Kittery City Zoning Code
CHAPTER 16
1 General Provisions
§ 16.1.1 Title; applicability.
§ 16.1.2 Purpose.
A.
This title is designed for all the purposes of zoning embraced in the Maine Revised Statutes and has been created as an integral part of a growth management program, comprehensive planning, and implementation process for the Town to promote the health, safety and general welfare of its residents.
B.
Among other things, zoning is designed to:
(1)
Encourage the most appropriate use of land and water throughout the Town;
(2)
Promote traffic safety;
(3)
Provide safety from fire and other elements;
(4)
Provide adequate light and air;
(5)
Prevent overcrowding of real property;
(6)
Prevent development in unsuitable areas;
(7)
Promote an adequate transportation and circulation system;
(8)
Control and manage the coordinated development of unbuilt areas;
(9)
Encourage the formation of community units;
(10)
Provide an allotment of land area in new developments sufficient for all the requirements of community life;
(11)
Conserve energy and natural resources and protect the environment;
(12)
Preserve land values; and
(13)
Provide for adequate public services.
§ 16.1.3 Administration of Title 16.
The Planning Board and Code Enforcement Officer administer this title and have the duties as prescribed herein.
§ 16.1.4 Conflicting requirements.
A.
Conflict within this title. Where the requirements of this title are in conflict with each other, the most restrictive or that imposing the higher standards governs.
B.
Conflict with other laws. Wherever the requirements of this title are at variance with the requirements of any other lawfully adopted rules, regulations, ordinances, deed restrictions or covenants, the most restrictive or that imposing the higher standards governs.
§ 16.1.5 Severability.
A.
In the event that any section, subsection or any portion of this title is declared by any court of competent jurisdiction to be invalid for any reason, such decision does not affect the validity of any other section, subsection or other portion of this title; to this end, the provisions of this title are declared to be severable.
§ 16.1.6 Rules of construction.
For the purposes of this title:
A.
The word "person" includes a firm, association, organization, partnership, trust, company or corporation as well as an individual;
B.
The present tense includes the future tense;
C.
Words used in the singular include the plural and words used in the plural include the singular;
D.
The words "shall" and "must" are mandatory, the word "may" is permissive;
E.
The words "used" or "occupied" include the words "intended," "designed," or "arranged to be used or occupied";
F.
The word "dwelling" includes the word "residence";
G.
The word "lot" includes the words "plot" and parcel";
H.
In case of any difference of meaning or implication between the text of this chapter and any map or illustration, the text shall control;
I.
Terms not defined shall have their customary dictionary meaning.
§ 16.1.7 Amendments.
A.
No amendments to this title may be adopted until after the Planning Board and the Town Council have held a public hearing thereon. Public notice of the hearing must be published as required by 30-A M.R.S.A. § 4352. Said amendments are effective as provided by the Town Charter.
§ 16.1.8 General development requirements.
[ Amended 4-11-2022; 5-13-2024; 7-22-2024; 12-9-2024]
A.
This chapter outlines requirements for conformity; discusses nonconformance and waivers; and defines various development review thresholds and requirements to further the safe and orderly development of the Town.
B.
Conformity.
(1)
Conformity required. No building, structure or land may hereafter be used or occupied, and no building or structure or part thereof may hereafter be erected, constructed, expanded, moved or altered, and no new lot may be created except in conformity with all of the regulations herein specified for the zone where it is located, unless such structure or use exists as a legally nonconforming use or a variance is granted. See § 16.7.11B and § 16.8.10D for specific requirements related to septic waste disposal systems.
(2)
Minimums and uniformity. The regulations specified by this title for each class of district are minimum requirements and apply uniformly to each class or kind of structure or land.
(3)
Land within street lines. Land within the lines of a street on which a lot abuts is not considered as part of such lot for the purposes of meeting the area/frontage requirements of Chapter 16.4, notwithstanding the fact that the fee to such land may be in the owner of such lot.
(4)
Yard, parking or loading space. No part of a yard or other space or off-street parking or loading space about or in connection with any building and required for the purpose of complying with this title may be included as part of a yard, open space or off-street parking or loading space similarly required for any other building, except as authorized in § 16.7.11F.
(5)
Zone boundary line extension. Where a zoning district boundary line divides a lot, the regulations applicable to either zone of such lot may extend not more than 50 feet into the portion in the other zone(s), except when a less restrictive portion abuts the Resource Protection Zone.
(a)
Before granting any such extension, the Planning Board must determine that the proposed use of the extended portion will:
[1]
Not prevent the orderly and reasonable use of properties in the adjacent zone;
[2]
Be in harmony with the character of the adjacent zone;
[3]
Not adversely affect the property values of adjacent zone's immediate neighborhoods;
[4]
Not create any traffic hazards or undue traffic congestion on streets in the adjacent zone;
[5]
Not give off obnoxious gases, odors, smoke or soot;
[6]
Not cause disturbing emission of electrical discharges, dust, light, vibration or noise; and
[7]
Be adequately screened from the adjacent zone.
[8]
Not replace, diminish or adversely impact any existing functionally water-dependent uses.
(b)
The Planning Board may require a study to be performed or commissioned by the applicant to ensure compliance with the above requirements.
(6)
Averaging building setbacks. Building setback from the street line need not be greater than the average of the setback distances of the buildings on the lots next thereto on either side.
C.
Nonconformance.
(1)
Purpose. The purpose of this title is to promote land use conformities and to regulate nonconforming structures, uses, and lots, and to promote the following objectives.
(2)
Prohibitions and allowances.
(a)
Except as otherwise provided in this title, a nonconforming condition must not be permitted to become more nonconforming.
(b)
Nonconforming vacant lots of record may be developed, maintained or repaired.
(c)
Nonconforming uses may continue, may be changed to an equal or more appropriate nonconforming use, or be changed to a conforming use.
(d)
Nothing in this section prevents the demolition of the remains of any structure damaged or destroyed. Application for a demolition permit for any structure that has been partially damaged or destroyed must be made to the Code Enforcement Officer.
(3)
General.
(a)
Transfer of ownership. Legally nonconforming structures, lots, and uses may be transferred, and the new owner may continue the nonconforming use or continue to use the nonconforming structure and/or lot, subject to the provisions of this title.
(b)
Repair and maintenance. This title 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 that is not otherwise permitted by this title, and such other changes in a nonconforming use or structure as federal, state, or local building and safety codes may require. This includes structures and uses in the Shoreland, Resource Protection, Stream Protection and Commercial Fisheries/Marine Uses Overlays.
(c)
Nonconforming parking or loading space. A structure and/or use which is nonconforming as to the requirements for off-street loading and/or parking spaces may not be enlarged or added to unless off-street space is provided sufficient to satisfy the requirements of this title for both the original and addition or enlargement of the structure or use.
(4)
Nonconforming structures outside the Shoreland, Resource Protection or Stream Protection Overlay Zone(s) [For nonconforming structures inside the Shoreland, Resource Protection or Stream Protection Overlay Zones, see § 16.9.4].
(a)
Restoration or reconstruction. Any nonconforming structure which is removed, damaged, or destroyed by any cause may be restored or reconstructed in place if a permit is obtained from the Code Enforcement Officer within 18 months of the date of said removal, damage or destruction. Such restoration or reconstruction must not make the structure more nonconforming than the prior nonconforming structure.
(b)
Nonconforming structure relocation. Except where otherwise permitted in this title, relocation of a nonconforming structure must be approved by the Board of Appeals.
[1]
A nonconforming structure may be relocated within the boundaries of the parcel on which the structure is located provided the site of relocation conforms to all dimensional requirements, to the greatest practical extent, as determined by the Board of Appeals, and provided the applicant demonstrates the present subsurface sewage disposal system meets the requirements of state law and the State of Maine Subsurface Wastewater Disposal Rules, or a new system can be installed in compliance with the law and said rules. In no case may the relocation of a structure be permitted that causes the structure to be more nonconforming. See § 16.7.11B and § 16.8.10D, for other specific requirements related to septic waste disposal systems.
[2]
In determining whether the structure relocation meets the setback to the greatest practical extent, the Board of Appeals must consider the following conditions:
[a]
The size of the lot;
[b]
The slope of the land;
[c]
The potential for soil erosion;
[d]
The location of other structures on the property and on adjacent properties;
[e]
The location of the septic system and other on-site soils suitable for septic systems;
[f]
The type and amount of vegetation to be removed to accomplish the relocation.
[3]
When it is necessary to remove vegetation within a non-shoreland zoned water or wetland setback area to relocate a structure, replanting of native vegetation to compensate for the destroyed vegetation is required. The Board of Appeals may restrict mowing around and pruning of the replanted native vegetation to encourage a more natural state of growth. Tree removal and vegetation replanting is required as follows, effective February 28, 2015:
[a]
Prior to the commencement of on-site construction, areas to remain undisturbed must be clearly marked with stakes and caution tape. All stakes, caution tape, silt fences, and other materials used during construction must remain until all on-site work is completed. Prior to removal, written permission to remove such materials must be given by the Code Enforcement Officer.
[b]
Trees removed to relocate a structure must be replanted with at least one native tree, six feet in height, for every tree removed. If more than five trees are planted, no one species of tree can be used to 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 removed.
[c]
Other woody and herbaceous vegetation and ground cover that is removed, or destroyed, 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 native vegetation and/or ground cover similar to that disturbed, destroyed or removed.
[d]
Where feasible, when a structure is relocated on a parcel, the original location of the structure must be replanted with vegetation consisting of grasses, shrubs, trees or a combination thereof.
[4]
If the total footprint of the original structure can be relocated beyond the required setback area, no portion of the relocated structure may be constructed at less than the setback requirement for a new structure.
(c)
Nonconforming structure expansion.
[1]
A nonconforming structure may be expanded in conformity with the dimensional requirements, such as setback, height, etc., as contained in this title, including Table 16.5.30, Minimum Setbacks From Wetlands and Water Bodies, as applicable, through a permit from the Code Enforcement Officer. If the proposed expansion of a nonconforming structure cannot meet the dimensional requirements of this title, the Board of Appeals will review such expansion application and may approve proposed changes provided the changes are no more nonconforming than the existing condition and the Board of Appeals makes its decision per § 16.2.12F(2).
[2]
Except in the Residential-Village (R-V) Zone, minimum setbacks of residential storage sheds that are less than 121 square feet, one-story residential garages that are less than 577 square feet, and decks less than 251 square feet may be one-half the minimum rear and side yard setbacks, providing the lots are legally nonconforming.
[3]
Where the expansion of the residential use within the commercial zones involves an expansion of a structure, the structure must be expanded in conformity with the dimensional requirements contained in this title. If the proposed structure expansion cannot meet the dimensional requirements of this title, the application may be submitted to the Board of Appeals for review as a miscellaneous variation request. In reviewing all such applications, the Board of Appeals must use the criteria established in this section, and then may approve the proposed variations to the dimensional requirements.
[4]
The addition of steps and landings, exterior to the structure, does not constitute expansion. Such steps are not to be considered part of the structure for such determination. Step landings may not exceed three feet by three feet in size.
[5]
When it is necessary to remove vegetation to reconstruct a structure, vegetation must be replanted in accordance with § 16.1.8C(4)(b)[3], Nonconforming structure relocation.
[6]
Except where expressly permitted in this title, in no case may a structure be reconstructed or replaced so as to increase its nonconformity.
(5)
Nonconforming uses.
(a)
Nonconforming use continuance. The use of land, or structure, lawful at the time such use began, may continue although such use may not meet the provisions of this title.
(b)
Resumption of discontinued use prohibited. A nonconforming use discontinued for a period exceeding one year, or which is superseded by a conforming use, loses its status as a permitted nonconforming use. The uses of the land or structure must thereafter meet the provisions of this title. This provision does not apply to the resumption of a use of a residential structure where it can be demonstrated that the structure has been used or maintained for residential occupancy during the preceding five-year period.
(c)
Nonconforming use expansion. Expansion of nonconforming uses is prohibited, except nonconforming residential uses may be expanded within existing residential structures. Where the expansion of a nonconforming residential use involves the expansion of a structure, the structure must be expanded in conformity with all requirements as outlined in § 16.1.8C(4), Nonconforming structures. Expansion of nonconforming residential uses shall not include expanding the number of nonconforming residential units on the property.
(d)
Nonconforming use change: review authority and evaluations. The reviewing authority may require evaluations be prepared by a person certified and/or qualified to perform the required evaluation. It is the burden and responsibility of the applicant to bear the costs for such evaluations. In the event there are existing official maps, data and/or reports for general use, the applicant is encouraged to submit copies of these documents to the reviewing authority. In determining that no greater adverse impact will occur, the applicant may be required to submit an evaluation in writing 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.
[1]
The Town Planner and the Code Enforcement Officer may approve the change of use of a nonconforming structure where it can be deemed the proposed use is a conforming use and the proposed use does not impact a shoreland zoned water body, tributary stream, or wetland. For change of use of a nonconforming structure in the Shoreland Overlay zones, see § 16.9.4.
[2]
An existing nonconforming use may be changed to another nonconforming use with approval of the Board of Appeals.
(6)
Nonconforming lots.
(a)
Nonconforming lots of record.
[1]
Nonconforming lots. In any district, notwithstanding limitations imposed by other sections of this title, single noncontiguous lots legally created when recorded may be built upon consistent with the uses in the particular zone. These provisions apply even though such lots fail to meet the minimum requirements for area or width, or both, which are applicable in the zone, provided that yard dimensions and other requirements, not involving area or width, or both, of the lot conform to the regulation for the zone in which such lot is located. Relaxation of yard, setback and other requirements not involving area or width may be obtained only through miscellaneous variation request to the Board of Appeals.
[2]
Residential zones exception. In residential zoning districts and outside of shoreland overlay zones, lots that do not conform with the applicable minimum lot area or minimum net residential acreage required to construct a single-family dwelling are exempt from those standards and may construct a single-family dwelling, provided the lot was conforming prior to October 25, 2012.
(b)
Contiguous nonconforming lots.
[1]
Contiguous nonconforming lots. If two or more contiguous nonconforming lots or portions thereof are in single or joint ownership of record, and if all or part of the lots do not meet the dimensional requirements of this title, and if one or more of the lots are vacant or contain no principal structure, the lots must be combined to the extent necessary to meet the applicable dimensional requirements of this title.
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[2]
Contiguous-built upon nonconforming lots. If two or more contiguous lots or parcels were in a single or joint ownership of record prior to July 13, 1977, if all or part of the lots do not meet the dimensional requirements of this title, 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.
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[3]
Contiguous partially built-upon lot. If two or more contiguous lots or parcels are in a single or joint ownership of record at the time of or since adoption or amendment of this title, if any of these lots do not individually meet the dimensional requirements of this title 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 applicable dimensional requirements of this title.
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(c)
Single lot division of a nonconforming lot. If two principal structures exist on a single lot legally created when recorded, each may be sold on a separate lot provided the Board of Appeals determines that each resulting lot is as conforming as practicable to the dimensional requirements of this title. If three or more principal structures exist on a single lot legally created when recorded, each may be sold on a separate lot provided the Planning Board determines that each resulting lot is as conforming as practicable to the dimensional requirements of this title.
(d)
Adjustment of common boundary line of nonconforming lots.
[1]
The common property line of two nonconforming lots of record, each with legally created principal structures, may be adjusted if:
[a]
The Code Enforcement Officer (CEO) determines that the resulting lots are not more nonconforming than the existing lots with respect to the dimensional requirements of this title; or
[b]
Where the lots are located entirely outside the Shoreland Overlay Zone and the CEO determines the proposed lot line adjustment makes the lot more nonconforming, the Board of Appeals determines that each resulting lot is as conforming as practicable to the dimensional requirements of this title; and
[2]
It is not the intention of the above subsection (Adjustment of common boundary line of nonconforming lots) to allow for the creation of an additional lot. A property line adjustment in accordance with this subsection and Title 16.8 does not constitute the creation of a new lot and the adjusted lot remains a legally nonconforming lot of record, not applicable to the joining of lots.