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Osprey Family Trust v. Town of Owls Head

Supreme Court of Maine

June 7, 2016


          Submitted On Briefs: April 21, 2016

         Knox County Superior Court docket number AP-2014-08

          Paul L. Gibbons, Esq., The Law Offices of Paul L. Gibbons, LLC, Camden, for appellant Osprey Family Trust

          David F. Jenny, Esq., Owls Head, for cross-appellant Jill Delaney

          The Town of Owls Head and Claire Perry did not file a brief


          MEAD, J.

         [¶1] The Osprey Family Trust appeals, pursuant to M.R. Civ. P. 80B, from a judgment of the Superior Court (Knox County, Billings, J.) affirming a decision of the Town of Owls Head Board of Appeals (BOA). The BOA's decision overruled the decision of the Town's Planning Board to grant the Trust a permit to remove an existing structure in the shoreland zone and replace it with a new structure that included an addition. We agree with the court's finding that the Planning Board was required to initially consider the new structure's compliance with the Town's Shoreland Zoning Ordinance (SZO) absent the proposed addition; we conclude also that the Planning Board applied the wrong section of the SZO in considering the Trust's permit application. For that reason, we vacate the judgment and remand with instructions that the court order the Planning Board to reconsider the application, applying the proper SZO provision.

         I. BACKGROUND

         [¶2] The facts are drawn from the administrative record before the Planning Board. See M.R. Civ. P. 80B(f). All parties agree that the Planning Board rendered "the operative decision of the municipality" to be reviewed on appeal because the SZO authorizes the BOA to act only in an appellate capacity, which it did in this case. See Fitanides v. City of Saco, 2015 ME 32, ¶ 8, 113 A.3d 1088 (quotation marks omitted); Owls Head, Me., Zoning Ordinance § 1.6(B)(2) (March 4, 2013); Owls Head, Me., Shoreland Zoning Ordinance § 16(H)(1) (March 4, 2013).

         [¶3] On March 31, 2013, Douglas Johnson, as trustee of the Osprey Family Trust (hereinafter Johnson), filed an application for a building permit concerning his shorefront property in Owls Head. Johnson sought to replace a dilapidated minesweeper deckhouse that had been placed on the property in the 1950s and used as a cottage with a new, larger single-family residence. The existing structure is located partly within the SZO's seventy-five-foot setback zone from the Atlantic Ocean. See Owls Head, Me., Shoreland Zoning Ordinance § 15(B) (March 4, 2013). In addition to being bounded by the ocean, the rear of Johnson's property contains a wetland of special significance that would necessitate a Maine Department of Environmental Protection permit before being used as a building site. 06-096 C.M.R. ch. 310, § 4, amended by order 2009-32 (effective Jan. 26, 2009). Johnson proposed to replace the existing structure with one that would still be located partly within the seventy-five-foot setback zone, but farther back from the ocean than the old structure, along with an addition lying completely outside of the seventy-five-foot setback zone and not encroaching on the wetland.

         [¶4] The Planning Board took up Johnson's proposal on several occasions between April 2013 and March 19, 2014, when it made findings of fact and unanimously approved Johnson's plan. The Planning Board's findings of fact included a finding that

[u]nder Section 12 of the Town's Shoreland Zoning Ordinance, this is a nonconforming structure and it may be re-located, further away from the ocean, but not into the wetland to the rear, to the greatest extent practical in the opinion of the Planning Board. . . . [T]he Planning Board believes the "compromise" location of the proposed new building-15' back from its original proposed location . . . -best meets the applicable SZO standard, i.e., the proper balancing of the competing environmental interests.

         [¶5] The referenced SZO provision states, in part, that "[a] nonconforming structure may be relocated within the boundaries of the parcel on which the structure is located provided that the site of relocation conforms to all setback requirements to the greatest practical extent as determined by the Planning Board." Owls Head, Me., Shoreland Zoning Ordinance § 12(C)(2) (March 4, 2013) (emphasis added).

         [¶6] On April 14, 2014, Owls Head residents Jill Delaney and Claire Perry appealed the Planning Board's decision to the BOA, contending that the Planning Board erred in finding that Johnson's project conformed with setback requirements "to the greatest practical extent." The BOA met on May 6, 2014, and decided that (1) "the Planning Board was in error in their decision and [] the existing structure is not being relocated to the greatest extent practical, " ...

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