Phaiah v. Town of Fayette

2005 ME 20, 866 A.2d 863, 2005 Me. LEXIS 19
CourtSupreme Judicial Court of Maine
DecidedJanuary 28, 2005
StatusPublished
Cited by16 cases

This text of 2005 ME 20 (Phaiah v. Town of Fayette) 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
Phaiah v. Town of Fayette, 2005 ME 20, 866 A.2d 863, 2005 Me. LEXIS 19 (Me. 2005).

Opinion

CLIFFORD, J.

[¶ 1] The Town of Fayette appeals from the judgment of the Superior Court (Ken-nebec County, Marden, J.) vacating the decision of the Town of Fayette Board of Appeals denying a variance requested by Mitchell Phaiah. The Town contends that it did not, and was not compelled to find in Phaiah’s favor on Phaiah’s application for the variance. Because the findings of the Board of Appeals are ambiguous and in need of clarification, we affirm in part and vacate in part the decision of the Superior Court, and remand to the Superior Court for remand to the Board of Appeals for further findings of fact.

[¶ 2] In 1988, Robert McNeil and Stephen Jax became owners as tenants in common of a piece of property in the Town of Fayette known as Lot 41. In 1991, McNeil and Jax applied for and were granted a building permit by the Fayette Planning Board to construct a residential home on Lot 41 pursuant to the 1988 version of the Town Ordinances.

[¶ 3] Mitchell Phaiah purchased Lot 41 from McNeil and Jax by deeds dated 1991 and 1993, and recorded in 1993. The building permit that had been obtained by McNeil and Jax in 1991 expired for failure to begin construction within eighteen months of its issuance, which was soon after Phaiah purchased an interest in the property. See Fayette, Me., Shoreland Zoning Ordinance § XIII(B)(7)(a) (Apr. 4, 1988) (“Permits shall be valid for a period of 18 months. A reasonable amount of construction must be evident within this time to maintain the validity of the permit.”).

[¶ 4] Phaiah made no attempt to develop Lot 41 until 2002, when he arranged for an engineering firm to determine what could be built on the property in compliance with Town Ordinances. Based on setback requirements revised in the 2000 version of the ordinance, the engineering firm concluded, “there appears to be no place on this lot to construct a home in conformance with current Town standards.”

[¶ 5] In early 2003, Phaiah was denied a building permit by the Town Planning Board to construct a single family dwelling on Lot 41 with a footprint of 1800 square feet. The permit was denied because the [865]*865plan did not comply with revised road and shore setback requirements. Phaiah then applied to the Town Board of Appeals in April of 2003 for an “undue hardship dimensional variance” for road and shore setback requirements pursuant to 30-A M.R.S.A. § 4353(4) (Supp. 2004). Section 4353(4) provides:

[T]he board may grant a variance only when strict application of the ordinance to the petitioner and the petitioner’s property would cause undue hardship. The term “undue hardship” as used in this subsection means:
A. The land in question can not yield a reasonable return unless a variance is granted;
B. The need for a variance is due to the unique circumstances of the property and not to the general conditions in the neighborhood;
C. The granting of a variance will not alter the essential character of the locality; and
D. The hardship is not the result of action taken by the applicant or a prior owner.

30-A M.R.S.A. § 4353(4).

[¶ 6] Following a public hearing, the Board concluded that Phaiah had not shown that strict application of the ordinance would cause undue hardship, and denied Phaiah’s application. In denying the variance, the Board used a preprinted form with options to circle the specific conclusions reached, with extra blank lines on which the Board was to “state the facts that support [its] decision that the subject property meets or does not meet each of the following criteria for this type of variance.” In the section labeled “Conclusions of Law” on the preprinted form, with regard to each of the four criteria required by section 4353(4), the Board specifically found:

a. The land in question can/can not (circle one) yield a reasonable return unless a variance is granted [pre-printed, with “can not” circled]: However, applicant has proposed a project that the Board considers to be more than a reasonable return [handwritten];
b. The need for a variance is/is not (circle one) due to the unique circumstances of the property and not to the general condition in the neighborhood [preprinted, with “is” circled]: Wetlands on the property create additional setback limitations that are not unique to the general conditions of the neighborhood [handwritten];
c. The granting of a variance will/will not (circle one) alter the essential character of the locality [preprinted, with “will not” circled]: Other lots currently have structures as close or closer to the water and the road [handwritten]; and
d. The hardship is/is not (circle one) the result of action taken by the applicant or a prior owner [preprint-ed, with “is” circled]: The prior owners did not take advantage of an approval granted by the Town in 1991 which would have allowed for the development of the lot without the need for a variance from setbacks [handwritten].

[¶ 7] Pursuant to M.R. Civ. P. 80B, Phai-ah filed a complaint in June of 2003 in the Superior Court seeking review of the Board’s denial of the variance. By order dated February 24, 2004, the court determined, contrary to the Town’s contentions, that the Board found in favor of Phaiah as to the first three statutory requirements. The court also determined that the Board’s denial of Phaiah’s variance was based solely on the fourth statutory requirement— [866]*866Phaiah and/or his predecessors’ failure to build on the lot prior to the expiration of the 1991 building permit — which constituted an error of law. The court vacated the decision of the Board and remanded the matter for issuance of Phaiah’s variance. The Town timely appealed.

[¶ 8] The Town contends that the court erred in vacating the Board’s decision to deny Phaiah’s application for a variance. When, as here, the Superior Court acts in its appellate capacity, we review directly the decision of the Zoning Board of Appeals for “abuse of discretion, errors of law, or findings not supported by the substantial evidence in the record.” McGhie v. Town of Cutler, 2002 ME 62, ¶ 5, 793 A.2d 504, 505; Yates v. Town of Southwest Harbor, 2001 ME 2, ¶ 10, 763 A.2d 1168, 1171. “Substantial evidence exists when a reasonable mind would rely on that evidence as sufficient support for a conclusion ....” Forbes v. Town of Southwest Harbor, 2001 ME 9, ¶ 6, 763 A.2d 1183, 1186. We do not make any findings other than those found explicitly or implicitly by the Board, and we do not substitute our judgment for that of the Board. Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me.1991). “The Board’s decision is not wrong because the record is inconsistent or a different conclusion could be drawn from it.” Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me.1995). Further, “[a] demonstration that no competent evidence supports the local board’s findings is required in order to vacate the board’s decision.” Thacker v. Konover Dev. Corp., 2003 ME 30, ¶ 8, 818 A.2d 1013, 1017.

[¶ 9] Phaiah was the applicant, and he had the burden of proving each of the four statutory requirements for a variance enumerated in section 4353(4). See Perrin, 591 A.2d at 863.

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Bluebook (online)
2005 ME 20, 866 A.2d 863, 2005 Me. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phaiah-v-town-of-fayette-me-2005.