The opinion
STATE OF MAINE ~ _. . SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-01-062
PAF-YoRrR- 5 /ofavoe
MARY V. CHASE,
Plaintiff/ Appellant
ORDER —- DONALD L. SANSRECH:
v. AND LAW LiGRAPY
DECISION
MAY 17 2002
TOWN OF YORK and ©
YORK BOARD OF APPEALS,
poreeee nis oe sssss ...-. .Defendants/Appellees. --.—
Mary Chase, through her son Walter Chase, applied for a building permit for
her house lot in York at 33 Eastern Avenue. Pursuant to the requirements of the
Town of York, the plaintiff sought a shoreland permit from the York
Shoreland/Inland Wetland Permit Review Committee. On June 20, 2001 the
Committee voted to deny the requested permit for numerous reasons adequately
stated in its Final Findings of Fact. The proposed home would be on a 5,564 square
foot lot, which is well under the current 12,000 square foot minimum lot size,
would be within 100 feet of a wetland and would result in the filling in of some
wetlands.
Ms. Chase appealed the Committee’s decision to the Board of Appeals and
also sought a variance from it. After a hearing on September 12, 2001 the
administrative appeal was denied by a 4-1 vote and the request for a variance was
denied by a 3-2 vote. A review of the record presented, particularly the minutes of
the hearing, indicates why the Board of Appeals rejected the administrative appeal.
A review of that decision indicates that the Board of Appeals did not commit error
in denying the Administrative Appeal given, at least, the 100 foot wetland setback
requirement.
It is more difficult to review the denial of the requested variance. It is clear
that the requested variance was denied, but neither the minutes of the board’s
hearing nor the variance Schedule A attached to the Official Record of the Board of
Appeals gives the Superior Court enough information to review.
In order to have a meaningful review of the denial of the request for a
variance, this case will be remanded to the York Board of Appeals with the request
that the Board state briefly in writing which, if any, of the four criteria for a variance
were met and why each criteria was or was not met. It is not sufficient to suggest
that the Board’s decision and reasoning can be gleaned from reading the transcript of
the September 12, 2001 hearing. The transcript consists of arguments made for and
against the proposal and contains the questions and thoughts of individual Board
members as they sorted through the case and sought a just result. None of the
documents, however, clearly present exactly what the majority of the Board did and
why they did it.
Two recent opinions of the Maine Siipreme Judicial Court stress the
Associates, L.L.C. v. Town of Wells, 2001 ME 178 (December 27, 2001) and Christian
Fellowship & Renewal Center v. Town of Limington, 2001 ME 16, (10-15, 769 A.2d
834, 837-9.
The entry is:
Appeal from the denial of the Administrative Appeal by
the York Board of Appeals is denied. Denial of the
Administrative Appeal is affirmed.
Remanded to the York Board of Appeals for further
findings regarding the requested variance. Jurisdiction is
retained by the Superior Court. The plaintiff shall submit
any supplemental memorandum within 30 days after the
further findings are filed with the Superior Court. The
defendant may respond within 30 days after the plaintiff's
submission and the plaintiff may submit its reply within
14 days thereafter. The matter will be decided without
further oral argument unless further oral argument is
requested.
Dated: May /6, 2002
(Sct ti forAyte
Paul A. Fritzsche
PLAINTIFF: Justice, Superior Court
GREGORY J ORSO ESQ
ERWIN OTT CLARK & CAMPBELL
PO BOX 545
YORK ME 03909-0545
DEFENDANT
DURWARD W PARKINSON ESQ
BERGEN & PARKINSON
. 62 PORTLAND RD
KENNEBUNK ME 04043
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. POCKET NO. AP-01-062
me wt foes.
MARY V. CHASE,
Plaintiff/ Appellant -.
ORDER FOLLOWING
Vv. REMAND
. DONALD L. GARBRECHT
LAW LIBRARY
TOWN OF YORK and
YORK BOARD OF APPEALS,
OCT 18 2
Defendants / Appelles
An order and decision of May 10, 2002 affirmed the denial! of.an administrative ©
appeal but remanded the appeal from the denial of a variance to the York Board of
Appeals for further findings. The Board, through separate statements from the three
members who voted against granting a variance, has made its additional findings. The
parties have submitted supplemental written arguments.
The statements of the three Board members make clear why a majority of the
board denied a variance. In order to obtain a variance the petitioner must demonstrate
that the strict application of the ordinance to the property would cause “undue
hardship.” “Undue hardship” requires the petitioner to establish, among other factors,
that the need for the variance was due to the unique circumstances of the property and
not to the general conditions in the neighborhood. See 30-A M.RS.A. §435 3(4)(B) and
Waltman v. Town of Yarmouth, 592 A2d 1079, 80-1 (Me. 1991).
The majority of the Board had sufficient evidence to make its finding that the
unique circumstances requirement was not met. There is no legal error in that finding
and none of the other arguments of the plaintiff entitle her to any relief.
The entry is:
Decision of the York Board of Appeals denying a variance is affirmed.
Judgment for the defendants.
Dated: October 16, 2002
Fant 4 Louk
Paul A. Fritzsche
Justice, Superior oust
PLAINTIFFS:
GREGORY J. ORSO, ESQ.
ERWIN OTT CLARK & CAMPBELL
PO BOX 545
YORK ME 03909-0545
DEFENDANTS:
DURWARD W. PARKINSON ESQ
BERGEN & : PARKINSON
KENNEBUNK ME 04043