The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-99-086
GAB-YOR — blijaece
KEVIN GRIMES, ce
Plaintiff DONALD L. GARBRECHT
LAW LISRARY
v. ORDER JUN 19 SB
TOWN OF WELLS, et al.,
WONG ete Oe
Defendants -
Following hearing, and review of the administrative record and the
memoranda of counsel, Mr. Grimes Rule 80B appeal is Granted.
At issue is a proposed 56-unit condominium project known as “Spinnaker
Ridge”. The proposal involves a 35 acre parcel off Old County Road in Wells. The
parcel is bisected by a zoning district boundary line. Approximately 22+ acres of the
parcel is within a Residential A Zone which has a density standard of a minimum
of 20,000 square feet of net area! per dwelling unit. Approximately 13+ acres of the
parcel is within a Rural Zone which has a density standard of a minimum of 40,000
square feet of net.area per dwelling unit. The proposal calls for all 56 units to be
located within that portion of the parcel in the Residential A Zone. This would
clearly violate the Residential A Zone density standard if only the 22+ acres of the
parcel within that zone are considered. To avoid that result the Planning ‘Board
authorized the developer to “borrow” the potential development rights from the
1 The parties also dispute the calculation of “net area” as applicable to the project. It is
unnecessary to decide that issue.
13+ acres? in the Rural Zone and “transfer” them to the 22+ acres in the Residential
A Zone. Using this approach, the Planning Board determined that the project met
the density requirements of the ordinance (again, putting aside the dispute
concerning “net area”).
The developer and the town argue that the approach taken by the Planning
Board is consistent with sound land use planning. It concentrates development in a
residential zone, avoids development sprawl and preserves open space. Mr. Grimes
acknowledges this much, but correctly points out that, no matter how well
intentioned, the Planning Board is not authorized to make the town’s zoning law.
The difficulty with the approach taken by the Planning Board is that it is not
expressly permitted under the town’s ordinances.
Perhaps the closest Maine case on point is Town of Kittery v. White, 435 A.2d
405 (Me. 1981). White stands for the principal that development on each portion of
a “split-lot” must comply with the restrictions imposed upon the zone in which the
development is located. As applied to the pending case, this means that
development within the Residential A Zone must comply with the density
standards imposed by that zone.
The entry will be as follows:
Plaintiff's Rule 80B appeal is Granted; Planning Board
decision vacated; case remanded.
2 This portion of the parcel would remain undeveloped to be used for recreational purposes by
condominium owners.
The clerk may incorporate this order in the docket by reference.
A. Life Sa —
. ArtKur Brennan
ustice, Superior Court
D Dated: June 16, 2000
PLAINTIFF: . DEFENDANT: TOWN OF WELLS
John C. Bannon, Esq. Catherine O'Connor, Esq.
MURRAY PLUMB AND MURRAY BERGEN AND PARKINSON
PO Box 9785 62 Portland Rd
Portland Me 04104-5085 , Kennebunk Me 04043~1647
DEFENDANT: KASPRZAK CONDOMINIUMS INC
Kenneth Cole, Esq.
> JENSEN BAIRD GARDNER AND HENRY
PO Box 4510
Portland Me 04112-4510