Glover v. Town of Sebec

.., .

STATE OF MAINE SUPERIOR COURT PISCATAQUIS, SS. ,·-· "\ CIVIL ACTION / DOCKET NO AP-12-03

GILMAN GLOVER and PEGGY GLOVER,

Plaintiff, v .. ORDER TOWN OF SEBEC,

Defendant.

In this SOB Appeal of Government Action, the plaintiffs seek review of the Sebec

Board of Zoning Appeals' denial of their appeal of a decision of the Sebec Planning

Board. Plaintiffs applied for a shoreland building permit for the construction of a camp

on land they owned on Sebec Lake. The Planning Board rejected the application and the

plaintif~s filed an Application of Appeal with incorporated request for variance. They

requested the variance because their lot is small and the mandated setbacks created a

buildable area that was too small, in their estimation, to contain their camp. The Board

of Zoning Appeals denied the appeal and the request for a variance, including in their

findings only the bare assertion that it "did not want to set a precedent by granting the

request."

In order be granted a variance, the applicant must prove undue hardship, having

four elements:

A. The land in question cannot yield a reasonable return;

B. The need for a variance is not due to unique circumstances;

C. Granting a variance would not alter the essential character of the locality; and )

D. The hardship is not a result of action taken by then landowner or prior owner.

The Board of Zoning Appeals did not address whether the plaintiffs prove any of these

elements that were fundamental to their application.

By statute, a zoning board is required to provide not only a statement of its

findings of fact and conclusions of law, but also the "reasons or basis for the findings

and conclusions." 30-A M.R.S. § 2691(3)(E). Adequate findings of fact are crucial to the

Court's review of a zoning board's action because meaningful review is not possible

without findings of fact sufficient to apprise the Court of the decision's basis. Chapel

Road Associates, LLC v. Town ofWells, 2001 ME 178 <Jr 9, 787 A.2d 137, 140. Here, the

Zoning Board made no findings relevant to the issue that was to be decided. Despite

this, it could be argued that the plaintiffs have the burden of proof, the Court should

examine the record to see if there is support for the findings, and it should find that in

fact the board must have implicitly made the requisite findings in its denial of the

appeal and variance. Although this analysis may have been employed in the past, this

Court follows the approach, based on sound analysis, set forth in Rousselle v. Poirier,

2006 WL 3035292 (Me. Super. Sept. 29, 2006), in which more recent, well-reasoned

precedent indicates that remand to the government agency for appropriate findings is

the better approach. This matter is remanded to the Sebec Board of Zoning Appeals for

further action consistent with this Order. 1

Dated: June 13, 2013 dti/_ WILLIAM ANDERSON JUSTICE, SUPERIOR COURT

1 Part of the problem is the scant record that has been presented, due, in part, to the absence of a recorded hearing below and, perhaps, due to confusion concerning the extent of the "public ) hearing" to which the plaintiffs are entitled. The Town should consider offering the applicants a new, recorded hearing at which the issues are properly and clearly aired.