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June 26, 2000 Letter from Jim Haddow to Wendy Walker
regarding Michael Hanson's Application on Road Slope
Note: References to Michael Harmon should actually be to Michael Hanson


PETRUCCELLI & MARTIN, LLP
ATTORNEYS AT LAW
50 MONUMENT SQUARE
POST OFFICE BOX 9733
PORTLAND, MAINE 04104-5033
GERALD F. PETRUCCELLI
JOEL C. MARTIN *
MICHAEL K. MARTIN
JAMES B. HADDOW
LINDA C RUSSELL
THOMAS C. BRADLEY
BRUCE A. McGLAUFLIN

* on leave as ABA Rule of Law Liaison, Republic of Moldova
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TELECOPIER
(207) 775-2360

June 26, 2000

Wendy Walker, Chair
Limington Planning Board
P. O. Box 240
Limington, Maine 04049

        Re:   Application of Michael Harmon

Dear Wendy:

        This letter will respond to two questions you posed concerning Michael Harmon's application to construct a building and an access road on property located in Limington's Resource Conservation District. As I understand it, Mr. Harmon initially applied to the Planning, Board for a permit to construct a dwelling and an associated access road, but because the access road he proposed was narrower than the minimum width prescribed by the Ordinance, the Planning Board sent him to the Zoning Board of Appeals for a variance. I gather that, sometime in December of 1999, the Appeals Board granted a variance to Mr. Harmon that purports to relax not only the minimum road width requirements, but also the special limitations on slope that apply to new road construction in the Resource Conservation District.

        Now Mr. Harmon has returned to the Planning Board, and while the Planning Board has granted him the permit necessary to construct his road, it has added to the permit a condition requiring him to comply with the slope requirements in the Ordinance, effectively negating the portion of the variance that relaxed those requirements.

        Your questions to me were: (1) "Does the Appeals Board have the authority to grant a variance relaxing the slope limitations that apply to new road construction in the Resource Protection District?", and (2) "If not, does the Planning, Board have authority to re-impose those limitations as part of the permitting process if such a variance has been granted?"


PETRUCCELLI & MARTIN, LLP

Wendy Walker, Chair
June 26, 2000
Page 2

        The answers to these questions lie primarily in the text of the Ordinance. First, Section 7.10.C of the Ordinance requires that:

Private roads, including access roads, constructed after the date of this ordinance to provide access to permitted uses in the Resource Conservation District shall meet or exceed the Town's road construction standards for preparation, sub-base, and base (as specified the Town's subdivision review standards), and may not exceed grades of 8%, except for short segments of 200 feet or less, which may not exceed grades of 10%.

As I understand it, the Appeals Board's variance would permit Mr. Harmon to exceed the slope limitations set forth in this section.

        In both the definition of the term "variance" and the substantive rules for considering variance requests, the Ordinance says unequivocally that the Appeals Board may grant variance requests only from dimensional requirements. The Ordinance defines "Dimensional Requirements" as Numerical standards relating to spatial relationships, including but not limited to setback, lot area, shore frontage, and height." The Board is specifically prohibited from granting a variance in order to permit a use that would otherwise be prohibited. Ordinance 10.4.B.

        Your first question can therefore be expressed as whether the slope limitations imposed by section 7.10.C are more like dimensional requirements (in which case the Appeals Board is authorized to relax them by variance) or more like limits on use (in which case the Appeals Board is without authority to relax them). While a case can be made either way, my opinion (based on the usage of the term "Dimensional Requirements" in section 6.3 of the Ordinance and on the nature and purposes of the Resource Conservation District) is that the slope restrictions in section 7.10.C are more like limits on use, and that the Appeals Board therefore exceeded it authority when it granted a variance from those restrictions.

        In any event, however (and in answer to your second question), any error by the Appeals Board is now moot. Once the Appeals Board acts on a variance request, its decision is binding on the Planning Board and the Code Enforcement Officer until and unless the decision is reversed by the Superior Court or the Law Court acting on a timely appeal. My understanding is that no one has appealed the December 1999 Appeals Board


PETRUCCELLI & MARTIN, LLP

Wendy Walker, Chair
June 26, 2000
Page 3

decision on Mr. Harmon's variance application. If that is correct, the time for appeal has long passed, the decision stands, and the Planning Board and Code Enforcement Officer are bound by it.

        Please let me know if any of this is unclear or if you require further information about these issues. I would also be pleased to offer suggestions about how to handle this matter procedurally if you decide that the Planning Board should reconsider any part of its action on Mr. Harmon's application.

Sincerely,
James B. Haddow
James B. Haddow

JBH/j

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View Michael Cooper's Letter on the same subject.

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