Agenda - Planning Commission - 02/01/2000

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Page 8 --January 10, 2000 Z.B. Douchette inspected Secor's property and found that the third-floor attic was illegally converted into a third dwelling unit. After a series of communica- tions with Douchette, Secor sent a statement to her signed by the third-floor occupants stating they were boarders in Secor's home, not tenants in an inde- pendent dwelling unit. The occupants had responded to an advertisement list- ing the third floor as a partially furnished apartment. In their statement, the individuals reported that they had full access to the entire first floor unit for cooking and living facilities. Given this new information, Douchette ceased pursuit of any claim of violation against. Secor, and informed Richert of her decision. ~ Richert fried an appeal with the zoning .board of appeals. After a hearing, the board voted unanimously to deny Richert's appeal. In addition to the state- ment, the board found Secor spent a portion of each summer season in his South Portland home and occasionally traveled there for weekend visits through- out the remainder of the year. However, Secor's primary residence was in Connecticut, where the city sent his tax bills and other communications. Richert sued, and the trial court affn-med the board's decision. Richert appealed. DECISION: Reversed, and returned to the board of zoning appeals. Secor was not a resident occupant' of his SoUth Portland home.' The South portland zoning ordinance stated that the letting of rooms or taking of boarders could be conducted by resident occupants only. By the board's reasoning, any individual having a possessory interest in residential property who made actual use of the property for any period of time during a given year was the resident occupant of the property throughout the entire year for the purpose of operating a home occupation on the property. This was against the plain meaning of "resident occupant." Inherent in being the occupant of a residence was that the individual actu- ally live in the residence.. Even the definition on which the board relied stated the occupant must be in actual use, Possess[on, or control'of the property. The city did not need to track the number of days each individual holding a possessory interest in property within the city actually spent on his or her prop- erty. However, it was evident that Secor annually spent, at most, six weeks in the summer and an occasional weekend in South Portland. While the operator of a home occupation could have temporary absences from the property, such as a vacation, them was no dispute that Secor's primary residence was in Con- necticut. Citation: Richert v. City of South Portland, Supreme Judicial Court of Maine, No. Cum-99-273 (1999). see also: Kasper v. Town of Brookhavert, 142 A.D.2d 213 (J988). see also: Redevelopment Authority of Allegheny County v. Stepanik, 360 A.2d 300 (1976).