Occasionally, traditional zoning methods and procedures such as variances, conditional use permits, and alterations to the zone boundaries are inadequate to promote desirable development. In these special situations, more flexible and adaptable zoning methods are needed to permit differing land uses in both developed and undeveloped areas, and at the same time recognize the effects of change. In consideration of a change in zoning classification for a particular property or group of properties, it may be determined that public necessity, convenience, or the general welfare require that provisions be made to impose certain limitations or restrictions on the use or development of the property. Such conditions are deemed necessary to protect the best interests of the property owner, the surrounding property owners and the neighborhood, all other property owners and citizens of the town, and to secure appropriate development consistent with the town's comprehensive plan.

(Ord. of 9-7-2004, § 1.8.1)

Pursuant to 30A M.R.S.A. § 4352(8), contract zoning is hereby authorized for conditional zoning of property, where the town council finds it is necessary or appropriate to impose, by agreement with the property owner, certain conditions or restrictions in order to ensure that the conditional zoning is consistent with the town's comprehensive plan. Contract zoning shall be limited to property for which a rezoning is requested by the owner or other person with sufficient right, title and interest. Nothing in this section shall be interpreted to permit an amendment that is not consistent with the comprehensive plan. Areas conditionally zoned under this provision shall be consistent with, but not limited to, the existing and permitted (whether permitted or conditional) uses within the original zones. By "contract zoning" this section means both contract and conditional zoning as authorized by 30 M.R.S.A. § 4352(8).

(Ord. of 9-7-2004, § 1.8.2)

A request for contract zoning shall include a written petition to the planning board requesting a rezoning, including the following:

(1)

Evidence of right, title or interest in the property;

(2)

A plot plan showing the boundaries of the parcel and its dimensions, as well as the existing and proposed buildings and structures;

(3)

A plan showing the location of existing streets and driveways within 200 feet of the property;

(4)

A detailed statement of the proposed use of the property and the precise zoning change requested (which may be contained in a draft contract zoning agreement);

(5)

A statement explaining how it is consistent with the comprehensive plan and permitted and existing uses within the original zone.

(6)

A statement setting forth the conditions or restrictions that the applicant proposes. The planning board may propose additional conditions or restrictions.

(Ord. of 9-7-2004, § 1.8.3)

(a)

The planning board shall conduct a public hearing before forwarding its recommendation to the town council under this provision.

(b)

Notice of the hearing shall be posted in town hall at least 14 days before the public hearing.

(c)

Notice shall also be published twice in a newspaper of general circulation, the date of first publication to be at least 14 days before the hearing and the date of second publication to be at least seven days before the hearing.

(d)

Public hearing notices shall be mailed to the owner of the property to be rezoned and all abutters to that property. This notice shall be sent out at least seven days prior to the public hearing. This notice must contain a copy of the proposed conditions and restrictions with a map indicating the property to be rezoned.

(e)

Failure of any property owner to receive a notice shall not necessitate another hearing or invalidate any action by the planning board or town council.

(f)

The planning board may also, at its discretion, conduct an informal workshop prior to the public hearing, giving board members, the applicant and abutters an opportunity to discuss the contract zoning proposal.

(Ord. of 9-7-2004, § 1.8.4)

Conditions and restrictions imposed under this section shall relate only to the physical development and operation of the property and may include, by way of example:

(1)

Limitations on the number and types of uses permitted;

(2)

Conditions on the scale and density of development, including the height, lot coverage and other space and bulk provisions;

(3)

Specifications for the design and layout of buildings and other improvements;

(4)

Schedules for commencement and completion of construction;

(5)

Performance guarantees securing completion and maintenance of improvements, and guarantees against defects;

(6)

Preservation of open space and buffers, and protection of natural areas and historic sites;

(7)

Provision of municipal services required by the development;

(8)

Provisions for enforcement and remedies for breach of any condition or restriction, including the timing of the effective date of the change and its repeal should conditions not be met;

(9)

The dedication or conveyance of property for public purposes, including but not limited to, streets, easements, parks and utility systems.

(Ord. of 9-7-2004, § 1.8.5)

After the public hearing under section 78-2134, the planning board shall provide an advisory recommendation on the request for contract zoning to the town council. Before forwarding its recommendation to the town council, the planning board shall make a finding on each of the three factors in this subsection. A favorable recommendation to the council requires a positive finding on all three factors. If the planning board makes a negative finding on any of the factors, its recommendation shall be negative. The planning board shall base its recommendation on whether the proposed rezoning:

(1)

Is consistent with the comprehensive plan;

(2)

Is consistent with, but not limited to, the existing uses and allowed uses within the original zone; and

(3)

is subject to conditions sufficient to achieve the purposes described in section 78-2131.

(Ord. of 9-7-2004, § 1.8.6)

(a)

The town council shall act on the request for contract zoning following the procedures of Section 410 of the Old Orchard Beach Town Charter for enactment of ordinances. The council may begin its review of the request for contract zoning at any time, but may not hold its public hearing until the planning board has held its public hearing under section 78-2134, and the council shall not take final action on the request for contract zoning until the council has received the recommendation of the planning board under section 78-2136.

(b)

The submission of a request for contract zoning, the payment of application fees, or the expenditure of funds by the applicant in presenting such a request shall not create any vested rights in the application. The conduct of meetings and hearings, the review of the application, comments by town officials or staff, preliminary votes, findings or determinations, preliminary subdivision or site plan approval, and the availability of contract zoning shall not be construed as creating any entitlement to approval of a request for contract zoning. The decision whether or not to rezone remains committed to the town council exercising its sole and exclusive judgment as the elected legislative body of the Town of Old Orchard Beach and will not be made until the council takes its final vote on the contract zoning amendment.

(Ord. of 9-7-2004, § 1.8.7)

Amendments to the zoning map and ordinance made under this section may be amended or repealed by the town council pursuant to section 78-31.

(Ord. of 9-7-2004, § 1.8.8)

All requests for contract zoning are subject to site plan review. An applicant may seek other permits at the same time as he or she is seeking the contract zoning as if the contract zoning were already in effect, or may seek them after the town council has approved the zoning amendment. If the applicant seeks approval before final council action on the amendment, the planning board shall make its approval of these other permits contingent on the town council's approval of the contract zoning amendment.

(Ord. of 9-7-2004, § 1.8.9)

Notwithstanding 1 M.R.S.A. Section 302, this section article IX, sections 78-2131—78-2140 applies to any request for contract zoning submitted to the town after April 1, 2004.

(Ord. of 9-7-2004, § 1.8.10)

Editor's note— For ease in record keeping, contract zoning actions by the town council will be recorded here with the map and lot number of the property, street address, the owner's name at that time, and the date of town council action.

STATE OF MAINE
DEPARTMENT OF ENVIRONMENTAL PROTECTION
17 STATE HOUSE STATION
AUGUSTA, ME 04333

DEPARTMENT ORDER

IN THE MATTER OF

Pursuant to the provisions of 38 M.S.R.A., Section 435-449, and 06-096 CMR, Chapter 1000, State of Maine Guidelines for Municipal Shoreland Zoning Ordinances, effective March 24, 1990, and amended through November 22, 2010, the Department of Environmental Protection has considered the shoreland zoning provisions within the Zoning Ordinance for the Town of Old Orchard Beach, as adopted on May 17, 2011, and FINDS THE FOLLOWING FACTS:

1.

The Mandatory Shoreland Zoning Act (Act) requires the Town of Old Orchard Beach to establish zoning controls in areas within 250 feet of the normal high water line of great ponds, and rivers; within 250 feet of the upland edge of freshwater and coastal wetlands; and within 75 feet of streams and tributary streams. Such zoning standards must be consistent with or no less restrictive than those in the State of Maine Guidelines for Municipal Shoreland Zoning Ordinances. (Guidelines) as adopted by the Board of Environmental Protection (Board).

2.

The Act specifies that before a locally adopted shoreland zoning ordinance or map, or amendments to that ordinance or map, is effective, it must be approved by the Commissioner of the Department of Environmental Protection (Department). The Department may approve, approve with conditions, or deny a locally adopted ordinance or map. If denied, or approved with conditions, such action must be preceded by notice to the municipality.

3.

On June 3, 2011, the Town of Old Orchard Beach submitted a copy of the Zoning Ordinance (Ordinance) as adopted on May 17, 2011, to the Department for review. The Ordinance includes numerous changes that affect shoreland zoning application. These changes were made in order to update the Town's Ordinance in an effort to make it consistent with the May 1,2006, Guidelines.

4.

The Department review of the Shoreland Zoning Ordinance of the Town of Old Orchard Beach revealed the following significant deficiencies:

A.

Section 78-1185, Space and bulk requirements, is deficient of several necessary provisions relating to determining the minimum lot dimensional requirements.

B.

Section 78-1203, Piers, docks, wharves, bridges and other structures and uses extending over or below the normal high water line of a waterbody or within a wetland, is inconsistent the minimum requirements in the Guidelines. Specifically, this section allows non-functionally water-dependent uses on new piers, and also allows the height of new structures on piers to exceed 20 feet in height.

5.

In a letter dated July 1, 2011, the Town of Old Orchard Beach was notified by the Department about the deficiencies described in Finding 4.

Based on the above Findings of Fact, the Department makes the following CONCLUSIONS:

1.

The Zoning Ordinance for the Town of Old Orchard Beach, as amended on May 17, 2011, is substantially consistent with the requirements of the Mandatory Shoreland Zoning Act, 38 M.S.R.A., Section 438-A, EXCEPT FOR the deficiencies described in Finding 4.

2.

The Department can correct the deficiencies described in Finding 4 by approving the Old Orchard Beach Ordinance with the condition that the Ordinance be changed to reflect the requirements described in Finding 4.

THEREFORE, the Department APPROVES the Shoreland Zoning Ordinance for the Town of Old Orchard Beach as adopted on May 17, 2011, WITH THE FOLLOWING CONDITIONS:

1.

Section 78-1185 of the Ordinance shall be amended to include the following provisions:

"1)

Land below the normal high-water line of a water body or upland edge of a wetland and land beneath roads serving more than two (2) lots shall not be included toward calculating minimum lot area.

2)

Lots located on opposite sides of a public or private road shall be considered each a separate tract or parcel of land unless such road was established by the owner of land on both sides thereof after September 22, 1971.

3)

The minimum width of any portion of any lot within one hundred (100) feet, horizontal distance, of the normal high-water line of a water body or upland edge of a wetland shall be equal to or greater than the shore frontage requirement for a lot with the proposed use.

4)

If more than one residential dwelling unit, principal governmental, institutional, commercial or industrial structure or use, or combination thereof, is constructed or established on a single parcel, all dimensional requirements shall be met for each additional dwelling unit, principal structure, or use."

2.

Section 78-1203(5) shall be amended in its entirety to read as follows:

"Except for piers existing on May 17, 2011 in the DD-1 and DD-2 Districts, no new structure shall be built on, over or abutting a pier, wharf, dock or other structure extending beyond the normal high water line of a water body or within a wetland unless the structure requires direct access to the water body or wetland as an operational necessity."

3.

Section 78-1203(8) shall be amended in its entirety to read as follows:

"Except for piers existing on May 17, 2011 in the DD-1 and DD-2 Districts, structures built on, over or abutting a pier, wharf, dock or other structure extending beyond the normal high water line of a waterbody or within a wetland shall not exceed 20 feet in height above the pier, wharf, dock or other structure. In the DD-1 and DD-2 Districts, structures built on, over or abutting a pier, wharf, dock or other structure extending beyond the normal high water line of a waterbody or within a wetland in existence on May 17, 2011, shall not exceed 35 feet in height above the pier, wharf, dock or other structure."

DEPARTMENT OF ENVIRONMENTAL PROTECTION

PLEASE NOTE ATTACHED SHEET FOR GUIDANCE ON APPEAL PROCEDURES …

Old Orchard Beach cond order 31-2011 7-1-11/mm