Unless otherwise provided in this Land Use Ordinance, the Code Enforcement Officer, as duly appointed by the Town Manager and confirmed by the Orono Town Council, shall administer and enforce this ordinance. No building permit or certificate of occupancy shall be issued by the Code Enforcement Officer except in compliance with the provisions of this Land Use Ordinance. The Code Enforcement Officer shall have the following duties, among others, in enforcing this ordinance:

(1)

Examine preliminary plans.

(2)

Act upon all applications and collect any fees due; refer/process all applications as required.

(3)

Inspect sites where building permits have been issued to ensure compliance with all local, State and Federal laws, codes and/or ordinances. Keep all activities within the jurisdiction of these laws/ordinances under surveillance at all times.

(4)

Investigate complaints and reported violations.

(5)

Keep written inspection reports and thorough records.

(6)

Issue violation notices.

(7)

Participate in appeals procedures.

(8)

Process or act on consent agreements involving violations of this Land Use Ordinance or appear in court when necessary.

(9)

Offer advice and opinions to citizens upon request.

(10)

Attend meetings of the Planning Board and Board of Appeals.

(11)

Revoke a permit after notice has been given if it was issued in error or if it was based on erroneous information.

(12)

Make determinations on whether any application conforms to the requirements of this ordinance, including but not limited to a determination of whether a proposed use is permitted under the ordinance.

When there is a question concerning the interpretation of this Land Use Ordinance, the Code Enforcement Officer may refer the matter to the Board of Appeals for interpretation.

(Ord. No. 00-38, § 3.1, 3-13-00)

(a)

Established; membership. Pursuant to M.R.S.A. Const. art. VIII, and 30-A M.R.S.A. § 3001, the Town hereby establishes the Town Planning Board.

(1)

Appointments to the Board shall be made by the municipal officers.

(2)

The Board shall consist of seven members and two associate members.

(3)

The term of each member shall be five years, except the initial appointments, which shall be two for five years, two for four years, one for three years, one for two years, and one for one year, respectively. The term of office of an associate member shall be five years.

(4)

When there is a permanent vacancy, the municipal officers shall, within 60 days of its occurrence, appoint a person to serve the unexpired term.

(5)

Not more than one municipal officer may serve as a member or associate member.

(b)

Organization and rules.

(1)

The Planning Board shall elect a Chairman from among its members and designate a Secretary. The term of all officers shall be one year with eligibility for reelection. The Board may create and fill such other offices as it may determine.

(2)

When a member is unable to act because of physical incapacity, absence or any other reason satisfactory to the Chairman, the Chairman shall designate an associate member to sit in the member's stead.

(3)

An associate member shall attend all meetings of the Board and participate in its proceedings, but may vote only when the associate member has been designated by the Chairman to sit for a member.

(4)

Any question of whether a member shall be disqualified from voting on a particular matter shall be decided by a majority vote of the members except the member who is being challenged.

(5)

The Chairman shall call at least one regular meeting of the Board each month unless there is no business to be conducted.

(6)

No meeting of the Board shall be held without a quorum consisting of four members or associate members authorized to vote.

(7)

The Board shall adopt bylaws for transaction of business and the Secretary shall keep a record of its resolutions, transactions, correspondence, findings and determinations. All records shall be deemed public and may be inspected at reasonable times.

(8)

Any associate member of the Planning Board is required to attend a Maine Municipal Association training session before becoming a full-voting member.

(c)

Duties and powers.

(1)

The Orono Planning Board shall be responsible for reviewing and acting upon applications for site plan review approval in accordance with the provisions of article VI of this Land Use Ordinance. Following site plan review approval, the applicant shall return to the Code Enforcement Officer for building and other permits. The Planning Board shall also review subdivision applications in accordance with the provisions of article VII of this Land Use Ordinance, as well as permits requiring Planning Board approval set forth in articles IV and IX of this Land Use Ordinance. Following subdivision approval, the applicant shall return to the Code Enforcement Officer for any building or land use permits.

(2)

The Board shall perform such duties and exercise such powers as are provided by the Town Legislative Body.

(3)

The Board may obtain goods and services necessary to its proper function within the limits of appropriations made for the purpose.

(4)

The Board shall adopt bylaws.

(d)

The appeal of any final decision by the Planning Board shall be to Superior Court pursuant to Rule 80B of the Maine Rules of Civil Procedure. The appeal shall be taken within 30 days from the date the decision was rendered by the Planning Board.

(Ord. No. 00-38, § 3.1, 3-13-00; Ord. No. 03-40, 3-10-03; Ord. No. 03-46, 3-27-03)

(a)

Established; membership; organization and rules.

(1)

A Board of Appeals is hereby established in accordance with State law and the provisions of this article.

a.

The Board of Appeals shall be appointed by the Town Council and shall consist of seven regular members and two alternates, all of whom shall be legal residents of the Town, serving staggered terms of three years.

b.

The Board shall elect annually a Chairman and Secretary from its membership. The Secretary shall keep the minutes of the proceedings of the Board of Appeals, which shall show the vote of each member upon each question. All minutes of the Board shall be a public record. A quorum shall consist of four regular or alternate members.

(2)

When a regular member is unable to act because of interest, physical incapacity, absence or any other satisfactory reason, the Chairman shall designate an alternate member to act instead. An alternate member may participate in the Board's proceedings but may vote only when the member has been so designated by the Chairman.

(3)

Neither a Town Council Member nor the spouse of a Town Council Member may serve as a member of the Board of Appeals.

(4)

Any question of whether a particular issue involves a conflict of interest sufficient to disqualify a member from voting thereon shall be decided by majority vote of the members, except the member who is being challenged.

(5)

A member of the Board may be dismissed for cause by the Town Council upon written charges and after a public hearing.

(b)

Powers and duties. The Board of Appeals shall be responsible for interpreting the meaning of terms of this Land Use Ordinance that are called into question and for deciding administrative and variance appeals in accordance with the requirements of this Land Use Ordinance. Following the issuance of any decision favorable to the applicant, the applicant shall return to the Code Enforcement Officer for building and other permits.

(Ord. No. 00-38, § 3.1, 3-13-00)

A permit from the Code Enforcement Officer shall be required before beginning or undertaking any of the following activities:

(1)

Building or construction. No building or dwelling unit shall be constructed, structurally altered, enlarged or moved unless a building permit for such action has been issued by the Code Enforcement Officer.

(2)

Moving or demolition. All buildings which are removed from or moved onto, or moved around within a lot, or demolished.

(3)

Change of use. The change of any premises from one category of land use to any other land use.

(4)

Activities listed in the schedule of land uses. Any activity listed in article IV (Zoning Districts) section 18-106 (Schedule of Uses) of this Land Use Ordinance as requiring a permit from the Code Enforcement Officer. No permit may be issued under this provision for an activity which is part of a site or project requiring site plan review approval until such approval has been granted by the Planning Board.

(5)

Site plan review activities. Any activity approved by the Planning Board under the site plan review provisions of article VI of this Land Use Ordinance.

(6)

Shoreland zoning activities. Any activity listed in article IX (Shoreland Zoning) section 18-273 as requiring a permit from the Code Enforcement Officer. See article IX, section 18-275 for additional provisions for administering permits in the shoreland zone. No permit may be issued under the provisions of section 18-273 for an activity requiring a Planning Board permit until approval for such permit has been granted by the Planning Board in accordance with the provisions of article IX, section 18-275.

(7)

Floodplain management activities. Any activity listed in article VIII (Floodplain Management) section 18-232 as requiring a permit from the Code Enforcement Officer. Such permit shall be issued in accordance with the provisions of article VIII, sections 18-233—18-235.

(8)

Home occupations.

(a)

Home occupations that are home offices or home workshops, as defined in this ordinance, that do not involve new construction and that meet all standards for such home occupations as set forth in section 18-131, shall be allowed without a permit in the zoning districts indicated in section 18-106 of this ordinance, but the operator of the home occupation shall register the home occupation with the Code Enforcement Office. A home occupation that involves new construction or is a home business shall apply to the Planning Board prior to commencing the home occupation for review and approval under with the standards of section 18-131 and, as may be relevant, standards of the Site Plan Review Ordinance.

(b)

Once registered, or, if required, upon receipt of a permit by the Code Enforcement Officer following approval by the Planning Board, such registration or permit shall be sufficient for the life of the home occupation; provided, however, that if the Code Enforcement Officer cites the owner of the home occupation for violation of this ordinance or receives multiple complaints that in his judgment constitute doubt that the home occupation is operating according to the standards of a home occupation, the home occupation must, within 30 days of notification by the Code Enforcement Officer, apply or re-apply to the Planning Board for approval according to the standards of section 18-131 and, in addition, for a determination whether the operator of the home occupation has the technical and financial capacity to comply with the standards of section 18-131. The burden of proof for such determinations shall be the applicant's. If the owner of the home occupation has been found to be in violation of the standards of section 18-131, the owner shall cease operations of the home occupation within 30 days and prior to applying or re-applying to the Planning Board for new approval and, as may be required, a new permit for the home occupation.

Renewal or operating permits shall be required on an annual basis on or before the anniversary date of the original permit.

(Ord. No. 00-38, § 3.2, 3-13-00; Ord. No. 16-207, 12-12-16)

(a)

Application. All applications for a permit shall be submitted in writing to the Code Enforcement Officer on forms provided for the purpose. All applications shall be signed by the owner or owners of the property or other person(s) authorizing the work, certifying that the information in the application is complete and correct. The applicant shall submit proof of right, title or interest in the property. If the person signing the application is not the owner or lessee of the property then that person shall submit a letter of authorization from the owner or lessee.

(b)

Submissions. Unless otherwise requested by the Code Enforcement Officer, there shall be submitted with all applications a layout or plot plan drawn to scale showing:

(1)

The actual dimensions of the lot to be built upon;

(2)

The location and size of all buildings, structures, and other significant features currently existing on the lot, and all areas subject to shoreland zoning, shoreland setbacks; all water bodies and wetlands within 250 feet of the property boundaries;

(3)

The exact size and location on the lot of the buildings, structures and accessory buildings to be erected and such other information as may be necessary to determine and provide for the enforcement of this Land Use Ordinance;

(4)

The existing and intended use of each building or structure;

(5)

Where applicable, the location of soils test pits, subsurface sewage disposal systems, site drainage, parking lots, driveways, signs, buffer strips, fences and private wells; and

(6)

Such other information as may be reasonably required by the Code Enforcement Officer to provide for the administration and enforcement of this Land Use Ordinance.

(c)

Fees. The application for a permit or development approval shall be accompanied by an application fee in such amount as the Town Council may by rule or ordinance from time to time establish. The fee schedule will be provided to the applicant by the Code Enforcement Officer. An additional fee may be charged if the Planning Board or Board of Appeals needs the assistance of a professional engineer or other expert. The expert's fee shall be paid in full by the applicant within ten days after the Town submits a bill to the applicant. Failure to pay the bill shall constitute violation of this Land Use Ordinance and be grounds for the issuance of a stop work order.

(d)

Certificate of compliance required in flood hazard areas. No land in a special flood hazard area shall be occupied or used and no structure which is constructed or substantially improved shall be occupied until a certificate of compliance is issued by the Code Enforcement Officer subject to the following provisions:

(1)

The applicant shall submit an elevation certificate completed by:

a.

A registered surveyor for compliance with article VIII, pertaining to application for a flood hazard development permit; and

b.

A registered professional engineer or architect, in the case of floodproofed nonresidential structures, for compliance with article VIII.

(2)

The application for a certificate of compliance shall be submitted by the applicant in writing along with a completed elevation certificate to the Code Enforcement Officer.

(3)

The Code Enforcement Officer shall review the application within ten working days of receipt of the application and shall issue a certificate of compliance provided the building conforms with the provisions of article VIII.

(e)

Timber harvesting notification.

(1)

Purpose. The purpose of this section is to inform the Town Planning Board and Code Enforcement Officer of the timing, extent and location of harvest operations to be located in any shoreland zone, resource protection zone, or wildlife protection zone with the Town boundaries.

(2)

Notification. All submissions and notifications required under 12 M.R.S.A. § 8883, Notification of Intent to Harvest Forest Products, and 12 M.R.S.A. §§ 8867—8869, Forest Regeneration and Clearcutting Standards, as these rules now exist or are amended, will also be submitted to the Code Enforcement Officer and Town Planning Board prior to the commencement of any commercial timber harvesting operations. Such submissions and notifications shall be exact copies of those to be submitted to the State Forest Service. In addition, a copy of any forest management plan required pursuant to 12 M.R.S.A. §§ 8867—8869 will be submitted to the Town prior to the harvest.

(3)

Exemptions. Activities exempt from notification include the following:

a.

Harvests for personal use only;

b.

Harvest related to precommercial silvicultural practices;

c.

Harvest of Christmas trees and boughs, maple syrup, cones, and other seed products; and

d.

Harvests related to a Town approved development site plan.

(4)

Penalty. Civil offense shall be punishable by a fine as established by 30-A M.R.S.A. § 4452.

(f)

Burden of proof. The applicant shall have the burden of proving that a proposed land use activity is in conformity with the provisions of this Land Use Ordinance.

(Ord. No. 00-38, § 3.3, 3-13-00; Ord. No. 03-46, 3-27-03)

Within 30 days of the date of receipt of a complete application for a permit, the Code Enforcement Officer shall examine such application and physically examine the premises to determine whether or not the proposed building, structure or use would be in compliance with this Land Use Ordinance.

(1)

Approvals or denials. In all cases, the Code Enforcement Officer shall approve or deny such application for a building permit in accordance with whether or not such proposed building or structure complies with this Land Use Ordinance.

(2)

Referrals. All applications which require action from the Board of Appeals or which require approval by the Planning Board, shall within such period of 30 days be referred to the applicable Board for action and public notice shall be given. After approval, with or without conditions, by such Board, the applicant shall apply to the Code Enforcement Officer for a building permit. The Code Enforcement Officer shall act upon a completed building permit application within five days after receipt of such completed application, provided, however, that an application that requires Planning Board approval shall not be referred to the Planning Board by the Code Enforcement Officer if the Code Enforcement Officer makes a determination that the proposed building, structure or use would not be in compliance with the provision of the Land Use Ordinance.

(3)

Notification. The Code Enforcement Officer shall inform the applicant in writing of any action taken by him or her regarding the building permit application. If such application is rejected by the Code Enforcement Officer, such notice to the applicant shall contain a brief statement of the findings of the Code Enforcement Officer and the reasons for the rejection. No permit shall be issued except to the owner of record or his or her authorized agent.

(Ord. No. 00-38, § 3.4, 3-13-00)

All building permits are valid for a two-year period during which the authorized work is continuous. A permit under which no substantial work is commenced within six months after issuance, or under which authorized work is suspended or abandoned for a period of six consecutive months, shall expire, and the permit shall be forfeited.

(Ord. No. 00-38, § 3.5, 3-13-00)

(a)

Notice of violations. If the Code Enforcement Officer shall find that any of the provisions of this Land Use Ordinance are being violated, he or she shall notify in person or by certified mail the person responsible for such violation, indicating the nature of the violation and the State/local regulations regarding fines, and order the action necessary to correct it. He or she shall order discontinuance of illegal use of land, buildings, structures, additions, alterations or structural changes thereto or discontinuance of any illegal activity. It shall also be the duty of the Town Manager and other administrative personnel to assist the Code Enforcement Officer by reporting to him or her upon new construction, reconstruction or land uses, or upon observing apparent violations.

(b)

Legal action. When the above action does not result in the correction or abatement of the violation or nuisance condition, the Code Enforcement Officer is hereby authorized to institute or cause to be instituted by an attorney, in the name of the Town, any and all legal actions, legal or equitable, that may be appropriate or necessary for the enforcement of this Land Use Ordinance, provided, however, that this section shall not prevent any person entitled to equitable relief from enjoining any act contrary to the provisions of this Land Use Ordinance.

In addition, the Town Council may institute proceedings to enjoin any violations of this Land Use Ordinance. If a violation is found in court, the Town shall be allowed attorney fees.

With regard to shoreland zoning, such arrangements shall not allow an illegal structure or use to continue unless there is clear and convincing evidence that the illegal structure or use was constructed or conducted as a direct result of erroneous advice given by an authorized municipal official and there is no evidence that the owner acted in bad faith, or unless the removal of the structure or use will result in a threat or hazard to public health and safety or will result in substantial environmental damage.

(c)

Fines. Any person being the owner or occupant of, or having control or use of any building, structure or premises, including any business, corporation, organization or contractor, who violates a provision of this Land Use Ordinance, shall be guilty of a civil offense and upon conviction, shall be punished by a fine of $100.00 to $2,500.00 for each offense (Title 30-A, M.R.S.A. § 4452). Each day that such violation continues after notification shall constitute a separate offense. In the event that the Code Enforcement Officer gives a violator a specific period of time in which to correct such offense, the number of offenses shall be calculated from the date of original notification.

(d)

Administrative consent agreement. Upon recommendation of the Code Enforcement Officer or Town Attorney as to form and compliance with this Land Use Ordinance, certain violations of this Land Use Ordinance may be resolved by an Administrative Consent Agreement executed by the violator and the Town. An Administrative Consent Agreement shall require:

(1)

The violation will be corrected;

(2)

The violator admits to the violation; and

(3)

The violator pays an appropriate monetary penalty of not less than $100.00 and the town's legal costs.

(e)

Installation of public utility service; shoreland zone. No public utility, water district, sanitary district or any utility company of any kind may install services to any new structure located in the shoreland zone unless written authorization attesting to the validity and currency of all local permits required under this or any previous ordinance or code, has been issued by the appropriate municipal officials, indicating that installation has been approved.

(f)

Violations of floodplain management regulations. In addition to any other actions under this article, the Code Enforcement Officer, upon determination that a violation exists of article VIII of this Land Use Ordinance, pertaining to floodplain management, shall submit a declaration to the administrator of the Federal Insurance Administration requesting a denial of flood insurance. The valid declaration shall consist of:

(1)

The name of the property owner and address or legal description of the property sufficient to confirm its identity or location;

(2)

A clear and unequivocal declaration that the property is in violation of a cited State or local law, regulation or ordinance;

(3)

A clear statement that the public body making the declaration has the authority to do so and a citation to that authority;

(4)

Evidence that the property owner has been provided notice of the violation and the prospective denial of insurance; and

(5)

A clear statement that the declaration is being submitted pursuant to section 1316 of the National Flood Insurance Act of 1968, as amended.

(g)

Violations of shoreland zoning regulations.

(1)

Nuisances. Any violation of this chapter shall be deemed to be a nuisance.

(2)

Code Enforcement Officer.

a.

It shall be the duty of the Code Enforcement Officer to enforce the provisions of this chapter. If the Code Enforcement Officer shall find that any provision of this chapter is being violated, he or she shall notify in writing the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it, including discontinuance of illegal use of land, buildings or structures, or work being done, removal of illegal buildings or structures, and abatement of nuisance conditions. A copy of such notices shall be submitted to the municipal officers and be maintained as a permanent record.

b.

The Code Enforcement Officer shall conduct on-site inspections to ensure compliance with all applicable laws and conditions attached to permit approvals. The Code Enforcement Officer shall also investigate all complaints of alleged violations of this chapter.

c.

The Code Enforcement Officer shall keep a complete record of all essential transactions of the office, including applications submitted, permits granted or denied, variances granted or denied, revocation actions, revocation of permits, appeals, court actions, violations investigated, violations found, and fees collected. On a biennial basis, a summary of this record shall be submitted to the Director of the Bureau of Land and Water Quality within the Department of Environmental Protection.

(3)

Legal actions. When the above action does not result in the correction or abatement of the violation or nuisance condition, the municipal officers, upon notice from the Code Enforcement Officer, are hereby directed to institute any and all actions and proceedings, either legal or equitable, including seeking injunctions of violations and the imposition of fines, that may be appropriate or necessary to enforce the provisions of this article in the name of the municipality. The municipal officers, or their authorized agent, are hereby authorized to enter into administrative consent agreements for the purpose of eliminating violations of this article and recovering fines without court action. Such agreements shall not allow an illegal structure or use to continue unless there is clear and convincing evidence that the illegal structure or use was constructed or conducted as a direct result of erroneous advice given by an authorized municipal official and there is no evidence that the owner acted in bad faith, or unless the removal of the structure or use will result in a threat or hazard to public health and safety or will result in substantial environmental damage.

(4)

Fines. Any person, including but not limited to a landowner, a landowner's agent or a contractor, who violates any provision or requirement of this chapter shall be penalized in accordance with 30-A M.R.S.A., § 4452.

NOTE: Current penalties include fines of not less than $100.00, nor more than $2,500.00 per violation for each day that the violation continues. However, in a resource protection district the maximum penalty is increased to $5,000.00 (38 M.R.S.A., § 4452).

(h)

Documentation of number of unrelated persons in a dwelling unit. When the Code Enforcement Officer, based on complaints, reports, personal observation, or other evidence, has reason to believe that the number of unrelated persons living in a dwelling unit may exceed the limits set forth in section 18-31 under the definition of "family," (or, in the case of a dwelling unit that is legally nonconforming with respect to the number of unrelated persons, the number of such persons allowed as a result of that legal nonconformance), the Code Enforcement Officer may make a written request of the property owner for copies of signed leases or similar signed legal agreements documenting the names and number of tenants residing in the dwelling unit; for a list of names of persons known to the property owner to be living in the dwelling unit but are not signatories to the lease and their relationships to lessees; and an affidavit that no other persons unrelated to the lessees are either authorized by or known to the property owner to be living in the dwelling unit. The property owner shall provide the requested documents within 15 days of receipt of the request.

(Ord. No. 00-38, § 3.6, 3-13-00; Ord. No. 00-173, 7-10-00; Ord. No. 09-114, 6-8-09; Ord. No. 11-51, 4-11-11; Ord. No. 16-128, 7-11-16)

(a)

Subdivisions. Where the Planning Board finds that extraordinary and unnecessary hardship may result from strict compliance with this Land Use Ordinance, or where there are special circumstances of a particular plan, it may waive any of the regulations of article VII provided that such waiver will not have the effect of nullifying the purpose of this Land Use Ordinance, the Comprehensive Plan, or any other ordinance. In granting any waiver, the Planning Board shall require such conditions as will, in its judgment, secure substantially the objectives of the requirements so waived.

(b)

Site plan review. The Planning Board may waive the requirement for any information listed in article VI upon the finding that this information so waived is not necessary for the Board to fully consider the standards governing site plan review as they pertain to the specific site plan under consideration.

(Ord. No. 00-38, § 3.7, 3-13-00)

(a)

Jurisdiction and authority. For the purpose of these Land Use Regulations, the Board of Appeals shall have the jurisdiction and authority:

(1)

Administrative appeals.

a.

To hear and decide appeals on a de novo basis where it is alleged that there is an error in any order, requirement, decision, or determination made by, or failure to act by, the Code Enforcement Officer in the administration of these land use regulations. At this time the Board may receive and consider new evidence and testimony, be it oral or written. When acting in a "de novo" capacity the Board of Appeals shall hear and decide the matter afresh, undertaking its own independent analysis of evidence and the law, and reaching its own decision.

b.

Any order, requirement, decision or determination made, or failure to act, by the Planning Board or by the Code Enforcement Officer in the enforcement of these land use regulations is not appealable to the Board of Appeals.

(2)

Variance appeals. To authorize variances upon appeal within the limitations set forth in these land use regulations.

(b)

Appeal procedure.

(1)

Time limit. An administrative appeal or a request for a variance may be taken to the Orono Zoning Board of Appeals by an aggrieved party from any administrative decision of the Code Enforcement Officer. Such appeal shall be taken within 30 days of the date of the official, written decision appealed from, and not otherwise, except that the Board, upon a showing of good cause, may waive the 30-day requirement.

(2)

Submissions. Applications for appeals shall be made by filing with the Board of Appeals a written notice of appeal which includes:

a.

A concise written statement indicating what relief is requested and why the appeal should be granted.

b.

A sketch drawn to scale showing lot lines, location of existing and proposed buildings and structures, contours at realistic intervals, and other physical features of the lot pertinent to the relief sought.

c.

The names and addresses of abutting property owners.

d.

For variance appeals, the request shall indicate how the appeal meets the requirements for variance appeal as set forth in this section.

Additional information deemed necessary by the Board of Appeals to make a fair and equitable decision, shall be supplied by the applicant upon request. The application must be signed by the applicant. All variances and administrative appeals by an aggrieved party shall be accompanied by a fee payable to the Town of Orono as established by the Orono Town Council.

(3)

Board of Appeals action.

a.

Upon receiving an application for an administrative appeal or a variance request, the Code Enforcement Officer shall transmit to the Board of Appeals all of the papers constituting the record of the decision appealed from.

b.

Whenever a request for a variance involves a property located in a shoreland zoning district, a copy of each variance request, including the application and all supporting information supplied by the applicant, shall be forwarded by the municipal officials to the Commissioner of the Department of Environmental Protection at least 20 days prior to action by the Board of Appeals. Any comments received from the Commissioner prior to the action by the Board of Appeals shall be made part of the record and shall be taken into consideration by the Board of Appeals.

1.

Following the filing of the appeal, the Board of Appeals shall hold a public hearing on the appeal in accordance with section 18-84.

2.

The Board of Appeals may approve the appeal, deny the appeal, or approve the appeal with appropriate conditions and safeguards.

3.

Upon notification of the decision of the Board of Appeals, the Code Enforcement Officer shall take all necessary action as instructed by the Board.

4.

The person filing the appeal shall have the burden of proof.

5.

The Board of Appeals shall hold a public hearing on an administrative appeal or a request for a variance within 35 days of its receipt of complete written application, unless this time period is extended by the parties.

6.

The Board shall decide all administrative appeals and variance appeals within 35 days after the close of the hearing, and shall issue a written decision on all appeals.

(c)

Administrative appeals. An administrative appeal is an appeal:

(1)

Errors. Where it is alleged that there is an error in any order, requirement, decision or determination by the Code Enforcement Officer in the administration of these land use regulations. The action of the Code Enforcement Officer may be approved, modified or reversed by the Board of Appeals.

(2)

Interpretation. Where the interpretation of provisions of the land use regulations are called into question.

(d)

Variance appeals.

(1)

The Board of Appeals shall hear and decide variance appeals. A variance may be granted only when strict application of these land use regulations, or a provision thereof, to the applicant and applicant's property would cause undue hardship. Undue hardship shall include each of the following:

a.

That the land in question cannot yield a reasonable return unless a variance is granted;

b.

That the need for a variance is due to the unique circumstances of the property and not to the general conditions of the neighborhood;

c.

The granting of a variance will not alter the essential character of the locality;

d.

That the hardship is not the result of action taken by the applicant or a prior owner;

e.

Where the subject property is located in a shoreland zoning district, a variance is authorized only from dimensional requirements, including, but not limited to, lot width, structure height, percent of lot coverage, and setback requirements. The Board shall not grant a variance unless it finds that the proposed structure or use would meet the provisions of article IX, section 18-274 except for the specific provision which has created the nonconformity and from which relief is sought; and

f.

Where the subject property is located in a flood hazard area, as shown on the Town of Orono Flood Insurance Rate Map, the requirements of subsection 18-83(g) will also apply.

A variance under this subsection is authorized only for height, setback, area, frontage and size of structures, or size of yards or open spaces.

Establishment or expansion of a use otherwise prohibited shall not be allowed by variance, nor shall a variance be granted because of the presence of nonconformities in the zoning district or uses in adjoining zoning districts.

The Board of Appeals shall limit any variances granted as strictly as possible in order to ensure conformance with the purposes and provisions of this Ordinance to the greatest extent possible, and in doing so may impose such conditions to a variance as it deems necessary. The party receiving the variance shall comply with any conditions imposed.

(2)

In addition, the Board of Appeals shall hear and decide variance appeals seeking relief from dimensional standards. A variance may be granted from the dimensional standards of these land use regulations when strict application thereof to the applicant and the applicant's property would cause a practical difficulty and when the following conditions exist:

a.

The need for a variance is due to the unique circumstances of the property and not to the general conditions of the neighborhood;

b.

The granting of a variance will not produce an undesirable change in the character of the neighborhood and will not unreasonably detrimentally affect the use or market value of abutting properties;

c.

The practical difficulty is not the result of action taken by the applicant or a prior owner;

d.

No other feasible alternative to a variance is available to the applicant;

e.

The granting of a variance will not unreasonably adversely affect the natural environment;

f.

The property is not located in whole or in part within shoreland areas as described in 38 M.R.S.A., § 435.

As used in this subsection, "dimensional standards" means and is limited to ordinance provisions relating to lot area, lot coverage, frontage and setback requirements.

As used in this subsection, "practical difficulty" means that the strict application of the ordinance to the property precludes the ability of the applicant to pursue a use permitted in the zoning district in which the property is located and results in significant economic injury to the applicant.

(3)

Relief sought. For purposes of these land use regulations, the relief sought shall not adversely affect the property or the health, safety or general welfare of the public. The relief sought shall not tend to defeat the purpose of these Land Use Regulations.

(4)

Disability variance. Notwithstanding subsection 18-83(d)(1) above, the Board of Appeals may grant a variance to an owner of a residential dwelling for the purpose of making that dwelling accessible to a person with a disability who resides in or regularly uses the dwelling. The Board shall restrict any variance granted under this subsection solely to the installation of equipment or the construction of structures necessary for access to or egress from the dwelling by the person with the disability. The Board may impose conditions on the variance, including limiting the variance to the duration of the disability or to the time that the person with the disability lives in the dwelling. The term "structures necessary for access to or egress from the dwelling" shall include railing, wall or roof systems necessary for the safety or effectiveness of the structure.

(e)

Decision by Board of Appeals.

(1)

A majority of the full voting membership of the Board shall constitute a quorum for the purpose of deciding an appeal. A legal vote to grant an appeal must include the majority vote of those present and eligible to vote, provided such vote shall include at least three votes. The failure to obtain the required number of votes constitutes denial of the appeal.

(2)

The Board of Appeals shall grant a variance only by a majority vote in favor of the appellant including at least four votes. In granting a variance, the Board of Appeals may prescribe conditions and safeguards as are appropriate under these land use regulations.

(3)

The Board of Appeals shall state the reasons and basis for its decision, including a statement of the facts found and conclusions reached by the Board. The Board shall cause written notice of its decision to be mailed or hand-delivered to the applicant, and when a variance is issued for a property located in a shoreland zoning district to the Department of Environmental Protection, within seven days of the Board's decision. Copies of written decisions of the Board of Appeals shall be given to the Planning Board, Code Enforcement Officer, and the municipal officers.

(f)

Further appeals.

(1)

Appeal to Superior Court. Except as provided by 30-A M.R.S.A., § 2691(3)(F), any aggrieved party who participated as a party during the proceedings before the Board of Appeals may take an appeal to Superior Court in accordance with state laws within 45 days from the date of any decision of the Board of Appeals.

(2)

Reconsideration. In accordance with 30-A M.R.S.A., § 2691(3)(F), the Board of Appeals may reconsider any decision within 45 days of its prior decision. A request to the Board to reconsider a decision must be filed within ten days of the decision that is being reconsidered. A vote to reconsider and the action taken on that reconsideration must occur and be completed within 45 days of the date of the vote on the original decision. Reconsideration of a decision shall require a positive vote of the majority of the Board members originally voting on the decision, and proper notification to the landowner, petitioner, Planning Board, Code Enforcement Officer, and other parties of interest, including abutters and those who testified at the original hearing(s). The Board may conduct additional hearings and receive additional evidence and testimony.

(3)

Appeal of a reconsidered decision to Superior Court must be made within 15 days after the decision on reconsideration.

(g)

Appeals and variances from floodplain management regulations.

(1)

Variances shall not be granted within designated regulatory floodway if any increase in flood levels during the base flood discharge would result.

(2)

Variances shall be granted only upon:

a.

A showing of good and sufficient cause; and

b.

A determination that should a flood comparable to the base flood occur, the granting of a variance will not result in increased flood heights, additional threats to public safety, public expense, or create nuisances, cause fraud or victimization of the public or conflict with existing local laws or ordinances; and

c.

A showing that the issuance of the variance will not conflict with other state, federal or local laws or ordinances; and

d.

A determination that failure to grant the variance would result in "undue hardship", as outlined in subsection 18-83(d)(1).

(3)

Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief, and the Board of Appeals may impose such conditions to a variance as it deems necessary.

(4)

Variances may be issued for new construction, substantial improvements, or other development for the conduct of a functionally dependent, use provided that:

a.

Other criteria of article III and article VIII, subsection 18-236(11) are met; and,

b.

The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety.

(5)

Variances may be issued for the repair, reconstruction, rehabilitation, or restoration of historic structures upon the determination that:

a.

The development meets the criteria of subsection 18-83(d)(1) above; and

b.

The proposed repair, reconstruction, rehabilitation or restoration will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure.

(6)

Any applicant who meets the criteria of subsections 18-83(d)(1) and (2) shall be notified by the Board of Appeals in writing over the signature of the Chairman of the Board of Appeals that:

a.

The issuance of a variance to construct a structure below the base flood level will result in greatly increased premium rates for flood insurance, up to amounts as high as $25.00 per $100.00 of insurance coverage;

b.

Such construction below the base flood level increases risks to life and property; and

c.

The applicant agrees in writing that the applicant is fully aware of all the risks inherent in the use of land subject to flooding, assumes those risks, and agrees to indemnify and defend the municipality against any claim filed against it that are related to the applicant's decision to use land located in a floodplain and that the applicant individually releases the municipality from any claims the applicant may have against the municipality that are related to the use of land located in the floodplain.

(Ord. No. 00-38, § 3.8, 3-13-00; Ord. No. 03-46, 3-27-03; Ord. No. 09-114, 6-8-09; Ord. No. 11-51, 4-11-11)

(a)

Generally.

(1)

Before making a decision on a variance or administrative appeal to the Board of Appeals or an application to the Planning Board involving a preliminary plan for a major subdivision, or a site plan review, a hearing on the appeal or application shall be held.

(2)

Subject to the provisions of this section, the hearing shall be open to the public, and all persons interested in the outcome of the appeal or application shall be given an opportunity to present evidence and arguments and ask questions of persons who testify.

(3)

The Planning Board or the Board of Appeals may place reasonable and equitable limitations on the presentation of evidence and arguments and the cross examination of witnesses so that the matter at issue may be heard and decided without undue delay.

(4)

The Planning Board or Board of Appeals may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information up to the point when a final decision is made. No further notice of a continued hearing need be published unless a period of six weeks or more elapses between hearing dates.

(5)

At any hearing, a party may be represented by an agent or an attorney. A hearing shall not be continued to another time except for good cause.

(6)

The Code Enforcement Officer, unless prevented by illness or absence, shall attend all hearings and shall present to the Planning Board or Board of Appeals, all plans, photographs or other factual material which is appropriate to an understanding of the appeal.

(7)

The applicant's or appellant's case shall be heard first. To maintain orderly procedure, each side shall proceed without interruption. Questions may then be asked through the chair. The Chairperson shall conduct the hearing.

(b)

Notice of hearing. The Code Enforcement Officer shall give notice of any hearing required by this section as follows:

(1)

Notice shall be given to the appellant or applicant and any other person who makes a written request for such notice by mailing to such persons a written notice no later than ten days before the hearing.

(2)

Notice shall be given to neighboring property owners by mailing a written notice not later than ten days before the hearing to those persons who have real property listed for taxation, any portion of which is locate within 500 feet (300 feet in Village Commercial Zone and in all other zones).* of the lot that is the subject of the application or appeal. Failure of any property owner to receive a notice of any public hearing shall not necessitate another hearing or invalidate any action of the Planning Board or Board of Appeals.

Note— *At the request of the city the text "(1,500 feet in the F&A zone)" was deleted from this section and new material was added to read as herein set out.

(3)

Notice shall be given to other potentially interested persons by publishing a notice one time in a newspaper having general circulation in the area not less than seven and not more than 15 days prior to the hearing.

(4)

The notice required by this section shall state the date, time and place of the hearing, identify the lot that is the subject of the application or appeal, and give a brief description of the action requested or proposed.

(c)

Modification of application at hearing.

(1)

In response to questions or comments by persons appearing at the hearing required by this section or to suggestions or recommendations by the Planning Board, the applicant may agree to modify the application, including the plans and specifications submitted.

(2)

Unless such modifications are so substantial or extensive that the Planning Board cannot reasonably be expected to perceive the nature and impact of the proposed changes without revised plans before it, the Board may approve the application with the stipulation that the permit will not be issued until plans reflecting the agreed-upon changes are submitted to the Planning Board.

(d)

Record of proceedings.

(1)

A tape recording shall be made of all hearings required by this section and such recordings shall be kept for at least two years. Accurate minutes shall also be kept of all such proceedings, but a transcript need not be made.

(2)

Whenever practicable, all documentary evidence presented at a hearing, as well as all types of physical evidence, shall be made a part of the record of the proceedings and shall be kept by the Town for at least two years.

(e)

Written decision.

(1)

Any decision made by the Planning Board or Zoning Board of Appeals regarding an application, an administrative appeal, a variance or issuance or revocation of a permit shall be reduced to writing and mailed to the applicant or appellant and the Code Enforcement Officer, Planning Board and Town Council and all other persons who make a written request for a copy, within three days of the public hearing, or within such other time limit as may be mutually agreed upon.

(2)

In addition to a statement of the Board's ultimate disposition of the case and any other information deemed appropriate, the written decision shall state the Board's findings and conclusions, as well as supporting reasons or facts, whenever this chapter requires such statement as a prerequisite to taking action.

(Ord. No. 00-38, § 3.9, 3-13-00)