12 §685-B. Development review and approval - Maine Statutes

Title 12: CONSERVATION

Part 2: FORESTS, PARKS, LAKES AND RIVERS

Chapter 206-A: USE REGULATION

Subchapter 2: MAINE LAND USE REGULATION COMMISSION

§685-B. Development review and approval

1. Review and approval required. Except as provided in this section or by commission rule:

A. A structure or part of a structure may not be erected, changed, converted or wholly or partly altered or enlarged in its use or structural form without a permit issued by the commission. Normal maintenance or repair may be made to a structure or part of a structure without a permit issued by the commission in locations other than areas of special flood hazard as defined in the commission's rules; [2009, c. 111, §2 (AMD).]

B. A person may not commence development of or construction on any lot, parcel or dwelling unit within any subdivision or sell or offer for sale any interest in any lot, parcel or dwelling unit within any subdivision without a permit issued by the commission; or [1999, c. 333, §12 (RPR).]

C. A person may not commence any construction or operation of any development without a permit issued by the commission. [1999, c. 333, §12 (RPR).]

[ 2009, c. 111, §2 (AMD) .]

1-A. Exceptions. Except as provided in this section or by commission rule:

A. A permit is not required for the repair and maintenance of an existing road culvert or for the replacement of an existing road culvert, as long as the replacement culvert is:

(1) No more than one standard culvert size wider in diameter than the culvert being replaced;

(2) No more than 25% longer than the culvert being replaced; and

(3) No longer than 75 feet.

Ancillary culverting activities, including excavation and filling, are included in this exemption. A person repairing, replacing or maintaining an existing culvert under this paragraph shall ensure that erosion control measures are taken to prevent sedimentation of the water and that the crossing does not block fish passage in the water course; [2001, c. 402, §4 (AMD).]

B. A permit is not required for those aspects of a project approved by the Department of Environmental Protection under Title 38 if the commission determines that the project is an allowed use within the subdistrict or subdistricts for which it is proposed. Notice of the intent to develop and a map indicating the location of the proposed development must be filed with the commission prior to or concurrently with submission of a development application to the Department of Environmental Protection; [2009, c. 270, Pt. D, §1 (AMD).]

C. A permit is not required for a campsite in a management district; [2009, c. 270, Pt. D, §2 (AMD).]

D. A permit is not required for an offshore wind energy demonstration project approved by the Department of Environmental Protection pursuant to Title 38, section 480-HH. Notice of the intent to develop and a map indicating the location of the proposed development must be filed with the commission prior to or concurrently with submission of an application to the Department of Environmental Protection pursuant to Title 38, section 480-HH; and [2009, c. 270, Pt. D, §3 (NEW).]

E. A permit or other approval by the commission is not required for a hydropower project that uses tidal or wave action as a source of electrical or mechanical power or is located partly within an organized municipality and partly within an unorganized territory. [2009, c. 615, Pt. F, §1 (AMD).]

[ 2009, c. 615, Pt. F, §1 (AMD) .]

1-B. Delegation to staff. The commission may establish standards by which authority may be delegated to its staff, to approve with reasonable conditions or deny applications submitted. Any person aggrieved by a decision of the staff has the right to a review of that decision by the commission. A request for such a review must be made within 30 days of the staff decision.

[ 1999, c. 333, §13 (NEW) .]

2. Application for approval. The application forms for approval, as provided by the commission, must be completed and signed by the applicant and must be accompanied by the following:

A. A plan of the proposed structure, subdivision or development showing the intended use of the real estate, the proposed change, the details of the project and such other information as may be required by the commission to determine conformance with applicable land use standards; [1989, c. 681, §1 (AMD).]

B. The fee prescribed by the commission rules, that fee to be a minimum of $50 but no greater than 1/4 of 1% of the total development costs. The fees apply to all amendments except for minor changes to building permits. In addition to the fee paid in accordance with this paragraph, the director of the Maine Land Use Regulation Commission may assess a processing fee on applications for extraordinary projects in accordance with section 685-F; [2007, c. 114, §1 (AMD).]

C. [1977, c. 564, §51 (RP).]

D. Evidence of sufficient right, title or interest in all of the property that is proposed for development or use. For purposes of this subsection, the written permission of the record owner or owners of flowed land is deemed sufficient right, title or interest to confer standing for submission of a permit application, provided that the letter of permission specifically identifies the activities being performed and the area that may be used for that purpose. The commission may not refuse to accept, under this paragraph, a permit application for any prohibited activity if the owner or lessee of land adjoining a great pond has made a diligent effort to locate the record owner or owners of the flowed land in question and has been unable to do so; and [1989, c. 681, §1 (AMD).]

E. For a new or expanded development requiring an annual supply of wood or wood-derived materials in excess of 150,000 tons green weight, a wood supply plan for informational purposes to the Maine Forest Service at the time of application. The wood supply plan must include, but is not limited to, the following information:

(1) The expected operational life of the development;

(2) The projected annual wood consumption of wood mill residue, wood fiber and recycled materials from forest products during the entire operational life of the development;

(3) The expected market area for wood supply necessary to supply the development; and

(4) Other relevant wood supply information. [1989, c. 681, §1 (NEW).]

[ 2007, c. 114, §1 (AMD) .]

2-A. Priority for processing. Applications to replace destroyed seasonal or permanent structures shall be given top priority for processing when hardship can be demonstrated by the applicant provided that:

A. The dimensions of the new structure are not greater than the preexisting structure; and [1989, c. 22, §1 (NEW).]

B. The new structure will not adversely affect surrounding uses and resources. [1989, c. 22, §1 (NEW).]

[ 1989, c. 22, §1 (NEW) .]

2-B. Determination deadline. The commission shall render its determination on an application for subdivision approval within 60 days after the commission determines that the application is complete and the proposal is a permitted use within the affected district or subdistrict.

[ 1989, c. 584, §2 (NEW); 1989, c. 810, §2 (AMD) .]

2-C. Wind energy development; community-based offshore wind energy projects; determination deadline. The following provisions govern wind energy development.

A. The commission shall consider any wind energy development in the expedited permitting area under Title 35‐A, chapter 34‐A with a generating capacity of 100 kilowatts or greater or a community-based offshore wind energy project a use requiring a permit, but not a special exception, within the affected districts or subdistricts. For an offshore wind energy project that is proposed within one nautical mile of an island within the unorganized or deorganized areas, the commission shall review the proposed project to determine whether the project qualifies as a community-based offshore wind energy project and therefore is within the jurisdiction of the commission. The commission may require an applicant to provide a timely notice of filing prior to filing an application for, and may require the applicant to attend a public meeting during the review of, a wind energy development or a community-based offshore wind energy project. The commission shall render its determination on an application for such a development or project within 185 days after the commission determines that the application is complete, except that the commission shall render such a decision within 270 days if it holds a hearing on the application. The chair of the Public Utilities Commission or the chair's designee shall serve as a nonvoting member of the commission and may participate fully but is not required to attend hearings when the commission considers an application for an expedited wind energy development or a community-based offshore wind energy project. The chair's participation on the commission pursuant to this subsection does not affect the ability of the Public Utilities Commission to submit information into the record of the commission's proceedings. For purposes of this subsection, "expedited permitting area," "expedited wind energy development" and "wind energy development" have the same meanings as in Title 35-A, section 3451. [2009, c. 615, Pt. D, §3 (AMD).]

B. At the request of an applicant, the commission may stop the processing time for a period of time agreeable to the commission and the applicant. The expedited review period specified in paragraph A does not apply to the associated facilities, as defined in Title 35-A, section 3451, subsection 1, of the wind energy development or community-based offshore wind energy project if the commission determines that an expedited review time is unreasonable due to the size, location, potential impacts, multiple agency jurisdiction or complexity of that portion of the development or project. [2009, c. 615, Pt. D, §3 (AMD).]

[ 2009, c. 615, Pt. D, §3 (AMD) .]

3. Hearings and procedures.

[ 1999, c. 333, §14 (RP) .]

3-A. Hearings and procedures. Hearings and procedures in connection with the review and approval of a permit application are subject to this subsection.

A. The commission may determine on its own motion to hold a hearing on the application. [1999, c. 333, §15 (NEW).]

B. If the commission determines to act upon a permit application without a hearing, the commission, within 90 days after receiving the complete application, shall make findings of fact and issue an order either granting approval, subject to reasonable terms and conditions that the commission determines appropriate in order to fulfill the requirements and intent of this chapter, the comprehensive land use plan and the commission's standards, or denying approval of the application as proposed. [1999, c. 333, §15 (NEW).]

C. Any person aggrieved by a decision of the commission or its staff concerning any permit application upon which no hearing was held may, within 30 days of that decision, petition the commission for a hearing. The commission is not required to hold a hearing, but shall respond within 45 days of receipt of the petition by notifying the petitioner in writing of the date, time and place set for the requested hearing or of the denial of the request. [1999, c. 333, §15 (NEW).]

D. Within 60 days after the commission adjourns any hearing held under this subsection, it shall make findings of fact and issue an order either granting approval, subject to reasonable terms and conditions that the commission determines appropriate in order to fulfill the requirements and intent of this chapter, the comprehensive land use plan and the commission's standards, or denying approval of the application as proposed. [1999, c. 333, §15 (NEW).]

[ 1999, c. 333, §15 (NEW) .]

4. Criteria for approval. In approving applications submitted to it pursuant to this section, the commission may impose such reasonable terms and conditions as the commission may consider appropriate. In making a decision under this subsection regarding an application for a community-based offshore wind energy project, the commission may not consider whether the project meets the specific criteria designated in section 1862, subsection 2, paragraph A, subparagraph (6), divisions (a) to (d). This limitation is not intended to restrict the commission's review of related potential impacts of the project as determined by the commission.

The commission may not approve an application, unless:

A. Adequate technical and financial provision has been made for complying with the requirements of the State's air and water pollution control and other environmental laws, and those standards and regulations adopted with respect thereto, including without limitation the minimum lot size laws, sections 4807 to 4807‐G, the site location of development laws, Title 38, sections 481 to 490, and the natural resource protection laws, Title 38, sections 480‐A to 480‐Z, and adequate provision has been made for solid waste and sewage disposal, for controlling of offensive odors and for the securing and maintenance of sufficient healthful water supplies; [1999, c. 333, §16 (AMD).]

B. Adequate provision has been made for loading, parking and circulation of land, air and water traffic, in, on and from the site, and for assurance that the proposal will not cause congestion or unsafe conditions with respect to existing or proposed transportation arteries or methods; [2007, c. 661, Pt. C, §3 (AMD).]

C. Adequate provision has been made for fitting the proposal harmoniously into the existing natural environment in order to ensure there will be no undue adverse effect on existing uses, scenic character and natural and historic resources in the area likely to be affected by the proposal. In making a determination under this paragraph regarding development to facilitate withdrawal of groundwater, the commission shall consider the effects of the proposed withdrawal on waters of the State, as defined by Title 38, section 361‐A, subsection 7; water-related natural resources; and existing uses, including, but not limited to, public or private wells, within the anticipated zone of contribution to the withdrawal. In making findings under this paragraph, the commission shall consider both the direct effects of the proposed withdrawal and its effects in combination with existing water withdrawals.

In making a determination under this paragraph regarding an expedited wind energy development, as defined in Title 35‐A, section 3451, subsection 4, or a community-based offshore wind energy project, the commission shall consider the development's or project's effects on scenic character and existing uses related to scenic character in accordance with Title 35‐A, section 3452.

In making a determination under this paragraph regarding a wind energy development, as defined in Title 35‐A, section 3451, subsection 11, that is not a grid-scale wind energy development, that has a generating capacity of 100 kilowatts or greater and that is proposed for location within the expedited permitting area, the commission shall consider the development's or project's effects on scenic character and existing uses relating to scenic character in the manner provided for in Title 35‐A, section 3452; [2009, c. 615, Pt. D, §4 (AMD).]

D. The proposal will not cause unreasonable soil erosion or reduction in the capacity of the land to absorb and hold water and suitable soils are available for a sewage disposal system if sewage is to be disposed on-site; [1999, c. 333, §17 (AMD).]

E. The proposal is otherwise in conformance with this chapter and the regulations, standards and plans adopted pursuant thereto; and [2007, c. 661, Pt. C, §3 (AMD).]

F. In the case of an application for a structure upon any lot in a subdivision, that the subdivision has received the approval of the commission. [1973, c. 569, §11 (NEW).]

The burden is upon the applicant to demonstrate by substantial evidence that the criteria for approval are satisfied, and that the public's health, safety and general welfare will be adequately protected. Except as otherwise provided in Title 35‐A, section 3454, the commission shall permit the applicant and other parties to provide evidence on the economic benefits of the proposal as well as the impact of the proposal on energy resources.

[ 2009, c. 615, Pt. D, §4 (AMD) .]

4-A. Subdivision of land subject to liquidation harvesting. The commission may not approve an application for a subdivision if the commission determines that timber on the parcel proposed for subdivision has been harvested in violation of rules adopted pursuant to section 8869, subsection 14. If a violation of rules adopted by the Maine Forest Service to substantially eliminate liquidation harvesting has occurred, the commission must determine prior to granting approval for the subdivision that 5 years have elapsed from the date the landowner under whose ownership the harvest occurred acquired the parcel. The commission may request technical assistance from the Maine Forest Service to determine if a rule violation has occurred.

For the purposes of this subsection, "liquidation harvesting" has the same meaning as in section 8868, subsection 6 and "parcel" means a contiguous area within one municipality, township or plantation owned by one person or a group of persons in common or joint ownership. This subsection takes effect on the effective date of rules adopted pursuant to section 8869, subsection 14.

[ 2003, c. 622, §1 (NEW) .]

4-B. Special provisions; wind energy development or project. In the case of a wind energy development, as defined in Title 35-A, section 3451, subsection 11, with a generating capacity greater than 100 kilowatts, or a community-based offshore wind energy project, the developer must demonstrate, in addition to requirements under subsection 4, that the proposed generating facilities, as defined in Title 35-A, section 3451, subsection 5:

A. Will meet the requirements of the Board of Environmental Protection's noise control rules adopted pursuant to Title 38, chapter 3, subchapter 1, article 6; [2007, c. 661, Pt. C, §4 (NEW).]

B. Will be designed and sited to avoid undue adverse shadow flicker effects; [2007, c. 661, Pt. C, §4 (NEW).]

C. Will be constructed with setbacks adequate to protect public safety, as provided in Title 35-A, section 3455. In making findings pursuant to this paragraph, the commission shall consider the recommendation of a professional, licensed civil engineer as well as any applicable setback recommended by a manufacturer of the generating facilities; and [2007, c. 661, Pt. C, §4 (NEW).]

D. Will provide significant tangible benefits, as defined in Title 35-A, section 3451, subsection 10, within the State, as provided in Title 35-A, section 3454, if the development is an expedited wind energy development, as defined in Title 35-A, section 3451, subsection 4. [2007, c. 661, Pt. C, §4 (NEW).]

[ 2009, c. 615, Pt. D, §5 (AMD) .]

5. Limitation, expiration, transfer and revocation of approval. Commission authorization pursuant to this section shall permit only the arrangement and construction set forth in the approval as issued. Change in use, arrangement or construction shall be considered a violation of this chapter and punishable as provided in this chapter.

A violation of any condition attached to a commission approval or permit, or any change in use, arrangement or construction from that approved, shall be deemed a violation of this chapter and, in addition to any other penalties or remedies prescribed herein or otherwise provided by law, shall constitute grounds for the revocation or suspension of this approval. The commission may, acting in accordance with Title 5, section 10003, amend, modify or refuse to renew any commission approval or permit where the commission determines that the criteria for approval set forth in subsection 4, paragraphs A to F, have not been, are not being, or will not be satisfied.

[ 1977, c. 694, §232 (AMD) .]

6. Recording of approved proposals. A copy of each application, marked approved or disapproved, shall be retained in the commission files and shall be available to the public during normal business hours.

In the event the commission approves an application for subdivision approval, a copy of an approved plat or plan and a copy of the conditions required by the commission to be set forth in any instrument conveying an interest within the subdivision attested to by an authorized commission signature shall be filed with the appropriate registry of deeds in the county in which the real estate lies.

A registrar of deeds shall not record a copy of conditions or any plat or plan purporting to subdivide real estate located within the unorganized and deorganized lands of the State, unless the commission's approval is evidenced thereon.

The grantee of any conveyance of unrecorded subdivided real estate or subdivided real estate recorded in violation of this section may recover the purchase price, at interest, together with damages and costs in addition to any other remedy provided by law.

[ 1987, c. 885, §5 (AMD) .]

6-A. Recording of land division plan required. A copy of each land division plan must be recorded in the registry of deeds of the county in which the land is located.

A. When 3 to 10 lots each containing at least 40 acres are created within a 5-year period and are located more than 1,320 feet from the normal high water line of any great pond or river and more than 250 feet from the upland edge of a coastal or freshwater wetland as defined in Title 38, section 436-A, a plan showing the division of the original parcel must be filed by the person creating the 3rd lot with the commission within 60 days of the creation of that lot. The plan must state that the lots may be used only for forest management, agricultural management or conservation of natural resources. [2001, c. 431, §4 (AMD).]

B. A register of deeds may not record any plan depicting these lots within the unorganized and deorganized lands of the State unless the commission's certification that the division qualifies under section 682-B is evidenced on the plan. The commission must determine whether the plan qualifies under section 682-B within 15 business days of receipt of the plan. [2001, c. 431, §4 (AMD).]

C. A copy of the certified plan must be filed within 30 days of certification with the State Tax Assessor and the appropriate registry of deeds in the county in which the land is located. [1991, c. 687, §2 (NEW).]

D. Failure to file the plan required by this subsection is a violation of this chapter subject to the penalties provided in section 685-C, subsection 8. [1991, c. 687, §2 (NEW).]

[ 2001, c. 431, §4 (AMD) .]

6-B. Notification of land division required.

[ 2001, c. 431, §5 (RP) .]

7. Nonconforming uses and nonconforming structures. To achieve the purposes set forth in this chapter after the adoption of permanent district standards and permanent districts, the commission may regulate and prohibit expansion and undue perpetuation of nonconforming uses. Specifically the commission may regulate and prohibit:

A. Changes in nonconforming uses to another nonconforming use; [1971, c. 457, §5 (NEW).]

B. Extension or enlargement of nonconforming uses or nonconforming structures; [1989, c. 22, §2 (AMD).]

C. Resumption of nonconforming uses, by prohibiting such resumption if such use is discontinued for 2 years or abandoned; and [1973, c. 569, §11 (AMD).]

D. Movement or enlargement of a nonconforming structure or of a structure containing a nonconforming use. [1971, c. 457, §5 (NEW).]

The commission may also provide for the termination of commercial or industrial nonconforming uses by specifying in land use standards the period or periods in which nonconforming uses shall be terminated and by adjusting such compulsory terminations so as to allow reasonable time for the conversion of such nonconforming uses and reasonable schedules for the amortization of investment.

Any use for which a special exception has been granted by the commission, as provided for in section 685-A, subsection 10, shall not be deemed a nonconforming use, but shall be deemed a conforming use in such district.

For applications to reconstruct a damaged or destroyed nonconforming structure, the commission shall require the new structure to comply with provisions of this chapter to the maximum extent possible.

[ 1989, c. 22, §2 (AMD) .]

7-A. Reconstruction of commercial sporting camps. The commission may approve a permit for the reconstruction of a damaged or destroyed nonconforming commercial sporting camp that was a permissible use under commission standards at the time of the damage or destruction. The commission may, consistent with public health, safety and welfare, and to the minimum extent necessary, waive standards that made the original structure nonconforming. The reconstructed structure must replicate the original structure and use to the maximum extent possible and it must be on the same location and within the same footprint as the original structure. Reconstruction must occur within 2 years of the damage or destruction.

[ 1995, c. 386, §3 (NEW) .]

8. Certificates of compliance. It shall be unlawful to use or occupy or permit the use or occupancy of any land, structure, or part thereof, created, erected, changed, converted, or wholly or partly altered or enlarged in its use or structural form, requiring subsequent review and approval pursuant to this subchapter, until a certificate of compliance has been issued therefor by the commission stating that the requirements and conditions of approval have been met.

A certificate of compliance may contain such terms and conditions as will protect the health, safety and general welfare of the occupants, users and the public.

The commission may establish standards within which authority shall be delegated to its staff, to issue or deny certificates of compliance. Any person aggrieved by a decision of the staff shall have the right to a review of such decision by the commission members within 30 days of such decision.

[ 1973, c. 569, §11 (AMD) .]

9. Periodic review of district boundaries and land use standards.

[ 1973, c. 569, §12 (RP) .]

10. Moratorium. The commission may adopt a moratorium on the processing or issuance of development permits on a township-by-township basis, on portions of a township or on portions of the territory under its jurisdiction. Any moratorium adopted by the commission must meet the following requirements.

A. The moratorium must be necessary:

(1) To prevent the shortage or overburdening of public facilities which would otherwise occur during the effective period of the moratorium or which is reasonably foreseeable as a result of any proposed or anticipated development; or

(2) Because the application of existing comprehensive plans, land use or zoning regulations or other applicable laws, if any, is inadequate to prevent serious public harm from residential, commercial or industrial development in the affected geographic area. [1989, c. 47, §2 (NEW).]

B. The moratorium must be of a definite term not to exceed 180 days except that the moratorium may be extended for additional 180-day periods provided that the commission:

(1) Finds that the problem creating the need for a moratorium still exists; and

(2) Finds that reasonable progress is being made to alleviate the problem creating the need for a moratorium. [1989, c. 47, §2 (NEW).]

C. Any organized town or plantation which has petitioned the commission to remove that town or plantation from the jurisdiction of the Maine Land Use Regulation Commission in compliance with section 685-A, subsection 4, may, through a town meeting, vote to adopt a moratorium to provide a period of time for the town or plantation to adopt a local comprehensive plan and zoning ordinance and to establish a municipal reviewing authority. The moratorium must be in compliance with paragraphs A and B. The municipal officers, acting in place of the commission, may extend the moratorium pursuant to paragraph B after notice and hearing. [1989, c. 47, §2 (NEW).]

[ 1989, c. 47, §2 (NEW) .]

SECTION HISTORY

1971, c. 457, §5 (NEW). 1971, c. 544, §§28F-28I (AMD). 1971, c. 618, §§12,17 (AMD). 1971, c. 619, §§6,7 (AMD). 1973, c. 569, §§11,12 (AMD). 1977, c. 213, §§1-3 (AMD). 1977, c. 360, §17 (AMD). 1977, c. 564, §51 (AMD). 1977, c. 694, §§228-232 (AMD). 1979, c. 127, §§68,69 (AMD). 1981, c. 194, §1 (AMD). 1985, c. 819, §§A18,19 (AMD). 1987, c. 653, §4 (AMD). 1987, c. 769, §A49 (AMD). 1987, c. 771, §§1,2 (AMD). 1987, c. 885, §§3-5 (AMD). 1989, c. 22, §§1,2 (AMD). 1989, c. 47, §2 (AMD). 1989, c. 430, §§1,2 (AMD). 1989, c. 584, §2 (AMD). 1989, c. 585, §E1 (AMD). 1989, c. 596, §G1 (AMD). 1989, c. 681, §1 (AMD). 1989, c. 810, §2 (AMD). 1989, c. 878, §A31 (AMD). 1991, c. 9, §E9 (AMD). 1991, c. 46, §1 (AMD). 1991, c. 528, §E8 (AMD). 1991, c. 528, §RRR (AFF). 1991, c. 591, §E8 (AMD). 1991, c. 687, §2 (AMD). 1993, c. 410, §U1 (AMD). 1995, c. 386, §3 (AMD). 1995, c. 487, §1 (AMD). 1997, c. 335, §1 (AMD). 1999, c. 333, §§12-17 (AMD). 2001, c. 402, §§4,5 (AMD). 2001, c. 431, §§4,5 (AMD). 2003, c. 622, §1 (AMD). 2005, c. 107, §1 (AMD). 2005, c. 107, §4 (AFF). 2005, c. 452, §A1 (AMD). 2007, c. 114, §1 (AMD). 2007, c. 661, Pt. C, §§2-4 (AMD). 2009, c. 111, §2 (AMD). 2009, c. 270, Pt. D, §§1-4 (AMD). 2009, c. 492, §§1, 2 (AMD). 2009, c. 615, Pt. D, §§3-5 (AMD). 2009, c. 615, Pt. F, §1 (AMD).