Foye v. City of Westbrook

• Court: Superior Court of Maine
• Decided: January 4, 2001
• Docket: CUMap-00-045
• Status: Unpublished

Opinion

STATE OF MAINE UMAR Loy ne SUPERIOR COURT

CUMBERLAND, ss Wo tee CIVIL ACTION . 7 DOCKET NO. AP-00-045 Jed & ou ay "0 AIM, CUM - Ly pool JAMES W. FOYE, MARK C. FOYE, and ANDREW L. BROADDUS, Plaintiffs vs. DECISION AND ORDER

CITY OF WESTBROOK,

Defendant

The plaintiffs appeal the April 19, 2000 decision of the City of Westbrook Zoning Board of Appeals (ZBA). The ZBA denied the plaintiffs’ request for a 10-foot front yard variance in order to construct a single family home. The plaintiffs argue that the ZBA's finding that the grant of the variance would alter the essential character of the neighborhood is not supported by evidence in the record and that the ZBA erred in failing to make findings with regard to the three other criteria required to establish undue hardship. See 30-A M.R.S.A. § 4353 (4) (Supp. 2000).

Based on the transcript of a VCR tape obtained from the City of Westbrook's cable television channel, which was provided at the court’s request after the briefs were filed and without objection, there is competent evidence in the record to support the ZBA's finding that the granting of a variance would alter the essential character of the neighborhood. See, e.g., Transcript at 8-10, 17.

The better practice would be for the ZBA to address all of the criteria involved

in consideration of a variance request. See Driscoll v. Gheewalla, 441 A.2d 1023,

1026-27 (Me. 1982). The plaintiffs must show, however, that the evidence compelled the ZBA to grant the variance. See Twigg v. Town of Kennebunk, 662 A.2d 914, 916

(Me. 1995). Because all four criteria must be shown for the granting of a variance,

the plaintiffs cannot make that showing on this record. See Pepperman v. Town of

Rangeley, 659 A.2d 280, 283-84 (Me. 1995).

The entry is The Plaintiffs’ Appeal is DENIED.

The Decision of the City of Westbrook Zoning Board of Appeals is AFFIRMED.

Date: December 31, 2000 [Mises Jo

Nancy Mills Justice, Superior cold

Date Filed 05-19-00 CUMBERLAND

Docket No. _AP 00-045

Action APPEAL 80(B)

County

JAMES W. FOYE MARK C. FOYE ANDREW L. BROADDUS

CITY OF WESTBROOK

VS,

Plaintiff’s Attorney

ANDREW L. BROADDUS, ESQ 854-1236 PO BOX 368, WESTBROOK, ME 04098

Date of Entry

Defendant’s Attorney

RICHARD A. SULLIVAN, ESQ. LEGAL DEPARTMENT

854-9105

2 YORK ST., WESTBROOK, ME 04092