Posted by: Patricia Salkin | July 1, 2016

ME Supreme Judicial Court Finds Planning Board Was Required to Consider How Original Structure’s Footprint Could Be Relocated Before Considering Proposed Addition

Douglas Johnson, as trustee of the Osprey Family Trust appealed from a judgment of the Superior Court affirming a decision of the Town of Owls Head Board of Appeals (BOA). The BOA’s decision overruled the decision of the Town’s Planning Board to grant the Trust a permit to remove an existing structure in the shoreland zone and replace it with a new structure that included an addition. The Superior Court found that the Planning Board was required to initially consider the new structure’s compliance with the Town’s Shoreland Zoning Ordinance (SZO) absent the proposed addition, and concluded that the Planning Board applied the wrong section of the SZO in considering the Trust’s permit application.

The Planning Board determined that relocating the proposed structure fifteen feet farther back from the ocean to a site that did not intrude on the wetland conformed to setback requirements not to the greatest theoretical extent, but rather “to the greatest practical extent.” However, the court found that the real question presented was whether the Planning Board was entitled to make its determination based on the project as proposed by Johnson, which included an addition to the original structure’s footprint, or whether, as the Superior Court concluded, the Planning Board was required to consider how the original structure’s footprint could be relocated before considering the proposed addition.

Here, Johnson was not seeking to relocate the dilapidated deckhouse, but rather to demolish it and replace it with a new structure, plus an addition. When a nonconforming structure is replaced, as opposed to being relocated, section 12(C)(3) of the SZO was applicable. This section set forth “if the total amount of floor area and volume of the original structure can be relocated or reconstructed beyond the required setback area, no portion of the reconstructed or relocated shall be replaced or constructed at less than the setback requirement for a new structure.” Accordingly, the court vacated the Superior Court’s judgment and remand the matter with instructions to remand Johnson’s permit application to the Owls Head Planning Board for de novo consideration and application of the applicable section of the Shoreland Zoning Ordinance.

Osprey Family Trust v Town of Owls Head, 2016 WL 31656006 (ME 6/7/2016)

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