ME Supreme Judicial Court Holds Variance Was Not Subject to Two-Year Expiration Period

Kay Loring owned a small parcel of land located in a residential area of the City of South Portland. Because of its size, the lot was nonconforming until 1973, when the City issued a variance that brought it into dimensional conformity. Based on the 1973 variance, in 2013 the City’s Building Inspector issued a building permit to Loring, authorizing her to construct a single-family house on her lot. Mary E. Campbell and Maureen and Edward Conroy (collectively, Campbell), who own nearby lots, appealed the issuance of the permit to the South Portland Board of Appeals, which affirmed the Building Inspector’s action. The Superior Court affirmed the Board’s decision. On appeal, Campbell argued that the evidence presented to the Board did not support its findings about the size of the lot and the existence of a variance; that the 1973 variance is no longer effective; and that the building permit is not lawful because the proposed development would exceed the density restrictions for that zoning district.

Because neither Loring nor her predecessors in title actually built on the lot within two years of the issuance of the variance in 1973, Campbell argued that the variance expired and was no longer in effect, Loring’s lot reverted to one that is treated as having an area of 4,703 square feet, and the Building Inspector therefore was without authority to issue the permit. However, the variance was only as to the size of the lot. Since section 27–302 did not apply to a dimensional variance, the two-year expiration period created in that provision was inapplicable. Campbell next argued that the building permit was improperly issued because the proposed permitted development on Loring’s lot will violate the density limitations prescribed in section 27–534 of the City’s ordinance. However, because Campbell did not properly present this challenge to the Board, it was not preserved for judicial review. Accordingly, the judgement of the Superior Court was affirmed.

Campbell v City of South Portland, 2015 WL 5255482 (ME 9/10/2015)