The Gliddens, owners a substandard lot on Treasure Island, were granted four variances from setback requirements by the Shapleigh zoning board of appeals to enable them to built a structure on the undeveloped lot. A property owner may seek a variance where the strict application of the ordinance would cause “undue hardship” which is defined in Maine statute to mean: “[1] That the land in question cannot yield a reasonable return unless a variance is granted; [2] That the need for a variance is due to the unique circumstances of the property and not the general conditions in the neighborhood; [3] That the granting of a variance will not alter the essential character of the locality; and [4] that the hardship is not the result of action taken by the applicant or a prior owner.” While the board concluded the test was satisfied, they were divided on the issue of whether the need for the variance was due to the unique circumstances of the property and not the overall conditions of the neighborhood. Two board members found no unique circumstances, one member believed the small size of the lot demonstrated unique circumstances, another member said the lot was unique because it did not have a house on it and the surrounding lots had houses. The fifth board member found the lot unique because of its size and its lack of a building. Abutting property owners appealed the zoning board’s decision, and the Superior Court reversed the zoning board finding that the Gliddens had failed to establish that they have a “unique circumstance if a too small lot rather than owning one of many substandard lots which are of a size consistent with the general conditions of the neighborhood.”
On appeal to the Supreme Court, the Gliddens asserted that there was sufficient evidence for the Board to conclude that the need for the variance was due to the unique circumstances of their lot. They argued that their lot was unique because a majority of lots on the island, including neighboring lots, already contained single family residences, and theirs did not, and further, deed restrictions prohibited the lot from being used for anything other than a single family residence.
The Supreme Court stated that the unique circumstance requirement is met when “the hardship suffered by the lot owner is not a hardship that is not a hardship that is common with other lots in the neighborhood.” The Court noted that they have previously held that the fact that a lot is substandard is not a unique circumstance where other undeveloped lots in the neighborhood were also substandard. See, Sibley v. Town of Wells, 462 A.2d 276 (1983). The Court noted that had the zoning board found the lot to present unique circumstances on facts that did not include other substandard lots, they would have upheld the board’s decision, but a majority of the board did not make that finding. Further, the fact that the lot was unbuilt, in and of itself, cannot constitute a unique circumstance, since the unbuilt status of the property is immaterial.
Camp v. Town of Shapleigh, 2008 WL 713656 (Me. 3/18/2008).
The opinion can also be accessed at: http://www.courts.state.me.us/opinions/2008%20documents/08me53ca.pdf
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