ORDER AND DECISION
the court is petitioners Michael Albert and Virginia
Albert's Rule SOB appeal of the respondent Town of
Pownal's August 1, 2018 decision. Respondent Town's
Board of Appeals determined that respondents DiGristinas'
recently built structure was an "accessory
structure." For the following reasons, the decision of
respondent Town of Pownal's Planning Board is affirmed.
Michael Albert and Virginia Albert reside at 400 Hodsdon
Road, Pownai, Maine, (R 1.) Respondents Vianna DiGristina and
Gahriel DiGristina reside at 390 Hodsdon Road, Pownai, Maine.
(R. 1.) Petitioners and respondents DiGristinas are
neighbors. (R. 3.) Respondent Town of Pownai is a
municipality located in Cumberland County, Maine.
September 14, 2017, Ryan Keith, respondent Town's Code
Enforcement Officer approved a building permit submitted by
respondent Vianna DiGristina to build an 865.5 square foot,
19' x 34' "accessory structure." (R. 23.)
In the building permit, she specified that the structure
would be "utilized as finish space for office space
presently and possible rental in the future." (R. 23.)
21, 2018, after respondents DiGristinas finished the
structure, CEO Keith issued a certificate of occupancy. (R.
22.) The certificate approved the structure for
"Residential use" as a "New Accessory
Dwelling/Home occupation." (R. 22.)
12, 2018, petitioners filed an application for an
administrative appeal to respondent Town Board of Appeals.
(R. 1, 8.) In their appeal, petitioners challenged the
CEO's issuance of a certificate of occupancy to
respondents DiGristinas. (R. 8.) On August 1, 2018, the Board
held a public hearing to address the petitioners'
concerns. (R. 1.) For two and one half hours, the Board heard
testimony from: petitioner Michael Albert, petitioners'
attorney Kristin Collins, respondent Gabriel DiGristina, CEO
Keith, Liza Nichols and John Bowdren of the Board, and
respondent Town Selectman Jon Morris. (R. 1-7.)
Board voted unanimously to deny the petitioners' appeal.
(R. 1.) The Board concluded that the structure built on
respondents DiGristinas' property complied with all
zoning ordinances and was an "accessory structure"
as stated on the building permit, not an "accessory
dwelling" as stated on the certificate of occupancy. (R.
1.) The Board concluded the "building permit was issued
for an accessory structure and met all the requirements for
an accessory structure." (R. 1.) The Board directed the
CEO to amend the certificate of occupancy to state that the
structure was an "accessory structure" and not an
"accessory dwelling." (R. 1.)
filed a complaint for appeal of government action pursuant to
Rule 80B on September 14, 2018. M.R. Civ. P. 80B. In the
complaint, petitioners allege three claims for relief: (1):
the structure is not "accessory structure" as used
because it is independent and used as a rental in violation
of respondent Town's Zoning Ordinance, (Compl.
¶¶ 12, 19-21); (2): the certificate of occupancy
should not have been issued because the structure created was
an "accessory dwelling" not an "accessory
structure" as stated in the building permit, (Compl.
¶ 22); and (3): the certificate of occupancy should not
have been issued because the structure is an "accessory
dwelling" and exceeds the 625 square foot limit stated
in the respondent Town's Zoning Ordinance. (Compl. ¶
filed their brief in support of their Rule 80B on October 24,
2018. Respondent Town filed its brief on November 21, 2018.
Respondents DiGristinas, filed their brief on November 26,
2018. Petitioners filed a reply brief on December 5, 2018.
Standard of Review
court reviews Board decisions for errors of law, abuse of
discretion, or findings not supported by substantial evidence
in the record. Aydelott v. City of Portland, 2010 ME
25, ¶ 10, 990 A.2d 1024. The court may not substitute
its judgment for that of the Board. Tarason v. Town of S.
Berwick, 2005 ME 30, ¶ 6, 868 A.2d 230. Petitioners
bear the burden "of showing that the record evidence
compels a contrary conclusion." Id.