MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	110	
Docket:	      Yor-16-248	
Submitted	 	
  On	Briefs:	 April	27,	2017	
Decided:	     June	6,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                RICHARD	M.	BALANO	
                                         	
                                        v.	
                                         	
                               TOWN	OF	KITTERY	et	al.	
	
	
PER	CURIAM	

       [¶1]		Richard	M.	Balano	appeals	from	a	judgment	of	the	Superior	Court	

(York	 County,	 O’Neil,	 J.)	 affirming	 the	 Town	 of	 Kittery	 Planning	 Board’s	

decision	 to	 approve	 a	 site	 plan	 application	 for	 development	 of	 a	 hotel	 on	

Route	1.		M.R.	Civ.	P.	80B(n);	M.R.	App.	P.	2.		Balano	argues	that	the	flat-roof	

design	for	the	building	is	not	permitted	by	the	Town’s	ordinance	because	the	

evidence	 presented	 to	 the	 Board	 does	 not	 support	 its	 finding	 that	 a	 pitched	

roof	 is	 not	 “practicable,”	 see	 Kittery,	 Me.,	 Code	 §	 16.3.2.11(D)(3)(b)(ii)	

(July	26,	2010);	and	that	the	proposed	building	will	exceed	height	restrictions	

prescribed	 by	 the	 zoning	 ordinance.	 	 Balano	 also	 argues	 that	 the	 Planning	

Board	 acted	 beyond	 its	 authority	 by	 effectively	 granting	 variances	 when	 it	

approved	 the	 roof	 design	 and	 building	 height.	 	 See	 id.	 §	16.1.5.2(F)(3)	
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(designating	 the	 Board	 of	 Appeals	 as	 the	 municipal	 entity	 with	 authority	 to	

grant	a	variance).		We	affirm.1			

         [¶2]	 	 “We	 review	 the	 Planning	 Board’s	 approval	 of	 the	 permit	directly	

for	error	of	law,	abuse	of	discretion[,]	or	findings	not	supported	by	substantial	

evidence	in	the	record.”		Osprey	Family	Tr.	v.	Town	of	Owls	Head,	2016	ME	89,	

¶	9,	141	A.3d	1114	(quotation	marks	omitted);	see	also	Summerwind	Cottage,	

LLC	 v.	 Town	 of	 Scarborough,	 2013	 ME	 26,	 ¶	 11,	 61	 A.3d	 698.	 	 We	 accord	

substantial	 deference	 to	 “local	 characterizations	 or	 fact-findings	 as	 to	 what	

meets	ordinance	standards.”		Rudolph	v.	Golick,	2010	ME	106,	¶	8,	8	A.3d	684.	

         [¶3]		With	respect	to	the	roof	design,	pursuant	to	the	Town	Ordinance,	if	

an	 applicant	 has	 “demonstrated	 to	 the	 Planning	 Board’s	 satisfaction	 that	 [a	

pitched	 roof]	 is	 not	 practicable,”	 the	 Board	 is	 authorized	 to	 approve	 a	

commercial	 building	 proposal	 with	 an	 alternative	 roof	 design.	 	 Kittery,	 Me.,	

Code	 §	 16.3.2.11(D)(3)(b)(ii).	 	 Here,	 the	 Board	 was	 presented	 with	 evidence	

that	 a	 pitched	 roof	 would	 present	 safety	 issues	 resulting	 from	 snow	

accumulation,	and	that	mechanical	equipment	would	be	more	accessible	in	an	

emergency	if	located	on	a	flat	roof	as	opposed	to	within	the	interior	space	of	a	


     1		We	are	not	persuaded	by	the	Town’s	contention	on	its	cross-appeal	that	Balano	does	not	have	

standing	 to	 pursue	 his	 appeal.	 	 See	 Witham	 Family	 Ltd.	 v.	 Town	 of	 Bar	 Harbor,	 2011	 ME	 104,	 ¶	 7,	
30	A.3d	811;	Friends	of	Lincoln	Lakes	v.	Town	of	Lincoln,	2010	ME	78,	¶	12,	2	A.3d	284.			
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pitched	 roof.	 	 The	 Board’s	 finding	 that	 a	 pitched	 roof	 is	 not	 practicable	 is	

supported	 by	 substantial	 record	 evidence,	 and	 because	 the	 Board	 itself	 was	

authorized	to	approve	a	flat-roof	design	in	such	circumstances,	its	decision	did	

not	amount	to	a	variance.		See	id.	§§	16.3.2.11(D)(3)(b)(ii),	16.2.2.		

         [¶4]	 	 Regarding	 the	 building	 height,	 the	 Board	 did	 not	 err	 in	 its	

application	 of	 the	 Ordinance’s	 height	 restrictions	 because	 roof	 parapets	 are	

not	 included	 in	 calculating	 the	 building	 height,	 see	 id.	 §	 16.2.2	 (defining	

“height	 of	 a	 building”	 and	 “parapet”),	 and	 approval	 of	 the	 proposed	 building	

height	that	complied	with	the	Ordinance’s	requirements	is	not	a	variance.			

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	     	    	     	       	
	
Richard	M.	Balano,	appellant	pro	se	
	
Duncan	McEachern,	Esq.,	McEachern	&	Thornhill,	Kittery,	for	cross-appellant	
Town	of	Kittery	
	
Durward	 W.	 Parkinson,	 Esq.,	 and	 Leah	 B.	 Rachin,	 Esq.,	 Bergen	 &	 Parkinson,	
LLC,	Kennebunk,	for	cross-appellant	275	US	Route	1,	LLC	
	
	
York	County	Superior	Court	docket	number	AP-2015-26	
FOR	CLERK	REFERENCE	ONLY	
