ZONING VariancesPosted by Paul Macri - 28/01/10 at 09:01 am
Jurisdiction of Zoning Board of Appeals
Wister v. Town of Mount Desert, 2009 ME 66, 974 A.2d 903, Alexander, J.
The Town of Mount Desert’s Zoning Board of Appeals granted the petitioners a variance from the Town’s driveway setback ordinance. The Superior Court vacated that decision on the ground that, because the ordinance applied to all property in the Town, it was not a zoning ordinance, and therefore the Zoning Board of Appeals did not have jurisdiction to review the variance decision.
The petitioners appealed. They first argued that the abutting party did not have standing, but the Law Court rejected that argument on the ground that, by failing to introduce evidence of lack of standing before the Board, the petitioners had failed to challenge the prima facie finding that an abutter has standing if she asserts that she does. The petitioners have the burden of going forward to prove a lack of standing.
On the major issue presented, the Law Court, in a very complex and closely-reasoned opinion, concluded that the Superior Court erred in finding that the Zoning Board of Appeals lacked jurisdiction over the variance issue arising out of a land use ordinance. If a ZBA lacked jurisdiction, no town board could make fact-findings on such variances, and it would not be appropriate for the Superior Court to make them. The Court also concluded that this would be a departure from longstanding practice and therefore found that the Superior Court erred in finding that the Zoning Board of Appeals did not have jurisdiction to address the variance.
Finally, the Court concluded that there was substantial evidence supporting the ZBA’s findings that the petitioners would suffer the practical loss of all beneficial use of the lots if they were not permitted to build a driveway.