# Thaxter v. Zoning Bd. of Appeals > Superior Court of Maine · June 26, 2008 URL: https://www.frixlaw.com/law-library/cases/10809112 ## Case - **Court:** Superior Court of Maine - **Decided:** June 26, 2008 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Thomas E. Delahanty II - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10809112 ## Opinion text STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. AP-07-55 ';':00 'U' !~ ­ ,JUU Ji I~ ? b P 4: I 0 SIDNEY ST. F. THAXTER and MARY E. MCCANN THAXTER, Plaintiffs, v. DECISION AND JUDGMENT (M.R.Civ.P.80B) ZONING BOARD OF APPEALS, CITY OF PORTLAND, and JOSHUA C. EMPSON, Defendants. I. BEFORE THE COURT This matter comes before the court on the petitioners' second Rule 80B from a decision of the Zoning Board of Appeals for the City of Portland (City) granting a building permit to Joshua Empson (Empson) an abutting property owner to the Thaxters. 1 II. HISTORY AND BACKGROUND The petitioners, Sidney St. F. Thaxter and Mary E. McCann Thaxter (Thaxter), own property on Cushings Island in Portland that abuts property owned by Empson. Under the City of Portland Code of Ordinances (Ordinance), Empson's lot is located in the IR-1 zone, which requires a minimum lot size of 40,000 square feet in order to accommodate a subsurface wastewater disposal system when a property owner seeks a permit for new development. City of Portland Code of Ordin. §§ 14-145.1, 14­ 145.5(a)(7). Because Empson's lot is less than 20,000 square feet, it does not meet the 1 The plaintiffs filed a previous 80B action where the court vacated the issuance of the building permit and remanded the case to the Zoning Board for further determination. See Docket No. AP-07-8. minimum lot size requirement on its own. However, the Ordinance contains a provision that allows a piece of property to be combined with a non-contiguous lot in order to satisfy the minimum lot size if the City is granted a conservation easement on the second lot, and the land burdened by the conservation easement is not "encumbered by any other easement which prohibits all construction on that lot." [d. at § 14-145.5{a){8){e). In December 1995, Thomas Bethea and Pamela Allen (Bethea/ Allen) granted a conservation easement (l995 easement) to the City on a piece of property owned by them for the benefit of the Empson lot. That same piece of property was also encumbered by a view easement (l990 easement) from Bethea/Allen to John and Sandra Donnelly (Donnelly) in January 1990. On October 16, 2006, the City issued a building permit to Empson and the Thaxters appealed to the ZBA which denied the appeal by a 3-1 vote after a hearing on January 4, 2007. The Thaxters appealed to this court pursuant to M.R.Civ.P. 80B, see Thaxter v. City of Portland et al, 2007 Me. Super. LEXIS 183 (Aug. 30, 2007). After hearing, this court remanded the case to the ZBA after finding that there was not a sufficient majority of votes for the ZBA to deny the appeal and that there was an inadequate record for review. After a second hearing before the ZBA, the Board voted 4-1 to again deny the Thaxters' appeal. III. DISCUSSION A. Standard of Review This court will uphold a zoning board's decision unless that decision is an abuse of discretion, contrary to law or lacks the support of substantial evidence on the record. Uliano v. Board of Environmental Protection, 200S NIE 88 Thomas E. Delahanty II Justice, Superior Court 5 Empson argues that the City is estopped from failing to issue the building permit because he relied on the City's interpretation in a 1995 letter of the 1990 deed and the Ordinance. The Thaxters assert that the ZBA was not entitled to consider the earlier interpretation, which they characterize as an ex parte proceeding. However, as the ZBA notes, there is no evidence in either the written decision or the transcript of the October 4,2007 hearing that the ZBA considered the 1995 letter at all. 7 Date Filed 11-02-07 CUMBERLAND _ Docket No. AP-07-55 County • Action BOB APPEAL SIDNEY ST F THAXTER ZONING BOARD OF APPEALS MARY E MCCANN THAXTER CITY OF PORTLAND JOSHUA C EMPSON YS. Plaintiff's Attorney Defendant's Attorney SIDNEY ST F THAXTER ESQ JAMES ADOLF, ESQ. (City of Portland) ONE CANAL PLAZA SUITE 1000 389 CONGRESS STREET PORTLAND ME 04112-7320 PORTLAND, MAINE 04101-3509 (207) 774-9000 874-8480 CHRISTOPHER NEAGLE, ESQ. P.O. BOX 9711 (J. Empson) PORTLAND, MAINE 04104-5011 780-6789 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809112. Public record. Not legal advice.