[Amended 3-28-2009 ATM by Art. 21]
It is the intent of this article to promote
land use conformities, except that nonconforming conditions that legally
existed before the effective date of this chapter, or any amendment
thereto, shall be allowed to continue, subject to the requirements
set forth in this article. Except as otherwise provided in this ordinance,
a nonconforming condition shall not be permitted to become more nonconforming.
A.
Continuance; enlargement; reconstruction. Any use
of land, or any building, structure, or parts thereof, legally existing
at the time of the adoption or amendment of this chapter, or at any
time a zone is changed by amendment hereafter, which does not conform
to the requirements of this chapter or its amendments, may continue,
but may not be extended, reconstructed, enlarged, or structurally
altered except as specified below.
B.
Transfer of ownership. Ownership of lots, structures,
and uses which remain lawful but become nonconforming by adoption
or amendment of this chapter may be transferred, and the new owner
may continue the nonconforming use or continue to use the nonconforming
structure or lot, subject to the provisions of this chapter.
C.
Restoration or replacement.
(1)
This chapter allows 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,
and such other changes in a nonconforming use or structure as federal,
state, or local building and safety codes may require.
[Amended 3-28-2009 ATM by Art. 21]
(2)
Damage or destruction.
[Amended 3-28-2009 ATM by Art. 21]
(a)
Any nonconforming structure which is hereafter
removed, damaged, or destroyed by fire or any other cause, may be
restored or reconstructed, provided that the permits to do so are
applied for within one year of the date of said damage or destruction,
and provided that:
[1]
Any nonconforming structure may not be enlarged
except in conformity with this chapter; and
(3)
Nothing in this section prevents the demolition of
the remains of any building damaged or destroyed.
[Amended 3-28-2009 ATM by Art. 21]
A.
Nonconforming lots - generally. A nonconforming lot
of record as of the effective date of this ordinance or amendment
thereto 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, and that all provisions of this ordinance
except lot area, lot width, frontage and shore frontage can be met.
Variances relating to setback or other requirements not involving
lot area, lot width or shore frontage shall be obtained by action
of the Board of Appeals.
B.
Contiguous built-upon lots.
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If two or more contiguous lots or parcels are
in a single or joint ownership of record at the time of adoption or
amendment of this chapter; and if all or part of the lots do not meet
the dimensional requirements of this chapter, 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.
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If two or more principal uses or structures
existed on a single lot of record on the effective date of this ordinance,
each may be sold on a separate lot provided that the above referenced
law and rules are complied with. When such lots are divided each lot
thus created must be as conforming as possible to the dimensional
requirements of this ordinance.
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C.
Contiguous lots; vacant or partially built upon.
(1)
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 chapter, if any of these lots do not individually meet the
dimensional requirements of this chapter or subsequent amendments,
and if one or more of the lots is vacant or contains no principal
structure, the lots shall be combined to the extent necessary to meet
the dimensional requirements.
A.
Enlargement controlled.
[Amended 3-11-1995 ATM by Art. 18; 3-28-2009 ATM by Art. 21; 3-26-2016 ATM by Art. 22]
(1)
A nonconforming structure may not be added to or enlarged unless
such addition or enlargement conforms to all the regulations of the
zone in which it is located, except in the Shoreland Zone where a
structure, nonconforming because of setback from the high-water line,
may be added to or expanded only after obtaining approval from the
Planning Board, if such addition or expansion does not increase the
nonconformity of the structure and is in accordance with all of the
applicable standards for the Shoreland Zone, below. All new principal
and accessory structures, excluding functionally water-dependent uses,
must meet the applicable standards for the Shoreland Zone.
(2)
In the Shoreland Zone, expansion of any portion of a structure within
25 feet of the normal high-water line of a water body, tributary stream
or upland edge of a wetland, is prohibited, even if the expansion
will not increase nonconformity with the water body, tributary stream
or wetland setback requirement. 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 wetland than the principal structure
is prohibited, even if the expansion will not increase nonconformity
with the water body, tributary stream, or wetland setback requirement.
(3)
Notwithstanding Subsection A(2) 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 wetland, that structure may be expanded as follows, provided all other applicable standards and requirements of this chapter are met and the expansion is not prohibited by Subsection A(1) above.
(a)
The maximum total footprint for the principal structure, upon
expansion, may not exceed 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 wetland setback requirements may be expanded or altered as follows, as long as other applicable standards and requirements of this chapter are met and the expansion is not prohibited by Subsection A(1) or (2), above.
(a)
For structures located less than 75 feet from the normal high-water
line of a water body, tributary stream, or upland edge of a 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 structure may not be made greater than 20
feet or the height of the existing structure, whichever is greater.
(b)
For structures located less than 100 feet from the normal high-water line of a great pond classified as GPA or a river flowing to a great pond classified as GPA, 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 on January 1, 1989, whichever is greater. The maximum height of any structure may not be made greater than 25 feet or the height of the existing structure, whichever is greater. Any portion of those structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland must meet the footprint and height limits in Subsection A(3)(a) and (4)(a) above.
(c)
In addition to the limitations in Subsection A(4)(a) and (b), for structures that are legally nonconforming due to their location within the Resource Protection District when located at less than 250 feet from the normal high-water line of a water body or the upland edge of a 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 District was established on the lot, whichever is greater. The maximum height of any structure may not be made greater than 25 feet or the height of the existing structure, whichever is greater, except that any portion of those structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland must meet the footprint and height limits in Subsection A(3)(a) and (4)(a), above.
(5)
An approved plan for expansion of a nonconforming structure must
be recorded by the applicant with 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 Zone boundary and evidence of approval by
the Planning Board.
(6)
Except in the Shoreland Zone, the addition of an open
patio with no structures elevated above the ground does not constitute
the expansion of a nonconforming structure. In the Shoreland Zone
the addition of an open patio must meet all the dimensional requirements
of this chapter. The addition of steps does not constitute the expansion
of a nonconforming structure; but the addition of a deck or the enclosure
of an existing deck and/or porch does constitute the expansion of
a nonconforming structure and, therefore the deck and/or porch must
meet all the dimensional requirements of this chapter.
(7)
Outside of the Shoreland Zone, the placing of a foundation
below a lawfully existing nonconforming structure does not constitute
the expansion of the structure, as long as additional bedrooms are
not located in the basement, the first floor space of the structure
is not increased, and the foundation does not cause the structure
to be elevated by more than three additional feet.
(8)
Within the Shoreland Zone, whenever a new, enlarged, or replacement foundation is constructed under a nonconforming structure, the structure and new foundation must be placed such that the setback requirement is met to the greatest practical extent as determined by the Planning Board, basing its decision on the criteria specified in Subsection C Relocation, below. If the completed new, enlarged or replacement foundation meets all of the following criteria, it shall not be considered to be an expansion of the structure:
(a)
The foundation does not extend beyond the exterior dimensions of the structure, except for expansion in conformity with Subsection A above; and
(b)
The foundation does not cause the structure
to be elevated by more than three additional feet, as measured from
the uphill side of the structure (from original ground level to the
bottom of the first floor sill); and
(c)
There is no additional habitable space created
within the foundation.
C.
Relocation.
(1)
A nonconforming structure may be relocated within
the boundaries of the parcel on which the structure is located, provided
that the site of relocation conforms to all setback requirements to
the greatest practical extent as determined by the Planning Board,
and provided that the applicant demonstrates that the present subsurface
sewage disposal system meets the requirements of state law and the
State of Maine Subsurface Wastewater Disposal Rules, or that a new
system can be installed in compliance with the law and said rules.
In no case may a structure be relocated in a manner that causes the
structure to be more nonconforming.
(2)
In determining whether the building relocation meets
the setback to the greatest practical extent, the Planning Board shall
consider the size of the lot, the slope of the land, the potential
for soil erosion, the location of other structures on the property
and on adjacent properties, the location of the septic system and
other on-site soils suitable for septic systems, and the type and
amount of vegetation to be removed to accomplish the relocation.
[Amended 3-28-2009 ATM by Art. 21]
(3)
When it is necessary to remove vegetation within the water or wetland setback area in order to relocate a structure, the Planning Board shall require replanting of native vegetation to compensate for the destroyed vegetation in accordance with § 160-109.3. In addition, the area from which the relocated structure was removed must be replanted with vegetation. Replanting shall be required as follows:
[Added 3-28-2009 ATM by Art. 21; amended 3-26-2016 ATM by Art. 22]
(a)
Trees removed in order to relocate a structure
must be replanted with at least one native tree, three feet in height,
for every tree removed. If more than five trees are planted, no one
species of tree shall make up more than 50% of the number of trees
planted. Replaced trees must be planted no further from the water
or wetland than the trees that were removed.
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Other woody and herbaceous vegetation, and ground
cover, that are removed or destroyed in order 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 similar native vegetation and/or ground
cover that was disturbed, destroyed or removed.
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(b)
Where feasible, when a structure is relocated
on a parcel the original location of the structure shall be replanted
with vegetation which may consist of grasses, shrubs, trees, or a
combination thereof.
D.
Reconstruction or replacement in the Shoreland District.
[Amended 3-28-2009 ATM by Art. 21]
(1)
Any nonconforming structure which is located less
than the required setback from a water body, tributary stream or wetland
and which is removed or damaged or destroyed regardless of the cause
by more than 50% of the market 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, and provided that the reconstruction
or replacement is in compliance with the water body, tributary stream
or wetland setback requirements to the greatest practical extent as
determined by the Planning Board in accordance with the purposes of
this chapter. In no case may a structure be reconstructed or replaced
so as to increase its nonconformity.
[Amended 3-26-2016 ATM
by Art. 22]
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If the reconstructed or replacement structure is less than the required setback, it shall not be any larger than the original structure, except as allowed pursuant to Subsection A above, as determined by the nonconforming footprint of the reconstructed or replaced structure at its new location. If the total footprint of the original structure can be relocated or reconstructed beyond the required setback area, no portion of the relocated or reconstructed structure shall be replaced or constructed at less than the setback requirement for a new structure. When it is necessary to remove vegetation in order to replace or reconstruct a structure, vegetation shall be replanted in accordance with Subsection C above.
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(2)
Any nonconforming structure which is located less
than the required setback from a water body, tributary stream, or
wetland and which is removed by 50% or less of the market value, or
damaged or destroyed by 50% or less of the market value of the structure,
excluding normal maintenance and repair, may be reconstructed in place
with a permit from the Code Enforcement Officer if a permit is obtained
from the Code Enforcement Officer within one year of such damage,
destruction, or removal.
[Amended 3-9-2007 ATM by Art. 25; 3-28-2009 ATM by Art. 21]
A.
Resumption prohibited. A lot, building or structure
in or on which a nonconforming use is discontinued for a period exceeding
one year, or which is superseded by a conforming use, may not again
be devoted to a nonconforming use even if the owner has not intended
to abandon the use, except that the Planning Board may, for good cause
shown by the applicant, grant up to a one year extension to that time
period. This provision shall not apply to the resumption of a use
of a residential structure provided that the structure has been used
or maintained for residential purposes during the preceding five-year-period.
B.
Structures nonconforming as to use. A building or structure, nonconforming as to use, may not be enlarged unless the nonconforming use is terminated. A nonconforming use of part of a building or structure may not be extended throughout other parts of the building or structure unless those parts of the building or structure were manifestly arranged or designed for such use prior to the adoption of this chapter or of any amendment making such use nonconforming. Notwithstanding the above provisions, in the Shoreland Zone, nonconforming residential uses may, after obtaining a permit from the Planning Board, be expanded within existing residential structures or within expansions of such structures as allowed in § 160-26A above.
C.
Change of use.
[Amended 3-9-2007 ATM by Art. 25]
(1)
An existing nonconforming use may be changed to another nonconforming use, provided that the proposed use is equally or more appropriate to the district than the existing nonconforming use, and the impact on the subject or adjacent properties, and any water body, tributary stream, or wetland, is either equivalent to or less adverse than the impact of the former use, as determined by the Planning Board. Within the Shoreland Zone, the determination of no greater adverse impact shall be made according to criteria listed in Subsection C(3) below.
(2)
In determining that equal or no greater adverse impact will occur, the Planning Board will require written documentation from the applicant regarding the probable changes in traffic (volume and type), parking, noise, potential for litter, wastes or by-products, fumes, odors, or other nuisances likely to result from such change of use. The performance standards in Article XVII of this chapter apply to such requests to establish new nonconforming uses.
(3)
Within the Shoreland Zone, the Planning Board, in
determining that no greater adverse impact will occur, shall base
its determination upon 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 functionally
water-dependent uses.
D.
Nonconforming use of land.
(1)
A nonconforming use of land may not be extended into
any part of the remainder of a lot of land.
(2)
A nonconforming use of land which is incidental to
or accessory to a nonconforming use of a principal building may not
be continued if the nonconforming use of the principal building is
discontinued.
(3)
In the case of earth removal operations, the removal
of earth may not be extended as a nonconforming use beyond the required
setback lines of the specific parcel upon which such operations were
in progress when such use became nonconforming. Adjacent parcels in
the same or different ownership are not eligible for exemption under
the nonconforming use provisions unless earth removal operations were
in progress on these parcels before these provisions were enacted.
A use which is nonconforming as to general performance standards in Article XVII, specific performance standards in Article XVIII, or any other site development requirement, including, but not limited to, parking spaces, access control, loading spaces, screening, erosion and sedimentation control, lighting, hours of operation, and noise, may continue but may not be expanded, the structure may not be enlarged, and the structure may not be altered to expand the use, unless all nonconforming performance standards and the site development are brought into conformance with this chapter.
Nonconforming use rights cannot arise by the
mere filing of a notice of intent to build, an application for building
permits, or an application for required state permits and approvals.
Such rights usually arise when actual construction has begun, or,
in the case of pending applications, when the review process on a
complete application commences. Such construction must be legal at
the time it is commenced, and the owner must be in possession of and
in compliance with all validly issued permits, both state and local.
