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Beahm v. Town of Falmouth

Superior Court of Maine, Cumberland

April 23, 2018

ANDREW BEAHM, DEBORAH MEGNA, PATRICE WALSH and DONALD WALSH, Petitioners
v.
TOWN OF FALMOUTH, Respondent and DUNCAN MACDOUGAL, CORNFIELD, LLC, JENNIFER J. ANDREWS and MARK E. BATISTA, Parties-In-Interest.

          ORDER ON PETITIONERS' RULE 80B APPEAL

          Lance B. Walker, Justice.

         Before the Court is Petitioners' Rule 80B appeal of the May 25, 2017 decision of the Town of Falmouth Board of Zoning Appeals ("BZA" or "Board") approving a conditional use application for the construction of a residence on a nonconforming lot. Following the submission of the record and briefs in accordance with M.R. Civ. P. 80B(f) and (g), this matter is in order for this Court's decision.

         I. Background

         On February 28, 2017, Applicant Duncan McDougall ("Applicant") submitted to the BZA an application seeking to construct a single-family residence and garage on a lot under 10, 000 square feet located at 32 Andrews Avenue, Falmouth, Maine. The Application for a Conditional Use requires the applicant to meet each of the criteria set forth in the Town of Falmouth Code of Ordinances ("Code"), §§ 19-119 and 19-123. Section 19-119 requires, inter alia, the proposed use "will not have a significant adverse effect on adjacent or nearby property values" and "will not have a significant adverse impact on water views from adjacent and nearby properties and public right of ways." Code § 19-119(d), (e). Section 19-123 likewise states: "The proposal should not have a significantly adverse effect on adjacent or nearby property values." Code § 19-123(f).

         Petitioners Andrew Beahm and Deborah Megna reside at 24 Andrews Avenue, Falmouth, Maine. Petitioners Donald and Patrice Walsh reside at 17 Whitney Road, Falmouth, Maine. Defendant does not deny that Beahm, Megna and the Walshes own "adjacent or nearby properties" to 32 Andrews Avenue as referenced in the Code.

         The BZA held a hearing on the application on March 28, 2017. Prior to the hearing, Petitioner Beahm submitted to the Code Enforcement Officer photographs that Beahm contends depict water views from his home which will be lost if the proposed structure is constructed. Several residents of Andrews Avenue and Whitney Road, including Petitioners Beahm, Megna, and Patrice Walsh, attended the hearing and made public comments expressing concerns regarding the height of the proposed structure and the possible obstruction of water views. After discussion about water views and heights of surrounding homes, the BZA determined a site visit was necessary to evaluate the potential loss of water views. The 32 Andrews Avenue project was the only item of discussion during the nearly two-hour hearing. Applicant tabled his application.

         Three members of the BZA conducted the site visit on April 25, 2017, and a second hearing was held later that day. Applicant had revised his proposal to lower the roof line by one foot. Several abutters, including Petitioners, again attended to express concerns about the height of the home, loss of water views, and effects on character of the neighborhood. Concerns were also raised about decreased property values and setting a precedent for teardowns. Board members who were present for the site visit acknowledged that any structure built on the subject property would completely obstruct some water views. One Board member stated he was "leaning towards not being able to support the project," and the Board Chair agreed that he was leaning towards finding the home was of incompatible size and would significantly obstruct water views. (R. 75.) After being advised by the Board that "people expect a home will be built there, but the scale and bulk needs to be revisited," Applicant again chose to table the application. (Id.)

         A third hearing was held on May 23, 2017. Applicant had again revised his plans to lower the roof height another five feet and eliminate a second floor living space that would have connected the main upstairs living space with a room over the garage. At least one abutter contacted Applicant to thank him for listening to the abutters' input and scaling back his proposal. Only Petitioners Beahm, Megna, and Patrice Walsh made public comments, again expressing concerns over lost water views and the size of the proposed structure. The BZA acknowledged that any structure would block some water views, but "the intent of the code is not to make anything unbuildable." (R. 95.) The BZA approved the application by a two-to-one vote and formally issued its "approved" decision on May 25, 2017.

         Petitioners requested reconsideration from the BZA on June 1, 2017 and submitted letters expressing the basis of the request. The letter from Beahm and Megna requested the BZA view photographs they had previously submitted but believed had not been viewed or discussed, reiterated they would lose their view of Portland Headlight and Spring Point Light, and noted that they had constructed their house to gain water views, in reliance on the Code's protection of those views. The letter from the Walshes argued their view was "unseeable" on the day of the site visit due to fog, complained that 100% of their water view would be obstructed by the approved structure, and stated their realtor had indicated their water view increased their home value by 20- to-25%, or around $100, 000. The BZA determined Petitioners had presented no new information warranting a reconsideration and denied the request at a June 27, 2017 hearing.

         The BZA issued formal Findings and Conclusions on June 27, 2017. (R. 114-117.) The findings list each subsection of the relevant sections of the Code and state the Board's findings pertaining to each subsection. Regarding subsections 19-119(d) and 19-123(f), which relate to property values, the BZA found: "Various abutting property owners expressed concern that the proposed structure would affect their water views and could therefore negatively impact property values." (R. 115, 117.) Regarding subsection 19-119(e), which relates to water views, the BZA found:

i. The property at 17 Whitney Road has a very small water view from the rear, southern facing living room window. From there the resident can look through the open lot and across Andrews Avenue to see water. The aforementioned view would likely be obstructed.
ii. The property at 17 Whitney Road has a very small water view from the rear, western facing master bedroom window. From there the resident can look through the open lot and across Andrews Avenue to see water. The aforementioned view would likely be mostly obstructed.
iii. The property at 24 Andrews Avenue has a small water view from the side, southern facing attic window. From there the resident can look over the adjacent property to see water. The aforementioned view would likely be partially obstructed.
iv. The property at 24 Andrews Avenue has a medium water view from the side southern facing guest bedroom window. From there the resident can look over the adjacent property to see water. The ...

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