SUSAN D. SCARRITT, et al., Plaintiffs
TOWN OF FRYE ISLAND, Defendant and MICHAEL MARINO, TRUSTEE OF ROHAR TRUST, Party-in-Interest
DECISION AND ORDER
Nancy Mills, Justice, Superior Court.
Plaintiffs filed their complaint on September 23, 2013 and an amended complaint on January 23, 2014. Plaintiffs bring the following three counts: count I: 80B appeal of a 8/9/13 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 80B 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.
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 ROHAR. 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:
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 ...