Town of Kittery, ME Administration and Enforcement

The Board shall elect annually a Chairperson and Vice Chairperson from its membership and a Secretary. It is the duty of the Secretary to keep and maintain a permanent record of all meetings of the Board and show the vote of each member upon each question.

(2)

A quorum consists of four or more members. All decisions must be made by a minimum of four like votes, except on procedural matters.

(3)

The Board shall adopt bylaws to govern routine proceedings and set agendas and hold meetings to perform duties.

(4)

Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting thereon shall be decided by a majority vote of the members present, excluding the member who is being challenged, who may not vote on the issue.

(5)

All records of the Board are public records, except as excluded by statute.

(6)

The Board shall:

(a)

Perform duties as provided by law.

(b)

Hear and decide on required development plans, including special exception use requests, that require Planning Board review, using the development application and review procedures and criteria and other provisions in this title.

(c)

Prepare and recommend for Council adoption a Comprehensive Plan and initiate plan implementation by zoning ordinance, other land use and development regulations, and other means; and monitor and report on Plan implementation progress.

§ 16.2.3 Board of Appeals.

Appointment and composition.

(1)

The Board of Appeals is established by the Town Charter, Article VIII, § 8.04, and 30-A M.R.S.A. § 2691.

(2)

The Board consists of seven members, who are Kittery residents, serving staggered terms of office of three years.

(3)

Members of the Board are appointed by the Town Council.

(4)

A municipal officer, or spouse thereof, may not serve as a member of the Board.

(5)

Members serve until their successors are appointed and qualified.

(6)

The number of consecutive terms by any Board member is limited by § 8.01(3) of the Town Charter.

(7)

A member of the Board may be dismissed for cause by the Town Council before the expiration of such member's term, after notice and hearing.

(8)

Vacancies are filled by Town Council appointment for the unexpired term.

Powers and duties.

(1)

(2)

A quorum consists of four or more members. All decisions must be made by a minimum of four like votes, except on procedural matters.

(3)

The Board shall adopt bylaws to govern routine proceedings and set agendas and hold meetings to perform duties.

(4)

Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting thereon is decided by a majority vote of the members present, except the member who is being challenged, who may not vote on the issue.

(5)

All records of the Board are public records, except as excluded under 1 M.R.S.A. § 402(3) and (3-A).

(6)

The Board is to:

(a)

Perform duties as provided by law.

(b)

Administrative decision appeal. Hear and decide on an administrative decision appeal where it is alleged by an aggrieved party that there is an error in any order, requirement, decision or determination made by the Code Enforcement Officer in review of an action on a permit application under this title.

(c)

Variance request. Hear and decide on a variance request within the limitations set forth in this title and 30-A M.R.S.A. § 4353(4).

(d)

Miscellaneous variation request. To hear and decide on a miscellaneous variation request to permit variation in:

[1]

Nonconformance as prescribed in § 16.1.8;

[2]

Standards contained in § 16.7.11E, § 16.7.11F, or § 16.5.23 Sign violation and appeal; or

[3]

Accessory dwelling unit standards per § 16.5.3.

(e)

Special exception use request. Hear and decide on a special exception use request not requiring Planning Board review per development and site review thresholds and using the development application and review (Chapter 16.7) procedures and review criteria and other provisions in this title.

§ 16.2.4 Port Authority.

Appointment and composition.

(1)

The Port Authority is established by Maine Private and Special Law 1961, Chapter 163, as amended, and Town Charter, Article IX.

(2)

The Port Authority consists of seven members, who are Kittery residents, serving staggered terms of office of five years.

(3)

Members of the Port Authority are appointed by the Town Council.

(4)

A municipal officer, or spouse thereof, may not serve as a member of the Port Authority.

(5)

Members serve until their successors are appointed and qualified.

(6)

No member shall serve more than two consecutive terms of five years. Any member who has served two consecutive terms of five years is ineligible to serve on the Board for a period of one year. Computation of term limits commences with the first term of five years following the effective date of this provision. Computation of term limits does not include service prior to the effective date of this provision nor to terms of fewer than five years after the effective date.

(7)

A member of the Port Authority may be dismissed for cause by the Town Council before the expiration of such member's term after notice and hearing.

(8)

Vacancies are filled by Town Council appointment for the unexpired term.

Powers and duties.

(1)

The Board shall elect annually a Chairperson and Vice Chairperson from its membership and a Secretary. It is the duty of the Secretary to keep and maintain a permanent record of all meetings of the Port Authority and show the vote of each member upon each question.

(2)

The Port Authority is to:

(a)

Perform duties as provided by law.

(b)

Where Town Council action is required under 38 M.R.S.A. § 1021 et seq., Wharves and Fish Weirs, the Council may appoint the Port Authority as its designee for on-site inspection and to issue a written report on the same to the Council.

(c)

Water area development powers and duties.

[1]

The Port Authority is to provide advice to the Planning Board on development applications dealing with piers, wharfs, marinas and other uses projecting into water bodies.

[2]

Where Port Authority review is required, such review must be completed prior to Planning Board review.

[3]

Port Authority review and approval authority under this title applies to structures extending into a water body beyond the mean high-water line or the upland edge of a coastal wetland and extends from the water body to the mean high-water line or upland edge of a coastal wetland.

[4]

The Port Authority may approve, for convenience of access to a pier from land upland of the mean high-water line or the edge of a coastal wetland, an extension of the pier that is the shortest practicable extension at its nominal height and width. All other structures upland of, and abutting or built on or over, a structure extending into a water body beyond the mean high-water line or the edge of a coastal wetland require Planning Board approval. Only one pier, ramp and float structure is permitted on any noncommercial or nonindustrial lot.

[5]

Where the Planning Board is the lead reviewing authority, a shorefront development plan must be submitted for Planning Board approval. A Port Authority ruling on the shorefront development plan's conformance with Port Authority rules and regulations and navigational aspects of any proposed pier, ramp and float system or principal marine structure is required prior to Planning Board approval.

[6]

Only functionally water-dependent uses are allowed on, over or abutting a pier, wharf or other structure beyond the normal high-water line. The standards contained in § 16.5.22 are to be met.

§ 16.2.5 Town Planner.

Responsibilities. The Town Planner is responsible for the overall planning in accordance with applicable federal, state and municipal law, codes and ordinances. The Town Planner is responsible for all municipal planning functions, including the administration of this title, and the implementation of the Kittery Growth Management Program. These functions include but are not limited to land and water use planning; providing technical assistance and staff support to the Planning Board; researching, developing, coordinating and administering land and water use and planning related projects; maintaining accurate planning records; and interacting with members of the public involved with the planning process.

Plan submission.

(1)

All plan submission requirements for an application for land/water area use and development are to be submitted to the Town Planner.

(2)

The Town Planner must review all plan submission contents to ascertain that they meet the requirements of this title before they are delivered for review or consideration by the Planning Board.

(3)

The Town Planner, upon confirmation of a plan's submission contents sufficiency, is to place the application on the Planning Board's agenda for a scheduling hearing. Note: Town Planner confirmation does not constitute substantive review under Maine law, which commences at the first public hearing for an application held by the Planning Board.

Staff coordination. The Town Planner is to coordinate with appropriate municipal department heads to ensure they have received required plan information for the performance of their duties under this title.

Reporting. The Planner must report the status of all active plans (received, pending, under review, and approved not built - past expiration date) to the Board annually.

§ 16.2.6 Code Enforcement Officer (CEO).

Responsibility. It is the duty of the Code Enforcement Officer or other person duly authorized by the Town to enforce the provisions of this title.

Permits. The CEO is to issue required permits for building, occupancy, plumbing, electrical or such other as may be required.

Appeal/request initiation. The CEO must initiate the forms required for appeals/requests to the Board of Appeals.

Inspection. The CEO must inspect all buildings, developments, subdivisions and such other facilities/uses within the requirements of this title.

Business use changes. The Town Planner and the Code Enforcement Officer are to review and approve, or refer to the Planning Board for action, all business use changes which occur that fall below Planning Board review thresholds as outlined in § 16.7.2B. Approval must be based on compliance with all requirements of this title.

§ 16.2.7 Notice of violations.

If the Code Enforcement Officer (CEO) finds any of the provisions of this title are being violated, the CEO must notify by certified mail, return receipt requested, the person responsible for such violations, indicate the nature of the violation, and order the action necessary to correct it. The CEO must order discontinuance of illegal use of land, buildings or structures; removal of illegal buildings or structures or of additions, alterations or structural changes thereto; a discontinuance of any illegal work being done; or take any other action authorized by this title to ensure compliance with or to prevent violations of its provisions.

§ 16.2.8 Building/regulated activity permits and requirements.

Building/regulated activity permits and certificates of occupancy are required to control development to ensure that such development conforms to this title. This chapter outlines the requirements of this process.

Permit. No building, including municipal buildings, or structure may be erected, moved, added to or otherwise structurally altered and no regulated activity is to commence without a permit, issued by the Code Enforcement Officer and in compliance with all applicable state and federal requirements.

Conformity. No building/regulated activity permit may be issued except in conformity with this title, except after written order of the Board of Appeals.

Permit records. The CEO must maintain a public record of all building/regulated activity permits and applications thereof.

Permit period.

(1)

A permit expires if the Code Enforcement Officer determines no substantial work has been commenced within six months from date of issue. A permit expires if work is not substantially complete within two years from date of issue. Expired permits may be renewed upon written request and justifiable cause demonstrated to the Code Enforcement Officer's satisfaction. Written request for renewal must be made prior to the permit expiration.

(2)

The permit may be renewed one time only for a single six-month period to commence work, upon payment of the base application fee. If the Code Enforcement Officer determines substantial work has not commenced upon expiration of the six-month renewal period, a new permit application and payment of all applicable new permit fees must be submitted.

(3)

The permit may be renewed one time only for a single six-month period to complete work, upon payment of the base application fee. If work is not substantially complete as determined by the Code Enforcement Officer upon expiration of the six-month renewal period, a new permit application and payment of all applicable new permit fees must be submitted based on the value of the remaining permitted work.

(4)

Any work commenced or completed without the issue of a permit as required by this title is subject to an after-the-fact permit with all applicable fees doubled.

Permit threshold. A permit is required if the activity involves any of the following thresholds, as determined by the Code Enforcement Officer:

(1)

Fair market value of the work is greater than $2,000;

(2)

Changes to electric, plumbing or septic systems;

(3)

Increase in coverage;

(4)

Construction of a building or expansion of a structure;

(5)

Structural alteration;

(6)

Change in use or new business occupancy;

(7)

Erection or expansion of signage;

(8)

Installation or expansion of piers and docks;

(9)

An activity that requires inspection by the CEO to determine compliance with this title; or

(10)

Creates one or more acres of disturbed area;

(11)

Structure demolition.

Application.

(1)

Plans.

(a)

All applications for building/regulated activity permits are to be accompanied by plans showing the actual dimensions and shape of the lot to be built upon, including but not limited to property and setback lines; the exact sizes and locations and dimensions of the proposed building or alteration of any existing structures and the proposed sewage disposal systems as designed by a Maine-licensed site evaluator. The Code Enforcement Officer may waive the requirement for plans in the case of minor interior alterations which in the CEO's opinion do not result in a change in use. The application is to include such other information as lawfully may be required by the Code Enforcement Officer to determine conformance with and provide for the enforcement of this title. All plans and correspondence are to include the map and lot designation of the property concerned in the upper right-hand corner.

(b)

At any time between the initial request for a building/regulated activity permit and the granting of final occupancy certificate the CEO or designated representative is to have access to the subject property and structures without obtaining prior permission, written or oral, from the property owner or applicant, except when a temporary occupancy permit has been given to the dwelling owner or applicant.

(2)

Drainage and sewage disposal. Wherever on-site subsurface disposal is contemplated, the approval of building/regulated activity permit applications are subject to evidence of satisfactory subsurface soil conditions for drainage and sewage disposal and prior obtainment of a subsurface wastewater disposal permit. Such evidence must be furnished in compliance with the Maine State Plumbing Code and Chapter 16.7 or Chapter 16.8.

(3)

Fee. Except for municipality permits, application for a building/regulated activity permit must be accompanied by a fee which is established by the Town Council. (See Appendix A, Fee Schedules.)

(4)

Flood hazard ordinance. Any building or structure that might be erected in an area subject to periodic flooding must meet all conditions of Chapter 15.3, relating to flood hazard permit and review procedure, of this Code and the applicable Federal Emergency Management Agency (FEMA) regulation(s). No alteration of the natural contour of the land by grading or filling for any purpose is permitted in an area subject to periodic flooding.

(5)

Conformance to standards.

(a)

All developments must be in conformance with the procedures, standards and requirements of this title.

(b)

All work that requires a building/regulated activity permit must conform to the Maine Uniform Building and Energy Code (MUBEC), pursuant to 10 M.R.S.A. § 9721 et seq., which is adopted by the Department of Public Safety, Bureau of Building Codes and Standards, Maine Technical Building Codes and Standards Board, by Rule 16-635, Chapters 1 through 6, as may be amended from time to time.

(c)

The following codes, standards, rules and their amendments are in full force and effect in their entirety and are not affected by the operation of Title 16 or the MUBEC:

[1]

National Electrical Code^® standards (NFPA 70), adopted pursuant to 32 M.R.S.A. § 1153-A.

[2]

Maine State Plumbing Codes standards, adopted pursuant to 32 M.R.S.A. § 3403-B.

[3]

Standard for the Installation of Oil-Burning Equipment standards (NFPA 31), adopted pursuant to 32 M.R.S.A. § 18123.

[4]

National Fuel Gas Code Standards (NFPA 54), adopted pursuant to 32 M.R.S.A. § 18123.

[5]

Boiler and pressure vessel standards, adopted pursuant to 32 M.R.S.A. § 15105.

[6]

Elevator standards, adopted pursuant to 32 M.R.S.A. § 15205-A.

[7]

National Fire Protection Association (NFPA) firesafety codes and standards, adopted pursuant to 25 M.R.S.A. § 2452 and § 2465, as follows:

[a]

NFPA 1, Fire Code.

[b]

NFPA 101, Life Safety Code.

[c]

NFPA 54, Fuel Gas Code.

[d]

NFPA 211, Standard for Chimneys, Fireplaces, Vents, and Solid-Fuel-Burning Appliances.

(6)

Permit review time constraints. The Code Enforcement Officer must approve or deny an application for a building/regulated activity permit within 14 working days of receiving said application. The Town Manager may approve or deny an application if no action is taken by the Code Enforcement Officer within 14 working days.

§ 16.2.9 Certificate of occupancy.

Certificate requirement. It is unlawful to use or occupy or permit the use or occupancy of any building or premises, or both, or part thereof hereafter created, erected, changed, converted or wholly or partly altered or enlarged in its use or structure until a certificate of occupancy has been issued by the Code Enforcement Officer and endorsed to the effect that the proposed use of the building or land conforms with the requirements of this title and all applicable state and federal requirements.

Certificate application requirement. No building/regulated activity permit may be issued until an application has been made for a certificate of occupancy and the certificate of occupancy is issued in conformity with the provisions of this title upon completion of the work.

Temporary certificate.

(1)

A temporary certificate of occupancy may be issued by Code Enforcement Officer for a period of six months during construction or alterations for partial occupancy of a building pending its completion, provided that such temporary certificate requires such conditions and safeguards as will protect the safety of the occupants and the public.

Commercial establishments may not be granted a temporary certificate of occupancy. Occupancy may be granted when construction is complete, all Planning Board conditions have been met, and all applicable state and local code requirements have been met to the satisfaction of the CEO. Phased construction may be approved by the Planning Board, and certificate of occupancy may be issued by the CEO, when phase conditions have been met.

Records. The Code Enforcement Officer must maintain a public record of all certificates of occupancy.

Failure to obtain certificate. Failure to obtain a certificate of occupancy is a violation of this title.

Minor interior alterations. An occupancy permit is not required for minor interior alterations during which the building would be considered occupied and which, in the judgment of the Code Enforcement Officer, does not constitute a change in use of the building.

§ 16.2.10 Numbering of buildings.

Street-numbering map.

(1)

All buildings must bear a distinctive street number in accordance with and as designated upon the street-numbering map on file with the Town's Assessing Department. The Town Assessor is responsible to maintain and keep current said map.

(2)

No person may affix, or allow to be affixed, a different street number from the one designated on the street-numbering map.

Display of number. The number is to be displayed upon the front of the building and/or on the side facing the street. The number must be plainly visible from the street. Owners of buildings and houses that are set back out of view from the road must place a post or sign at the driveway entrance with the specified numbers. Said post/sign is not considered a structure which must conform to Land Use and Development Code setbacks. In place of a post/sign, the number may be affixed to a mailbox. Said post/sign must be placed out of the Town's right-of-way and be six feet in height.

Multifamily dwellings. For multifamily dwellings, the house number is to be displayed as outlined in Subsection B. Each individual apartment or living unit must be clearly sublettered.

Number dimensions and color. Numbers must be no less than three inches in height and contrast in color with the color of the building or background to which they are attached.

Time limit for compliance; violation; penalty. Any person who, after being notified by the Police Chief or any law enforcement officer from the Town, fails to comply with any of the provisions of this section within the time limit of not more than 30 days specified in such notice is liable to a fine of not less than $50 nor more than $100 per violation.

§ 16.2.11 Plumbing and septic system permit fees.

Applicability. This section applies to fees charged by the Town for plumbing and subsurface wastewater disposal system permits issued by the Town pursuant to 30-A M.R.S.A. § 4201 et seq. and pursuant to rules promulgated by the Department of Health and Human Services (DHHS) under the authority of 30-A M.R.S.A. § 4201 et seq. (State Plumbing Code). For purposes of this section, the terms contained in this section have the meanings given to them in the State Plumbing Code.

Plumbing permit fees.

(1)

At the time of issuance by the Town of a plumbing permit pursuant to 30-A M.R.S.A. § 4201 et seq. and the State Plumbing Code, the plumbing permit applicant must pay a fee in accordance with the following schedule and at the rate provided for each classification shown herein:

(a)

Any person who begins any work for which a permit is required by the State Plumbing Code without first having obtained a permit therefor, if subsequently eligible to obtain a permit, is liable to pay double the permit fee fixed by this section for such work. However, this provision does not apply to emergency work when it is proven to the satisfaction of the local plumbing inspector that such work was urgently necessary and that it was not practical to obtain a permit before the commencement of the work. In all such emergency cases, a permit must be obtained within four working days, or else a double permit fee as hereinabove provided is to be charged.

(b)

For the purpose of this section, a sanitary plumbing outlet on or to which a plumbing fixture or appliance may be set or attached is construed to be a fixture. Fees for reconnection and retest of existing plumbing systems in relocated buildings are to be based on the number of plumbing fixtures, water heaters, etc., involved.

(c)

The following permit fees are to be charged:

[1]

Minimum fee for all permits, see Appendix A.

[2]

Fixture fee, see Appendix A.

[3]

Reinspection fee, see Appendix A. A reinspection fee must be charged by the local plumbing inspector in those instances when work has not been completed upon an inspection or when work was not in compliance with the State Plumbing Code.

[4]

When only new water distribution and/or drainage pipes are installed or relocated in a building, but no fixtures installed, the fee is as set out in Appendix A.

[5]

A hookup fee as set out in Appendix A is to be charged for the connection of a mobile home which bears the Housing and Urban Development (HUD) seal or a modular home which bears the Manufactured Housing Board seal to a building sewer.

[6]

A hookup fee as set out in Appendix A is to be charged for connection to a public sewer when piping is installed beyond the jurisdiction of the sanitary district.

[7]

Relocated mobile homes, modular homes or any other similar structures are considered as new conventional stick-built structures, and a plumbing fixture fee is to be charged based on this section.

[8]

A permit is valid only for the named applicant but may be transferred by payment of a transfer fee as set out in Appendix A.

Subsurface wastewater disposal system fees.

(1)

Prior to the local plumbing inspector's issuance of a subsurface wastewater disposal system permit, the permit applicant must pay the local plumbing inspector a permit fee calculated in accordance with schedule set out in Appendix A.

(2)

Late permit fee. A person who starts construction without first obtaining a subsurface wastewater disposal permit must pay double the permit fee indicated in Subsection A of this section.

§ 16.2.12 Decision appeal, variance and other requests.

Purpose. This chapter describes the minimum requirements for aggrieved parties to file an appeal under this title and related state statutes or to seek the granting of a special exception as found in Chapter 16.4, as well as a variance or miscellaneous variation request to the standards as provided herein.

Appeal of Planning Board, Board of Appeals or Port Authority decision.

(1)

An aggrieved party with legal standing may appeal a final decision of the Planning Board to the York County Superior Court in accordance with Maine Rules of Civil Procedures Rule 80B within 45 days from the date the decision by the Planning Board was rendered.

(2)

An aggrieved party with legal standing may appeal a final decision of the Board of Appeals to the York County Superior Court in accordance with Maine Rules of Civil Procedures Rule 80B within 45 days from the date the decision by the Board of Appeals was rendered.

(3)

An aggrieved party with legal standing may appeal a final decision of the Port Authority to the York County Superior Court in accordance with Maine Rules of Civil Procedures Rule 80B within 45 days from the date the decision by the Port Authority was rendered.

Appeal of code enforcement officer decision. A Code Enforcement Officer decision may be appealed to the Board of Appeals as provided below in § 16.2.12D(1).

Appeals/requests to Board of Appeals. For the purposes of this chapter, an appeal or request means any of the following:

(1)

Administrative decision appeal. When the Board of Appeals reviews an administrative decision appeal of a decision made by the Code Enforcement Officer, the Board of Appeals may receive new evidence and testimony consistent with this title and the rules of the Board of Appeals. At the conclusion of the hearing and deliberation, the Board of Appeals may uphold, modify or reverse the decision of the Code Enforcement Officer.

(2)

Variance request.

(a)

A variance may be granted only by the Board of Appeals under the following conditions:

[1]

For a reduction in dimensional requirements related to height, area and size of structure or size of yards and open spaces;

[2]

The use is not prohibited by this title; and

[3]

Only if the strict application of the terms of this title would result in undue hardship. The term "undue hardship" means the applicant must demonstrate all of the following:

[a]

The land in question cannot yield a reasonable return unless a variance is granted.

[b]

The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood.

[c]

The granting of a variance will not alter the essential character of the locality.

[d]

The hardship is not the result of action taken by the applicant or a prior owner.

(b)

Notwithstanding § 16.2.12D(2)a, the Board of Appeals 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 of Appeals must 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 of Appeals 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" includes railing, wall or roof systems necessary for the safety or effectiveness of the structure.

(c)

A copy of each variance request within the Shoreland Overlay Zone, including the application and all supporting information supplied by the applicant, must be forwarded by the Code Enforcement Officer to the Commissioner of the Maine Department of Environmental Protection at least 20 days prior to action by the Board of Appeals. Any comments received from the Commissioner prior to the action by the Board of Appeals will be made part of the record to be taken into consideration by the Board of Appeals.

(d)

The Board of Appeals must limit any variance granted as strictly as possible to ensure conformance with the purposes and provisions of this title to the greatest extent possible and, in doing so, may impose such conditions of approval to a variance as it deems necessary. The party receiving the variance must comply with any conditions imposed.

(3)

Miscellaneous variation request. The Board of Appeals may hear, decide and approve variations in:

(a)

Nonconformance as prescribed in § 16.1.8;

(b)

Parking, loading and traffic standards contained in § 16.7.11E and § 16.7.11F;

(c)

Sign violation and appeal standards contained in § 16.5.23M; or

(d)

Accessory dwelling unit standards contained in § 16.5.3.

(4)

Special exception use request.

(a)

The Board of Appeals will hear, decide and may grant an applicant's special exception use request where authorized in Chapter 16.4 for any application excluded from Planning Board review as stated in § 16.7.2B, if the proposed use meets the criteria set forth in § 16.2.12F, Basis for decision.

(b)

The Planning Board will review, decide and may approve an applicant's special exception use request where the proposed project requires Planning Board review as defined in § 16.7.2B or is located in a Shoreland or Resource Protection Overlay Zone. The Planning Board must find the proposed project and use meets the criteria set forth in § 16.7.10D and § 16.2.12F.

BOA appeal/request filing procedures.

(1)

Making an appeal/request. An administrative decision appeal, variance request or miscellaneous variation request may be submitted to the Board of Appeals. An administrative appeal must be submitted within 30 days of the date of the official written decision being appealed. Other requests may be filed at will.

(a)

The appeal or request must be filed with the Code Enforcement Officer on forms approved by the Board of Appeals and the party must specifically state on such forms the grounds for such appeal or request, including claimed discrepancies in the interpretation of this title and reasons why the appeal or request should be granted. Incomplete applications for appeals and/or requests will not be accepted. Upon receipt of an appeal or request application, the Code Enforcement Office must stamp a receipt date on the appeal or required form. Said date constitutes the filing date of the appeal or request. Applications for appeals or requests must include the following:

[1]

The appeal or request must be made by the property owner, an aggrieved party or their respective duly authorized agent.

[2]

The appeal or request must include a concise written statement, indicating what relief is requested and why the appeal or request should be granted.

[3]

Where the appeal or request is made from a decision by the Code Enforcement Officer, the applicant must submit plans, maps and related documentation to the code enforcement office for distribution to the Board of Appeals members at least two weeks prior to the meeting of the Board of Appeals. A minimum of 10 sets of all submissions is required.

[4]

The Board of Appeals must hold a public hearing on an appeal or request within 35 days of its receipt of a complete written application, unless this time period is extended by the applicant and BOA.

(b)

At any time between the initial acceptance by the Code Enforcement Officer of an appeal/request and final approval or denial of the appeal/request by the Board of Appeals, the owner or applicant must allow members of the Board of Appeals full access to the subject property, not including building interiors, without obtaining prior permission, written or oral.

(2)

Hearing and notice.

(a)

Before taking any action on any appeal/request, the Board of Appeals must hold a public hearing and provide the following notifications:

[1]

By mail at least seven and not more than 14 days prior to the scheduled hearing date, to owners of abutting property that an appeal/request is made, the nature of the appeal/request and the time and place of the public hearing thereon; and

[2]

Notice of all such actions must also be published in a newspaper of general circulation in the Town at least seven days prior to the public hearing.

(b)

Failure of any property owner to receive a notice of public hearing will not necessitate another hearing or invalidate any action by the Board of Appeals.

(3)

Notification and timing constraints. Following the filing of an appeal/request, the Code Enforcement Officer must notify the Board of Appeals, Planning Board and Conservation Commission of the filing. The appeal or request must be complete for hearing at a subsequent meeting of the Board of Appeals occurring no less than 10 days after the mailing of notices but within 30 days of the appeal filing date.

(4)

Decisions of the Board of Appeals.

(a)

The person filing the appeal or request has the burden of proof.

(b)

A minimum of four like votes is required for a decision by the Board of Appeals, except on procedural matters.

(c)

The Board of Appeals must decide the appeal or request within 30 days after the close of the hearing and issue a written decision.

(d)

Written notice of the decision of the Board of Appeals must be sent to the appellant or petitioner, the Code Enforcement Officer, Conservation Commission, Planning Board and municipal department heads within seven days of the decision. The vote of each member must be part of the record. The written notice of the decision of the Board of Appeals must include the statement of findings. In the case of denials, the statement of findings must include the reason for the denial.

(5)

Order of review.

(a)

Where a special exception request or appeal is necessary as an integral part of a development review process, Board of Appeals action is encouraged prior to Planning Board review where required. The findings of the Board of Appeals as well as any file material must be made available to the Planning Board.

(b)

The Planning Board may give approval to the preliminary plan as an overall development prior to the applicant filing an appeal/request.

(6)

Special exception referral.

(a)

Before granting any special exception, the Board of Appeals may refer the application to the Planning Board and/or Port Authority for a report prior to any subsequent BOA review of the application.

(b)

The Planning Board and/or Port Authority report must be considered informational in character and may take into consideration the effect of the proposal upon the character of the neighborhood or any other pertinent data.

(c)

The Planning Board and/or Port Authority report must be submitted to the BOA for its consideration prior to the officially scheduled time of public hearing on the request.

(7)

Venue and representation. At any hearing, a party may appear by agent or attorney. Hearings may be continued to other times/places.

(8)

Code Enforcement Officer attendance. The CEO or designated assistant must attend all hearings and may present to the BOA all plans, photographs or other material the CEO deems appropriate for an understanding of the appeal/request.

(9)

Appellant's case first. The appellant's case must be heard first. To maintain orderly procedure, each side shall proceed without interruption. Questions may be asked through the Chair. All persons at the hearing shall abide by the order of the Chairperson.

(10)

Expiration of approval.

(a)

Approvals granted under the provisions of this chapter expire if work or change in use involved is not commenced within six months of the date on which approval is granted, or if the work or change in use is not substantially completed within one year of the date on which such approval is granted, unless as otherwise provided for in the approval decision.

(b)

When circumstances are such that a plan with an approved appeal or special exception is required to be reviewed by another agency (e.g., DEP, Planning Board, Port Authority), any period the plan is at that agency, from time of submission to time of decision inclusive, verified by recorded documentation, will not be counted as part of the cumulative time periods described in the section above.

(c)

Should a successful appellant not be able to commence and/or substantially complete the work or change in use before the time constraints contained in Subsection E(10)(a) above, the appellant may reappear before the Board before the original approval expires and request an extension of the approval.

(d)

Such a request must be submitted, in writing, to the Code Enforcement Officer prior to the date of said approval expiration.

(11)

Reconsideration. In accordance with 30-A M.R.S.A. § 2691(3)(F), the Board of Appeals may reconsider any decision within 45 days of its prior decision.

(a)

A request for the Board of Appeals to reconsider a decision must be filed with the Code Enforcement Officer within 10 days of the decision that is to be 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 requires a positive vote of the entire Board and proper notification to the landowner, petitioner, Planning Board, the Town Planner, including abutters and those who testified at the original hearing(s). The Board may conduct additional hearings and receive additional evidence and testimony.

(b)

Appeal of a reconsidered decision to the Superior Court must be made within 15 days after the decision on reconsideration.

(12)

Second appeals/requests. If the Board of Appeals denies an appeal/request, a second appeal/request of a similar nature may not be brought before the BOA within one year from the date of original denial, unless the appellant submits new evidence and the BOA, by formal action, decides the evidence is significant and warrants a new hearing, or unless the BOA finds in its sole and exclusive judgment that an error or mistake of law or misunderstanding of facts has been made.

(13)

Fees. The appellant must pay a fee for filing an appeal or special exception request in an amount as set by the Town Council.

Basis for decision.

(1)

Conditions.

(a)

In hearing appeals/requests under this section, the appropriate jurisdictional board must first establish that it has a basis in law to conduct the hearing and decide the question.

(b)

In hearing appeals/requests under this section, the appropriate jurisdictional board must use the following criteria as the basis of a decision, that:

[1]

The proposed use will not prevent the orderly and reasonable use of adjacent properties or of properties in adjacent use zones;

[2]

The use will not prevent the orderly and reasonable use of permitted or legally established uses in the zone wherein the proposed use is to be located or of permitted or legally established uses in adjacent use zones;

[3]

The safety, the health and the welfare of the Town will not be adversely affected by the proposed use or its location; and

[4]

The use will be in harmony with and promote the general purposes and intent of this title.

(2)

Factors for consideration. In making such determination, the appropriate jurisdictional board must also give consideration, among other things, to:

(a)

The character of the existing and probable development of uses in the zone and the peculiar suitability of such zone for the location of any of such uses;

(b)

The conservation of property values and the encouragement of the most appropriate uses of land;

(c)

The effect that the location of the proposed use may have upon the congestion or undue increase of vehicular traffic congestion on public streets or highways;

(d)

The availability of adequate and proper public or private facilities for the treatment, removal or discharge of sewage, refuse or other effluent (whether liquid, solid, gaseous or otherwise) that may be caused or created by or as a result of the use;

(e)

Whether the use, or materials incidental thereto, or produced thereby, may give off obnoxious gases, odors, smoke or soot;

(f)

Whether the use will cause disturbing emission of electrical discharges, dust, light, vibration or noise;

(g)

Whether the operations in pursuance of the use will cause undue interference with the orderly enjoyment by the public of parking or of recreational facilities, if existing, or if proposed by the Town or by other competent governmental agency;

(h)

The necessity for paved off-street parking;

(i)

Whether a hazard to life, limb or property because of fire, flood, erosion or panic may be created by reason or as a result of the use, or by the structures to be used, or by the inaccessibility of the property or structures thereon for the convenient entry and operation of fire and other emergency apparatus, or by the undue concentration or assemblage of persons upon such plot;

(j)

Whether the use, or the structures to be used, will cause an overcrowding of land or undue concentration of population or unsightly storage of equipment, vehicles or other materials;

(k)

Whether the plot area is sufficient, appropriate and adequate for the use and the reasonably anticipated operation and expansion thereof;

(l)

Whether the proposed use will be adequately screened and buffered from contiguous properties;

(m)

The assurance of adequate landscaping, grading and provision for natural drainage;

(n)

Whether the proposed use will provide for adequate pedestrian circulation;

(o)

Whether the proposed use anticipates and eliminates potential nuisances created by its location; and

(p)

The satisfactory compliance with all applicable performance standard criteria contained in Chapters 16.6 and 16.7.

(3)

Additional special exception conditions. Special exception approvals may be subject to additional conditions as determined by the appropriate jurisdictional board, including the following:

(a)

Front, side or rear yards in excess of minimum requirements;

(b)

Modifications of the exterior features of buildings or other structures;

(c)

Limitations on the size of buildings and other structures more stringent than the minimum or maximum requirements;

(d)

Regulation of design of access drives, sidewalks and other traffic features;

(e)

Off-street parking and loading spaces in excess of the minimum requirements; or

(f)

Restrictions on hours of operation.

(4)

Findings of fact. After reaching a decision on an appeal/request under this section, the appropriate jurisdictional board must verify on the record its findings of fact supporting the basis of its decision.

(5)

Outstanding violations. No variance, special exception or miscellaneous variation request may be granted for premises on which outstanding violations of this title exist, unless the effect of such variance, special exception or miscellaneous variation would remedy all such violations.

(6)

Appeals and variances. The Board of Appeals may, upon written application of an aggrieved party, hear and decide appeals from determinations of the Code Enforcement Officer in the administration of the provisions of this chapter. The Board of Appeals may grant a variance from the requirements of § 16.5.11, Floodplain Management, § 16.5.11A et seq., consistent with state law and the following criteria:

(a)

Variances may not be granted within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.

(b)

Variances may be granted only upon:

[1]

A showing of good and sufficient cause; and

[2]

A determination that, should a flood comparable to the base flood occur, the granting of a variance will not result in increased flood heights, additional threats to public safety, public expense, or create nuisances, cause fraud or victimization of the public or conflict with existing local laws or ordinances; and

[3]

A showing that the existence of the variance will not cause a conflict with other state, federal or local laws or ordinances; and

[4]

A determination that failure to grant the variance would result in "undue hardship," which in this subsection means:

[a]

That the land in question cannot yield a reasonable return unless a variance is granted; and

[b]

That the need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood; and

[c]

That the granting of a variance will not alter the essential character of the locality; and

[d]

That the hardship is not the result of action taken by the applicant or a prior owner.

(c)

Variances may only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

(d)

Variances may be issued by the Board of Appeals for new construction, substantial improvements, or other development for the conduct of a functionally dependent use, provided that:

[1]

Other criteria of this section and § 16.5.11H(9) are met; and

[2]

The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

(e)

Variances may be issued by the Board of Appeals for the reconstruction, rehabilitation or restoration of structures listed on the National Register of Historic Places or a State Inventory of Historic Places, without regard to the procedures set forth in Subsection F(6)(a) through (d) of this section.

(f)

Any applicant who meets the criteria of Subsection F(6)(a) through (e) of this section is to be notified by the Board of Appeals, in writing, over the signature of the Chairperson of the Board of Appeals, that:

[1]

The issuance of a variance to construct a structure below the base flood level will result in greatly increased premium rates for flood insurance, up to amounts as high as $25 per $100 of insurance coverage;

[2]

Such construction below the base flood level increases risks to life and property; and

[3]

The applicant agrees, in writing, that the applicant is fully aware of all the risks inherent in the use of land subject to flooding, assumes those risks and agrees to indemnify and defend the municipality against any claims filed against it that are related to the applicant's decision to use land located in a floodplain and that the applicant individually releases the municipality from any claims the applicant may have against the municipality that are related to the use of land located in a floodplain.

(g)

The Board of Appeals must submit to the Planning Board a report of all variance actions, including justification for the granting of the variance and an authorization for the Code Enforcement Officer to issue a flood hazard development permit, which includes any conditions to be attached to said permit.

§ 16.2.13 Violations and penalties.

When any violation of any provision of this title or § 16.5.19, Nonstormwater Discharge, is found to exist, the Town Attorney or the CEO, as provided by Maine Rules of Civil Procedure Rule 80K and any provisions of this title and relevant statute, with the advice and consent of the Town Manager, is authorized and directed to institute any and all appropriate actions and proceedings either legal or equitable that may be appropriate or necessary for the enforcement of the provisions of this title, the same to be brought in the name of the Town.

Owner or persons liable. Any person(s), firm, corporation or legal entity, being the owner of or having control or use of any buildings or premises, who participates in, assists, directs, creates or maintains any situation that is contrary to the requirements of this title, is responsible for the violation and is subject to the penalties and the remedies herein provided.

Applications for permits or approvals involving sites with a violation. An application for a building/regulated activity permit (see § 16.2.8), certificate of occupancy permit, sign permit, subdivision approval or development review approval will be denied for any property where a violation exists until such violation has been corrected or resolved.

Purpose of enforcement provisions. The purpose of these title enforcement provisions is to provide an alternative method in addition to § 16.2.7 for enforcing and securing compliance with the provisions of this title in a just, speedy and cost-effective manner, and thereby to protect, preserve and enhance the public health, safety and general welfare.

Notice of violation and order (notice).

(1)

It is the duty of the CEO to serve written notice on the landowner or the landowner's agent and any other person or entity responsible (hereafter termed "violator") for such violation. The notice must describe the nature of the violation, include a specific reference to the provision(s) of this title and/or state statute violated, and direct the discontinuance of the illegal action or condition. The notice must also contain an order setting forth the action necessary to correct the violation specifying a time period for correction as provided in § 16.2.13H and must set forth a fine to be imposed as authorized by § 16.2.13I and/or 30-A M.R.S.A. § 4452

(2)

Notwithstanding any other provision of this chapter, when the notice involves a violation of this title pertaining to shoreland or resource protection zoning or 30-A M.R.S.A. § 4452(3), the notice must also set forth, in addition to the fine to be imposed, an order of remediation or other corrective action(s) consistent with and in compliance with 30-A M.R.S.A. § 4452 deemed necessary by the CEO to correct or mitigate the violation to the affected area(s), unless the correction or mitigation would result in a threat or hazard to public health or safety, substantial environmental damage or a substantial injustice.

(3)

All proposed plans for corrective action submitted by the violator must comply with the standards set forth in this chapter where applicable and 30-A M.R.S.A. § 4452(3). The acceptance by the CEO of a violator's proposed plan(s) of correction or mitigation will not relieve the violator of the requirement to pay the fine set forth in the notice.

(4)

The notice must also advise the violator of any right to appeal to the Board of Appeals with respect to the CEO's determination that a violation of this title and/or 30-A M.R.S.A. § 4452 exists for which the violator is responsible.

(5)

Additionally, if there is a violation of § 16.5.19, Nonstormwater Discharge, the enforcement authority will order compliance by written notice of violation to that person, indicating the nature of the violation and ordering the action necessary to correct it, including, without limitation:

[Amended 5-8-2023]

(a)

The elimination of nonstormwater discharges to the storm drainage system, including, but not limited to, disconnection of the premises from the MS-4;

(b)

The immediate cessation of discharge practices or operations in violation of this section;

(c)

At the person's expense, the abatement or remediation (in accordance with best management practices in DEP rules and regulations) of nonstormwater discharges to the storm drainage system and the restoration of any affected property; and/or

(d)

The payment of fines, of the municipality's remediation costs, and of the municipality's reasonable administrative costs and attorneys' fees and costs. If abatement of a violation and/or restoration of affected property is required, the notice will set forth a deadline within which such abatement or restoration must be completed.

(e)

If abatement of a violation and/or restoration of affected property is required, or if immediate cessation is not possible or if elimination of the non-stormwater discharge is not possible within 60 days of identification of the source, the notice shall set forth a deadline within which such elimination, abatement, or restoration must be completed.

Procedure to serve notice of violation and order. The notice pursuant to § 16.2.13D must either:

(1)

Be served in hand to the violator by the CEO or a person duly authorized by the CEO;

(2)

Be left at the violator's dwelling house or usual place of abode with a person of suitable age and discretion then residing therein or with an agent authorized by appointment or by law to receive service of process;

(3)

Be mailed by certified U.S. Mail, return receipt requested, to the violator's last-known address. If the return receipt is not returned, the notice will be conclusively presumed to have been served. Such notice sent by regular U.S. Mail, if not returned or undeliverable, is conclusively deemed to be received by the addressee on the fifth day following the date of mailing; or

(4)

Any procedure for service of process authorized by Rule 4 of the Maine Rules of Civil Procedure (MRCP).

Appeal of notice of violation and order.

(1)

The violator served with a notice of violation and order may appeal the notice of violation and order to the Board of Appeals by filing an administrative appeal application in accordance with § 16.2.12E(1).

(2)

If a completed appeal is not filed within 30 days of receipt of the violation and order, then the notice of violation and order is final, and the violator is subject to the penalty contained therein. If a completed appeal application is timely filed, the Board of Appeals (BOA) must hold a public hearing pursuant to § 16.2.12E(2) and render a decision to uphold, modify or reverse the violation notice and order issued by the CEO. The Board must set forth its findings of fact and conclusions of law in support of its decision and give notice of the same to the violator.

(3)

Any adverse decision of the BOA may be further appealed to the Superior Court pursuant to the provisions of Rule 80(B) of the Maine Rules of Civil Procedure (MRCP). If a timely appeal is taken, the notice of violation and order is stayed. If no appeal is taken, or any appeal once taken is withdrawn or not pursued, the violation notice and order is final and enforceable as provided in the title.

(4)

Civil proceedings. If the notice of violation and order has not been corrected, and no appeal is pending before the BOA or Superior Court, or the parties have not reached a consent agreement as provided in § 16.2.13J, the Town Attorney or the CEO, as provided by MRCP Rule 80K, upon notice from the Town Manager, may initiate any and all appropriate legal proceedings authorized in this title or state statute to compel the violator to correct the violation, pay any fine imposed, and seek whatever other relief to which the Town may be entitled. Such legal proceedings may include the initiation of a land use complaint pursuant to MRCP Rule 80K and 30-A M.R.S.A. § 4452 et seq., as amended.

Civil proceedings. If the notice of violation and order has not been corrected, and no appeal is pending before the BOA, or the parties have not reached a consent agreement as provided in § 16.2.13J, the Town Attorney or the CEO, as provided by MRCP Rule 80K, upon notice from the Town Manager, may initiate any and all appropriate legal proceedings authorized in this title or state statute to compel the violator to correct the violation, pay any fine imposed, and seek whatever other relief to which the Town may be entitled. Such legal proceedings may include the initiation of a land use complaint pursuant to MRCP Rule 80K and 30-A M.R.S.A. § 4452 et seq., as amended.

Time limit for corrective action.

(1)

The time period within which a violation must be corrected as set forth in the notice of violation and order under § 16.2.13D of this section is 30 days following receipt of the notice of the violation and order, unless:

(a)

The CEO determines a longer reasonable time limit is necessary considering the nature and extent of the work required to correct the violation.

(b)

The CEO determines a shorter reasonable time limit is appropriate due to the threat posed by said violation to the health, safety and welfare of the public.

(c)

The CEO finds the violator has been previously served a notice of violation and order for a similar violation within the last 18 months; in which case the time limit for corrective action must be no more than five days.

(2)

If a violator in a timely fashion files a completed administrative appeal application with the Town Clerk as provided in § 16.2.13F, any period of time from date of receipt of such an appeal to date of decision of the BOA, inclusive, is not counted as part of the cumulative time period described in this section. If the BOA upholds the CEO's determination, the timeline set forth in the notice of violation and order resumes, beginning the day after the decision is rendered, unless it is extended by the BOA.

Penalties.

(1)

The Code Enforcement Officer must impose the following penalties for the failure to correct a cited violation within the prescribed time set forth in the notice:

(a)

Fine imposed: $200 for the first seven-day period the violation continues beyond the time specified for corrective action. Thereafter, each day the violation continues, a separate and specific violation with an additional minimum of $100 per day penalty for each day of the continuing violation up to a maximum penalty imposed of $2,500 for each specific violation, or the maximum as provided by 30-A M.R.S.A. § 4452, if greater.

(b)

When the violation set forth in the notice involves any cutting of tree(s) or other vegetation in violation of § 16.8.10O(2) or 30-A M.R.S.A. § 4452(3), the penalty provided by this section will be imposed from the date of notification of the violation in writing in addition to the required corrective action set forth in the § 16.2.13D.

(2)

After the time specified to correct the violation in the notice of violation and order passes, it is the responsibility of the violator to inform the Code Enforcement Officer in writing when the violation has been corrected and seek an inspection to verify the violation has been corrected. For the purposes of this section, the violation will be assumed to have continued to exist uncorrected until the violator has informed the Code Enforcement Officer in writing that the violation has been corrected or the Code Enforcement Officer discovers through inspection of the premises that the violation has been corrected, whichever comes earlier.

Consent agreements.

(1)

In special cases, particularly minor, unintentional violations that are unduly difficult to correct, the Town Manager, with advice of the Code Enforcement Officer, is authorized to enter into a consent agreement with the violator to resolve the violation without further enforcement action or appeal. Consent agreements are not intended to allow a violator to substitute fines for corrective actions.

(2)

Any such violation that is allowed to continue pursuant to a consent agreement is not granted the status of a nonconforming use. Any further actions by the violator with regard to the property must comply in all respects to the existing terms and provisions of this title.

Payment of civil penalties. All civil penalties imposed pursuant to a notice of violation and order as provided in § 16.2.13D are payable to the Town and due within 30 days after the notice of violation and order become final. All such civil penalties not paid when due accrue interest on the unpaid penalties at the rate provided for judgments in 14 M.R.S.A. § 1602-A. If the violator fails to pay this penalty, the penalty may be recovered by the Town in a civil action in the nature of debt.

Fines. Any person, including but not limited to a property owner, an owner's agent or a contractor, who violates any provision or requirement of this title will be penalized in accordance with this title and 30-A M.R.S.A. § 4452.

§ 16.2.14 Enforcement.

It is the duty of the Code Enforcement Officer to enforce the provisions of Chapter 16.5.11, Floodplain Management, pursuant to 30-A M.R.S.A. § 4452.

The penalties contained in 30-A M.R.S.A. § 4452 apply to any violation of this chapter.

In addition to any other actions, the Code Enforcement Officer, upon determination that a violation of applicable floodplain management regulations exists, is to submit a declaration to the Administrator of the Federal Insurance Administration requesting a denial of flood insurance. The valid declaration is to consist of:

(1)

The name of the property owner and address or legal description of the property sufficient to confirm its identity or location;

(2)

A clear and unequivocal declaration that the property is in violation of a cited state or local law, regulation or ordinance;

(3)

A clear statement that the public body making the declaration has authority to do so and a citation to that authority;

(4)

Evidence that the property owner has been provided notice of the violation and the prospective denial of insurance; and

(5)

A clear statement that the declaration is being submitted pursuant to Section 1316 of the National Flood Insurance Act of 1968, as amended.