Agenda - Planning Commission - 05/05/2005

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Page 6 --March 25, 2005 interest of the city. Height limits around city hall ensured the inspiring view of William Penn could be cherished and enjoyed by .more than adjacent neighbors to city hall. Under Mariner's proposal, city hail Would become a secondary building and eventually become nestled between giant-sized buildings if variances like the one proposed were granted. The city's interest was a bona fide exercise of city zoning power. Mariner proved nothing more than adherence to the ordinance imposed a burden on Mariner's desire to build a 50-story condominium on the property. see also' Collier Stone Company v; Township of Collier Board of Commissioners, 735 A.2d 768 (1999). see also: Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595 (2001). Ordinance-- Town argues 'or' should be read as 'and' Denies access road to local homeowner Citation: Gensheimer v. Town of Phippsburg, Supreme Judicial Court of Maine. No. Sag-04-357 (2005) MAINE (02/02/05) -- Gensheimer applied to the town of Phippsburg's plan- ning board, for permission to use and maintain an existing roadbed on his property as an alternate means of access. He claimed the subdivision road already in use to access his property was poorly designed and had steep grades, sharp curves, and poor visibility. The board denied his request. The local ordinance stated road and driveway construction was prohibited except to provide access to a permitted use within the district, or where no reasonable alternatiVe route Or location was available, in which case a permit was required from the board. Gensheimer sued, and the court ruled in favor of the town, concluding that an alternative means of access existed for the Gensheimer's property. The court found that the word "or" in the ordinance should be treated as an "and" to effectuate the ordinance's stated purpose of limiting development. Gensheimer appealed, arguing a plain reading of the ordinanceentitled him to a roadway. DECISION: Reversed. Gensheimer was entitled to build a new access road without a permit if his home was a permitted use or with a permit if no reasonable means of access existed. He did not need to meet the requirements of both clauses. As a general rule, the use of a disjunctive in a statute indicated alternatives and required those altei:natives be treated separately. The court determined that the language in a clause following a disjunctive was considered inappli- cable to the subject matter of the preceding clause. : rD 2005 Quintan ?uSlisl'}ing Group. Any reproduction is prohibited. For more information please calf (817).542-0048. 108