Town of Shapleigh, ME General Provisions

Continuance. The use of land, building or structure, lawful at the time of adoption or subsequent amendment of this chapter, may continue although such use does not conform to the provisions of this chapter.

Resumption prohibited. A lot, building or structure in or on which a nonconforming use is discontinued for a period exceeding one year, or which is superseded by a conforming use, may not again be devoted to a nonconforming use except that the Planning Board may, for good cause shown by the applicant, grant up to a one-year extension to that time period. This provision shall not apply to the resumption of a use of a residential structure, provided that the structure has been used or maintained for residential purposes during the preceding five-year period.

[Amended 6-30-2009 STM]

Discontinuance. A nonconforming use which is discontinued for a period of one year may not be resumed. The uses of the land, building or structure shall thereafter conform to the provisions of this chapter.

(4)

Change of use. An existing nonconforming use may be changed to another nonconforming use, provided that the proposed use has no greater adverse impact on the subject and adjacent properties and resources than the former use, as determined by the Planning Board. The determination of no greater adverse impact shall be made according to criteria listed in Subsection D.

[Amended 6-30-2009 STM]

(5)

Expansion. A nonconforming use, including a nonconforming open use of land, shall not be extended or expanded in area or function, unless the following conditions are met:

A nonconforming use may not be extended within a building or another structure to any portion of the floor area that was not occupied by such use on the effective date of this chapter (or on the effective date of a subsequent amendment hereto that causes such use to become nonconforming); provided, however, that a nonconforming use may be extended throughout any part of such building or structure that was lawfully and manifestly designed or arranged for such use on such effective date.

A nonconforming use may not be extended to any building or other structure or land area other than the one(s) occupied by such use on the effective date of this chapter (or on the effective date of a subsequent amendment hereto that causes such use to become nonconforming), except when the use of the building or structure is changed from a nonconforming to a conforming use, or when a garage is added to a single residential dwelling in a resource protection zone, provided that all the dimensional requirements and filling requirements are met.

(6)

Earth removal. In the case of earth removal operations, the removal of earth may not be extended as a nonconforming use beyond the setback lines required in this chapter of the specific lot or parcel of land upon which such use has become nonconforming without securing a variance from the Board of Appeals. Adjacent parcels in the same or different ownership shall not be eligible for exemption under the nonconforming use provisions unless earth removal operations have been in progress prior to the enactment of these provisions.

Nonconforming structures.

Expansions. All new principal and accessory structures, excluding functionally water-dependent uses, must meet the water body, tributary stream, or wetland setback requirements contained in Section 105-18. A nonconforming structure may be added to or expanded after obtaining a permit from the same permitting authority as that for a new structure, if such addition or expansion does not increase the nonconformity of the structure and is in accordance with Subsection D(1)(a) and (b) below.

[Amended 3-12-1988 ATM by Art. 64; 3-9-1991 ATM by Art. 53; 3-14-1992 ATM by Art. 20; 3-13-1999 ATM by Art. 65; 6-30-2009 STM; 3-12-2016 ATM, Art. 3]

Expansion of any portion of a structure within 25 feet of the normal high-water line of a water body, tributary stream, or upland edge of a wetland is prohibited, even if the expansion will not increase nonconformity with the water body, tributary stream, or wetland setback requirement. Expansion of an accessory structure that is located closer to the normal high-water line of a water body, tributary stream, or upland edge of a wetland than the principal structure is prohibited, even if the expansion will not increase nonconformity with the water body, tributary stream, or wetland setback requirement.

Notwithstanding Subsection D(1)(a), above, if a legally existing nonconforming principal structure is entirely located less than 25 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland, that structure may be expanded as follows, as long as all other applicable municipal land use standards are met and the expansion is not prohibited in Subsection D(1):

The maximum total footprint for the principal structure may not be expanded to a size greater than 800 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of the principal structure may not be made greater than 15 feet or the height of the existing structure, whichever is greater.

All other legally existing, nonconforming principal and accessory structures that do not meet the water body, tributary stream, or wetland setback requirements may be expanded or altered as follows, as long as other applicable municipal land use standards are met and the expansion is not prohibited by Subsection D(1) or (1)(a), above:

For structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,000 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of any structure may not be made greater than 20 feet or the height of the existing structure, whichever is greater.

For structures located less than 100 feet from the normal high-water line of a great pond classified as GPA or a river flowing to a great pond classified as GPA, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of any structure may not be made greater than 25 feet or the height of the existing structure, whichever is greater. Any portion of those structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland must meet the footprint and height limits in Subsection D(1)(b)[1] or (c)[1], above.

[3]

In addition to the limitations in Subsection D(1)(c)[1] and [2], for structures that are legally nonconforming due to their location within the Resource Protection District when located at less than 250 feet from the normal high-water line of a water body or the upland edge of a wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet or 30% larger than the footprint that existed at the time the Resource Protection District was established on the lot, whichever is greater. The maximum height of any structure may not be made greater than 25 feet or the height of the existing structure, whichever is greater, except that any portion of those structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland must meet the footprint and height limits in Subsection D(1)(b)[1] or (c)[1], above.

(d)

An approved plan for expansion of a nonconforming structure must be recorded by the applicant with the registry of deeds, within 90 days of approval. The recorded plan must show the existing and proposed footprint of the nonconforming structure, the existing and proposed structure height, the footprint of any other structures on the parcel, the shoreland zone boundary and evidence of approval by the municipal review authority.

(e)

If proposed addition or expansion of a nonconforming structure cannot meet the dimensional requirements of this chapter, a variance shall be applied for in accordance with the procedures set forth in this chapter.

Patios, steps, decks. The addition of an open patio with no structures elevated above the ground level shall constitute the expansion of a nonconforming structure. The addition of steps shall not constitute the expansion of a nonconforming structure. But the addition of a deck does constitute the expansion of a nonconforming structure and must be in compliance with Subsection D(1).

[Amended 3-14-1992 ATM by Art. 20; 3-13-1999 ATM by Art. 65]

Foundations.

[Amended 3-9-1991 ATM by Art. 53; 3-13-1999 ATM by Art. 65; 6-30-2009 STM]

Whenever a new, enlarged, or replacement foundation is constructed under a nonconforming structure, the structure and the new foundation must be placed such that the setback requirement is met to the greatest practical extent as determined by the Planning Board, basing its decision on the criteria specified in Subsection D(7), Relocation, below.[1]

Editor's Note: Former Subsection D(3)(b), regarding what constitutes expansion of a structure, and which immediately followed this subsection, was repealed 3-12-2016 ATM by Art. 3.

(4)

Resumption. Discontinuance of the use of a legally existing nonconforming structure shall not constitute abandonment of the structure. Conforming use of the structure may be resumed at any time.

(5)

Removal, reconstruction or replacement.

[Amended 3-9-1985 ATM by Art. 7; 3-14-1992 ATM by Art. 20]

Any nonconforming structure which is removed or damaged or destroyed, regardless of the cause, by more than 50% of its Town-assessed value 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 must be in compliance with all water body, tributary stream or wetland setback requirements to the greatest practical extent as determined by the Planning Board in accordance with the purposes of this chapter. In no case shall the 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 Subsection D(1) above, as determined by the nonconforming footprint of the reconstructed or replaced structure at its new location. If the total amount of footprint of the original structure can be relocated or reconstructed beyond the required setback area, no portion of the relocated or reconstructed structure shall be replaced or constructed at less than the setback requirement for a new structure. When it is necessary to remove vegetation in order to replace or reconstruct a structure, vegetation shall be replaced in accordance with Subsection D(7)(b) below.

[Amended 3-13-1999 ATM by Art. 65; 6-30-2009 STM; 3-12-2011 ATM by Art. 9; 3-12-2016 ATM, Art. 3]

Any nonconforming structure which is located less than the required setback from a water body, tributary stream, or wetland and which is removed by 50% or less of the Town-assessed value, or which is decaying, damaged or destroyed by 50% or less of the Town-assessed 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 decay, damage or destruction or removal.

[Amended 6-30-2009 STM]

In determining whether the building reconstruction or replacement meets the setback to the greatest practical extent, the Planning Board shall consider, in addition to the criteria in Subsection D(7) below, the physical condition and type of foundation present, if any.

(6)

Parking or loading space. A building or structure which is nonconforming as to the requirements for off-street parking space shall not be enlarged or altered to create additional dwelling units, or seats, as in the case of commercial, industrial, business or institutional or recreational buildings, or accommodations, unless off-street parking is provided for such addition, enlargement or alteration of the original buildings or structure, sufficient to satisfy the requirements of this chapter. A building which is nonconforming as to the requirements for off-street loading space shall not be enlarged or added to unless off-street spaces are provided sufficient to satisfy the requirements of this chapter for both the addition or enlargement and the original building or structure.

(7)

Relocation.

[Added 3-14-1992 ATM by Art. 20]

A nonconforming structure may be relocated within the boundaries of the parcel on which the structure is located, provided that the site of relocation conforms to all setback requirements to the greatest practical extent as determined by the Planning Board, and provided that the applicant demonstrates that the present subsurface sewage disposal system meets the requirements of state law and the State of Maine Subsurface Wastewater Disposal Rules, or that a new system can be installed in compliance with the law and said rules. In no case 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 Planning Board shall consider the size of the lot, the slope of the land, the potential for soil erosion, the location of other structures on the property and on adjacent properties, the location of the septic system and other on-site soils suitable for septic systems and the type and amount of vegetation to be removed to accomplish the relocation. When it is necessary to remove vegetation within the water or wetland setback area in order to relocate a structure, the Planning Board shall require replanting of native vegetation to compensate for the destroyed vegetation in accordance with § 105-51.3. In addition, the area from which the relocated structure was removed must be replanted with vegetation. Replanting shall be required as follows:

[Amended 6-30-2009 STM; 3-12-2016 ATM, Art. 3]

Trees, woody vegetation and ground cover.

[a]

Trees removed in order to relocate a structure must be replanted with at least one native tree, six feet in height, measured from the base of the trunk to the top of the tree, 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. Trees shall be planted greater than five feet from the side lots lines, and shall create a well-distributed stand of trees. These replanted trees shall be flagged with fluorescent tape no less than 18 inches in length which shall not be removed except by the Code Enforcement Officer upon inspection.

[Amended 3-9-2013 ATM by Art. 4; 3-10-2018 ATM by Art. 3; 3-9-2019 ATM by Art. 3]

[b]

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 established 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.

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.

All approved plans shall require confirmation in writing by a licensed surveyor that the placement of the structure is correct per the specifications approved by the Planning Board.

(8)

Change of use of a nonconforming structure.

[Added 6-30-2009 STM[2]]

The use of a nonconforming structure may not be changed to another use unless the Planning Board, 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 Planning Board shall 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 functionally water-dependent uses.

Editor's Note: This amendment also replaced former Subsection D(8), Disability access, added 3-14-1992 ATM by Art. 20, as amended.

(9)

Low retaining walls in the Shoreland District less than 24 inches in height for erosion control. Retaining walls that are not necessary for erosion control shall meet the structure setback requirement, except for low retaining walls and associated fill, provided all of the following conditions are met:

[Added 3-14-2020 ATM by Art. 5]

The site has been previously altered and an effective vegetated buffer does not exist;

The wall(s) is(are) at least 25 feet horizontal distance, from the normal high-water line of a water body, tributary stream, or upland edge of a wetland;

The site where the retaining wall will be constructed is legally existing lawn or is a site eroding from lack of naturally occurring vegetation, and which cannot be stabilized with vegetative plantings;

(d)

The total height of wall(s), in the aggregate, are no more than 24 inches;

(e)

Retaining walls are located outside of the 100-year floodplain on rivers, streams, coastal wetlands, and tributary streams, as designated on the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Maps or Flood Hazard Boundary Maps, or the flood of record, or in the absence of these, by soil types identified as recent floodplain soils.

(f)

The area behind the wall is revegetated with grass, shrubs, trees, or a combination thereof, and no further structural development will occur within the setback area, including patios and decks; and

(g)

A vegetated buffer area is established within 25 feet, horizontal distance, of the normal high-water line of a water body, tributary stream, or upland edge of a wetland when a natural buffer area does not exist. The buffer area must meet the following characteristics:

The buffer must include shrubs and other woody and herbaceous vegetation. Where natural ground cover is lacking, the area must be supplemented with leaf or bark mulch;

Vegetation plantings must be in quantities sufficient to retard erosion and provide for effective infiltration of stormwater runoff;

[3]

Only native species may be used to establish the buffer area;

[4]

A minimum buffer width of 15 feet, horizontal distance, is required, measured perpendicularly to the normal high-water line or upland edge of a wetland;

[5]

A footpath not to exceed the standards in § 105-51B(1)(a) may traverse the buffer.

(h)

All approved plans shall require confirmation in writing by a licensed surveyor that the placement of the structure is correct per the specifications approved by the Planning Board.

Side setbacks for structures shall not apply to low retaining walls.

(10)

New accessory structure in the Shoreland District.

[Added 3-14-2020 ATM by Art. 5]

On a nonconforming lot of record on which only a residential structure exists, and it is not possible to place an accessory structure meeting the required water body, tributary stream or wetland setbacks, the Code Enforcement Officer may issue a permit to place a single accessory structure, with no utilities, for the storage of yard tools and similar equipment. Such accessory structure shall not exceed 80 square feet in area nor eight feet in height, and shall be located as far from the shoreline or tributary stream as practical and shall meet all other applicable standards, including lot coverage and vegetation clearing limitations. Additionally the following apply:

In no case shall the structure be located closer to the shoreline or tributary stream than the principal structure.

In no case shall the structure be located within 10 feet of a side lot line or 25 feet from the edge of the road or right-of-way.

[3]

At no time shall the structure be expanded.

[4]

The structure shall not be used for habitation.

Section 105-35 of this chapter does not apply when the criteria in this subsection are met.

Nonconforming lots of record.

[Amended 3-10-1984 ATM by Art. 5]

Vacant lots. A nonconforming lot of record as of the effective date of this chapter or amendment thereto may be built upon, provided that such lot shall be in separate ownership and not contiguous with any other lot in the same ownership, and that all the provisions of this chapter, except lot area, lot width and shore frontage, can be met. Variances relating to setback or other requirements not involving lot area, lot width or shore frontage shall be obtained only by action of the Board of Appeals.

[Amended 6-30-2009 STM]

Built lots. A nonconforming lot of record that was built upon prior to the enactment or subsequent amendment of this chapter is subject to the following restrictions. The structure(s) may be repaired, maintained or improved and may be enlarged, reconstructed or replaced in conformity with all the dimensional requirements of this chapter except lot area, lot width or lot frontage and in conformity with the requirements of Subsection D of this section. If the proposed enlargement of the structures cannot meet the dimensional requirements of this chapter, a variance shall be applied for in accordance with the procedures set forth in this chapter.

Contiguous built lots. If two or more contiguous lots or parcels are in a single or joint ownership of record at the time of adoption or amendment of this chapter, if all or part of the lots do not meet the dimensional requirements of this chapter and if a principal use exists on each lot, the nonconforming lots may be conveyed separately or together, provided that the State Minimum Lot Size Law (12 M.R.S.A. §§ 4807-A through 4807-D) and the State of Maine Subsurface Wastewater Disposal Rules are complied with.

[Amended 6-30-2009 STM]

(4)

Contiguous vacant lots.

[Amended 6-30-2009 STM]

If two or more vacant, contiguous lots or parcels are in single or joint ownership of record at the time of adoption or amendment of this chapter and if these lots do not individually meet the dimensional requirements of this chapter or subsequent amendment, the lots shall be combined to the extent necessary to meet the dimensional standards, except in situations where the contiguous lots front on different streets, or except where rights have been vested as described in Subsection E(5) below.

This provision shall not apply to two or more contiguous lots, at least one of which is nonconforming, owned by the same person or persons on the effective date of this chapter and recorded in the Registry of Deeds if the lot is served by a public sewer or can accommodate a subsurface sewage disposal system in conformance with the State of Maine Subsurface Wastewater Disposal Rules; and:

Each lot contains at least 100 feet of shore frontage and at least 20,000 square feet of lot area; or

Any lots that do not meet the frontage and lot size requirements of Subsection E(3) are reconfigured or combined so that each new lot contains at least 100 feet of shore frontage and 20,000 square feet of lot area.

(5)

Vested rights. Nonconforming use rights cannot arise by the mere filing of a notice of intent to build, an application for required building permits or an application for the required state permits and approvals. Such rights arise only when actual construction of roads, utilities or buildings has begun. Such construction must be legal at the time it is commenced and must be in possession of and in compliance with all validly issued permits, both state and local.

Transfer of ownership. Ownership of lots and structures which remain lawful but become nonconforming by the adoption or amendment of this chapter may be transferred, and the new owner may continue the nonconforming use or continue to use the nonconforming structure or lot, subject to the provisions of this chapter.

Restoration or replacement. Nothing in this chapter shall prevent any building or any part of a building or structure declared unsafe by the Code Enforcement Officer from being strengthened or restored to a safe condition. Similarly, conforming structures containing nonconforming uses may be rebuilt or replaced if destroyed by fire, flood or other casualty, provided that reconstruction or replacement is started within 12 months of the original destruction.

[Amended 3-9-1985 ATM by Art. 7; 3-14-1992 ATM by Art. 20]

Maintenance. Nothing in this chapter precludes the normal upkeep and maintenance of nonconforming uses and structures; repairs, renovations or modernizations which do not involve expansion of the nonconforming use or structure; and such other changes in a nonconforming use or structure as federal, state or local building and safety codes may require.

Pending applications for building permits. Nothing in this chapter shall require any change in plans, construction, size or designated use for any building, structure or part thereof for which application for a building permit has been made or a building permit has been issued or upon which construction commenced prior to the adoption or amendment of this chapter, provided that construction shall start within 60 days after the issuance of such permit.

Expiry of permits. Permits issued under this chapter shall expire after 90 days, unless a building permit is issued. This time period may be extended by the Code Enforcement Officer if issuance of a building permit is delayed due to a technical problem.

[Added 3-10-2012 ATM by Art. 3]

§ 105-5 Severability.

Should any section or provision of this chapter be declared by the courts to be invalid, such decision shall not invalidate any other section or provision of this chapter.

§ 105-6 Conflict with other ordinances.

[Amended 6-30-2009 STM]

Whenever a provision of this chapter conflicts with or is inconsistent with another provision of the chapter or of any other ordinance, regulation or statute administered by the municipality, the more restrictive provision shall control.

§ 105-7 Amendments; public hearing; notification.

[Amended 3-13-1999 ATM by Art. 65]

This chapter may be amended by a majority vote of the governing body, regardless of whether or not the proposed amendment is recommended by the Planning Board.

The Planning Board shall hold a public hearing at least 30 days prior to the meeting of the governing body. Notice of public hearing shall be posted and be published in accordance with the following provisions:

The notice must be posted in the municipal office and the usual Town Warrant posting locations at least 13 days before the public hearing.

The notice must be published at least two times in a newspaper of general circulation in the municipality. The date of the first publication must be at least 13 days before the hearing, and the date of the second publication must be at least seven days before the hearing. The notice must be written in plain English, understandable by the average citizen.

Notice must be given in accordance with the following when an amendment has been proposed that, within a geographically specific portion of the municipality, has the effect of either prohibiting all industrial, commercial or retail uses where any of these uses is permitted or permitting any industrial, commercial or retail uses where any of these uses is prohibited.

The notice must contain a copy of a map indicating the portion of the municipality affected by the proposed amendment.

For each parcel within the municipality that is in or abutting the area affected by the proposed amendment, the notice must be mailed by first-class mail at least 13 days before the public hearing to the last known address of the person to whom each parcel is assessed. The municipal officers shall prepare and file with the Municipal Clerk a written certificate indicating those persons to whom the notice was mailed and at what addresses, when it was mailed, by whom it was mailed and from what location it was mailed. Notice is not required under this subsection for the adoption of a new zoning ordinance adopted to implement a comprehensive plan or for amendments required by the shoreland zoning laws contained in Title 38 M.R.S.A. § 435 et seq.

Copies of amendments to shoreland zoning provision of this chapter, attested and signed by the Municipal Clerk, shall be submitted to the Commissioner of the Department of Environmental Protection following adoption by the municipal legislative body and shall not be effective unless approved by the Commissioner. If the Commissioner fails to act on any amendment within 45 days of his/her receipt of the amendment, the amendment is automatically approved. Any application for a permit submitted to the municipality within the forty-five-day period shall be governed by the terms of the amendment, if such amendment is approved by the Commissioner.

§ 105-8 Repetitive petitions.

No proposed change in this chapter which has been unfavorably acted upon by the governing body shall be considered on its merits by the governing body within two years after the date of such unfavorable action unless adoption of the proposed change is recommended by unanimous vote of the Planning Board.

§ 105-9 Effective date.

[Amended 3-13-1999 ATM by Art. 65; 6-30-2009 STM]

Effective date of chapter and chapter amendments. The effective date of this chapter is March 12, 1983. Except as provided in § 105-7C, amendments shall be effective upon adoption.

Repeal of municipal timber harvesting regulation. The municipal regulation of timber harvesting activities is repealed on the statutory date established under 38 M.R.S.A. § 438-B(5), at which time the State of Maine Department of Conservation's Bureau of Forestry shall administer timber harvesting standards in the shoreland zone. On the date established under 38 M.R.S.A. § 438-B(5), the following provisions of this chapter are repealed:[1]

Section 105-17, Land uses, timber harvesting (Shoreland District, Resource Protection District, Stream Protection District)

Section 105-50 in its entirety; and

Section 105-15, Definitions, the definitions of: "forest management activities"; "forest stand"; "harvest area"; "land management road"; "residual basal area"; "skid road or skid trail."