Posted by: Patricia Salkin | October 16, 2017

ME Supreme Finds Approval of Permit Application was not in Conformity with the Provisions of Zoning Ordinance as Required by Covenant

Leslie Fissmer, individually and as trustee of the Leslie S. Fissmer Revocable Trust, appealed from a judgment of the Superior Court, which affirmed a decision of the Cape Elizabeth Zoning Board of Appeals that found the Cape Elizabeth Code Enforcement Officer had properly issued a building permit to Cunner Lane LLC. Fissmer, an abutting property owner, contended that the ZBA erred by determining that a Declaration of Covenants applicable to Cunner Lane LLC’s property satisfied a requirement of the Cape Elizabeth Zoning Ordinance 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.

At the outset, the court noted 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. Furthermore, because that requirement must be met for the CEO to properly issue a building permit for a structure located on that lot, the road must be maintained to allow emergency access throughout the year. With that legislative intent in mind, the court determined that the provision’s reference to a “road” alluded 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 merely the section of the road abutting a permit applicant’s property.

Moreover, notwithstanding the absence of findings by the CEO, the issuance of the building permit was erroneous as a matter of law because there was no evidence that could support the CEO’s determination that Cunner Lane LLC had met the requirements of section 19–7–9(A)(2). Since there was no competent evidence in the record to support the determination that Cunner Lane LLC’s application satisfied section 19–7–9(A)(2), the court vacated the Superior Court’s judgment and remanded the case to the ZBA with instructions to issue a decision determining that the CEO’s approval of Cunner Lane LLC’s permit application was not “in conformity with the provisions” of the Cape Elizabeth Zoning Ordinance.

Fissmer v. Town of Cape Elizabeth, 170 A.3d 797 (ME 9/19/2017)

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