Kennebunkport City Zoning Code
ARTICLE 8
Nonconformance and Vested Rights
§ 240-8.1 Purpose.
It is the intent of this article to promote land use conformities, except that a nonconforming condition is permitted to continue as it existed prior to the date such condition became nonconforming under the provisions of this article, as amended. Except as otherwise provided in this article, a nonconforming condition shall not be permitted to become more nonconforming.
§ 240-8.2 General.
[Amended 11-4-2025]
A.
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 chapter.
B.
Repair and maintenance. This chapter allows, without a permit, 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.
§ 240-8.3 Expansion of nonconforming structures.
[Amended 6-10-2025; 11-4-2025]
A.
Within any zoning district, a nonconforming structure shall not be changed, extended or enlarged in any manner except as provided in this subsection, after obtaining a permit from the reviewing authority specified by this chapter.
(1)
A structure which is nonconforming due to lot coverage, height or setback requirements may be reconstructed, expanded or enlarged, provided the expansion, enlargement, or reconstruction is in accordance with the requirements in Subsection B below. In no case shall a structure be enlarged, expanded or reconstructed so as to increase its nonconformity.
(2)
Any enlargement, expansion or reconstruction of a nonconforming structure which enlargement, expansion or reconstruction will be located between the lot lines and the setback lines (including setback from lot lines or high water or similar lines) or will not meet the lot coverage or height requirements of this chapter, and which cannot meet the requirements of Subsection B below, shall not be permitted unless a variance is obtained in accordance with the requirements of § 240-9.2. In no case shall a structure be enlarged, expanded or reconstructed so as to increase its nonconformity.
(3)
Neither the addition of steps for access to the ground floor nor the addition of exterior stairs for access to the second floor of a building shall constitute an enlargement or expansion of an existing use. Exterior stairs that are no larger than required by the Town’s adopted building codes to access/egress the first floor of an elevated structure which requires elevation in conformance with the Town’s Floodplain Management Ordinance will not be counted as part of lot coverage or footprint calculations.
B.
Within any zoning districts, nonconforming structures only may be expanded, relocated, reconstructed, or replaced, subject to the following conditions, in addition to those required by Subsection A, above:
(1)
Determination of the extent of allowable expansion. After January 1, 1989, if any portion of a structure is less than the required setback from a lot line or from the normal high-water line of a body of water or tributary stream or the upland edge of a wetland, that portion of the structure shall not be expanded, as measured in floor area or volume, by 30% or more, during the lifetime of the structure. Footprint expansions are not permitted, except that the existing area may be reconfigured as described in Subsection B(3)(a).
(a)
Calculation of basis of floor area. The basis of the floor area of the original structure, for determining the allowable expansion, shall be defined as follows. The total of the following areas:
[1]
The sum of the horizontal areas of the floor or floors of the structure enclosed by exterior walls; plus
[2]
The sum of the horizontal areas of unenclosed portions of the structure such as open porches and decks; plus
[3]
The sum of the floor area of attached garages.
(b)
Exclusions from basis of floor area. The following areas shall be excluded from the basis of the floor area of the original structure, for determining the allowable expansion:
[1]
Unfinished attics;
[2]
Crawl spaces; and
[3]
Basements, as defined in Article 2 of this chapter, whether finished or unfinished.
(c)
Calculation of basis of volume. The basis of the volume of the original structure, for determining the allowable expansion, shall be defined as follows. The total of the following volumes:
[1]
The volume of all portions of the structure enclosed by roof and fixed exterior walls, as measured from the exterior faces of these walls and roof; plus
[2]
The volume of attached garages.
(d)
Exclusions from basis of volume. The following volumes shall be excluded from the basis of the volume of the original structure, for determining the allowable expansion:
[1]
Crawl spaces; and
[2]
Basements, as defined in Article 2 of this chapter, whether finished or unfinished.
(e)
Conversions of porches, decks, or basements. Enclosing an existing open porch or deck shall be considered an expansion of volume under this section. Conversion of an unfinished basement to a finished basement shall not be considered an expansion of area or volume, unless the foundation is expanded below the threshold set in Subsection B(3) below.
(f)
Notice requirements. In accordance with § 240-10.8C, the names and addresses of the owners of all properties within 200 feet of the property in question, as shown by the most recent tax records of all municipalities in which such properties lie, shall be submitted with the building permit or site plan application. Notification of the receipt of a completed application for an expansion of nonconforming dwellings in any Shoreland Zoning District shall be sent via certified, return receipt mail, to all owners of properties within said 200 feet of the property in question. The applicant shall pay a fee sufficient to cover 100% of the postage cost for mailing said notices. A building permit for said expansion shall not be issued prior to 10 days of mailing said notification to said abutters, to allow said abutters the opportunity to review the application at issue. A complete list of all property owners so notified shall be maintained as a part of the building permit. Failure of any property owner to receive a notice shall not invalidate the action of the Code Enforcement Officer. An expansion in accordance with this section shall be approved by permit from:
[1]
The Code Enforcement Officer, where expansion involves no change to the footprint, foundation or landscaping; or
[2]
The Planning Board in all other cases.
(2)
Thirty-percent expansion allowable one time only. If a replacement structure is erected in conformance with the requirements of Subsection B(5) below, and it 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.
(a)
An approved plan for expansion of a nonconforming structure must be recorded by the applicant with the Registry of Deeds, within 90 days of approval. The recorded plan must show the existing and proposed footprint of the nonconforming structure, the existing and proposed structure height, the footprint of any other structures on the parcel, the Shoreland Zone boundary and evidence of approval by the municipal review authority.
(b)
No certificate of occupancy/completion will be given if proof of recording has not been provided.
(3)
Replacement foundations under a nonconforming structure. Whenever a new, enlarged, or replacement foundation is constructed under a nonconforming structure, the structure and new foundation must be placed such that the setback requirement is met to the greatest practical extent as determined by the Planning Board or its designee, basing its decision on the criteria specified in Subsection B(4), Relocation, below.
(a)
If a new or replacement foundation is constructed under a nonconforming structure, the footprint of the new foundation may be reconfigured, provided that any changes are in conformance with the provisions of this article. An overlay comparison of the two foundation plans shall indicate that the proposed new footprint will not, when superimposed, deviate from the area of the existing footprint by more than 250 square feet. The new footprint shall not exceed the square footage of the existing footprint. Any reconfiguration shall not increase the area of the structure towards any water body or wetland and shall meet the property line setbacks.
(b)
If the completed foundation does not extend beyond the exterior dimensions of the structure, except for expansion in conformity with Subsection B(1) 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.
(c)
Repairs to existing foundations may be made without Planning Board approval.
(4)
Relocation of a nonconforming structure.
(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 accordance with § 240-5.20. 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 farther from the water or wetland than the trees that were removed. Other woody and herbaceous vegetation, and ground cover, that are removed or destroyed in order to relocate a structure must be reestablished. An area at least the same size as the area where vegetation and/or ground cover was disturbed, damaged, or removed must be reestablished within the setback area. The vegetation and/or ground cover must consist of similar native vegetation and/or ground cover that was disturbed, destroyed or removed.
[2]
Where feasible, when a structure is relocated on a parcel, the original location of the structure shall be replanted with vegetation which may consist of grasses, shrubs, trees, or a combination thereof.
(5)
Reconstruction or replacement of a nonconforming structure.
(a)
Any nonconforming structure which is located less than the required setback from a lot line or the normal high-water line of a water body, tributary stream, or upland edge of a wetland and which is removed, damaged or destroyed by more than 50% of the market value of the structure before such damage, destruction or removal, may be reconstructed or replaced, provided that a permit is obtained within 18 months of the date of said damage, destruction, or removal, and provided that such reconstruction or replacement is in compliance with the applicable setback requirement to the greatest practical extent as determined by the Planning Board or its designee in accordance with the purposes of this chapter. 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 B(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 B(4) above.
(b)
Any nonconforming structure which is located less than the required setback from a lot line or a water body, tributary stream, or wetland and which is removed by 50% or less of the market value, or damaged or destroyed by 50% or less of the market value of the structure, excluding normal maintenance and repair, may be reconstructed in place if a permit is obtained from the Code Enforcement Officer within one year of such damage, destruction, or removal.
(c)
In determining whether the building reconstruction or replacement meets the setback to the greatest practical extent the Planning Board or its designee shall consider, in addition to the criteria in Subsection B(3) above, the physical condition and type of foundation present, if any.
(d)
A structure to be reconstructed pursuant to this section can be lifted vertically and then moved horizontally and stored on the same lot for a period not to exceed 180 days. The temporary storage location of the structure shall not be more nonconforming in terms of wetland, water body or stream setbacks unless permission to do so has been granted by the Planning Board.
[Note: The words "damaged" and "destroyed" include voluntary removal by owners, as well as "Acts of God" such as fire, flood, wind or other causes.]
§ 240-8.4 Change of use of 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 body of water, tributary stream, or wetland, or on the subject and 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.
§ 240-8.5 Nonconforming due to lack of required parking or loading space.
[Amended 6-11-2024]
A building or structure, other than a single-family dwelling or an accessory apartment, which is nonconforming as to the requirements for off-street parking and/or loading space, shall not be extended or enlarged in any manner unless off-street parking and/or loading space is provided to bring parking and/or loading space into conformance with the requirements of this chapter for both the addition or alteration and for the original building or structure.
§ 240-8.6 Conversion of use.
Once converted to a conforming structure, use or lot, no structure, use or lot shall revert to a nonconforming status.
§ 240-8.7 Nonconforming lots.
A.
A nonconforming lot of record, not adjoined by any other lot in common ownership, may be built upon, as a matter of right for a single-family dwelling, an accessory apartment constructed in accordance with § 240-7.1, and permitted accessory uses, and without the need for a variance, subject to all the requirements of this chapter for the zone where located, except for those area and frontage requirements which made the lot nonconforming, provided that the owner can demonstrate that there is reasonable access to the site by emergency vehicles.
[Amended 6-13-2023; 6-11-2024]
B.
If any lot in separate and distinct ownership from abutting lots contains less than 10,000 square feet and has any outside dimension of less than 50 feet, the minimum setback requirements from the lot lines intersecting with such outside dimension of less than 50 feet shall be reduced to 10 feet. The setbacks from the other outside dimensions shall be met in full.
C.
Contiguous built lots - vacant or partially built. If two or more contiguous lots are in a single or joint ownership of record as of March 12, 1985, if all or part of the lots do not meet the dimensional requirements of this chapter or subsequent amendments, 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. If two or more principal uses or structures existed on a single lot of record on March 12, 1985, each may be sold on a separate lot, provided that the above-referenced laws and rules are complied with. When such lots are divided, each lot thus created must be as conforming as possible to the dimensional requirements of this chapter.
D.
Contiguous lots - vacant or partially built.
(1)
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 chapter, if any of these lots do not individually meet the dimensional requirements of this chapter or subsequent amendments, and if one or more of the lots are vacant or contain no principal structure, the lots shall be combined to the extent necessary to meet the dimensional requirements.
(2)
This provision shall not apply to two or more contiguous lots, at least one of which is nonconforming, owned by the same person or persons on the effective date of this chapter and recorded in the Registry of Deeds if the lot is served by a public sewer or can accommodate a subsurface sewage disposal system in conformance with the State of Maine Subsurface Wastewater Disposal Rules and:
(a)
Each lot contains at least 100 feet of shore frontage and at least 20,000 square feet of lot area; or
(b)
Any lots that do not meet the frontage and lot size requirements of Subsection D(2)(a) above are reconfigured or combined so that each new lot contains at least 100 feet of shore frontage and 20,000 square feet of lot area.
E.
Existing lots of record. Notwithstanding any other provisions of this article, any nonconforming vacant lot of record, located entirely outside of any Shoreland Zone, containing at least 20,000 square feet or shown on a subdivision plan approved by the Kennebunkport Planning Board and recorded in the York County Registry of Deeds may be built upon as a matter of right and need not be consolidated with adjoining lots.
F.
New construction, replacement or substantial renovation and additions to existing structures on nonconforming lots of record. Structures shall be designed to conform with the same architectural style as the original building or a design that is comparable to the majority of structures in the immediate neighborhood. In addition, the principal (50% or more of the gross roof area) roof design shall be one or more of the below-mentioned styles:
(1)
Gable, hip, cross gable, multi-gable, mansard or gambrel. Shed roofs and flat roofs (pitches of 3:12 or less) shall be primarily confined to porches and rear additions and shall not constitute more than 50% of the actual roof area.
(2)
Interior renovations involving existing structures that do not comply with this section need not comply with the above-mentioned requirements.
(3)
Requirements dictated by other laws (including but not limited to DEP Sand Dune Requirements or Chapter 219, Floodplain Management) shall not be considered when evaluating architectural style.
§ 240-8.8 Nonconforming uses.
A.
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 expansion of such structures in Shoreland Zones as allowed in § 240-8.3B(1) above. For purposes of this section, an accessory apartment constructed in accordance with § 240-7.1 is not an expansion of a nonconforming use.
[Amended 6-11-2024]
B.
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.
C.
Change of use. An existing nonconforming use may be changed to another nonconforming use, provided that the proposed use has no greater adverse impact on the subject and adjacent properties and resources than the former use, as determined by the Planning Board. In Shoreland Zones, the determination of no greater adverse impact shall be made according to criteria listed in § 240-8.4.
§ 240-8.9 Vested rights.
Vested rights shall not arise by the mere filing of a notice of intent to build, an application for a building permit, or an application for required state permits and approvals. Such rights shall only arise when actual construction has begun, or, in the case of pending applications under this chapter, when the substantive review of a complete application commences. To establish vested rights, construction must be legal in all respects at the time it is commenced and the owner must be in possession of and in compliance with all validly issued permits, both state and local.