Conditional use.
A. The review authority shall permit as a conditional use any matter so referred to it by other provisions of this chapter, provided that the standards of this section are met. Conditional use permits run with the land and thus pass from one owner of the property to the next unless the approval is limited to the petitioner by the review authority.
B. Review authority.
(1) Board of Appeals. The Board of Appeals shall serve as the review authority for all conditional use applications, except where the application is reviewed by the Planning Board.
(2) Planning Board. The Planning Board shall serve as the review authority for all conditional use applications that are submitted in combination with the following:
C. Submission time lines.
(1) Applications to the Board of Appeals shall be filed at least 21 days prior to the meeting at which the applicant wishes to be heard.
(2) Submissions to the Planning Board shall meet the submission deadlines for subdivision or site plan review applications, as appropriate (See
Article 8: Site Plan Review and
Article 9: Subdivision Review).
D. Submission requirements. The petitioner shall submit the following information to the proper review authority:
(1) A cover letter describing the requested conditional use and location of the property.
(2) Written statements describing how the conditional use will meet the review criteria of this section.
(3) Diagrams and/or photographs demonstrating that the conditional use will meet the review criteria of this section. If the information is contained in either a site plan or subdivision application, it must be referenced in § 120-516D(1), above.
(4) Proof of right, title or interest in the property on which the conditional use will be located.
(5) An "ability to serve" letter from the Portland Water District if public water or sewer is to be supplied to the conditional use.
(6) Documentation of the applicant's technical capacity to implement the proposed use.
E. Application fees. The application shall include:
(1) A nonrefundable application fee as established by the Town Council.
(2) A peer review escrow deposit as established by the Town Council. Unexpended peer review escrow funds shall be returned to the applicant.
F. Consulting and review fees.
(1) The review authority may retain the services of an independent consulting firm for the review and/or post-approval inspection of any conditional use application.
(2) The following procedures shall govern the use of an independent consulting firm:
(a) Board of Appeals. The provisions of
§ 120-1103C (Board of Appeals consulting and review fees).
(b) Planning Board and staff review committee. The provisions of
§ 120-810C (site plan review consulting and review fees).
G. Public hearing.
(1) The review authority shall hold a public hearing on any conditional use application.
(2) Notification requirements. The notice shall contain the time, date, and place of the hearing and be:
(a) Published in a newspaper of general circulation at least seven days prior to the hearing.
(b) Mailed to abutting property owners at least seven days prior to the hearing. Notices shall be deemed given when said notices are mailed. The failure of any petitioner or property owner to receive said notice shall not necessitate another hearing.
H. Review criteria. The review authority shall have the power and duty to approve, approve with conditions, or deny conditional use applications based on the following standards:
(1) Property value. The proposed use will not depreciate the economic value of surrounding properties.
(2) Wildlife habitat. The proposed use will not damage significant wildlife habitat or spawning grounds identified by the Maine Department of Inland Fisheries and Wildlife or by the Town of Windham's Comprehensive Plan.
(3) Botanical species. The proposed use will not damage rare or endangered botanical species as identified by the Maine Department of Agriculture, Conservation and Forestry or by the Town of Windham's Comprehensive Plan.
(4) Potable water.
(a) The proposed use has access to potable water.
(b) The proposed use will not burden either a groundwater aquifer or public water system.
(5) Sewage disposal. The proposed use has adequate capacity to dispose of sewage waste. A change from one use to another use must show that either:
(a) The existing sewage system has adequate capacity for the proposed use; or
(b) The existing system will be improved, or a new system will be installed to provide adequate waste disposal capacity.
(6) Traffic. The proposed use has adequate sight distance as established by current Maine DOT Highway Entrance and Driveway Rules.
(7) Public safety. The proposed use will not overburden police, fire and rescue services, as determined by response time, accessibility to the site of the proposed use, and numbers and types of emergency personnel and equipment presently serving the community.
(8) Vibration. The proposed use will not produce inherently and recurrently generated vibrations that exceed a peak particle velocity greater than 2.0 at the closest protected structure, as defined by the Maine Department of Environmental Protection.
(9) Noise. The proposed use shall meet the noise standards in
§ 120-812S of
Article 8: Site Plan Review.
(10) Off-street parking and loading. The proposed use meets the parking and loading standards of
§ 120-812C of
Article 8: Site Plan Review.
(11) Odors. The proposed use will not emit noxious or odorous matter in such quantities as to be offensive at the lot boundaries.
(12) Air pollution. No emission of dust or other form of air pollution is permitted which can cause any damage to health, to animals or vegetation, or other forms of property, or which can cause any excessive soiling at any point, and in no event any emission, from any activity permitted, composed of any solid or liquid particles in concentration exceeding 0.3 grain per cubic foot of the conveying gas or air at any point.
(13) Water pollution. No discharge at any point into any private sewage disposal system or stream or into the ground of any materials in such nature or temperature as to contaminate any water supply or otherwise cause the emission of dangerous or objectionable elements is permitted.
(14) Erosion and sediment control. The proposed use will not cause water pollution, sedimentation, or erosion, nor contaminate any water supply, nor reduce the capacity of the land to hold water, so that a dangerous or unhealthy condition may result.
(15) Hazardous material. No use shall for any period of time discharge across the boundaries of the lot wherein it is located toxic and noxious matter in concentrations so that a dangerous or unhealthy condition may result.
(16) Zoning district and performance standards. The proposed use meets the applicable zoning district standards in Article 4 and the applicable performance standards of
Article 5: Performance Standards.
(17) Solid waste management. The proposed use shall provide for adequate disposal of solid wastes. All solid waste must be disposed of at a licensed disposal facility having adequate capacity to accept the project's wastes.
I. Conditions of approval. In granting a conditional use, the review authority shall have the authority to impose such conditions as it deems necessary in furtherance of the intent and purpose of this chapter, to assure that there will be no adverse effects on adjacent properties, and to assure that the proposed use or modification will be compatible with other uses in the neighborhood or district. Such conditions of approval may be imposed based upon, but shall not be limited to, the following factors:
(1) The location of drives, parking areas, lighting, signs, dumpsters, snow storage areas and outdoor storage areas.
(2) Access to the site for vehicular and pedestrian traffic, and emergency access.
(3) Sight distance at access points.
(4) Fences, screening and buffering.
(5) Landscaping and stormwater drainage.
(6) Hours of operation.
(7) Any other factors relating to the impact of the proposed use on neighboring properties.
J. Inspections. The review authority may require the provision of third-party inspections during installation of the proposed use.
(1) The applicant shall be responsible for all third-party inspections,
(2) An escrow account for the provision of third-party inspections shall be established prior to the issuance of a building permit, or installation of the proposed use. All unexpended funds from the escrow account shall be returned to the applicant.
