O'Toole v. City of Portland

2004 ME 130, 865 A.2d 555, 2004 Me. 130, 2004 Me. LEXIS 151
CourtSupreme Judicial Court of Maine
DecidedOctober 27, 2004
StatusPublished
Cited by17 cases

This text of 2004 ME 130 (O'Toole v. City of Portland) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Toole v. City of Portland, 2004 ME 130, 865 A.2d 555, 2004 Me. 130, 2004 Me. LEXIS 151 (Me. 2004).

Opinion

LEVY, J.

[¶ 1] The City of Portland appeals from a judgment entered in the Superior Court (Cumberland County, Crowley, J.) vacating the City of Portland Zoning Board of [557]*557Appeals’ denial of Hannah O’Toole’s application for a practical difficulty variance. The City argues that the judgment should be vacated and the Board’s decision affirmed because O’Toole failed to establish that her need for a variance was due to the unique circumstances of her property and not to the general condition of the neighborhood, and that no other feasible alternative was available to her except a variance. We conclude that, despite the fact that the Board erred as a matter of law in determining the general condition of the neighborhood, O’Toole failed to establish that her need for a variance was due to the unique circumstances of her property. We also reject O’Toole’s argument that the Board’s decision was arbitrary and that the proceeding was “poisoned” by the advice provided by the Board’s attorney. Accordingly, we vacate the Superior Court’s judgment and remand to the Superior Court for entry of a judgment affirming the order of the Board.

I. BACKGROUND

[¶ 2] Hannah O’Toole and her sister own two undeveloped, contiguous lots on Hampton Street in Portland. Hampton Street is a “paper street,” meaning a dedicated, but unconstructed and unaccepted street, located in Portland’s R-3 residential zone. O’Toole and her sister own Lots 9 and 10 on the relevant municipal tax map. These are two of many similar parcels in the neighborhood that were subdivided in the 1920s into 30' X 100' lots. O’Toole would like to build the road as depicted on the tax map and a residence on the area of the combined lots. In order to obtain approval to build, she needs a variance because the lot width1 of the combined lots is only sixty feet, and a minimum lot width of sixty-five feet is required for lots of record in the R-3 zone. Portland, Me., Code § 14 — 90(f) (Mar. 24, 2004).

[¶ 3] O’Toole sought a practical difficulty variance pursuant to section 14-473(c)(3) of the City’s code of ordinances. Portland, Me., Code § 14-473(c)(3) (Mar. 24, 2004). The Board conducted a public hearing, at which it was established that a number of the 30' x 100' lots in the neighborhood have been combined with contiguous lots to satisfy the minimum lot width and area requirements. It was also established that at least four of the 30' x 100' lots are undeveloped and cannot be combined to meet the sixty-five-foot lot width requirement. This is true of Lots 7 and 8 on Hampton Street in addition to O’Toole’s lots.

[¶ 4] Based on the information offered by O’Toole, the Board was able to identify the current configuration of only about half of the lots in the two-block area adjacent to Hampton Street. The record does not establish the extent to which there are still thirty-or sixty-foot-wide lots that cannot be developed other than to suggest that lots that have been, or can be, aggregated to meet the minimum lot width requirement predominate.

[¶ 5] The Board voted 4-2 to deny the variance, concluding that O’Toole failed to meet her burden of proof that (1) her need for a variance was due to the unique circumstances of her property and not to the general condition of the neighborhood, and (2) there were no other feasible alternatives available to her, other than a variance. The Board found that O’Toole’s lots are not unique because the general condition of the neighborhood is one of “adja[558]*558cent, un-built parcels, thirty feet wide.” The Board also found that O’Toole did not exhaust all feasible alternatives because she “made no attempt to acquire additional property sufficient to alleviate the need for a variance.”

[¶ 6] O’Toole appealed .to the Superior Court pursuant to M.R. Civ. P. 80B. The court decided that the Board misapplied the test for approving a practical difficulty variance. With respect to. the general condition of the neighborhood criterion, the court concluded that the Board improperly based its decision “on the manner in which lots in the neighborhood were divided up in the 1920s, rather than looking at the present day ownership of, and building patterns on, the lots.” The court found that, in light of the present- day conditions of the neighborhood, O’Toole’s lots are unique. With respect to the no other feasible alternatives criterion, the court concluded that “[w]hether the abutting land was available to [O’Toole] and whether [she] made any attempt to purchase the abutting land are irrelevant to the determination of whether feasible alternatives were available.”

[¶ 7] The City appeals from the Superior Court’s judgment.

II. DISCUSSION

[¶ 8] When the, .Superior Court has acted as an intermediate appellate court, we review the operative decision of the municipality. Stewart v. Town of Sedgwick, 2002 ME 81, ¶ 6, 797 A.2d 27, 29. ‘When a zoning board of appeals acts as the tribunal of original jurisdiction as both fact finder and decision maker, we review its decision directly for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record.” Brackett v. Town of Rangeley, 2003 ME 109, ¶ 15, 831 A.2d 422, 427.

[¶ 9] This case involves a request for a practical difficulty variance. Practical difficulty variances are addressed in 30-A M.R.S.A. § 4353(4-C) (Supp.2003), which authorizes municipalities to adopt ordinances that permit the granting of variances from dimensional standards by applying a “practical difficulty” test. The test contains several factors, only two of which, subsections 4-C(A) and (D), are at issue in this appeal:

4-C. Variance from dimensional standards. A municipality may adopt an ordinance that permits the board to grant a variance from the dimensional standards óf á zoning ordinance when strict application of the ordinance to the petitioner and the petitioner’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 condition of the neighborhood; [and]
D. No other feasible alternative to a variance is available to the petitioner.

30-A M.R.S.A. § 4353(4 — G)(A), (D). Portland has adopted an ordinance permitting the granting of practical difficulty variances that is nearly identical to section 4353(4-C). Portland, Me., Code § 14-473(c)(3)(a)(l), (4).2

[559]*559[¶ 10] Turning to the City’s appeal, we examine (A) whether the Board properly found that O’Toole failed to prove that her need for a variance was due to the unique circumstances of her property and not to the general condition of the neighborhood, and (B) O’Toole’s assertion that the Board’s decision was arbitrary and that the proceeding was “poisoned” by the advice provided by the Board’s attorney.

A. General Condition of the Neighborhood and Unique Circumstances of the Property

[¶ 11] The City contends that the Board properly found that O’Toole failed to prove that her need for a variance was due to the unique circumstances of her property and not to the general condition of the neighborhood. 30-A M.R.S.A. § 4353(4 — C)(A); Portland, Me., Code § 14-473(c)(3)(a)(l).

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Bluebook (online)
2004 ME 130, 865 A.2d 555, 2004 Me. 130, 2004 Me. LEXIS 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otoole-v-city-of-portland-me-2004.