Shoreland Zoning Ordinance

SHORELAND ZONING ORDINANCE

Section 16. Administration

A. Administering Bodies and Agents

  1. Code Enforcement Officer
    A Code Enforcement Officer shall be appointed or re-appointed annually by July 1st.
  2. Board of Appeals
    There is hereby created a Board of Appeals for the Municipality of Weld in accordance with the provisions of Title 30-A M.R.S.A. Section 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 Ordinance 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 non-conforming use. A person who is issued a permit pursuant to this Ordinance shall have a copy of the permit on site while the work authorized by the permit is performed. Such violation will result in a fine of not less than thirty-five ($35) in addition to the fee for the permit. If the structure is in violation of the Ordinance the offending structure must be removed.

A permit is required for any construction in the Shoreland Zone. No construction may take place in the setback area, one hundred (100) feet from the high-water line of any water body or upland edge of a wetland.

  1. A permit is not required for the replacement of an existing road culvert as long as:
    • a. The replacement culvert is not more than 25% longer than the culvert being replaced.
    • b. The replacement culvert is not longer than 75 feet; and
    • c. Adequate erosion control measures are taken to prevent sedimentation of the water and the crossing does not block fish passage in the watercourse.
  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.
    • b. Any permit required by this Ordinance shall be in addition to any other permit required by other law or ordinance.

C. Permit Application

Every applicant for a permit shall submit a written application, which shall include the following information, to the appropriate official as indicated in Section 14:

  1. The name and address of the property owner.
  2. The name, address and telephone number of the person, firm, or firms involved in the construction of the property.
  3. The names and addresses of abutting property owners.
  4. A detailed description of the proposed structures or land use activity.
  5. A site plan indicating:
    • a. The size and shape of the lot for which application is made including lot boundary lines, and the location of the water body.
    • b. The size, shape and location of the proposed use or structure(s) on the property.
    • c. The shape, size and location of all existing developments on the property including all buildings, driveways, parking areas, wells, sewage disposal systems and other developed areas.
    • d. The location of significant natural features on the property including wooded and open areas, areas of steep slope, and any streams, wet areas or other natural drainage areas.
  6. 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 would require plumbing facilities.
  7. A Certification that the information in the application is complete and correct to the best of the applicant’s knowledge and belief.
  8. All applications shall be signed by the owner or owners of the property or other person authorizing the work. If the person signing the application is not the owner or lessee of the property, then that person shall submit a letter of authorization from the owner or lessee.
  9. All applications shall be dated, and the Municipal Clerk or Planning Board, as appropriate, shall note upon each application the date and time of its receipt.
  10. The basic application fee for a permit required by this Ordinance shall be $20.00. In addition, when an application requires a Planning Board permit that requires outside consulting services, the applicant shall pay the following additional fee for use of the Planning Board in hiring such independent consulting services:
    • a. The applicant shall pay into a special account the cost to the Municipality of Weld of hiring independent consulting services. The fee shall be determined after the Planning Board has secured an estimate of the cost of the services and the applicant has seen the estimate. If the balance in the special account is drawn down by 75%, the Board shall notify the applicant and require an additional amount. Any balance in the account remaining after a final decision on the application shall be returned to the applicant.
  11. When an excavation contractor will perform an activity that requires or results in more than one (1) cubic yard of soil disturbance, the person responsible for management of erosion and sedimentation control practices at the site must be certified in erosion control practices by the Maine Department of Environmental Protection. This person must be present at the site each day earthmoving activity occurs for a duration that is sufficient to ensure that proper erosion and sedimentation control practices are followed. This is required until erosion and sedimentation control measures have been installed, which will either stay in place permanently or stay in place until the area is sufficiently covered with vegetation necessary to prevent soil erosion. The name and certification number of the person who will oversee the activity causing or resulting in soil disturbance shall be included on the permit application. This requirement does not apply to a person or firm engaged in agriculture or timber harvesting if best management practices for erosion and sedimentation control are used; and municipal, state and federal employees engaged in projects associated with that employment.

D. Procedure for Administering Permits

Within 35 days of the date of receiving a written application, the Planning Board and Code Enforcement Officer, as indicated in Section 14, 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. All permit applications shall either be approved or denied in writing within 35 days of receiving a completed application. However, if the Planning Board has a waiting list, such approval or denial shall occur within 35 days after the first available date on the Planning Boards’ agenda following receipt of the completed application, or within 35 days of the public hearing, if one is held. Permits shall be approved if the proposed use is found to be in conformance with the purposes and provisions of this Ordinance.

The applicant shall have the burden of proving that the proposed land use activity is in conformity with the purposes and provisions of this Ordinance. 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:

  1. Will maintain safe and healthful conditions;
  2. Will not result in water pollution, erosion, or sedimentation to surface waters;
  3. Will adequately provide for the disposal of all wastewater;
  4. Will not have an adverse impact on spawning grounds, fish, aquatic life, bird or other wildlife habitat;
  5. Will conserve shore cover and visual, as well as actual, points of access to inland and coastal waters;
  6. Will protect archaeological and historic resources as designated in the comprehensive plan;
  7. Will avoid problems associated with flood plain development and use; and
  8. Is in conformance with the provisions of Section 15, Land Use Standards.

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 any State law, which the municipality is responsible for enforcing.

E. Reserved

F. Expiration of Permit

Following the issuance of a permit, if no substantial start is made in construction or in the use of the property within one year of the date of the permit, the permit shall lapse and become void. Construction authorized by a permit and which is not completed within two (2) years of the effective date of the permit shall not continue until a new permit is obtained.

G. Public Hearings

  1. In scheduling public hearings under this Ordinance, the Planning Board shall notify the applicant, the Selectmen, the Code Enforcement Officer and the Board of Appeals at least ten (10) days in advance of the hearing time and place, and shall publish notice of the hearing in a newspaper of general circulation in the municipality at least two times, the date of the first publication to be at least seven (7) days prior to the hearing.
  2. The Planning Board shall also notify, by mail, owners of all property within five hundred (500) feet of the property involved, at least seven (7) days in advance of the hearing, of the nature of the application and of the time and place of the public hearing.
  3. The owners of property shall be considered to be those against whom taxes are assessed. Failure of any property owner to receive a notice of public hearing shall not necessitate another hearing or invalidate any action by the Planning Board.
  4. Public hearings shall be conducted according to the procedures contained herein.

H. Installation of Public Utility Service

No public utility or any utility company of any kind may 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 Ordinance has been issued by the appropriate municipal officials. Following installation of service, the company or district shall forward the written authorization to the municipal officials, indicating that installation has been completed.

I. 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, Planning Board in the administration of this Ordinance; and to hear and decide administrative appeals on a de novo 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 Ordinance. Any order, requirement, decision or determination made, or failure to act, in the enforcement of this ordinance is not appealable to the Board of Appeals.
    • b. Variance Appeals: To authorize variances upon appeal, within the limitations set forth in this Ordinance.
  2. Variance Appeals
    Variances may be granted only under the following conditions:
    • a. Variances may be granted only from lot size, frontage, and percent of lot coverage. Percent of lot coverage may not be increased by more than five (5) percent.
    • b. Variances shall not be granted for establishment of any uses otherwise prohibited by this Ordinance.
    • c. The Board shall not grant a variance unless it finds that:
      • (1) The proposed structure or use would meet the provisions of Section 15 except for the specific provision which has created the non-conformity and from which relief is sought; and
      • (2) The strict application of the terms of this Ordinance would result in undue hardship.
        • The term “undue hardship” shall mean:
          • (i) That the land in question cannot yield a reasonable return unless a variance is granted;
          • (ii) That the need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
          • (iii) That the granting of a variance will not alter the essential character of the locality; and
          • (iv) That the hardship is not the result of action taken by the applicant or a prior owner.
    • d. The Board of Appeals shall limit any variances granted as strictly as possible in order to insure conformance with the purposes and provisions of this Ordinance to the greatest extent possible, and in so doing, may impose such conditions to a variance as it deems necessary. The party receiving the variance shall comply with any conditions imposed.
    • e. The Code Enforcement Officer as authorized by Title 30-A MRSA Section 4353-A may grant a variance to an 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 variances, including limiting the variance to the duration of the disability or to the time that the person with the disability lives in the dwelling. The term “structures necessary for access to or egress from the dwelling” shall include railing, wall or roof systems necessary for the safety or effectiveness of the structure. Any permit issued pursuant to this subsection is subject to Sections 16.I.2.f and 16.I.4.b.)(iv) below.
    • 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 twenty (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.
    • g. Whenever the Board of Appeals grants a variance under this section, a certificate indicating the name of the current property owner, identifying the property by reference to the last recorded deed or deeds of ownership in its chain of title, and indicating the fact that a variance, including any conditions on the variance, has been granted and the date of the granting, shall be prepared in recordable form and provided to the applicant for recording in the Franklin County Registry of Deeds. Variances not recorded within thirty (30) days of final approval of the variance shall be invalid. No rights may accrue to the variance recipient or his heirs, successors or assigns unless and until the recording is made within thirty (30) days.
  3. Administrative Appeals
    When the Board of Appeals reviews a decision of the Code Enforcement Officer the Board of Appeals shall hold a “de novo” hearing. At this time the Board may receive and consider new evidence and testimony, be it oral or written. When acting in a “de novo” capacity the Board of Appeals shall hear and decide the matter afresh, undertaking its own independent analysis of evidence and the law, and reaching its own decision.

    When the Board of Appeals hears 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 Ordinance or contrary to the facts presented to the Planning Board. The Board of Appeals may only review the record of the proceedings before the Planning Board. The Board Appeals shall not receive or consider any evidence which was not presented to the Planning Board, but 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 are inadequate, the Board of Appeals may remand the matter to the Planning Board for additional fact finding.
  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 Section 16.H.1.a above. Such an appeal shall be taken within thirty (30) days of the date of the decision appealed from, and not otherwise, except that the Board, upon showing of good cause, may waive the thirty (30) day requirement.
      • (2) Applications for appeals shall be made by filing with the Board of Appeals a written notice of appeal which includes:
        • (i) A concise written statement indicating what relief is requested and why the appeal or variance should be granted.
        • (II) A sketch drawn to scale showing lot lines, location of existing buildings and structures and other physical features of the lot pertinent to the relief sought.
      • (3) Upon being notified of an appeal, the Code Enforcement Officer or Planning Board, as appropriate, shall transmit to the Board of Appeals all of the papers constituting the record of decision appealed from. Each appeal shall be accompanied by a fee to cover advertising and administration costs. If the actual cost of advertising and notification exceeds the fee paid, the applicant shall pay the balance. This fee will be $25.00.
      • (4) The Board of Appeals shall hold a public hearing on the appeal within thirty five (35) days of its receipt of an appeal request.
  5. b. Hearings
    • (1) The Board may receive any oral or documentary evidence but may also exclude any irrelevant, immaterial or unduly repetitious evidence. All parties shall have the right to present their case or defense by oral or documentary evidence, to submit rebuttal evidence and to conduct such cross-examination as may be required for a full and true disclosure of the facts.
    • (2) The appellant’s case shall be heard first. To maintain orderly procedure, each side shall proceed without interruption. Questions may be asked through the chair. All persons at the hearing shall abide by the order established by the chairperson.
    • (3) At any hearing, a party may be represented by agent or attorney. Hearings shall not be continued to other times except for good cause.
    • (4) The transcript or tape recording of testimony, if any, minutes and exhibits, together with all papers, documents, exhibits and requests filed in the proceedings, shall constitute the record.
    • (5) The record may be kept open after the hearing to receive additional comments or evidence by order of the Chair-person until a date established by the order.
  6. c. Decision by Board of Appeals
    • (1) A majority of the Board shall constitute a quorum for the purpose deciding an appeal. A member who abstains shall not be counted in determining whether a quorum exists.
    • (2) The person filing the appeal shall have the burden of proof.
    • (3) The Board shall decide all appeals within thirty five (35) days after the close of the hearing, and shall issue a written decision on all appeals.
    • (4) All decisions shall be based upon the material issues of fact and law. Notice of any decision shall be mailed or hand delivered to the petitioner, his representative or agent, Department of Environmental Protection, the Planning Board, the Code Enforcement Officer, and the Municipal Officers within seven (7) days of the decision date.
  7. Appeal to Superior Court
    • Except as provided by 30-A M.R.S.A. Section 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 forty five (45) days from the date of any decision of the Board of Appeals.
  8. Reconsideration
    • In accordance with 30-A M.R.S.A. Section 2691(3)(F) the Board of Appeals may reconsider any decision within forty-five (45) days of its prior decision. A request to the Board to reconsider a decision must be filed within ten (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 forty-five (45) days of the date of the vote on the original decision. 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 abuttors and those who testified at the original hearing(s). The Board may conduct additional hearings and receive additional evidence and testimony.
    • Appeal of a reconsidered decision to Superior Court must be made within fifteen (15) days after the decision on reconsideration.
  9. J. Enforcement
    1. Nuisances
      • Any violation of this Ordinance shall be deemed to be a nuisance.
    2. Code Enforcement Officer
      • a. It shall be the duty of the Code Enforcement Officer to enforce the provisions of this Ordinance. If the Code Enforcement Officer shall find that any provision of this Ordinance is being violated, he or she shall notify in writing the person responsible for such violations, 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 shall also investigate all complaints of alleged violations of this Ordinance. The Code Enforcement Officer may enter any property at reasonable hours and enter any structure with the consent of the property owner, occupant or agent, to inspect the property or structure for compliance with the laws or ordinances set forth in this section. If consent is denied, the Code Enforcement Officer shall obtain an administrative warrant before entering the structure or subject property.
      • c. The Code Enforcement Officer shall maintain a current file of all pertinent federal, state and local statutes, ordinances, regulations, codes and plans relating to land-use regulation.
        The Code Enforcement Officer shall keep a complete record of 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.
    3. Construction or land changing in the Shoreland Zone without a permit.
      • a. Any person construction a building, harvesting timber or changing the land within the zone of the Weld Shoreland Zoning Ordinance without a valid permit will be in violation. The person will have to obtain a permit after-the-fact from the Weld Planning Board. The fee for this permit will be not less than $250 nor more than $1,000. If the violation cannot be granted under the Weld Shoreland Zoning Ordinance the violator may be told to remove the offending structure if it is found that less harm will be caused to the environment than leaving the structure.
    4. 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 Ordinance 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 Ordinance and recovering fines without court action. Such agreements shall not allow an illegal structure or use to continue unless there is clear and convincing evidence that the illegal structure or use was constructed or conducted as a direct result of erroneous advice given by an authorized municipal official and there is no evidence that the owner acted in bad faith, or 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.
    5. Fines
      • Any person, including but not limited to a landowner, a landowner’s agent or a contractor, who violates any provision or requirement of this Ordinance shall be penalized in accordance with Title 30-A, Maine Revised Statutes Annotated, Subsection 4452. Each day a violation is permitted to exist after notification shall constitute a separate offense. Fines shall be payable to the town.
        Current penalties include fines of not less than $100 nor more than $2500 per violation for each day that the violation continues.

Shoreland Zoning Ordinance
Amended March 2017