Richard M. Balano v. Town of Kittery

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