A legally existing (grandfathered) nonconforming lot, structure or use is a lot, structure or use that lawfully existed immediately prior to the enactment of this chapter, or any subsequent amendment, and which, as a result of the enactment of this chapter, or any subsequent amendment, presently fails to comply with any of the requirements of this chapter or its amendments, including, but not limited to, the use restrictions and lot standards for the district in which it is located, or any standards set forth in Article V. Any other lot, structure or use that fails to comply with any of the requirements of this chapter or its amendments is an illegal nonconformity.
A.
All nonconformities shall be encouraged to convert
to conformity whenever possible and, when required by this chapter,
shall convert to conformity.
B.
Any nonconformity not expressly allowed to exist by
this article is hereby deemed illegal and shall cease or be corrected
immediately.
C.
The burden of establishing that any nonconformity
is a legal nonconformity shall, in all cases, be upon the owner of
such nonconformity and not upon the Town of Bar Harbor.
D.
Any legally existing nonconformity may be transferred
and the new owner may, subject strictly to the requirements of this
article, continue such nonconformity; provided, however, that nothing
contained herein shall be construed to permit any person or entity
to occupy or use any lot or structure or to continue any use in violation
of any other federal, state or municipal statute, ordinance or regulation.
E.
Once converted to conformity, no lot, structure or
use shall revert to nonconformity.
F.
Nothing herein shall require any change in the plans,
construction, size or designated use for any building, structure or
part thereof for which a completed application for a local permit
is pending, or for which a permit has been issued and upon which construction
has been lawfully commenced, prior to the adoption of this chapter
or any amendment.
The use of any land or structure which is made
nonconforming as a result of the enactment of this chapter, or any
subsequent amendment, may be continued, but only in strict compliance
with the following:
A.
No nonconforming use shall be enlarged or increased,
or extended to occupy a greater area of land than such use occupied
when it became nonconforming.
B.
No existing structure devoted partially or entirely
to a nonconforming use shall be extended or enlarged.
C.
Any nonconforming use may be extended throughout any
parts of a building which, at the time such use became a nonconformity,
were arranged or designed for such use; provided, however, that no
nonconforming use shall be extended to occupy any land outside such
building.
D.
Any nonconforming use of land or a structure may be changed to another nonconforming use provided first that the Board of Appeals finds that the proposed use will have no greater adverse impact on the subject and adjacent properties and resources, including water-dependent uses, than the existing use, and second that the Planning Board grants site plan approval upon a finding that the proposed use meets all standards set forth in Article V except those that cause the existing use to be nonconforming. In determining that no greater adverse impact will occur, the Board of Appeals, in dealing with uses in resource protection, shoreland limited residential, shoreland general development and stream protection districts, shall, at a minimum, require written documentation from the applicant regarding the probable effects on public health and safety, erosion and sedimentation, water quality, fish and wildlife habitat, vegetative cover, visual and actual points of public access to waters, natural beauty, floodplain management, archaeological and historic resources, and commercial fishing and maritime activities, and other functionally water-dependent uses.
[Amended 11-5-1991]
E.
If any nonconforming use of land or of a structure
housing a nonconforming use ceases or is discontinued for any reason
for a period of 12 or more consecutive months, any subsequent use
of such land or structure shall conform to the requirements of this
chapter in all respects.
[Amended 11-4-2003]
F.
A nonconforming use or a structure housing a nonconforming
use may be moved within a lot provided that the Board of Appeals finds
that the proposed new location and design are more appropriate with
regard to:
G.
[1]Transient accommodations.
(1)
Transient accommodations that are nonconforming uses
may be enlarged, extended and occupy a GREATER area of land, provided
that no additional guest rooms are added and that the Board of Appeals
finds that:
[Added 6-13-2006]
(2)
In determining that no greater adverse impact will
occur, the Board of Appeals, in dealing with transient accommodation
in resource protection, shoreland limited residential, shoreland general
development and stream protection districts, shall, at a minimum,
require written documentation from the applicant regarding the probable
effects on public health and safety, erosion and sedimentation, water
quality, fish and wildlife habitat, vegetative cover, visual and actual
points of public access to waters, natural beauty, floodplain management,
archaeological and historic resources, and commercial fishing and
maritime activities, and other functionally water-dependent uses.
Any structure which is made nonconforming as
a result of this chapter, or any subsequent amendment, may be continued,
but only in strict compliance with the following:
A.
No structure shall be enlarged, altered or extended
in any way that increases its nonconformity. Any enlargement, alteration
or extension that does not project past existing walls, foundations
or eaves that already encroach into the required setback area shall
not be considered to increase a structure's nonconformity. However,
the following limitations shall apply to nonconforming structures
within 75 feet of the normal high water line of a water body, tributary
stream, significant vernal pool or upland edge of a wetland and 100
feet from the normal high water line of a great pond classified GPA
or a river flowing to a great pond classified GPA:
[Amended 5-7-1991; 6-13-2006; 11-4-2008; 11-3-2009; 6-8-2010]
(1)
Whenever a new, enlarged, or replacement foundation is constructed under a nonconforming structure, the structure and new foundation must be placed such that the setback requirement is met to the greatest practical extent as determined by the Planning Board or its designee, basing its decision on the criteria specified in § 125-55C(3) below. If the completed foundation does not extend beyond the exterior dimensions of the structure, except for expansion in conformity with § 125-55A(3) below, and the foundation does not cause the structure to be elevated by more than three additional feet as measured from the uphill side of the structure (from original ground level to the bottom of the first-floor sill), it shall not be considered to be an expansion of the structure.
]
(2)
Notwithstanding the provisions of Subsection A(1), no structure which is less than the required setback from the normal high-water line of a water body, tributary stream, or upland edge of a wetland shall be expanded toward the water body, tributary stream, or wetland.
(3)
After January 1, 1989, if any portion of a structure is less than the required setback from the normal high-water line of a water body or tributary stream or the upland edge of a wetland, that portion of the structure shall not be expanded, as measured in floor area or volume by 30% or more during the lifetime of the structure. If a replacement structure conforms with the requirements of § 125-55B below, and is less than the required setback from a water body, tributary stream or wetland, the replacement structure may not be expanded if the original structure existing on January 1, 1989, had been expanded by 30% in floor area and volume since that date.
B.
Any structure may be razed and rebuilt up to the dimensions (length, width and height) of the individual structure that was razed plus any enlargements, alterations or extensions permitted by Subsection A(1), provided rebuilding is begun within one year and completed within two years after the structure is razed; provided, however, that such rebuilding of any nonconforming structure which is located less than the required setback from the normal high water line of a water body, tributary stream, or upland edge of a wetland is in compliance with the water setback requirement to the greatest practical extent as determined by the Planning Board in accordance with the purposes of this chapter. In no case shall a structure rebuilt under this subsection be combined with another structure or be reconstructed or replaced so as to increase its nonconformity.
[Amended 5-7-1991; 11-5-1991; 5-6-1996; 11-2-1999; 11-4-2003; 11-7-2006; 11-4-2008]
(1)
Any nonconforming structure which is located less
than the required setback from the normal high water line of a water
body, tributary stream, or upland edge of a wetland and which is removed
by 50% or less of the market value or damaged or destroyed by 50%
or less of the market value of the structure, excluding normal maintenance
and repair, may be reconstructed in place if a permit is obtained
from the Code Enforcement Officer within one year of such damage,
destruction, or removal.
(2)
Any nonconforming structure which is located less than the required setback from a water body, tributary stream, or wetland and which is removed, or damaged or destroyed, regardless of the cause, by more than 50% of the market value of the structure before such damage, destruction or removal may be reconstructed or replaced, provided that a permit is obtained within one year of the date of said damage, destruction, or removal, and provided that such reconstruction or replacement is in compliance with the water body, tributary stream or wetland setback requirement to the greatest practical extent, as determined by the Planning Board or its designee in accordance with the § 125-55C below and the physical condition and type of foundation present, if any. In no case shall a structure be reconstructed or replaced so as to increase its nonconformity. If the reconstructed or replacement structure is less than the required setback, it shall not be any larger than the original structure, except as allowed pursuant to § 125-55A(1) above, as determined by the nonconforming floor area and volume of the reconstructed or replaced structure at its new location. If the total amount of floor area and volume of the original structure can be relocated or reconstructed beyond the required setback area, no portion of the relocated or reconstructed structure shall be replaced or constructed at less than the setback requirement for a new structure. When it is necessary to remove vegetation in order to replace or reconstruct a structure, vegetation shall be replanted in accordance with § 125-55C.
[1]
Editor's Note: This ordinance also repealed former Subsection
B(3), which immediately followed and set forth criteria for determining
whether building reconstruction and replacement met setback to the
greatest practical extent.
C.
A nonconforming structure may be relocated within
the boundaries of the lot on which the structure is located, provided
that the Board of Appeals finds that the proposed new location and
design are more appropriate with regard to location, character and
natural features; fencing and screening; landscaping and topography;
traffic and access; signs and lighting; and potential nuisance, provided
that the site of relocation conforms to all setback requirements to
the greatest practical extent, as determined by the Board of Appeals,
and provided that the applicant demonstrates that the present subsurface
sewage disposal system meets the requirements of state law and the
State of Maine Subsurface Wastewater Disposal Rules (rules), or that
a new system can be installed in compliance with the law and said
rules. In no case shall a structure be relocated in a manner that
causes the structure to be more nonconforming. In determining whether
the building relocation meets the setback to the greatest practical
extent, the Board of Appeals shall consider the size of the lot, the
slope of the land, the potential for soil erosion, the location of
other structures on the property and on adjacent properties, the location
of the septic system and other on-site soils suitable for septic systems,
and the type and amount of vegetation to be removed to accomplish
the relocation. When it is necessary to remove vegetation within the
water or wetland setback area in order to relocate a structure, the
Planning Board shall require replanting of native vegetation to compensate
for the destroyed vegetation. In addition, the area from which the
relocated structure was removed must be replanted with vegetation.
Replanting shall be required as follows:
[Amended 11-5-1991; 11-4-2008]
(1)
Trees removed in order to relocate a structure must
be replanted with at least one native tree, three feet in height,
for every tree removed. If more than five trees are planted, no one
species of tree shall make up more than 50% of the number of trees
planted. Replaced trees must be planted no further from the water
or wetland than the trees that were removed. Other woody and herbaceous
vegetation, and ground cover, that is removed or destroyed in order
to relocate a structure must be reestablished. An area at least the
same size as the area where vegetation and/or ground cover was disturbed,
damaged, or removed must be reestablished within the setback area.
The vegetation and/or ground cover must consist of similar native
vegetation and/or ground cover that was disturbed, destroyed or removed.
(2)
Where feasible, when a structure is relocated on a
parcel, the original location of the structure shall be replanted
with vegetation which may consist of grasses, shrubs, trees, or a
combination thereof.
D.
The use of a nonconforming structure located in any
shoreland district may not be changed to another use unless the Board
of Appeals, after receiving a written application, determines that
the new use will have no greater adverse impact on the water body,
tributary stream, or wetland, or on the subject or adjacent properties
and resources, than the existing use. In determining that no greater
adverse impact will occur, the Board of Appeals shall require written
documentation from the applicant regarding the probable effects on
public health and safety, erosion and sedimentation, water quality,
fish and wildlife habitats, vegetative cover, visual and actual points
of public access to waters, natural beauty, floodplain management,
archaeological and historic resources, and commercial fishing and
maritime activities and other functionally water-dependent uses.
[Added 11-5-1991; amended 11-4-2008]
E.
Single-family, two-family dwellings.
[Added 6-13-2006]
(1)
Single- and two-family dwellings, except in the Shoreland
District(s), are not subject to the above limitations in this section.
(2)
An existing nonconforming single-family or two-family
dwelling or structures accessory thereto which are nonconforming with
respect to a dimensional requirement may be enlarged or extended in
any other direction in compliance with this chapter, by issuance of
a building permit. That part of an existing nonconforming dwelling
which is nonconforming with respect to a dimensional requirement may
be enlarged or extended in that direction, provided the Board of Appeals
grants a finding that all of the following conditions are met:
(a)
The existing or proposed degree of nonconformity is not greater than 50% of the dimensional requirement in Article III of the chapter.
(b)
The Board of Appeals determines that the extension
or enlargement is appropriate in scale and mass for the neighborhood,
with particular consideration of abutting properties.
[Amended 11-5-1991; 5-4-1992; 5-2-1994; 6-13-2006; 11-7-2006; 11-3-2009; 6-13-2023]
A single parcel of land, the legal description
or dimensions of which are recorded on a document or map on file at
the Hancock County Registry of Deeds, which lawfully existed immediately
prior to the enactment of this chapter or any subsequent amendment
and which, as a result of the enactment of this chapter or any amendment,
does not meet the lot size, minimum area per family, road frontage,
lot coverage, shore frontage, or lot width requirements, or all seven,
in the district in which it is located, and which does not adjoin
another vacant parcel in common ownership, may be built upon without
the need for a variance, but only subject to the following:
A.
Such building or construction shall, in all other
respects, comply with the provisions of this chapter.
B.
No construction shall be commenced until the owner
demonstrates to the satisfaction of the Code Enforcement Officer that
there is reasonable access to the site for emergency vehicles.
C.
Two or more nonconforming vacant parcels of land in
common ownership shall be consolidated to form one or more lots conforming
so far as possible to the lot standards of the district in which the
parcels are located. If possible, the lots shall be consolidated so
that no nonconforming lot or lots are formed.
D.
One or
more nonconforming vacant parcels of land that adjoin a conforming
parcel containing a building or structure shall be consolidated to
the extent necessary to bring the lots into conformity so far as possible.
If the remaining portion of the vacant parcel(s) constitutes a conforming
lot, said remaining portion shall constitute a separate lot; otherwise
combined lots shall constitute one lot.
[Added 6-8-2010[1]]
[1]
Editor's Note: This ordinance also redesignated former Subsection
D as Subsection E.
E.
One or more vacant parcels of land that adjoin a nonconforming
lot in common ownership and containing a building or structure shall
be consolidated with said improved lot to the extent necessary to
bring the improved lot into conformity so far as possible. If the
remaining portion of the vacant parcels constitutes a conforming lot,
said remaining portion shall constitute a separate lot. Otherwise,
the combined lots shall constitute one lot.
F.
If two
or more principal uses or structures exist on a single lot of record
in any shoreland district, each may be sold on a separate lot provided
that the State Minimum Lot Size Law (12 M.R.S.A. §§ 4807-A
through 4807-D) and the State of Maine Subsurface Wastewater Disposal
Rules are complied with.
[2]
Editor's Note: This ordinance also redesignated former Subsection
E as Subsection G.
G.
Notwithstanding any other provision of this chapter,
no nonconforming lot within any shoreland district may be built on
unless that lot has at least 100 feet of shore frontage and 20,000
square feet of lot area and can meet State Plumbing Code requirements
for on-site sewage disposal or is served by a public sewer. The requirements
of this subsection may not be modified by variance.
