The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-01-064
. : 4 ps 1OR SH 5 S0/B000
JILL DISQUE-NORTON, et als.
Plaintiff “pM B) ako
' caye lager
RUN Le o502
“TOWN OF KENNEBUNK, ~—_ ORDER
Defendant
and
MARY JANE GRADY AND
SANDRA A. NADEAU,
Parties-in-Interest
Before the Court is a Rule 80B appeal. Following hearing, the petition is
GRANTED in part and DENIED in part as follows:
FACTUAL BACKGROUND
In March 2001, Party-in-Interest Sandra Nadeau (Nadeau) filed with the
Defendant Town of Kennebunk (Town) an application for site plan review of her
proposal to convert a single-family residence, owned by Party-in=Interest-Mary Jane
dy (Grady), into a 40-child “nursery school” (proposal). The property is in the
Suburban Residential and Shoreland Area Overlay zoning districts. On May 17,
- 2001, the Site Plan Review Board (SRB) granted the application. None of the
Plaintiffs attended the SRB meeting, since they had no notice of the meeting. On
July 12, the Kennebunk Code Enforcement Officer (CEO) issued a building permit to
Nadeau for a “new structure” and “change of use.”
On July 15, Plaintiffs Jill Disque-Norton, an abutter, and neighbors Rosalind
Magnuson, Anne Carlson, Susan Walker and Doris Hurdman (Plaintiffs), first
noticed construction. On August 8, Plaintiffs filed an appeal to the Zoning Board of
Appeals (ZBA) on grounds that the proposal violated the 50-foot setback
requirement for land within 125 feet of the normal high water line. In September,
the ZBA denied Plaintiffs’ appeal, finding that (1) Plaintiffs’ appeal of the SRB’s
_ decision was untimely (beyond 30 days); and (2) the CEO decision to grant the permit
was valid because the structure was no longer a “dwelling”. This appeal followed.
Timeliness of appeal to ZBA
Plaintiffs argue that their August 8 appeal was within 30 days after the CEO’s
July 12 decision to grant a building permit, and therefore Plaintiffs’ appeal was
timely. Plaintiffs maintain that because their proposal involves alteration of an
existing structure and change of use, a permit from the CEO is required. Under
Maine statute, it is the CEO’s duty to enforce the zoning ordinance. Plaintiffs further
argue that the ZBA’s decision to refuse to consider the appeal from the SRB’s
decision error.
DISCUSSION
Standard of review
In Rule 80B appeals, the Court must decide whether there was an abuse of
discretion, error of law, or findings not supported by substantial evidence in the
record. McGhie et al. v. Town of Cutler , 2002 WL 537979 (Me.); 202 [sic] Me. 62, 1 5.
Timeliness of the appeal
Plaintiffs’ appeal to the ZBA was timely. Not only does the zoning ordinance
explicitly state that appeals to the ZBA shall be from the decision of the CEO, in this
instance, the SRB’s decision to grant a variance was conditional upon the CEO’s
determination to grant a building permit for the proposal. R.17. The zoning
ordinance mandates that a person aggrieved file his appeal within 30 days after
issuance of a written decision from the Code Enforcement Officer. KZO, Art. 6(3)(A).
The appeals period here runs from the date of the CEO’s determination, July 12.
Since Plaintiffs submitted their appeal on August 8, the ZBA’s decision that
Plaintiffs’ appeal was untimely is not supported by substantial evidence upon the
record, and is an error of law. The case must be remanded to the ZBA for further
review.
“Designed or used for residential purposes”
The day care center proposal was not reviewed under SRB standards, as
required for day care centers in excess of 12 children. KZO, Art. 10(20)(F). A day care
center is a commercial use that falls under the “special exceptions” category of the
KZO. KZO, Art. 8(4)(C)(1). Before such use can be granted, the Planning Board is
required to hold a public hearing, KZO, Art. 7(2)(A), and the Planning Board" is-———~—-—
required to advertise in a newspaper, KZO, Art. 7(2)(A)(3), and to mail notice to
abutters. KZO, Art. 7(2)(A)(4). Since no hearing took place at the Planning Board
stage, but a hearing has been held before the ZBA, we review on appeal the ZBA’s
decision.
The Kennebunk ZBA decided that the CEO’s determination that the building
was no longer a dwelling, and that its use had changed to a day care center, was
correct. R.48. Asa day care center, the building is no longer “designed or used for
residential purposes.” KZO, Art. 2(2). Therefore, the limitation of 12 children or
-. adults, required of day care centers located in “dwellings,” KZO, Art. 10(20)(E) is
inapplicable in this case. The design approved by the CEO is “to change use from
single family home to day care center
no longer a dwelling, more than twelve children may be accommodated.
The entry will be as follows:
The decision of the ZBA that the Plaintiffs’ appeal to the
ZBA on waiver/variance issues was untimely is vacated
and the case is remanded to the ZBA. The ZBA will
interpret Article 8, section 16.D of the Zoning Ordinance
mtrermyre a=
to determine whether a zoning variance is required when
the 50-foot minimum setback is not met.
Otherwise, the appeal is Denied.
The court retains jurisdiction of the case pending further
action by the ZBA.
The clerk may incorporate this order in the docket by reference.
-- - Dated: «May 3, 2002. oe ee
r.” R.19. Since the day care center building is -
Robert Woodman, Esq.
Michael O'Toole, Esq. —
WOODMAN EDMANDS DANYLIK & AUSTIN
PO Box 468
Biddeford Me 04005
PLAINTIFFS: (/ (dB 2
Ph Nee Ff v
. Arthur Brennan
Justice/ Superior Court
DEFENDANT: PARTIES—IN-INTEREST:
William Dale, Esq. Durward Parkinson, Esq.
Natalie Burns, Esq. Stefan Jouret, Esq.
JENSEN BAIRD GARDNER AND HENRY BERGEN AND PARKINSON
PO Box 4510 62 Portland Rd
Portland Me 04112-4510 Kenpebunk Me 04043-6658