Kevin J. Hill v. Town of Wells
2021 ME 38
| Me. | 2021Background
- Kevin Hill bought a vacant lot at 12 Lobster Lane on Drakes Island (Wells), which intrudes into wetlands contiguous to coastal wetlands and the Rachel Carson National Wildlife Refuge.
- State and local shoreland/wetland rules limited buildable area; Hill sought local variances to reduce the front setback (20' to 10') and the wetland setback (average ~38.5' to 25') to construct a 680 sq ft footprint, three‑story house (ground level parking).
- The DEP granted an NRPA permit for the project but expressly disclaimed that it replaced any local shoreland zoning approvals.
- The Wells Zoning Board of Appeals (ZBA) denied Hill’s variance application, finding he failed to prove the variances would not alter the essential character of the locality and that the lot’s wetlands and neighborhood context made the requested reductions incompatible.
- Hill appealed to Superior Court, which ordered the ZBA to grant the variances; an abutting landowner/intervenor (Bradley Hastings) appealed to the Maine Supreme Judicial Court, which vacated the Superior Court judgment and remanded with instructions to affirm the ZBA’s denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hill proved the statutory undue‑hardship element that granting variances "will not alter the essential character of the locality" | Hill argued the immediate abutters’ preexisting, nonconforming setbacks justified the variance and DEP approval supports it | ZBA/Hastings argued Hill failed to show the proposed house would be compatible in size, scale, or environmental impact with the district as zoned and that nonconforming structures cannot dictate conformity | Held: Hill failed to meet his burden; the ZBA reasonably found the variances would alter the locality and refused them |
| Whether the DEP NRPA permit required the Town to grant the shoreland setback variance | Hill relied on the DEP approval to show the project was permissible | Town/Hastings noted DEP approval expressly did not supersede local shoreland zoning or variance standards | Held: DEP permit did not compel local variance; ZBA could independently require larger setbacks |
| What constitutes the relevant "locality" for the essential‑character inquiry (including undeveloped wetlands/refuge) | Hill focused on immediate neighboring lots and their nonconforming setbacks | ZBA/Hastings argued the locality includes broader district characteristics, including overlay protections, wetlands, and the adjacent wildlife refuge | Held: Locality is fact‑sensitive and may include undeveloped wetlands and the Refuge; broader district purposes guide the analysis |
| Whether surrounding nonconforming structures control the essential‑character analysis | Hill argued existing nonconforming buildings supported granting the variance | ZBA/Hastings contended that relying on nonconforming uses would perpetuate nonconformance and defeat zoning purposes | Held: Nonconforming structures are relevant but not dispositive; their significance is discounted when inconsistent with zoning purposes |
Key Cases Cited
- Toomey v. Town of Frye Island, 943 A.2d 563 (2008) (standard of review and burden on party seeking to overturn municipal decision)
- Twigg v. Town of Kennebunk, 662 A.2d 914 (1995) (applicant must show evidence compelled board to grant variance)
- Radin v. Crowley, 516 A.2d 962 (1986) (variance inquiry tied to whether ordinance purpose is materially advanced)
- Sawyer Env'tl Recovery Facilities, Inc. v. Town of Hampden, 760 A.2d 257 (2000) (scope and limits of variance relief)
- Lovely v. Zoning Bd. of Appeals, 259 A.2d 666 (1969) (zoning aims to eliminate, not perpetuate, nonconformance)
- Peterson v. Town of Rangeley, 715 A.2d 930 (1998) (state environmental permits do not preclude local zoning authority)
- O'Toole v. City of Portland, 865 A.2d 555 (2004) (variance decisions should align with contemporary planning objectives)
- Surfrider Found. v. Zoning Bd. of Appeals, 358 P.3d 664 (2015) (surrounding nonconformity is not controlling evidence for granting variance)
- Pine Tree Tel. & Tel. Co. v. Town of Gray, 631 A.2d 55 (1993) (local boards may rely on personal knowledge of area)
- Jordan v. City of Ellsworth, 828 A.2d 768 (2003) (characterization of uses is a mixed question of law and fact)