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Goldstein v. City of South Portland
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 66
Docket:	Cum-98-595
Submitted
on Briefs:	April 15, 1999
Decided:	April 27, 1999

Panel:CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.




MARK GOLDSTEIN v. CITY OF SOUTH PORTLAND et al.


DANA, J.

	[¶1]  The City of South Portland appeals from a judgment entered in
the Superior Court (Cumberland County, Mills, J.) vacating the South
Portland Zoning Board of Appeals' grant of a setback variance to Wayne and
Elizabeth Ross for the reconstruction of a residence and garage.  Because the
Rosses failed to demonstrate that their property could not yield a reasonable
return without the variance, we affirm the court's judgment.
	[¶2]  The Rosses own and currently rent a two-bedroom house with a
garage.  Desiring to use the property as their retirement home, the Rosses
want to reconstruct and expand the house.  Because the expansion would
violate the South Portland setback requirements, they applied to the Board
for a nineteen-foot rear yard setback variance.  At the public hearing,
witnesses for the Rosses testified that the house would continue to decrease
in value if the variance were not granted.  Persuaded by this testimony, the
Board concluded that the land could not yield a reasonable return and
granted the variance.
	[¶3]  Mark Goldstein, an abutting property owner who vocally opposed
the variance at the hearing, filed a M.R. Civ. P. 80B complaint against both
the City and the Rosses, seeking review of the Board's decision.  The
Superior Court vacated the grant of the variance, concluding that the Board
erred in determining that the property could not yield a reasonable return
without the variance.  The City appealed.
	[¶4]  A "board may grant a variance only when strict application of the
ordinance . . . would cause undue hardship."  30-A M.R.S.A. § 4353(4) (1996
& Supp. 1998).  Section 4353(4) defines undue hardship with four criteria:
A.	The land in question can not yield a reasonable return
unless a variance is granted;

B.	The need for a variance is due to the unique circumstances
of the property and not to the general conditions in the
neighborhood;

C.	The granting of a variance will not alter the essential
character of the locality; and 

D.	The hardship is not the result of action taken by the
applicant or a prior owner.
Id.{1}  The burden is on the applicant to demonstrate that each of the criteria
is satisfied.  Leadbetter v. Ferris, 485 A.2d 225, 227 (Me. 1984).
	[¶5]  In order to satisfy the reasonable return requirement, the
applicant must demonstrate that "strict compliance with the terms of the
ordinance would result in the practical loss of substantial beneficial use of
the land."  Bailey v. City of South Portland, 1998 ME 54, ¶ 6, 707 A.2d 391,
393 (quoting Leadbetter, 485 A.2d at 227-28).  Because the applicant "need
not be accorded every conceivable opportunity to maximize her return, or
potential return," Grand Beach Ass'n, Inc. v. Town of Old Orchard Beach,
516 A.2d 551, 554 (Me. 1986), a "'[r]easonable return' is not tantamount to
[a] 'maximum return,'" Twigg v. Town of Kennebunk, 662 A.2d 914, 919
(Me. 1995) (quoting Perrin v. Town of Kittery, 591 A.2d 861, 863 (Me.
1991)).  Consequently, "the fact that the variance would permit [the
applicant] to increase his return does not, in any way, support the
conclusion that the land cannot yield a reasonable return unless a variance is
granted."  Grand Beach Ass'n, Inc., 516 A.2d at 555.
	[¶6]  Because the Superior Court acted as an appellate court, "we
independently examine the record and review the Board's decision for abuse
of discretion, legal error, or findings unsupported by substantial evidence in
the record."  Twigg, 662 A.2d at 916.  The Rosses are able to rent their
house, and there is no evidence that they are not receiving net income from
the rental.  Because the applicant did not demonstrate that "strict
compliance with the terms of the [o]rdinance would result in the practical
loss of substantial beneficial use of the land," the Board erred in granting the
variance.  See Leadbetter, 485 A.2d at 227-28; see also Anderson v.
Swanson, 534 A.2d 1286, 1289 (Me. 1987) (holding that the Board erred in
granting a setback variance to expand a home when the home offered
adequate living space).
	The entry is:
			Judgment affirmed.
             
Attorney for plaintiff: Brenda M. Buchanan, Esq. Warren, Currier & Buchanan, LLC, PA 57 Exchange Street Portland, ME 04101-5020 For defendants: Mary Kahl, Esq. Corporation Counsel P O Box 9422 South Portland, ME 04116-9422 (for City of South Portland) Wayne & Elizabeth Ross 2 Vocational Drive South Portland, ME 04106
FOOTNOTES******************************** {1} . A municipality may adopt a different standard for determining whether to grant a setback variance for single-family dwellings, 30-A M.R.S.A. § 4353(4-B), or whether to grant a variance from the dimensional standards of a zoning ordinance, id. § 4353 (4-C). The City of South Portland has not adopted either of these provisions.