CAPE SHORE HOUSE OWNERS ASSOCIATION and CONSTANCE JORDAN, Plaintiffs
TOWN OF CAPE ELIZABETH and ALAN and MARA DeGEORGE, Defendants.
ORDER ON PLAINTIFFS' RULE 80B APPEAL
E. Walker, Justice Maine Superior Court.
the Court is Plaintiffs' Rule 80B appeal of the May 23,
2017 decision of the Cape Elizabeth Zoning Board of Appeals
("ZBA") approving Defendants' Alan and Mara
DeGeorge's ("the DeGeorges") permit to raze and
reconstruct a nonconforming single-family house. For the
following reasons, Plaintiffs' appeal is denied.
April 28, 2017, Engineering Technician Michael Skolnick, on
behalf of the DeGeorges, submitted to the Code Enforcement
Officer of the Town of Cape Elizabeth ("Town") an
application for a variance to reconstruct a single-family
dwelling within the 75-foot setback from the normal high
water line adjacent to the subject property. (R. 1.) The
proposed structure, located at 5 Birch Knolls (as shown on
the Town's Tax Map U-5 as Lot 15), is in the Residential
C District. (Id.) The application explained in
detail that the original structure was constructed prior to
the imposition of the 75-foot setback requirement and that,
for a number of reasons, it was necessary to reconstruct the
structure in the same location. (R. 1-2.) The application
concludes: "The granting of this variance will
drastically reduce the amount of unnecessary erosion,
minimize the effect on the abutting property owners and allow
the proposed dwelling to conform to the surrounding character
of the community." (R. 3.)
conducted a public hearing on the application on May 23,
2017. (R. 25.) Jim Fisher, President of Northeast Civil
Solutions, spoke on behalf of the DeGeorges to explain the
need for the variance. (R. 26-27.) Plaintiff Constance
Jordan, President of the Cape Shore House Condominiums, and
Plaintiffs' attorney William Dale attended the hearing.
(R. 27.) Attorney Dale objected to the enlarged height of the
proposed structure, arguing that adding a third story to the
house would block his clients' views of Maiden Cove
Beach. (Id.) Ken Piper of 3 Birch Knolls, the
abutter to the back of the property, attended and stated the
height increase was not a "big deal." (R. 27.)
Nancy Morino of 4 Birch Knolls expressed approval of the
proposed structure. (R. 28.) Attorney Dale maintained that
the DeGeorges were not entitled to add a third story.
(Id.) At the conclusion of the hearing, the ZBA
unanimously voted to approve the application and made
findings of fact on the record, including that the proposed
structure is in conformity with the setback requirement to
the greatest practical extent and that the ZBA considered
impact on views in reaching its decision. (R. 28-29.)
filed their Rule 80B complaint on June 27, 2017, alleging
that the ZBA erred in granting the DeGeorges' application
to build a house that would unreasonably block
Plaintiffs' water views. Plaintiffs thereafter filed
their Rule 80B brief on August 4, 2017. On September 7, 2017,
this case was remanded to the ZBA for further findings of
fact. The ZBA issued its supplemental Findings of Fact and
Decision on December 26, 2017. (DeGeorges' Br., Ex.
The DeGeorges filed their 80B brief on February 9, 2018, and
the Town filed its 80B brief on April 27, 2018. Plaintiffs
filed a Rule 80B brief after dismissal of Counts II and III
on June 29, 2018, which largely echoes the contentions in
their original brief.
Standard of Review
decision of a fact-finding body in an 80B appeal is reviewed
for errors of law, abuse of discretion, or findings not
supported by substantial evidence. Aydelott v. City of
Portland, 2010 ME 25, ¶ 10, 990 A.2d 1024. The
party seeking to overturn the decision bears the burden of
persuasion. Id. The ZBA's conclusion as to what
facts meet the requirements of a zoning ordinance is afforded
deference and "will only be overturned if it is not
adequately supported by evidence in the record."
Jordan v. City of Ellsworth, 2003 ME 82, ¶ 8,
828 A.2d 768.
found, and the parties do not dispute, that the proposed
structure is nonconforming as to the 75-foot setback and
would result in a floor area increase of 16.69% and a
building volume increase of 5.5% as compared to the original
structure. (See DeGeorges' Br., Ex. A at 3.)
Because the proposed structure would be a replacement, the
DeGeorges' entitlement to a permit is governed by §
19-4-4.B(3) of the Town of Cape Elizabeth Zoning Ordinance.
That section states:
If the total amount of floor area and volume of the
reconstructed or replacement structure is located in an area
that is less than the required setback, it shall not be any
larger than the original structure, except as allowed
pursuant to Sec. 19-4-4 B(1) above....
(R. 70.) Section 19-4-4B(1) permits enlargement as follows:
After January 1, 1989, if any portion of a structure does not
meet the required setback ..., that portion of the structure
shall not be expanded in floor area or volume by more than
30% during the lifetime of the structure. ... Whenever a new,
enlarged, or replacement foundation is constructed under a
non-conforming structure, the structure and new foundation
must be placed such that the setback requirement is met to
the greatest practical extent ...