Battle over Appleton property headed back to court
Appleton — Following a judge's order, the Board of Appeals Sept. 17 expanded on the findings used to approve a variance for a Searsmont Road home that has been the center of a court battle.
The variance, approved in 2012, was for a house built in 2009 by Appleton Ridge Construction LLC owner Jacob Boyinton on a .18-acre lot at 99 Searsmont Road.
Abutters Paul and Rita Gagnon and Patrick and Lorie Costigan challenged the variance in court, and Knox County Superior Court Justice Jeffrey Hjelm issued a ruling June 20 requiring the Board of Appeals to issue further findings of fact so he could rule on whether the variance had been properly approved.
The case will now likely return to Knox County Superior Court for a ruling on the merits by Hjelm. In his June 20 order, Hjelm said any of the parties could ask the superior court to review the matter within three weeks after the hearing. If no one contacts the court within that time, the Board of Appeals’ decision will stand.
The town issued a building permit for the lot owned by Appleton Ridge Construction in May 2009. After being granted the building permit, Boyington built a house on the lot, then applied for a variance. The variance, granted in November 2011, allowed reapplication for a building permit. Appleton Ridge later amended its variance application because it found that measurements in the original application were inaccurate. In February 2012, the Board of Appeals again approved Appleton Ridge’s request for a variance, and that is the action the plaintiffs appealed to superior court in April.
The abutters challenged the issuance of the May 2009 permit, and a February 2011 ruling by Hjelm vacated the code enforcement officer’s decision to grant the permit, because, as the June 20 ruling stated, “the permitted construction was not a permissible non-conforming use.”
The draft minutes of the Sept. 17 public hearing, which include the expanded findings of fact, summarize in detail the previous history of the case, including the abutters’ objections to the original building permit issued in 2009, and to the variance, the Board of Appeal’s answers to the objections, and its reasoning in granting the variance.
Board of Appeals Chairman Stanley Millay said Hjelm had instructed the board to “issue proper, factual findings that will allow meaningful review.” He said the findings Sept. 17 were based on testimony given at the meeting in February 2012 at which the variance was granted, plus the facts in the case to date.
Millay also said he had been advised by the Maine Municipal Association that the Board of Appeals could not overturn a variance it had granted once the 30-day review period had elapsed.
“It wouldn’t make sense,” he said, if the Board of Appeals could overturn its decisions at any time after they were made.
The draft minutes said attorney Patrick Mellor, who represents the abutters, asked to present new evidence at the hearing, but Millay barred him from doing so. Millay explained that Hjelm ordered the Board of Appeals to present further explanation of the facts and its reasoning in granting the variance, not to reconsider its action in granting the variance.
On Sept. 24, Mellor confirmed “there was some new information that was certainly relevant, in my opinion.” He added he did not agree with Millay’s interpretation of Hjelm’s order but understood it.
Mellor said the Board of Appeals “has the authority to revisit the entire question” of the variance, and to reverse its earlier decision.
Millay said he felt it was time the conflict regarding the property, which has gone on for several years, was put to rest.
“It’s something that’s festering there that needs to be settled,” he said.
Mellor argued the new findings of fact are still “inadequate to support a decision to grant a variance.” He added, once the findings are finalized, he will ask the Superior Court to review the Board of Appeal’s latest findings and overturn the variance.
Courier Publications reporter Sarah Reynolds can be reached at 236-8511 or by email at firstname.lastname@example.org.
Sarah E. Reynolds is a reporter for the Camden Herald.
Sarah E. Reynolds has been a reporter and writer for more than 20 years, winning awards from the Maine Press Association and other professional organizations. She loves to read, hike and play word games.
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