§ 18-136. Clustered development.

(a)

Purposes. The purposes of clustered development are to:

(1)

Permit flexible and innovative design of development;

(2)

Promote efficient use of land, resulting in a smaller network of utilities and streets;

(3)

Provide significant open space and recreational areas typically not included in conventional subdivisions;

(4)

In the Forestry and Agriculture District, preserve the opportunity for rural land uses, such as agriculture, forestry, outdoor recreation, and to conserve such natural features as intact wildlife habitat and high value natural systems, all of which is consistent with the purpose of the Forestry and Agriculture District.

These purposes are statements of legislative intent only and are not themselves criteria by which a proposed clustered development is reviewed. The following subsections contain the standards intended to promote these purposes and that serve as the review criteria.

(b)

Applicability. Clustered development shall be an option for any development that constitutes a residential subdivision in the Medium Density Residential (MDR) District, the Low Density Residential (LDR) District, the Commercial-2 (C-2) District, or the Economic Development Zone (EDZ) District on land containing a minimum of three contiguous acres. Clustered development shall be mandatory for any development that constitutes a residential subdivision on land of any size in the Forestry and Agriculture (F&A) District and Gateway Medium Density Residential (GMDR) District. "Development that constitutes a residential subdivision" excludes lots that are not included within the meaning of a subdivision under Title 30-A, Section 4401, of Maine Revised Statutes. The allowable uses shall be only those allowed within the district in which the clustered development is to be built, and, if commercial uses are allowed in the district, no more than ten percent of land in the clustered development shall be allocated to such uses. A clustered development shall meet all of the requirements of and shall be reviewed as a major subdivision under Article VII, and, if a proposed use otherwise requires approval of a site plan, shall meet all applicable requirements of and shall be reviewed pursuant to Article VI. Unless otherwise specified in this section, clustered developments shall meet all other requirements of Article V.

(c)

Water supply and sewage systems. Any clustered development shall be served by:

(1)

A public sewer with the written approval of the Town, or, if a public sewer is not available and cannot be reasonably extended to serve the development, either of the following methods may be used: (A) on-site subsurface wastewater disposal systems if the development is designed for single-family detached dwellings and each lot in the development contains at least 29,040 square feet (0.67-acre) of lot area and complies with all requirements of Maine's Subsurface Waste Water Disposal Rules and other applicable State and local code, ordinances, and rules; or (B) a community underground wastewater disposal system that meets the standards of Maine's Subsurface Waste Water Disposal Rules, including a written maintenance plan to be carried out by an association of homeowners or other responsible party, which shall be designated in the maintenance plan. At a minimum, the maintenance plan for a community underground wastewater disposal system shall:

(i)

identify any restrictions on wastes to be discharged to the community wastewater disposal system;

(ii)

provide for right of entry to gain access to any component of the system integral to its use, including septic tanks, pumps, absorption fields, and related pipes and appurtenances, for inspection and repair;

(iii)

provide for enforcement of rules relating to use of and discharges to the system;

(iv)

provide for an annual inspection of the system, with certification of the inspection and its results given to the Town's Code Enforcement Officer no later than November 30 of each year;

(v)

provide for immediate repair or replacement of malfunctioning parts; and

(vi)

provide for fees from users of the system for its upkeep in good working condition.

(2)

Public water supply from the Orono-Veazie Water District, with the written approval of the District, or, if water supply from the Water District is not available and cannot be reasonably extended to serve the development, either of the following methods may be used: (A) individual wells that serve each lot if the development is designed for single-family detached dwellings and each lot contains at least 29,040 square feet (0.67-acre) of lot area and the wells comply with all requirements of State and local codes, ordinances, and rules; or (B) a community well developed and maintained according to the rules of the Maine Department of Health and Human Services. If a community well is proposed, the subdivision plan shall include delineation of the wellhead protection zone or zones, within which development will be limited or not permitted and the storage of chemicals and hazardous materials will be restricted or prohibited.

(d)

Inventory of resources. In addition to the requirements for submission of a preliminary plan for subdivision review under Article VII, subsection 18-206(d), the preliminary plan shall include an inventory of natural resources contained on the parcel or parcels proposed for development, with the boundaries of the natural resources presented at a scale of one inch equals no more than 100 feet. Contour lines shall be provided for the entire property at an interval of not more than two feet. The natural resources to be inventoried shall include wetlands and vernal pools identified by a qualified biologist or hydrologist, whose name shall appear on the plan; hydric soils not captured by wetland or vernal pool boundaries; streams, rivers, and ponds to their mean high water marks; any land specified by Maine's Shoreland Zoning Act and rules to be resource protection areas, whether or not actually zoned as resource protection; slopes in excess of 20 percent; ledge outcrops; and lands restricted by existing easements whose purposes include conservation of the land or natural resources or uses that affect or rely on those resources. The total area within the boundaries of these natural resource areas and easements shall be quantified, shall be considered part of the clustered development's green space, as defined in this chapter, and shall appear on the preliminary plan and any subsequent final plan. This total area, plus the area of streets or access and any area devoted to an allowed nonresidential use, shall be deemed unsuitable for residential development for the purpose of calculating net residential density, provided the total is 50 percent or less of the gross acreage of the land within the proposed clustered development. If the total exceeds 50 percent, no more than 50 percent shall be subtracted to arrive at net residential density. If the property is within the Vernal Pools Overlay District and the applicant invokes the provisions of section 18-113 of this ordinance, the area of any vernal pool identified in the inventory of resources shall be included in the area deemed unsuitable for development only if the vernal pool is wholly embedded within another natural resource that is unsuitable for development.

(e)

Dimensional standards. In a clustered development meeting all of the requirements of this section, the dimensional requirements of subsection 18-106(f) shall be modified as follows:

	MDR and GMDR	LDR	F&A	C-2 and EDZ
Optional or mandatory for subdivisions	MDR:  Optional; GMDR:  Mandatory	Optional	Mandatory	Optional
Minimum lot size within the development
• Off-site public sewer or on-site community subsurface wastewater disposal	None	None	None	None
• On-site subsurface wastewater disposal on individual lots	0.67 ac (29,040 sq. ft.)	0.67 ac (29,040 sq. ft.)	0.67 ac (29,040 sq. ft.)	0.67 ac (29,040 sq. ft.)
Maximum dwelling units/net residential acre
• Off-site public sewer	4	2	0.27 (160,000 sq. ft. per family)	8 See also Maximum bedrooms/net residential acre
• On-site community subsurface wastewater disposal	2	2	0.27 (160,000 sq. ft. per family)	2
• On-site subsurface wastewater disposal on individual lots	1.5	1.5	0.27 (160,000 sq. ft. per family)	1.5
Maximum number of bedrooms/net residential acre
• Off-site sewer	n.a.	n.a.	n.a.	16
• On-site community underground wastewater disposal				6 or the maximum allowed by State Plumbing Code, whichever is less
Minimum distance between principal structures on the same lot	20 ft.	20 ft.	20 ft.	20 ft.
Maximum number of single-family attached units per building	4	4	4	6
Maximum number of units per multifamily structure	Not allowed	Not allowed	Not allowed	12
Minimum lot frontage or, in the case of a lot fronting on the turning radius of a cul-de-sac, minimum lot width at the front yard setback line	50 ft.	50 ft.	50 ft.	50 ft.

 

If the clustered development includes nonresidential uses, the land area occupied by the nonresidential use, including its building footprint, area required for access and parking, and area occupied by accessory structures and utilities, shall be deducted from the total land area before calculating the maximum number of residential units allowed. All other dimensional requirements as set forth in subsection 18-106(f) shall apply; provided, however, that the Planning Board may, upon written request of the applicant, further modify the required lot width, lot frontage, and setback requirements, excluding buffer requirements, if doing so would reduce the length of roadways or amount of impervious area within the development or increase the amount of preserved open space.

(f)

Building and site design.

(1)

The maximum footprint per residential building shall be 8,000 square feet. The footprint of a residential building shall be the total square footage of the ground floor of the building within its largest outside dimensions, including habitable space, porches, garages and storage or common areas, but excluding unenclosed decks attached to residences as outdoor amenities for the residences. Garages may be attached or detached. If any garage is detached, the maximum footprint of the residential building shall be reduced by the amount of the square footage of each detached garage. For the purposes of this section, garages associated with residential buildings shall be considered part of the principal structure rather than accessory buildings.

(2)

If a clustered development contains multifamily units, they shall constitute no more than 70 percent of all the residential units in the development. At least 30 percent of the residential units shall be single-family detached, single-family attached or two-family units.

(3)

If a building contains single-family attached dwellings, it shall be designed to have the look of closely spaced, single-family detached units, including roofs with a minimum pitch of three inches of rise per 12 inches of run, front elevations that are oriented to the street, and garages, if any, either attached to the respective units served or within 20 feet of the respective units served and set back from the street at least eight feet more than the front elevation, or that part of the front elevation closest to the street, of the dwelling or dwellings being served. In the case of single-family attached units that are attached at the rear of the units, any elevation and associated garage facing a street shall meet these requirements.

(4)

The applicant shall submit as part of a preliminary subdivision application, for informational purposes, the typical proposed architectural elevation of each side of any multifamily, two-family and single-family attached structures in the development and of any nonresidential structure in the development.

(5)

Each accessory structure shall have a maximum footprint of 400 square feet per dwelling unit in the clustered development, and no accessory structure's footprint shall be larger than 6,000 square feet. As noted in subsection (1) above, garages, whether attached or detached, are not considered to be accessory structures in clustered developments but rather are part of the principal structure or structures of the clustered development and are part of the footprint of the principal structure or structures.

(6)

Each structure shall be at least 20 feet from the right-of-way of access roads or of parking lots. Except for driveways, if any, which shall not be more than 24 feet wide, this area shall be landscaped with vegetation and other natural elements.

(7)

A clustered development shall include buffers according to the specifications of this subsection.

(i)

The buffer areas must be part of a landscape plan prepared by a landscape architect registered by the State of Maine, and be recorded on the subdivision plan as such. If a buffer area is part of an individual lot, the deed to the lot shall reference the buffer area and require that it be maintained according to the requirements of this article.

(ii)

Each single-family detached dwelling shall be separated from the development's property line by a vegetated buffer of at least 20 feet. Single-family attached dwellings shall be separated from the development's property line by a vegetated buffer of at least 25 feet. All other structures shall be separated from the development's property line by a vegetated buffer of at least 50 feet. The buffers shall maintain screening that meets the standards of subsection 18-126(2) and be maintained in accordance with the standards of subsection 18-126(3).

(iii)

Buffers shall not be employed as utility corridors or for similar purposes that require removal of significant amounts of existing vegetation or reduce the buffer's screening function, unless the Board finds that a crossing of the buffer by utility lines is essential, or there is no reasonable alternative for the location of such functions and that breaching the buffer will not have an undue adverse effect on abutting properties.

(iv)

Buffers shall not be used for manmade stormwater management facilities.

(8)

In addition to the street design and layout standards of article VII, "Subdivision Review", section 18-210, vehicular access within a clustered development shall meet the following standards:

(i)

All vehicular access to buildings and lots shall be from a street within the development and not from an existing public road.

(ii)

Each street right-of-way shall include a sidewalk on at least one side, meeting the standards of Table 7.4 in section 18-210.

(iii)

Between the street's travel way and the sidewalk on at least one side, there shall be a planting strip at least six feet wide, with trees at least two and one-half inches dbh, planted at intervals of no more than 40 feet on center. The trees shall be native deciduous species suitable as shade trees. Existing trees, whether deciduous or conifer, may be used as substitutes, provided they are at least 15 feet in height, in good condition, and located within or adjacent to the street right-of-way.

(iv)

Notwithstanding the buffering and screening requirements of this section, a buffer may be breached only to meet the standards of subsection 18-210(e)(1)c., relating to the projection of a street right-of-way to adjacent, undivided land, or to provide for crossings required to serve the development or to provide connections to existing streets, trails or utilities.

(9)

Placement of utilities: (i) In clustered developments in districts other than the F&A district, utilities shall be installed underground unless deemed unfeasible due to environmental laws and regulations. Aboveground utility structures, such as transformer boxes, meters, and pumping stations shall be screened consistent with the standards of the providing utility. The screening shall be of planted materials of sufficient density and height to screen the transformer from any street. In the case of pad-mounted transformers, unless otherwise stated in writing by the providing electrical utility, the screening shall maintain, at maturity, a three-foot clearance from the sides and back of the transformer and at least a ten-foot clearance from the front or door side of the transformer, and shall be planted 10 feet from the underground wire serving the transformer. (ii) In clustered developments in the F&A District, electrical and related utilities may be carried above ground. Aboveground utility structures, such as transformer boxes, meters, and pumping stations, but excluding poles used to carry aboveground conduits and cables in the F&A District, shall be screened consistent with the standards of the providing utility.

(g)

Open space requirements. In addition to the applicable open space and recreation land standards of subsection 18-210(d), the following standards apply to clustered developments:

(1)

Open space allocation:

i.

In MDR, GMDR and C-2 districts: If the clustered development contains only single-family detached dwellings on individual lots, at least 25 percent of the gross acreage of the property shall remain as open space outside of the lots. If the clustered development includes dwellings not on individual lots, at least 30 percent of the gross acreage of the property shall remain as open space outside of the land assigned to individual dwelling units or within 20 feet of a building.

ii.

In LDR district: In any clustered development in the LDR district, at least 40 percent of the gross acreage of the property shall remain as open space outside of the lots or, in the case of clustered development that includes dwellings not on individual lots, outside of the land assigned to individual dwelling units or within 20 feet of a building.

iii.

In F&A district: In any clustered development in the F&A district, at least 55 percent of the gross acreage of the property shall remain as open space outside of the lots or, in the case of clustered development that includes dwellings not on individual lots, outside of the land assigned to individual dwelling units or within 20 feet of a building.

Except as provided herein, all natural resources identified in the inventory of resources as unsuitable for development shall be treated as green space, as defined by this ordinance, and be part of the dedicated open space. In addition, at least one-third of the required open space shall be land that is both suitable for development and outside of the required buffers. Exceptions are as follows: (1) The Planning Board may, upon petition of the applicant, at its sole discretion allow development of resources considered to be green space only if it finds that disturbance of a resource regulated under the state Natural Resources Protection Act does not require more than a permit by rule, as established by the Maine Department of Environmental Protection or, in the case of wetlands, not more than a Tier 1 permits as defined in the Natural Resources Protection Act, and that the disturbance is otherwise the minimum necessary to fit the development appropriately into the parcel. (2) If the development is located within the Vernal Pool Overlay District, as specified in section 18-113 and the applicant invokes the provisions of section 18-113, a vernal pool must be included within the dedicated open space only if it is embedded in or contiguous with another natural resource identified as unsuitable for development and therefore preserved as part of the green space. In such a situation, the provisions of section 18-113 otherwise apply.

(2)

The open space must be part of a landscape plan prepared by a landscape architect registered by the State of Maine. The open space shall be dedicated to the recreational amenity or environmental enhancement of the development, and/or to agricultural or forestry use, and be recorded on the subdivision plan as such. For the purpose of this section, open space includes both green space and community open space, as defined in this chapter, and means an area that:

i.

Is not encumbered in any way by a structure, provided that in the F&A District and the LDR District, structures that are accessory to certain allowed open space uses in these districts, as listed in section 18-106(e), Schedule of Uses, namely agriculture, barnyard animals, forestry, stables and riding academies, and temporary sawmills, may be allowed if the Planning Board finds that they are needed for and will support such rural activities, will fit harmoniously into the open space, are approved by the Planning Board as part of a landscape plan, and are included in the open space management plan required in section 18-136(i)(2);

ii.

Is not devoted to use as a street, an existing or future street right-of-way, parking lot, an island in a parking lot, an easement for aboveground utilities, a driveway or a sidewalk;

iii.

May include underground utilities, provided that the disturbed area is restored to the appearance and function of open space;

iv.

May include in green space natural stormwater detention areas that are retained in their natural state and not altered or manmade; and may include in community open space (located outside of required buffer areas) manmade stormwater detention ponds, the edges of which are landscaped according to an approved landscape plan and made accessible as an amenity for the development;

v.

Is left in its natural or undisturbed state, except for cutting of trails for nonmotorized use; or is part of community open space and is landscaped for a play field, park, a square or common green, or a similar purpose, or for stormwater detention as described in subsection (iv); or is managed for forestry or agriculture;

vi.

Is capable of being used and enjoyed for the purpose of informal and unstructured recreation and relaxation, except to the extent that the open space is managed for forestry or agriculture;

vii.

Is available to all residents of the clustered development in which the open space is reserved, by means either of streets or sidewalks or other paths at least five feet in width, all of which shall be delineated on the subdivision plan; provided, however, that if any of the open space is to be retained for the private open space use of the landowner or for commercial agriculture or forestry, and such use is described in the open space management plan required in section 18-136(i)(2), access to such open space is not required.

(3)

At least 75 percent or five acres, whichever is less, of dedicated open space shall be contiguous, with no portion of the contiguous area less than 50 feet wide.

(4)

If adjoining property includes designated green space as part of an approved subdivision, public open space, or an easement, some or all of the green space in the proposed clustered development shall be located adjacent to such adjoining green space to the satisfaction of the Planning Board.

(5)

If community open space, as defined in this chapter, is used for active recreation, impervious cover shall not exceed ten percent of the total community open space in the development. No dwelling unit shall be more than 1,000 feet away by designated travel ways or paths from community open space, unless the configuration of the original parcel or natural limitations of the parcel prevent it.

(6)

A preliminary subdivision application for a proposed clustered development shall be accompanied by a table that shows the calculation of number of units allowed and open space required. An example of such a table, presented for illustration only and meant to clarify the calculation of required open space in clustered developments, follows.

Illustration of open space and allowable units calculations, based on a parcel of ten acres (435,600 square feet) and a single-family detached clustered development.

Total area of the parcel (acres are rounded)	435,600 sq. ft.	10.0 acres
What is the area of the parcel unsuitable v. suitable for development?
• Natural areas unsuitable for development, per inventory required by Sec. 18-136(d) (or 50% of total area, whichever is less)	60,000 sq. ft.	1.4 acres
• Proposed street right-of-way includes:	65,000 sq. ft.	1.5 acres
Total area unsuitable for development	125,000 sq. ft.	2.9 acres
Remainder of area suitable for development	310,600 sq. ft.	7.1 acres
Required open space: min. 25% of total area (30% for clustered development that includes units other than single-family detached homes)	108,900 sq. ft.	2.5 acres
What does this open space have to include?
• The natural resource areas identified as unsuitable for development	60,000 sq. ft.	1.4 acres
• One-third of the required open space ( 1/3 × 108,900 sq. ft.) must come from the area suitable for development	36,264 sq. ft.	0.8 acres
• At least the following additional land to bring the total to the required total sq. ft. (buffer area can be counted)	12,636 sq. ft.	0.3 acres
How much of the open space must be contiguous, with no portion less than 50 feet wide?
The lesser of 75% of the required open space (.75 × 108,900 sq. ft.) or 5 acres; .75 × 108,900 is less than 5 acres:	81,675 sq. ft.	1.9 acres
How many dwelling units are allowed (this illustration is in the MDR district)?
• Because the number of units is based on net residential acreage, use area suitable for development (but not less than 50% of the total area)	310,600 sq. ft.	7.1 acres
• Multiply by 4 units per net acre (7.1 × 4 =)		28 dwellings
How does the number of units compare to the number without clustering?
• Divide area suitable for development by minimum area per family, Sec. 18-106(f); for MDR district, the allowable net density is 20,000 sq. ft. per unit (310,600 sq. ft./20,000 =)	15 dwellings

 

(h)

Fee in lieu of open space. If natural resource areas identified as unsuitable for development are less than 50 percent of the required open space outside of buffers, and if, in the sole judgment of the Board, there is not a significant opportunity to connect other green space to a larger system of contiguous green space on adjacent parcels of land, the applicant shall pay a fee in lieu of open space, provided that the Town has established, by ordinance, a restricted fund for this purpose. If such a fund has not been established, the applicant shall provide within the clustered development all open space required by this section.

(1)

The fee shall be uniform throughout the zoning districts, or parts of zoning districts, in which clustered development is allowed and shall be based on the average appraised value per undeveloped house lot or dwelling unit within the proposed development, as determined by a certified appraiser and submitted to the Planning Board as part of a final subdivision application. Example: If the appraised value of the undeveloped property is $450,000.00 and the number of lots or dwelling units allowed, based on the calculations in this section, is 30, the average appraised value per undeveloped house lot or dwelling unit is: $450,000.00 divided by 30 = $15,000.00.

(2)

The fee will apply to the number of house lots or dwelling units that would be gained if the area represented by 50 percent of the total open space requirement minus the square feet in the identified natural resources areas unsuitable for development, were available for development rather than included as required green space. Example: Say the total open space requirement is 100,000 square feet. Fifty percent of this requirement is 50,000 square feet. If the square feet of the identified natural areas unsuitable for development is 33,000 square feet, then the additional area that can be used for the calculation of allowable lots or dwelling units would be (50,000 - 33,000 =) 17,000 square feet, or 0.39 acre. If, under this section, the zoning district allows four dwelling units per net acre, this would allow an additional lot or dwelling unit (0.39 × 4 = 1.6, rounded down). The fee therefore would be (1 × $15,000.00) = $15,000.00.

(3)

If the calculation results in less than one additional lot or unit, the fee shall be equal to that calculated for one additional house lot or dwelling unit.

(4)

The area to which the fee applies may be used as additional area for the purpose of calculating the allowable number of house lots or dwelling units in the clustered development. If the additional number is a fraction of one house lot or dwelling unit, one additional house lot or dwelling unit may be added to the total.

(5)

The fee will be paid to the Town prior to release of the approved final subdivision plat for recording in the Registry of Deeds and shall be deposited into the restricted account established by the Town Council. The fee will be used at the discretion of the Town Council to purchase interests in open space or to purchase and prepare recreational trails in the Town.

(i)

Open space management.

(1)

The boundaries of designated community open space and green space shall be clearly delineated on plans, including record plats.

(2)

The open space and common property and facilities shall continue as such and be properly maintained. To this end, the developer shall submit, as part of a preliminary subdivision plan, an open space management plan consistent with the standards of subsection 18-210(d) and shall comply with the ownership and maintenance requirements of subsection 18-210(d)(4)b. and, if applicable, subsection 18-210(d)(4)c. The open space management plan shall address:

(i)

The permitted uses of the open space, in accord with the limitations of this section, including restrictions on removing or altering the tree and vegetative cover of the open space;

(ii)

A schedule of maintenance of the open space, including managing its vegetative cover if the open space is used as a buffer or detention area for stormwater runoff;

(iii)

Responsible parties for the maintenance; and

(iv)

The procedure for enforcing the limits on use of the open space.

(j)

Effect of repeal.

(1)

The repeal of section 18-136 shall not interfere with, abrogate, annul or vacate the approval of any project that has received prior approval from the Town as a planned unit development. Any such project may proceed in accordance with the approved plans and other applicable provisions of the ordinance. To the extent that any such project, upon completion, does not comply with the provisions enacted hereby, the project shall constitute a nonconformity and shall be subject to the provisions of article X of this chapter, or any future amendments thereto or replacements thereof.

(2)

Any proposed planned unit development subdivision of land that has received preliminary plan approval from the Planning Board under subsection 18-206(c) and the repealed subsection 18-136(c) may proceed to the final plan phase in accordance with the provisions of the repealed section 18-136 and article VII, and may be reviewed and approved by the Planning Board in accordance with those provisions, as well as other applicable provisions of the ordinance. If the lots in any such approved subdivision do not meet the general lot size and frontage requirements of the district in which the lots are located and the approved project does not conform to the provisions of section 18-136 as hereby enacted, the individual lots may be built upon and/or conveyed to third parties notwithstanding the provisions of section 18-305.

(3)

The repeal of section 18-136 shall not in any manner affect the prosecution of violations thereof, including any violations relating to projects that are exempt from the repeal pursuant to subsections (1) and (2) above.

(Ord. No. 00-38, § 5.16, 3-13-00; Ord. No. 01-188, 10-15-01; Ord. No. 02-98, 6-10-02; Ord. No. 03-46, 4-14-03; Ord. No. 06-38, 3-13-06, 4-12-06; Ord. No. 08-179, 12-8-08; Ord. No. 10-45, 3-8-10; Ord. No. 16-83, 5-9-16 ; Ord. No. 16-195, 11-14-16 ; Ord. No. 18-167, § 3, 10-15-18 )