TOWN OF WHITING
I. TITLE
This ordinance shall be known and may be cited as the “Nuisance Control Ordinance of the Town of Whiting”.
II. AUTHORITY
This ordinance is adopted pursuant to Article VIII of the Maine Constitution and Maine Revised Statutes Title 30-A Section 3001.
III. PURPOSE
The purpose of this ordinance is to promote the health, safety, and general welfare of the residents of the Town of Whiting by regulating nuisances such as sources of odors which may cause or exacerbate citizen breathing problems, excessive noise, detrimental vermin and bird congregations, etc.
IV. LIMITATIONS
Judicial or statutory rejection of any aspect of this ordinance shall not invalidate the ordinance as a whole.
V. SPECIFIC REQUIREMENTS
A. Odor Nuisance
It shall be a violation of this ordinance to create or permit dissemination of an odor nuisance as defined below.
1. Nuisance Defined: An odor nuisance shall exist when three (3) odor complaints arise from a given area or neighborhood during a forty-eight (48) hour interval. The three (3) complaints must originate from three (3) different households in an area considered residential and may be communicated by telephone to the Code Enforcement Officer (CEO) or the Town Clerk. Complainants shall be prepared to formalize their concern by written statement to the Board of Selectmen.
2. Nuisance Confirmation: When the number of complaints received equals three, the Whiting Code Enforcement Officer, or other designated official, shall visit the affected area to determine existence of a detectable odor. The CEO or other official shall interview two or more complainants to verify that the detected odor is the source of complaint. The complainants verifying the odor nuisance shall confirm that fact by submitting a completed copy of the attached sample complaint form.
3. Action Upon Confirmation: The CEO or other official shall attempt to identify the odor source and shall notify the operator of the alleged odor source immediately by telephone, when the odor nuisance is confirmed and its apparent source discovered, and shall confirm the telephone message by letter within five (5) working days. The CEO, or other certified odor evaluator, shall estimate the odor intensity on a twelve-point n-butanol static-scale as prescribed in ASTM E44-75 Sections 6, 7, 8; a three—member odor panel, including the CEO, shall be employed. The odor level estimate shall be reported to the operator of the alleged source and the Whiting Board of Selectmen.
4. Excessive Odor Level: When the CEO or certified odor evaluator finds an odor level greater than four (4) on the twelve-point scale, the odor level shall be considered excessive and he shall immediately notify the operator of the alleged source with a follow-up letter confirming the notification.
Upon receipt of the written notice of excessive odor level, the owner or operator of the
odor source shall :
1. Implement Odor Reduction: The odor source owner-operator shall put into effect those odor reduction procedures that the owner-operator believes will best abate the nuisance.
2. Describe Odor Reduction Methods: The owner-operator of the odor source shall, within thirty (30) days of notification, submit to the Whiting Board of Selectmen an odor reduction plan which is designed to reduce ambient odor to Level 4 or less.
The plan shall include a summary of the measures that the owner-operator will take to mitigate odors and the completion date if those measures cannot implemented immediately.
In the event that odor reduction measures cannot be put in place for thirty (30) days or more, the owner-operator shall curtail operations or describe other means for mitigating odors in the interim.
CONTINUING VIOLATIONS
In the event that excessive odor violations occur after an initial citation and implementation of a mitigation plan, the owner or operator of the odor source shall be subject to the penalties prescribed in 30A M.R.S.A. Sec. 4452, which section is incorporated by reference, for each day that the excessive level persists. Persistence will be deemed to occur daily if the CEO or odor evaluator finds an excessive level in evaluations carried out at seven-day (7) intervals.
B. Animal Nuisance
It shall be a violation of this ordinance to create or encourage populations of animals that become a nuisance by feeding on or fouling agricultural crops, polluting streams or lakes, etc., or a health hazard as vectors for disease, etc.
1. Definition of Animal Nuisance: An animal nuisance will exist when the population of animals becomes three (3) times greater than normal as the result of a human action or activity, and there is evidence of a health threat or property damage from the increase in population. Insects, birds, and mammals are included in the term “animals”.
2. Nuisance Confirmation: An animal nuisance shall be confirmed by the independent observation records of three different individuals. Observers shall be residents of the area and prepared to attest to the accuracy of their observation data. Observation records shall represent data from time periods when an excessive population did not exist and records of the excessive population in a defined observation area and time interval.
Observers need not address precisely the same area, but the observed areas must obviously be contiguous or representative of the area said to be over-populated.
A rebuttable presumption of physical damage or threat to health will exist when the animal populations on sensitive areas (water bodies, agricultural lands, etc.) equal; three times normal population.
Residents may report their observations to the Code Enforcement Officer or Town clerk. When three reports arise for a given area, the CEO or another Town official shall interview the complainants and review their data.
3. Action Upon Confirmation: When the CEO or official deems the observation data to be valid, he shall notify the owner or operator of the alleged cause for the animal increase. A telephoned notification shall be confirmed by a letter including a summary of observation data from the three complainants.
Upon receipt of the written notice of animal population nuisance, the owner-operator shall:
1. Argue Another Cause: If the owner-operator of the alleged cause of the animal nuisance believes that his operation does not cause the nuisance, he shall submit observation data or other physical evidence vindicating his belief. The Whiting Board of Selectmen shall judge the validity of the owner-operator’s evidence versus complainant observations, and relieve the owner-operator when his evidence is persuasive.
The Board of Selectmen shall document the argument leading to their
conclusion in letters to the owner – operator and the complainants.
2. Implement Animal Control: In the event that the owner-operator agrees that his activity has caused an animal nuisance, or the Board of Selectmen make such a judgment, the owner-operator shall implement those animal control procedures that the owner-operator believes will best abate the nuisance.
3. Describe Animal Control Methods: The owner-operator of the activity causing the animal nuisance shall, within thirty (30) days of notification, submit to the Whiting Board of Selectmen an animal control plan which is designed to reduce animal populations to two (2) times normal level. The plan shall include a summary of the measures that the owner-operator will take to mitigate the animal nuisance and the completion date if those measures cannot be taken immediately.
In the event that animal control measures cannot be put into place for thirty (30) days or more, the owner-operator shall curtail operations or describe other means for the controlling animal population.
CONTINUING VIOLATIONS
In the event that excessive animal populations occur after an initial citation and implementation of a mitigation plan, the owner or operator of the activity shall be subject to the penalties prescribed in 30-A M.R.S.A. Sec. 4452 for each day that the excessive population persists. Persistence will be deemed to occur if observations by original complainants (or their neighbors) confirm the excessive numbers.
VI. EFFECTIVE DATE
The effective date of this ordinance is May 21st, 1997
Reference : ASTM Standard E544-75
Standard Recommended Practices for
REFERENCING SUPRATHESHOLD ODOR INTENSITY
Current Edition published July 1975.
/s/ John A. Pope A true copy. Attest: /s/ Alan D. Brooks
/s/ Timothy Mallar Alan D. Brooks, Clerk
/s/ Carroll C. Gilpatrick Town of Whiting
Dated: 05/14/97