# Scarritt v. Town of Frye Island

> Superior Court of Maine · July 31, 2014

URL: https://www.frixlaw.com/law-library/cases/10810493

## Case

- **Court:** Superior Court of Maine
- **Decided:** July 31, 2014
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Nancy Mills
- **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/10810493

## How later opinions describe it (automated extraction)

- explaining that if a hardship is imposed by a zoning ordinance on the 'Defendant concedes that the Board of Appeals did not apply the statutory variance criteria. (Def.'s Rule SOB Br. at 7.

## Opinion text

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss CIVIL ACTION
Docket No. AP-13-053

SUSAN D. SCARRITT, et
al.,

Plaintiffs

V. DECISION AND ORDER

TOWN OF FRYE ISLAND,

Defendant
AUG 01 2014
and
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MICHAEL MARINO, TRUSTEE OF
ROHAR TRUST,

Party-in-Interest

PROCEDURAL HISTORY

Plaintiffs filed their complaint on September 23, 2013 and an amended

complaint on January 23, 2014. Plaintiffs bring the following three counts: count

I: SOB appeal of a S/9/13 decision of the Town of Frye Island Zoning Board of

Appeals approving. party-in-interest ROHAR Trust's request for setback

reduction; count II: declaratory judgment that the setback reduction ordinance

violates state law; and count III: declaratory judgment that the variance approval

is void because it was not recorded in the registry of deeds within 90 days.

Before the court is plaintiffs' Rule SOB appeal and motion for partial

summary judgment on counts II and III. For the following reasons, the 8/9/13

decision of the Town of Frye Island Zoning Board of Appeals is vacated and the
case is remanded to the Board for further proceedings consistent with this

decision and order. Judgment is entered in favor of plaintiffs and against

defendant on count II of plaintiffs' amended complaint. Count III of plaintiffs'

amended complaint is moot.

BACKGROUND

In May 2013, party-in-interest Michael Marino, acting as trustee of the

ROHAR Trust, submitted an application for a setback reduction to the Town of

Frye Island for the property located at 273 Leisure Lane. (R. Tab 6.) The

application sought a two-foot reduction from the front setback requirement and a

four-foot reduction from the side setback requirement. (R. Tab 6.) The ROBAR

Trust property is subject to the Residential District requirements of the Town of

Frye Island's zoning ordinance and the Shoreland Development District

requirements of the shoreland zoning ordinance. (Pls.' Supp. S.M.F. <)[ 4; R. Tab 7

at 20-21, 72.)

Plaintiffs are abutters and plaintiff John D. Scarritt challenged several

aspects of the setback reduction application before the Board of Appeals on July

19, 2013. (R. Tab 4.) Among other things, plaintiff John D. Scarritt argued that the

Board of Appeals lacked the authority to grant a variance in this case because

Frye Island's non-conforming setback reduction ordinance failed to meet the

minimum standards for granting a variance required by state law. (R. Tab 5.)

In acting on the setback reduction request, the Board of Appeals applied

section 101-1-4, D, 5 of the Town of Frye Island Land Use Ordinances:

5. Non-Conforming Setbacks [amended October 11, 2008, WA 20]

A. Setback Reduction Appeals: The Board of Appeals may grant
reductions from the minimum setback requirements according to
all of the following criteria:

2
1. Setback reduction appeals are only available to reduce
the minimum requirements for setbacks of structures from
Lot boundary lines. Setback reduction appeals shall not be
used, and are not available, to reduce required minimum
setbacks of structures from bodies of water as provided in
this ordinance.

2. The Board of Appeals shall grant a setback reduction
appeal if the Board finds that granting the setback reduction
will not .result in unreasonable interference with the privacy
interests of the abutting landowners.

3. In granting a setback reduction the Board of Appeals
may attach reasonable conditions which it may deem
necessary to serve the purpose of this ordinance.

4. A setback reduction appeal shall not be granted to
enable construction or renovation that will result in more
than one garage on the lot that is the subject of the appeal.

5. Setback reduction appeals may only be granted to the
minimum extent necessary to accomplish the purpose of the
appeal. Setbacks may not be reduced by appeal to less than
the following absolute minimum setbacks:

Side yard 10 feet

Front yard 30 feet for a dwelling unit and 20 feet for
an accessory building

Rear yard 15 feet

(R. Tab 7 at 29.) The Board voted to allow the Trust's application for setback

reduction on 819113. (R. Tab 1.) Party-in-interest ROHAR Trust never recorded

any written instrument documenting the 8 I 9 I 13 approval of the setback

reduction in the Cumberland Count Registry of Deeds. (Pls.' Supp. S.M.F. <J[ 22.)

This appeal followed.

3
DISCUSSION

1. Standard of Review

On an 80B appeal, the court must review the decision of the Board of

Appeals "for errors of law, abuse of discretion or findings not supported by

substantial evidence in the record." Rudolph v. Golick., 2010 :ME 106, '![ 8, 8 A.3d

684 (quoting Aydelott v. City of Portland, 2010 :ME 25, '![ 10, 990 A.2d 1024). The

interpretation of statutes and local ordinances are questions of law the court

reviews de novo. Wister v. Town of Mount Desert, 2009 ME 66, '![ 17, 974 A.2d

903.

2. Variance vs. Special Exception

Maine law empowers boards of appeals in municipalities that have

adopted zoning ordinances to grant variances, but they may do so only "in strict

compliance" with statutory standards. 30-A M.R.S. § 4353(2)(C) (2013); see also

York v. Town of Ogunquit, 2001 :ME 53, '![ 12, 769 A.2d 172 ("Zoning Ordinance

provisions are specifically subject to the variance analysis mandated by state

statute in 30-A M.R.S.A. § 4353(4)."). The state statute provides for two

variances: the undue hardship variance and the disability variance. See 30-A

M.R.S. § 4353(4) & (4-A). Boards may grant setback variances for single-family

dwellings and dimensional requirement variances, but only if the municipality

has adopted an ordinance that permits those variances.' 30-A M.R.S. § 4353(4-B)

& (4-C). Accordingly, state law establishes the only types of variances that may

be permitted and specifies the minimum standards for granting a variance.

Municipalities may adopt additional limitations on variances. See 30-A M.R.S. §

'The Town of Frye Island has not adopted these other types of variances. SeeR. Tab 7 at
47.

4
11
4353(4-C) ( [A] municipality may, in an ordinance adopted pursuant to this

subsection, adopt additional limitations on the granting of a variance from the

dimensional standards of a zoning ordinance.").

To avoid the strict requirements that apply to variances, defendant argues

that the Board of Appeals did not grant a variance but a "special exception."'

(Def.'s Rule 80B Br. at 4-5; R. Tab 7 at 47; see 30-A M.R.S. § 4353(2)(B)

(authorizing boards to issue special exception or conditional use permits). The

Law Court has explained the difference between a special exception and a

variance as follows:

A special exception use differs from a variance in that a variance is
authority extended to a landowner to use his property in a manner
prohibited by the ordinance (absent such variance) while a special
exception allows him to put his property to a use which the
ordinance expressly permits.

Silsby v. Allen's Blueberry Freezer, Inc., 501 A.2d 1290, 1295 (Me. 1985) (quoting

Stucki v. Plavin, 291 A.2d 508, 511 (Me. 1972)). Defendant argues that the Trust's

lot is in the same position as many other non-conforming lots on Frye Island

because many lots cannot meet the setback requirements. The Town argues that

its response to this common problem was to enact the non-conforming setbacks

provision of the Land Use Ordinance' because variances cannot address a

problem common to the entire neighborhood. (Def.'s Rule 80B Br. at 3-4, 8; R. Tab

7 at 29.); see Waltman v. Town of Yarmouth, 592 A.2d 1079, 1080 (Me. 1991)

(explaining that if a hardship is imposed by a zoning ordinance on the

'Defendant concedes that the Board of Appeals did not apply the statutory variance
criteria. (Def.'s Rule SOB Br. at 7.)
'It is immaterial that the Town describes its ordinance as a "land use ordinance" rather
than a zoning ordinance. See Wister, 2009 ME 66, 9I 25, 974 A.2d 903 ("Whether an
ordinance is labeled as regulating 'zoning' or 'land use' ... makes no difference in
application of section 4353.").

5
neighborhood generally, "relief must come by way of legislative action-that is,

amendment of the zoning ordinance by the town council-and not by variance").

Despite the name of the section, however, nothing in the non-conforming

setback section of the ordinance limits setback reduction appeals to non-

conforming lots. (R. Tab 7 at 29.) Further, the Town did not simply change the

minimum setback requirements; the Town empowered the Board of Appeals to

reduce the minimum setbacks required under the ordinance on a lot-by-lot basis

to an absolute minimum. (Id.) In each case, the deviation from the minimum

setback requirements may be different.

The Law Court has stressed that a special exception use cannot

circumvent a zoning requirement. Perkins v. Town of Ogunquit, 1998 :ME 42, 'li

12, 709 A.2d 106; York v. Town of Ogunquit, 2001 ME 53, 'li 11, 769 A.2d 172. In

Perkins, the Town's Board of Appeals denied the lot owner a variance for the 75-

foot street frontage requirement but granted a special exception contingent on

the lot owner securing a waiver of the street frontage requirement from the

Planning Board. Id. 'li 4. Applying a different set of standards authorized by the

Town's zoning ordinance, the Planning Board issued a waiver of the street

frontage requirement. Id. The court vacated the waiver because it found that it

was essentially a variance that did not meet statutory requirements. Id. 'li 12. As

the court explained the waiver, meeting the waiver criteria "in no way ensures

that a waiver proposal will satisfy the fundamental purposes of the zoning

requirements." Id. 'li 13.

The Town's non-conforming setbacks section of the ordinance does not

promote consistent and uniform application of the zoning ordinance. See Radin

v. Crowley, 516 A.2d 962, 964 (Me. 1986) ("[I]t is uniformity as defined by the

6
comprehensive zoning ordinance, not by the presence of nonconforming uses in

the area, that is the goal of zoning."). Under the non-conforming setbacks

section, the Board must grant an exception to a lot owner as long as it "will not

result in unreasonable interference with the privacy interests of the abutting

landowners." (R. Tab 7 at 29.) Privacy, however, is not the only purpose of

setback requirements. As the court observed in Radin, setback requirements
11
ensure passage of light and air, prevent the spread of fire, provide access to

firefighters and other emergency personnel and their vehicles, and prevent

overcrowding." Radin, 516 A.2d at 964. Nothing in the Town's setbacks

reduction section ensures that these goals are met. Moreover, as the Radin court

explained, 11 an essential policy of zoning is to gradually or eventually eliminate

nonconforming uses as speedily as justice will permit." ld. (quotation marks

omitted). The Town's non-conforming setbacks provision will perpetuate, not

eliminate, nonconforming lots.

Similar to the waiver in Perkins, the non-conforming setbacks provision of

the Town's Land Use Ordinance authorizes the Board of Appeals to grant

variances that do not meet statutory criteria. That provision is therefore invalid.

To hold otherwise would permit municipalities to circumvent the variance

standards required by state law.

The entry is

The 8 I 9 I 13 decision of the Town of Frye Islcm.d Zoning
Board of Appeals to approve Party-in-Interest ROHAR
Trust's request for a setback reduction is VACATED. This
case is REMANDED to the Town of Frye Island Zoning
Board of Appeals for consideration of whether to grant the
trust a variance in accordance with 30-A M.R.S. § 4353(4)
and the Town's Land Use Ordinance.

7
Judgment is entered in favor of Plaintiffs and against
Defendant on Count II of Plaintiffs' Amended Complaint as
follows: Section 101-I-4(D)(5) of the Town of Frye Island's
Land Use Ordinance conflicts with the requirements of 30-A
M.R.S. § 4353(4) and is, therefore, invalid.

Count III of Plaintiffs' Amended Complaint is moot.

Date: July 31, 2014
ancy Mills
Justice, Superior

AP-13-053

8
NATALIE BURNS ESQ - ~ .k I
JENSEN BAIRD GARDNER & HENRY D
PO BOX4510
PORTLAND ME 04112

SARAH MCDANIEL ESQ
DOUGLAS MCDANIEL CAMPO & SCHOOLS
90 BRIDGE ST .
SUITE 100
WESTBROOK ME 04092

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10810493. Public record. Not legal advice.