Agenda - Planning Commission - 05/07/2015

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Zoning Bulletin March 25, 2015 1 Volume 9 1 Issue 6 MAINE (02/10/15)—This case addressed the issue of whether a property owner's recombination of two nonconforming lots resurrected the grandfa- thered status that the lots had when they had been merged under common ownership by ordinance. The Background/Facts: In 1956, Joseph Spear ("Spear") acquired lot 114, a beachfront lot in the Town of Phippsburg (the "Town"). In 1987, Spear acquired the adjacent beachfront lot 113. Both lots contained less than 20,000 square feet. In 1989, the Town's Shoreland Zoning Ordinance ("the SZO") required that a beachfront lot consist of at least 40,000 square feet in order to qualify for development. The SZO contained a grandfather clause allowing limited development of a lot that failed to meet the mini- mum lot -size requirements if the lot: (1) was in existence as of the effective date of the SZO; and (2) was not contiguous with another lot held in com- mon ownership. The SZO also contained a merger clause requiring the combination of lots that were adjacent and held in common ownership at the time of adoption or amendment of the ordinance if all or part of the lots failed to meet minimum lot -size requirements. As a result of that merger clause, lots 113 and 114 (which were contiguous with each other and were commonly owned by Spear) were merged into a single, nonconforming, grandfathered lot in 1989. Although the merger clause prohibited separation of a merged lot that did not meet minimum lot -size requirements, Spear separated the lots in 1991. Spear conveyed lot 113 to Carol Reece ("Reece") and lot 114 to Mary Kate Izzo ("Izzo"). In 2013, Reece sought to develop lot 113. An adjacent property owner, Jonathan R. Day ("Day"), sued Reece and the Town. Day asked the court to declare that lot 113 was not a grandfathered nonconforming lot within the meaning of the SZO because the lot had lost its grandfathered status by its 1991 separation. While Day's legal action was pending, Reece acquired lot 114 from Izzo. Reece then argued to the court that any grandfather status lost in the 1991 separation had been restored when the lots returned to common ownership in 2013. The superior court agreed with Reece, concluding that Reece had restored the lots' grandfathered status by recombining them. Day appealed. DECISION: Judgment of superior court vacated. The Supreme Judicial Court of Maine held that lots 113 and 114 permanently lost their grandfathered status when they were unlawfully divided in 1991; the grandfather status was not restored by Reece's recombination of the lots. In so holding, the court interpreted the SZO. The court found the SZO was ambiguous. It found that the SZO's allowance of preexisting nonconfor- mities to "continue" subject to requirements could mean two different things. It could mean, as advocated by Day, that the grandfathered status of the nonconforming lot created by merger in 1989 could be understood to © 2015 Thomson Reuters 3