Town of Gray, ME - Article VI

SECTION 402.31 ENFORCEMENT:

A. Enforcement Officer: It shall be the duty of the Code Enforcement Officer of the Town of Gray to enforce the provision of this Ordinance. If the code Enforcement Officer shall find that any of the provisions of this Ordinance are being violated, he/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. He/she shall order discontinuance of illegal use of land, building, or structures, removal of illegal building or structures or of additions, alternations, or structural changes thereto; discontinuance of any illegal work being done; or shall take any other action authorized by this Ordinance to insure compliance with or to prevent violation of its provisions. The Code Enforcement Officer may employ such independent, recognized consultant necessary, at the expense of the applicant, to assure compliance with performance standards of this code and abatement of nuisances.

B. Legal Action and Violation: When any violation of any provision of this Ordinance shall be found to exist, the Code Enforcement Officer shall notify the Municipal officers who shall then initiate any and all actions to be brought in the name of the Town.

C. Fines: Any person, firm or corporation being the owner of or having contact or use of any building or premises who violates any of the provisions hereof, shall be guilty of a misdemeanor and on conviction thereof shall be fined not less than twenty-five (25) dollars nor more than one-hundred (100) dollars. Each day such a violation is permitted to exist after notification thereof shall constitute a separate offense. All fine collected hereunder shall insure to the Town of Gray.

D. Building Permits: No building or other structure shall be erected, moved, added to or structurally altered without a permit thereof issued except in conformity with the provisions of this Ordinance, except after written order from the Board of Appeals. A Building Permit secured under the provisions of this Ordinance shall expire if the work or change is not commenced within six (6) months of the date on which the permit is granted, and if the work or change is not substantially completed within one (1) year of the date on which the permit is granted. All building permits heretofore issued shall be subject to the provisions of this paragraph.

E. Application for Building Permit: All applications for building permits shall be accompanied by plans drawn to scale, showing the actual dimensions and shape of the lot to be built upon; the exact sizes and locations and dimensions of the proposed building or alteration. The application shall include such other information as lawfully may be required by the Code Enforcement Officer to determine conformance with and provide for the enforcement of this Ordinance.

F. Certificate of Occupancy:

1. New Buildings: No building hereafter erected shall be used or occupied in whole or in part until the certificate of use and occupancy shall have been issued by the Code Enforcement Officer.

2. Building hereafter altered: No building hereafter enlarged, extended or altered to change from one use group to another, in whole or in part, and no building hereafter altered for which a certificate of use and occupancy has not been heretofore issued, shall be occupied or used until the certificate shall have been issued by the building inspector, certifying that the work has been completed in accordance with the provisions of the approved permit; except that any use or occupancy, which was not discontinued during the work of alteration, shall be discontinued

within thirty (30) days after the completion of the alteration unless the required certificate is secured from the Code Enforcement Officer.

3. Existing Buildings: Upon written request from the owner of an existing building, the Code Enforcement Officer shall issue a certificate of use and occupancy provided there are no violations of law or orders of the building officials pending, and it is established after inspection and investigation that the alleged use of the building has heretofore existed. Nothing in the Zoning Ordinance shall require the removal, alteration or abandonment of, or prevent the continuance of the use and occupancy of a lawfully existing building, unless such use is deemed to endanger public safety and welfare.

4. Changes in Use and Occupancy: After a change of use has been made in a building, the reestablishment of a prior use that would not have been legal in a new building of the same type of construction is prohibited unless all the applicable provisions of the Basic Code are complied with. A change from one prohibited use, for which a permit has been granted, to another prohibited use shall be deemed a violation of the Zoning Ordinance

G. Plumbing Permit: Must be obtained prior to issuance of Building permit. The State of Maine Plumbing Code standards will be used.

SECTION 402.32 BOARD OF APPEAL:

A. Appointment and Composition:

1. The Zoning Board of Appeals shall be appointed by the Municipal Officers of the Town of Gray, and shall consist of five (5) members and two (2) associates, all of whom shall be legal residents of the Town of Gray. Terms of members shall be for three (3) years except that initial appointments shall be such that the terms of office of no more than two (2) members shall expire in any single year. The board shall elect annually a chair and vice-chair from its membership. A recorder shall keep the minutes of the proceedings of the Board of Appeals, which shall show the vote of each member upon each question. All minutes of the Board shall be public record. A quorum shall consist of three (3) members.

2. Municipal Officers and/or their spouses may not serve as members or associate members of the Board.

3. Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting thereon shall be decided by a majority vote of the members, except the member who is being challenged.

4. A member of the Board may be dismissed for cause by the Municipal Officers upon written charges and after public hearing.

B. Powers and Duties:

Appeals shall lie from the decision of the Code Enforcement Officer to the Board of Appeals and from the Board of Appeals to the Superior Court according to the provision of Maine Revised Statues. The Board of Appeals shall have the following powers and duties:

1. Administrative Appeals: To hear and decide where it is alleged there is an error in any order, required, decision, or determination by the Code Enforcement Officer in the enforcement of this Ordinance. The actions of the Code Enforcement Officer may be modified or reversed by the Board of Appeals, by concurring vote of at least three (3) members of the Board. Decisions of the Code Enforcement Officer may be reversed only upon a finding that the decision is clearly contrary to specific provisions of this Ordinance.

2. Variance Appeals: To hear and decide, upon appeal, in specific cases where a relaxation of the terms of this Ordinance would not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of this Ordinance would result in unnecessary or undue hardship.

Except as provided in subsection 2-A. a variance may be granted by the Board only where strict application of the Ordinance, or a provision thereof, to the petitioner and his/her property would cause undue hardship. The words “undue hardship” mean:

a. That the land in question cannot yield a reasonable return unless a variance is granted;

b. That the need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;

c. That the granting of a variance will not alter the essential character of the locality; and

d. That the hardship is not the result of action taken by the applicant or a prior owner.

Establishment or expansion of a use or structure otherwise prohibited shall not be allowed by variance, not shall a variance be granted because of the presence of nonconformities in the Zoning District or uses in adjoining Zoning Districts. The Board of Appeals shall grant a variance only by concurring vote of at least three (3) members and in so doing may prescribe conditions and safeguards as are appropriate under this Ordinance.

2A. Disability Variance: The Board may grant a variance to a property owner for the purpose of making that property accessible to a person with a disability who is living on the property. 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 property by the person with the disability. The Board may impose conditions on the variance including limiting the variance to the duration of the disability or to the time that the person with the disability lives on the property. For the purposes of this subsection, a disability has the same meaning as a physical or mental handicap under Title 5, M.R.S.A. Section 4553.

3. Pursuant to 30 M.R.S.A. Section 2411, the Board of Appeals may also hear and decide miscellaneous appeals as otherwise provided for in this ordinance provided the applicant demonstrates to the Boards satisfaction each of the following standards:

a. The reduction will not unreasonably interfere by reason of proximity of adjacent structures with access for light and air to abutting properties not generate any additional risk of fire, noise, odor or glare than would otherwise be allowed; written comment shall first be obtained from the Fire Department regarding the fire risk issue;

b. The reduction shall be for residential uses only

c. The reduction shall be limited to lots of record as of January 1, 1988;

d. The reductions shall not result in the creation of additional dwelling units; and

e. Any construction allowed by such reduction shall protect the privacy of abutting property owners.

C. Appeal Procedure:

1. In all cases, persons aggrieved by decision of the Code Enforcement Officer shall commence their appeal within thirty (30) days after a decision is made by the Code Enforcement Officer. The appeal shall be filed with the Board of Appeals on forms approved by the Board and aggrieved person shall specifically set forth on the form the grounds for the appeal

2. In appeals involving variances, the applicant shall include as part of the appeal application, information demonstrating that the criteria listed in Section 402.32.B.2 applicants situation.

3. The fee to cover the administrative costs of an appeal shall be set by the council annually.

4. Following the filing of an appeal, and before taking action on any appeal, the Board of Appeals shall hold a public hearing on the appeal within thirty (30) days. The Board of Appeals shall notify the Code Enforcement Officer and the Planning Board, at least twenty (20) days in advance, of the time and place of the hearing, and shall publish notice of the hearing at least ten (10) days in advance in a newspaper of general circulation in the area.

5. In the case of administrative or variance appeals, the Board of Appeals shall notify by mail the appellant and only the owners of property abutting that property for which an appeal is taken at least ten (10) days in advance of the hearing, of the nature of the appeal and of the time and place of the public hearing thereon. For the purpose of this section, abutting properties shall include properties directly across a street.

6. 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 not invalidate any action by the Board of Appeals.

7. At any hearing, a party may be represented by agent or attorney. Hearing shall not be continued to other times except for good cause.

8. The Code Enforcement Officer or his/her designed assistant shall attend all hearings and may present to the Board of Appeals all plans, photographs, or other material he or she deems appropriate for an understanding of the appeal.

9. The Board may receive any oral documentary evidence by shall provide as a matter of policy for the exclusion of irrelevant, immaterial or unduly repetitious evidence. All parties shall have the right to present their case of defense by oral or documentary evidence, to submit rebuttal evidence and to conduct cross-examination as may be required for a full and true disclosure of the fact.

10. The transcript of testimony, if any, and exhibits, together with all papers, and requests filed in the proceedings, shall constitute the record. All decisions shall become a part of the record and shall include a statement of finds and conclusions, as well as the reasons or basis therefore, upon all the material issues of fact, law or discretion presented and the appropriate order, relief or denial thereof. Notice of any decision shall be mailed or had delivered to the petitioner, his/her representative or agent, the Planning Board, its agent or office and the Municipal Officer within seven (7) days of their decision.

11. In reviewing appeals involving variances the Board of Appeals shall follow the criteria outlined under “Review, Variance” of this section before reaching a decision . In granting any variance,

the board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Ordinance.

12. Upon notification of the granting of an appeal by the Board of Appeals, the Code Enforcement Officer may issue a Building Permit in accordance with the conditions of the approval.

13. A right of appeal under the provisions of this Ordinance secured by vote of the Board of Appeals shall expire if the work or change involved is not commenced within six (6) months of the date of which the appeal is granted and if the work or change is not substantially completed within one (1) year of the date on which such appeal is granted.

14. If the Board of Appeals shall deny an appeal, a second appeal of a similar nature shall not be brought before the Board within one (1) year from the date of the denial by the Board of the first appeal, unless in the opinion of a majority of the Board, substantial new evidence shall be put forward or unless the Board finds, in its sole and exclusive judgment, that an error or mistake of law of misunderstanding of fact shall have been made.

15. Any party may take an appeal within forty five (45) days of the vote on the original decision, to Superior Court from any order, relief or denial in accordance with Maine Rules of Civil Procedure, Article 80B. This time period may be extended by the court upon motion for good cause shown. The hearing before the Superior Court must be without a jury.

16. The Board of Appeals may reconsider any decision reached under this section within thirty (30) days of its prior decision. A vote to reconsider and the action taken on that reconsideration must occur and be completed with thirty (30) days of its prior decision. A vote to reconsider and the action taken on that reconsideration must occur and be completed with thirty (30) days of the date of the vote on the original decision. The Board may conduct additional hearings and receive additional evidence and testimony as provided in this subsection.

C. Review Variance: In hearing variance appeals under this section, the Board of Appeals shall determine that the applicant has demonstrated that all of the criteria in Section 402.32.B.2., apply to this situation. Failure to comply with any of these criteria shall constitute grounds for denying application, etc.

1. What effect will be proposed variance have on the prevailing character of the area?

2. Does the proposed variance require special screening or fencing to separate or protect the property of abutting owners?

3. Will the proposed variance create drainage, erosion or flooding problems?

4. Will the proposed variance increase water pollution?

5. Will the proposed variance generate vehicular traffic, access circulation or parking conditions which create hazardous situations?

6. Will granting of the variance violate any of the performance standards of this Ordinance?

7. Will the proposed variance create to any degree nuisances to abutting property owners.

8. Is the variance request the least modification of the Zoning Regulations necessary to afford relief?

9. In granting any variance, the Board may attach such reasonable conditions and safeguards as it may deem necessary to implement the purposes of this Ordinance.

SECTION 402.33 SITE PLAN REVIEW CRITERIA:

A. Powers and Duties:

The Planning Board shall hear and approve, approve with modification or conditions, or disapprove all applications requiring site plan review. No site plan permit shall be authorized unless specific provision for such use is made in this Ordinance.

B. Application Procedure:

1. A person informed by the Code Enforcement Officer that he requires a Site Plan Use Permit shall file an application for the permit with the Planning Board on forms provided for the purpose.

2. Following the filing of an application, and before taking action on any application, the Planning Board shall, except under unusual circumstances, hold a public hearing on the application within thirty (30) days. Notice of the hearing shall be published at least seven (7) days in advance in a newspaper of general circulation in the area.

3. The board shall notify by mail the applicant and all abutters of the property involved at least ten (10) days in advance of the hearing, of the nature of the application and of the time and place of the public hearing.

4. 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.

5. At any hearing, a party may be represented by agent or attorney. Hearings shall not be continued to other times except for good cause.

6. The Code Enforcement Officer and/or Town Planner or their designated assistants shall attend all hearings and may present to the Planning Board all plans, photographs, or other material he or she deems appropriate for an understanding of the application.

7. The applicants 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 of the Chair.

8. Within twenty (20) days of the public hearing, the Planning Board shall reach a decision on a Site Plan and shall inform, in writing, the applicant, the Code Enforcement Officer and Municipal Officers of its decision and its reason therefore.

9. In reviewing any uses requiring a site plan a quorum of the Planning Board shall consist of three (3) members. The Planning Board shall approve a Site Plan only by a concurring vote of at least three (3) members and in so doing, may prescribe conditions and safeguards as are appropriate under this Ordinance. The Planning Board shall sign and date final site plans that have been approved. Only signed site plans shall be considered official copies to be used for construction purposes.

10. Upon notification of the decision of the Planning Board the Code Enforcement Officer as instructed, may issue or issue with conditions prescribed by the Planning Board, or deny a Building Permit.

11. A Site Plan Permit secured under the provision of this Ordinance by vote of the Planning Board shall expire if the work or change involved is not commenced within one (1) year of the date on which the Site Plan is authorized, and if the work or change is not substantially completed within two (2) years.

12. Where approval of the Zoning Board of Appeals is necessary, such approval shall be obtained prior to the Planning Boards consideration of the application for site plan approval.

13. The impact of the proposed use on the Towns parks and recreational facilities has been reviewed by the Parks and Recreation staff or the Conservation Commission.

14. The application shall be accompanied by a location map drawn at a scale of not more than four hundred (400) feet to the inch, showing the relation of the proposed development to the adjacent properties and to the general surrounding area, and shall include the name of the development, scale (of not more than 20 feet to the inch), meridian arrow, date of plan, legend and signature block.

C. Factors Applicable to Site Plan:

The planning Board shall have the power and duty to approve, deny or approve with conditions, uses only as expressly provided in the applicable zoning districts. The applicant shall have the burden of proving that his application is in compliance with the requirements of this Ordinance. After the submission of a complete application, the Planning Board shall approve a Site Plan application or approve it with conditions only if it makes a positive finding based on the information presented that the proposed use, with any conditions attached, meets the following standards:

1. The proposed use will not create hazards to vehicular or pedestrian traffic on the roads and sidewalks serving the proposed use as determined by the size and condition of such roads and sidewalks, lighting, drainage, intensity of use by both pedestrians and vehicles on such roads;

2. The proposed use will not cause water pollution, sedimentation, erosion, contaminate any water supply nor reduce the capacity of the land to hold water so that a dangerous or unhealthy condition results;

3. The proposed use will not create unhealthful conditions because of smoke, dust, or other airborne contaminants;

4. The proposed use will be compatible with both the existing uses that are adjacent to or neighboring the proposed location, as measured in term of its physical size, intensity of use, visual impact, and proximity to other structures; and the scale and bulk of any new structures for the proposed use shall be compatible with structures existing on adjacent or neighboring properties.

5. The proposed use will not create nuisances to neighboring properties because of odors, fumes, glare, hours of operation, noise, vibration or fire hazard or unreasonably restrict access of light and air to neighboring properties;

6. The proposed location for the use has no peculiar physical characteristics due to its size, shape, topography, or soils which will create or aggravate adverse environmental impact on surrounding properties as measured by the other applicable terms of this Ordinance.;

7. The specific, proposed use has no unusual characteristics atypical of the generic use which will unreasonably depreciate the economic value of the existing uses on surrounding properties;

8. The proposed waste disposal systems are adequate for all solid and liquid wastes generated by the use;

9. The impact of the proposed use will not negatively impact local public or private drinking water supply and delivery. A hydrogeologic Study may be required.

10. The proposed use can be adequately served by local fire protection, rescue and police services, provided, however, fire hydrants and/or related water retention facilities for fire safety protection shall not be required.

D. Conditions Attached to Site Plans:

1. Upon consideration of the factors listed above, the Planning Board may attach such conditions, in addition to those required elsewhere in this Ordinance, that it finds necessary to further the purposes of this Ordinance. Violation of any of these conditions shall be a violation of this Ordinance. Such conditions may include, but are not limited to, specifications for: type of vegetation, increased setbacks and yards, specified sewage disposal and water supply facilities, landscaping and planting screens, period of operation, operational controls, professional inspection and maintenance, sureties, deed restrictions, restrictive covenants, locations of parking and signs, type of construction, or any other conditions necessary to fulfill the purposes of this Ordinance.

2. In order to secure information upon which to base its determination, the Planning Board may require the applicant to furnish, in addition to the information required for a Site Plan Review Permit, the following information:

a. A plan for the area showing contours at intervals to be determined by the Planning board and referred to mean sea level, high water elevation, groundwater conditions, bedrock, slope and vegetative cover.

b. A soils report identifying the soils boundaries and names in the proposed development with the soils information superimposed upon the plot plan in accord with the USDA Soil Conservation Service National Cooperative Soil Clarification.

c. Location of existing and proposed buildings, parking areas, traffic access, driveways, walkways, open spaces, and landscaping.

d. Plans of buildings, sewage, disposal facilities, and water supply systems.

The Planning Board, by concurring vote of at least three (3) members shall have the power to treat as a site plan use under this Section 402.33 a use which is not mentioned in this ordinance (either as a Permitted or Site Plan Use) provided that such use is similar to and no more objectionable than those listed as site plan uses in the district in which said proposed use is requested to be located and provided that such use is not similar to a site plan use listed in a less restricted district. After a determination to treat such similar use as a site plan use, the Planning Board shall process the application for the same in accordance with the provisions of this Section. Professional offices, with the exception of furniture strippers; construction services, retail trade, hotels and motels, municipal uses and buildings and churches shall require only an initial site plan use review and approval by the Planning Board even though the specific tenant is not known, provided that the use is not an expansion of the physical plant and provided that any change in occupancy does not in the opinion of the CEO and Town Planner, implicate a change in one or more of the site plan use approval standards contained in Section 402.33.C., or any other conditions previously set by the Planning Board.

F. Appeals of Site Plan Reviews:

Decisions by the Planning Board under Site Plan provisions of the Gray Zoning Ordinance shall be appealed to the Superior Court in accordance with Rule 80B of the Maine Rules of Civil Procedure.

G. Outside Consulting Fees:

Notwithstanding any other Ordinance provision to the contrary, and in addition to such fees as are otherwise specified by law, the Planning Board shall assess a fee to the applicant to cover its costs for outside engineering, planning legal and similar professional consulting services associated with the review of an application for site plan approval. Such fees shall be subject to limitations and shall be administered as described in Section 402.15.4 of the Zoning Ordinance.

SECTION 402.34 VALIDITY AND SEVERABILITY:

Should any section or provision of this Ordinance be declared by the courts to be invalid such decision shall not invalidate any other section or provisions of this Ordinance.

SECTION 402.35 CONFLICT WITH OTHER ORDINANCES:

This Ordinance shall not repeal, annul, or in any way impair or remove the necessity of compliance with any other rules, regulation, by law, permit or provision of law. Where this Ordinance imposes a greater restriction upon the use of land, buildings, or structures the provision of this Ordinance shall control. In order to provide for the efficient management of its duties and the fair hearing of items coming before it, the Planning Board may adopt and amend written rules governing the conduct of its meetings, provided such rules shall not conflict with this Ordinance or the provisions of any other Ordinance or charter requirement. Such rules may include a provision that the Town Planner, in conjunction with the Planning Board Chair, may refuse to schedule an item for the Planning Board agenda unless and until the application in question is complete, including all Town staff reports.

The Planning Board has the right to postpone a decision on an application to the Board if a significant amendment or additional information is proposed after the initial completed submission. The Zoning Ordinance of the Town of Gray originally adopted March 1, 1958, and as subsequently amended, is hereby repealed as of the effective date of this Ordinance. The Town of Gray Shoreland Zoning Ordinance shall remain unaffected by the adoption of the Ordinance.

SECTION 402.36 AMENDMENTS TO THE ZONING ORDINANCE AND MAP:

All amendments to the Town of Gray Zoning Ordinance and Map must be in conformance with the Comprehensive Plan. Amendments to the Ordinance must be reviewed by the Ordinance Review

Committee before adoption. Amendments which affect the Aquifer Overlay Zone and/or the Wellhead Protection Zone must also be reviewed by the Gray Water District.