Richard M. Balano v. Town of Kittery

2017 ME 110, 163 A.3d 144, 2017 WL 2438496, 2017 Me. LEXIS 113

• Court: Supreme Judicial Court of Maine
• Decided: June 6, 2017
• Docket: Docket: Yor-16-248
• Status: Published

Opinion

PER CURIAM

[¶ 1] Richard M. Balano appeals from a judgment of the Superior Court (York County, O’Neil, J.) affirming the Town of Kittery Planning Board’s decision to approve a site plan application for development of a hotel on Route 1. M.R. Civ. P. 80B(n); M.R. App. P. 2. Balano argues that the flat-roof design for the building is not permitted by the Town’s ordinance because the evidence presented to the Board does not support its finding that a pitched roof is not “practicable,” see Kit-tery, , Me., Code § 16.3.2.11(D)(3)(b)(ii) (July 26, 2010); and that the proposed building will exceed height restrictions prescribed by the zoning ordinance. Bala-no also argues that the Planning Board acted beyond its authority by effectively granting variances when it approved the roof design and building height. See id. § 16.1.5.2(F)(3) (designating the Board of Appeals as the municipal entity with authority to grant a variance). We affirm. 1

[¶ 2] “We review the Planning Board’s approval of the permit directly for error of law, abuse of discretion^] or findings not supported by substantial evidence in the record.” Osprey Family Tr. v. Town of Owls Head, 2016 ME 89, ¶ 9, 141 A.3d 1114 (quotation marks omitted); see also Summerwind Cottage, LLC v. Town of Scarborough, 2013 ME 26, ¶ 11, 61 A.3d 698. We accord substantial deference to “local characterizations or fact-findings as to what meets ordinance standards.” Rudolph v. Golick, 2010 ME 106, ¶ 8, 8 A.3d 684.

[¶ 3] With respect to the roof design, pursuant to the Town Ordinance, if an applicant has “demonstrated to the Planning Board’s satisfaction that [a pitched roof] is not practicable,” the Board is authorized to approve a commercial building proposal with an alternative roof design. Kittery, Me., Code § 16.3.2.11(D)(3)(b)(ii). Here, the Board was presented with evidence that a pitched roof would present safety issues resulting from snow accumulation, and that mechanical equipment would be more accessible in an emergency if located on a flat roof as opposed to within the interior space of a pitched roof. The Board’s finding that a pitched roof is not practicable is supported by substantial record evidence, and because the Board itself was authorized to approve a flat-roof design in such circumstances, its decision did not amount to a variance. See id. §§ 16.3.2.11(D)(3)(b)(ii), 16.2.2.

[¶ 4] Regarding the building height, the Board did not err in its application of the Ordinance’s height restrictions because roof parapets are not included in calculating the building height, see id. § 16.2.2 (defining “height of a building” and “parapet”), and approval of the proposed building height that complied with the Ordinance’s requirements is not a variance.

The entry is:

Judgment affirmed.

1 . We are not persuaded by the Town’s contention on its cross-appeal that Balano does not have standing to pursue his appeal. See Witham Family Ltd. v. Town of Bar Harbor, 2011 ME 104, ¶ 7, 30 A.3d 811; Friends of Lincoln Lakes v. Town of Lincoln, 2010 ME 78, ¶ 12, 2 A.3d 284.