Agenda - Planning Commission - 09/01/2016

Home

Zoning Bulletin August 10, 2016 1 Volume 10 1 Issue 15 Citation: Osprey Fancily Trust v. Town of Owls Head, 2016 ME 89, 2016 WL 3165600(Me. 2016) MAINE(06/07/16)—This case addressed the issue of whether a town k planning board erred in approving a plan to relocate a nonconforming structure. More specifically, it addressed the consequences of a plan- ning board applying the wrong section of an ordinance in reaching a zoning decision. The Background/Facts:In March 2013,Douglas Johnson,as trustee of Osprey Family Trust ("Johnson") filed an application for a building permit with regard to shorefront property in the Town of Owls Head (the "Town"). Johnson sought to "replace a dilapidated minesweeper deckhouse that had been placed on the property in the 1950s and used as a cottage with a new, larger single-family residence." The existing structure was located partly within the Town's Shoreland Zoning Ordinance's ("SZO") 75-foot setback zone from the Atlantic Ocean. In addition, the rear of Johnson's property contained a wetland of special significance that would necessitate a Maine Department of Environmen- tal Protection permit before being used as a building site. Johnson proposed to replace the existing structure with one that would still be located partly within the 75-foot setback zone,but farther back from the ocean than the old structure, along with an addition lying completely outside of the 75-foot setback zone and not encroaching on the wetland, The Planning Board approved Johnson's plan. In doing so, it looked at§ 12(C)(2) of the SZO,which governed relocation of nonconforming structures. Section 12(C)(2)provided that"[a] nonconforming structure may be relocated within the boundaries of the parcel on which the structure is located provided that the site of relocation conforms to all setback requirements to the greatest practical extent as determined by the Planning Board." Thereafter, Town residents Jill Delaney and Claire Perry (the "Op- ponents") appealed the Planning Board's decision to the Town's Board ' of Appeals("BOA").The Opponents contended that the Planning Board erred in finding that Johnson's project conformed with setback require- ments"to the greatest practical extent." The BOA agreed with the Opponents. r Johnson then appealed to the Superior Court. The court affirmed the BOA's decision. In doing so, it found that it was unreasonable for the Planning Board to take into consideration the proposed addition before determining whether the relocation of the existing structure "conforms j to all setback requirement[s] to the greatest practical extent."The court said that"the proper analysis would have been to first consider how the existing structure could be relocated on the property to conform . . . G and to then consider whether an addition outside of the 75 foot setback area could be constructed . ." The court found that the existing c ©2016 Thomson Reuters 3 j'