The Ashtons applied for and received a building permit in 2008 to expand their conforming house to create a “rough second floor shell with stairs.” Neighbors appealed to the zoning board claiming that the permit application did not meet the applicable Code provisions. Following a hearing, the Board voted unanimously to deny the neighbor’s appeal, upholding the issuance of the permit. The court said that the Board correctly determined that the zoning code did not contain a land-area-per-dwelling unit standard, as this is something different from minimum lot size which is contained in the code. The Board concluded that the Ashton’s proposed expansion involved raising the roof configuration, as allowed by the Code, and the Board agreed with the City’s calculation that the expansion would be only 41% of the square footage of the first floor footprint, well within the 80% maximum in the Code. The neighbors appealed and on remand the Board found that the permit did not meet the requirements of the Code because the additional floor area was not created by the use of dormers and turrets and because the additional space exceeded the minimum height required for dormers and turrets.
At issue is whether the applicable code section to be applied is for structures “conforming” as to land area per dwelling unit, or the code provision for non-conforming structures. The Maine Supreme Court agreed with the Ashton’s that the Code does not contain a land-area-per-dwelling-unit requirement for single-family dwellings in the zoning district, and that the absence of such “cannot be explained by the assumption that the minimum lot size was intended as a substitute. Further, the Court explained that “even if the omission was inadvertent, land area per dwelling unit and minimum lot sizes are treated throughout the code as two independent requirements, with separate meanings.” Since the words have different definitions, the Court said the provisions could not be equated.
Neighbors then argued that even if the Board had correctly applied the Code to the Ashton’s application, nevertheless the board erred in determining that the application met these requirements since they proposed to raise the roof to allow for a ceiling height of 8 feet, but that the minimum required to create an additional story of habitable space is 7 feet, six inches. The Court said that the neighbors did not meet their burden of proof as they were unable to point to a Code section clarifying the height increase allowed.
Aydelott v City of Portland, 2010 WL 1034400 (ME. 3/23/2010).
The opinion can be accessed at: http://www.courts.state.me.us/court_info/opinions/2010%20documents/10me25ay.pdf
