Agenda - Planning Commission - 03/06/2014

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February 10, 2014 I Volume 8 I Issue 3 Zoning Bulletin MAINE (12/19/13)—This case addressed the issue of whether the lease of a portion of a lot creates a new lot subject to minimum space and setback requirements. The Background/Facts: Shellie and Robert Symonds (the "Symond- ses") owned property in the Town of Casco, Maine (the "Town"). In Feb- ruary 2010, the Symondses executed a lease agreement with AT&T Mobil- ity LLC ("AT&T"). The lease granted AT&T the right to use a 100-square- foot portion of the Symondses' property in the Town to build a wireless communications tower. Shortly thereafter, AT&T applied to the Town's Planning Board, seeking approval of a wireless communications tower construction project. Finding standards in the Town's Zoning Ordinance had been satisfied, the Planning Board approved AT&T's application. Subsequently, Town residents William A. Horton and Brian and Theresa Cosgrove (collectively, "Horton") appealed the Planning Board's decision to the Town's Zoning Board of Appeals ("ZBA"). Among other things, Horton contended that the lease between the Symondses and AT&T created a new 100-square-foot lot, which did not meet the Town Zoning Ordinance's minimum lot size requirement of 80,000 square feet or the Ordinance's setback requirements. AT&T countered that the lease only transferred a legal interest but did not create a new and separate lot. TheZBA agreed with AT&T. Horton then appealed to the Superior Court. The court also agreed with AT&T. It concluded that the lease agreement did not create a new and sep- arate lot. Horton again appealed. DECISION: Judgment of superior court affirmed. The Supreme Judicial Court of Maine held that the lease agreement be- tween AT&T and the Symondses for a 100-square-foot portion of the Symondses' property did not create a new and separate lot. The court fur- ther concluded that the Symondses' property, as a whole, easily satisfied the Zoning Ordinance's lot size requirements. In so holding, the court recognized that a lease may be used to create a new lot. However, the court said it is not the type of contract that determines whether a new lot is created (i.e., here, the lease), rather whether a new lot is actually created depends on the nature of the transferred legal interests. The creation of a new lot requires the "splitting off' of a legal interest of "sufficient dignity," said the court. Generally, explained the court, when the interest transferred is more temporary — such as with campsites —the transfer does not create a new lot; and when the interest transferred in more permanent —such as the sale of timeshares in spaces to park recreational vehicles —the transfer does create a new lot. Here, the court found that the transfer of a portion of the Symondses' lot to AT&T was insufficient to create a new lot because the interest, which the court said resembled a license, "merely" gave AT&T the right to use 8 © 2014 Thomson Reuters