Richard M. Balano v. Town of Kittery
163 A.3d 144
| Me. | 2017Background
- Richard M. Balano appealed a Superior Court judgment affirming the Kittery Planning Board’s approval of a site plan for a hotel on Route 1.
- Balano challenged the Board’s approval of a flat-roof design, arguing the Town ordinance permits flat roofs only when a pitched roof is shown to be "not practicable."
- The developer and Planning Board presented evidence that a pitched roof would create snow-safety hazards and make mechanical equipment less accessible in emergencies, supporting a flat-roof alternative.
- Balano also argued the proposal would exceed the ordinance’s height limits; the Board treated roof parapets as excluded from height calculations under the ordinance.
- Balano contended the Planning Board effectively granted variances (which only the Board of Appeals may grant) by approving the roof design and height; the Planning Board maintained it acted within its approval authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether flat roof permitted where pitched roof is "not practicable" | Balano: Record does not support finding that a pitched roof is not practicable, so flat roof is impermissible | Town/Developer: Evidence showed safety and emergency-access reasons making a pitched roof impracticable; Board may approve alternative roof | Court: Substantial evidence supports Board’s finding; Board authorized to approve flat roof — not a variance |
| Whether proposed building exceeds height limits | Balano: Proposed design exceeds ordinance height limits | Town/Developer: Parapets are excluded from height calculation; building complies with ordinance | Court: Parapets are not included in height; approved height complies with ordinance; not a variance |
| Whether Planning Board improperly granted variances | Balano: Approval of roof and height effectively grants variances reserved for Board of Appeals | Town/Developer: Board acted under its own ordinance authority to approve alternative roof and apply height rules | Court: Actions were within Planning Board’s authority and did not constitute variances |
| Standing to appeal | Town (cross-appeal): Balano lacks standing | Balano: Claims interest sufficient under controlling precedents | Court: Not persuaded by Town; Balano has standing to appeal |
Key Cases Cited
- Osprey Family Tr. v. Town of Owls Head, 141 A.3d 1114 (Me. 2016) (standard of review for Planning Board permit approvals)
- Summerwind Cottage, LLC v. Town of Scarborough, 61 A.3d 698 (Me. 2013) (deference and review standards for municipal land-use decisions)
- Rudolph v. Golick, 8 A.3d 684 (Me. 2010) (deference to local factual characterizations under ordinances)
- Witham Family Ltd. v. Town of Bar Harbor, 30 A.3d 811 (Me. 2011) (standing to appeal municipal land-use decisions)
- Friends of Lincoln Lakes v. Town of Lincoln, 2 A.3d 284 (Me. 2010) (standing principles in municipal appeals)