence to State Minimum Lot Size Law (12 M.R.S.A. §§ 4807-A through 4807-D) and State of Maine Subsurface Wastewater Disposal Rules or public sewer is required in all instances, for both lots.

[2] It is not the intention of the above Subsection C(12)(d)[1] (adjustment of common boundary line of nonconforming lots), to allow for the creation of an additional lot. A property line adjustment in accordance with this subsection and Title 16.8, Subdivision Review, does not constitute the creation of a new lot and the adjusted lot remains a legally nonconforming lot of record, not applicable to the joining of lots.

(13) Requirements met.

(a) All Planning Board shoreland development applications must be found by the Planning Board to satisfy the criteria in § 16.9.3(F)(2).

(b) In addition to the criteria in § 16.9.3(F)(2), when the Planning Board approves an application for a single-family structure in the Resource Protection Zone, the Board must also find that the applicant has demonstrated that there is no other location on the property, other than the Resource Protection Zone, where the structure may be built.

D. Performance standards.

(1) Agriculture.

(a) Agricultural practices must be conducted to minimize soil erosion, sedimentation, contamination and nutrient enrichment of groundwater and surface waters.

(b) All spreading or disposal of manure must be accomplished in conformance with the Manure Utilization Guidelines, November 1, 2001, published by the Maine Department of Agriculture and the Nutrient Management Act Law (7 M.R.S.A. §§ 4201 to 4214).

(c) Manure must not be stored or stockpiled within 100 feet, horizontal distance, of the normal high-water line of any water bodies, tributary streams, coastal wetlands or freshwater wetlands. Within five years of the effective date of this chapter, all manure storage areas within the Shoreland, Stream Protection and Resource Protection Overlay Zones must be constructed or modified so the facility produces no discharge of effluent or contaminated stormwater. Existing facilities which do not meet the setback requirement may remain but must meet the no-discharge provision within the above five-year period.

(d) Owners of agricultural activities involving tillage of soil greater than 40,000 square feet in surface area or the spreading, disposal or storage of manure within the Shoreland, Stream Protection or Resource Protection Overlay Zones are required to submit a soil and water conservation plan to the Planning Board for review and approval. Nonconformance with the provisions of said approved plan will be a violation of this section.

(e) New tilling of soil within 100 feet, horizontal distance, of the normal high-water line of water bodies or upland edge of coastal wetlands; within 25 feet, horizontal distance, of the normal high-water line of tributary streams and freshwater wetlands is prohibited. Operations in existence on the effective date of this chapter and not in conformance with this provision may be maintained.

(f) After the effective date of this section, newly established livestock grazing areas will not be permitted within 100 feet, horizontal distance, of the normal high-water line of any water bodies or upland edge of coastal wetlands or within 25 feet, horizontal distance, of the normal high-water line of tributary streams and freshwater wetlands. Livestock grazing associated with ongoing farm activities, and which are not in conformance with the above setback provision, may continue, provided that such grazing is conducted in accordance with a soil and water conservation plan that has been approved by the Planning Board.

(2) Campgrounds and individual private campsites.

(a) Campgrounds must meet the minimum requirements according to state licensing procedures in addition to the following:

[1] Campgrounds must contain a minimum of 5,000 square feet of land, not including roads and driveways, for each site.

[2] Land supporting wetland vegetation and land below the normal high-water line of a water body or the highest astronomical tide if tidal is not to be included in calculating land area per site as described above in § 16.9.4D(2)(a)[1].

[3] The areas intended for placement of a recreational vehicle, tent or shelter, and utility and service buildings must be set back a minimum of 75 feet, horizontal distance, from the normal high-water line of water bodies, tributary streams or the upland edge of a freshwater or coastal wetland.

(b) Individual private campsites not associated with campgrounds may be permitted in a Shoreland, Stream or Resource Protection Overlay Zone, provided the following conditions are met:

[1] One campsite per lot existing on the effective date of this ordinance or 30,000 square feet of lot area within the Shoreland, Stream or Resource Protection Overlay Zone, whichever is less, may be permitted.

[2] Campsite placement on any lot, including the area intended for a recreational vehicle or tent platform, must be set back 75 feet, horizontal distance, from the normal high-water line of water bodies, tributary streams or the upland edge of a coastal or freshwater wetland.

[3] Only one recreational vehicle is allowed on a campsite. Permanent foundations for recreational vehicles are prohibited. Gravel pads for temporary recreational vehicle parking are permissible. No structures, other than canopies, are allowed for attachment to the recreational vehicle.

[4] The clearing of vegetation for the siting of the recreational vehicle, tent or similar shelter in a Resource Protection Overlay Zone is limited to 1,000 square feet.

[5] A written sewage disposal plan describing the proposed method and location of sewage disposal is required for each campsite and must be approved by the local Plumbing Inspector. Where disposal is off site, written authorization from the receiving facility or property owner is required.

[6] Recreational vehicles, tents or similar shelters are not allowed to remain on site for a period longer that 120 days per year, unless it can be demonstrated that all requirements for residential structures have been met, including the installation of a subsurface sewage disposal system in compliance with the State of Maine Subsurface Wastewater Disposal Rules and/or the site is served by public sewage facilities.

[7] When an individual private campsite is proposed on a lot that contains another principal use and/or structure, the lot must contain the minimum lot dimensional requirements for the principal structure and/or use, and the individual private campsite separately.

(3) Essential services.

(a) Installation. Where feasible, the installation of essential services will be limited to existing public ways and existing service corridors.

(b) Location in OZ-SP-75 or OZ-RP Zone. The installation of essential services is not permitted in a Resource Protection Overlay Zone or Stream Protection Overlay Zone, except to provide services to a permitted use within said zone, or except where the applicant demonstrates no reasonable alternative exists. Where permitted, such structures and facilities must be located to minimize any adverse impacts on surrounding uses and resources, including visual impacts.

(c) Replacement of equipment without permit. Damaged or destroyed public utility transmission and distribution lines, towers and related equipment may be replaced or reconstructed without a permit.

(4) Mineral/earth material exploration and removal.

(a) Mineral extraction, including sand and gravel extraction, is prohibited within the Shoreland Overlay, Stream Protection Overlay and Resource Protection Overlay Zones. See additional requirements related to wetlands in § 16.5.30.

(5) Piers, docks, wharves, and other uses projecting into water bodies.

(a) Standards. Development involving uses and structures projecting into water bodies and freshwater and coastal wetlands must conform to the following standards:

[1] In accordance with 38 M.R.S.A. § 435 et seq., Mandatory Shoreland Zoning, all standards, dimensional or otherwise, (excluding setbacks from water bodies) of this title apply to structures and uses projecting into a water body beyond the normal high-water line or beyond the highest astronomical tide. The term "wetland" applies to both coastal and freshwater wetlands for the purposes of this subsection.

[2] No new structure may be built on, over, or abutting a pier, wharf, dock or other structure extending beyond the normal high-water line of a water body or within a wetland unless the structure requires direct access to the water body or wetland as an operational necessity, defined as functionally water-dependent. See § 16.3, "functionally water-dependent uses." Boathouses, while convenient to locate near the water, are not functionally water-dependent uses and must meet the same setback requirement as principal structures.

[3] Access from shore must be developed on soils appropriate for such use and constructed to control erosion.

[4] The location must not interfere with existing developed recreational and maritime commerce or natural beach areas.

[5] The facility must be located so as to minimize adverse effects on fisheries.

[6] The facility must be a functionally 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.

[7] No existing structures built on, over or abutting a pier, dock, wharf or other structure extending beyond the normal high-water line of a water body or within a wetland may be converted to residential dwelling units in any district.

[8] 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 normal high-water line of a water body or within a wetland must not exceed 20 feet in height above the pier, wharf, dock or other structure.

[9] 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, Section 9 or 10 of the Rivers and Harbors Act, or Section 103 of the Marine Protection, Research and Sanctuaries Act, must submit proof of a valid permit issued.

[10] 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.

[11] 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.

[12] Commercial development of the shorefront must provide for access by the general public as part of a shorefront development plan.

[13] Only one pier, dock, ramp, and float or similar structure is permitted on any single noncommercial or nonindustrial lot.

[a] When that single lot contains at least twice the minimum shore frontage as specified in § 16.4.28, a second structure may be allowed and remain as long as the lot is not further divided.

[14] 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.

(6) Shoreline stabilization.

(a) Vegetation may be removed in excess of the standards in § 16.9.4D(7) in order to conduct shoreline stabilization of an eroding shoreline, provided that a permit is obtained from the Planning Board. Construction equipment must access the shoreline by barge when feasible as determined by the Planning Board.

(b) When necessary, the removal of trees and other vegetation to allow for construction equipment access to the stabilization site via land must be limited to no more than 12 feet in width. When the stabilization project is complete the construction equipment accessway must be restored.

(c) Revegetation must occur in accordance with § 16.9.4D(10).

(7) Clearing or removal of vegetation for uses other than timber harvesting in Resource Protection, Stream Protection or Shoreland Overlay Zone.

(a) In a Resource Protection or Shoreland Overlay Zone, cutting of vegetation is prohibited within the strip of land extending 100 feet, horizontal distance, inland from the normal high-water line or highest astronomical tide, if tidal, of the water body, freshwater or coastal wetland, except to remove safety hazards. In a Stream Protection Overlay Zone, cutting of vegetation is prohibited within a strip of land extending 75 feet, horizontal distance inland from the normal high-water line of the stream. See § 16.9.4D(8) for additional requirements, including replanting.

(b) Outside the 100-foot or 75-foot buffer described above in a Resource Protection or Stream Protection Overlay Zone, the cutting or removal of vegetation is limited to that which is necessary for uses expressly authorized in the relevant overlay zone. In the Shoreland Overlay Zone, within a strip of land extending 100 feet horizontal distance from the normal high water line of a water body, tributary stream or upland edge of a coastal or freshwater wetland, a buffer strip of vegetation must be preserved as follows:

[1] Clearing of an opening greater than 250 square feet in the forest canopy, or other existing woody vegetation if a forested canopy is not present, as measured from the outer limits of the tree or shrub crown, is prohibited. However, a meandering footpath not to exceed six feet in width as measured between tree trunks and/or shrub stems is allowed for accessing the shore, provided that a cleared line of sight to the water through the buffer strip is not created.

[2] Selective cutting of trees within the buffer strip is allowed, provided a well-distributed stand of trees and other natural vegetation is maintained. Adjacent to water bodies, tributary streams and wetlands both coastal and freshwater, a "well-distributed stand of trees" is defined as maintaining a minimum rating score of 16 per twenty-five-foot-by-fifty-foot rectangular area.

Diameter of Tree at 4 1/2 Feet Above Ground Level (inches)	Points
2 to < 4	1
4 to < 8	2
8 to < 12	4
12 or greater	8

[a] The following governs when applying this point system:

[i] The twenty-five-foot-by-fifty-foot rectangular plots must be established where the landowner or lessee proposes clearing within the required buffer;

[ii] Each successive plot must be adjacent to, but not overlap a previous plot;

[iii] Any plot not containing the required points must have no vegetation removed except as otherwise allowed by this ordinance;

[iv] Any plot containing the required points may have vegetation removed down to the minimum points required or as otherwise allowed by this title; and

[v] Where conditions permit, no more than 50% of the points on any twenty-five-foot-by-fifty-foot rectangular area may consist of trees greater than 12 inches in diameter.

[3] For the purposes of § 16.9.4D(7)(b)[2], "other natural vegetation" is defined as retaining existing vegetation under three feet in height and other ground cover and retaining at least five saplings less than two inches in diameter at 4 1/2 feet above ground level for each twenty-five-foot-by-fifty-foot rectangle area. If five saplings do not exist, no woody stems less than two inches in diameter may be removed until five saplings have been recruited into the plot.

[4] Notwithstanding the above provisions, no more than 40% of the total volume of trees four inches or more in diameter, measured at 4 1/2 feet above ground level, may be removed in any ten-year period.

[a] To protect water quality and wildlife habitat, existing vegetation under three feet in height and other ground cover, including leaf litter and the forest duff layer, must remain uncut, uncovered or undisturbed, except to provide for a footpath or other permitted uses as described in § 16.9.4D(7)(b)[1] above.

[b] Pruning of tree branches on the bottom 1/3 of the tree is allowed.

[c] To maintain a buffer strip of vegetation, when the removal of storm-damaged hazard or dead trees results in the creation of cleared openings, these openings must be replanted with native tree species that are suitable to Kittery's growing conditions unless existing new tree growth is present. See § 16.9.4D(8)(a)[1] Hazard trees, storm-damaged trees and dead tree removal.

(c) It is not permissible to clear openings for any purpose, including but not limited to principal and accessory structures, driveways, lawns and sewage disposal areas, exceeding in the aggregate 25% of the lot area within the Resource Protection, Stream Protection or Shoreland Overlay Zone or 10,000 square feet, whichever is greater, including land previously cleared. This provision applies to the portion of a lot within the Shoreland or Resource Protection Zones but does not apply to the Commercial Fisheries/Maritime Uses Zones.

(d) Legally existing nonconforming cleared openings, such as fields or meadows, may be maintained, but must not be enlarged, except as allowed by this title.

(e) Fields and other cleared openings which have reverted to primarily shrubs, trees or other woody vegetation will be regulated under the provisions of § 16.9.4D(7).

(f) When planting or replanting is required, all requirements of § 16.9.4D(10) must be met.

(8) Hazard Trees, Storm-Damaged Trees, and Dead Tree Removal.

(a) Hazard trees, as defined by this code, in the Shoreland, Resource or Stream Protection Zones may be removed once a permit is issued by the Code Enforcement Officer. Consultation with the Code Enforcement Officer prior to applying for a permit is recommended. The following requirements must be met:

[1] Within the required shoreland zone setback (also known as the buffer strip) or anywhere within the Stream Protection Overlay Zone, if the removal of a hazard tree results in a cleared opening in the tree canopy greater than 250 square feet, replacement with native tree species is required, unless there is new tree growth already present. New tree growth must be as near as practicable to the location of the hazard tree which was removed and be at least two inches in diameter, measured at four and one-half feet above the ground level. If new growth is not present, then replacement trees must consist of Maine native species and be at least four feet in height and be no less than two inches in diameter. Stumps may not be removed.

[a] Outside of the Shoreland or Resource Protection Overlay Zone setback, if the removal of hazard trees meets one or both of the following conditions: 1) Exceeds 40% of the volume of trees four inches or more in diameter, measured at four and one-half feet above ground level in any ten-year period, and/or 2) results in cleared openings that either exceed 25% of the lot area or 10,000 square feet, whichever is greater, replacement with native tree species is required unless there is new tree growth already present. New tree growth must be as near as practicable to the location of the hazard tree which was removed and be at least two inches in diameter, measured at four and one-half feet above the ground level. If new growth is not present, then replacement trees must consist of Maine native species and be at least two inches in diameter, measured at four and one-half feet above the ground level.

[2] The Code Enforcement Officer will require the property owner to submit an evaluation from a Maine licensed arborist before any hazard tree can be removed within Shoreland, Resource Protection or Stream Protection Zones.

[3] The Code Enforcement Officer may require more than a one-for-one replacement for hazard trees removed that exceed eight inches in diameter measured at four and one-half feet above the ground level.

(b) The removal of standing dead trees, resulting from natural causes, is permissible once a Code Enforcement Officer has been consulted and a permit issued, providing the removal does not result in the creation of new lawn areas, or other permanently cleared areas, and stumps are not removed. For the purposes of this provision, dead trees are those trees that exhibit no foliage during the entire growing season.

(c) Storm-damaged trees in the shoreland overlay zones may be removed once a permit has been issued by the Code Enforcement Officer. Consultation with the Code Enforcement Officer prior to applying for a permit is recommended. The following requirements must be met:

[1] Within the required pertinent shoreland overlay zone setback (also called the buffer strip) or within the Stream Protection Overlay Zone, when the removal of storm-damaged trees results in a cleared opening in the tree canopy greater than 250 square feet, replanting is not required, but the area must be allowed to naturally revegetate. The following requirements also apply:

[a] The area from which a storm-damaged tree is removed must not result in new lawn areas, or other permanently cleared areas and cannot be mowed or brush cut;

[b] Stumps from the storm-damaged trees may must not be removed;

[c] Limbs damaged from a storm event may be pruned even if they extend beyond the bottom 1/3 of the tree; and

[d] If after one growing season, no natural regeneration or regrowth is present, replanting of native tree seedlings or saplings is required at a density of one seedling per every 80 square feet of lost canopy.

[e] Invasive species, as defined by the State of Maine, may be removed as they appear.

[2] Outside of the pertinent shoreland overlay zone setback (also called the buffer strip), if the removal of storm damaged trees exceeds 40% of the volume of trees four inches or more in diameter, measured at four and one-half feet above the ground level in any ten-year period, or results, in the aggregate, in cleared openings exceeding 25% of the lot area within the shoreland zone or 10,000 square feet, whichever is greater, and no natural regeneration occurs within one growing season, then native tree seedlings or saplings must be replanted on a one-for-one basis.

(d) In all cases where planting or replanting is required, at least 80% of the trees planted must survive for at least the following five years or be replaced.

(e) The property owner must take a photograph of the area before and after any required replanting and submit it to the Town.

(9) Exemptions to Clearing and Vegetation Removal Requirements.

(a) The following activities are exempt from the clearing and vegetation removal standards found in § 16.9.4D(7), provided that all other applicable requirements of shoreland zoning in Title 16 are complied with, and the removal of vegetation is limited to that which is necessary:

[1] The removal of vegetation that occurs at least once every two years for the maintenance of legally existing areas described in § 16.9.4D(7) and (8) that do not comply with the vegetation standards also described in the aforementioned citations, such as but not limited to cleared openings in the canopy, meadows or fields. Such areas shall not be enlarged, except as allowed by this section. If any of these areas, due to lack of removal of vegetation every two years, reverts back to primarily woody vegetation, the requirements of § 16.9.4D(7) apply;

[2] The removal of vegetation from the location of allowed structures and/or allowed uses, when the shoreland overlay setback requirements of §§ 16.4.28, 16.4.29 or 16.4.31 are not applicable;

[3] The removal of vegetation from the location of public swimming areas associated with or adjacent to an allowed public recreational facility provided cleared areas are limited to the minimum area necessary;

[4] The removal of vegetation associated with allowed agricultural uses, provided best management practices are utilized, and provided all requirements of § 16.9.4D(1) are met;

[5] The removal of vegetation associated with brownfields provided that the removal of vegetation is necessary for remediation activities to clean up contamination on a site in a commercial fisheries and maritime activities zone or other equivalent zoning district approved by the Commissioner that is part of a state or federal brownfields program and that is located along a coastal wetland.

[6] The removal of non-native invasive vegetation species, provided the following minimum requirements are met:

[a] If removal of vegetation occurs via wheeled or tracked motorized equipment, the wheeled or tracked motorized equipment is operated and stored at least 25 feet, horizontal distance, from the shoreline, except that wheeled or tracked equipment may be operated or stored on existing structural surfaces, such as pavement or gravel;

[b] Removal of vegetation within 25 feet, horizontal distance, from the shoreline occurs via hand tools; and

[c] If applicable clearing and vegetation removal standards are exceeded due to the removal of non-native invasive species vegetation, the area must be revegetated with native species to achieve compliance.

[7] The removal of vegetation associated with emergency response activities conducted by the Department, the U.S. Environmental Protection Agency, the U.S. Coast Guard, and their agents.

(10) Revegetation requirements.

(a) When revegetation is required in response to violations of the vegetation standards set forth in § 16.9.4D(7), to address the removal of non-native invasive species of vegetation, or as a mechanism to allow for development that may otherwise not be permissible due to the vegetation standards, including removal of vegetation in conjunction with a shoreline stabilization project, the revegetation must comply with the following requirements.

[1] The property owner must submit a revegetation plan, prepared by and signed by a qualified professional, that describes revegetation activities and maintenance. The plan must include a scaled site plan, depicting:

[a] Where vegetation was, or what is to be removed, including species names.

[b] Where existing vegetation is to remain, including species names.

[c] Where vegetation is to be planted, including a list of the species to be planted.

[2] Revegetation must occur along the same segment of shoreline and in the same area where vegetation was removed and at a density comparable to the pre-existing vegetation, except where a shoreline stabilization activity does not allow it, in which case revegetation must occur along the same segment of shoreline and as close as possible to the area where vegetation was removed.

[3] If part of a permitted activity, revegetation must occur before the expiration of the permit. If the activity or revegetation is not completed before the expiration of the permit, a new revegetation plan must be submitted with any renewal or new permit application.

[4] Revegetation activities must meet the following requirements for trees and saplings:

[a] All trees and saplings removed must be replaced with native species;

[b] Replacement vegetation must at a minimum consist of saplings;

[c] If more than three trees or saplings are planted, then at least three different species shall be used;

[d] No one species shall make up 50% or more of the number of trees and saplings planted;

[e] If revegetation is required for a shoreline stabilization project, and it is not possible to plant trees and saplings in the same area where trees or saplings were removed, then trees or sapling must be planted in a location that effectively reestablishes the screening between the shoreline and structures; and

[f] A survival rate of at least 80% of planted trees or saplings is required for a minimum five-year period or replanting is required.

[5] Revegetation activities must meet the following requirements for woody vegetation and other vegetation under three feet in height:

[a] All woody vegetation and vegetation under three feet in height must be replaced with native noninvasive species of woody vegetation and vegetation under three feet in height as applicable;

[b] Woody vegetation and vegetation under three feet in height shall be planted in quantities and variety sufficient to prevent erosion and provide for effective infiltration of stormwater;

[c] If more than three woody vegetation plants are to be planted, then at least three different species shall be planted;

[d] No one species shall make up 50% or more of the number of planted woody vegetation plants; and

[e] Survival of planted woody vegetation and vegetation under three feet in height must be sufficient to remain in compliance with the standards contained within this chapter for minimum of five years.

[6] Revegetation activities must meet the following requirements for ground vegetation and ground cover:

[a] All ground vegetation and ground cover removed must be replaced with native herbaceous vegetation, in quantities and variety sufficient to prevent erosion and provide for effective infiltration of stormwater;

[b] Where necessary due to a lack of sufficient ground cover, an area must be supplemented with a minimum four-inch depth of leaf mulch and/or bark mulch to prevent erosion and provide for effective infiltration of stormwater; and

[c] Survival and functionality of ground vegetation and ground cover must be sufficient to remain in compliance with the standards contained within this section for minimum of five years or replanting is required.

(11) Wireless communications services facilities in the Shoreland, Resource Protection and Stream Protection Overlay Zones.

(a) The base of a telecommunications tower may not be located in Shoreland, Stream Protection or Resource Protection Overlay Zones. See § 16.5.31 for additional requirements outside of these overlay zones.

(12) Stormwater management in the Shoreland, Resource Protection and Stream Protection Overlay Zones.

(a) Stormwater management/drainage systems and structures must be placed at least:

[1] 100 feet from the upland edge of a coastal wetland, or the upland edge of a freshwater wetland; or

[2] 75 feet from the normal high-water line of a stream or tributary stream.

(b) For stormwater management systems and drainage structures associated with a new road or driveway, also see § 16.5.27.

(13) Parking areas or facilities.

(a) Where allowed, parking areas must be set back at least 100 feet from the normal high-water line of any water bodies, tributary streams, the upland edge of a coastal wetland, or the upland edge of a freshwater wetland unless otherwise allowed below.

(b) In the Commercial Fisheries/Maritime Uses Overlay Zone, a parking area or facility must be set back at least 25 feet from the normal high-water line of a water body or the upland edge of a coastal wetland. The setback requirement for a parking area serving public boat-launching facilities, in shoreland overlay zones other than those found in the Commercial, Business-Local, Residential-Urban Zones base zones, and in the Commercial Fisheries/Maritime Uses Overlay Zone, may be reduced to no less than 50 feet from the normal high-water line of a water body or upland edge of a coastal or freshwater wetland if the Planning Board finds no other reasonable alternative exists.

(c) Parking areas or facilities are not allowed in the Resource Protection Overlay Zone unless the proposed location is zoned Resource Protection Overlay Zone (OZ-RP) solely because the location lies within a floodplain, in which case approval is required by the Planning Board.

(d) Parking areas or facilities are not allowed in the Stream Protection Overlay Zone.

(e) Parking areas must be designed to prevent stormwater from flowing directly into a water body, tributary stream, or wetland, either coastal or freshwater. When the parking area or facility is not located in a base zone that requires stormwater to be retained and managed on-site, stormwater must still be retained on-site whenever practicable as determined by the Planning Board.

(14) Erosion and sedimentation control.

(a) All activities which involve filling, grading, excavation or similar activities that result in unstable soil conditions, and which require a permit, must submit a written soil erosion and sedimentation control plan in accordance with the "Maine Erosion and Sediment Control Practices Field Guide for Contractors," 2015, and as amended. The plan must be submitted to the permitting authority for approval and must include, where applicable, provisions for:

[1] Mulching and revegetation of disturbed soil;

[2] Temporary runoff control features, such as straw bales, silt fencing, filter socks or diversion ditches;

[3] Permanent stabilization structures, such as retaining walls or riprap.

(b) To create the least potential for erosion, development must be designed to fit with the topography and soil of the site. Areas of steep slopes where high cuts and fills may be required are to be avoided wherever possible, and natural contours must be followed as closely as possible.

(c) Erosion and sedimentation control measures apply to all aspects of the proposed project involving land disturbance and must be in operation during all stages of the activity. The amount of exposed soil at every phase of construction must be minimized to reduce the potential for erosion.

(d) Any exposed ground area must be temporarily or permanently stabilized within one week from the time it was last actively worked in accordance with the "Maine Erosion and Sediment Control Practices Field Guide for Contractors," 2015, and as amended. In all cases, permanent stabilization must occur within nine months of the initial date of exposure. All erosion control measures that are no longer necessary as determined by a CEO must be removed at the owner's expense.

(e) Natural and man-made drainageways and drainage outlets must be protected from erosion due to water flowing through them. Drainageways must be designed and constructed in order to carry water from a 25-year storm or greater and must be stabilized with vegetation or lined with riprap.

(15) Soils.

(a) All land uses must be located on soils in or upon which the proposed uses or structures can be established and/or maintained without causing adverse environmental effects, including, but not limited to, severe erosion, mass soil movement, improper drainage, and water pollution to surface water and groundwater, whether during or after construction.

(b) Proposed uses requiring subsurface waste disposal, and commercial or industrial development and other intensive land uses require a soils report based on on-site investigation and evaluation and prepared by state-certified professionals such as Maine certified soil scientists, Maine registered professional engineers, Maine State certified geologists or other such qualified individuals.

[1] The soils report must be based on analysis of soil characteristics and surrounding land and waters, maximum groundwater elevation, presence of ledge, drainage conditions, and other pertinent data that the evaluating professional deems appropriate. In addition, the soils report must include recommendations for counteracting soil limitations where they exist for the proposed use.

(16) Water quality.

(a) No activity is allowed to deposit on or into the ground or discharge to any stream or brook, tributary stream, pond, fresh or coastal wetland, any pollutant that, by itself or in combination with other activities or substances, will impair designated uses or the State's water quality classification of those natural resources.

(17) Archeological or historic sites.

(a) Any proposed land use activity involving structural development or soil disturbance on or adjacent to sites listed on or eligible to be listed on the National Register of Historic Places, as determined by either the Planning Board or the Code Enforcement Officer, whichever is the permitting authority for the application, must be submitted by the applicant to the Maine Historic Preservation Commission (MHPC) for review and comment, at least 20 days prior to action being taken by the permitting authority. The permitting authority must consider comments from the MHPC prior to rendering a decision on the application.

(18) Solar energy systems, ground-mounted.

(a) Any ground-mounted solar energy system proposed within the Shoreland, Resource Protection, or Stream Protection Overlay Zone is restricted to properties with residential use(s) or residential properties that are also permitted for a home occupation use, either major or minor. In a Resource Protection Overlay Zone, ground-mounted solar energy systems are only allowed when a building-mounted solar energy system cannot meet the requirements of this title.

(b) These provisions do not apply to projects designed for commercial generation of power.

(c) The area within the setback in which the solar energy system is proposed must be:

[1] A legally existing clearing; or

[2] If no legally existing clearing exists, any clearing necessary must conform to the vegetation removal provisions within § 16.9.4, including § 16.9.4D(7). In a Resource Protection Zone, the clearing cannot exceed 1,000 square feet.

(d) Taking clearing requirements into consideration, the solar energy structures must be placed to meet the structure setback for the Shoreland and Stream Protection Overlay Zones to the greatest practical extent as determined by the Planning Board. If it is practical to place the structures outside the applicable setback, then no portion may be placed within the setback. In the Resource Protection Overlay Zone, the solar energy structures must meet the 100-foot setback.

(e) The extent of a proposed solar energy project must be limited by design to the energy needs of the existing use on the property. Sale of energy to the power grid must be limited to incidental excess power generation.

(f) Ground-mounted solar energy systems as described here in § 16.9.4D(18) are exempt from being considered as an expansion of a structure.

(19) Roads and driveways.

(a) See § 16.5.27 for road and driveway standards in the shoreland zones.

(20) Signs.

(a) See § 16.5.23 for sign standards in all shoreland zones.

(21) Subsurface wastewater disposal.

(a) See § 16.7.11B(2) for septic standards in all shoreland zones.

(22) Timber harvesting (as permitted in R-RLC and MU Zones only).

(a) Repeal of the timber harvesting regulation. Subsequent to the establishment of the State of Maine Department of Conservation's Bureau of Forestry Timber Harvesting Standards, the State will commence administration of all timber harvesting within the Shoreland Overlay Zone in the Town of Kittery.

[1] Editor's Note: This enactment also removed former § 16.9.4, Right-of-way plan review. See now § 16.11.1.