Boothbay Harbor City Zoning Code
ARTICLE VIII
Shoreland Zoning
§ 170-96 More restrictive standard to apply.
Shoreland Zoning is an overlay zoning standard. When overlaying Shoreland Zoning over, or in conjunction with another zoning district, the more restrictive standard of the two standards shall be used.
§ 170-97 Purposes.
The purposes of this article are to further the maintenance of safe and healthful conditions; to prevent and control water pollution; to protect fish spawning grounds, aquatic life, bird and other wildlife habitat; to protect buildings and lands from flooding and accelerated erosion; to protect archaeological and historic resources; to protect commercial fishing and maritime industries; to protect freshwater and coastal wetlands; to control building sites, placement of structures and land uses; to conserve shore cover, and visual as well as actual points of access to inland and coastal waters; to conserve natural beauty and open space; and to anticipate and respond to the impacts of development in shoreland areas.
§ 170-98 Statutory authority.
This article has been prepared in accordance with the provisions of 38 M.R.S.A. §§ 435 through 449 and 30-A M.R.S.A. § 3001 (Home Rule).
§ 170-99 Applicability.
This article applies to all land areas within 250 feet, horizontal distance, of the normal highwater line of any great pond or river, upland edge of a coastal wetland, including all areas affected by tidal action or, upland edge of a freshwater wetland, and all land areas within 75 feet, horizontal distance, of the normal high-water line of a stream. This article also applies to any structure built on, over or abutting a dock wharf or pier, or other structure extending or located below the normal high-water line of a water body or within a wetland.
§ 170-100 When effective; repeal of timber harvesting regulations.
A.
This article, and subsequent amendments or parts thereof, which were adopted by the Boothbay Harbor legislative body as noted, shall not be effective unless approved by the Commissioner of the Department of Environmental Protection.[1] A certified copy of the ordinance, or ordinance amendment, attested and signed by the Municipal Clerk, shall be forwarded to the Commissioner for approval. If the Commissioner fails to act on this article or ordinance amendment[s], within 45 days of his/her receipt of the article, or ordinance amendment[s], it shall be automatically approved. Upon the 46th day, or the date of approval, this article shall replace or repeal the existing Shoreland Zoning Ordinance or amended portions thereof, previously adopted. Any application for a permit submitted to the municipality within the forty-five-day period shall be governed by the terms of this article or ordinance amendment, if the article or ordinance amendment is approved by the Commissioner.
[1]
Editor's Note: The Commissioner of the Department of Environmental Protection approved this article 8-6-2007.
B.
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 article are repealed:
(1)
Section 170-101.9, Table of Land Uses, Row 3 (Forest management activities except for timber harvesting) and Row 4 (Timber harvesting);
(2)
Section 101.10O in its entirety.
USER NOTE: The statutory date established under 38 M.R.S.A. § 438-B(5) is the effective date of statewide timber harvesting standards. That date is "the first day of January of the 2nd year following the year in which the Commissioner of Conservation determines that at least 252 of the 336 municipalities identified by the Commissioner of Conservation as the municipalities with the highest acreage of timber harvesting activity on an annual basis for the period 1992-2003 have either accepted the state-wide standards or have adopted an ordinance identical to the state-wide standards." 38 M.R.S.A. § 438-B(5) further provides that "the Commissioner of Conservation shall notify the Secretary of State in writing and advise the Secretary of the effective date of the state-wide standards." |
§ 170-101 Availability.
A certified copy of this article shall be filed with the Municipal Clerk and shall be accessible to any member of the public. Copies shall be made available to the public at reasonable cost at the expense of the person making the request. Notice of availability of this article shall be posted.
§ 170-101.1 Severability.
Should any section or provision of this article be declared by the courts to be invalid, such decision shall not invalidate any other section or provision of the article.
§ 170-101.2 Conflicts with other regulations.
Whenever a provision of this article conflicts with or is inconsistent with another provision of this article or of any other ordinance, regulation, or statute administered by the municipality, the more restrictive provision shall control.
§ 170-101.3 Amendments; approval required.
This article may be amended by majority vote of the legislative body. Copies of amendments, 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.
§ 170-101.4 Official Shoreland Zoning Map; districts.
A.
Official Shoreland Zoning Map. The areas to which this article is applicable are hereby divided into the following districts as shown on the Official Shoreland Zoning Map(s) which is (are) made a part of this article:[1]
[Amended 5-3-2019 by ATM Art. 3]
Resource Protection District |
Special Residential District/Limited Residential |
General Residential District/Limited Commercial |
Downtown Business District |
General Business District/General Development |
Limited Commercial/Maritime District |
Working Waterfront District |
Stream Protection District |
[1]
Editor's Note: The Shoreland Zoning Map is included as an attachment to this chapter.
B.
Scale of Map. The Official Shoreland Zoning Map shall be drawn at a scale of not less than one inch equals 2,000 feet. District boundaries shall be clearly delineated, and a legend indicating the symbols for each district shall be placed on the Map.
C.
Certification of Official Shoreland Zoning Map. The Official Shoreland Zoning Map shall be certified by the attested signature of the Municipal Clerk and shall be located in the municipal office. In the event the municipality does not have a municipal office, the Municipal Clerk shall be the custodian of the map.
D.
Changes to the Official Shoreland Zoning Map. If amendments, in accordance with § 170-101.3, are made in the district boundaries or other matter portrayed on the Official Shoreland Zoning Map, such changes shall be made on the Official Shoreland Zoning Map within 30 days after the amendment has been approved by the Commissioner of the Department of Environmental Protection.
§ 170-101.5 Interpretation of district boundaries.
Unless otherwise set forth on the Official Shoreland Zoning Map, district boundary lines are property lines, the center lines of streets, roads and rights-of-way, and the boundaries of the shoreland area as defined herein. Where uncertainty exists as to the exact location of district boundary lines, the Board of Appeals shall be the final authority as to location.
§ 170-101.6 Compliance required.
Except as hereinafter specified, no building, structure or land shall hereafter be used or occupied, and no building or structure or part thereof shall hereafter be erected, constructed, expanded, moved, or altered and no new lot shall be created except in conformity with all of the regulations herein specified for the district in which it is located, unless a variance is granted.
§ 170-101.7 Nonconformance.
A.
Purpose. It is the intent of this article to promote land use conformities, except that nonconforming conditions that existed before the effective date of this article or amendments thereto shall be allowed to continue, subject to the requirements set forth in § 170-101.7 except as otherwise provided in this article. A nonconforming condition shall not be permitted to become more nonconforming.
B.
General.
(1)
Transfer of ownership. Nonconforming structures, lots, and uses 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 article.
(2)
Repair and maintenance. This article allows the normal upkeep and maintenance of nonconforming uses and structures, including repairs or renovations that 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.
USER NOTE: See § 170-101.12 for the definitions of "nonconforming structures," "nonconforming uses" and "nonconforming lots." |
C.
Nonconforming structures.
(1)
Expansions. 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 C(1)(a) and (b) below:
(a)
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, in, on or over the water, 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 Subsection C(3) 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.
[Amended 5-5-2012 by ATM Art. 28]
(b)
Whenever a new, enlarged, or replacement foundation is constructed under a nonconforming structure:
[1]
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 Subsection C(2), Relocation, below.
[2]
If the completed foundation does not extend beyond the exterior dimensions of the structure; except for expansion in conformity with Subsection C(1)(a) above, 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)
Relocation.
(a)
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 or its designee, 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.
(b)
In determining whether the building relocation meets the setback to the greatest practical extent, the Planning Board or its designee 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:
[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.
[2]
Other woody and herbaceous vegetation, and ground cover, that are removed or destroyed in order to relocate a structure must be re-established. 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.
[3]
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.
(3)
Reconstruction or replacement.
(a)
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 assessed value of the structure before such damage, destruction or removal, may be reconstructed or replaced, provided that a permit is obtained within 18 months 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 purposes of this article. 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 Subsection C(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 Subsection C(2) above.
(b)
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's assessed value, or damaged or destroyed by 50% or less of the Town's 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 damage, destruction, or removal.
(4)
Change of use of a nonconforming structure.
(a)
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.
(b)
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 commercial fishing and maritime activities, and other functionally water-dependent uses.
D.
Nonconforming uses.
(1)
Expansions. Expansions of nonconforming uses are prohibited, except that nonconforming residential uses may, after obtaining a permit from the Planning Board, be expanded within existing residential structures or within expansions of such structures as allowed in Subsection C(1)(a) above.
(2)
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.
(3)
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, including water-dependent uses in the CFMA District, 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 C(4) above.
E.
Nonconforming lots.
(1)
Nonconforming lots. A nonconforming lot of record as of January 1, 1989, may be built upon, without the need for a variance, provided that such lot is in separate ownership and not contiguous with any other lot in the same ownership, and that all provisions of this article 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 by action of the Board of Appeals.
(2)
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 of this article, if all or part of the lots do not meet the dimensional requirements of this article, and if a principal use or structure 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.
(3)
Contiguous lots. Vacant or partially built. If two or more contiguous lots or parcels are in single or joint ownership of record at the time of or since adoption or amendment of this article, if any of these lots do not individually meet the dimensional requirements of this article or subsequent amendments, and if one or more of the lots is vacant or contains no principal structure, the lots shall be combined to the extent necessary to meet the dimensional requirements.
§ 170-101.8 Establishment of districts.
A.
Resource Protection District. The Resource Protection District includes areas in which development would adversely affect water quality, productive habitat, biological ecosystems, or scenic and natural values. This district shall include the following areas when they occur within the limits of the Shoreland Zone, exclusive of the Stream Protection District, except that areas which are currently developed and areas which meet the criteria for the Limited Commercial/Maritime, General Business, or Working Waterfront Districts need not be included within the Resource Protection District.
[Amended 5-3-2019 by ATM Art. 3]
(1)
Areas within 250 feet, horizontal distance, of the upland edge of freshwater wetlands, salt marshes and salt meadows, and wetlands associated with great ponds and rivers, which are rated moderate- or high-value waterfowl and wading bird habitat, including nesting and feeding areas, by the Maine Department of Inland Fisheries and Wildlife (MDIF&W) that are depicted on a Geographic Information System (GIS) data layer maintained by either MDIF&W or the Department as of March 1, 2006. For the purposes of this Subsection, "wetlands associated with great ponds and rivers" shall mean areas characterized by nonforested wetland vegetation and hydric soils that are contiguous with a great pond or river, and have a surface elevation at or below the water level of the great pond or river during the period of normal high water. "Wetlands associated with great ponds or rivers" are considered to be part of that great pond or river.
USER NOTE: The Natural Resources Protection Act, Title 38 M.S.R.A. §§ 480-A through 480-Z, requires the Department of Environmental Protection to designate areas of "significant wildlife habitat" | ||
Significant wildlife habitat includes: Habitat for species appearing on the official state or federal lists of endangered or threatened species; high- and moderate-value deer wintering areas and travel corridors as defined by the Department of Inland Fisheries and Wildlife; high- and moderate-value waterfowl and wading bird habitats, including nesting and feeding areas as defined by the Department of Inland Fisheries and Wildlife; critical spawning and nursery areas for Atlantic sea run salmon as defined by the Atlantic Sea Run Salmon Commission; and shorebird nesting, feeding and staging areas and seabird nesting islands as defined by the Department of Inland Fisheries and Wildlife. | ||
(2)
Floodplains along rivers and floodplains along artificially formed great ponds along rivers, defined by the one-hundred-year floodplain 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. This district shall also include one-hundred-year floodplains adjacent to tidal waters as shown on FEMA's Flood Insurance Rate Maps or Flood Hazard Boundary Maps.
(3)
Areas of two or more contiguous acres with sustained slopes of 20% or greater.
(4)
Areas of two or more contiguous acres supporting wetland vegetation and hydric soils, which are not part of a freshwater or coastal wetland as defined, and which are not surficially connected to a water body during the period of normal high water. USER NOTE: These areas usually consist of forested wetlands abutting water bodies and nonforested wetlands.
(5)
Land areas along rivers subject to severe bank erosion, undercutting, or riverbed movement, and lands adjacent to tidal waters, which are subject to severe erosion or mass movement, such as steep coastal bluffs. Other important wildlife habitat; natural sites of significant scenic or esthetic value; areas designated by federal, state, or municipal governments as natural areas of significance to be protected from development, and existing public access areas and certain significant archaeological and historic sites deserving of long-term protection as determined by the municipality after consultation with the Maine Historic Preservation Commission.
B.
Special Residential District. The Special Residential District includes those areas suitable for residential and recreational development. It includes areas other than those in the Resource Protection District, or Stream Protection District, and areas which are used less intensively than those in the Limited Commercial/Maritime District, the General Business District, or the Working Waterfront District.
[Amended 5-3-2019 by ATM Art. 3]
C.
General Residential/Limited Commercial District. The Limited Commercial District includes areas of mixed, light commercial and residential uses, exclusive of the Stream Protection District, which should not be developed as intensively as the General Development Districts. This district includes areas of two or more contiguous acres in size devoted to a mix of residential and low-intensity business and commercial uses. Industrial uses are prohibited.
D.
Downtown Business Districts.
(1)
Downtown Business District A. The Downtown Business District A, includes the intensively developed area or core of Downtown Business District; Areas otherwise discernible as having patterns of intensive commercial, or recreational uses.
(2)
Downtown Business District B. The Downtown Business District B includes the same types of areas as those listed for the Downtown Business District A, however, shall be applied to some marine industrial and commercial warehousing, and service activities; businesses, newly established Downtown Business Districts where the pattern of development at the time of adoption is not as intensively developed as that of the Downtown Business I District. Downtown Business District C is not in a Shoreland Zone.)
(3)
Portions of the General Development District I or II may also include residential development. However, no area shall be designated as a Downtown Business District A or B based solely on residential use.
E.
The Limited Commercial/Maritime District and Working Waterfront District include areas where the existing predominant pattern of development is consistent with the allowed uses for this district as indicated in the Table of Land Uses, § 170-101.9, and other areas which are suitable for functionally water-dependent uses, taking into consideration such factors as:
[Amended 5-3-2019 by ATM Art. 3]
(1)
Shelter from prevailing winds and waves;
(2)
Slope of the land within 250 feet, horizontal distance, of the shoreline;
(3)
Depth of the water within 150 feet, horizontal distance, of the shoreline;
(4)
Available support facilities, including utilities and transportation facilities; and
(5)
Compatibility with adjacent upland uses.
F.
Stream Protection District. The Stream Protection District includes all land areas within 75 feet, horizontal distance, of the normal high-water line of a stream, exclusive of those areas within 250 feet, horizontal distance, of the normal high-water line of a great pond, or river, or within 250 feet, horizontal distance, of the upland edge of a freshwater or coastal wetland. Where a stream and its associated shoreland area are located within 250 feet, horizontal distance, of the above water bodies or wetlands, that land area shall be regulated under the terms of the shoreland district associated with that water body or wetland.
§ 170-101.9 Table of land uses.
All land use activities, as indicated in Table 1, Land Uses in the Shoreland Zone,[1] shall conform to all of the applicable land use standards in § 170-101.10. The district designation for a particular site shall be determined from the Official Shoreland Zoning Map.
[1]
Editor's Note: Table 1, Land Uses in the Shoreland Zone, is included as an attachment to this chapter.
§ 170-101.10 Land use standards.
[Amended 5-3-2019 by ATM Art. 3; 5-3-2008 by ATM Art. 86; 5-3-2008 by ATM Art. 85; 5-2-2009 by ATM Art. 97; 5-3-2013 by ATM Art. 40; 5-3-2019 by ATM Art. 3; 5-8-2021 ATM by Art. 20; 5-3-2025 ATM by Art. 20]
All land use activities within the Shoreland Zone shall conform to the following provisions, if applicable.
A.
Minimum lot standards.
(1)
Standards established.
Land Use | Minimum Lot Area (square feet) | Minimum Shore Frontage (feet) | |
|---|---|---|---|
Residential per dwelling unit: | |||
Within the Shoreland Zone adjacent to tidal areas | 30,000 | 150 | |
Within the Shoreland Zone adjacent to nontidal areas | 40,000 | 200 | |
Governmental, institutional, commercial or industrial, per principal structure: | |||
Within the Shoreland Zone adjacent to tidal areas, exclusive of those areas zoned for commercial fisheries and maritime activities | 40,000 | 200 | |
Within the Shoreland Zone adjacent to tidal areas zoned for commercial fisheries and maritime activities | None | None | |
Within the Shoreland Zone adjacent to nontidal areas | 60,000 | 300 | |
Public and private recreational facilities: | |||
Within the Shoreland Zone adjacent to tidal and nontidal areas | 40,000 | 200 | |
(2)
Land below the normal high-water line of a water body or uplands edge of a wetland and land beneath roads serving more than two lots shall not be included toward calculating minimum lot area.
(3)
Lots located on opposite sides of a public or private road shall be considered each a separate tract or parcel of land unless such road was established by the owner of land on both sides thereof after September 22, 1971.
(4)
The minimum width of any portion of any lot within 100 feet, horizontal distance, of the normal high-water line of a water body or uplands edge of a wetland shall be equal to or greater than the shore frontage requirement for a lot with the proposed use.
(5)
If more than one residential dwelling unit, principal governmental, institutional, commercial or industrial structure or use, or combination thereof, is constructed or established on a single parcel, all dimensional requirements shall be met for each additional dwelling unit, or principal structure, or use.
B.
Principal and accessory structures.
(1)
All new principal and accessory structures shall be set back at least 100 feet, horizontal distance, from the normal high-water line of great ponds classified GPA and rivers that flow to great ponds classified GPA, and 75 feet, horizontal distance, from the normal high-water line of other water bodies, tributary streams, or the upland edge of a wetland, except that in the Downtown Business I District there shall be no minimum setback. In the Limited Commercial/Maritime and Working Waterfront Districts there shall be no minimum setback for functionally water-dependent uses and a setback of 75 feet for residential and other nonresidential structures. In the Resource Protection District, the setback requirement shall be 250 feet, horizontal distance, except for structures, roads, parking spaces or other regulated objects specifically allowed in that district, in which case the setback requirements specified above shall apply. In addition:
(a)
The water body, tributary stream, or wetland setback provision shall neither apply to structures which require direct access to the water body or wetland as an operational necessity, such as piers, docks and retaining walls, nor to other functionally water-dependent uses. The shoreland setback provision shall not apply to structures which require direct access to the sun or wind energy when no other alternative exists and the following conditions can be met. The location in which the solar and/or wind-energy structure is proposed must be a legally existing clearing (e.g., existing lawn) and any additional vegetation removal necessary must conform to the vegetation removal provisions within this ordinance. In addition, the design must be limited to meeting the energy needs of an existing use on the property. Sale of energy to the public power grid must be limited to incidental excess power generation. Projects for commercial generation of power must comply with the structure setback requirements.
(b)
For principal structures, water and wetland setback measurements shall be taken from the top of a coastal bluff that has been identified on coastal bluff maps as being "highly unstable" or "unstable" by the Maine Geological Survey pursuant to its "Classification of Coastal Bluffs" and published on the most recent coastal bluff map. If the applicant and the permitting official(s) are in disagreement as to the specific location of a "highly unstable" or "unstable" bluff, or where the top of the bluff is located, the applicant may, at his or her expense, employ a Maine registered professional engineer, a Maine certified soil scientist, a Maine state geologist, or other qualified individual to make a determination. If agreement is still not reached, the applicant may appeal the matter to the Board of Appeals.
(c)
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. In no case shall the structure be located closer to the shoreline or tributary stream than the principal structure.
(d)
The Planning Board may increase the required setback of a proposed structure, as a condition to permit approval, if necessary to accomplish the purposes of this article. Instances where a greater setback may be appropriate include, but are not limited to:
[1]
Areas of steep slope;
[2]
Areas of hallow or erodible soils; or
[3]
Where an adequate vegetative buffer does not exist.
USER NOTE: A tributary stream may be perennial or intermittent. Where a tributary stream is present within the Shoreland Zone, setback standards from that tributary stream are applicable. |
(2)
Principal or accessory structures and expansions of existing structures, which are permitted in the Resource Protection, Special Residential District, General Residential District, and Stream Protection District, shall not exceed 30 feet in height. This provision shall not apply to structures such as transmission towers, windmills, antennas, and similar structures having no floor area.
(3)
The lowest floor elevation or openings of all buildings and structures, including basements, shall be elevated at least one foot above the elevation of the one-hundred-year flood, the flood of record, or in the absence of these, the flood as defined by soil types identified as recent flood-plain soils. In those municipalities that participate in the Maine Flood Insurance Program and have adopted the April 2005 version, or later version, of the Floodplain Management Ordinance, accessory structures may be placed in accordance with the standards of that ordinance and need not meet the elevation requirements of this subsection.
(4)
The total footprint area of all structures, parking lots and other nonvegetated surfaces, within the Shoreland Zone shall not exceed 20% of the lot or a portion thereof, located within the Shoreland Zone, including land area previously developed, except in the Downtown Business District adjacent to tidal waters and rivers that do not flow to great ponds classified GPA, and in the Working Waterfront District, where lot coverage shall not exceed 70%.
(5)
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:
(a)
The site has been previously altered and an effective vegetated buffer does not exist;
(b)
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;
(c)
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 the wall(s), in the aggregate, are no more than 24 inches;
(e)
Retaining walls are located outside of the one-hundred-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:
[1]
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.
[2]
Vegetation plantings must be in quantities sufficient to retard erosion and provide for effective infiltration of storm water 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 Subsection P(2)(a)[1], may traverse the buffer.
USER NOTE: If the wall and associated soil disturbance occurs within 75 feet, horizontal distance, of a water body, tributary stream or coastal wetland, a permit pursuant to the Natural Resource Protection Act may be required from the Department of Environmental Protection. |
(6)
Notwithstanding the requirements stated above, stairways or similar structures may be allowed with a permit from the Code Enforcement Officer, to provide shoreline access in areas of steep slopes or unstable soils, provided that the structure is limited to a maximum of four feet in width; that the structure does not extend below or over the normal high-water line of a water body or upland edge of a wetland, (unless permitted by the Department of Environmental Protection pursuant to the Natural Resources Protection Act, 38 M.R.S.A. § 480-C); and that the applicant demonstrates that no reasonable access alternative exists on the property.
C.
Piers, docks, wharves, bridges and other structures and uses extending over or below the normal high-water line of a water body or within a wetland.
(1)
Access from shore shall be developed on soils appropriate for such use and constructed so as to control erosion.
(2)
The location shall not interfere with existing developed or natural beach areas.
(3)
The facility shall be located so as to minimize adverse effects on fisheries.
(4)
The facility shall be no larger in dimension than necessary to carry on the activity and be consistent with the surrounding character and uses of the area. A temporary pier, dock, or wharf in nontidal waters shall not be wider than six feet for noncommercial uses.
(5)
No new structure shall be built on, over or abutting a pier, wharf, dock or other structure extending beyond the normal high-water line of a water body or within a wetland unless the structure requires direct access to the water body or wetland as an operational necessity.
(6)
New permanent piers and docks on nontidal waters shall not be permitted in the Stream Protection, Resource Protection, and General Business Zones unless it is clearly demonstrated to the Planning Board that a temporary pier or dock is not feasible, and a permit has been obtained form the Department of Environmental Protection, pursuant to the Natural Resources Protection Act.
(7)
No existing structures built on, over or abutting a pier, dock, wharf or other structure extending beyond the normal high-water line of a water body or within a wetland shall be converted to residential dwelling units in any district.
(8)
Except in the General Business District and Working Waterfront District, structures built on, over or abutting a pier, wharf, dock or other structure extending beyond the normal high-water line of a water body or within a wetland shall not exceed 20 feet in height above the pier, wharf, dock or other structure.
(9)
In the shoreland area north of the footbridge, no dock, or similar structure may be constructed along the shore or over the waters north of the footbridge that exceeds the following:
(a)
A dock, wharf, or pier may not exceed 12 feet in length from the high-water mark seaward or six feet in width.
(b)
A dock, wharf, or pier may not be installed or constructed having a height greater than one foot above the high-water mark. All decking, stringers and caps shall be fastened to prevent flotation.
(c)
Railings on a dock, wharf, pier or ramp may not exceed four feet in height measured from the surface of the decking of the dock to the top of the railing. All railings must be open construction; any solid structure used as a railing shall be prohibited. The four-foot limit shall not apply to the part of a dock or railings commonly known as a "gallows frame."
(d)
A ramp may not exceed three feet in width or 30 feet in length.
(e)
A float or any arrangement of floats may not exceed 10 feet in width or 16 feet in length.
NOTE: New permanent structures, and expansions thereof, projecting into or over water bodies shall require a permit from the Department of Environmental Protection pursuant to the Natural Resources Protection Act, 38 M.R.S.A. § 480-C. Permits may also be required from the Army Corps of Engineers if located in navigable waters. |
(10)
All floats shall have reflective markers around their perimeters at each corner or angle point of the structure. These reflective markers must be placed so that they are easily seen by all boat traffic. Markers must be maintained and must be replaced when damaged. Permanent identification must be placed on each float with the owner's name, contact information, and current address.
D.
Campgrounds. Campgrounds shall conform to the minimum requirements imposed under state licensing procedures and the following:
(1)
Campgrounds shall contain a minimum of 5,000 square feet of land, not including roads and driveways, for each site. Land supporting wetland vegetation, and land below the normal high-water line of a water body shall not be included in calculating land area per site.
(2)
The areas intended for placement of a recreational vehicle, tent or shelter, and utility and service buildings shall be set back a minimum of 100 feet, horizontal distance, from the normal high-water line of a great pond classified GPA or a river flowing to a great pond classified GPA, and 75 feet, horizontal distance, from the normal high-water line of other water bodies, tributary streams, or the upland edge of a wetland.
E.
Individual private campsites. Individual private campsites not associated with campgrounds are allowed, provided the following conditions are met:
(1)
One campsite per lot existing on the effective date of this article, or 30,000 square feet of lot area within the Shoreland Zone, whichever is less, may be permitted.
(2)
Campsite placement on any lot, including the area intended for a recreational vehicle or tent platform, shall be set back 100 feet, horizontal distance, from the normal high-water line of a great pond classified GPA or river flowing to a great pond classified GPA, and 75 feet, horizontal distance, from the normal high-water line of other water bodies, tributary streams, or the upland edge of a wetland.
(3)
Only one recreational vehicle shall be allowed on a campsite. The recreational vehicles shall not be located on any type of permanent foundation except for a gravel pad, and no structure except a canopy shall be attached to the recreational vehicle.
(4)
The clearing of vegetation for the siting of the recreational vehicle, tent, or similar shelter in a Resource Protection District shall be limited to 1,000 square feet.
(5)
A written sewage disposal plan describing the proposed method and location of sewage disposal shall be required for each campsite and shall be approved by the local plumbing inspector. Where disposal is off-site, written authorization from the receiving facility or landowner is required.
(6)
When a recreational vehicle, tent or similar shelter is placed on-site for more than 120 days per year, all requirements for residential structures shall be met, including the installation of a subsurface sewage disposal system in compliance with the State of Maine Subsurface Wastewater Disposal Rules unless served by public sewage facilities.
F.
Commercial and industrial uses. The following new commercial and industrial uses are prohibited within the Shoreland Zone adjacent to great ponds classified GPA, and rivers and streams which flow to great ponds classified GPA:
(1)
Auto-washing facilities.
(2)
Auto or other vehicle service and/or repair operations, including body shops.
(3)
Chemical and bacteriological laboratories.
(4)
Storage of chemicals, including herbicides, pesticides, or fertilizers, other than amounts normally associated with individual households or farms.
(5)
Commercial painting, wood preserving, and furniture stripping.
(6)
Dry-cleaning establishments.
(7)
Electronic circuit assembly.
(8)
Laundromats, unless connected to a sanitary sewer.
(9)
Metal plating, finishing, or polishing.
(10)
Petroleum or petroleum product storage and/or sale except storage on the same property as the use occurs and except for storage and sales associated with marinas.
(11)
Photographic processing.
(12)
Printing.
G.
Parking areas.
(1)
Parking areas shall meet the shoreline and tributary stream setback requirements for structures for the district in which such areas are located, except that in the Working Waterfront District, parking areas shall be set back at least 25 feet, horizontal distance, from the shoreline. The setback requirement for parking areas serving public boat-launching facilities, in districts other than the Business District and Working Waterfront District, shall be no less than 50 feet, horizontal distance, from the shoreline or tributary stream if the Planning Board finds that no other reasonable alternative exists further from the shoreline or tributary stream.
(2)
Parking areas shall be adequately sized for the proposed use and shall be designed to prevent stormwater runoff from flowing directly into a water body, tributary stream or wetland and where feasible, to retain all runoff on-site.
(3)
In determining the appropriate size of proposed parking facilities, the following shall apply:
H.
Roads and driveways; cross-reference § 170-54 for additional standards. The following standards shall apply to the construction of roads and/or driveways and drainage systems, culverts and other related features:
(1)
Setbacks.
(a)
Roads and driveways shall be set back at least 100 feet, horizontal distance, from the normal high-water line of a great pond classified GPA or a river that flows to a great pond classified GPA, and 75 feet, horizontal distance from the normal high-water line of other water bodies, tributary streams, or the upland edge of a wetland unless no reasonable alternative exists as determined by the Planning Board. If no other reasonable alternative exists, the road and/or driveway setback requirement shall be no less than 50 feet, horizontal distance, upon clear showing by the applicant that appropriate techniques will be used to prevent sedimentation of the water body, tributary stream, or wetland. Such techniques may include, but are not limited to, the installation of settling basins, and/or the effective use of additional ditch relief culverts and turnouts placed so as to avoid sedimentation of the water body, tributary stream, or wetland.
(b)
On slopes of greater than 20%, the road and/or driveway setback shall be increased by 10 feet, horizontal distance, for each five-percent increase in slope above 20%.
(c)
Subsection H(1)(a) does nor apply to approaches to water crossings not to roads or driveways that provide access to permitted structures, and facilities located nearer to the shoreline or tributary stream due to an operational necessity, excluding temporary docks for recreational uses. Roads and driveways providing access to permitted structures within the setback area shall comply fully with the requirements of Subsection H(1)(a) except for that portion of the road or driveway necessary for direct access to the structure.
(2)
Existing public roads may be expanded within the legal road right-of-way regardless of their setback from a water body, tributary stream, or wetland.
(3)
New roads and driveways are prohibited in a Resource Protection District except that the Planning Board may grant a permit to construct a road or driveway to provide access to permitted uses within the district. A road or driveway may also be or as approved by the Planning Board in a Resource Protection District, upon a finding that no reasonable alternative route or location is available outside the district. When a road or driveway is permitted in a Resource Protection District, the road and/or driveway shall be set back as far as practicable from the normal high-water line of a water body, tributary stream, or upland edge of a wetland.
(4)
Road and driveway banks shall be no steeper than a slope of two horizontal to one vertical, and shall be graded and stabilized in accordance with the provisions for erosion and sedimentation control contained in Subsection Q.
(5)
Road and driveway grades shall be no greater than 10% except for segments of less than 200 feet.
(6)
In order to prevent road and driveway surface drainage from directly entering water bodies, tributary streams or wetlands, roads and driveways shall be designed, constructed, and maintained to empty onto an unscarified buffer strip at least 50 feet plus two times the average slope in width between the outflow point of the ditch or culvert and the normal high-water line of a water body, tributary stream, or upland edge of a wetland. Surface drainage, which is directed to an unscarified buffer strip, shall be diffused or spread out to promote infiltration of the runoff and to minimize channelized flow of the drainage through the buffer strip.
(7)
Ditch relief (cross drainage) culverts, drainage dips and water turnouts shall be installed in a manner effective in directing drainage onto unscarified buffer strips before the flow gains sufficient volume or head to erode the road, driveway, or ditch. To accomplish this, the following shall apply:
(a)
Ditch relief culverts, drainage dips, and associated water turnouts shall be spaced along the road, or driveway at intervals no greater than indicated in the following table:
Grade (percent) | Spacing (feet) | |
|---|---|---|
0% to 2% | 250 | |
3% to 5% | 200 to 135 | |
6% to 10% | 100 to 80 | |
11% to 15% | 80 to 60 | |
16% to 20% | 60 to 45 | |
21% or more | 40 |
(b)
Drainage dips may be used in place of ditch relief culverts only where the road grade is 10% or less.
(c)
On sections having slopes greater than 10%, ditch relief culverts shall be placed at approximately a thirty-degree angle down slope from a line perpendicular to the center line of the road or driveway.
(d)
Ditch relief culverts shall be sufficiently sized and properly installed in order to allow for effective functioning, and their inlet and outlet ends shall be stabilized with appropriate materials.
(8)
Ditches, culverts, bridges, dips, water turnouts, and other stormwater runoff control installations associated with roads and driveways shall be maintained on a regular basis to assure effective functioning.
I.
Signs; cross-reference Chapter 146 for additional standards. The following provisions shall govern the use of signs in the Resource Protection, Stream Protection, Special Residential, and General Residential Districts (The more restrictive of any two requirements shall prevail.):
(1)
Signs relating to goods and services sold on the premises shall be allowed, provided that such signs shall not exceed six square feet in area and shall not exceed two signs per premises. In the General Residential District, however, such signs shall not exceed 16 square feet in area. Signs relating to goods or services not sold or rendered on the premises shall be prohibited.
(2)
Name signs are allowed, provided such signs shall not exceed two signs per premises, and shall not exceed 12 square feet in the aggregate.
(3)
Residential users may display a single sign not over three square feet in area relating to the sale, rental, or lease of the premises.
(4)
Signs relating to trespassing and hunting shall be allowed without restriction as to number, provided that no such sign shall exceed two square feet in area.
(5)
Signs relating to public safety shall be allowed without restriction.
(6)
No sign shall extend higher than 20 feet above the ground.
(7)
Signs may be illuminated only by shielded, nonflashing lights.
J.
Stormwater runoff.
(1)
All new construction and development shall be designed to minimize stormwater runoff from the site in excess of the natural predevelopment conditions. Where possible, existing natural runoff control features, such as berms, swales, terraces and wooded areas, shall be retained in order to reduce runoff and encourage infiltration of stormwaters.
(2)
Stormwater runoff control systems shall be maintained as necessary to ensure proper functioning.
USER NOTE: The Storm Water Management Law (38 M.R.S.A. § 420-D) requires a full permit to be obtained from the DEP prior to construction of a project consisting of 20,000 square feet or more of impervious area or five acres or more of a developed area in an urban impaired stream watershed or most-at-risk lake watershed, or a project with one acre or more of developed area in any other stream, coastal or wetland watershed. A permit-by rule is necessary for a project with one acre or more of disturbed area but less than one acre impervious area (20,000 square feet for most-at-risk lakes and urban impaired streams) and less than five acres of developed area. Furthermore, a Maine construction general permit is required if the construction will result in one acre or more of disturbed area. |
K.
Septic waste disposal. All subsurface sewage disposal systems shall be installed in conformance with the State of Maine Subsurface Wastewater Disposal Rules, and the following:
(1)
Clearing or removal of woody vegetation necessary to site a new system and any associated fill extensions shall not extend closer than 75 feet, horizontal distance, from the normal high-water line of a water body or the upland edge of a wetland and
(2)
A holding tank is not allowed for a first-time residential use in the Shoreland Zone.
USER NOTE: The Maine Subsurface Wastewater Disposal Rules require new systems, excluding fill extensions, to be constructed no less than 100 horizontal feet from the normal high-water line of a perennial water body. The minimum setback distance for a new subsurface disposal system may not be reduced by variance. |
L.
Essential services.
(1)
Where feasible, the installation of essential services shall be limited to existing public ways and existing service corridors.
(2)
The installation of essential services, other than roadside distribution lines, is not allowed in a Resource Protection or Stream Protection District, except to provide services to a permitted use within said district, or except where the applicant demonstrates that no reasonable alternative exists. Where allowed, such structures and facilities shall be located so as to minimize any adverse impacts on surrounding uses and resources, including visual impacts.
(3)
Damaged or destroyed public utility distribution lines may be replaced or reconstructed without a permit.
M.
Mineral exploration and extraction. Mineral exploration to determine the nature or extent of mineral resources shall be accomplished by hand sampling, test boring, or other methods which create minimal disturbance of less than 100 square feet of ground surface. A permit from the Code Enforcement Officer shall be required for mineral exploration which exceeds the above limitation. All excavations, including test pits and holes, shall be immediately capped, filled or secured by other equally effective measures to restore disturbed areas and to protect the public health and safety. Mineral extraction may be permitted under the following conditions:
(1)
A reclamation plan shall be filed with, and approved by, the Planning Board before a permit is granted. Such plan shall describe in detail procedures to be undertaken to fulfill the requirements of Subsection M(3) below.
(2)
No part of any extraction operation, including drainage and runoff control features, shall be permitted within 100 feet, horizontal distance, of the normal high-water line of a great pond classified GPA or a river flowing to a great pond classified GPA, and within 75 feet, horizontal distance, of the normal high-water line of any other water body, tributary stream, or the upland edge of a wetland. Extraction operations shall not be permitted within 50 feet, horizontal distance, of any property line, without written permission of the owner of such adjacent property.
(3)
Within 12 months following the completion of extraction operations at any extraction site, which operations shall be deemed complete when less than 100 cubic yards of materials are removed in any consecutive twelve-month period, ground levels and grades shall be established in accordance with the following:
(a)
All debris, stumps, and similar material shall be removed for disposal in an approved location, or shall be buried on-site. Only materials generated on-site may be buried or covered on-site. USER NOTE: The State of Maine Solid Waste Laws, 38 M.R.S.A. § 1301 and the Solid Waste Management Rules, Chapters 400 through 419 of the Department of Environmental Protection's regulations, may contain other applicable provisions regarding disposal of such materials.
(b)
The final graded slope shall be a slope of 2 1/2:1 or flatter.
(c)
Topsoil or loam shall be retained to cover all disturbed land areas, which shall be reseeded and stabilized with vegetation native to the area. Additional topsoil or loam shall be obtained from off-site sources if necessary to complete the stabilization project.
(4)
In keeping with the purposes of this article, the Planning Board may impose such conditions as are necessary to minimize the adverse impacts associated with mineral extraction operations on surrounding uses and resources.
N.
Agriculture.
(1)
All spreading of manure shall be accomplished in conformance with the Manure Utilization Guidelines published by the Maine Department of Agriculture on November 1, 2001, and the Nutrient Management Law (7 M.R.S.A. §§ 4201 through 4209).
(2)
Manure shall not be stored or stockpiled within 100 feet, horizontal distance, of a great pond classified GPA or a river flowing to a great pond, classified GPA, or within 75 feet horizontal distance, of other water bodies, tributary streams, or wetlands. All manure storage areas within the Shoreland Zone must be constructed or modified such that the facility produces no discharge of effluent or contaminated stormwater.
(3)
Agricultural activities involving tillage of soil greater than 40,000 square feet in surface area within the Shoreland Zone shall require a conservation plan to be filed with the Planning Board. Nonconformance with the provisions of said plan shall be considered to be a violation of this article. USER NOTE: Assistance in preparing a conservation plan may be available through the local Soil and Water Conservation District office.
(4)
There shall be no new tilling of soil within 100 feet, horizontal distance, of the normal high-water line of a great pond classified GPA; within 75 feet, horizontal distance, from other water bodies and coastal wetlands; or within 25 feet, horizontal distance, of tributary streams, and freshwater wetlands. Operations in existence on the effective date of this article and not in conformance with this provision may be maintained.
(5)
Newly established livestock grazing areas shall not be permitted within 100 feet, horizontal distance, of the normal high-water line of a great pond classified GPA; within 75 feet, horizontal distance, of other water bodies and coastal wetlands; or within 25 feet, horizontal distance, of tributary streams, and freshwater wetlands. Livestock grazing associated with ongoing farm activities, and which are not in conformance with the above setback provisions may continue, provided that such grazing is conducted in accordance with a plan.
O.
Timber harvesting.
(1)
In a Resource Protection District abutting a great pond, timber harvesting shall be limited to the following:
(a)
Within the strip of land extending 75 feet, horizontal distance, inland from the normal high-water line, timber harvesting may be conducted when the following conditions are met:
[1]
The ground is frozen;
[2]
There is no resultant soil disturbance;
[3]
The removal of trees is accomplished using a cable or boom and there is no entry of tracked or wheeled vehicles into the seventy-five-foot strip of land;
[4]
There is no cutting of trees less than six inches in diameter; no more than 30% of the trees six inches or more in diameter, measured at 4 1/2 feet above ground level, are cut in any ten-year period; and a well-distributed stand of trees and other natural vegetation remains; and
[5]
A licensed professional forester has marked the trees to be harvested prior to a permit being issued by the municipality.
(b)
Beyond the seventy-five-foot strip referred to in Subsection O(1)(a) above, timber harvesting is permitted in accordance with Subsection O(2) below, except that in no case shall the average residual basal area of trees over 4 1/2 inches in diameter at 4 1/2 feet above ground level be reduced to less than 30 square feet per acre.
(2)
Except in areas as described in Subsection O(1) above, the timber harvesting shall conform to the following provisions:
(a)
Selective cutting of no more than 40% of the total of trees four inches or more in diameter measured at 4 1/2 feet above ground level on any lot in any ten-year period is permitted. In addition:
[1]
Within 100 feet, horizontal distance, of the normal high-water line of a great pond classified GPA or a river flowing to a great pond classified GPA, and within 75 feet, horizontal distance of the normal high-water line of other water bodies, tributary streams, or upland edge of a wetland, there shall be no clear-cut openings and a well-distributed stand of trees and other vegetation, including existing ground cover, shall be maintained.
[2]
At distances greater than 100 feet, horizontal distance, of a great pond classified GPA or a river flowing to a great pond classified GPA, and greater than 75 feet, horizontal distance, of the normal high-water line of other water bodies or the upland edge of a wetland, harvesting operations shall not create single clear-cut openings greater than 10,000 square feet in the forest canopy. Where such openings exceed 5,000 square feet, they shall be at least 100 feet, horizontal distance, apart. Such clear-cut openings shall be included in the calculation of total volume removed. Volume may be considered to be equivalent to basal area.
(b)
Timber harvesting operations exceeding the forty-percent limitation in Subsection O(2)(a) above, may be allowed by Planning Board approval upon a clear showing, including a forest management plan signed by a Maine licensed professional forester, that such an exception is necessary for good forest management and will be carried out in accordance with the purpose of this article. The Planning Board shall notify the Commissioner of the Department of Environmental Protection of each exception allowed within 14 days of the Planning Board's decision.
(c)
No accumulation of slash shall be left within 50 feet, horizontal distance, of the normal high-water line of a water body. In all other areas, slash shall either be removed or disposed of in such a manner that it lies on the ground and no part thereof extends more than four feet above ground. Any debris that falls below the normal high-water line of a water body or tributary stream shall be removed.
(e)
All crossings of flowing water shall require a bridge or culvert except in areas with low banks and channel beds, which are composed of gravel, rock, or similar surface which would not be eroded or otherwise damaged.
(f)
Skid trail approaches to water crossings shall be located and designed so as to prevent water runoff from directly entering the water body or tributary stream. Upon completion of timber harvesting, temporary bridges and culverts shall be removed and areas of exposed soils revegetated.
(g)
Except for water crossings, skid trails and other sites where the operation of machinery used in timber harvesting results in the exposure of mineral soils shall be located such that an unscarified strip of vegetation of at least 75 feet, horizontal distance, in width for slopes up to 10% shall be retained between the exposed mineral soil and the normal high-water line of a water body or upland edge of a wetland. For each ten-percent increase in slope, the unscarified strip shall be increased by 20 feet, horizontal distance, from the normal high-water line of a water body or upland edge of a wetland.
P.
Clearing or removal of vegetation for activities other than timber harvesting.
(1)
In a Resource Protection District abutting a great pond, there shall be no cutting of vegetation within the strip of land extending 75 feet, horizontal distance, inland from the normal high-water line, except to remove safety hazards. Elsewhere, in any Resource Protection District, the cutting or removal of vegetation shall be limited to that which is necessary for uses expressly authorized in that district.
(2)
Maintenance of buffer strip.
(a)
Except in areas as described in Subsection P(1), above, and except to allow for the development of permitted uses, within a strip of land extending 100 feet, horizontal distance, inland from the normal high-water line of a great pond classified GPA or a river flowing to a great pond classified GPA, and 75 feet, horizontal distance, from any other water body, tributary stream, or the upland edge of a wetland, a buffer strip of vegetation shall be preserved as follows:
[1]
There shall be no cleared opening greater than 250 square feet in the forest canopy (or other existing woody vegetation if a forested canopy is not present) as measured from the outer limits of the tree or shrub crown. However, a footpath not to exceed six feet in width as measured between tree trunks and/or shrub stems is allowed, provided that a cleared line of sight to the water through the buffer strip is not created.
[2]
Selective cutting of trees within the buffer strip is allowed, provided that a well-distributed stand of trees and other natural vegetation is maintained.
[a]
For the purposes of Subsection P(2)(a)[2] a "well-distributed stand of trees" adjacent to a great pond classified GPA or a river or stream flowing to a great pond classified GPA, shall be defined as maintaining a rating score of 24 or more in each twenty-five-foot-by-fifty-foot rectangular (1,250 square feet) area as determined by the following rating system:
Diameter of Tree at 4 1/2 Feet Above Ground Level (inches) | Points | |
|---|---|---|
2 to less than 4 | 1 | |
4 to less than 8 | 2 | |
8 to less than 12 | 4 | |
12 or greater | 8 |
[b]
Adjacent to other water bodies, tributary streams, and wetlands, a "well-distributed stand of trees" is defined as maintaining a minimum rating score of 16 per twenty-five-foot-by-fifty-foot rectangular area.
USER NOTE: As an example, adjacent to a great pond, if a twenty-five-foot-by-fifty-foot plot contains four trees between two inches and four inches in diameter, two trees between four and eight inches in diameter, three trees between 48 inches and 12 inches in diameter, and two trees over 12 inches in diameter, the rating score is: | |
(4x1) + (2x2) + (3x4) + (2x8) = 36 points | |
Thus, the twenty-five-foot-by-fifty-foot plot contains trees worth 36 points. Trees totaling 12 points (36 - 24 = 12) may be removed from the plot, provided that no cleared openings are created. |
[c]
The following shall govern in applying this point system:
[i]
The twenty-five-foot-by-fifty-foot rectangular plots must be established where the landowner or lessee proposes clearing within the required buffer;
[ii]
Each successive plot must be adjacent to, but not overlap a previous plot;
[iii]
Any plot not containing the required points must have no vegetation removed except as otherwise allowed by this article;
[iv]
Any plot containing the required points may have vegetation removed down to the minimum points required or as otherwise allowed by this article;
[v]
Where conditions permit, no more than 50% of the points on any twenty-five-foot-by-fifty-foot rectangular area may consist of trees greater than 12 inches in diameter.
[d]
For the purposes of Subsection P(2)(a)[2]; "other natural vegetation" is defined as retaining existing vegetation under three feet in height and other ground cover and retaining at least five saplings less than two inches in diameter at 4 1/2 feet above ground level for each twenty-five-foot-by-fifty-foot rectangle area. If five saplings do not exist, no woody stems less than two inches in diameter can be removed until five saplings have been recruited into the plot. Notwithstanding the above provisions, no more than 40% of the total volume of trees four inches or more in diameter, measured at 4 1/2 feet above ground level may be removed in any ten-year period.
[3]
In order to protect water quality and wildlife habitat, existing vegetation under three feet in height and other ground cover, including leaf litter and the forest duff layer, shall not be cut, covered, or removed, except to provide for a footpath or other permitted uses as described in Subsections P(2)(a) and P(2)(a)[1] above.
[4]
Pruning of tree branches, on the bottom 1/3 of the tree is allowed.
[5]
In order to maintain a buffer strip of vegetation, when the removal of storm-damaged, diseased, unsafe, or dead trees results in the creation of cleared openings, these openings shall be replanted with native tree species unless existing new tree growth is present.
(3)
At distances greater than 100 feet, horizontal distance, from a great pond classified GPA or a river flowing to a great pond classified GPA, and 75 feet, horizontal distance, from the normal high-water line of any other water body, tributary stream, or the upland edge of a wetland, there shall be allowed on any lot, in any ten-year period, selective cutting of not more than 40% of the volume of trees four inches or more in diameter, measured 4 1/2 feet above ground level. Tree removal in conjunction with the development of permitted uses shall be included in the forty-percent calculation. For the purposes of these standards volume may be considered to be equivalent to basal area.
(4)
Cleared openings.
(a)
In no event shall cleared openings for any purpose, including but not limited to, principal and accessory structures, driveways, lawns and sewage disposal areas, exceed in the aggregate, 25% of the lot area within the Shoreland Zone or 10,000 square feet, whichever is greater, including land previously cleared. This provision shall not apply to the General Business District or the Working Waterfront District.
(b)
Legally existing nonconforming cleared openings may be maintained, but shall not be enlarged, except as allowed by this article.
Q.
Erosion and sedimentation control.
(1)
All activities, which involve filling, grading, excavation, or other similar activities which result in unstabilized soil conditions and which require a permit shall also require a written soil erosion and sedimentation control plan. The plan shall be submitted to the permitting authority for approval and shall include, where applicable, provisions for:
(2)
In order to create the least potential for erosion, development shall be designed to fit with the topography and soils of the site. Areas of steep slopes where high cuts and fills may be required shall be avoided wherever possible, and natural contours shall be followed as closely as possible.
(3)
Erosion and sedimentation control measures shall apply to all aspects of the proposed project involving land disturbance, and shall be in operation during all stages of the activity. The amount of exposed soil at every phase of construction shall be minimized to reduce the potential for erosion.
(4)
Any exposed ground area shall be temporarily or permanently stabilized within one week from the time it was last actively worked, by use of riprap, sod, seed, and mulch, or other effective measures. In all cases permanent stabilization shall occur within nine months of the initial date of exposure. In addition:
(a)
Where mulch is used, it shall be applied at a rate of at least one bale per 500 square feet and shall be maintained until a catch of vegetation is established.
(b)
Anchoring the mulch with netting, peg and twine or other suitable method may be required to maintain the mulch cover.
(c)
Additional measures shall be taken where necessary in order to avoid siltation into the water. Such measures may include the use of staked hay bales and/or silt fences.
(5)
Natural and man-made drainageways and drainage outlets shall be protected from erosion from water flowing through them. Drainageways shall be designed and constructed in order to carry water from a twenty-five-year storm or greater, and shall be stabilized with vegetation or lined with riprap.
R.
Soils. All land uses shall be located on soils in or upon which the proposed uses or structures can be established or maintained without causing adverse environmental impacts, including severe erosion, mass soil movement, improper drainage, and water pollution, whether during or after construction. Proposed uses requiring subsurface waste disposal, and commercial or industrial development and other similar intensive land uses, shall require a soils report based on an on-site investigation and be prepared by state-certified professionals. Certified persons may include Maine certified soil scientists, Maine registered professional engineers, Maine state certified geologists, and other persons who have training and experience in the recognition and evaluation of soil properties. The report shall be based upon the analysis of the characteristics of the soil and surrounding land and water areas, maximum groundwater elevation, presence of ledge, drainage conditions, and other pertinent data, which the evaluator deems appropriate. The soils report shall include recommendations for a proposed use to counteract soil limitations where they exist.
S.
Water quality. No activity shall deposit on or into the ground or discharge to the waters of the state any pollutant that, by itself or in combination with other activities or substances, will impair designated uses or the water classification of the water body, tributary stream or wetland.
T.
Archaeological site. Any proposed land use activity involving structural development or soil disturbance on or adjacent to sites listed on, or eligible to be listed on the National Register of Historic Places, as determined by the permitting authority, shall be submitted by the applicant to the Maine Historic Preservation Commission for review and comment, at least 20 days prior to action being taken by the permitting authority. The permitting authority shall consider comments received from the Commission prior to rendering a decision on the application. USER NOTE: Municipal officials should contact the Maine Historic Preservation Commission for the listing and location of historic places in their community.
U.
If the proposed activity or use requiring review for the purposes of permitting under § 170-101.11B, or as required in Table 1, requires a permit under the Site Location of Development Act the Stormwater Management Law, or the Natural Resources Protection Act or is otherwise under the jurisdiction of the Maine Departments of Environmental Protection or Transportation, or requires approval and/or permitting through the State Fire Marshal's Office, then final approval of the shoreland permit application shall not be granted by the Planning Board or the Code Enforcement Officer until all such approvals and/or permits are obtained. If the proposed project under shoreland review does not require permitting through any of the aforementioned offices and/or agencies, then evidence of that fact shall be provided to the Planning Board or the Code Enforcement Officer (whichever is the reviewing authority) in the form of correspondence from the relevant office or agency clearly relating to the project requiring shoreland permit review, stating that no permitting by or through the said office or agency is required. All such permits or approvals submitted shall be current and valid at the time of Planning Board approval.
§ 170-101.11 Administration.
A.
Administering bodies and agents.
(1)
Code Enforcement Officer. A Code Enforcement Officer shall be appointed or reappointed annually by July 1.
(2)
Board of Appeals. A Board of Appeals shall be created in accordance with the provisions of 30-A M.R.S.A. § 2691.
(3)
Planning Board. A Planning Board shall be created in accordance with the provisions of state law.
B.
Permits required. After the effective date of this article, no person shall, without first obtaining a permit, engage in any activity or use of land or structure requiring a permit in the district in which such activity or use would occur; or expand, change, or replace an existing use or structure; or renew a discontinued nonconforming use. A person who is issued a permit pursuant to this article shall have a copy of the permit on site while the work authorized by the permit is performed.
(1)
A permit is not required for the replacement of an existing road culvert as long as:
(2)
A permit is not required for an archaeological excavation as long as the excavation is conducted by an archaeologist listed on the State Historic Preservation Officer's Level 1 or Level 2 approved list, and unreasonable erosion and sedimentation is prevented by means of adequate and timely temporary and permanent stabilization measures.
(3)
Any permit required by this article shall be in addition to any other permit required by other law or ordinance.
C.
Permit application.
(1)
Every applicant for a permit shall submit a written application, including a scaled site plan, on a form provided by the municipality, to the appropriate official as indicated in § 170-101.9.
(2)
All applications shall be signed by an owner or individual who can show evidence of right, title, or interest in the property or by an agent, representative, tenant, or contractor of the owner with authorization from the owner to apply for a permit hereunder, certifying that the information in the application is complete and correct.
(3)
All applications shall be dated, and the Code Enforcement Officer or Planning Board, as appropriate, shall note upon each application the date and time of its receipt.
(4)
If the property is not served by a public sewer, a valid plumbing permit or a completed application for a plumbing permit, including the site evaluation approved by the Plumbing Inspector, shall be submitted whenever the nature of the proposed structure or use would require the installation of a subsurface sewage disposal system.
D.
Procedure for administering permits.
(1)
Within 45 days of the date of receiving a written application, the Planning Board or Code Enforcement Officer shall notify the applicant in writing either that the application is a complete application, or, if the application is incomplete, that specified additional material is needed to make the application complete. The Planning Board or the Code Enforcement Officer, as appropriate, shall approve, approve with conditions, or deny all permit applications in writing within 45 days of receiving a completed application. However, if the Planning Board has a waiting list of applications, a decision on the application shall occur within 45 days after the first available date on the Planning Board's agenda following receipt of the completed application, or within five days of the public hearing, if the proposed use or structure is found to be in conformance with the purposes and provisions of this article.
(2)
The applicant shall have the burden of proving that the proposed land use activity is in conformity with the purposes and provisions of this article.
(3)
After the submission of a complete application to the Planning Board, the Board shall approve an application or approve it with conditions if it makes a positive finding based on the information presented that the proposed use:
(a)
Will maintain safe and healthful conditions;
(b)
Will not result in water pollution, erosion, or sedimentation to surface waters;
(c)
Will adequately provide for the disposal of all wastewater;
(d)
Will not have an adverse impact on spawning grounds, fish, aquatic life, bird or other wildlife habitat;
(e)
Will conserve shore cover and visual, as well as actual, points of access to inland and coastal waters;
(f)
Will protect archaeological and historic resources as designated in the Comprehensive Plan;
(g)
Will not adversely affect existing commercial fishing or maritime activities in the Working Waterfront District;
[Amended 5-3-2019 by ATM Art. 3]
(h)
Will avoid problems associated with floodplain development and use; and
(i)
Is in conformance with the provisions of § 170-101.10, Land use standards.
(4)
If a permit is either denied or approved with conditions, the reasons as well as conditions shall be stated in writing. No approval shall be granted for an application involving a structure if the structure would be located in an unapproved subdivision or would violate any other local ordinance, or regulation or statute administered by the municipality.
(5)
The Planning Board may attach, in addition to those required elsewhere in the Code of Boothbay Harbor, a condition(s) of approval that the applicant provide the Town with a bond or other performance guarantees for any work in, on, or over a public way or property, including any unforeseen damages to said public way(s) and property(ies). The bond or performance guarantee procedures shall be as set forth in § 170-105 of the Code of Boothbay Harbor.
[Added 5-5-2012 by ATM Art. 27]
E.
Special exceptions. In addition to the criteria specified in Subsection D above, excepting structure setback requirements, the Planning Board may approve a permit for a single-family residential structure in a Resource Protection District, provided that the applicant demonstrates that all of the following conditions are met:
(1)
There is no location on the property, other than a location within the Resource Protection District, where the structure can be built.
(2)
The lot on which the structure is proposed is undeveloped and was established and recorded in the registry of deeds of the county in which the lot is located before the adoption of the Resource Protection District.
(3)
All proposed buildings, sewage disposal systems and other improvements are:
(a)
Located on natural ground slopes of less than 20%; and
(b)
Located outside the floodway of the one-hundred-year floodplain along rivers and artificially formed great ponds along rivers and outside the velocity zone in areas subject to tides, based on detailed flood insurance studies and as delineated on the Federal Emergency Management Agency's Flood Boundary and Floodway Maps and Flood Insurance Rate Maps; all buildings, including basements, are elevated at least one foot above the one-hundred-year floodplain elevation; and the development is otherwise in compliance with any applicable municipal floodplain ordinance. If the floodway is not shown on the Federal Emergency Management Agency Maps, it is deemed to be 1/2 the width of the one-hundred-year floodplain.
(4)
The total ground-floor area, including cantilevered or similar overhanging extensions, of all principal and accessory structures is limited to a maximum of 1,500 square feet. This limitation shall not be altered by variance.
(5)
All structures, except functionally water-dependent structures, are set back from the normal high-water line of a water body, tributary stream or upland edge of a wetland to the greatest practical extent, but not less than 75 feet, horizontal distance. In determining the greatest practical extent, the Planning Board shall consider the depth of the lot, the slope of the land, the potential for soil erosion, the type and amount of vegetation to be removed, the proposed building site's elevation in regard to the floodplain, and its proximity to moderate-value and high-value wetlands.
F.
Expiration of permit. Permits shall expire one year from the date of issuance if a substantial start is not made in construction or in the use of the property during that period. If a substantial start is made within one year of the issuance of the permit, the applicant shall have two additional years to complete the project, at which time the permit shall expire.
G.
Installation of public utility service. A public utility, water district, sanitary district or any utility company of any kind may not install services to any new structure located in the Shoreland Zone unless written authorization attesting to the validity and currency of all local permits required under this or any previous article, has been issued by the appropriate municipal officials or other written arrangements have been made between the municipal officials and the utility.
H.
Appeals.
(1)
Powers and duties of the Board of Appeals. The Board of Appeals shall have the following powers:
(a)
Administrative appeals: to hear and decide administrative appeals, on an appellate basis, where it is alleged by an aggrieved party that there is an error in any order, requirement, decision, or determination made by, or failure to act by, the Planning Board in the administration of this article and to hear and decide administrative appeals on an appellate basis where it is alleged by an aggrieved party that there is an error in any order, requirement, decision or determination made by, or failure to act by, the Code Enforcement Officer in his or her review of and action on a permit application under this article. Any order, requirement, decision or determination made, or failure to act, in the enforcement of this article is not appealable to the Board of Appeals.
(b)
Variance appeals: to authorize variances upon appeal, within the limitations set forth in this article.
(2)
Variance appeals. Variances may be granted only under a de novo basis and the following conditions:
(a)
Variances may be granted only from dimensional requirements, including, but not limited to, lot width, structure height, percent of lot coverage, and setback requirements.
(b)
Variances shall not be granted for establishment of any use otherwise prohibited by this article.
(c)
The Board shall not grant a variance unless it finds that:
[1]
The proposed structure or use would meet the provisions of § 170-101.10, except for the specific provision which has created the nonconformity and from which relief is sought; and
[2]
The strict application of the terms of this article would result in undue hardship. The term "undue hardship" shall mean:
[a]
That the land in question cannot yield a reasonable return unless a variance is granted;
[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;
[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.
(d)
Notwithstanding Subsection H(2)(c)[2] above, the Board of Appeals may grant a variance to a property owner of a residential dwelling for the purpose of making that dwelling accessible to a person with a disability who resides in or regularly uses the dwelling. The Board shall restrict any variance granted under this subsection solely to the installation of equipment or the construction of structures necessary for access to or egress from the dwelling by the person with the disability. The Board may impose conditions on the variance, including limiting the variance to the duration of the disability or to the time that the person with the disability lives or stays in the dwelling. The term "structures necessary for access to or egress from the dwelling" shall include ramps, railing, wall or roof systems necessary for the safety or effectiveness of the structure.
(e)
The Board of Appeals shall limit any variances granted as strictly as possible in order to ensure conformance with the purposes and provisions of this article to the greatest extent possible, and in doing so may impose such conditions to a variance as it deems necessary. The party receiving the variance shall comply with any conditions imposed.
(f)
A copy of each variance request, including the application and all supporting information supplied by the applicant, shall be forwarded by the municipal officials to the Commissioner of the Department of Environmental Protection at least 20 days prior to action by the Board of Appeals. Any comments received from the Commissioner prior to the action by the Board of Appeals shall be made part of the record and shall be taken into consideration by the Board of Appeals.
(3)
Administrative appeals.
(a)
When the Board of Appeals reviews a decision of the Code Enforcement Officer, the Board of Appeals shall hold an appellate hearing. At this time, the Board may not receive and consider new evidence and testimony, be it oral or written. When acting in an appellate capacity, the Board of Appeals shall hear and decide the matter on the undertaking, analyze evidence in the record and the law, and reach its decision.
(b)
When the Board of Appeals hears an appeal of a decision of the Planning Board, it shall hold an appellate hearing, and may reverse the decision of the Planning Board only upon finding that the decision was contrary to specific provisions of the article or contrary to the facts presented in the record to the Planning Board. The Board of Appeals may only review the record of the proceedings before the Planning Board at the time it reached the decision under appeal. The Board of Appeals shall not receive or consider any evidence which was not presented to the Planning Board. The Board of Appeals may receive and consider written or oral arguments. If the Board of Appeals determines that the record of the Planning Board proceedings is inadequate, the Board of Appeals may remand the matter to the Planning Board for clarification.
[Amended 5-6-2023 ATM by Art. 21]
(4)
Appeal procedure.
(a)
Making an appeal.
[1]
An administrative or variance appeal may be taken to the Board of Appeals by an aggrieved party from any decision of the Code Enforcement Officer or the Planning Board, except for enforcement-related matters as described in Subsection H(1)(a) above. Such an appeal shall be taken within 30 days of the date of the official, written decision appealed from.
[2]
Applications for appeals shall be made by filing with the Board of Appeals a written notice of appeal, which includes:
[3]
Upon receiving an application for an administrative appeal or a variance, 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.
[4]
The Board of Appeals shall hold a public hearing on an administrative appeal or a request for a variance within 30 days of its receipt of a complete written application, unless this time period is extended by the parties.
(b)
Decision by Board of Appeals.
[1]
A majority of the full voting membership of the Board shall constitute a quorum. A majority vote of the voting members shall be required for the purpose of deciding an appeal.
[2]
The person filing the appeal shall have the burden of proof.
[3]
The Board shall decide all administrative appeals and variance appeals within 30 days after the close of the hearing, and shall issue a written decision on all appeals.
[4]
The Board of Appeals shall state the reasons and basis for its decision, including a statement of the facts found and conclusions reached by the Board. The Board shall cause written notice of its decision to be mailed or hand-delivered to the applicant and to the Department of Environmental Protection within seven days of the Board's decision. Copies of written decisions of the Board of Appeals shall be given to the Planning Board, Code Enforcement Officer, and the municipal officers.
(5)
Appeal to Superior Court. Except as provided by 30-A M.R.S.A. § 2691(3)(F), 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.
(6)
Reconsideration.
(a)
In accordance with 30-A M.R.S.A. § 2691(3)(F), the Board of Appeals may reconsider any decision within 45 days of its prior decision. A request to the Board to reconsider a decision must be filed within 10 days of the decision that is being reconsidered. A vote to reconsider and the action taken on that reconsideration must occur and be completed within 45 days of the date of the vote on the original decision.
(b)
Reconsideration of a decision shall require a positive vote of the majority of the Board members originally voting on the decision, and proper notification to the landowner, petitioner, Planning Board, Code Enforcement Officer, and other parties of interest, including abutters and those who testified at the original hearing(s). The Board may conduct additional hearings and receive additional evidence and testimony pursuant to the procedures above.
(c)
Appeal of a reconsidered decision to Superior Court must be made within 15 days after the decision on reconsideration.
I.
Enforcement.
(1)
Nuisances. Any violation of this article shall be deemed to be a nuisance.
(2)
Code enforcement.
(a)
It shall be the duty of the Code Enforcement Officer to enforce the provisions of this article. If the Code Enforcement Officer shall find that any provision of this article is being violated, he or she shall notify in writing the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it, including discontinuance of illegal use of land, buildings or structures, or work being done, removal of illegal buildings or structures, and abatement of nuisance conditions. A copy of such notices shall be submitted to the municipal officers and be maintained as a permanent record.
(b)
The Code Enforcement Officer shall conduct on-site inspections to insure compliance with all applicable laws and conditions attached to permit approvals. The Code Enforcement Officer shall also investigate all complaints of alleged violations of this article.
(c)
The Code Enforcement Officer shall keep a complete record of all essential transactions of the office, including applications submitted, permits granted or denied, variances granted or denied, revocation actions, revocation of permits, appeals, court actions, violations investigated, violations found, and fees collected. On a biennial basis, a summary of this record shall be submitted to the Director of the Bureau of Land and Water Quality within the Department of Environmental Protection.
(3)
Legal actions. When the above action does not result in the correction or abatement of the violation or nuisance condition, the municipal officers, upon notice from the Code Enforcement Officer, are hereby directed to institute any and all actions and proceedings, either legal or equitable, including seeking injunctions of violations and the imposition of fines, that may be appropriate or necessary to enforce the provisions of this article in the name of the municipality. The municipal officers, or their authorized agent, are hereby authorized to enter into administrative consent agreements for the purpose of eliminating violations of this article and recovering fines without court action. Such agreements shall not allow an illegal structure or use to continue unless the removal of the structure or use will result in a threat or hazard to public health and safety or will result in substantial environmental damage.
(4)
Fines. Any person, including, but not limited to, a landowner, a landowner's agent or a contractor, who violates any provision or requirement or performs activity in violation of this article shall be penalized in accordance with Chapter 1, Article II, of the Code of the Town of Boothbay Harbor, and or 30-A M.R.S.A. § 4452. NOTE: Current penalties include fines of not less than $100 nor more than $2,500 per violation for each day that the violation continues. However, in a Resource Protection District the maximum penalty is increased to $5,000 (38 M.R.S.A. § 4452).
§ 170-101.12 Definitions.
As used in this article, the following terms shall have the meanings indicated:
A use or structure, which is incidental and subordinate to the principal use or structure. Accessory uses, when aggregated, shall not subordinate the principal use of the lot. A deck or similar extension of the principal structure or a garage attached to the principal structure by a roof or a common wall is considered part of the principal structure.
An owner of land whose property is directly or indirectly affected by the granting or denial of a permit or variance under this article; a person whose land abuts land for which a permit or variance has been granted; or any other person or group of persons who have suffered particularized injury as a result of the granting or denial of such permit or variance.
The production, keeping or maintenance for sale or lease, of plants and/or animals, including, but not limited to, forages and sod crops; grains and seed crops; dairy animals and dairy products; poultry and poultry products; livestock; fruits and vegetables; and ornamental and greenhouse products. Agriculture does not include forest management and timber harvesting activities.
The growing or propagation of harvestable freshwater, estuarine, or marine plant or animal species.
As used in this article, Town's assessed value shall be the amount shown on the Town assessing tax records. If the Town's certified assessment ratio to the state is less than 100%, the Town's value shall be adjusted accordingly.
The area of cross section of a tree stem at 4 1/2 feet above ground level and inclusive of bark.
Any portion of a structure with a floor-to-ceiling height of six feet or more and having more than 50% of its volume below the existing ground level.
A facility designed primarily for the launching and landing of watercraft, and which may include an access ramp, docking area, and parking spaces for vehicles and trailers.
State of Maine Department of Conservation's Bureau of Forestry.
Any area or tract of land to accommodate two or more parties in temporary living quarters, including, but not limited to tents, recreational vehicles or other shelters.
The more or less continuous cover formed by tree crowns in a wooded area.
All tidal and subtidal lands; all lands with vegetation present that is tolerant of salt water and occurs primarily in a salt water or estuarine habitat; and any swamp, marsh, bog, beach, flat or other contiguous low land that is subject to tidal action during the highest tide level for the year. For all the tidal shorelands within Boothbay Harbor, high-water shall be elevation 5.9 feet local datum, or 7.4 feet NGVD (National Geodetic Vertical Datum). USER NOTE: All areas below the maximum spring tide level are coastal wetlands. These areas may consist of rocky ledges, sand and cobble beaches, mud flats, etc., in addition to salt marshes and salt meadows.
The use of lands, buildings, or structures, other than a home occupation, defined below, the intent and result of which activity is the production of income from the buying and selling of goods and/or services, exclusive of rental of residential buildings and/or dwelling units.
The cross-sectional area of a stream or tributary stream channel is determined by multiplying the stream or tributary stream channel width by the average stream or tributary stream channel depth. The stream or tributary stream channel width is the straight-line distance from the normal high-water-line on one side of the channel to the normal high-water line on the opposite side of the channel. The average stream or tributary stream channel depth is the average of the vertical distance from a straight line between the normal high-water lines of the stream or tributary stream channel to the bottom of the channel.
[Amended 5-3-2008 by ATM Art. 87]
The diameter of a standing tree measured 4.5 feet from ground level.
A change in land use involving alteration of the land, water or vegetation, or the addition or alteration of structures or other construction not naturally occurring.
A numerical standards relating to spatial relationships, including, but not limited to, setback, lot area, shore frontage, and height.
Any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness; and also includes the physical or mental condition of a person which constitutes a substantial handicap as determined by a physician or in the case of mental handicap, by a psychiatrist or psychologist, as well as any other health or sensory impairment which requires special education, vocational rehabilitation or related services.
A vehicular accessway less than 500 feet in length serving two single-family dwellings or one two-family dwelling, or less.
As used in shoreland zoning, a dwelling unit shall include any structure having a room or group of rooms equipped or designed for living or sleeping, including a toilet facility (water closet, hand washing, and bathing/shower); excluding motel, hotel rooms, rooms approved for bed-and-breakfast use, and other permitted business or functional water-dependent use.
[Added 5-2-2009 by ATM Art. 98]
Operations conducted for the public health, safety, or general welfare, such as protection of resources from immediate destruction or loss, law enforcement, and operations to rescue human beings, property, and livestock from the threat of destruction or injury.
Gas, electrical or communication facilities; steam, fuel, electric power or water transmission or distribution lines, towers and related equipment; telephone cables or lines, poles and related equipment; gas, oil, water, slurry or other similar pipelines; municipal sewage lines, collection or supply systems; and associated storage tanks. Such systems may include towers, poles, wires, mains, drains, pipes, conduits, cables, fire alarms and police call boxes, traffic signals, hydrants and similar accessories, but shall not include service drops or buildings which are necessary for the furnishing of such services.
An increase in the floor area or volume of a structure, including all extensions such as, but not limited to, attached decks, garages, porches, and greenhouses.
The addition of one or more months to a use's operating season; or the use of more floor area or ground area devoted to a particular use.
One or more persons occupying premises and living as a single housekeeping unit.
The channel of a river or other watercourse and adjacent land areas that must be reserved in order to discharge the one-hundred-year flood without cumulatively increasing the water surface elevation by more than one foot in height.
The sum of the horizontal areas of the floor(s) of a structure enclosed by exterior walls, plus the horizontal area of any unenclosed portions of a structure, such as porches and decks.
Timber cruising and other forest resource evaluation activities, pesticide or fertilizer application, management planning activities, timber stand improvement, pruning, regeneration of forest stands, and other similar or associated activities, exclusive of timber harvesting and the construction, creation or maintenance of roads.
A freshwater wetland dominated by woody vegetation that is six meters tall (approximately 20 feet) or taller.
The supporting substructure of a building or other structure, including, but not limited to, sills, posts, basements, slabs, frost walls, or other supporting base, object, or device consisting of concrete, block, brick, wood or any other similar material.
[Amended 5-3-2008 by ATM Art. 87]
Freshwater swamps, marshes, bogs and similar areas, other than forested wetlands, which areas:
[Amended 5-3-2008 by ATM Art. 87]
Of 10 or more contiguous acres; or of less than 10 contiguous acres and adjacent to a surface water body, excluding any river, stream or brook, such that in a natural state, the combined surface area is in excess of 10 acres; and
Inundated or saturated by surface or ground water at a frequency and for a duration sufficient to support, and which under normal circumstances do support, a prevalence of wetland vegetation typically adapted for life in saturated soils.
Freshwater wetlands may contain small stream channels or inclusions of land that do not conform to the criteria of this definition.
Those uses that require, for their primary purpose, location on submerged lands or that require direct access to, or location in, coastal or inland waters and that cannot be located away from these waters. The uses include, but are not limited to, commercial and recreational fishing and boating facilities (excluding recreational boat storage buildings), finfish and shellfish processing, fish storage and retail and wholesale fish marketing facilities, waterfront dock and port facilities, shipyards and boat-building facilities, marinas, navigation aids, basins and channels, retaining walls, industrial uses dependent upon waterborne transportation or requiring large volumes of cooling or processing water that cannot reasonably be located or operated at an inland site, and uses that primarily provide general public access to coastal or inland waters.
[Amended 5-3-2019 by ATM Art. 5]
Any inland body of water which in a natural state has a surface area in excess of 10 acres, and any inland body of water artificially formed or increased which has a surface area in excess of 30 acres, except, for the purposes of this article, where the artificially formed or increased inland body of water is completely surrounded by land held by a single owner.
Any great pond classified GPA, pursuant to 38 M.R.S.A. Article 4-A, § 465-A. This classification includes some, but not all impoundments of rivers that are defined as great ponds.
Small plants, fallen leaves, needles and twigs, and the partially decayed organic matter of the forest floor.
The area where timber harvesting and related activities, including the cutting of trees, skidding, yarding, and associated road construction take place. The area affected by a harvest encompasses the area within the outer boundaries of these activities, excepting unharvested areas greater then 10 acres within the area affected by a harvest.
[Amended 5-3-2008 by ATM Art. 87]
The height of a structure shall be measured from the mean original grade or the mean finish grade, whichever is lower in height. As used herein, the mean original grade is the average elevation of the ground at the downhill side of the structure where it is to be constructed before any grading or other alteration. The mean finish grade shall be the average of the finish ground at the downhill side of the structure after the construction and grading is complete.
[Amended 5-3-2019 by ATM Art. 4]
See "upland edge of a wetland or coastal wetland."
[Amended 5-3-2008 by ATM Art. 87]
An occupation or profession which is customarily conducted on or in a residential structure or property and which is:
Any change in a structure or property which causes further deviation from the dimensional standard(s) creating the nonconformity, such as, but not limited to, reduction in water body, tributary stream or wetland setback distance, increase in lot coverage, or increase in height of a structure.
Property changes or structure expansions which either meet the dimensional standard or which cause no further increase in the linear extent of nonconformance of the existing structure shall not be considered to increase nonconformity. For example, there is no increase in nonconformity with the setback requirement for water bodies, wetlands, or tributary streams if the expansion extends no further into the required setback area than does any portion of the existing nonconforming structure. Hence, a structure may be expanded laterally, provided that the expansion extends no closer to the water body, tributary stream, or wetland than the closest portion of the existing structure from that water body, tributary stream, or wetland. Included in this allowance are expansions which in-fill irregularly shaped structures.
An area of land which is not associated with a campground, but which is developed for repeated camping by only one group not to exceed 10 individuals and which involves site improvements which may include but not be limited to a gravel pad, parking areas, fireplace, or tent platform.
The assembling, fabrication, finishing, manufacturing, packaging, or processing of goods, or the extraction of minerals.
A nonprofit or quasipublic use, or institution, such as a church, library, public or private school, hospital, or municipally owned or operated building, structure or land used for public purposes.
Refer to Timber Harvesting/Forestry Laws.
A forester licensed under Maine Laws Title 32 M.R.S.A. Chapter 76.
[Amended 5-3-2008 by ATM Art. 87]
The area of land enclosed within the boundary lines of a lot, minus land below the normal high-water line of a water body or upland edge of a wetland and areas beneath roads serving more than two lots.
A business establishment having frontage on navigable water and, as its principal use, providing for hire off-shore moorings or docking facilities for boats, and which may also provide accessory services such as boat and related sales, boat repair and construction, indoor and outdoor storage of boats and marine equipment, bait and tackle shops and marine fuel service facilities.[1]
Hand sampling, test boring, or other methods of determining the nature or extent of mineral resources which create minimal disturbance to the land and which include reasonable measures to restore the land to its original condition.
Any operation within any twelve-month period which removes more than 100 cubic yards of soil, topsoil, loam, sand, gravel, clay, rock, peat, or other like material from its natural location and transports the product removed, away from the extraction site.
The closest distance between the side lot lines of a lot. When only two lot lines extend into the Shoreland Zone, both lot lines shall be considered to be side lot lines.
A residential structure containing three or more residential dwelling units.
Indigenous to the local forests.
Nonconforming lot, structure, or use which is allowed solely because it was in lawful existence at the time this article or subsequent amendment took effect.
A single lot of record which, at the effective date of adoption or amendment of this article, does not meet the area, frontage, or width requirements of the district in which it is located.
A structure which does not house or is used for a functionally water-dependent use, or which does not meet any one or more of the following dimensional requirements, setback, height, lot coverage, or in, on or over the water or wetland, but which is allowed solely because it was in lawful existence at the time this article or subsequent amendments took effect.
[Amended 5-5-2012 by ATM Art. 28]
Use of buildings, structures, premises, land, or parts thereof which is not allowed in the district in which it is situated, but which is allowed to remain solely because it was in lawful existence at the time this article or subsequent amendments took effect.
That line which is apparent from visible markings, changes in the character of soils due to prolonged action of the water or changes in vegetation, and which distinguishes between predominantly aquatic and predominantly terrestrial land. Areas contiguous with rivers and great ponds that support nonforested wetland vegetation and hydric soils and that are at the same or lower elevation as the water level of the river or great pond during the period of normal high-water are considered part of the river or great pond. USER NOTE: Adjacent to tidal waters, setbacks are measured from the upland edge of the coastal wetland.[2]
An individual, corporation, governmental agency, municipality, trust, estate, partnership, association, two or more individuals having a joint or common interest, or other legal entity.
PIER and/or DOCKA platform extending from a shore over water and supported by piles or pillars, used to secure, protect, and provide access to or dockage for ships, boats or other similar water devices.
WHARFA landing place or pier where ships may tie up and load or unload.
BRIDGEA structure spanning and providing passage over a gap or barrier, such as a river or roadway.
A building other than one which is used for purposes wholly incidental or accessory to the use of another building or use on the same premises.
A use other than one which is wholly incidental or accessory to another use on the same premises.
Any facility, including, but not limited to, buildings, property, recreation areas, and roads, which are owned, leased or otherwise operated or funded by a governmental body or public entity.
The following soil series as described and identified by the National Cooperative Soil Survey:
Fryeburg | Hadley | Limerick | |
Lovewell | Medomak | Ondawa | |
Alluvial | Cornish | Charles | |
Podunk | Rumney | Saco | |
Suncook | Sunday | Winooski |
A place designed and equipped for the conduct of sports, leisure-time activities, and other customary and usual recreational activities, excluding boat-launching facilities.
A vehicle or an attachment to a vehicle designed to be towed, and designed for temporary sleeping or living quarters for one or more persons, and which may include a pick-up camper, travel trailer, tent trailer, camp trailer, and motor home. In order to be considered as a vehicle and not as a structure, the unit must remain with its tires on the ground, and must be registered with the State Division of Motor Vehicles.
A system intended to replace:
A room or group of rooms designed and equipped exclusively for use as permanent, seasonal, or temporary living quarters for only one family at a time, and containing cooking, sleeping and toilet facilities. The term shall include mobile homes, and rental units that contain cooking, sleeping, and toilet facilities regardless of the time-period rented. Recreational vehicles are not residential dwelling units.
The average of the basal area of trees remaining on a site.
Rocks, irregularly shaped, and at least six inches in diameter, used for erosion control and soil stabilization, typically used on ground slopes of two units horizontal to one unit vertical or less.
A free-flowing body of water including its associated floodplain wetlands from that point at which it provides drainage for a watershed of 25 square miles to its mouth. USER NOTE: The portion of a river that is subject to tidal action is a coastal wetland.
A route or track consisting of a bed of exposed mineral soil, gravel, asphalt, or other surfacing material constructed for or created by the repeated passage of motorized vehicles, excluding a driveway as defined.
Areas of coastal wetland (most often along coastal bays) that support salt-tolerant species, and where at average high tide during the growing season, the soil is irregularly inundated by tidal waters. The predominant species is salt marsh cordgrass (Spartina alterniflora). More open areas often support widgeon grass, eelgrass, and Sago pondweed.
Areas of a coastal wetland that support salt-tolerant plant species bordering the landward side of salt marshes or open coastal water, where the soil is saturated during the growing season but which is rarely inundated by tidal water. Indigenous plant species include salt meadow cordgrass (Spartina patens) and black rush; common three square occurs in fresher areas.
Any utility line extension, which does not cross, or run beneath any portion of a water body, provided that:
The nearest horizontal distance from the normal high-water line of a water body or tributary stream, or upland edge of a wetland, to the nearest part of a structure, road, parking space or other regulated object or area.
The length of a lot bordering on a water body or wetland measured in a straight line between the intersections of the lot lines with the shoreline.
The land area located within 250 feet, horizontal distance, of the normal high-water line of any great pond, or river; within 250 feet, horizontal distance, of the upland edge of a coastal wetland, including all areas affected by tidal action; within 250 feet of the upland edge of a freshwater wetland; or within 75 feet, horizontal distance, of the normal high-water line of a stream.
The normal high-water line, or upland edge of a freshwater or coastal wetland.
A route repeatedly used by forwarding machinery or animal to haul or drag forest products from the stump to the yard or landing, the construction of which requires minimal excavation.
The residue, e.g., treetops and branches, left on the ground after a timber harvest.
A free-flowing body of water from the outlet of a great pond or the confluence of two perennial streams as depicted on the most recent edition of a United States Geological Survey 7.5 minute series topographic map, or if not available, a 15 minute series topographic map, to the point where the body of water becomes a river or flows to another water body or wetland within the shoreland area.
Anything built for the support, shelter or enclosure of persons, animals, goods or property of any kind, together with anything constructed or erected with a fixed location on or in the ground or over the water; exclusive of fences, and poles, wiring and other aerial equipment normally associated with service drops as well as guying and guy anchors. The term includes structures temporarily or permanently located, such as decks, patios, tower, and satellite dishes that are 30 inches or greater in diameter.
Completion of 30% of a permitted structure or use measured as a percentage of estimated total cost.
Any system designed to dispose of waste or wastewater on or beneath the surface of the earth; includes, but is not limited to, septic tanks; disposal fields; grandfathered cesspools; holding tanks; pretreatment filter, piping, or any other fixture, mechanism, or apparatus used for those purposes; does not include any discharge system licensed under 38 M.R.S.A. § 414, any surface wastewater disposal system, or any municipal or quasi-municipal sewer or wastewater treatment system.
A change in elevation where the referenced percent grade is substantially maintained or exceeded throughout the measured area.
All waters affected by tidal action during the maximum spring tide.
The cutting and removal of timber for the primary purpose of selling or processing forest products. The cutting or removal of trees in the Shoreland Zone on a lot that has fewer than two acres within the Shoreland Zone shall not be considered timber harvesting. Such cutting or removal of trees shall be regulated pursuant to § 170-101.10P, Clearing or removal of vegetation for activities other than timber harvesting.
Means or is the construction and maintenance of roads used primarily for timber harvesting and other activities conducted to facilitate timber harvesting.
A channel between defined banks created by the action of surface water, which is characterized by the lack of terrestrial vegetation or by the presence of a bed, devoid of topsoil, containing waterborne deposits or exposed soil, parent material or bedrock; and which is connected hydrologically with other water bodies. "Tributary stream" does not include rills or gullies forming because of accelerated erosion in disturbed soils where the natural vegetation cover has been removed by human activity. This definition does not include the term "stream" as defined elsewhere in this article, and only applies to that portion of the tributary stream located within the Shoreland Zone of the receiving water body or wetland. USER NOTES: Water setback requirements apply to tributary streams within the Shoreland Zone.
The boundary between upland and wetland. For purposes of a coastal wetland, this boundary is the line formed by the landward limits of the salt-tolerant vegetation and/or the maximum spring tide level, including all areas affected by tidal action. For purposes of a freshwater wetland, the upland edge is formed where the soils are not saturated for a duration sufficient to support wetland vegetation; or where the soils support the growth of wetland vegetation, but such vegetation is dominated by woody stems that are six meters (approximately 20 feet) tall or taller.
All live trees, shrubs, and other plants, including, without limitation, trees both over and under four inches in diameter, measured at 4 1/2 feet above ground level.
An area of special flood hazard extending from offshore to the inland limit of the primary frontal dune along an open coast and any other area subject to high velocity wave action from storms or seismic sources.
The volume of all portions of a structure enclosed by roof and fixed exterior walls as measured from the exterior faces of these walls and roof. Volume also includes the basement area having a headroom of six feet or greater in height.
Any great pond, river, or stream.
Any project extending from one bank to the opposite bank of a river, or stream, tributary stream, or wetland, whether under, through, or over the water or wetland. Such projects include but may not be limited to roads, fords, bridges, culverts, water lines, sewer lines, and cables as well as maintenance work on these crossings. This definition includes crossings for timber harvesting equipment and related activities.
See "freshwater wetland" or "coastal wetland."
Live trees or woody, nonherbaceous shrubs.