Bailey v. City of So. Portland
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 54
Docket:	Cum-97-187
Submitted
 on Briefs:	November 24, 1997
Decided:	March 13, 1998

Panel:		WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, and DANA, JJ.

ARTHUR L. BAILEY, JR.

v.

CITY OF SOUTH PORTLAND and
JOHN L. MURPHY

DANA, J.

	[¶1]  Arthur L. Bailey appeals from the judgment entered in the
Superior Court (Cumberland County, Calkins, J.) affirming the South
Portland Zoning Board of Appeals' grant of a variance sought by John L.
Murphy.  The issue before us is whether Murphy's property should be
considered one lot or three lots, two of which cannot yield a reasonable
return without a variance.  We conclude that Murphy owns three lots and
that the Board's decision to grant Murphy a variance based on undue
hardship is supported by substantial evidence in the record.  We thus affirm
the judgment.
	[¶2]  In 1985, Murphy purchased from Alice and Thomas Carmody
three "lots of record" in the Willard Beach area of South Portland described
in a single deed by its metes and bounds.{1}  A single family residence is
situated on one of the lots, identified on South Portland's tax map 2 as lot 1
(hereinafter the "house lot").  The remainder of the property (identified on
South Portland's tax map 1 as lots 233 and 237A) (hereinafter lots A and B)
is otherwise unimproved.
	[¶3]  South Portland's zoning regulations for this area require a
minimum lot size of 12,500 square feet and at least 75 feet of road frontage. 
The house lot meets the road frontage requirement but is only 8,976 square
feet in size.{2}  Lots A and B have a combined size of about 14,000 square feet
but only 26 feet of road frontage.  The current zoning requirements existed
at the time Murphy acquired these lots.
	[¶4]  The Zoning Board of Appeals for the City of South Portland
granted a variance to Murphy from South Portland's street frontage
requirement enabling him to construct a single-family dwelling on lots A and
B.  Bailey, an abutting neighbor, appealed the Board's decision to the
Superior Court pursuant to M.R. Civ. P. 80B.  The Superior Court affirmed
the Board's decision, concluding that substantial evidence existed in the
record to support the Board's determination that Murphy's property should
be considered three lots, that the "land in question" for the purpose of
considering the variance was lots A and B, and that Murphy had established
undue hardship.
	[¶5]  We review the record before the Board for abuse of discretion,
errors of law, or findings unsupported by substantial evidence.  Twigg v.
Town of Kennebunk, 662 A.2d 914, 916 (Me. 1995).  In order to grant the
variance, the Board had to find that compliance with the zoning ordinance
would have created undue hardship for Murphy.  See 30-A M.R.S.A.
§ 4353(4) (Supp. 1997).  Undue hardship involves four criteria:  (1) the land
in question cannot yield a reasonable return without a variance; (2) the need
for a variance is attributable to the unique character of the property and not
to general environmental conditions; (3) the grant of a variance will not alter
the essential character of the area; and (4) the hardship is not the result of
action taken by the applicant or a prior owner.  Id.
	[¶6]  We have repeatedly recognized that "reasonable return," as
contemplated by section 4353(4)(A), is not maximum return.  See
Leadbetter v. Ferris, 485 A.2d 225, 227 (Me. 1984); Barnard v. Zoning Bd. of
Appeals, 313 A.2d 741, 749 (Me. 1974).  The standard for measuring
reasonable return is whether "strict compliance with the terms of the
ordinance would result in the practical loss of substantial beneficial use of
the land."  Leadbetter, 485 A.2d at 228.
	[¶7]  Section 27-7(f) of the South Portland Zoning Ordinance provides
that 

Abutting lots in the same ownership and of continuous frontage
shall, after January 1, 1978, merge and be considered as one (1)
lot for purposes of determining compliance with space and bulk
regulations for the district in which the lots are located . . . .

(emphasis added).  The house lot fronts on Willard Street.  Lot A abuts the
house lot and fronts on Willard Haven Road.  Lot B abuts both the house lot
and lot A but is landlocked.  The South Portland Board of Zoning Appeals
correctly concluded that because the lots did not share continuous road
frontage, they did not merge.
	[¶8]  Bailey endeavors to avoid the force of section 27-7(f) by asserting
that Murphy has only one lot because his 1985 deed gave a perimeter
description for the three lots.  Bailey overlooks, however, that the deed
specifically describes the "land hereby conveyed" as "three contiguous
parcels of land."  Bailey cites us to no authority, and we have found none, for
the proposition that the use of the scriveners device of describing multiple
contiguous lots by their external perimeter destroys the independent
standing of the constituent parts.
	[¶9]  Bailey next argues that the court's decision is somehow
inconsistent with our holding in Barnard, 313 A.2d at 747.  Barnard, like
Murphy, was trying to build a second dwelling on her Yarmouth property. 
Unlike the South Portland Ordinance, the Yarmouth Zoning Ordinance
prohibited construction on any adjoining nonconforming lot under the same
ownership.  Id. n.7.  Barnard owned a 40,000 square foot parcel of land that
at one time had been two separate lots.  The properties merged because of
the requirement in the Yarmouth Zoning Ordinance that adjoining
nonconforming lots under the same ownership merge to meet the 30,000
square foot lot size requirement.  Because the South Portland Zoning
Ordinance requires "continuous (road) frontage" for merger, Barnard is
inapplicable.
	[¶10]  Next Bailey argues that Murphy's three lots are not "lots of
record."  First, it should be noted that the operative section of the
ordinance, set out above, speaks only of "[a]butting lots" not "abutting lots of
record."  However, even if the ordinance requires that the lots be "lots of
record," lots A and B qualify.  The term "lots of record" is employed in the
ordinance to refer to lots described in the Cumberland County Registry of
Deeds.  Both lots are described in the Registry.{3}  The South Portland Zoning
Board of Appeals described the two vacant lots as both "unique" and "a
combination of 2 lots of record."
	[¶11]  Finally, there was substantial evidence supporting the Board's
findings that lots A and B cannot yield a reasonable return and have no value
without the variance, that the need for the variance was due to the unique
circumstances of the property and not the general conditions of the
neighborhood, that the variance will not alter the essential character of the
neighborhood and the proposed home will be in character with the
surrounding properties, and that the hardship to Murphy was not the result
of action taken by Murphy or his predecessor.
	The entry is:
	Judgment affirmed.
Attorney for plaintiff:

Michael H. Hill, Esq.
Monaghan, Leahy, Hochadel & Libby
P O Box 7046
Portland, ME 04112-7046

Attorneys for defendants:

Mary K. Kahl, Esq.
Corporation Counsel
P O Box 9422
South Portland, ME 04116-9422

Thomas F. Jewell, Esq.
Jewell & Boutin
465 Congress Street, Suite 408
Portland, ME 04101
(for Murphy)

FOOTNOTES******************************** {1} The land purchased by Murphy is identified on South Portland's tax maps as Map 2, Lot 1, and Map 1, Lots 233 and 237A. The Carmodys had acquired this land, along with additional contiguous land, in three deeds from three grantors in 1965. In 1978, the Carmodys sold the additional land (identified on South Portland's tax map 1 as lot 237) and retained the three lots at issue. {2} The house on Lot 1 existed prior to the first enactment of the South Portland Zoning Ordinance and prior to the first conveyance of Lot 1 in May of 1936. {3} Murphy's predecessor, Carmody, acquired the property here involved in three conveyances in 1965, from Cuccio, Realty Operating, Co. and Victory Developing Corporation. In 1978, Carmody conveyed a lot that consisted of a part of what had been acquired from Realty Operating Co. and Victory Developing Corporation. The balance of what had been acquired from the two corporations became lots A and B, respectively.