Judge orders Board of Appeals to deny variance

By Sarah E. Reynolds | May 23, 2014
Photo by: Sarah E. Reynolds This house on Searsmont Road in Appleton may have to be moved or demolished as the result of a judge's ruling in a land-use dispute.

Appleton — A judge has ruled that the Board of Appeals erred in 2012, when it granted a zoning variance to Appleton Ridge Construction LLC for a house on Searsmont Road.

Knox County Superior Court Justice Jeffrey Hjelm said Monday, May 19, that the variance should not have been granted, and ordered the Board of Appeals to deny it. The action was the latest in a conflict that began in 2009 between Paul and Rita Gagnon and Lorie and Patrick Costigan, abutters to the Searsmont Road property, and the town. Appleton Ridge Construction and its owner, Jacob Boyington, are not named in the suit.

The variance, approved in 2012, was for a house built in 2009 by 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 Hjelm issued a ruling in June 2013 requiring the Board of Appeals to issue further findings of fact so he could rule on whether the variance had been properly approved.

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, which action the plaintiffs appealed to superior court in April 2013.

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 2013 ruling stated, “the permitted construction was not a permissible non-conforming use.”

The draft minutes of a public hearing in September 2013, 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 Appeals' answers to the objections, and its reasoning in granting the variance.

In September 2013, Board of Appeals Chairman Stanley Millay 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.

Also last September, 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.

In his May 19 ruling, Hjelm said the Board of Appeals' finding that Appleton Ridge was entitled to a variance because of a hardship not created by it or by a previous titleholder was not supported by substantial evidence. The central point of his decision was based on the fact that, when Boyington first applied for a building permit in 2009, he provided incorrect measurements that affected the building's setback from the center of the road, and from the right of way. Boyington was also aware of a disclaimer on the building permit application that placed the burden of making sure setback measurements were correct on the permit applicant.

The ruling states, “Boyington, [Appleton Ridge's] grantee, obtained a building permit based on information that he knew or should have known was materially wrong; then, based on that permit that he knew or should have known was based on incorrect information, he removed the structure that was grandfathered and that would have allowed him to maintain use of the land for residential purposes … and he thereby became subject to land use regulations of which he was aware when he acquired the property in the first place.”

Boyington did not return calls seeking comment on the effect the ruling will have on his property. According to previously published reports, the house may have to removed or demolished.

Don Burke, chairman of the town's Board of Selectmen, refused comment because he had not yet seen the ruling or talked to the town's attorney.

Rita Gagnon also declined comment, saying she had not received any information about the ruling yet. Plaintiffs' attorney Patrick Mellor said of the ruling, “It was a complicated case that the court decided in a very thoughtful decision.”

In an email Friday, May 23, town attorney Jeremy Marden said he had not yet had time to review the ruling. He said he hoped to make a recommendation to the town within about a week. The town could appeal the ruling to the Maine Supreme Judicial Court.

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