Rowe v. City of South Portland
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 81
Docket:	Cum-98-625
Submitted
on briefs:	April 15, 1999	
Decided: 	May 28, 1999


Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, ALEXANDER, and CALKINS, JJ.

EDWARD ROWE

v.

CITY OF SOUTH PORTLAND et al.

WATHEN, C.J.


	[¶1]  Edward Rowe appeals from a judgment entered in the Superior
Court (Cumberland County, Cole, J.) affirming the decision of the City of
South Portland Zoning Board of Appeals' granting a setback variance to
Nancy Buck. Because we agree with Rowe's contention that Buck failed to
show that the property could not yield a reasonable return without the
variance, we vacate the judgment. 
	[¶2]  The facts may be summarized as follows:  Buck built a home on
a lot in South Portland in 1996. The home and the lot are irregular in shape.
The area of the lot is approximately 28,000 square feet, and the area of the
house is 4,600 square feet. Buck hired a designer and a contractor to
design, locate, and build the house. In building the house, because of his
concern for sea erosion, the contractor set the house back 20 feet from the
ocean instead of 12.6 feet as indicated in the plan by the designer.  In so
doing, because of the irregular shape of the house and the lot, the house
encroached upon the 20-foot front yard setback requirement by 1.26 feet
and the 25-foot rear yard setback requirement in three places by 1.56 feet,
2.05 feet, and .79 feet.  The home was substantially completed when Rowe,
the abutting neighbor on the front side, undertook a survey for other reasons
and discovered the encroachments. As a result, the certificate of occupancy
was denied. Buck sought a zoning variance.  After holding a hearing, the
Board of Appeals granted the variance. Rowe appealed the Board's decision
to the Superior Court pursuant to M.R. Civ. P. 80B, and the court affirmed. 
Rowe now appeals to this Court.

I. Standing

	[¶3]  Before reaching the merits of this case, we must determine
whether Rowe had standing.  An appeal from a zoning board of appeals may
be taken by "[a]ny party . . . to Superior Court from any order, relief, or
denial in accordance with the Maine Rules of Civil Procedure, Rule 80B." 30-
A M.R.S.A. § 2691(3)(G)(1996). To be a "party" for purposes of section 2691,
the person "must have participated before the board and must make a
showing of a particularized injury." Brooks v. Cumberland Farms, Inc. 1997
ME 203, ¶ 8, 703 A.2d 844, 847 (citations omitted).
	[¶4]  Rowe, through his attorney, clearly participated in the hearing. 
Buck contends, however, that Rowe failed to plead or demonstrate a
particularized injury. Particularized injury for abutting landowners can be
satisfied by a showing of "the proximate location of the abutter's property,
together with a relatively minor adverse consequence if the requested
variance were granted." Forester v. City of Westbrook, 604 A.2d 31, 32 (Me.
1992) (standing found "due to the proximate location of his property
together with the potential for esthetic or noise injury from the
construction or use of the double deck").  Contrary to Buck's argument,
Rowe's assertions that he owns abutting property and that Buck violated the
front line setback requirement are sufficient to allege a particularized injury. 
See Harrington v. City of Biddeford, 583 A.2d 695, 696 (Me. 1990) (standing
found where the lot was on same side of street, separated by only one other
lot, on the sole basis that the applicant's house was built closer to the street
than the challenger's house).

	II. Variance 

	[¶5]  When the Superior Court acts as an intermediate appellate
court, we review the Board of Appeals' decision directly for abuse of
discretion, legal error, or findings unsupported by substantial evidence in
the record. See Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me.
1995). Our review of the record "'is limited to determining whether from
the evidence of record facts could reasonably have been found by the zoning
body to justify its decisions.'" Leadbetter v. Ferris, 485 A.2d 225, 227 (Me.
1984) (citations omitted).  Pursuant to South Portland's zoning ordinance,
the Board may only grant a variance if the applicant can show that strict
application of the ordinance would cause the applicant undue hardship
defined as follows:

(1) That the land in question cannot yield a reasonable return
unless a variance is granted;

(2) That the need for a variance is due to the unique
circumstances of the property and not to the general
conditions of the neighborhood;

(3) That the granting of a variance will not alter the essential
character of the locality; and

(4) That the hardship is not the result of action taken by the
applicant or a prior owner.

South Portland, Me., Zoning Ordinance § 27-36 (January 19, 1994); see also
30-A M.R.S.A. § 4353(4) (Supp. 1998). 
	[¶6]  The issues in this case are complicated by the fact that the
building was substantially completed at the time the error was discovered. 
We apply, however, the same requirements and analysis to post-construction
cases.  See Pepperman v. Town of Rangeley, 659 A.2d 280 (Me. 1995)
(upheld denial of variance for applicant who built a lean-to that violated a
setback requirement on the ground that applicant failed to meet the
reasonable return prong).  Failure to yield a "reasonable return" means "the
practical loss of all beneficial use of the land."  Twigg v. Town of Kennebunk,
662 A.2d 914, 918 (Me. 1995) (citation omitted).  We have often stated that
reasonable return does not mean maximum return.  See id. at 919.
	[¶7]  In this case, if Buck had approached the zoning board for a
variance prior to building the house, it could not have been granted because
Buck could have constructed a house smaller than 4,600 square feet and still
had a beneficial use.  Moreover, Buck could still enjoy a beneficial use as a
residence if she moves the house or rebuilds the part of the house that
encroaches upon the front setback requirement.  Buck argues that it would
cost tens of thousands of dollars to move or rebuild the parts of the house
that encroach upon the setback, and, without doing so, she is unable to get a
certificate of occupancy to use the house as her residence.  We determine
that those arguments are insufficient to meet the reasonable return prong.
The costs, even if prohibitive, were not construction costs caused by
restrictions in the ordinance.  They are reconstruction costs caused by
human error in the construction of a building that could have conformed to
the zoning requirements.  Accordingly, the record does not rationally
permit the conclusion that denial of the variance would result in the
practical loss of all beneficial use of the land. Because an applicant must
satisfy all four prongs of the undue hardship test, we need not address
whether Buck satisfied the other prongs.
	[¶8]  Notwithstanding Buck's failure to meet the reasonable return
prong of the undue hardship test, both the City of South Portland and Buck
ask us to allow the variance.  The City asks that we adopt a "practical
difficulty" test for determining an area variance request, arguing that the
reasonable return prong is difficult to apply to area variances.  Buck argues
that we should apply a de minimis test to the facts of this case. 
	[¶9] We note that in 1991 the Legislature expressly authorized
municipalities to adopt a more relaxed, less rigid test for single-family
residences.  See 30-A M.R.S.A. § 4353 (4-B) (1996).  In addition, in 1997
the Legislature also enacted an exception to the "undue hardship"
requirement for variances from dimensional standards. See 30-A M.R.S.A. §
4353 (4-C) (Supp. 1998). 
	[¶10]  The history behind these two subsections is as follows:  In
1991 "An Act Allowing Zoning Boards of Appeal to Grant Dimensional
Variances Based on Practical Difficulty" was introduced.  L.D. 1832 (115th
Legis. 1991).  The Statement of Fact read as follows:

	Current law strictly limits the authority of a municipal
zoning board of appeals to grant variances.  A zoning board
may grant a variance only if strict application of an ordinance
causes undue hardship to the property owner.  To prove
undue hardship, a property owner must show that the
ordinance prevents the property owner from realizing any
reasonable return on the property.

	This bill allows municipal zoning boards of appeals to
grant dimensional variances if the petitioner can
demonstrate "practical difficulty."  To meet the practical
difficulty standard in the bill, the property owner must show
that strict application of an ordinance prevents the owner
from using the property for a purpose otherwise allowed. 
The property owner must also show that granting the
variance does not reduce the value or impair the use of
abutting property in the zone and does not conflict with the
general purpose of the ordinance, that the public safety and
welfare is protected and that the variance does not conflict
with the municipality's comprehensive plan.

L.D. 1832, Statement of Fact (115th Legis. 1991).  The bill was amended to
replace the dimensional language with the single-family dwellings language
that was eventually adopted in 1991. Comm. Amend. A to L.D. 1832, No. H-
901 (115th Legis. 1991). In 1997, a new "Act to Establish Practical Difficulty
Standards for a Variance from the Dimensional Standards of a Municipal
Zoning Ordinance" was introduced. L.D. 1074 (118th Legis. 1997). The
Statement of Fact stated:  

	This bill amends the zoning adjustment statute to adopt
"practical difficulty" standards for variances from dimensional
standards in zoning ordinances.  The bill allows a petitioner
to obtain a variance from a dimensional standard, such as a
yard setback, lot area, lot width or a frontage provision, upon
a showing that is less stringent than must be made under
"undue hardship" conditions in the Maine Revised Statutes,
Title 30-A, section 4353, subsection 4.   This bill requires a
petitioner for use variances to prove undue hardship under
section 4353, subsection 4; a petitioner for dimensional, or
area variances may utilize the less stringent practical
difficulty standards under section 4353, subsection 4-C. 
Although there now are less stringent undue hardship
conditions for set-back variances under section 4353,
subsection 4-B, which is limited to a single-family dwelling
and which is the petitioner's primary year-round residence,
these conditions do not afford relief from lot area, lot width
or frontage requirements, and is only available if a
municipality affirmatively adopts the standard by ordinance. 
This bill makes all petitioners for dimensional variances,
whether by residential, commercial or industrial property
owners, subject to the practical difficulty standards and does
not require municipal adoption of these standards.

L.D. 1074, Statement of Fact (118th Legis. 1997).  The bill was amended to
change the language "The board shall grant a variance" to "A municipality
may adopt an ordinance that permits the board to grant a variance."  Comm.
Amend. A to L.D. 1074, No. H-175 (118th Legis. 1997).
	[¶11]  Thus, the Legislature has taken action and the City has the
option to adopt the less stringent ordinances allowed by the Legislature. We
decline to circumvent the legislative and municipal authority and adopt a
"practical difficulty" test for all area variances when the Legislature has
expressly granted authority to municipalities to adopt such a test and the
City of South Portland has chosen not to take such action.  For similar
reasons, we decline to adopt a de minimis test. 
	The entry is:
Judgment vacated.  Remanded to the
Superior Court for entry of judgment in
favor of plaintiff.
Attorneys for plaintiff:

Christopher B. McLaughlin, Esq.
Christopher Neagle, Esq.
Verrill & Dana, LLP
One Portland Square
Portland, ME 04112-0586

Attorneys for defendants:

Mary K. Kahl, Esq.
Corporation Counsel
P O Box 9422
South Portland, ME 04116-9422
(for City of South Portland)

Harold C. Pachios, Esq.
Sigmund D. Schutz, Esq.
Preti, Flaherty, Beliveau, Pachios & Haley, LLC
P O Box  9546
Portland, ME 04112-9546
(for Nancy Buck)