Opinion

Foye v. City of Westbrook

Court
Superior Court of Maine
Filed
Jan 4, 2001
Status
Unpublished
On the bench
Nancy Mills
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

STATE OF MAINE UMAR Loy ne SUPERIOR COURT

CUMBERLAND, ss Wo tee CIVIL ACTION

. 7 DOCKET NO. AP-00-045

Jed & ou ay "0 AIM, CUM - Ly pool

JAMES W. FOYE, MARK C. FOYE,

and ANDREW L. BROADDUS,

Plaintiffs

vs. DECISION AND ORDER

CITY OF WESTBROOK,

Defendant

The plaintiffs appeal the April 19, 2000 decision of the City of Westbrook

Zoning Board of Appeals (ZBA). The ZBA denied the plaintiffs’ request for a 10-foot

front yard variance in order to construct a single family home. The plaintiffs argue

that the ZBA's finding that the grant of the variance would alter the essential

character of the neighborhood is not supported by evidence in the record and that

the ZBA erred in failing to make findings with regard to the three other criteria

required to establish undue hardship. See 30-A M.R.S.A. § 4353 (4) (Supp. 2000).

Based on the transcript of a VCR tape obtained from the City of Westbrook's

cable television channel, which was provided at the court’s request after the briefs

were filed and without objection, there is competent evidence in the record to

support the ZBA's finding that the granting of a variance would alter the essential

character of the neighborhood. See, e.g., Transcript at 8-10, 17.

The better practice would be for the ZBA to address all of the criteria involved

in consideration of a variance request. See Driscoll v. Gheewalla, 441 A.2d 1023,

1026-27 (Me. 1982). The plaintiffs must show, however, that the evidence compelled

the ZBA to grant the variance. See Twigg v. Town of Kennebunk, 662 A.2d 914, 916

(Me. 1995). Because all four criteria must be shown for the granting of a variance,

the plaintiffs cannot make that showing on this record. See Pepperman v. Town of

Rangeley, 659 A.2d 280, 283-84 (Me. 1995).

The entry is

The Plaintiffs’ Appeal is DENIED.

The Decision of the City of Westbrook Zoning Board of Appeals is

AFFIRMED.

Date: December 31, 2000 [Mises Jo

Nancy Mills

Justice, Superior cold

Date Filed 05-19-00 CUMBERLAND

Docket No. _AP 00-045

Action APPEAL 80(B)

County

JAMES W. FOYE

MARK C. FOYE

ANDREW L. BROADDUS

CITY OF WESTBROOK

VS,

Plaintiff’s Attorney

ANDREW L. BROADDUS, ESQ 854-1236

PO BOX 368, WESTBROOK, ME 04098

Date of

Entry

Defendant’s Attorney

RICHARD A. SULLIVAN, ESQ.

LEGAL DEPARTMENT

854-9105

2 YORK ST., WESTBROOK, ME 04092

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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