Posted by: Patricia Salkin | September 15, 2009

ZBA Had Authority to Grant Variance to Permit Driveway for Landlocked Parcel Regardless of Whether it was a Zoning Matter or a Land Use Matter

Benjamin C. Moore and Alice G. Carter (collectively Moore, unless otherwise noted) jointly owned a parcel of land, designated as Lot 35 on Tax Map 5 in the Town of Mount Desert (“Town”).  Lot 35 included a large area of land behind other lots and was connected to Millbrook Road by a thin strip of land that was twenty feet wide and 361 feet long.  The strip was the only means of access from a roadway to Lot 35 and an eighty foot driveway already existed on the portion of the twenty foot wide strip of land, beginning at Millbrook Road.  Moore, individually, owned a second lot, Lot 35-1, which abutted Lot 35 and was completely landlocked.  The only means to access Lot 35-1 was a right of way located over Lot 35.  In March of 2007, the Town approved an amendment to its Land Use Zoning Ordinances, § 2.7.6, which required driveways to be set back a minimum of five feet on either side from property lines.  On May 1, 2007, Moore applied for permits to build a fourteen foot driveway over both lots, including the strip leading to Millbrook Road.  The Town’s Code Enforcement Officer (“CEO”) denied the application, stating that twenty feet was not wide enough to accommodate the proposed amendments.  Instead of challenging the CEO’s determination, Moore applied to the ZBA for setback variances to construct a driveway, fourteen feet wide and 1104 feet long, including the preexisting driveway.  There was a public hearing held on Moore’s requests, and Alberta Wister, although not appearing, challenged the ZBA’s authority to grant a variance from the driveway setback limit, stating that the ZBA could only grant variances on zoning matters, and that the one at hand was a land use matter.  The ZBA concluded it possessed authority to address Moore’s request and granted Moore a hardship variance.  The ZBA found that a hardship existed since Moore’s lots were only accessible by a narrow strip of land, that Moore could have constructed the driveway but for the Town’s change to the Zoning Ordinance two months prior, and that Moore could not get a reasonable return on the lots without a driveway.  The ZBA also found the amendment created a unique circumstance, that granting the variance would not alter the character of the surrounding area, and that the hardship was not a result of Moore’s actions.  Wister appealed the ZBA’s decision to the Superior Court, again arguing that ZBA lacked the authority to grant the setback variance, and the court agreed.  Moore then appealed to the present Court.

With respect to the jurisdiction of the ZBA to grant the variance was presented,   the Court stated that when a municipality has established a board of appeals and authorizes appeals from CEO’s, such appeals have to first be taken to the board of appeals unless the ordinance explicitly requires that appeals go directly to the Superior Court.  Title 30-A M.R.S. § 2691 (2008) permits municipalities to establish boards of appeal and in general those boards of appeals have jurisdiction over two types of appeals: (1) appeals from the official or board responsible for enforcing zoning ordinances pursuant to 30-A M.R.S. 4353 and (2) appeals with respect to “any other” matter, to the extent that the precise subject matter to be appealed as been specified.  Section 4.A.2 of the Reorganization of the Town of Mount Desert ZBA authorizes the ZBA to “hear variance requests and authorize variances as provided in Title 30-A MRSA § 4353.” Section 4.B also provides that the ZBA “may grant a variance only in accordance with State Law.”  The Court held that pursuant to its ordinance, the ZBA has jurisdiction to hear and grant variances to the extent provided in 30-A M.R.S. § 4353, as long as in strict compliance with § 4353.  The Court stated that the labeling of the ordinance as “zoning” or “land use” did not concern the appeals process, since § 4353 applied to govern the standards for local boards of appeals’ considerations of applications for variance from specific requirements.  It also held that in the present case, the Mount Desert Land Use Zoning Ordinance did not explicitly require that appeals from CEO decisions proceed directly to the Superior Court, and under § 4353, Moore was required to appeal the denial by seeking a variance from the ZBA.

In reviewing the ZBA’s decision, the Court noted that Section 4353 provides that a board can grant a variance only when application of the ordinance would cause undue hardship on the petitioner, which in context means (among other things), “(A) the land in question cannot yield a reasonable return unless a variance is granted.”  The Court stated that reasonable return does not mean “maximum return” and that economic proof of no reasonable return is not required.  The Court said that although Moore’s lots may have held some value without driveway access, the ZBA’s determination that without a driveway Moore would suffer the practical loss of all beneficial use of his land was supported by substantial evidence.  The Court remanded the case to the Superior Court to affirm the decision of the ZBA. 

Wister v. Town of Mount Desert, et al., 2009 WL 1922814 (Me.  7/7/2009). 

The opinion can be accessed at:

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