Chase v. Town of York

• Court: Superior Court of Maine
• Decided: October 16, 2002
• Docket: YORap-01-062
• Status: Unpublished

Opinion

STATE OF MAINE ~ _. . SUPERIOR COURT

CIVIL ACTION YORK, ss. DOCKET NO. AP-01-062 PAF-YoRrR- 5 /ofavoe

MARY V. CHASE,

Plaintiff/ Appellant ORDER —- DONALD L. SANSRECH: v. AND LAW LiGRAPY DECISION MAY 17 2002 TOWN OF YORK and © YORK BOARD OF APPEALS, poreeee nis oe sssss ...-. .Defendants/Appellees. --.—

Mary Chase, through her son Walter Chase, applied for a building permit for her house lot in York at 33 Eastern Avenue. Pursuant to the requirements of the Town of York, the plaintiff sought a shoreland permit from the York Shoreland/Inland Wetland Permit Review Committee. On June 20, 2001 the Committee voted to deny the requested permit for numerous reasons adequately stated in its Final Findings of Fact. The proposed home would be on a 5,564 square foot lot, which is well under the current 12,000 square foot minimum lot size,

would be within 100 feet of a wetland and would result in the filling in of some

wetlands.

Ms. Chase appealed the Committee’s decision to the Board of Appeals and also sought a variance from it. After a hearing on September 12, 2001 the administrative appeal was denied by a 4-1 vote and the request for a variance was

denied by a 3-2 vote. A review of the record presented, particularly the minutes of

the hearing, indicates why the Board of Appeals rejected the administrative appeal. A review of that decision indicates that the Board of Appeals did not commit error in denying the Administrative Appeal given, at least, the 100 foot wetland setback requirement.

It is more difficult to review the denial of the requested variance. It is clear that the requested variance was denied, but neither the minutes of the board’s hearing nor the variance Schedule A attached to the Official Record of the Board of Appeals gives the Superior Court enough information to review.

In order to have a meaningful review of the denial of the request for a variance, this case will be remanded to the York Board of Appeals with the request that the Board state briefly in writing which, if any, of the four criteria for a variance were met and why each criteria was or was not met. It is not sufficient to suggest that the Board’s decision and reasoning can be gleaned from reading the transcript of the September 12, 2001 hearing. The transcript consists of arguments made for and against the proposal and contains the questions and thoughts of individual Board members as they sorted through the case and sought a just result. None of the documents, however, clearly present exactly what the majority of the Board did and why they did it.

Two recent opinions of the Maine Siipreme Judicial Court stress the

Associates, L.L.C. v. Town of Wells, 2001 ME 178 (December 27, 2001) and Christian

Fellowship & Renewal Center v. Town of Limington, 2001 ME 16, (10-15, 769 A.2d

834, 837-9. The entry is:

Appeal from the denial of the Administrative Appeal by the York Board of Appeals is denied. Denial of the Administrative Appeal is affirmed.

Remanded to the York Board of Appeals for further findings regarding the requested variance. Jurisdiction is retained by the Superior Court. The plaintiff shall submit any supplemental memorandum within 30 days after the further findings are filed with the Superior Court. The defendant may respond within 30 days after the plaintiff's submission and the plaintiff may submit its reply within 14 days thereafter. The matter will be decided without further oral argument unless further oral argument is

requested.

Dated: May /6, 2002

(Sct ti forAyte

Paul A. Fritzsche

PLAINTIFF: Justice, Superior Court GREGORY J ORSO ESQ

ERWIN OTT CLARK & CAMPBELL

PO BOX 545

YORK ME 03909-0545

DEFENDANT DURWARD W PARKINSON ESQ BERGEN & PARKINSON

. 62 PORTLAND RD

KENNEBUNK ME 04043 STATE OF MAINE SUPERIOR COURT CIVIL ACTION

YORK, ss. POCKET NO. AP-01-062

me wt foes.

Plaintiff/ Appellant -. ORDER FOLLOWING Vv. REMAND . DONALD L. GARBRECHT LAW LIBRARY TOWN OF YORK and YORK BOARD OF APPEALS, OCT 18 2 Defendants / Appelles

An order and decision of May 10, 2002 affirmed the denial! of.an administrative © appeal but remanded the appeal from the denial of a variance to the York Board of Appeals for further findings. The Board, through separate statements from the three members who voted against granting a variance, has made its additional findings. The parties have submitted supplemental written arguments.

The statements of the three Board members make clear why a majority of the board denied a variance. In order to obtain a variance the petitioner must demonstrate that the strict application of the ordinance to the property would cause “undue hardship.” “Undue hardship” requires the petitioner to establish, among other factors, that the need for the variance was due to the unique circumstances of the property and not to the general conditions in the neighborhood. See 30-A M.RS.A. §435 3(4)(B) and Waltman v. Town of Yarmouth, 592 A2d 1079, 80-1 (Me. 1991).

The majority of the Board had sufficient evidence to make its finding that the unique circumstances requirement was not met. There is no legal error in that finding

and none of the other arguments of the plaintiff entitle her to any relief. The entry is:

Decision of the York Board of Appeals denying a variance is affirmed. Judgment for the defendants.

Dated: October 16, 2002 Fant 4 Louk Paul A. Fritzsche Justice, Superior oust PLAINTIFFS:

GREGORY J. ORSO, ESQ. ERWIN OTT CLARK & CAMPBELL PO BOX 545

DEFENDANTS: DURWARD W. PARKINSON ESQ BERGEN & : PARKINSON

KENNEBUNK ME 04043