Posted by: Patricia Salkin | August 26, 2012

ME Supreme Court Remands Shoreline Access Easement For Finding of Whether a Reasonable Access Alternative Exists

The D’Alessandros own a shoreline lot in the Town of Harpswell and have ownership of a strip of land adjacent to their lot which is burdened by an easement that provides shore access from the other common roads and ways in the subdivision. The shore access point on the D’Alessandros’ land is one of two in the subdivision. In 2010, landowners filed a permit application to build an access platform over the D’Alessandros’s property to gain access to the shore. The Town issued the permit and the D’Alessandros appealed. They also submitted an application to build a stairway at the other access location. The permit was issued with conditions and they installed the stairway before the Board heard their appeal of the permit application for the other stairway. The Board denied the D’Alessandros appeal because “the location of the proposed stairs is reasonable under the ordinance.” The D’Alessandros appealed and the Superior Court affirmed the Board.

The Court noted it would “vacate a municipal board’s decision on appeal if it includes an error of law, and abuse of discretion, or a finding not supported by the evidence.” The Court noted that Harpswell Shoreland Zoning Ordinance provided that “stairways or similar structures may be allowed with a permit … to provide access in areas of steep slopes or unstable soils provided that the structure meets certain dimensional and placement requirements and the applicant demonstrates that no reasonable access alternative exists on the property.” The Court determined that for the purpose of this case, “the property at issue is a single easement that includes the common roads and ways along with the two shore access points, as shown on the 1962 recorded plan.”

The Court held, however, that because the Board failed to make a finding as to whether there was no reasonable access alternative, it remanded and vacated the judgment.

D’Alessandro v Town of Harpswell, 2012 WL 2752065 (Me. 7/10/2012)

The opinion can be accessed at: http://www.courts.state.me.us/opinions_orders/opinions/2012_documents/12me89da.pdf

 


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