Dunlop v. Town of Westport Island
2012 ME 22
Me.2012Background
- Dunlop appeals a Board of Appeals decision affirming a building permit for Richardson for a single-family dwelling on a 2.04-acre parcel in Westport Island’s shoreland zone.
- The permit application listed Richardson’s property as 2.07 acres; no survey was submitted to the CEO or Board and a survey was not required by ordinance.
- Dunlop challenged whether Jewett Cove Road on Richardson’s property should be included in the lot size calculation, arguing it is a road not a driveway and serves more than two residences.
- Dunlop argued Richardson’s application did not specify whether the survey measured to the high- or low-water mark, contending the property may be under two acres when measured to the high-water mark.
- The Board conducted de novo hearings and ultimately found the property exceeded two acres and that Jewett Cove Road is a driveway serving two lots.
- Superior Court affirmed the Board’s decision; Dunlop appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Richardson’s parcel meets the two-acre minimum when including the road lot | Dunlop: road should not count; parcel may be under two acres | Richardson: road lot properly included; parcel exceeds two acres | Yes; record supports over-two-acres including road lot |
| Whether Jewett Cove Road can be included in Richardson’s acreage calculation | Dunlop: road serves more than two lots; cannot count | Board included road portion on Richardson’s property as part of acreage | Yes, road lot can be included; court affirms Board’s conclusion to include road portion but declines deciding if it meets driveway definition at entry to Richardson’s property |
| Whether the Board properly conducted de novo review and allocation of burden of proof | Dunlop: burden misapplied; insufficient findings | Board conducted de novo review and Richardson bore burden of proof on appeal | Yes; Board conducted de novo review and properly applied burden of proof |
Key Cases Cited
- Kelley v. Me. Pub. Emps. Ret. Sys., 2009 ME 27, 967 A.2d 676 (Me. 2009) (burden on appeal; standard of review for agency findings)
- Stewart v. Town of Sedgwick, 2000 ME 157, 757 A.2d 773 (Me. 2000) (de novo review guidance; focus on substantive ordinance compliance)
- Gensheimer v. Town of Phippsburg, 2005 ME 22, 868 A.2d 161 (Me. 2005) (appellate review of municipal decisions)
- Aydelott v. City of Portland, 2010 ME 25, 990 A.2d 1024 (Me. 2010) (statutory interpretation; deferential review of board interpretations)
- Jordan v. City of Ellsworth, 2003 ME 82, 828 A.2d 768 (Me. 2003) (defining deference to board’s ultimate conclusions)