Rationale for Recommended Changes to Sections 601 to 603 of the Cumberland Zoning Ordinance
Our general strategy in revising the provisions of the Cumberland Zoning Ordinance related to the Code Enforcement officer and the Zoning Board of Appeals was to make as few changes as necessary for the provisions to be workable in the Town of Chebegue. Changes are shown in italics. In a few places that were particularly muddy, we clarified the language a bit, but there were no sections that we rewrote completely. Beyond this minimal editing, here is a brief summary of the rational for other changes.
Throughout
Changing references to the Town Council and Town Manager to Town Meeting, Board of Selectmen and Town Administrator: We recommend that the Selectmen rather than the Town Meeting set the various fees for construction permits. These are user fees and therefore somewhat like taxes, which might suggest Town Meeting approval, but we thought they were more of an administrative decision.
Sections 601: Code Enforcement Officer and 602: Permits and Fees
Notification of abutters: We recommend that the radius of the area within which residents must be notified of hearings on applications be increased from 200 and 300 to 500 feet. The reason for this is twofold. One is that in many areas of Chebeague the density of development is lower than is characteristic of the mainland so fewer neighbors are within the smaller radius. In the case of areas with many summer houses, the smaller radius may mean that in the winter no year-round residents would get written notice of a hearing in their area. Secondly, people on Chebeague expect to be notified and involved in issues that affect them, so we thought the notification area should be more generous. We also recommend that the letters of notice be sent “return receipt requested” to try to make sure that affected property owners have been reached.
Also in relation to notification of abutters, we would like to have some legal advice about the language in 603.3.2 “Failure of a property owner to receive notice by mail shall not invalidate actions by the Board. Property owners as listed on the assessor’s records shall be deemed to be the persons to whom such notice should be mailed.” Is this a provision of State Law that binds the Town? What would be the implications for the Town’s operations if it were taken out?
Posting notices in the Town Office: In the same sections of the law where notice to abutters is described, the Town is also required to publish notice “in a newspaper of general circulation in the Town”. The Forecaster can be used for this, but on Chebeague it may be equally useful to physically post a notice in the Town Office.
Section 603: Zoning Board of Appeals
Size of the Board: Cumberland has a ZBA made up of seven members. We thought five was sufficient for Chebeague. Cumberland also has a provision that if a member does not attend 75 percent of the meetings in a 12-month period they can be removed. We think that this would be an awkward process, so this provision was removed. Instead, on Chebeague we may have people who are willing to serve on this Board but who go away in the winter for varying amounts of time. So we thought that having two alternates would better insure that there is a quorum at every meeting.
We also recommend that the members of the Board be elected by the Town Meeting rather than appointed by the selectmen. This is a Board with significant powers. It seemed natural for citizens to choose the members. This open process may also tend to prevent the Board from becoming a small “in-group”.
Disability variance: In the state law on ZBAs there is a provision that allows a Board to grant variances for the construction of access ramps for disabled people. This is not in the Cumberland ordinance, but we recommend that it be added to ours. Chebeague has many houses built long before zoning and setbacks were adopted. It also has many elderly people who may need such accommodation at some point.
Criteria for the Board of Zoning Appeals to use in making decisions: In Maine, the ZBA (like the Planning Board) is a quasi-judicial body. It holds hearings, gathers evidence, makes decisions based on that evidence and explains its rationale to the applicant. Cumberland has criteria that the Board uses to decide whether a sufficient case has been made for a special exception. Section 603.2.3 lists 8 criteria. Section 603.2.7 list five more. The ones in .7 are more specific, detailed versions of several of the criteria in .3. We expect that they were adopted in 1986 when conflicts developed on the mainland between farmers and suburban homeowners. The more detailed criteria are “overkill” for Chebeague where fishing, animal husbandry and forestry are all still practiced. We recommend that the more detailed criteria be removed, leaving the more general ones covering the same ground to govern the ZBA’s decisions.
Code Enforcement and Zoning Board of Appeals
SECTION 600 - ADMINISTRATIVE PROVISIONS
Sec. 601 Code Enforcement Officer
It shall be the duty of the Code Enforcement Officer to enforce the provisions of this Ordinance. The Selectmen and Town Administrator shall assist the Code Enforcement Officer by reporting to him any new construction or use of land, and apparent violations of this Ordinance.
The Code Enforcement Officer shall keep a complete record of all essential transactions of the office, including application submitted, shoreland zoning permits granted or denied, variances granted or denied, revocation actions, revocation of shoreland zoning permits, appeals, court actions, violations investigated, violations found, and fees collected. On an biennial basis, a summary of this record shall be submitted to the Director of the Bureau of Land Quality control within the Department of Environmental Protection.
Sec. 602 Permits and Fees
602.1 Building Permit: No building or part thereof shall be erected, structurally altered, enlarged, or moved unless a building permit for such action has been issued by the Code Enforcement Officer.
.1 Application for a building permit shall be accompanied by a fee as established by order of the Board of Selectmen.
.2 Each application to the Code Enforcement Officer for a permit to erect a new building or structure or to enlarge or to move an existing one shall be accompanied by a site plan showing the measurements of the lot and of all buildings, yards, and parking spaces, existing and proposed. The intended use or uses of land and building shall be indicated clearly.
602.2 Use Permit: The fee for a use permit shall be established by order of the Board of Selectmen. It shall be paid by the applicant unless a fee for a building permit has previously been paid.
.1 No building or part thereof that has been erected, altered, enlarged or relocated, shall be occupied or used unless a use permit has been issued by the Code Enforcement Officer;
.2 A temporary use permit may be issued by the Code Enforcement Officer for a period of six months during the completion of work, provided that such temporary permits may require such conditions and safeguard as will protect the health, safety, and welfare of the occupants and the public;
.3 The establishment of an office or home occupation within a dwelling shall require a use permit.
602.3 Demolition Permits: The fee for a permit for the demolition of a building or structure shall be established by order of the Board of Selectmen. No permit shall be issued until notice of the application has been posted in the Town Office for at least ten (10) days.
Before a building can be demolished or removed, the owner or agent shall notify all utilities having service connections within the building such as water, electric, gas, sewer, and other connections.
Any other application for a building permit, and any application for a use permit, shall be accompanied by a description of the intended use or uses of the land and buildings and such further details as the Code Enforcement Officer may reasonably require for a clear understanding of the case.
602.4 Excavation of Land and Removal of Earth Products:
An application to the Board of Adjustment and Appeals for a permit to excavate land or remove earth products shall be accompanied by a fee as established by order of the Board of Selectmen. Outside consulting fees shall be charged in accordance with Section 608. Upon annual renewal of the application for the excavation of land and the removal of earth products, such application shall be accompanied by an application fee as established by order of the Board of Selectmen.
602.5 Shoreland Zoning Permits [the Committee plans to consider this section further when we get to the general issue of shoreland zoning.]
602.5.1 Shoreland Zoning Permits Required
.1 After the effective date of this Article no person shall engage in any activity or use of land or construct a building in a shoreland area district without first obtaining a shoreland zoning permit as required.
.2 Shoreland Zoning Permit Applications
.1 Every applicant for a permit shall submit a written application, including a scaled site plan, on a form provided by the municipality, to the Code Enforcement Officer or Town Planner as appropriate.
.2 All applications shall be signed by the owner or owners of the property or other person authorizing the work, certifying that the information in the application is complete and correct. 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.
.3 All applications shall be dated, and the code enforcement officer or planning board, as appropriate, shall note upon each application the date and time of its receipt.
.4 If the property is not served by a public sewer, a valid plumbing permit or a completed application for a plumbing permit, including the site evaluation approved by the local plumbing inspector, shall be submitted whenever the nature of the proposed structure would require the installation of s subsurface sewage disposal system.
.5 If the property appears to be in the Resource Protection/Floodplain (RP/FP) Overlay District, applications for uses which are specifically prohibited in the RP/FP overlay district but permitted in the adjacent shoreland area must include an approved Letter of Map Amendment as issued by the National Flood Insurance Program. The application then will be considered as one for the requested use and the CEO shall deem the property to be located in the adjacent shoreland district.
.6 A filing fee of as established by order of the Board of Selectmen must accompany all applications for Shoreland Zoning permits requiring Planning Board approval. Outside consulting fees shall be charged in accordance with Section 608. At the time of application, the applicant also may, at the discretion of the Town Planner, establish an escrow account. This escrow account shall be used to pay the cost of review of the application by outside consultants. Monies remaining in the escrow account at the time of the Planning Board's final decision on the application shall be returned to the applicant within thirty (30) days after the Planning Board's final decision; provided, however, that where the cost of outside consultants exceeds the amount of monies in the escrow account the applicant shall pay to the Town prior to the Planning Board's final decision the amount by which the actual cost of the outside consultants review exceeds the amount of monies in the escrow account.
.3 Procedure for Administering Shoreland Zoning Permit Applications
.1 Permits issued by the Code Enforcement Officer in accordance with Sec. 204.5. Within thirty-five (35) days of the date of receiving a written application, the code enforcement officer shall notify the applicant in writing either that the application is a complete application, or, if the application is incomplete, that specified additional material is needed to make the application complete. The Code Enforcement Officer, shall approve, approve with conditions, or deny all shoreland zoning permit application in writing within thirty-five (35) days of receiving a completed application unless the applicant and the code enforcement officer have agreed in writing to an enlargement of this time.
.2 Permits issued by the Planning Board in accordance with Sec. 204.5 - Within thirty-five (35) days of the date of filing a written application to the Town Planner, the Planning Board shall notify the applicant in writing either that the application is a complete application, or, if the application is incomplete, that specified additional material is needed to make the application complete.
The Planning Board, shall approve, approve with conditions, or deny all shoreland zoning permit applications in writing within thirty-five (35) days of receiving a completed application unless the applicant and the Planning Board have agreed in writing to an enlargement of this time.
A completed application must be filed no less than 14 days prior to the meeting at which it is to be considered. However, if the Planning Board has a waiting list of applications, a decision on the application shall occur within thirty-five (35) days after the first available date on the planning board's agenda following receipt of the completed application, or within thirty-five (35) days of the public hearing, unless the applicant and the Planning Board have agreed in writing to an enlargement of this time.
The Planning Board may require other information in addition to that required in the application form and may request an evaluation of specific aspects of the application from the Town staff or other outside consultants.