Boothbay Harbor City Zoning Code
ARTICLE VII
Floodplain Management
§ 170-87 Purpose and establishment.
A.
Certain areas of the Town of Boothbay Harbor, Maine, are subject to periodic flooding, causing serious damages to properties within these areas. Relief is available in the form of flood insurance as authorized by the National Flood Insurance Act of 1968.
B.
Therefore, the Town of Boothbay Harbor, Maine, has chosen to become a participating community in the National Flood Insurance Program and agrees to comply with the requirements of the National Flood Insurance Act of 1968 (P.L. 90-488, as amended) as delineated in this Floodplain Management Ordinance.
C.
It is the intent of the Town of Boothbay Harbor, Maine, to require the recognition and evaluation of flood hazards in all official actions relating to land use in the floodplain areas having special flood hazards.
D.
The Town of Boothbay Harbor has the legal authority to adopt land use and control measures to reduce future flood losses pursuant to Title 30-A M.R.S.A. §§ 3001-3007, 4352, 4401-4407, and Title 38 M.R.S.A. § 440.
E.
The National Flood Insurance Program, established in the aforesaid Act, provides that areas of the Town of Boothbay Harbor having a special flood hazard be identified by the Federal Emergency Management Agency and that floodplain management measures be applied in such flood hazard areas. This article establishes a flood hazard development permit system and review procedure for development activities in the designated flood hazard areas of the Town of Boothbay Harbor, Maine.
F.
The areas of special flood hazard, Zones A, AE, and VE for the Town of Boothbay Harbor, Lincoln County, Maine, identified by the Federal Emergency Management Agency in a report entitled "Flood Insurance Study - Lincoln County," dated July 16, 2015, with accompanying Flood Insurance Rate Map dated July 16, 2015, with panels 427D, 431D, 432D, 434D, 451D, and 453D derived from the county-wide digital Flood Insurance Rate Map entitled "Digital Flood Insurance Rate Map, Lincoln County," are hereby adopted by reference and declared to be a part of this article.
§ 170-88 Permit required.
Before any construction or other development (as defined in § 170-95.5), including the placement of manufactured homes, begins within any areas of special flood hazard established in § 170-87, a flood hazard development permit shall be obtained from the Code Enforcement Officer, except as provided in § 170-93. This permit shall be in addition to any other permits which may be required pursuant to the codes and ordinances of the Town of Boothbay Harbor, Maine.
§ 170-89 Application for permit.
The application for a flood hazard development permit shall be submitted to the Code Enforcement Officer and shall include:
A.
The name, address and phone number of the applicant, owner, and contractor;
B.
An address and a map indicating the location of the construction site;
C.
A site plan showing location of existing and/or proposed development, including but not limited to structures, sewage disposal facilities, water supply facilities, areas to be cut and filled, and lot dimensions;
D.
A statement of the intended use of the structure and/or development;
E.
A statement of the cost of the development, including all materials and labor;
F.
A statement as to the type of sewage system proposed;
G.
Specification of dimensions of the proposed structure and/or development;
[NOTE: Items H through K(3) apply only to new construction and substantial improvements.] |
H.
The elevation in relation to the National Geodetic Vertical Datum (NGVD), North American Vertical Datum (NAVD), or to a locally established datum in Zone A only, of the:
(1)
Base flood at the proposed site of all new or substantially improved structures, which is determined:
(a)
In Zones AE and VE: from data contained in the Flood Insurance Study - Lincoln County, Maine, as described in § 170-87; or
(b)
In Zone A:
[2]
From the contour elevation extrapolated from a best-fit analysis of the floodplain boundary when overlaid onto a USGS Quadrangle Map or other topographic map prepared by a professional land surveyor or registered professional engineer, if the floodplain boundary has a significant correlation to the elevation contour line(s); or
[3]
In the absence of all other data, to be the elevation of the ground at the intersection of the floodplain boundary and a line perpendicular to the shoreline which passes along the ground through the site of the proposed building.
(2)
Highest and lowest grades at the site adjacent to the walls of the proposed building;
(3)
Lowest floor, including basement; and whether or not such structures contain a basement; and
(4)
Level, in the case of nonresidential structures only, to which the structure will be floodproofed;
I.
A description of an elevation reference point established on the site of all developments for which elevation standards apply as required in § 170-92;
J.
A written certification by a professional land surveyor, registered professional engineer or architect, that the base flood elevation and grade elevations shown on the application are accurate;
K.
The following certifications, as required in § 170-92, by a registered professional engineer or architect:
(1)
A floodproofing certificate (FEMA Form 81-65, as amended), to verify that the floodproofing methods for any nonresidential structures will meet the floodproofing criteria of §§ 170-89H(4) and 170-92G and other applicable standards in § 170-92;
(3)
A hydraulic openings certificate to verify that engineered hydraulic openings in foundation walls will meet the standards of § 170-92L(2)(a);
L.
A description of the extent to which any watercourse will be altered or relocated as a result of the proposed development; and
§ 170-90 Application fee and expert's fee.
A.
A nonrefundable application fee shall be paid to the Town.
B.
An additional fee may be charged if the Code Enforcement Officer and/or Board of Appeals needs the assistance of a professional engineer or other expert. The expert's fee shall be paid in full by the applicant within 10 days after the Town submits a bill to the applicant. Failure to pay the bill shall constitute a violation of this article and shall be grounds for the issuance of a stop-work order. An expert shall not be hired by the municipality at the expense of an applicant until the applicant has either consented to such hiring in writing or been given an opportunity to be heard on the subject. An applicant who is dissatisfied with a decision to hire expert assistance may appeal that decision to the Board of Appeals.
§ 170-91 Review standards for flood hazard development permit applications.
The Code Enforcement Officer shall:
A.
Review all applications for the flood hazard development permit to assure that proposed developments are reasonably safe from flooding and to determine that all pertinent requirements of § 170-92 (Development standards) have been or will be met;
B.
Utilize, in the review of all flood hazard development permit applications:
(1)
The base flood and floodway data contained in the Flood Insurance Study - Lincoln County, Maine, as described in § 170-87;
(2)
In special flood hazard areas where base flood elevation and floodway data are not provided, the Code Enforcement Officer shall obtain, review and reasonably utilize any base flood elevation and floodway data from federal, state, or other technical sources, including information obtained pursuant to §§ 170-89H(1)(b), 170-92K and 170-95D in order to administer § 170-92 of this article; and
(3)
When the community establishes a base flood elevation in a Zone A by methods outlined in § 170-89H(1)(b), the community shall submit that data to the Maine Floodplain Management Program.
C.
Make interpretations of the location of boundaries of special flood hazard areas shown on the maps described in § 170-87 of this article;
D.
In the review of flood hazard development permit applications, determine that all necessary permits have been obtained from those federal, state, and local government agencies from which prior approval is required by federal or state law, including but not limited to Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. 1344;
E.
Notify adjacent municipalities, the Department of Environmental Protection, and the Maine Floodplain Management Program prior to any alteration or relocation of a watercourse and submit copies of such notifications to the Federal Emergency Management Agency;
F.
If the application satisfies the requirements of this article, approve the issuance of one of the following flood hazard development permits, based on the type of development:
(1)
A two-part flood hazard development permit for elevated structures. Part I shall authorize the applicant to build a structure to and including the first horizontal floor only above the base flood level. At that time the applicant shall provide the Code Enforcement Officer with an elevation certificate completed by a professional land surveyor, registered professional engineer or architect based on the Part I permit construction, "as built", for verifying compliance with the elevation requirements of § 170-92F, G, H or P. Following review of the elevation certificate data, which shall take place within 72 hours of receipt of the application, the Code Enforcement Officer shall issue Part II of the flood hazard development permit. Part II shall authorize the applicant to complete the construction project; or
(2)
A flood hazard development permit for floodproofing of nonresidential structures that are new construction or substantially improved nonresidential structures that are not being elevated but that meet the floodproofing standards of § 170-92G(1)(a), (b) and (c). The application for this permit shall include a floodproofing certificate signed by a registered professional engineer or architect; or
(3)
A flood hazard development permit for minor development for all development that is not new construction or a substantial improvement, such as repairs, maintenance, renovations, or additions, whose value is less than 50% of the market value of the structure. Minor development also includes, but is not limited to: accessory structures as provided for in § 170-92J, mining, dredging, filling, grading, paving, excavation, drilling operations, storage of equipment or materials, deposition or extraction of materials, public or private sewage disposal systems or water supply facilities that do not involve structures; and nonstructural projects such as bridges, dams, towers, fencing, pipelines, wharves, and piers.
For development that requires review and approval as a conditional use, as provided for in this article, the flood hazard development permit application shall be acted upon by the Planning Board as required in § 170-93. |
G.
Maintain, as a permanent record, copies of all flood hazard development permit applications, corresponding permits issued, and data relevant thereto, including reports of the Board of Appeals on variances granted under the provisions of § 170-95.1 of this article, and copies of elevation certificates, floodproofing certificates, certificates of compliance and certifications of design standards required under the provisions of §§ 170-89, 170-92 and 170-94 of this article.
§ 170-92 Development standards.
All developments in areas of special flood hazard shall meet the following applicable standards:
A.
All development. All development shall:
(1)
Be designed or modified and adequately anchored to prevent flotation (excluding piers and docks), collapse or lateral movement of the development resulting from hydrodynamic and hydrostatic loads, including the effects of buoyancy;
(2)
Use construction materials that are resistant to flood damage;
(3)
Use construction methods and practices that will minimize flood damage; and
(4)
Use electrical, heating, ventilation, plumbing, and air-conditioning equipment, and other service facilities that are designed and/or located to prevent water from entering or accumulating within the components during flooding conditions.
B.
Water supply. All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of floodwaters into the systems.
C.
Sanitary sewage systems. All new and replacement sanitary sewage systems shall be designed and located to minimize or eliminate infiltration of floodwaters into the system and discharges from the system into floodwaters.
D.
On-site waste disposal systems. On-site waste disposal systems shall be located and constructed to avoid impairment to them or contamination from them during floods.
E.
Watercourse carrying capacity. All development associated with altered or relocated portions of a watercourse shall be constructed and maintained in such a manner that no reduction occurs in the flood-carrying capacity of the watercourse.
F.
Residential. New construction or substantial improvement of any residential structure located within:
(1)
Zone AE shall have the lowest floor (including basement) elevated to at least one foot above the base flood elevation.
(2)
Zone A shall have the lowest floor (including basement) elevated to at least one foot above the base flood elevation utilizing information obtained pursuant to § 170-89H(1)(b), 170-91B or 170-95D.
G.
Nonresidential. New construction or substantial improvement of any nonresidential structure located within:
(1)
Zone AE shall have the lowest floor (including basement) elevated to at least one foot above the base flood elevation, or, together with attendant utility and sanitary facilities, shall:
(a)
Be floodproofed to at least one foot above the base flood elevation so that below that elevation the structure is watertight with walls substantially impermeable to the passage of water;
(b)
Have structural components capable of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy; and
(c)
Be certified by a registered professional engineer or architect that the floodproofing design and methods of construction are in accordance with accepted standards of practice for meeting the provisions of this section. Such certification shall be provided with the application for a flood hazard development permit, as required by § 170-89K, and shall include a record of the elevation above mean sea level to which the structure is floodproofed.
(2)
Zone A shall have the lowest floor (including basement) elevated to at least one foot above the base flood elevation utilizing information obtained pursuant to § 170-89H(1)(b), 170-91B or 170-95D; or
(a)
Together with attendant utility and sanitary facilities, meet the floodproofing standards of § 170-92G(1).
H.
Manufactured homes. New or substantially improved manufactured homes located within:
(1)
Zone AE shall:
(a)
Be elevated such that the lowest floor (including basement) of the manufactured home is at least one foot above the base flood elevation;
(b)
Be on a permanent foundation, which may be poured masonry slab or foundation walls, with hydraulic openings, or may be reinforced piers or block supports, any of which support the manufactured home so that no weight is supported by its wheels and axles; and
(c)
Be securely anchored to an adequately anchored foundation system to resist flotation, collapse, or lateral movement.
[1]
Methods of anchoring may include, but are not limited to:
[a]
Over-the-top ties anchored to the ground at the four corners of the manufactured home, plus two additional ties per side at intermediate points (Manufactured homes less than 50 feet long require one additional tie per side.); or
[b]
Frame ties at each corner of the home, plus five additional ties along each side at intermediate points. (Manufactured homes less than 50 feet long require four additional ties per side.)
[2]
All components of the anchoring system described in § 170-92H(1)(c)[1][a] and [b] shall be capable of carrying a force of 4,800 pounds.
(2)
Zone A shall:
(a)
Be elevated on a permanent foundation, as described in § 170-92H(1)(b), such that the lowest floor (including basement) of the manufactured home is at least one foot above the base flood elevation utilizing information obtained pursuant to § 170-89H(1)(b), 170-91B or 170-95D; and
(b)
Meet the anchoring requirements of § 170-92H(1)(c).
I.
Recreational vehicles. Recreational vehicles located within:
(1)
Zones A and AE shall either:
(a)
Be on the site for fewer than 180 consecutive days;
(b)
Be fully licensed and ready for highway use. A recreational vehicle is ready for highway use if it is on its wheels or jacking system, is attached to the site only by quick-disconnect-type utilities and security devices, and has no permanently attached additions; or
(c)
Be permitted in accordance with the elevation and anchoring requirements for manufactured homes in § 170-92H(1).
(2)
Zone VE and Coastal AE Zone (as defined) shall meet the requirements of either § 170-92I(1)(a) and (b) or 170-92P.
J.
Accessory structures. Accessory structures, as defined in § 170-95.5, located within Zones A and AE, shall be exempt from the elevation criteria required in § 170-92F and G, above, if all other requirements of § 170-92 and all the following requirements are met. Accessory structures shall:
(1)
Be 500 square feet or less and have a value less than $3,000;
(2)
Have unfinished interiors and not be used for human habitation;
(3)
Have hydraulic openings, as specified in § 170-92L(2), in at least two different walls of the accessory structure;
(4)
Be located outside the floodway;
(5)
When possible, be constructed and placed on the building site so as to offer the minimum resistance to the flow of floodwaters and be placed further from the source of flooding than is the primary structure;
(6)
Have only ground fault interrupt electrical outlets. The electric service disconnect shall be located above the base flood elevation and, when possible, outside the special flood hazard area; and
(7)
Be located outside the Coastal AE Zone.
K.
Floodways.
(1)
In Zone AE, riverine areas, encroachments, including fill, new construction, substantial improvement, and other development, shall not be permitted within a regulatory floodway which is designated on the community's Flood Insurance Rate Map unless a technical evaluation certified by a registered professional engineer is provided demonstrating that such encroachments will not result in any increase in flood levels within the community during the occurrence of the base flood discharge.
(2)
In Zones AE and A, riverine areas, for which no regulatory floodway is designated, encroachments, including fill, new construction, substantial improvement, and other development, shall not be permitted in the floodway as determined in § 170-92K(3) unless a technical evaluation certified by a registered professional engineer is provided demonstrating that the cumulative effect of the proposed development, when combined with all other existing development and anticipated development:
(3)
In Zones AE and A, riverine areas, for which no regulatory floodway is designated, the regulatory floodway is determined to be the channel of the river or other watercourse and the adjacent land areas to a distance of 1/2 the width of the floodplain as measured from the normal high water mark to the upland limit of the floodplain.
L.
Enclosed areas below the lowest floor. New construction or substantial improvement of any structure in Zones A and AE that meets the development standards of § 170-92, including the elevation requirements of § 170-92F, G or H, and is elevated on posts, columns, piers, piles, "stilts," or crawl spaces may be enclosed below the base flood elevation requirements, provided all the following criteria are met or exceeded:
(2)
Enclosed areas shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwater. Designs for meeting this requirement must either:
(a)
Be engineered and certified by a registered professional engineer or architect; or
(b)
Meet or exceed the following minimum criteria:
[1]
A minimum of two openings having a total net area of not less than one square inch for every square foot of the enclosed area;
[2]
The bottom of all openings shall be below the base flood elevation and no higher than one foot above the lowest grade; and
[3]
Openings may be equipped with screens, louvers, valves, or other coverings or devices, provided that they permit the entry and exit of floodwaters automatically without any external influence or control, such as human intervention, including the use of electrical and other nonautomatic mechanical means;
(3)
The enclosed area shall not be used for human habitation; and
(4)
The enclosed areas are usable solely for building access, parking of vehicles, or storage.
M.
Bridges. New construction or substantial improvement of any bridge in Zones A, AE and VE shall be designed such that:
(1)
When possible, the lowest horizontal member (excluding the pilings, or columns) is elevated to at least one foot above the base flood elevation; and
(2)
A registered professional engineer shall certify that:
(a)
The structural design and methods of construction shall meet the elevation requirements of this section and the floodway standards of § 170-92K; and
(b)
The foundation and superstructure attached thereto are designed to resist flotation, collapse and lateral movement due to the effects of wind and water loads acting simultaneously on all structural components. Water loading values used shall be those associated with the base flood.
N.
Containment walls. New construction or substantial improvement of any containment wall located within:
(1)
Zones A, AE, and VE shall:
(a)
Have the containment wall elevated to at least one foot above the base flood elevation;
(b)
Have structural components capable of resisting hydrostatic and hydrodynamic loads and the effects of buoyancy; and
(c)
Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting the provisions of this section. Such certification shall be provided with the application for a flood hazard development permit, as required by § 170-89K.
O.
Wharves, piers and docks. New construction or substantial improvement of wharves, piers, and docks are permitted in Zones A, AE, and VE, in and over water and seaward of the mean high tide, if the following requirements are met:
P.
Coastal floodplains.
(1)
All new construction located within Zones AE and VE shall be located landward of the reach of mean high tide except as provided in § 170-92P(6).
(2)
New construction or substantial improvement of any structure located within Zone VE and Coastal AE Zone (as defined) shall:
(a)
Be elevated on posts or columns such that:
[1]
The bottom of the lowest horizontal structural member of the lowest floor (excluding the pilings or columns) is elevated to one foot above the base flood elevation;
[2]
The pile or column foundation and the elevated portion of the structure attached thereto is anchored to resist flotation, collapse, and lateral movement due to the effects of wind and water loads acting simultaneously on all building components; and
[3]
Water loading values used shall be those associated with the base flood. Wind loading values used shall be those required by applicable state and local building standards.
(b)
Have the space below the lowest floor:
[1]
Free of obstructions; or
[2]
Constructed with open wood lattice-work or insect screening intended to collapse under wind and water without causing collapse, displacement, or other structural damage to the elevated portion of the building or supporting piles or columns; or
[3]
Constructed to enclose less than 300 square feet of area with nonsupporting breakaway walls that have a design safe-loading resistance of not less than 10 nor more than 20 pounds per square foot.
(c)
Require a registered professional engineer or architect to:
[1]
Develop or review the structural design, specifications, and plans for the construction, which must meet or exceed the technical criteria contained in the Coastal Construction Manual (FEMA-55); and
[2]
Certify that the design and methods of construction to be used are in accordance with accepted standards of practice for meeting the criteria of § 170-92P(2).
(3)
The use of fill for structural support in Zone VE is prohibited.
(4)
Human alteration of sand dunes within Zone VE is prohibited unless it can be demonstrated that such alterations will not increase potential flood damage.
(5)
The area below the lowest floor shall be used solely for parking vehicles, building access, and storage.
(6)
Conditional use. Lobster sheds and fishing sheds may be located seaward of mean high tide and shall be exempt from the elevation requirement in § 170-92G only if permitted as a conditional use following review and approval by the Planning Board, as provided in § 170-93, and if all the following requirements and those of § 170-92A, K and L are met:
(a)
The conditional use shall be limited to low value structures such as metal or wood sheds 200 square feet or less and shall not exceed more than one story.
(b)
The structure shall be securely anchored to the wharf or pier to resist flotation, collapse, and lateral movement due to the effect of wind and water loads acting simultaneously on all building components.
(c)
The structure will not adversely increase wave or debris impact forces affecting nearby buildings.
(d)
The structure shall have unfinished interiors and shall not be used for human habitation.
(e)
Any mechanical utility equipment and fuel storage tanks must be anchored and either elevated or floodproofed to one foot above the base flood elevation.
(f)
All electrical outlets shall be ground-fault-interrupt type. The electrical service disconnect shall be located on shore above the base flood elevation and when possible outside the special flood hazard area.
§ 170-93 Conditional use review.
The Planning Board shall hear and decide upon applications for conditional uses provided for in this article. The Planning Board shall hear and approve, approve with conditions, or disapprove all applications for conditional uses. An applicant informed by the Code Enforcement Officer that a conditional use permit is required shall file an application for the permit with the Planning Board.
A.
Review procedure for a conditional use flood hazard development permit.
(1)
The flood hazard development permit application, with additional information attached addressing how each of the conditional use criteria specified in this article will be satisfied, may serve as the permit application for the conditional use permit.
(2)
Before deciding any application, the Planning Board shall hold a public hearing on the application within 30 days of its receipt of the application.
(3)
If the Planning Board finds that the application satisfies all relevant requirements of this article, the Planning Board must approve the application or approve with conditions within 45 days of the date of the public hearing.
(4)
A conditional use permit issued under the provisions of this article shall expire if the work or change involved is not commenced within 180 days of the issuance of the permit by the Planning Board.
(5)
The applicant shall be notified by the Planning Board, in writing, over the signature of the Chairman of the Planning Board, that flood insurance is not available for structures located entirely over water or seaward of mean high tide.
B.
Expansion of conditional uses. No existing building or use of premises may be expanded or enlarged without a permit issued under this section if that building or use was established or constructed under a previously issued conditional use permit or if it is a building or use which would require a conditional use permit if being newly established or constructed under this article.
§ 170-94 Certificate of compliance.
No land in a special flood hazard area shall be occupied or used and no structure which is constructed or substantially improved shall be occupied until a certificate of compliance is issued by the Code Enforcement Officer subject to the following provisions:
A.
For new construction or substantial improvement of any elevated structure the applicant shall submit to the Code Enforcement Officer:
(2)
For structures in Zone VE and Coastal AE Zone (as defined), certification by a registered professional engineer or architect that the design and methods of construction used are in compliance with § 170-92P(2).
B.
The applicant shall submit written notification to the Code Enforcement Officer that the development is complete and complies with the provisions of this article.
§ 170-95 Review of subdivision and development proposals.
The Planning Board shall, when reviewing subdivisions and other proposed developments that require review under other federal law, state law, local ordinances or regulations, and all projects on five or more disturbed acres, or, in the case of manufactured home parks, divided into two or more lots, assure that:
A.
All such proposals are consistent with the need to minimize flood damage.
B.
All public utilities and facilities, such as sewer, gas, electrical and water systems, are located and constructed to minimize or eliminate flood damages.
C.
Adequate drainage is provided in order to reduce exposure to flood hazards.
D.
All proposals include base flood elevations, flood boundaries, and, in a riverine floodplain, floodway data. These determinations shall be based on engineering practices recognized by the Federal Emergency Management Agency.
E.
Any proposed development plan must include a condition of plan approval requiring that structures on any lot in the development having any portion of its land within a special flood hazard area are to be constructed in accordance with § 170-92 of this article. Such requirement will be included in any deed, lease, purchase and sale agreement, or document transferring or expressing an intent to transfer any interest in real estate or structure, including but not limited to a time-share interest. The condition shall clearly articulate that the municipality may enforce any violation of the construction requirement and that fact shall also be included in the deed or any other document previously described. The construction requirement shall also be clearly stated on any map, plat, or plan to be signed by the Planning Board or local reviewing authority as part of the approval process.
§ 170-95.1 Appeals and variances.
The Board of Appeals of the Town of Boothbay Harbor may, upon written application of an aggrieved party, hear and decide appeals where it is alleged that there is an error in any order, requirement, decision, or determination made by, or failure to act by, the Code Enforcement Officer or Planning Board in the administration or enforcement of the provisions of this article. The Board of Appeals may grant a variance from the requirements of this article consistent with state law and the following criteria:
A.
Variances shall not be granted within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.
B.
Variances shall 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 or public expense, create nuisances, cause fraud or victimization of the public or conflict with existing local laws or ordinances; and
(3)
A showing that the issuance of the variance will not 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 shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief, and the Board of Appeals may impose such conditions to a variance as is deemed necessary.
D.
Variances may be issued for new construction, substantial improvements, or other development for the conduct of a functionally dependent use, provided that:
E.
Variances may be issued for the repair, reconstruction, rehabilitation, or restoration of historic structures upon the determination that:
(2)
The proposed repair, reconstruction, rehabilitation, or restoration will not preclude the structure's continued designation as an historic structure, and the variance is the minimum necessary to preserve the historic character and design of the structure.
F.
Any applicant who meets the criteria of § 170-95.1A through E shall be notified by the Board of Appeals, in writing, over the signature of the Chairman 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.
Appeal procedure for administrative and variance appeals.
(1)
An administrative or variance appeal may be taken to the Board of Appeals by an aggrieved party within 30 days after receipt of a written decision of the Code Enforcement Officer or Planning Board.
(2)
Upon being notified of an appeal, the Code Enforcement Officer or Planning Board, as appropriate, shall transmit to the Board of Appeals all of the papers constituting the record of the decision appealed from.
(3)
The Board of Appeals shall hold a public hearing on the appeal within 35 days of its receipt of an appeal request.
(4)
The person filing the appeal shall have the burden of proof.
(5)
The Board of Appeals shall decide all appeals within 35 days after the close of the hearing and shall issue a written decision on all appeals.
(6)
The Board of Appeals shall submit to the Code Enforcement Officer 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.
(7)
Any aggrieved party who participated as a party during the proceedings before the Board of Appeals may take an appeal to Superior Court in accordance with state laws within 45 days from the date of any decision of the Board of Appeals.
§ 170-95.2 Enforcement and penalties.
A.
It shall be the duty of the Code Enforcement Officer to enforce the provisions of this article pursuant to Title 30-A M.R.S.A. § 4452.
B.
The penalties contained in Title 30-A M.R.S.A. § 4452 shall apply to any violation of this article.
C.
In addition to other actions, the Code Enforcement Officer (CEO) may, upon identifying a violation, submit a declaration to the Administrator of the Federal Insurance Administration requesting a flood insurance denial. The valid declaration shall 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.
§ 170-95.3 Validity and severability.
If any section or provision of this article is declared by the courts to be invalid, such decision shall not invalidate any other section or provision of this article.
§ 170-95.4 Conflict with other ordinances.
This article shall not in any way impair or remove the necessity of compliance with any other applicable rule, ordinance, regulation, bylaw, permit, or provision of law. Where this article imposes a greater restriction upon the use of land, buildings, or structures, the provisions of this article shall control.
§ 170-95.5 Definitions.
A.
Unless specifically defined below, words and phrases used in this article shall have the same meaning as they have at common law and to give this article its most reasonable application. Words used in the present tense include the future, the singular number includes the plural, and the plural number includes the singular. The word "may" is permissive; "shall" is mandatory and not discretionary.
B. ACCESSORY STRUCTURE ADJACENT GRADE AREA OF SPECIAL FLOOD HAZARD BASE FLOOD BASEMENT BREAKAWAY WALL BUILDING CERTIFICATE OF COMPLIANCE COASTAL AE ZONE COASTAL HIGH-HAZARD AREA CODE ENFORCEMENT OFFICER CONDITIONAL USE CONTAINMENT WALL DEVELOPMENT DIGITAL FLOOD INSURANCE RATE MAP (FIRM) ELEVATED BUILDING(1) (a) (b) (2) ELEVATION CERTIFICATE FLOOD ELEVATION STUDY FLOOD INSURANCE RATE MAP (FIRM) FLOOD INSURANCE STUDY FLOOD or FLOODING(1) (2) FLOODPLAIN MANAGEMENT FLOODPLAIN MANAGEMENT REGULATIONS FLOODPLAIN or FLOODPRONE AREA FLOODPROOFING FLOODWAY FLOODWAY ENCROACHMENT LINES FREEBOARD FUNCTIONALLY DEPENDENT USE HISTORIC STRUCTURE(1) (2) (3) (4) LIMIT OF MODERATE WAVE ACTION (LIMWA) LOCALLY ESTABLISHED DATUM LOWEST FLOOR MANUFACTURED HOME MANUFACTURED HOME PARK OR SUBDIVISION MEAN SEA LEVEL MINOR DEVELOPMENT NATIONAL GEODETIC VERTICAL DATUM (NGVD) NEW CONSTRUCTION NORTH AMERICAN VERTICAL DATUM (NAVD) ONE-HUNDRED-YEAR FLOOD RECREATIONAL VEHICLE(1) (2) (3) (4) REGULATORY FLOODWAY(1) (2) RIVERINE SPECIAL FLOOD HAZARD AREA START OF CONSTRUCTION STRUCTURE SUBSTANTIAL DAMAGE SUBSTANTIAL IMPROVEMENT(1) (2) VARIANCE VIOLATION
As used in this article, the following terms shall have the meanings indicated:
A small detached structure that is incidental and subordinate to the principal structure.
The natural elevation of the ground surface prior to construction next to the proposed walls of a structure.
Land in the floodplain having a one-percent or greater chance of flooding in any given year, as specifically identified in the Flood Insurance Study cited in § 170-87 of this article.
A flood having a one-percent chance of being equaled or exceeded in any given year, commonly called the "one-hundred-year flood."
The area of a building that includes a floor that is subgrade (below ground level) on all sides.
A wall that is not part of the structural support of the building and is intended through its design and construction to collapse under specific lateral loading forces, without causing damage to the elevated portion of the building or supporting foundation system.
See "structure."
A document signed by the Code Enforcement Officer stating that a structure is in compliance with all of the provisions of this article.
The portion of the coastal high-hazard area with wave heights between 1.5 feet and 3.0 feet and bounded by a line labeled the "limit of moderate wave action" (LiMWA) on a Flood Insurance Rate Map (FIRM). VE Zone floodplain construction standards are applied to development, new construction and substantial improvements in the Coastal AE Zone.
An area of special flood hazard extending from offshore to the inland limit of a primary frontal dune along an open coast and any other area subject to high-velocity wave action from storms or seismic sources. Coastal high-hazard areas are designated as Zone VE and Zone AE bounded by a line labeled "limit of moderate wave action" (LiMWA) on a Flood Insurance Rate Map (FIRM).
A person certified under Title 30-A M.R.S.A. § 4451 (including exceptions in § 4451, Paragraph 1) and employed by a municipality to enforce all applicable comprehensive planning and land use laws.
A use that, because of its potential impact on surrounding areas and structures, is permitted only upon review and approval by the Planning Board pursuant to § 170-93.
A wall used to convey or direct stormwater or sanitary water from the initial source to the final destination.
A manmade change to improved or unimproved real estate. This includes, but is not limited to, buildings or other structures; mining, dredging, filling, grading, paving, excavation, drilling operations or storage of equipment or materials; and the storage, deposition, or extraction of materials.
See "Flood Insurance Rate Map."
A non basement building that is:
Built, in the case of a building in Zone A or AE, so that the top of the elevated floor, or in the case of a building in Zone VE or Coastal AE Zone, to have the bottom of the lowest horizontal structural member of the elevated floor, elevated above the ground level by means of pilings, columns, post, piers, or "stilts;" and
Adequately anchored to not impair the structural integrity of the building during a flood of up to one foot above the magnitude of the base flood.
In the case of Zone A or AE, "elevated building" also includes a building elevated by means of fill or solid foundation perimeter walls with hydraulic openings sufficient to facilitate the unimpeded movement of floodwaters, as required in § 170-92L. In the case of Zone VE and Coastal AE Zone, "elevated building" also includes a building otherwise meeting the definition of "elevated building" even though the lower area is enclosed by means of breakaway walls, if the breakaway walls meet the standards of § 170-92P(2)(b)[3].
An official form (FEMA Form 81-31, as amended) that:
An examination, evaluation and determination of flood hazards and, if appropriate, corresponding water surface elevations.
An official map of a community, on which the Federal Insurance Administrator has delineated both the special hazard areas and the risk premium zones applicable to the community.
See "flood elevation study."
The collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels or suddenly caused by an unusually high water level in a natural body of water, accompanied by a severe storm, or by an unanticipated force of nature, such as flash flood or an abnormal tidal surge, or by some similarly unusual and unforeseeable event which results in flooding as defined in Subsection (1)(a) of this definition.
The operation of an overall program of corrective and preventive measures for reducing flood damage, including but not limited to emergency preparedness plans, flood control works, and floodplain management regulations.
Zoning ordinances, subdivision regulations, building codes, health regulations, special-purpose ordinances (such as a floodplain ordinance, grading ordinance, and erosion control ordinance) and other applications of police power. The term describes such state or local regulations, in any combination thereof, which provide standards for the purpose of flood damage prevention and reduction.
Land area susceptible to being inundated by water from any source. (See "flooding)."
Any combination of structural and nonstructural additions, changes, or adjustments to structures which reduce or eliminate flood damage to real estate or improved real property, water and sanitary facilities, structures and contents.
See "regulatory floodway."
The lines marking the limits of floodways on federal, state, and local floodplain maps.
A factor of safety usually expressed in feet above a flood level for purposes of floodplain management. Freeboard tends to compensate for the many unknown factors, such as wave action, bridge openings, and the hydrological effect of urbanization of the watershed, which could contribute to flood heights greater than the height calculated for a selected-size flood and floodway conditions.
A use that cannot perform its intended purpose unless it is located or carried out in close proximity to water. The term includes only docking facilities, port facilities that are necessary for the loading and unloading of cargo or passengers, and shipbuilding and ship repair facilities, but does not include long-term storage or related manufacturing facilities.
Any structure that is:
Listed individually in the National Register of Historic Places (a listing maintained by the Department of Interior) or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Register;
Certified or preliminarily determined by the Secretary of the Interior as contributing to the historical significance of a registered historic district or a district preliminarily determined by the Secretary of the Interior to qualify as a registered historic district;
Individually listed on a state inventory of historic places in states with historic preservation programs which have been approved by the Secretary of the Interior; or
Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:
The landward limit of the 1.5-foot breaking wave within a Coastal AE Zone. These areas are bounded by a line labeled "limit of moderate wave action" (LiMWA) on a Flood Insurance Rate Map (FIRM). The LiMWA line delineates that portion of the special flood hazard area (SFHA) landward of a VE Zone in which the principal sources of flooding are astronomical high tides, storm surges, or tsunamis, not riverine sources. These areas may be subject to wave effects, velocity flows, erosion, scour, or combinations of these forces. The floodplain development and construction standards for VE Zones will be applied in the Coastal AE Zone.
For purposes of this article, an elevation established for a specific site to which all other elevations at the site are referenced. This elevation is generally not referenced to the National Geodetic Vertical Datum (NGVD), North American Vertical Datum (NAVD) or any other established datum and is used in areas where mean sea level data is too far from a specific site to be practically used.
The lowest floor of the lowest enclosed area (including basement). An unfinished or flood-resistant enclosure, usable solely for parking of vehicles, building access or storage in an area other than a basement area, is not considered a building's lowest floor, provided that such enclosure is not built so as to render the structure in violation of the applicable nonelevation design requirements described in § 170-92L of this article.
A structure, transportable in one or more sections, which is built on a permanent chassis and is designed for use with or without a permanent foundation when connected to the required utilities. For floodplain management purposes the term "manufactured home" also includes park trailers, travel trailers, and other similar vehicles placed on a site for greater than 180 consecutive days.
A parcel (or contiguous parcels) of land divided into two or more manufactured home lots for rent or sale.
When related to the National Flood Insurance Program, the National Geodetic Vertical Datum (NGVD) of 1929, North American Vertical Datum (NAVD) or other datum, to which base flood elevations shown on a community's Flood Insurance Rate Map are referenced.
All development that is not new construction or a substantial improvement, such as repairs, maintenance, renovations, or additions, whose value is less than 50% of the market value of the structure. It also includes, but is not limited to, accessory structures as provided for in § 170-92J, mining, dredging, filling, grading, paving, excavation, drilling operations, storage of equipment or materials, deposition or extraction of materials, public or private sewage disposal systems or water supply facilities that do not involve structures; and nonstructural projects such as bridges, dams, towers, fencing, pipelines, wharves, and piers.
The national vertical datum, a standard established in 1929, which is used by the National Flood Insurance Program (NFIP). NGVD was based upon mean sea level in 1929 and also has been called "1929 Mean Sea Level (MSL)."
Structures for which the start of construction commenced on or after the effective date of the initial floodplain management regulations adopted by a community and includes any subsequent improvements to such structures.
The national datum whose standard was established in 1988, which is the new vertical datum used by the National Flood Insurance Program (NFIP) for all new Flood Insurance Rate Maps. NAVD is based upon vertical datum used by other North American countries such as Canada and Mexico and was established to replace NGVD because of constant movement of the earth's crust, glacial rebound, and subsidence and the increasing use of satellite technology.
See "base flood."
A vehicle that is:
Built on a single chassis;
Four hundred square feet or less when measured at the largest horizontal projection, not including slideouts;
Designed to be self-propelled or permanently towable by a motor vehicle; and
Designed primarily for use not as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.
The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one foot; and
When not designated on the community's Flood Insurance Rate Map, it is considered to be the channel of a river or other watercourse and the adjacent land areas to a distance of 1/2 the width of the floodplain, as measured from the normal high water mark to the upland limit of the floodplain.
Relating to, formed by, or resembling a river (including tributaries), stream, brook, etc.
See "area of special flood hazard."
The date the building permit was issued, provided the actual start of construction, repair, reconstruction, rehabilitation, addition, placement, substantial improvement or other improvement was within 180 days of the permit date. The actual start means either the first placement of permanent construction of a structure on a site, such as the pouring of slab or footings, the installation of piles, the construction of columns, or any work beyond the stage of excavation; or the placement of a manufactured home on a foundation. Permanent construction does not include land preparation, such as clearing, grading and filling; nor does it include the installation of streets and/or walkways; nor does it include excavation for basement, footings, piers, or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not part of the main structure. For a substantial improvement, the actual start of construction means the first alteration of any wall, ceiling, floor, or other structural part of a building, or modification of any construction element, whether or not that alteration affects the external dimensions of the building.
For floodplain management purposes, a walled and roofed building. A gas or liquid storage tank that is principally above ground is also a structure.
Damage of any origin sustained by a structure whereby the cost of restoring the structure to its before damage condition would equal or exceed 50% of the market value of the structure before the damage occurred.
Any reconstruction, rehabilitation, addition, or other improvement of a structure, the cost of which equals or exceeds 50% of the market value of the structure before the start of construction of the improvement. This term includes structures which have incurred substantial damage, regardless of the actual repair work performed. The term does not, however, include either:
Any project for improvement of a structure to correct existing violations of state or local health, sanitary, or safety code specifications which have been identified by the local Code Enforcement Official and which are the minimum necessary to assure safe living conditions; or
Any alteration of an historic structure, provided that the alteration will not preclude the structure's continued designation as an historic structure and a variance is obtained from the Board of Appeals.
A grant of relief by a community from the terms of a floodplain management regulation.
The failure of a structure or development to comply with a community's floodplain management regulations.
§ 170-95.6 Abrogation.
This article repeals and replaces any municipal ordinance previously enacted to comply with the National Flood Insurance Act of 1968 (P.L. 90-488, as amended).