Lippoth v. Zoning Bd. of Appeals, City of South Portland

• Decision Date: 13 November 1973
• Citation: 311 A.2d 552
• Parties: Donald LIPPOTH v. ZONING BOARD OF APPEALS, CITY OF SOUTH PORTLAND and Elzada M. Frost.
• Court: Maine Supreme Court

Page 552

311 A.2d 552

Donald LIPPOTH v. ZONING BOARD OF APPEALS, CITY OF SOUTH PORTLAND and Elzada M. Frost.

Supreme Judicial Court of Maine.

Nov. 13, 1973.

Reef & Mooers, by Daniel W. Mooers, Portland, for plaintiff.

Drummond, Wescott & Woodsum, by David Plimpton, Hugh G. E. MacMahon, Henry Steinfeld, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICH, and ARCHIBALD, JJ.

ARCHIBALD, Justice.

Plaintiff is a resident owner of real estate in South Portland. Desiring to construct a garage on this property he applied to the South Portland Zoning Board of Appeals requesting a variance from the 'set back' provisions of the Zoning Ordinance assigning the following reasons:

'To get cars off st. To allow emergency vehicles to pass and to alleviate parking problems for the two houses beyond my property. A variance is requested for set back requirements.'

After due notice a hearing was held at which appellant Elzada M. Frost, an abutting land owner, appeared in opposition.

The Zoning Board of Appeals denied the request, using this language:

'Permit denied. The board, after due deliberation and after viewing the scene itself, and in conformity with the guide lines established by the Zoning Ordinance, hereby denies the application for the appeal on the grounds that the said application would create in the opinion of the board, a traffic hazard and impede emergency vehicles in passage through the said street.'

Following the requirements of Rule 80B, M.R.C.P. the Plaintiff appealed to the Superior Court. A motion was then filed by Elzada M. Frost for leave to intervene as a party defendant, which motion was allowed without objection. ¹

A Justice of the Superior Court, after full hearing and after finding that the 'South Portland Zoning Board of Appeals acted unreasonably and without factual or legal justification in denying the Plaintiff's application for a variance', sustained the Plaintiff's appeal and ordered the variance granted. The Defendant-Intervenor seasonably appealed. We sustain the appeal.

The city ordinance required building set backs so that a minimum front yard dimension of 20 be maintained, and that not more than 25% of the lot be occupied by the principal buildings thereon. The ordinance authorized the Zoning Board of Appeals to permit 'variations from the regulations so as to grant reasonable use of property which necessary to avoid undue hardship and without substantially departing from the intent of plans and regulations of this ordinance.' Where '(v)ehicular access, circulation and parking' is involved in a requested variance, the Zoning Board of Appeals is directed to consider, as a criterion, whether 'the proposed use (will) generate unusual traffic conditions affecting the general neighborhood.'

The Zoning Board had the benefit of the Plaintiff's plan for the addition to his house. This house, acquired in 1966, is situated on Lot #55, which has an easterly frontage of not more than 65 6 . The dwelling is located more on the northerly side of the lot than on the southerly and faces generally easterly. The northeasterly corner of the building is approximately 8 from the easterly lot line, the southeasterly corner being 20' therefrom because the house was not constructed with its easterly side parallel to the easterly lot line. A basement garage is on the southerly side of the house.

The Plaintiff proposed to add to the existing structure by building a garage 22 in width and utilizing the existing basement garage area. The addition, as planned, would require the north wall to be extended toward the easterly lot line 13 , the east wall to be 22 wide and to contain two 9 doors. When completed, northeasterly corner of the extension would be not more than 4 from the lot line and the southeasterly corner approximately 11 therefrom. It is thus clear that the planned expansion would be in clear violation of the front yard provision of the ordinance, ² and, in effect, would allow the exacerbation of an existing non-conforming use.

While it is not clear whether access to and beyond Lot #55 is on an accepted public street, the route actually used by the Plaintiff and by the occupants of two houses further northerly is a narrow paved way running between Plaintiff's easterly line and the ocean.

The Zoning Board of Appeals heard the Plaintiff make this statement:

'We have three cars and 1/2 car garage. The neighbors beyond us have two cars and the ones beyond that have an additional two cars. We have tolerated this situation through 4 winters now and there is a definite emergency problem. Last winter there was an elderly gentleman who was ill and a path had to be open at all times and there were times when I had to be called in the middle of the night to move my cars for ambulances etc. Our cars have been hit because there is not enough room up through there. I propose to put the garage in the front of the house and an additional one along side thus allowing plenty of room for my neighbor to get out in the night if they need to. I would excavate and it would be no higher than the boards already on the garage door. My cars would then be off the street.'

(Board Member): . . . 'Your cars were in the street before but you have room enough to park off the street or you wouldn't be able to build the garage.

Mr. Lippoth: I can't stop all the problems but my cars would be protected. But it's mostly because emergency vehicles can't get beyond my house unless I move my cars.

(Board Member): You're going out 13 ft. (yes)

Mr. Lippoth: Present plans for the proposed garage are here. (Mr. Lippoth displayed the plans and explained them (sic) the board members)'

Additionally, counsel for Mrs. Frost made a statement to the Board pointing out Plaintiff's failure to prove undue hardship, that the proposed structure would 'cut off' at least a part of Mrs. Frost's view of the ocean, and that, because the Plaintiff had a minimum front yard, '(a)nything extending over 10 or 12 will be in the right of way which could be illegal and improper to the property rights of others.'

At the appellate hearing below facts were presented dealing with the hardships caused the Plaintiff by the lack of a garage in which to house his vehicles. We summarize these contentions.

1. Because the house is 'starting to sag' and requires 'lally columns' for support, the existing basement cannot be used as a garage.

2. Lack of both sufficient rear year area and adequate access thereto prevent a garage being constructed on the westerly, or rear, portion of the lot.

3. Plaintiff's health makes it difficult to park and move cars left outdoors, in addition to starting them in cold weather.

4. The Plaintiff and his family use three vehicles, which accentuate his parking problems, particularly during the winter season when snowplowing is required.

5. The Plaintiff does not wish to sell his property because be now has mortgage insurance and, due to his health, he would not be eligible for this on a new mortgage.

As stated by the appellant, the issues emerging are these:

1. Did the Superior Court err in concluding that the variance should be granted on the grounds of undue hardship?

2. Did the Superior Court err in concluding that the Board acted unreasonably in denying the variance?

Initially, we must consider what issues were properly before the Superior Court in the 80B proceeding. The law is clear that it is error 'to adjudicate on appeal an issue which was not litigated before the Board.' Moyer v. Board of Zoning Appeals, Me., 233 A.2d 311, 316; Cunningham v. Planning Board, 4 A.D.2d 313, 164 N.Y.S.2d 601 (1957); 101 C.J.S. Zoning § 329, at 1138.

We must assume that the Zoning Board, in its decision, considered that the requested variance would accentuate, rather than alleviate, parking and traffic problems. It is further tacit to this finding that the Zoning Board concluded either (1) that the variance would not be effective in 'get(ting) cars off st.' or (2) that the inability of the Plaintiff to do so did not impose an 'undue hardship' upon him, in the context that this term is used in the zoning law. ³

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