Posted by: Patricia Salkin | September 30, 2017

ME Supreme Court Vacates Decision Upholding Granted Building Permit

In this case, Leslie Fissmer appealed from a judgment of the Superior Court, which affirmed the holding of the Cape Elizabeth Zoning Board of Appeals that the Cape Elizabeth Code Enforcement Officer had properly issued a building permit to Cunner Lane LLC. Cunner Lane LLC applied for a building permit to construct a “new single family dwelling” on its 2.4–acre parcel. Fissmer, the abutting property owner, contended on appeal that the ZBA erred by determining that a Declaration of Covenants applicable to Cunner Lane LLC property satisfied a requirement of the Cape Elizabeth Zoning Ordinance 19–7–9(A) that “legally binding arrangements exist to provide for the long term maintenance of a private road” before a permit could be issued allowing construction on a parcel located on that road.

The court first determined that the clear purpose of section 19–7–9(A) was to ensure that emergency vehicles would be able to obtain access to a new lot located on a private road. Additionally, because that requirement needed to be met for the CEO to properly issue a building permit for a structure located on that lot, the road needed be maintained to allow emergency access throughout the year. Reading section 19–7–9(A) in that light, the court found that the provision’s reference to a “road” must be to the entire part of the road from its intersection with a public way to at least the location of the proposed structure, rather than just the section of the road abutting a permit applicant’s property.

Here, the CEO did not issue findings of fact or conclusions of law to explain the basis for his approval of Cunner Lane LLC’s building permit application. Notwithstanding the absence of these findings, however, the court found that the issuance of the building permit was erroneous as a matter of law because there was no evidence supporting the CEO’s determination that Cunner Lane LLC had met the requirements of section 19–7–9(A)(2). As such, the court vacated the judgment and remanded the case to the ZBA with instructions to direct the CEO to deny the permit application.

Fissmer v Town of Cape Elizabeth, 2017 WL 412940 (ME 9/19/2017)


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