The opinion
STATE OF MAINE Boe SUPERIOR COURT
CUMBERLAND, ss. ARGS 2 Gori OD CIVIL ACTION
oo, DOCKET NO. AP-99-83
Mm-2vm- 4+}1>) 3000
UNITY CHURCH OF GREATER
PORTLAND a/k/a UNITY CHURCH
OF TRUTH,
Plaintiff
vs. DECISION AND ORDER
BOARD OF ZONING APPEALS OF
THE TOWN OF FALMOUTH,
MAINE,
Defendant
Before the court are the joint motion for determination of record and the
plaintiff's Rule 80(b) appeal.
MOTION FOR DETERMINATION OF RECORD
The plaintiff requests that four letters dated September 28, 1999 and the
minutes of the Board of Zoning Appeals of September 28, 1999 be included in the
record. The plaintiff requested that the Zoning Board of Appeals reconsider its
decision on August 24, 1999 to deny the plaintiff's request for a variance. No
member of the Zoning Board of Appeals moved to reconsider the decision. R. at
108. The plaintiff does not challenge the denial of its request for reconsideration.
Accordingly, the documents the plaintiff seeks to include in the record are not
relevant to a review of the decisions of the code enforcement officer and Zoning
Board of Appeals.
80(b) APPEAL
_ Ordinance §2.88
Plaintiff appeals the decisions of the Board of Zoning Appeals, in which the
Board denied the plaintiffs appeal of the denial by the Code Enforcement Officer
(CEO) of the plaintiff’s request for a building permit and denied the plaintiff's
request for a variance. “
The plain meaning of section 2.88 of the Town of Falmouth Zoning and Site
Plan Review Ordinance provides that the lot width shall be measured “at the
required set-back depth,” which, in this case, means that the measurement shall be
made at a point 80' from the street front. See Zoning and Site Plan Review
Ordinance, §2.88 & §3.7. Based on this interpretation, the CEO determined correctly
that a building permit could not be issued using Route 1 as the front of the lot, as
identified by the plaintiff. See Record (R) at 10. The requirements of the Ordinance
also precluded building on the lot if Northbrook Drive were used as the front lot. R.
at 13.
30-A_M.R.S.A. §2691(3)(E)
The plaintiff argues that the defendant failed to satisfy the statutory
requirements regarding findings of fact and conclusions of law. See 30-A M.R.S.A. §
2691(3)(E) (1996). No specific request for findings and conclusions was made. See R.
at 71-73. The basis for the decisions of the CEO and the Board appear on the record.
See R. at 10, 65-66, 67; Driscoll v. Gheewalla, 441 A.2d 1023, 1026-27 (Me. 1982).
Evidence/Arbitrary and Capricious
_ The plaintiff argues that there was no competent evidence on which the
Board could determine that the grant of a variance would alter the essential
character of the locality or that the hardship was not a result of action by the
applicant or prior owner. See Ordinance, §8.4(3) & (4). The plaintiff argues further
that the decision to deny the variance was, therefore, arbitrary and capricious.
The site plans presented by the plaintiff to the Board show set backs from
Northbrook Drive significantly less than 80 feet in contrast to other buildings on
Northbrook Drive. R. at 30, 61-62; 65. Contiguous lots 10-Al and 9B, a portion of
lot 9, were conveyed to the plaintiff by the owner of lot 9. See R. at 36-37. The
particular shape, size, and other circumstances of lot 9B render it unbuildable. See R.
at 3. The plaintiff chose to request a building permit and a variance for lot 9B only.
ee R. at 7-9,
The plaintiff has failed to show that the record compelled the Board to grant
the variance or that the Board acted in an arbitrary and capricious manner. See
Twigg v.Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995); Sibley v. Inhabitants of
the Town of Wells, 462 A.2d 27, 31 (Me. 1983); Cushing v. Smith, 457 A.2d 816, 823-24
(Me. 1983).
The entry is
The Record will not include the additional letters and
minutes, as requested by the Plaintiff.
The Plaintiff’s Appeal is DENIED.
The Decision of the Board of Zoning Appeals of the Town
of Falmouth is AFFIRMED.
Date: April 11, 2000
Nancy Mills
Justice, Superior Court
AP-99-83
”
Date Filed __10-07-99 CUMBERLAND
County
Docket No. ___ AP _ 99-83
Action APPEAL ~- 80(B)
UNITY CHURCH OF GREATER PORTLAND
BOARD OF ZONING APPEALS OF THE
aka UNITY CHURCH OF TRUTH
TOWN OF FALMOUTH
7 VS.
Plaintiff’s Attorney
JONATHAN L. GOLDBERG ESQ 773-6300
ONE CITY CENTER, 12th FLOOR
PORTLAND ME 04101-4009
Defendant’s Attorney
William Plouffe, Esq. 772-3627
PO BOX 9781
Portland, Maine 04104-5081
DONALD L GASRAECIS
LAW LIBSASY
Date of
Entry MAY 24 9000
1999
Oct. 08 |} Received 10-07-99:
Complaint Summary Sheet filed.
" " Complaint with attachments filed.
" " Plaintiff's Motion to Specify the Course of the Proceedings, with Integrated
Memorandum of Law filed.
Oct. 27 Received 10-26-99.
Notice of appearance of William L. Plouffe, Esq. as counsel for
defendant filed.
Defendant's objection to plaintiff's motion to specify future
course of proceedings with integrated memorandum of law filed.
Nov. .02 Received 11.01.99:
Acknowledgment of: Receipt of Summons and Complaint filed showing receipt
b£ service on 10.25.99 by William Plouffe, Esq., on behalf of Appellee.
Nov. 5 Received 11-4-99.,
Letter from Jonathan Goldberg, Esq. withdrawing Plaintiff's motion to
specify filed.
ite
On 11-5-99.
Briefing schedule mailed. Plaintiff's brief due 12-14-99.
Dec. 15 Received 12/14/99: :
Joint Motion for Determination of the Record filed.
trem Plaintiff's Menorandim of Law in Support of Joint Motion for Determination of the Record filed.
yom Affidavit of Jonathan L. Goldberg with exhibits A & B filed.
irom Appellant's Brief filed.
tnt tnt
Certificate of Service filed.
wom Disputed Record filed.
rom Zoning and Site Plan Review Ordinance filed.