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Cape Shore House Owners Association v. Town of Cape Elizabeth

Superior Court of Maine, Cumberland

August 22, 2018



          Lance E. Walker, Justice Maine Superior Court.

         Before 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.

         I. Background

         On 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.)

         The ZBA 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.)

         Plaintiffs 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. A.)[1] 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.

         II. Standard of Review

         The 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.

         III. Discussion

         The ZBA 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 ...

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