A.
Code Enforcement Officer. A Code Enforcement Officer shall be appointed
or reappointed annually by July 1.
B.
Board of Adjustment and Appeals. A Board of Adjustment and Appeals
shall be created in accordance with the provisions of 30-A M.R.S.A.
§ 2691.
C.
Planning Board. A Planning Board shall be created in accordance with
the provisions of state law.
D.
Town Council. A Town Council shall be created in accordance with
the provisions of state law.
After the effective date of this chapter, no person shall, without
first obtaining a permit, engage in any activity or use of land or
structure requiring a permit in the district in which such activity
or use would occur, or expand, change, or replace an existing use
or structure, or renew a discontinued nonconforming use. A person
who is issued a permit pursuant to this chapter shall have a copy
of the permit on site while the work authorized by the permit is performed.
A.
A permit is not required for the replacement of an existing road
culvert as long as:
(1)
The replacement culvert is not more than 25% longer than the culvert
being replaced;
(2)
The replacement culvert is not longer than 75 feet; and
(3)
Adequate erosion control measures are taken to prevent sedimentation
of the water, and the crossing does not block fish passage in the
watercourse.
B.
A permit is not required for an archaeological excavation as long
as 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 are prevented by means of adequate
and timely temporary and permanent stabilization measures.
C.
Any permit required by this chapter shall be in addition to any other
permit required by other law or ordinance.
A.
Every applicant for a permit shall submit a written application,
including a scaled site plan, on a form provided by the municipality,
to the appropriate official as indicated in Table 1.[1]
[1]
Editor's Note: Table 1 is included at the end of this chapter.
B.
All applications shall be signed by an owner or individual who can
show evidence of right, title or interest in the property or by an
agent, representative, tenant, or contractor of the owner with authorization
from the owner to apply for a permit hereunder, certifying that the
information in the application is complete and correct.
C.
All applications shall be dated, and the Code Enforcement Officer
or Planning Board, as appropriate, shall note upon each application
the date and time of its receipt.
D.
If the property is not served by a public sewer, a valid plumbing
permit or a completed application for a plumbing permit, including
the site evaluation approved by the Plumbing Inspector, shall be submitted
whenever the nature of the proposed structure or use would require
the installation of a subsurface sewage disposal system.
E.
Photographic
record required. An applicant for permit(s) for development within
the shoreland zone is to provide the municipal permitting authority
preconstruction photographs of the shoreline vegetation and development
site and, no later than 20 days after completion of the development,
post-construction photographs of the shoreline vegetation and development
site.
F.
When an
excavation contractor will perform an activity that requires or results
in more than one cubic yard of soil disturbance, the person responsible
for management of erosion and sedimentation control practices at the
site must be certified in erosion control practices by the Maine Department
of Environmental Protection. This person must be present at the site
each day earth-moving activity occurs for a duration that is sufficient
to ensure that proper erosion and sedimentation control practices
are followed. This is required until erosion and sedimentation control
measures have been installed, which will either stay in place permanently
or stay in place until the area is sufficiently covered with vegetation
necessary to prevent soil erosion. The name and certification number
of the person who will oversee the activity causing or resulting in
soil disturbance shall be included on the permit application. This
requirement does not apply to a person or firm engaged in agriculture
or timber harvesting if best management practices for erosion and
sedimentation control are used; and municipal, state and federal employees
engaged in projects associated with that employment.
Within 35 days of the date of receiving a written application,
the Planning Board or Code Enforcement Officer, as indicated in Table
1, shall notify the applicant in writing either that the application
is a complete application or, if the application is incomplete, that
specified additional material is needed to make the application complete.
The Planning Board or the Code Enforcement Officer, as appropriate,
shall approve, approve with conditions, or deny all permit applications
in writing within 35 days of receiving a completed application. However,
if the Planning Board has a waiting list of applications, a decision
on the application shall 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 the proposed
use or structure is found to be in conformance with the purposes and
provisions of this chapter.
A.
The applicant shall have the burden of proving that the proposed
land use activity is in conformity with the purposes and provisions
of this chapter.
B.
After the submission of a complete application to the Planning Board,
the Board shall approve an application or approve it with conditions
if it makes a positive finding based on the information presented
that the proposed use:
(1)
Will maintain safe and healthful conditions;
(2)
Will not result in water pollution, erosion, or sedimentation to
surface waters;
(3)
Will adequately provide for the disposal of all wastewater;
(4)
Will not have an adverse impact on spawning grounds, fish, aquatic
life, bird or other wildlife habitat;
(5)
Will conserve shore cover and visual, as well as actual, points of
access to inland and coastal waters;
(6)
Will protect archaeological and historic resources as designated
in the Comprehensive Plan;
(7)
Will avoid problems associated with floodplain development and use;
and
C.
If a permit is either denied or approved with conditions, the reasons
as well as conditions shall be stated in writing. No approval shall
be granted for an application involving a structure if the structure
would be located in an unapproved subdivision or would violate any
other local ordinance or regulation or statute administered by the
municipality.
In addition to the criteria specified in § 226-50 above, excepting structure setback requirements, the Planning Board may approve a permit for a single-family residential structure in a Resource Protection District provided that the applicant demonstrates that all of the following conditions are met:
A.
There is no location on the property, other than a location within
the Resource Protection District, where the structure can be built.
B.
The lot on which the structure is proposed is undeveloped and was
established and recorded in the Registry of Deeds of the county in
which the lot is located before the adoption of the Resource Protection
District.
C.
All proposed buildings, sewage disposal systems and other improvements
are:
(1)
Located on natural ground slopes of less than 20%; and
(2)
Located outside the floodway of the one-hundred-year floodplain along
rivers and artificially formed great ponds along rivers and outside
the velocity zone in areas subject to tides, based on detailed flood
insurance studies and as delineated on the Federal Emergency Management
Agency's Flood Boundary and Floodway Maps and Flood Insurance Rate
Maps; all buildings, including basements, are elevated at least one
foot above the one-hundred-year floodplain elevation; and the development
is otherwise in compliance with any applicable municipal floodplain
ordinance. If the floodway is not shown on the Federal Emergency Management
Agency Maps, it is deemed to be 1/2 the width of the one-hundred-year
floodplain.
D.
The total footprint, including cantilevered or similar overhanging
extensions, of all principal and accessory structures is limited to
a maximum of 1,500 square feet. This limitation shall not be altered
by variance.
E.
All structures, except functionally water-dependent structures, are
set back from the normal high-water line of a water body, tributary
stream or upland edge of a wetland to the greatest practical extent
but not less than 75 feet, horizontal distance. In determining the
greatest practical extent, the Planning Board shall consider the depth
of the lot, the slope of the land, the potential for soil erosion,
the type and amount of vegetation to be removed, the proposed building
site's elevation in regard to the floodplain, and its proximity to
moderate-value and high-value wetlands.
Permits shall expire one year from the date of issuance if a
substantial start is not made in construction or in the use of the
property during that period. If a substantial start is made within
one year of the issuance of the permit, the applicant shall have one
additional year to complete the project, at which time the permit
shall expire.
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 zone unless written authorization attesting
to the validity and currency of all local permits required under this
chapter or any previous ordinance has been issued by the appropriate
municipal officials or other written arrangements have been made between
the municipal officials and the utility.
A.
Powers and duties of the Board of Adjustment and Appeals. The Board
of Adjustment and Appeals shall have the following powers:
(1)
Administrative appeals. To hear and decide administrative appeals,
on an appellate basis, where it is alleged by an aggrieved party that
there is an error in any order, requirement, decision, or determination
made by, or failure to act by, the Planning Board in the administration
of this chapter and to hear and decide administrative appeals on a
de novo basis where it is alleged by an aggrieved party that there
is an error in any order, requirement, decision or determination made
by, or failure to act by, the Code Enforcement Officer in his or her
review of and action on a permit application under this chapter. Any
order, requirement, decision or determination made, or failure to
act, in the enforcement of this chapter is not appealable to the Board
of Adjustment and Appeals.
(2)
Variance appeals. To authorize variances upon appeal, within the
limitations set forth in this chapter.
B.
Variance appeals. Variances may be granted only under the following
conditions:
(1)
Variances may be granted only from dimensional requirements, including
but not limited to lot width, structure height, percent of lot coverage,
and setback requirements.
(2)
Variances shall not be granted for establishment of any uses otherwise
prohibited by this chapter.
(3)
The Board shall not grant a variance unless it finds that:
(a)
The proposed structure or use would meet the provisions of Article IV except for the specific provision which has created the nonconformity and from which relief is sought; and
(b)
The strict application of the terms of this chapter would result
in undue hardship. The term "undue hardship" shall mean that:
[1]
The land in question cannot yield a reasonable return unless
a variance is granted;
[2]
The need for a variance is due to the unique circumstances of
the property and not to the general conditions in the neighborhood;
[3]
The granting of a variance will not alter the essential character
of the locality; and
[4]
The hardship is not the result of action taken by the applicant
or a prior owner.
(4)
Notwithstanding Subsection B(3)(b) above, the Code Enforcement Officer, if authorized in accordance with 30-A M.R.S.A. § 4353-A may grant a variance to an owner of a residential dwelling for the purpose of making that dwelling accessible to a person with a disability who resides in or regularly uses the dwelling. The Board shall restrict any variance granted under this subsection solely to the installation of equipment or the construction of structures necessary for access to or egress from the dwelling by the person with the disability. The Board may impose conditions on the variance, including limiting the variance to the duration of the disability or to the time that the person with the disability lives in the dwelling. The term "structures necessary for access to or egress from the dwelling" shall include railing, wall or roof systems necessary for the safety or effectiveness of the structure.
(5)
The Board of Adjustment and Appeals shall limit any variances granted
as strictly as possible in order to ensure conformance with the purposes
and provisions of this chapter to the greatest extent possible and
in doing so may impose such conditions to a variance as it deems necessary.
The party receiving the variance shall comply with any conditions
imposed. The applicant shall be responsible for recording the certificate
of variance in the Cumberland County Registry of Deeds within 90 days
of the date of the final written approval of the variance or the variance
is void. The variance is not valid until it is recorded as required
by this subsection.
(6)
A copy of each variance request, including the application and all
supporting information supplied by the applicant, shall be forwarded
by the municipal officials to the Commissioner of the Department of
Environmental Protection at least 20 days prior to action by the Board
of Adjustment and Appeals. Any comments received from the Commissioner
prior to the action by the Board of Adjustment and Appeals shall be
made part of the record and shall be taken into consideration by the
Board of Adjustment and Appeals.
C.
Administrative appeals. When the Board of Adjustment and Appeals
reviews a decision of the Code Enforcement Officer, the Board of Adjustment
and Appeals shall hold a de novo hearing. At this time the Board may
receive and consider new evidence and testimony, be it oral or written.
When acting in a de novo capacity, the Board of Adjustment and Appeals
shall hear and decide the matter afresh, undertaking its own independent
analysis of evidence and the law and reaching its own decision. Appeals
of decisions of the Planning Board shall be to Superior Court.
D.
Appeal procedure.
(1)
Making an appeal.
(a)
An administrative or variance appeal may be taken to the Board of Adjustment and Appeals by an aggrieved party from any decision of the Code Enforcement Officer or the Planning Board, except for enforcement-related matters as described in Subsection A(1) above. Such an appeal shall be taken within 30 days of the date of the official, written decision appealed from and not otherwise, except that the Board, upon a showing of good cause, may waive the thirty-day requirement.
(b)
Applications for appeals shall be made by filing with the Board
of Adjustment and Appeals a written notice of appeal which includes:
(c)
Upon receiving an application for an administrative appeal or
a variance, the Code Enforcement Officer or Planning Board, as appropriate,
shall transmit to the Board of Adjustment and Appeals all of the papers
constituting the record of the decision appealed from.
(d)
The Board of Adjustment and Appeals shall hold a public hearing
on an administrative appeal or a request for a variance within 35
days of its receipt of a complete written application, unless this
time period is extended by the parties.
(2)
Decision by Board of Adjustment and Appeals.
(a)
A majority of the full voting membership of the Board shall
constitute a quorum for the purpose of deciding an appeal.
(b)
The person filing the appeal shall have the burden of proof.
(c)
The Board shall decide all administrative appeals and variance
appeals within 35 days after the close of the hearing and shall issue
a written decision on all appeals.
(d)
The Board of Adjustment and Appeals shall state the reasons
and basis for its decision, including a statement of the facts found
and conclusions reached by the Board. The Board shall cause written
notice of its decision to be mailed or hand-delivered to the applicant
and to the Department of Environmental Protection within seven days
of the Board's decision. Copies of written decisions of the Board
of Adjustment and Appeals shall be given to the Planning Board, Code
Enforcement Officer, and the municipal officers.
E.
Appeal to Superior Court. Except as provided by 30-A M.R.S.A. § 2691,
Subsection 3F, any aggrieved party who participated as a party during
the proceedings before the Board of Adjustment and Appeals may take
an appeal to Superior Court in accordance with state laws within 45
days from the date of any decision of the Board of Adjustment and
Appeals.
F.
Reconsideration. In accordance with 30-A M.R.S.A. § 2691,
Subsection 3F, the Board of Adjustment and Appeals may reconsider
any decision within 45 days of its prior decision. A request to the
Board to reconsider a decision must be filed within 10 days of the
decision that is being reconsidered. A vote to reconsider and the
action taken on that reconsideration must occur and be completed within
45 days of the date of the vote on the original decision. Reconsideration
of a decision shall require a positive vote of the majority of the
Board members originally voting on the decision and proper notification
to the landowner, petitioner, Planning Board, Code Enforcement Officer,
and other parties of interest, including abutters and those who testified
at the original hearing(s). The Board may conduct additional hearings
and receive additional evidence and testimony. Appeal of a reconsidered
decision to Superior Court must be made within 15 days after the decision
on reconsideration.
A.
Nuisances. Any violation of this chapter shall be deemed to be a
nuisance.
B.
Code Enforcement Officer.
(1)
It shall be the duty of the Code Enforcement Officer to enforce the
provisions of this chapter. If the Code Enforcement Officer shall
find that any provision of this chapter is being violated, he or she
shall notify in writing the person responsible for such violation,
indicating the nature of the violation and ordering the action necessary
to correct it, including discontinuance of illegal use of land, buildings
or structures, or work being done, removal of illegal buildings or
structures, and abatement of nuisance conditions. A copy of such notices
shall be submitted to the municipal officers and be maintained as
a permanent record.
(2)
The Code Enforcement Officer shall conduct on-site inspections to
ensure compliance with all applicable laws and conditions attached
to permit approvals. The Code Enforcement Officer shall also investigate
all complaints of alleged violations of this chapter.
(3)
The Code Enforcement Officer shall keep a complete record of all
essential transactions of the office, including applications submitted,
permits granted or denied, variances granted or denied, revocation
actions, revocation of permits, appeals, court actions, violations
investigated, violations found, and fees collected.
C.
Legal actions. When the above action does not result in the correction
or abatement of the violation or nuisance condition, the municipal
officers, upon notice from the Code Enforcement Officer, are hereby
directed to institute any and all actions and proceedings, either
legal or equitable, including seeking injunctions of violations and
the imposition of fines, that may be appropriate or necessary to enforce
the provisions of this chapter in the name of the municipality. The
municipal officers, or their authorized agent, are hereby authorized
to enter into administrative consent agreements for the purpose of
eliminating violations of this chapter and recovering fines without
court action. Such agreements shall not allow an illegal structure
or use to continue unless there is clear and convincing evidence that
the illegal structure or use was constructed or conducted as a direct
result of erroneous advice given by an authorized municipal official
and there is no evidence that the owner acted in bad faith, or unless
the removal of the structure or use will result in a threat or hazard
to public health and safety or will result in substantial environmental
damage.
D.
Fines. Any person, including but not limited to a landowner, a landowner's
agent or a contractor, who violates any provision or requirement of
this chapter shall be penalized in accordance with 30-A M.R.S.A. § 4452.
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NOTE: Current penalties include fines of not less than $100
nor more than $2,500 per violation for each day that the violation
continues. However, in a Resource Protection District the maximum
penalty is increased to $5,000 (30-A M.R.S.A. § 4452).
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