Ogunquit City Zoning Code
ARTICLE 3
Nonconformance
§ 225-3.1 General.
[Amended 11-4-2008, effective 4-1-2009]
A.
Continuance, expansion, reconstruction. It is the intent of this chapter to promote land use conformities. Any use of land, or any building, structure, or parts thereof, legally existing at the time of the adoption of this chapter, or at the time a zone or regulation is changed by amendment hereafter, which does not conform to the use requirements of this chapter, or its amendments, may continue but may not be expanded, reconstructed, structurally altered, or permitted to become more nonconforming in any way, except as specified below.
B.
Transfer of ownership. Ownership of lots, structures and uses which remain lawful but become nonconforming by the adoption or amendment of this chapter may be transferred, and the new owner may continue the nonconforming use or continue to use the nonconforming structure or lot, subject to the provisions of this chapter.
C.
Maintenance and repairs. This chapter allows, without a permit, the normal upkeep and maintenance of nonconforming uses and structures; repairs, renovations, or modernizations which do not involve expansion of the nonconforming use or nonconforming portion of a structure; and such other changes in a nonconforming use or structure as federal, state, or local building and safety codes may require. A building permit is not required for painting or general maintenance, provided there are no repairs or replacement of structural components. Check with the Code Enforcement Office if your project is questionable.
[Amended 6-12-2012; 6-12-2018]
§ 225-3.2 Nonconforming uses.
[Amended 11-4-2008, effective 4-1-2009]
A.
Nonconforming use defined. A use of land, building, premises, or structure or parts thereof, lawfully existing at the time of adoption or amendment of this chapter, that is not permitted in the district in which it is located, which is allowed solely because it was in lawful existence at the time this chapter or subsequent amendment took effect.
[Amended 6-8-2021 ATM by Art. 9]
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building or structure in or on which a nonconforming use is discontinued for a period exceeding one year, or which is superseded by a conforming use, may not again be devoted to a nonconforming use, even if the owner had not intended to abandon the use; except, however, the Planning Board may, for good cause shown by the applicant, grant up to a one-year extension to that time period. The burden of proof shall be upon the property owner, who must provide the Town with sales tax, licensing, advertising or other business records, should a dispute arise over whether a nonconforming use has been discontinued. This provision shall not apply to the resumption of a use of a residential structure, provided that the structure has been used or maintained for residential purposes during the preceding five-year period.
[Amended 6-12-2012]
C.
Nonconforming use of part of a building. A nonconforming use of part of a building or structure shall not be extended throughout other parts of the building or structure unless those parts of the building or structure were manifestly arranged or designed for such use prior to the adoption of this chapter, or of any amendment making such use nonconforming.
D.
A structure nonconforming as to use. Except for single-family dwellings, a structure nonconforming as to use shall not be enlarged unless the nonconforming use is terminated. Within any Shoreland Zone, 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 § 225-3.3H(1) below.
E.
Nonconforming use of land. A nonconforming use of land may not be extended into any part of the remainder of a lot of land. A nonconforming use of land which is accessory to a nonconforming use of a building shall be discontinued at the same time the nonconforming use of the building is discontinued.
F.
Change of use. A legally 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 impact of the former use as determined by the Planning Board. The determination of appropriateness shall require written findings on the probable changes in traffic (volume and type), parking, noise, potential for litter, wastes or by-products, fumes, odors, or other nuisances likely to result from such change of use. The performance standards in Articles 8 and 9 of this chapter shall apply to such requests to establish new nonconforming uses. In addition, within any Shoreland Zone, the determination of no greater adverse impact shall be made according to criteria listed in § 225-3.3H(4) below.
§ 225-3.3 Nonconforming structures.
A.
Nonconforming structure defined. A structure or portion thereof, lawfully existing at the time of adoption or amendment of this chapter, that does not conform to the setback, height, lot coverage, or footprint regulations of this chapter, which is allowed solely because it was in lawful existence at the time this chapter or subsequent amendment took effect.
[Amended 6-8-2021 ATM by Art. 9]
B.
Maintenance permitted. A nonconforming building or structure may be maintained or repaired but no alterations which alter the essential use, density, footprint or facade shall be made except those required or permitted by law or ordinance.
C.
Enlargements controlled.
[Amended 6-12-2012]
(1)
A nonconforming structure shall not be added to or enlarged unless such addition or enlargement conforms to all the regulations of the zone in which it is located.
(2)
Horizontal and/or vertical extension of walls or any portions of buildings that increase the building volume that is already in violation of setback requirements shall be considered as a prohibited expansion of a nonconforming structure. Within any Shoreland Zone, such horizontal or vertical expansion of structures that are nonconforming as to water body, tributary stream, or wetland setbacks shall be permitted, provided that it complies with Subsection H.
[Amended 6-12-2018]
(3)
The addition of an open patio with no structures elevated more than three inches above original ground level shall not constitute the expansion of a nonconforming structure as of January 28, 1991.
(4)
The addition of steps or the enclosure of an existing porch shall not constitute the expansion of a nonconforming structure, but the addition of a deck does constitute the expansion of a nonconforming structure, and therefore, the deck shall meet all the dimensional requirements of this chapter.
(5)
Construction or enlargement of a foundation under an existing dwelling shall not be considered an expansion, provided that:
(a)
The construction or expansion does not expand the habitable space of the structure; and
(b)
The completed foundation does not extend beyond the exterior dimensions of the structure.
(6)
Construction or enlargement of a foundation shall be subject to the municipal plumbing laws (30-A M.R.S.A. Chapter 185, Subchapter 3) requiring new soils documentation.
D.
Relocation. 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 and provided that the applicant demonstrates that the present subsurface wastewater disposal system meets the requirements of state law and the State of Maine Subsurface Wastewater Disposal Rules, or that a new system can be installed in compliance with the law and rules.
E.
Reconstruction. Any nonconforming structure which is hereafter damaged or destroyed by fire or any cause other than the willful act of the owner or the owner's agent may be restored, rehabilitated or reconstructed, provided that the restoration, rehabilitation or reconstruction shall not enlarge the overall floor space or height of the building or cause the building to become more nonconforming. A permit for such reconstruction must be obtained and actual reconstruction must be commenced within 12 months and completed within 24 months of the damage or destruction. Nothing in this subsection shall prevent the demolition of the remains of any building so damaged or destroyed, or shall prevent the reconstruction or rehabilitation of accessory site features exempted from the definition of "structure" in this chapter. Notwithstanding the foregoing, municipal structures that are nonconforming as to height may be reconstructed to a height within but not to exceed an additional 25% of the height of the municipal structure, regardless of the cause of the damage or destruction of the structure, for the purpose of retaining the historical character and aesthetics of said nonconforming structure. This exception is contingent upon the Code Enforcement Officer's approval of a detailed survey that includes the documented height of the original structure before damage or destruction.
[Amended 6-12-2012; 6-11-2024 ATM by Art. 10]
F.
Discontinuance. Discontinuance of the use of a legally existing nonconforming structure shall not constitute abandonment of the structure. Conforming uses of the structure may be revived at any time, provided that the conforming uses comply with the requirements of Articles 8 and 9.
G.
Nonconforming structures, lack of required parking or loading space. A structure which is nonconforming as to the requirements for off-street parking space shall not be enlarged or altered unless off street parking space is provided for the original structure sufficient to satisfy the requirements of this chapter and unless additional off street parking space is provided for such enlargement or alteration of the original structure sufficient to satisfy the requirements of this chapter. A structure which is nonconforming as to requirements for off-street loading space shall not be enlarged or altered unless off-street loading space is provided for the original structure or use sufficient to satisfy the requirements of this chapter and unless additional off-street loading space is provided for such enlargement or alteration of the original structure sufficient to satisfy the requirements of this chapter. This subsection shall not apply to changes in a permitted use that will not require additional parking nor to alterations that will not require additional parking.
H.
Additional requirements in any Shoreland Zone.
[Amended 11-4-2008, effective 4-1-2009]
(1)
Expansions. All new principal and accessory structures, excluding functionally water-dependent uses, must meet the water body, tributary stream, or wetland setback requirements contained in Table 703.1.[1] A nonconforming structure made 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 H(1)(a), (b), (c) and (d) below.
(a)
Expansion of any portion of a structure within 25 feet of the normal high-water line of a water body, tributary stream, or upland edge of a wetland is prohibited, even if the expansion will not increase nonconformity with the water body, tributary stream or wetland setback requirement. Expansion of an accessory structure that is located closer to the normal high-water line of a water body, tributary stream, or upland edge of a wetland than the principal structure is prohibited, even if the expansion will not increase nonconformity with the water body, tributary stream, or wetland setback requirement.
(b)
Notwithstanding Subsection H(1)(a) above, if a legally existing nonconforming principal structure is entirely located less than 25 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland, that structure may be expanded as follows, as long as all other applicable municipal land use standards are met and the expansion is not prohibited by Subsection H(1):
[1]
The maximum total footprint for the principal structure may not be expanded to a size greater than 800 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of the principal structure may not be made greater than 15 feet or the height of the existing structure, whichever is greater.
(c)
All other legally existing nonconforming principal and accessory structures that do not meet the water body, tributary stream, or wetland setback requirements may be expanded or altered as follows, as long as other applicable municipal land use standards are met and the expansion is not prohibited by Subsection H(1) or Subsection H(1)(a) above:
[1]
For structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,000 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of any structure may not be made greater than 20 feet or the height of the existing structure, whichever is greater.
[2]
For structures located less than 100 feet from the normal high-water line of a great pond classified as GPA or a river flowing to a great pond classified as GPA, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet or 30% larger than the footprint that existed on January 1, 1989, whichever is greater. The maximum height of any structure may not be made greater than 25 feet or the height of the existing structure, whichever is greater. Any portion of those structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland must meet the footprint and height limits in Subsection H(1)(b)[1] and (c)[1] above.
[3]
In addition to the limitations in Subsection H(1)(c)[1] and [2], for structures that are legally nonconforming due to their location within the Resource Protection District when located at less than 250 feet from the normal high-water line of a water body or the upland edge of a wetland, the maximum combined total footprint for all structures may not be expanded to a size greater than 1,500 square feet or 30% larger than the footprint that existed at the time the Resource Protection District was established on the lot, whichever is greater. The maximum height of any structure may not be made greater than 25 feet or the height of the existing structure, whichever is greater, except that any portion of those structures located less than 75 feet from the normal high-water line of a water body, tributary stream, or upland edge of a wetland must meet the footprint and height limits in Subsection H(1)(b)[1] and (c)[1] above.
(d)
An approved plan for expansion of a nonconforming structure must be recorded by the applicant with the Registry of Deeds, within 90 days of approval. The recorded plan must show the existing and proposed footprint of the nonconforming structure, the existing and proposed structure height, the footprint of any other structures on the parcel, the Shoreland Zone boundary and evidence of approval by the municipal review authority.
[1]
Editor's Note: Table 703.1 is included as an attachment to this chapter.
(2)
Foundations. 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 H(3).
(3)
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 property can be connected to the public sewer, or that the present subsurface wastewater 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, and (if not served by public sewer service) 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.
(c)
When it is necessary to remove vegetation within the water or wetland setback area in order to relocate a structure, the Planning Board or its designee shall require replanting of native vegetation to compensate for the destroyed vegetation in accordance with § 225-9.15O. 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. 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.
(4)
Reconstruction or replacement.
(a)
Any nonconforming structure which is located less than the required setback from the normal high-water line of a water body, tributary stream, or upland edge of a wetland and which is removed, or is damaged or destroyed, regardless of the cause, by more than 50% of its 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 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 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 H(1) above, as determined by the nonconforming footprint of the reconstructed or replaced structure at its new location. If the total footprint of the original structure can be relocated or reconstructed beyond the required setback area, no portion of the relocated or reconstructed structure shall be replaced or constructed at less than the setback requirement for a new structure. When it is necessary to remove vegetation in order to replace or reconstruct a structure, vegetation shall be replanted in accordance with Subsection H(3) 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 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 water setback to the greatest practical extent, the Planning Board shall consider, in addition to the criteria in Subsection H(3) above, the physical condition and type of foundation present, if any.
[Amended 6-12-2012]
(5)
Change of use of a nonconforming structure.
(a)
The use of a structure which is less than the required setback from the normal high-water line of a water body, tributary stream, or upland edge of a wetland 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.
[Amended 6-12-2018]
§ 225-3.4 Nonconforming lots.
[Amended 4-5-2005; 11-4-2008, effective 4-1-2009]
A.
Nonconforming lot defined. A lot which lawfully existed at the effective date of adoption or amendment of this chapter and does not meet the area, frontage or width requirements of the district in which it is located.
B.
Vacant lots. A nonconforming vacant lot 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 chapter except minimum lot area, minimum net residential area per dwelling unit, shore frontage, and street frontage can be met. Variance of yard or other requirements not involving minimum lot area, minimum net residential area per dwelling unit, shore frontage or street frontage shall be obtained only by action of the Board of Appeals.
[Amended 6-8-2021 ATM by Art. 9]
C.
Built lots. A legally nonconforming lot which does not meet the lot area or street frontage requirements, or both, that was built upon prior to the enactment or subsequent amendment of this chapter is subject to the following restrictions. The structure(s) or use(s) on such lot may be repaired, maintained, improved, enlarged, changed or relocated only in conformity with all other dimensional requirements of this chapter besides those requirements of lot area or street frontage which made the lot nonconforming. If the proposed changes or enlargement of such structure(s) cannot meet the dimensional requirements of this chapter besides lot area or street frontage, a variance must be obtained from the Board of Appeals in accordance with § 225-5.2B prior to any approval process.
D.
"Improved" lots in subdivisions. For purposes of this section, lots shown on a subdivision plan approved by the Planning Board and recorded in the Registry of Deeds shall not be treated as lots held in common ownership if the owner or his predecessor has substantially improved each lot by the paving of streets and the installation, where available, of public sewer and of utility services.
E.
Contiguous built lots. If two or more contiguous lots or parcels are in single or joint ownership of record at the time of adoption or amendment of this chapter, if all or part of the lots do not meet the dimensional requirements of this chapter, and if a principal use 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 (if not served by public sewer) the State of Maine Subsurface Wastewater Disposal Rules are complied with.
F.
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 is vacant or contains 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 wastewater 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 F(2)(a) 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.
G.
Functional division of a nonconforming lot with two or more single-family dwellings. If two or more year-round single-family houses existed on a single lot of record as of September 23, 1971, each may be sold on a separate lot, subject to review and approval by the Planning Board, provided that each resulting lot shall:
(1)
Be as conforming as possible to the dimensional requirements of this chapter;
(2)
Be at least 20,000 square feet if served by an on-site subsurface wastewater disposal system; and
(3)
Be served by a public water supply system unless an on-site water well can meet all state and municipal requirements.
§ 225-3.5 Nonconforming transient accommodation Type 4 (TA-4, motel/hotel).
[Amended 6-12-2012]
With the rapid expansion of transient accommodation Type 4 uses in recent years, hotels and motels now take up a disproportionate share of the Town's land area. To promote the health, safety and welfare of Ogunquit citizens, to comply with the most recent amendments to the Comprehensive Plan adopted in 2004, to mitigate parking, traffic and congestion problems, and to preserve community quality, hotels and motels are no longer permitted uses in the Town of Ogunquit, except in the General Business District 2 (GB2). Any TA-4 motel/hotel use outside of the GB2 District, legally existing at the time of the adoption or amendment of this chapter, may continue but shall only be permitted to expand, be reconstructed or be structurally altered within the owner's lot of record or contiguous lots of record in a manner that meets all of the following criteria:
A.
The expansion, reconstruction or structural alteration shall be subject to a site plan review and shall meet all the current standards of this chapter, including all provisions of § 225-9.8, Transient accommodation Type 4 – motel/hotel (TA-4).
B.
The expansion, reconstruction or structural alteration shall be accessory to the TA-4 use.
C.
The expansion, reconstruction or structural alteration shall not increase the overall number of individual guest accommodations. Enlargements of individual guest accommodations shall be permitted.
D.
The expansion, reconstruction or structural alteration involving a TA-4 use shall only be utilized for an accessory use that serves the patrons at the facility, such as a laundry room, pool or fitness center.
E.
Expansion of restaurant, retail, or office uses located on a property with an existing, nonconforming TA-4 use shall not be considered an expansion of the TA-4 use and shall be allowable in those districts indicated in Table 702.1[1] with site plan review, and subject to the all provisions of this chapter, including, but not limited to, parking requirements.
[1]
Editor's Note: Table 702.1, Land Uses Permitted in Zoning Districts, is included as an attachment to this chapter.
§ 225-3.6 Vested rights.
[Amended 4-1-2006]
Nonconforming use rights cannot arise by the mere filing of a notice of intent to build, an application for Planning Board subdivision, site plan review, or design review approval, an application for required building permits, or an application for required state permits and approvals. Such rights arise only when a complete application for a building permit has been filed with the Code Enforcement Officer or, in the case of an application pending before the Planning Board, the Board has found the application complete.