MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision:    2015 ME 125
Docket:      Cum-14-449
Submitted
  On Briefs: June 2, 2015
Decided:     September 10, 2015

Panel:       ALEXANDER, and MEAD, GORMAN, JABAR, and HJELM, JJ.



                             MARY E. CAMPBELL et al.

                                          v.

                         CITY OF SOUTH PORTLAND et al.

HJELM, J.

         [¶1] Kay Loring owns a small parcel of land located in a residential area of

the City of South Portland. Because of its size, the lot was nonconforming until

1973, when the City issued a variance that brought it into dimensional conformity.

For purposes of land use regulation, the 4,703 square foot lot now owned by

Loring thereby became the equivalent of a conforming 5,000 square foot lot.

Based on the 1973 variance, in 2013 the City’s Building Inspector issued a

building permit to Loring, authorizing her to construct a single-family house on her

lot. Mary E. Campbell and Maureen and Edward Conroy (collectively, Campbell),

who own nearby lots, appealed the issuance of the permit to the South Portland

Board of Appeals, which affirmed the Building Inspector’s action. The Superior

Court (Cumberland County, Warren, J.) affirmed the Board’s decision. Campbell
2

now appeals to us, arguing that the evidence presented to the Board did not support

its findings about the size of the lot and the existence of a variance; that the 1973

variance is no longer effective; and that the building permit is not lawful because

the proposed development would exceed the density restrictions for that zoning

district.1 Finding no error in the Board’s decision, and concluding that Campbell

did not preserve her density argument for municipal or judicial review, we affirm.

                                       I. BACKGROUND

        [¶2] In 1973, Gloria and Dominic Maietta owned two abutting parcels of

land on Strathmore Road in South Portland.                     The parcels are in Residential

District A. One of these lots, located at 38 Strathmore Road, is now owned by

Kay Loring and is the lot at issue here. According to surveys conducted in 1921

and 2008, Loring’s lot contains 4,703 square feet.                    In 1973, pursuant to the

ordinance then in effect, development of Loring’s lot would have been permitted

only if it contained 5,000 square feet. South Portland, Me., Code § 27-63(a)

(1973).2 Dominic successfully applied for a 297 square foot variance from the



    1
      The evidence before the Board supported its findings about the size of the lot and the fact of the
variance. Because we will not substitute our judgment for the Board’s, Campbell’s challenge to those
findings is not persuasive, see Toomey v. Town of Frye Island, 2008 ME 44, ¶ 11, 943 A.2d 563, and we
do not discuss that argument further.
    2
      Under the City’s ordinances in effect in 1973, the minimum lot size for the zoning district where
Loring’s lot is located was 15,000 square feet. South Portland, Me., Code § 27-62(1) (1973). Lots
created before the ordinance was adopted were grandfathered and deemed to be conforming if they
contained at least 5,000 square feet. South Portland, Me., Code § 27-63(a) (1973). The parties do not
                                                                                                          3

Zoning Board of Appeals,3 thereby allowing the lot to be treated as if it contained

5,000 square feet. After the Board granted the variance, however, the Maiettas did

not build on the lot, and it remains undeveloped.

        [¶3] In 2009, after Dominic’s death, Gloria sold the lot to Kay Loring. In

September 2013, Loring obtained a building permit from the Building Inspector4

authorizing the construction of a small single family home on the lot. Under the

City’s current zoning ordinances, the City’s Building Inspector is authorized to

issue a building permit for development of a lot that is at least 5,000 square feet in

size and has at least 50 feet of road frontage.                       South Portland, Me., Code

§ 27-134, -304(a). If a lot does not meet both the dimensional and density-related

requirements, which regulate the number of dwelling structures in a specified area,

then the application must satisfy certain conditions, and only the City’s Planning

Board may issue a building permit. South Portland, Me., Code § 27-304(a), (g).


dispute that the grandfathering provision applied to Loring’s lot, and in any event, no appeal was filed
from the 1973 variance decision, making that municipal action final.
   3
      The record identifies this body variously as the “Zoning Board of Appeals” and the “Board of
Zoning Appeals.” Those titles refer to the same body, which is the predecessor to the “Board of Appeals”
that was a tribunal in this action.
   4
       In their briefs, the parties indicate that the permit was issued by the City’s Code Enforcement
Officer. The City’s land use ordinances, however, designate the Building Inspector, and not the CEO, as
the municipal official who is authorized to issue building permits. See South Portland, Me., Code
§ 27-134. The parties have not included the 2013 building permit in the record on appeal, and so we
cannot determine directly who issued that permit. Because Campbell has not raised any issue about
whether the appropriate City official issued the permit (arguing instead that it should not have been issued
in the first place), we assume that the permit was issued by the person who had authority to do so, which,
under the ordinance, would be the Building Inspector.
4

      [¶4] Campbell appealed the issuance of the building permit to the Board of

Appeals and submitted a twelve-point “addendum” listing her challenges to the

permit, which included claims, among others, that a variance actually had not been

granted; that if a variance was granted, it was no longer in effect when the building

permit was issued; and that Loring’s lot contains less than 4,703 square feet, so

that even if the 297 square foot variance is considered, the lot does not meet the

5,000 square foot requirement.        Campbell’s addendum did not list density

standards, described in the ordinance as “space and bulk restrictions,” as a basis for

the appeal.

      [¶5] The Board held a hearing on December 4, 2013, and January 8, 2014.

During her oral presentation to the Board, Campbell argued the points in her

addendum, but she also contended that construction of a building on Loring’s lot

would violate the applicable density restrictions. On the second hearing date, after

the parties completed their presentations, the Board voted to deny Campbell’s

appeal, and it issued a written decision on January 14, 2014. In its decision, the

Board found that Loring’s lot contains 4,703 square feet; that a variance was

granted in 1973 so that the lot is considered to be a 5,000 square foot lot; and that

the variance is still effective. The Board did not address the question of whether

construction of a structure on Loring’s lot would comport with the density

restrictions applicable to Residential District A.
                                                                                                        5

         [¶6] Pursuant to M.R. Civ. P. 80B and 5 M.R.S. § 11002 (2014), Campbell

filed a complaint with the Superior Court, which affirmed the Board’s decision and

denied her subsequent motions for reconsideration and further findings of fact.5

Campbell appealed.

                                         II. DISCUSSION

         [¶7] On a Rule 80B appeal, we review directly the operative decision of the

municipality and not the judgment of the Superior Court. Fitanides v. City of Saco,

2015 ME 32, ¶ 8, 113 A.3d 1088. Here, the parties agree that the operative

decision is the Board’s. We separately consider Campbell’s arguments that the

1973 variance, which was the predicate to the existence of the Building Inspector’s

authority to issue the building permit, was no longer in effect when the permit was

issued, and that the building permit was issued in error because the resulting

development would violate the City’s density restrictions for Residential

District A.

A.       Effectiveness of the 1973 Variance

         [¶8] Campbell first contends that the Board erred in affirming the decision

to issue the building permit because, she argues, the 1973 variance necessary for


     5
      Campbell’s Rule 80B appeal was based entirely on the record before the Board and arguments of
law. Consequently, she did not raise any claims that would result in factual findings issued by the court.
See M.R. Civ. P. 80B(d) (establishing the procedure for a trial of the facts as part of a Rule 80B appeal,
which Campbell did not seek to invoke here). That part of Campbell’s motion that requested the court to
issue findings of fact was therefore misplaced.
6

the Building Inspector to have authority to issue the permit is no longer effective.

According to her argument, Loring’s lot must be treated as a lot with 4,703 square

feet rather than one with 5,000 square feet as allowed under the 1973 variance, and

the permit therefore may be issued only by the City’s Planning Board. As support

for her argument that the variance expired before the building permit was issued in

2013, Campbell relies on section 27-302(b) of the City’s zoning ordinance, which

governs variances from nonconforming uses, and provides, “A nonconforming use

is terminated if the use ceases or is abandoned for any reason for a period of two

(2) years or more.” South Portland, Me., Code § 27-302(b).6 Because neither

Loring nor her predecessors in title actually built on the lot within two years of the

issuance of the variance in 1973, Campbell argues that the variance expired and is

no longer in effect, Loring’s lot reverted to one that is treated as having an area of

4,703 square feet, and the Building Inspector therefore was without authority to

issue the permit.

        [¶9] The variance that Maietta sought and received in 1973, however, was

based on the size of the lot and not its use. The provisions governing the variance


    6
      The version of the ordinance that was in effect when the variance was granted in 1973 provided that
a grandfathered nonconforming use would expire if it was abandoned for more than one year, rather than
the two-year limitation period now in effect. See South Portland, Me., Code § 27-77 (1973). We need
not decide the nature of any interplay among these ordinances and the dimensional variance ordinances
that were in effect in 1973 and 2013, because we conclude that for different reasons set out in the text, the
vitality of the 1973 dimensional variance is not affected by any ordinances that terminate the lawfulness
of non-conforming land uses.
                                                                                                       7

therefore are not found in section 27-302, which applies to variances from

nonconforming uses.           Instead, at best for Campbell, see supra n.6, the 1973

variance is now controlled by section 27-304, which establishes dimensional

requirements of minimum lot size and road frontage. Section 27-534 generally

prescribes a minimum lot size of 12,500 square feet, although section 27-304 sets

forth the 5,000 square foot requirement for certain qualifying lots. Maietta had

obtained a variance so that the lot, for purposes of the ordinance, would be treated

as a conforming 5,000 square foot lot. Cf. Sawyer Envtl. Recovery Facilities, Inc.

v. Town of Hampden, 2000 ME 179, ¶ 19, 760 A.2d 257 (holding that “a use

permitted by a variance becomes conforming under the ordinance that authorizes

the issuance of the variance.”). That variance was therefore only as to the size of

the lot.7 Because section 27-302 does not apply to a dimensional variance, the

two-year expiration period created in that provision is inapplicable.

        [¶10] Unlike section 27-302, a dimensional variance granted under section

27-304 does not expire if a certain event, such as development, fails to occur

within a specified period of time.                Further, nothing in the enabling statute,

30-A M.R.S. § 4353(4-C) (2014), creates such an effect. Therefore, the local and



   7
      The difference between dimensional variances and land use variances is further illustrated in state
law that authorizes municipalities to adopt ordinances that permit a local board to grant variances
specifically from applicable dimensional standards. See 30-A M.R.S. § 4353(4-C) (2014). Section
27-304 falls within that statutory authorization extended to municipalities.
8

state legislation at issue here does not support Campbell’s contention that the 1973

variance expired.

      [¶11] Campbell goes on to argue, however, that as a matter of policy,

variances should not be of unlimited duration. We have held to the contrary when

an ordinance does not provide for the expiration of a variance. See DeSomma v.

Town of Casco, 2000 ME 113, ¶ 13, 755 A.2d 485. Because Campbell has not

identified any law that imposes a temporal limitation on a variance when the

ordinance itself does not create such a limitation, Campbell’s argument instead

raises a policy issue that can only be properly addressed and decided through local

legislation. Although the temporal effect of the 1973 dimensional variance at issue

here is open-ended, Loring must still comply with contemporary land use standards

applicable to conforming lots that are 5,000 square feet in size because the 1973

variance allowed her lot to be treated as if it were a conforming lot of that size. In

this way, the City retains ongoing regulatory control over the use of the lot.

      [¶12]    Therefore, because the 1973 dimensional variance governed by

section 27-304 of the City’s ordinance and 30-A M.R.S. § 4353(4-C) was not

subject to a temporal limitation, it was still in force when the building permit was

issued in 2013, and because Loring’s lot is still to be treated as a 5,000 square foot

parcel, the Building Inspector was authorized to act on Loring’s permit application.
                                                                                        9

B.    Density Limitation

      [¶13] Campbell next argues that the building permit was improperly issued

because the proposed permitted development on Loring’s lot will violate the

density limitations prescribed in section 27-534 of the City’s ordinance.

      [¶14] Section 27-304(a) of the City’s ordinance authorizes the issuance of a

permit for construction on a lot—such as Loring’s, because of the 1973 variance—

that has as little as 5,000 square feet and fifty feet of street frontage, only if the lot

“conform[s] to the space and bulk regulations for the zoning district in which it is

located except for the minimum lot area and minimum street frontage requirements

. . . .” South Portland, Me., Code § 27-304(a). For the zoning district in which

Loring’s lot is located, the “[m]aximum net residential density” is “[f]our (4)

dwelling units per net residential acre.” South Portland, Me., Code § 27-534.

Campbell argues that it is impossible for Loring’s lot to be developed without

violating that density restriction.

      [¶15] We do not reach the merits of this contention, however, because

Campbell did not properly present this challenge to the Board and therefore has not

preserved it for judicial review. The City’s ordinance itself establishes the notice

requirement that an appellant must meet in order to pursue a particular argument

before the Board. That local legislation provides that a notice of appeal to the

Board “shall be filed with the Department of Planning and Development on forms
10

approved by the Board of Appeals, and the aggrieved person shall specifically set

forth on said form the grounds for said appeal.” South Portland, Me., Code

§ 27-154(a) (emphasis added). Here, as part of her notice of appeal to the Board,

Campbell submitted a written list of twelve specific challenges to the building

permit issued to Loring.      The density issue was not included among those

challenges. Consequently, Campbell did not satisfy the notice requirement created

in section 27-154(a), which was the necessary predicate for her to pursue a

challenge based on the density criteria. Several times during her oral presentation

to the Board, Campbell noted that development on Loring’s lot would violate the

applicable density requirements. These oral references, however, did not cure her

initial failure to comply with the written notice requirement in section 27-154(a),

which foreclosed her opportunity to pursue the issue before the Board.

      [¶16] By requiring an appellant to expressly identify those issues that she

seeks to present to the Board, section 27-154(a) establishes an organizational

structure for the administrative proceeding. Additionally, section 27-154(a) further

provides the Board and other interested parties with reasonable notice and an

opportunity to address those issues that may warrant the presentation of evidence

and argument at the proceeding. The requirement of notice also ensures that the

Board will be attentive to matters relating to those issues that are properly raised.
                                                                                   11

      [¶17] Given this procedural requirement, it is telling that in its decision

affirming the issuance of the building permit, the Board did not address the density

issue that Campbell raised orally, in contrast to the Board’s methodical

consideration of each of the twelve issues enumerated in Campbell’s written

addendum. Under section 27-154(a), the Board was not required to determine

whether the density requirement precluded issuance of the permit, because it was

not one of the grounds that Campbell “specifically set forth” in the notice of appeal

filed with the Board. Instead, when the Board addressed each of the twelve

arguments that Campbell properly raised in the notice of appeal, it ruled on those

issues that were in order for decision. The Board was not required to do more.

      [¶18] Therefore, despite the clear requirements of the ordinance, Campbell

failed to assert a proper and timely challenge to the issuance of the permit based on

density. As a result, that issue was not in order for decision by the Board, and

Campbell may not raise the issue collaterally for judicial review. See, e.g., Wells v.

Portland Yacht Club, 2001 ME 20, ¶ 5, 771 A.2d 371.

      The entry is:

                      Judgment affirmed.
12




On the briefs:

        John S. Campbell, Esq., Campbell & Associates, P.A., Portland,
        for appellants Mary E. Campbell and Maureen and Edward
        Conroy

        Gene R. Libby, Esq., and Tyler J. Smith, Esq., Libby O’Brien
        Kingsley & Champion, LLC, Kennebunk, for appellee Kay
        Loring

        Daniel L. Cummings, Esq., Norman Hanson & DeTroy, LLC,
        Portland, for appellee City of South Portland



Cumberland County Superior Court docket number AP-2014-12
FOR CLERK REFERENCE ONLY
