The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-03-019
Par Jor /o 9 /: pont
BRUCE R. STILLINGS,
SUZANNE L. STILLINGS,
Plaintiffs
v. SO ORDER AND DECISION
THE TOWN OF NORTH BERWICK
and TOWN OF NORTH BERWICK ~
ZONING BOARD OF APPEALS,
Defendants
This appeal from a denial by the North Berwick Zoning Board of Appeals of a
request for a setback variance has a more lengthy history than is typical. A brief review
follows.
In February 1978 a long narrow lot was created on Roberts Road in what is now
the Farm and Forest District. In March of 1978 the town’s current zoning ordinance was
enacted which required setbacks of 75 feet on each side of the lot. The following year
the plaintiffs purchased the lot which remains undeveloped. It was initially thought
that the lot was 129 feet wide at its widest point which would not, absent a variance,
allow a building to be constructed.
In May of 2001 the plaintiffs were granted a setback variance for a single family
dwelling as is permitted pursuant to 30-A M.R.S.A. §4353(4-B) and Section 6.8.2(c)(3) of
the North Berwick Zoning Ordinance. That variance is restricted such that “... it may
not exceed twenty (20%) of a setback requirement.” Thus the 75 feet requirement was
reduced by 207%, or 15 feet, to 60 feet leaving 9 feet to build upon. That width is too .
narrow to allow the construction of any reasonable building.
The plaintiffs then sought and were denied a variance to reduce the side setback
to 40 feet on each side. An appeal from the denial of that variance was taken to this
Court and decided in an order and decision of September 9, 2002 in case AP-02-028. In
that appeal I found that all of the requirements for a variance were met except the
requirement that “the land in question can not yield a reasonable return unless a
variance is granted.” See 30-A M.R.S.A. §4353(4)(A). That requirement had not been
met as the record evidence did not establish that certain non-residential uses could not
allow the land to yield a reasonable return without a variance that was greater than that
permitted under the single-family dwelling limited variance provision.
After the Court decided AP-02-028 the land was apparently surveyed and found
to be 138 feet wide at the widest point. This would allow a single family residence 18
feet wide and of essentially unlimited length to be built as the 75 feet setbacks had been
reduced to 60 feet per side or 120 feet in total.
In January of 2003 the plaintiffs reapplied for a variance from 60 feet to 50 feet
per side and presented evidence that the remaining potential non-residential uses were
impractical and would not be sufficient to permit a reasonable return on the land. The
plaintiffs’ excessive request, which would have allowed a house of 38 feet in width, was
denied in an undisciplined fashion by a majority of the Board on January 27, 2003. The
Board improperly revisited the issues of the unique circumstances of the property and
the essential character of the locality and denied a variance on those grounds as well.
Those issues were determined in the plaintiffs’ favor in the decision of the Superior
Court on the first appeal. The Board was bound by the Superior Court decision. In the
future the Board must follow Court orders.
Following the January 27, 2003 denial the current appeal followed. It contained
in Count I a request for review under Rule 80B, M.R.Civ.P.. That count has been briefed
and argued. Counts II and III are state and federal taking claims which have been
severed and await future resolution.
While the Board improperly denied the variance on three of the four criteria the
Town, through its counsel, has agreed that the Board could not deny the variance on the
unique circumstances or essential character factors. Issues surrounding non-residential
use or the donation of the land for an income tax charitable deduction have not been
convincingly pursued. The only remaining issue is whether a single-family house built
on site, which is no wider than 18 feet in width, allows for a reasonable return such that,
solely on that basis, the variance was properly denied.
It is true that an 18 feet wide house is narrow and probably narrower than most
non-manufactured housing. In Marchi v. Town of Scarborough, 511 A.2d 1071, 1072-3
(Me. 1986) the Law Court found that a 5 feet by 19 feet house was too small to yield a
reasonable return and ordered that a variance be granted. In Driscoll v. Gheewalla, 441
A.2d 1023, 1029 (Me. 1982) a variance was granted when a house would be limited to 17
feet by 20 feet Here a house of 18 feet width by any reasonable length is permitted.
I find that, while it is a close question and one that is not free from doubt, the
board did not err when it concluded that a house 18 feet wide and of unlimited length
could yield a reasonable return without an additional variance. If the parties wish to
end this case ina reasonable, just and lawful manner without further appeal to the Law
Court or further proceedings on the remaining counts they may wish to consider
having the plaintiffs reapply for a more modest variance permitting a 24 feet wide
house, rather than a 38 feet wide house, and the board approve that request.
The entry is:
Decision of the North Berwick Zoning Board of Appeals of January 27,
2003 denying the requested variance is affirmed solely on the ground that
the land in question can yield a reasonable return with an 18 feet wide
home. Judgment for the defendants on Count I of the complaint.
The parties shall inform the clerk within 90 days of how they wish to
proceed on the remaining counts and may suggest a proposed discovery
deadline.
Dated: October 10, 2003
able Srbyeke
Paul A. Fritzsche v
Justice, Superior Court
PLAINTIFF:
Paul W. Cadigan, Esq.
57 Portland Rd., Suite 4
Kennebunk, ME 04043
DEFENDANT:
William L. Plouffe, Esq.
DRUMMOND WOODSUM & MACMAHON
PO BOX 9781
PORTLAND ME 04104-5081