Town of Kittery, ME
York County
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Table of Contents
Table of Contents
This chapter describes general administration and enforcement of the requirements of this title.
A. 
Responsibilities. The Town Planner is responsible for the overall planning in accordance with applicable federal, state and municipal law, codes and ordinances. The 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.
B. 
Plan submission.
(1) 
All plan submission requirements for an application for land/water area use and development are to be submitted to the Planner.
(2) 
The 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 Planner, upon confirmation of a plan's submission contents sufficiency, is to place the application on the Board's agenda for a scheduling hearing.
NOTE: 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.
C. 
Staff coordination. The 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.
D. 
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 monthly.
A. 
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.
B. 
Permits. The CEO is to issue required permits for building, occupancy, plumbing, electrical or such other as may be required.
C. 
Appeal/request initiation. The CEO must initiate the forms required for appeals/requests to the Board of Appeals.
D. 
Inspection. The CEO must inspect all buildings, developments, subdivisions and such other facilities/uses within the requirements of this title.
E. 
Business use changes. The 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 §§ 16.10.3.2 and 16.10.3.6. Approval must be based on compliance with all requirements of this title.
[Amended 9-26-2011 by Ord. No. 11-15]
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.
A. 
Inspection of required improvements.
[Amended 9-28-2015 by Ord. No. 15-08]
(1) 
A preconstruction meeting is required for a Planning Board approved site plan, subdivision plan, and right-of-way plan, and for all other plans is at the discretion of the Town Planner. A preconstruction meeting for approved development not subject to Planning Board review is at the discretion of the Code Enforcement Officer. Prior to the commencement of any work associated with development approved in accordance with this title, the developer or duly authorized representative must provide a schedule of expected construction activities by phase to the inspecting official [the Code Enforcement Officer (CEO) or their representative or, when applicable, the Town’s Peer Review Engineer], and coordinate a preconstruction meeting. Attendance at said meeting must at a minimum include authorized representation from the Town, the developer and their general contractor. Meeting minutes must be prepared by the Town’s representative and distributed to all attendees and the Town Planner.
(2) 
The developer or general contractor shall coordinate inspections with the inspecting official and provide written notice at least seven days prior to commencing each major phase of construction as outlined in the construction schedule. When all phases of work are complete, the general contractor shall request a final inspection from the inspecting official, who shall prepare a punch list of any outstanding items to be completed, within seven days of the final inspection. Once all outstanding items have been completed, the developer or the general contractor shall coordinate a final walk-through where the inspecting official determines if the construction has been completed in accordance with the approved plans. The inspecting official shall provide, in writing, to the developer or the general contractor within seven days of the final walk-through what, if any, construction is not complete or confirm that the development is complete and has been constructed according to the approved plans.
(3) 
If the inspecting official finds, upon inspection of the required improvements, that any of the required improvements have not been constructed in accordance with the approved plans and specifications, the inspecting official must report, in writing, to the Town Planner, the developer or duly authorized representative of the developer, and, when applicable, the CEO. The Town Planner shall inform the Planning Board of any issues identified by the inspections. The Town shall take any steps necessary to preserve the municipality’s rights.
(4) 
Where applicable and in advance of any construction, the developer must deposit sufficient funds for said inspections in an applicant’s service account per Chapter 3.3. The amount is based on a scope of services and fee prepared by the Town’s Peer Review Engineer after review of the developer’s construction estimate prepared by a professional engineer or a qualified contractor.
B. 
Modifications to an approved plan. Any modification to an approved plan may be considered for approval under § 16.10.3.1, General development, site and subdivision plan review, § 16.10.3.2, Other development review, and/or § 16.10.9.1B, Plan revisions after approval, or § 16.10.9.3, Modifications to approved plan.
C. 
Recordkeeping in Shoreland and Resource Protection Overlay Zones. The Code Enforcement Officer is to keep a complete record of all essential transactions of development in the Shoreland and Resource Protection Overlay Zones, 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. On a biennial basis, a summary of this record must be submitted to the Director of the Bureau of Land and Water Quality within the Department of Environmental Protection.
D. 
Stormwater and erosion control inspection.
(1) 
During October to November of each year in which construction for grading, paving and landscaping occurs on a development site, the Town will, at the expense of the developer, cause the site to be inspected by a qualified individual. By December 1, the inspector must submit a site report to the Town Planner that describes the inspection findings and indicates whether stormwater and erosion control measures (both temporary and permanent) are in place and properly installed. The report must include a discussion and recommendation on any and all problem areas encountered.
(2) 
After major construction activities have been completed on a development site, the developer must, on or by July 1 of each year, provide a completed and signed certification to the Code Enforcement Officer per § 16.8.8.2, Post-construction stormwater management.
E. 
Subdivision lot monumentation prior to sale. Prior to the sale of any approved subdivision lot, the subdivider must provide the Planner with a letter from a registered land surveyor, stating all monumentation shown on the plan has been installed.
F. 
Street acceptance as Town way. Upon completion of construction of any street/road intended for proposal for acceptance as a Town way, a written certification that such way meets or exceeds the design and construction standards of this title, signed by a professional engineer registered by the State of Maine, prepared at the developer's expense, must be submitted to the Board. If underground utilities are laid in such way, the developer must also provide written certification from the servicing utility(ies), that such installation was in a manner acceptable to the utility. The Board is to review the proposal and forward a recommendation to the Town Council regarding acceptance.
G. 
Maintenance of improvements. The developer, or owner, is required to maintain all improvements and provide for snow removal on streets and pedestrianways/sidewalks unless and until the improvement has been accepted by the Town Council.
H. 
Subdivision plan filing, recording. Prior to recording a subdivision plan in the York County Registry of Deeds, a subdivider must have acquired Planning Board approval in accordance with this title.
I. 
Subdivision land conveyance. No person, firm, corporation, or other legal entity may convey, offer, or agree to convey any land in a subdivision which has not been approved by the Planning Board, recorded in the York County Registry of Deeds and shown on the final plan as a separate lot.
J. 
Subdivision frontage street completion. No lot in a subdivision may be sold, leased or otherwise conveyed before the street upon which such lot has frontage is completed to rough grade standard up to and including the entire frontage of the lot. Prior to the issuance of certificates of occupancy by the CEO, the street from which the unit is accessed must be completed in accordance with Chapter 16.8.
K. 
Utility service. Prior to the installation of any public utility to a site, the developer must have obtained all necessary approvals from the appropriate local, state or federal authority.
L. 
Grading/construction final plan required. Grading or construction of roads, grading of land or lots, or construction of buildings which require a final plan as provided in this title, until such time as the final plan has been duly prepared, submitted, reviewed, approved and endorsed as provided in this title, is prohibited until the original copy of the final plan so approved and endorsed has been duly recorded in the York County Registry of Deeds.
M. 
Nonstormwater discharge. No person, except where exempted in Title 16.9.7, may create, initiate, originate, or maintain a nonstormwater discharge to the storm drainage system. Such nonstormwater discharges are prohibited notwithstanding the fact that the municipality may have approved the connections, drains or conveyances by which a person discharges unallowable nonstormwater discharges to the storm drainage system.
[Amended 5-22-2017 by Ord. No. 17-06; 5-30-2018 by Ord. No. 04-18]
N. 
Nuisances. Any violation of this title is deemed to be a nuisance.
O. 
Erosion control debris. The owner or occupant of any land in any zone must not allow erosion control materials, such as plastic erosion control fences and related stakes or other materials, to remain on the site but must remove the same within six months of the date such erosion control materials were installed, or the date when no longer required, whichever is later. When a violation is discovered, the Code Enforcement Officer will order compliance by written notice of violation to the owner of any land in any zone requesting removal of such violation within 30 days of the date of written notice. An extension of time to correct may be made by the Code Enforcement Officer for good and sufficient reason.
[Amended 5-30-2018 by Ord. No. 04-18]
When any violation of any provision of this title or Chapter 16.9, Article VII, 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.
A. 
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.
B. 
Applications for permits or approvals involving sites with a violation. An application for a building/regulated activity permit (see Chapter 16.5), 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.
C. 
Purpose of enforcement provisions. The purpose of these title enforcement provisions is to provide an alternative method in addition to § 16.4.4 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.
D. 
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 § 16.4.5H and must set forth a fine to be imposed as authorized by § 16.4.5I and/or 30-A M.R.S. § 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. § 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. § 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. § 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. § 4452 exists for which the violator is responsible.
(5) 
Additionally, if there is a violation of Chapter 16.9, Article VII, 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 5-30-2018 by Ord. No. 04-18]
(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 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. 
Procedure to serve notice of violation and order. The notice pursuant to § 16.4.5D 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).
F. 
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 § 16.6.5A.
(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 § 16.6.5B 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.
G. 
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 § 16.4.5J, 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. § 4452 et seq., as amended.
H. 
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 § 16.4.5D 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 § 16.4.5F, 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.
I. 
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. § 4452, if greater.
(b) 
When the violation set forth in the notice involves any cutting of tree(s) or other vegetation in violation of § 16.9.2.2 or 30-A M.R.S. § 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 § 16.4.5D.
(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.
J. 
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.
K. 
Payment of civil penalties. All civil penalties imposed pursuant to a notice of violation and order as provided in § 16.4.5D 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. § 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.
L. 
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. § 4452.
In addition to the violations and enforcement provisions of §§ 16.4.4 and 16.4.5, any person, firm, corporation or legal entity, being the owner of or having control or use of any buildings or premises, who violates any of the provisions of this title or any notice of violation and order issued by the CEO, is guilty of a civil violation and the Town has those remedies, including fines, as are provided and allowed by 30-A M.R.S. § 4452, as amended. Each day such violation is permitted to exist after notification thereof constitutes a separate offense. All enforcement actions are to be brought in the name of the Town. All fines collected hereunder accrue to the Town.
Before a developer may be released from any obligation required by guaranty of performance, the Board must require certification from the CEO or appointed engineer and whatever other agencies and departments that may be involved to the effect that all improvements have been satisfactorily completed in accordance with all applicable standards, state and local codes and the approved plans.
[Added 9-26-2011 by Ord. No. 11-15]
A. 
It is the duty of the Code Enforcement Officer to enforce the provisions of Chapter16.9, Article VIII, Floodplain Management, pursuant to 30-A M.R.S. §4452.
B. 
The penalties contained in 30-A M.R.S. §4452 apply to any violation of this chapter.
C. 
In addition to any other actions, the Code Enforcement Officer, upon determination that a violation 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.