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City of Bangor v. O'Brian Download as PDF Wordperfect 3 Back to Opinions page MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 1998 ME 130 Docket: Pen 97-633 Submitted on Briefs: May 11, 1998 Decided: June 2, 1998 Panel: WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.
CITY OF BANGOR v. PERRY O'BRIAN
DANA, J. [¶1] The City of Bangor appeals from the judgment entered in the Superior Court (Penobscot County, Alexander, J.) affirming the decision of the Bangor Zoning Board of Appeals granting a zoning variance to Perry O'Brian. Contrary to O'Brian's contention, the City's appeal to the Superior Court was timely because the time limit for the appeal is governed by state statute, not the city's land use ordinance. See 30-A M.R.S.A. § 2691(3)(G) (1996). Regarding the grant of the variance, we find no support in the record for the board's findings that the land in question cannot yield a reasonable return unless a variance is granted, and that O'Brian's plight is due to the unique circumstances of the property and not to the general conditions of the neighborhood. See Forester v. City of Westbrook, 604 A.2d 31, 33 (Me. 1992). Because both findings are statutory prerequisites to obtaining a variance, the grant of the variance was improper. See Driscoll v. Gheewalla, 441 A.2d 1023, 1029 (Me. 1982); 30-A M.R.S.A. § 4353(4) (Supp. 1997). The entry is: Judgment vacated. Remanded to the Superior Court for entry of judgment for the City of Bangor.
Attorney for plaintiff: Norman S. Heitmann, III, Esq. John K. Hamer, Esq. Legal Department City of Bangor 73 Harlow Street Bangor, ME 04401 For defendant: Perry O'Brian, Esq. 107 Columbia Street Bangor, ME 04401