Agenda - Planning Commission - 05/06/2010

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r March 10, 2010 (Volume 4 ~ No. 5 Zoning Bulletin two apartments constiruted a prohibited "boarding house" use or a per- j miffed "two unit residential use."' T'he Background/Facts: Dimiui and Anthony Seretakis owned a large house in the town. The house sat aaoss the sweet from Bowdoin Col- lege. It was located in the Town Residential 2 ("TR2") zone and in the ! Village Review Overlay zone. ! Beginning in March 2007, the Seretakis leased "Apartment A" in ~ the house to six students. They also leased "Apartment B" in the house ' to five srudents. Under the leases, "the tenants in each apartment were jointly responsible for a single monthly rent payment and for most utili- ties for that apartment." Michael Adams and three other property owners in the town (colle~- tively, the "Neighbors") contacted the town to express their concern that the Seretakis' house was being used as a boazding house. A boarding ' house use was prohibited in the TR2 zone. In May 2007, the towns' Code Enforcement Officer ("CEO") issued his opinion that, in accordance with the town's zoning ordinance (the "Ordinance"), the use of the house qualified as "an allowable `two unit residential use."' It was not a prohibited boarding house. The Neighbors appealed to the town's Zoning,Boazd of Appeals ("ZBA"). The ZBA affirmed the CEO's interpretation of the Ordinance. Later, ~ -~ the ZBA denied the Neighbors' request for reconsideration. In August 2007, the Neighbors filed a complaint in Superior Court. They sought to overturn the decisions of the CEO and the ZBA. The Superior Court affirmed, finding the house constiruted "two dwelling units rather than a boarding house." • The Neighbors appealed. The Court's Decision: Judgment of the Superior Court affirmed. The Supreme Judicial Court of Maine held that the students' living ar rangement in the Seretakis' house qualified as a permitted residential use under the Ordinance. In reaching that conclusion, the court construed definitions in the Ordinance. "Dwelling Unit" was defined in the Ordinance as: "A group of rooms providing living quarters containing independent cooking, sleeping, and bathroom facilities for one household." "Household" was defined as: "One person, or a group of two or more persons living together in the same dwelling unit in a single house- keeping entity." "Boarding House" was defined as: "A building other than a hotel containing a shared kitchen and/or dining room, with sleeping rooms accommodating no more than two persons per room (excepting minor (. _ ~ children) which are offered for rent, with or without meals. Includes a college fraternity or soroiity." '. _ 10 ©2010 Thomson Reuters 36