Town of Poland Maine - Chapter 3 Administrative

3-101 Short Title

This Chapter shall be known and may be cited as Administrative Procedures.

3-102 Administration

3-102.1 Administering Bodies and Agents

This Code shall be administered by the following.

A. Code Enforcement Officer

A Code Enforcement Officer shall be appointed or re-appointed annually by July 1st by the Municipal Officers.

2. Duties and Responsibilities

The Code Enforcement Officer shall have the following duties and responsibilities:

a. The Code Enforcement Officer shall acquire an intricate working knowledge of all Federal, State, and local Codes, ordinances, laws, by-laws, and charters pertinent to the Office of Code Enforcement;

b. The Code Enforcement Officer shall be capable of interpreting the aforementioned Codes, et al for the purpose of enforcing them in a fair and just manner, and for the purpose of explaining them correctly to the citizens of the Town of Poland and any person(s) or company these citizens may hire for the performance of any project that comes under the scrutiny or jurisdiction of the Code Enforcement Office;

c. The Code Enforcement Officer shall be prepared to recommend updates to the Codes and ordinances to keep them current to meet any Federal or State changes, and keep abreast of changes in the Town of Poland. This is to be accomplished by drafting the necessary terminology to update this Code for approval by legal counsel and adoption by the Municipality;

d. The Code Enforcement Officer shall coordinate all inspections, or delegate person(s) or departments to perform such inspection as they may be qualified to perform. This person is to disseminate information concerning the Codes and laws and to interpret their meanings so that an effective unified inspection team shall be realized. Inspections shall be conducted for: 1) fire safety, 2) internal plumbing, 3) building structural and mechanical, 4) electrical, 5) health, 6) subsurface wastewater systems, 7) environmental protection, 8) accessibility, and 9) for any other, compliance, safety or public welfare inspection necessary under this Code;

e. The Code Enforcement Officer or that person’s appointed, qualified designee shall investigate all complaints made by officials, agencies, and citizens residing in the Town of Poland, and to ascertain that compliance with the Codes, ordinances, et al prevails;

f. The Code Enforcement Officer shall secure compliance with the laws, ordinances, et al, whenever a violation of them has been determined by the Code Enforcement Officer, by the least amount of enforcement necessary to obtain the desired end results. This is to be accomplished by first giving verbal notification of the violation to the landowner and/or his tenant causing the violation if possible. This is to be followed by written notification documenting the violation, stating what corrective action is required, what penalties may be applied if compliance is not secured, and that the violator may appeal the Code Enforcement Officer’s decision. If compliance is still not secured then Citations may be issued in accordance to Chapter 4, Enforcement, and/or other legal action as prescribed in this Code, applicable ordinances and regulations of the Town of Poland or Statutes of the State of Maine, and again the right of the violator to appeal the decision.

g. The Code Enforcement Officer shall establish and maintain records and files of all permits issued, inspections made, violations discerned, any legal action and the corrective action taken, condemnations, and appeals heard on each parcel of land.

h. The Code Enforcement Officer shall keep the Town Manager and the Municipal Officers informed of the activities of the Code Enforcement Office on a monthly basis. Any violations requiring legal action to be taken that involves the use of the courts or legal counsel shall be brought before the Municipal Officers before taking any action. Any proceedings that need immediate attention because of safety hazards or irreversible harm to life or property will be done with an informal agreement with the Town Manager or two (2) Municipal Officers as soon as possible. The proceedings will then be brought to the Municipal Officers at the next available meeting.

i. The Code Enforcement Officer shall attend seminars, work shops, and courses of study to maintain that person’s certification as a Code Enforcement Officer and Local Plumbing Inspector, to issue Land Use Complaints in District Court, and other subjects of interest in the process of running the Office of Code Enforcement.

j. The Code Enforcement Officer shall assist citizens with the process of filing any application and to verify that this Code and ordinances are complied with.

k. The Code Enforcement Officer shall assist the Planning Board and Board of Appeals in the process of executing their duties, and other duties as assigned to that person by the Town Manager or the Municipal Officers.

l. The Code Enforcement Officer shall assist other local, state and federal agencies as they may pertain to the functions of Code enforcement and work with them in securing compliance with the Codes, ordinances, laws, by-laws, et al.”

m. Act upon permit applications that the Code Enforcement Officer is authorized to approve, refer permits requiring Planning Board approval to the Planning Board, and refer requests for variances and administrative appeals to the Board of Appeals.

The Planning Board shall be responsible for reviewing and acting upon applications for Shoreland Review approval, Site Plan Review approval, Subdivision approval and other approvals as may be required by other provisions of this Code.

(FPN: Amended 4-27-2002)

A Board of Appeals shall be created in accordance with the provisions of Title 30-A, M.R.S.A. Section 2691.

3-103.1 Permits Required

After the effective date of this Code, no person shall engage in any activity or use of land requiring a permit in the district in which such activity or use would occur without first obtaining a permit. Notwithstanding the issuance of a permit or permits, no person shall engage in any activity or use of land in violation of this Code or any other Ordinance of the Town of Poland.

3-103.2 Applications for Permits

Applications for permits shall be submitted in writing on forms provided for that purpose. The Code Enforcement Officer or Planning Board may require the submission of information which is necessary to determine conformance with the provisions of this Code that shall include but not be limited to the following:

A. All Building or Use Permits shall be submitted in writing to the Code Enforcement Officer on forms provided for that purpose;

B. Within seven (7) days of filing an application for a Building or Use Permit and the payment of the fee, as established in the Town of Poland Fee Schedule, the Code Enforcement Officer shall approve, deny or refer the application to the Planning Board. One copy of the Code Enforcement Officer’s decisions shall be filed in the Municipal Office;

C. No Building Permit for a building, structure or use on any lot shall be issued except to the owner of record thereof, or the owner’s authorized agent, until the proposed construction or alteration of a building or structure shall comply in all respects to this Code or with a decision rendered by the Board of Appeals or Planning Board. Any application for such a permit shall be accompanied by a Plan, accurately dimensioned, showing the actual shape and dimensions and setbacks of the lot to be built upon, the exact location of all existing buildings and new buildings to be constructed, together with the lines, within which all buildings and structures are to be constructed, the existing and intended use of each building or structure and such other information as may be necessary to provide for the execution and enforcement of this Code;

(FPN: Amended 4-26-2003)

D. No Building Permit shall be issued for any structure or use involving the construction, installation or alteration of plumbing facilities or a subsurface wastewater disposal system, unless a Plumbing Permit for such facilities has first been secured by the applicant or his authorized agent, according to the requirements of this Code;

E. Permits shall not be denied if the proposed use is found to be in conformance with the provisions of this Code;

F. Approvals and permits shall be valid for the following periods.

1. An applicant shall within twelve (12) months from the date of final action of an application requiring Planning Board approval apply to the Code Enforcement Officer for any and all permits.

(FPN: Amended 4-27-2002)

2. Building Permits issued by the Code Enforcement Officer shall expire if a substantial start to construction of the building or structure, or commencement of the use is not begun within six (6) months after the date on which the permit was issued, and if the work or change is not substantially completed within two (2) years of the date on which the permit was issued.

3. All other approvals and permits issued by the Planning Board or Code Enforcement Officer shall expire if a start to construction of the building or structure, or commencement of the use is not begun within one (1) year after the date on which the approval or permit was issued, and if the work or change is not substantially completed within two (2) years of the date on which the permit or approval was issued.

Non-residential projects may receive phasing approval from the Planning Board as part of an application’s review. The whole project may have as many as three (3) segments and start dates spread over a three (3) year period. Unless otherwise specified in the Planning Board’s approval, there shall be no more than six (6) month lull in construction from the substantial completion of one project and the start of the next project. Any project approval exceeding the time limits of the phasing approval shall become null and void for that part of the project that is not completed. Any escrow accounts required during the construction of the project shall be maintained for the entire duration of the project.

5. Extensions of approvals and/or permits

Extensions may be granted for approvals under the Planning Board’s jurisdiction or for permits under the Code Enforcement Offer’s jurisdiction for up to an additional twelve (12) months after a cursory review of the project(s). A written and signed request from the applicant and/or landowner for an extension must be received by the Planning Board or Code Enforcement Office prior to the expiration or nullification of the approvals and/or permits.

6. After the expiration of the time periods set forth above, permits or approvals shall lapse and become void.

(FPN: April 29, 2006)

G. In addition to the standards contained elsewhere in this Code, the Planning Board shall consider the following in the Shoreland Area as defined:

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 disposal of all wastewater;

4. Will not have an adverse impact on spawning grounds, fish, aquatic life, birds, or other wildlife habitat;

5. Will conserve shore cover and visual, as well as actual, points of access to inland waters;

6. Will protect archaeological and historic resources as designated in the Town of Poland Comprehensive Plan;

7. Will avoid problems associated with floodplain development and use.

3-103.3 Conditions of Approval

Approvals and permits may be made subject to reasonable conditions to insure conformity with the purposes and provisions of this Code, and the permittee shall comply with such conditions. If an application or permit is either denied or approved with conditions, the conditions as well as reasons 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 this Code, any other local ordinance or regulation or any State law which the Municipality is responsible for enforcing.

3-103.4 Burden of Proof

The burden of proof that a proposed land use activity is in conformity with the purposes and provisions of this Code shall be the responsibility of the applicant.

3-104.1 Establishment

A Board of Appeals is hereby created in accordance with the provisions of Title 30-A, M.R.S.A. Section 2691 and this Chapter.

3-104.2 Appointment, Composition, Powers and Duties

A. The Board of Appeals shall be appointed by the Municipal Officers and shall consist of five (5) members, all of whom shall be legal residents of the Town of Poland, serving staggered terms of at least three (3) and not more than five (5) years. The Board shall elect annually a chairman and secretary from its membership. The secretary, or the secretary's designee, shall keep the minutes of the proceedings of the Board of Appeals, which shall show the vote of each member upon each question. The Board of Appeals may employ a paid recording secretary. All minutes of the Board shall be public-record. Three (3) members of the Board shall constitute a quorum for conducting a meeting and taking action.

(FPN: Amended 4-26-2003)

1. A Municipal Officer or spouse of a Municipal Officer may not serve as a member of the Board of Appeals.

2. A Planning Board member may not serve as member of the Board of Appeals.

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, before the member’s term expires, for cause by the Municipal Officers upon written charges and after Public Hearing.

B. Powers and Duties

For all actions taken by the Board of Appeals, a concurring vote of at least three (3) members of the board is required to approve a motion.

FPN: Amended 4-26-2003)

1. Administrative Appeals

To hear and decide where it is alleged that there is an error in any order, requirement, decision, decision to initiate enforcement proceedings, or other determination made by, or failure to act by, the Code Enforcement Officer or Planning Board in the administration of this Code, provided the Board of Appeals shall have no jurisdiction to review the merits of an approval or denial of a Subdivision or Site Plan Review application, nor to consider the imposition of conditions of approval or the failure to impose one or more conditions by the Planning Board. When errors of administrative procedures or interpretation are found, the case shall be remanded to the Code Enforcement Officer or Planning Board for correction. By a concurring vote of at least three (3) members of the Board, an action of the Code Enforcement Officer may be modified or reversed. Such decision shall be binding upon the Code Enforcement Officer with respect to the enforcement of violations of this ordinance.

(FPN: Amended 4-28-2001)

(FPN: Amended 4-27-2002)

To hear and decide upon appeal in specific cases where a relaxation of the terms of this Code would not be contrary to the public interest and a literal enforcement of this Code would result in undue hardship.

a. Dimensional variances may be granted only from dimensional requirements including but not limited to frontage (including shore frontage), lot area, lot width, height, percent of lot coverage, impervious surfaces and setback requirements.

b. Variances shall not be granted for establishment of any prohibited use.

c. The Board shall not grant a variance in the Shoreland Area unless it finds that:

[1] The proposed structure or use would meet the performance standards of this Code except for the specific provision which has created the nonconformity and from which relief is sought; and

[2] The applicant has proved to the Board that strict application of the terms of this Code would result in undue hardship.

To prove "undue hardship" the applicant must prove all of the following:

[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.

d. The Board shall not grant a variance in locations outside the Shoreland Area and one hundred (100) year floodplain unless it finds that:

[1] The proposed structure or use would meet the performance standards of this Code except for the specific provision which has created the nonconformity and from which relief is sought; and

[2] The strict application of this Code to the petitioner and the petitioner's property would cause a practical difficulty and when the following conditions exist:

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

[b] That the granting of the variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties;

[c] That the practical difficulty is not the result of action taken by the petitioner or a prior owner;

[d] No other feasible alternative to a variance is available to the petitioner;

[e] That the granting of the variance will not unreasonably adversely effect the natural environment; and

[f] That the structure or land area for which a variance is sought is not located in whole or in part within the Shoreland Area and/or one hundred (100) year flood plain.

e. The Board of Appeals may grant a variance, without proof of an undue hardship or practical difficulty, to an owner of a dwelling for the purpose of making that dwelling accessible to a person with a disability who is living in the dwelling 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 variance including without limitation the variance to the duration of the disability or to the time that the person with the disability lives in or regularly uses the dwelling. The term "structures necessary for access to or egress from the property" shall include railing, wall, ramp, lift, or roof systems necessary for the safety or effectiveness of the structure.

f. 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 Code to the greatest extent possible, and in doing so may impose such conditions to a variance as it deems necessary. The party receiving the variance and all subsequent owners or occupants shall comply with any conditions imposed.

g. For any variance granted, a Certificate indicating the name of the current property owner, identifying the property by reference to the last recorded deed 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. The applicant shall record this Certificate in the Androscoggin County Registry of Deeds within ninety (90) days of the date of final written approval. The variance is not valid until recorded and no permit shall be issued by the Code Enforcement Officer until proof of recording is provided.

h. For any variance granted by the Board of Appeals in the Shoreland Area it shall be submitted within fourteen (14) days of the final written decision to the Department of Environmental Protection by the Board of Appeals.

i. A variance under the provisions of this Chapter secured by vote of the Board of Appeals shall expire if the work or change involved is not commenced within one (1) year of the date on which the variance is granted, and if work or change is not substantially completed within two (2) years.

j. Prior to the start of any construction for which a variance has been granted a permit is required from the Code Enforcement Officer.

3. Variance Appeals in Floodplains

In addition to the provisions of Section 3-104.2 above, variance appeals from the provisions of Chapter 7, Floodplain Management Standards, shall comply with the following.

a. Variances shall not be granted within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result.

b. Variances shall be granted only upon:

[1] a showing of good and sufficient cause; and

[2] a determination that should a flood comparable to the base flood occur, the granting of a variance will not result in increased flood heights, additional threats to public safety, public expense, or create nuisances, cause fraud or victimization of the public or conflict with this Code, existing local laws, ordinances or regulations; and

[3] a showing that the issuance of the variance will not conflict with this Code or other Federal, State, or local laws, ordinances or regulations; and

[4] a determination that failure to grant the variance would result in undue hardship as defined in Section 3-104.2.B.2.c.[2].

c. Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief.

d. Variances may be issued for new construction, substantial improvements, or other development for the conduct of a functionally dependent use provided that:

[1] other criteria of this Section and Chapter 7-107.11. are met; and

[2] the structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

e. Variances may be issued for the repair, reconstruction, rehabilitation, or restoration of Historic Structures upon the determination that.

[1] the development meets the criteria of Section 3-104.2.B.3, paragraphs a. through d., above; and

[2] the proposed repair, reconstruction, rehabilitation, or restoration will not preclude the structure’s continued designation as a Historic Structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

f. Any applicant who meets the criteria of Section 3-104.2.B, paragraphs a. through e., shall be notified by the Board of Appeals in writing over the signature of the Chairman of the Board of Appeals that:

[1] the issuance of a variance to construct a structure below the base flood level will result in greatly increased premium rates for flood insurance up to amounts as high as $25 per $100 of insurance coverage;

[2] such construction below the base flood level increases risks to life and property; and

[3] the applicant agrees in writing that the applicant is fully aware of all the risks inherent in the use of land subject to flooding, assumes those risks and agrees to indemnify and defend the Municipality against any claims filed against it that are related to the applicant's decision to use land located in a floodplain and that the applicant individually releases the Municipality from any claims the applicant may have against the Municipality that are related to the use of land located in a floodplain.

g. The Board of Appeals shall submit to the Code Enforcement Officer a report of all variance actions, including justification for the granting of the variance and an authorization for the Code Enforcement Officer to issue a Flood Hazard Development Permit, which includes any conditions to be attached to said permit.

3-104.3 Appeal Procedure

A. In all cases a person aggrieved by a decision of the Code Enforcement Officer or an appealable decision of the Planning Board shall commence an appeal within forty-five (45) days of the decision being appealed. The appeal shall be filed with the Board of Appeals on forms approved for that purpose, and the aggrieved person shall specifically set forth on the form the grounds for the appeal.

B. Following the filing of an appeal, and before taking action on the appeal, the Board of Appeals shall hold a Public Hearing on the appeal within thirty (30) days of receipt of the appeal. The Board of Appeals shall notify the Code Enforcement Officer and Planning Board at least ten (10) days in advance of the time and place of the hearing, and shall publish notice of the hearing at least five (5) days in advance of the hearing in a newspaper of general circulation in the area.

C. The Board of Appeals shall notify by Certified Mail the appellant and the owners of property within five hundred (500) feet of the property of which the appeal is taken, at least ten (10) days in advance of the hearing. For the purpose of this Section, abutting property owners shall include properties directly across a street from the property for which the appeal is made.

1. The owners of property shall be considered to be those against whom taxes are assessed. Failure of any property owner to receive notice of the Public Hearing shall not necessitate another hearing or invalidate any action by the Board of Appeals.

(FPN: Amended 4-27-2002)

2. It is the property owners' responsibility to keep the town Tax Assessor's Office informed of their current mailing address for the purpose of administering any portion of this Code. Failure on the part of the landowner to inform the town of such shall not delay or vacate any board or town officer action or decision.

(FPN: Added 4-27-2002)

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

E. The Code Enforcement Officer or designated assistant shall attend all hearings and may present to the Board of Appeals all Plans, Photographs, or other material deemed appropriate for an understanding of the appeal.

F. Within twenty (20) days of the Public Hearing, the Board of Appeals shall reach a decision on an appeal and shall inform, in writing, the appellant, the Code Enforcement Officer, the Planning Board and the Municipal Officers of it decision and its reasons therefore.

3-104.4 Reconsideration

The Board of Appeals may reconsider any decision reached within thirty (30) days of its prior decision. The Board may conduct additional hearings and receive additional evidence and testimony.

3-104.5 Appeal to Superior Court

A. Board of Appeal Decisions

An appeal may be taken by any aggrieved party to Superior Court in accordance with State laws within forty-five (45) days from the date of any decision of the Board of Appeals.

B. Planning Board Decisions

An appeal shall be taken by an aggrieved party from a decision by the Planning Board under Site Plan Review, Subdivision Standards or Street Construction Standards to Superior Court within forty-five (45) days of the Planning Board’s decision in accordance with Rule 80-B of the Maine Rules of Civil Procedure.

All applications for a permit, appeal, variance, Site Plan Review, Subdivision approval or other review required by this Code shall be accompanied by a fee as established by the Municipal Officers in the Town of Poland Fee Schedule. The Municipal Officers shall have the authority from time to time to revise the fee schedule after a Public Hearing.

(End of Chapter 3)