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Albert v. Town of Pownal

Superior Court of Maine, Cumberland

March 12, 2019

MICHAEL ALBERT and VIRGINIA ALBERT, Petitioners
v.
TOWN OF POWNAL, VIANNA DIGRISTINA and GABRIEL DIGRISTINA Respondents

          ORDER AND DECISION

          Nancy Mills, Justice.

         Before 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. Factual Background

         Petitioners 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.

         On 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.)

         On June 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.)

         On July 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.)

         The 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.)

         Procedural History

         Petitioners 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. ¶ 23.)

         Petitioners 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.

         Discussion

         I. Standard of Review

         The 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.

         II. The ...


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