Summerwind Cottage, LLC v. Town of Scarborough
2013 ME 26
| Me. | 2013Background
- Summerwind Cottage, LLC and Cassats appeal a Superior Court judgment affirming a ZBA variance granting a setback reduction in Higgins Beach, Scarborough.
- ZBA approved reducing the marsh setback from 75 to 25 feet for the Scala-Adams lot, after multiple hearings and a remand for findings.
- Scala/Adams own a 50-foot-wide, wedge-shaped vacant lot created in 1923; it borders a tidal marsh and is subject to Scarborough Shoreland Zoning.
- The Official Shoreland Zoning Map places the lot in the Shoreland Overlay District; dispute centers on whether this classification is correct and deference due.
- The lot is a non-conforming lot of record with 50-foot width; the ordinance allows building without a variance if certain conditions are met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the ZBA's reliance on the Official Shoreland Zoning Map proper? | Summerwind asserts map misclassifies the lot, should be in Resource Protection. | Scarborough's map is part of the ordinance and entitled to deference; classification is a legislative act. | Map classification is entitled to deference; classification within Shoreland Overlay District is upheld. |
| Does the lot's width qualify as non-conforming thus removing need for a variance? | Lot width deficiency (50 ft) cannot be cured without a variance. | Non-conforming lots can be built upon if ownership conditions are met; width need not trigger a variance. | Non-conforming lot width is exempt from variance under §12(E)(1); no width variance required. |
| Are the lot's unique circumstances sufficient to justify a variance under undue hardship? | Hardship is due to neighborhood conditions, not unique lot features. | Lot's wedge shape and wetlands create a unique building envelope not shared by nearby lots. | Hardship is due to unique characteristics of the property, justifying the variance. |
| Was there a reasonable return without the variance, considering recreation? | Recreational use could provide a reasonable return. | Evidence shows only non-productive uses without a variance; recreation not viable for this lot. | No reasonable return without a variance; recreation not a viable use here. |
| Did consideration of a neighbor sale affect the variance analysis? | Sale to a neighbor at FMV could yield a reasonable return. | Potential neighbor sale is irrelevant to reasonable return and the variance decision. | Sale to a neighbor is not required or controlling for reasonable return. |
Key Cases Cited
- D’Alessandro v. Town of Harpswell, 2012 ME 89 (Me. 2012) (de novo review of ordinance interpretation)
- Aydelott v. City of Portland, 2010 ME 25 (Me. 2010) (question of law on ordinance interpretation)
- Bog Lake Co. v. Town of Northfield, 2008 ME 37 (Me. 2008) (legislative map boundary deference; harmony with plan)
- Marchi v. Town of Scarborough, 511 A.2d 1071 (Me. 1986) (variance not denied solely due to neighbor offer to purchase)
- Toomey v. Town of Frye Island, 2008 ME 44 (Me. 2008) (reasonable return not require proof of economic infeasibility)
- Rudolph v. Golick, 2010 ME 106 (Me. 2010) (deference to local findings; substantial evidence standard)