Dionne Dionne v. Town of Kittery

STATE OF MAINE SUPERIOR COURT

YORK, ss CIVIL ACTION

DOCKET NO. AP-00-67

GAB -Y0RK~ he Jaool

DONNA DIONNE,

Plaintitf/ Appellant

Vv. DECISION

TOWN OF KITTERY and

KITTERY ZONING BOARD OF APPEALS

Defendants / Appellees

\

Facts

In 1973, Donna Dionne and her husband! purchased property located at 44

Remicks Lane in Kittery, Maine. The Dionnes decided to build a home, but to leave

off a farmer’s porch until they had more money. At the time their home was built

the Kittery Ordinance required that their residence be setback 20 feet from the front

line. The Dionnes therefore positioned their home 28 feet from the front setback to

allow for the possibility of building an 8 foot farmer’s porch at a later date. In July

1977, the Town of Kittery adopted a revised Ordinance, which changed the front

setback to 40 feet. On August 26, 1999, Donna Dionne applied to the Kittery Code

Enforcement Office for a permit to construct a 8’ x 38’ farmer’s porch at her

residence. The Code Enforcement Officer (CEO) for the Town of Kittery denied

Dionne’s application based upon the fact.that the proposed porch did not meet the

front setback requirements. The Kittery Zoning Board of Appeals (“ZBA” or

“Board”) upheld this determination. Dionne now appeals from this decision.

IMs. Dionne’s husband has since passed away.

Discussion

Standard of Review

The Court must examine the record and review the Board’s decision for

“abuse of discretion, legal error, or findings unsupported by substantial evidence in

the record.” Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995). In essence,

the “reviewing court’s function is to determine only whether the decision of the

Board of Appeals was unlawful, arbitrary, capricious, or unreasonable.” Penobscot

Area Housing Development Corp. v. City of Brewer, 434 A.2d 14, 21 (Me. 1981).

Due Process

Dionne argues that she was riot afforded due process of law because the

Kittery ZBA did not use the appropriate process for reviewing the decision of the

CEO. Section 16.24.060 of the Ordinance enumerates specific criteria for reviewing

the decision of the CEO. Section 16.24.060 states that the zoning board of appeals

“shall... give consideration, among, other things, to” sixteen listed factors. Dionne

argues, that by not addressing these criteria, the Kittery ZBA abused its discretion

and committed an error of law.

Almost all of the factors listed in § 16.24.060 are clearly irrelevant to the

construction of Dionne’s proposed porch. For example, § 16.24.060 requires the

Board to consider: the effects on vehicular traffic congestion; the availability of

sewage facilities; whether or not the use will cause disturbing emission of electric

discharges, dust, light, vibration or noise; the necessity for paved off-street parking

and; whether the proposed use will provided for adequate pedestrian circulation. At

the hearing, Ms. Dionne’s attorney seemed to address two of the factors enumerated

in § 16.24.060: traffic and safety concerns. Neither Dionne’s attorney nor the ZBA

made any further specific reference to these criteria. Arguably, however, although

not explicitly stated, the ZBA did apply the only relevant criteria listed in § 16.24.060:

(11) Whether the plot area is sufficient, appropriate and adequate for the use and the

reasonably anticipated operation and expansion thereof.

Because the remaining factors are irrelevant to building the proposed porch,

the remaining factors listed in §16.24.060 could be answered in favor of Dionne, and

yet, the proposed porch would still violate the setback requirements of the Town

Ordinance. This result would conflict with admonition in §16.24.060 that “no

variance or special exception may be granted for premises on which outstanding

violations of this title exist, unless the effect of such variance or special exception

would remedy all such violations.”

To satisfy due process, “the Board needs to apply the proper law in an

evenhanded way, not arbitrarily or capriciously.” White y. Town of Hollis, 589 A.2d

46, 48 (Me. 1991); see also Tisei v. Town of Ogunquit, 491 A.2d 564, 569 (Me. 1984).

Although Dionne argues that she could not have been aware of the standards

employed by the Board and that the standards were not meaningfully applied, the

minutes of the hearing demonstrate that everyone was aware of what the issue and

standards were: the 40 foot setback requirement, not each and every criteria,

however immaterial, enumerated in §16.24.060. This is not a case where the ZBA

“roam[ed] at large in policy making” and acted in an unpredictable manner. See

Wakelin v. Town of Yarmouth, 523 A.2d 575, 577 (Me. 1987). In focusing on the 40

foot setback requirement, the only appropriate and relevant criteria, the ZBA did not

act arbitrarily or capriciously.

Equal Protection

Dionne argues that the Board has permitted other expansion projects that

have violated the Ordinance’s front and fateral setback requirements. Dionne

argues that in approving other similar expansion projects, the Board displayed

favoritism and discrimination and therefore violated her equal protection rights.

In order to establish a constitutional equal protection violation based on

i

selective enforcement, Dionne must establish that “the challenged decision. .. hada

discriminatory effect and that it was motivated by a discriminatory purpose.’” Polk v

Town of Lubec, 2000 ME 152, { 14, 756 A.2d 510, 513; see also Tri-State Rubbish v.

Town of New Gloucester, 634 A.2d 1284, 1287 (Me. 1993)("A selective prosecution

claim requires a showing of discriminatory intent.”). “Unequal application of a law

to those who are entitled to be treated alike is not a denial of equal protection unless

there is shown to be an element of intentional or purposeful discrimination.”

Aucella v. Town of Winslow, 583 A.2d 215, 216 (Me. 1990). An intent to

discriminate may be inferred from the totality of the relevant facts. Id.

In regard to the approval of lateral expansion projects that encroach on the

side setback requirements, the Board did acknowledge that it has interpreted its

Ordinance as allowing additions to nonconforming structures when the proposed

expansion was lateral and rendered the structure no closer to the front line setback.

However, the record is devoid of evidence showing that the practice of allowing

non-conforming lateral expansion was motivated by a discriminatory purpose.

In an attempt to prove that the Board has appreved other violations of the

front setback requirement, Dionne submitted photographs of other properties she

believed were granted relief from the setback requirements, as well as making oral

references to several properties that she said were allowed to expand in violation of

the setback requirements. From this evidence, Dionne argues that other applicants

received approval from the Board, even though the proposed expansion resulted in

a structure less than 40’ from the front setback. However, the photographs

presented to the Board to prove Dionne’s case lacked evidence of exact setback

distances. Dionne also failed to prove whether the setbacks of such structures were

reduced (if in fact they were reduced) because of the averaging provisions of the

Ordinance relating to the front yard setbacks of the adjacent lots.2. This Court

cannot find, therefore, that Dionne’s equal protection rights were violated.

2The Ordinance states that “building setback from the street line need not be greater that the

average of the setback distances of the buildings on the lets next thereto on either side.” 16.28.080.

4

Conclusion

For the above reasons, the decision of the Kittery Zoning Board of Appeals is

affirmed.

April 2B 2001

Justice? Arthur Brennan

G. J. Orso, Esq. — PL

D. McEachern, Esq. —- DEFS