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t I Mike Gaffron From: Mike Gaffron Sent: Friday, November 05, 2010 9:19 AM To: 'Thomas Crosby' Cc: 'William McGuire' Subject: RE: 190 Orono Orchard Rd Attachments: Orono Code Sections 78-71 and 78-72.pdf Tom - Staff has reviewed your proposal regarding the building located at 190 Orono Orchard Road, which is vacant and in need of repairs. Your proposal contemplates removal of the superstructure but retention of the foundation of the existing building, in an attempt to secure the rights granted to a legal nonconforming structure, for 15 years instead of 1 year. We have to start with the premise that the existing building is considered to be a lawful nonconforming structure due to its location almost completely within the required front and side street yards of the property. The applicable City ordinances are found in Zoning Code Sections 78-71(a) and 78-71(c). Section 78-71(a) relates to nonconformities generally. It allows the existing structure to remain in place and be repaired when declared unsafe by the building official, but does not allow it to be enlarged, expanded, extended, or altered in any manner which increases its nonconformity. Section 78-71(c) pertains specifically to nonconforming structures. 78-71(c)(1) pertains to involuntary damage or destruction and does not apply to this situation because any removal of the existing building is at the option of the property owner. Section 78-71(c)(2) is directly applicable to the voluntary and intentional removal of all or portions of a lawful nonconforming structure and allows it to be restored only if a permit is applied for within 180 days of commencement of the removal. If no permit is applied for within that time period, all future construction would be required to be in compliance with the Code, unless a variance is obtained. If a permit is applied for within the 180-day period, commencement of construction through final completion must meet the timing requirements specified in the pertinent Building Codes, i.e. permit must be obtained within 180 days of application, exterior construction must be completed within 12 months after permit is issued, interior work must be completed within 24 months of permit issuance. Removal of the superstructure of the building would constitute voluntary and intentional removal. Re- use of the foundation, or removal and replacement in-kind and in the same location of that foundation and replacement of superstructure, would be subject to the provisions of 78-71(c)(2) including the above-noted timeframes. A 15-year `grace period' for re-use of the existing foundation (or complete reconstruction in the existing nonconforming footprint) is in conflict with the City Code. If you were to remove the structure and then after a number of years choose to rebuild on the property, lot area and width variances would be necessary. Because the defined lot area is approximately 1/2 acre when the wetlands are excluded, the property would not qualify for the `administrative variance' allowed in 78-72(b)(2). From a staff perspective the likelihood of being granted the necessary lot area and width variances is extremely high, but variances for setbacks to build outside the legal building 1