The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-02-028
pte OY, apie ron
BRUCE R. STILLINGS and
SUZANNE L. STILLINGS,
| DONALD L. GARBRECHT
Plaintiffs . LAW LIBRARY
SEP 14 20
. ORDER
Vv. AND
DECISION
TOWN OF NORTH BERWICK and
TOWN OF NORTH BERWICK
ZONING BOARD OF APPEALS,
Defendants
The plaintiffs are owners of a long narrow lot on Roberts Road in North
Berwick in the town’s Farm and Forest District. The lot is apparently about 129 feet
wide. The zoning requirements for their zoning district require 75 foot side setbacks.
Given the width of their lot those side setbacks, if fully enforced, would preclude the
construction of any buildings, including a single family home.
In April of 2001 the plaintiffs applied for and were granted a setback variance
for single family homes pursuant to 30-A M.R.S.A. §4353 (4-B) and Section 6.8.2(c)(3)
of the North Berwick Zoning Ordinance. The variance is restricted such that “, it
may not exceed twenty (20%) percent of a setback requirement.” The 20% variance
reduced the 75 feet by 15 feet leaving two 60 foot side setbacks with only 9 feet left for
a building. This type of variance is limited to residential construction, would not
allow any commercial buildings and does not permit any practical construction
given the limitation of nine feet and the separate restriction on narrow mobile
homes in the district.
A regular variance was sought in February of 2002 to reduce the side setback
to 40 feet on each side. That request was denied by the North Berwick Zoning Board
of Appeals and this appeal followed. The plaintiffs’ complaint to the Superior Court
consisted of three counts. Count I is a standard appeal pursuant to Rule 80B,
M.R.Civ.P. Counts I and II raise state and federal takings issues and have been
separated from Count I. Only Count I is currently before this Court.
While the variance was denied on several grounds the central issue is
whether “the land in question can not yield a reasonable return unless a variance is
granted.” 30-A M.RS.A. §4353(4)(A). The burden is on the applicant to demonstrate
that all of the criteria for a variance are met. Goldstein v. City of South Portland,
1999 ME 66, 94, 728 A.2d 164, 165.
The permitted land uses for the farm and forest district are found in a table on
page 4-9A of the Town’s ordinance. Nurseries, gardening and timber harvesting are
permitted. While it may be that none of those activities will yield a reasonable
return, the evidence in the record does not address some of the alternative uses and
plaintiffs have not shown that the land can not yield a reasonable return. I do find,
in the event of further appeal or a new application before the Board, that all of the
other requirements for an additional variance, of some magnitude, have been met.
does not “discuss timber harvesting in | any - detail. “Based « on 1 the current record ‘the |
The entry is:
Decision of the North Berwick Zoning Board of Appeals is
affirmed. Judgment for the defendants on Count I of the
complaint. The parties shall within 21 days submit a
proposed order regarding the scheduling of Counts II and
Ii.
Dated: September 9, 2002
a -
(Tat 4 Jahre h*
Paul A. Fritzsche :
Justice, Superior Court
PLAINTIFFS:
CHRISTOPHER S NEAGLE ESQ
VERRILL & DANA
PO BOX 586
PORTLAND ME 04112-0586
DEFENDANT:
WILLIAM L PLOUFFE ESQ
DRUMMOND WOODSUM & MCMAHON
PO BOX 9781
PORTLAND ME 04104-5081