Kevin J. Hill v. Town of Wells

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 38
Docket: Yor-20-131
Argued: April 6, 2021
Decided: July 13, 2021

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

KEVIN J. HILL

v.

TOWN OF WELLS et al.

CONNORS, J.

[¶1] Appellee Kevin Hill sought two setback variances from the Town of

Wells Zoning Board of Appeals (ZBA) and was denied on the basis that he did

not meet his burden of proof to show that granting the variances would not

alter the essential character of the locality. Hill’s appeal to the Superior Court

(York County, Douglas, J.) resulted in the court’s rejection of the ZBA’s denial of

the variances, and an abutting landowner, intervenor Bradley Hastings, has

appealed. We vacate the Superior Court’s judgment and remand with

instructions to affirm the ZBA’s denial. The ZBA properly decided that Hill

failed to show that the size and character of his proposed residence with the

variances would conform with the neighborhood as zoned, discounting
2

grandfathered nonconforming structures, and would not degrade the

significant value of surrounding environmental resources.

I. BACKGROUND

[¶2] In 2017, Hill purchased a lot located at 12 Lobster Lane on Drakes

Island in Wells.1 The lot is approximately two blocks from the beach and

borders on, and intrudes into, wetlands. These particular wetlands are of

special significance because they are contiguous to both coastal wetlands

within the meaning of the Natural Resources Protection Act (NRPA), 38 M.R.S.

§§ 480-A through 480-JJ (2021), as well as the Rachel Carson National Wildlife

Refuge.

[¶3] Hill purchased the lot undeveloped and began the process of

obtaining the necessary permits to build on the property. Because of the lot’s

proximity to the wetlands, Hill’s proposed structure required a variance from

the Town “[t]o reduce the front setback to Lobster Lane from 20 feet to 10 feet”

and “[f]or a freshwater wetland setback reduction from 38.5 feet to no less than

25 feet for rear setback at the structure’s closest point.”2 The size of the lot, the

1 We take judicial notice of the lot’s size, its location, and the characteristics of the abutting
properties by way of Google Maps. See Pahls v. Thomas, 718 F.3d 1210, 1216 n.1 (10th Cir. 2013)
(collecting cases). During oral argument, we asked the parties if there were any objections to our use
of Google Maps for this purpose, and neither party expressed any opposition.

Pursuant to chapter § 145-33(B)(1) of the Town Code, “[t]he minimum setback from the upland
2

edge of a wetland shall be 75 feet, which may be reduced to the average of the setbacks of structures
 3

state and local regulations, and the dimensions potentially available under the

variances limit the house that Hill intended to build to a footprint of just

680 square feet.3 The small footprint of Hill’s proposed home resulted in a plan

to build the structure up to three stories high, with the ground level to be used

for parking.

[¶4] In July 2018, Hill sought and received from the Department of

Environmental Protection (DEP) a NRPA permit to build a 1274-square-foot

structure on the lot. The DEP’s order expressly stated: “This approval does not

constitute or substitute for any other required state, federal or local approvals

nor does it verify compliance with any applicable shoreland zoning

ordinances.” Thus, the DEP’s approval did not eliminate Hill’s need to obtain a

variance from the Town’s ZBA based on its independent fact-findings and

conclusions.

within 200 feet of the proposed structure on lots abutting the wetlands but shall not be less than
25 feet.” See Wells, Me., Code § 145-33(B)(1) (Apr. 16, 1999). The ZBA’s findings of fact indicate that
the setbacks from the four abutting properties within 200 feet of Hill’s proposed home are 37.33 feet,
43.26 feet, 13.48 feet, and 68 feet. The average of those setbacks is 38.5 feet, which is therefore the
allowable setback for Hill’s structure.
3 Although the ZBA’s decision indicates that the total square footage of the home would be
680 square feet, the record, including Hill’s permit application to the Department of Environmental
Protection, makes clear that the ZBA was referring to the house’s footprint.
4

[¶5] In February 2019, Hill submitted his variance request to the Town,

pursuant to chapter § 145-67(A)(3) of the Town Code, arguing that he would

suffer undue hardship absent the variance. In March 2019, the ZBA held a

public hearing on Hill’s application that included submissions and testimony

from the owners of the abutting properties—including the intervenor in this

case, Bradley Hastings. One abutting landowner testified that Hill’s lot is

“always wet” and that there is “plenty of water in that lot.”4

[¶6] On April 1, 2019, the ZBA voted on its findings of fact and its

conclusions. The ZBA’s findings of fact provided, in relevant part:

• Structures on all abutting properties were built prior to
adoption of the Code by the Town of Wells. The structure on
one abutting property has been renovated since 2004.

• Four abutting properties within 200 feet of the proposed
structure on lots abutting the wetlands have setbacks of
37.33 feet, 43.26 feet, 13.48 feet, and 68.00 feet respectively
from the boundaries of the wetlands. The allowed average
setback for the proposed structure is 38.49 feet. One of the
abutting properties has a setback smaller than the requested
25 feet, which is smaller than the average 38.49 feet. [Hill]
stated that only a two square-foot area can be built upon
within required setbacks.

• A survey completed in 2012 determined that the average of
the setbacks of structures within 200 feet of the proposed

4The report from the DEP submitted to the ZBA also detailed “water flowing across the southern
corner of [Hill’s] lot towards the lower elevations on the western corner of the lot,” though this is not
the portion of the lot where Hill proposed to construct the home.
 5

structure on lots abutting the wetlands was 33.49 feet,
updated to 38.5 feet to reflect recent removal of a shed.

The ZBA further concluded:

• The size of the structure (680 square feet)5 would make it
much smaller than all other homes in the neighborhood.

• The impacts on and by the wetlands are unique for this
property in comparison to abutting properties because the
border of the wetlands is inside the area of the lot and
virtually all of the wetlands [are] in the setbacks.

Based on these findings, the ZBA determined that Hill failed to meet his

burden of showing that the variance would not alter the essential nature

of the neighborhood.

[¶7] Following the ZBA’s denial of his variance application, Hill

appealed to the Superior Court pursuant to M.R. Civ. P. 80B. The Superior

Court vacated the ZBA’s determination and remanded to the ZBA with

instructions to grant the variance, concluding that Hill had met his

burden of proof, compelling the ZBA to issue the variance. Hastings

timely appealed.

5 See supra n.3.
6

II. DISCUSSION

A. Burden of Proof and Standard of Review

[¶8] On an appeal from a Superior Court order where the court acted in

its intermediate appellate capacity to hear an appeal from a municipal zoning

board, we “review directly the operative decision of a municipality.” Toomey v.

Town of Frye Island, 2008 ME 44, ¶ 11, 943 A.2d 563. In doing so, we will not

“substitute [our] judgment for that of a board.” Id. “[T]he party wishing to

overturn the municipal decision,” in this case Hill, bears the burden of

persuasion on appeal. Toomey, 2008 ME 44, ¶ 13, 943 A.2d 563. “[T]he party

bearing the burden of proof before the Board . . . must show on appeal that the

evidence compelled the Board to grant him a variance.” Twigg v. Town of

Kennebunk, 662 A.2d 914, 916 (Me. 1995).

B. Applicable Legal Framework

1. Relevant Statutes

[¶9] A municipal board of appeals “may grant a variance only when strict

application of the ordinance to the petitioner and the petitioner’s property

would cause undue hardship.” 30-A M.R.S. § 4353(4) (2021). The term “undue

hardship” requires the party seeking a variance to meet four conditions,
 7

including that “[t]he granting of a variance will not alter the essential character

of the locality.” Id. § 4353(4)(C).6

[¶10] Other legislation, including multiple statutes protecting and

conserving sensitive environmental resources, governs the use of this

geographic area and Hill’s property specifically.

[¶11] This property lies within the Drakes Island Game Sanctuary.

12 M.R.S. § 12706(E) (2021). Under 12 M.R.S. § 12701 (2021), the permissible

uses of property within a sanctuary are limited and are subject to rules adopted

by the Commissioner of Inland Fisheries and Wildlife. For example, in the

absence of a Commissioner rule to the contrary, with some exceptions, no

trapping or hunting of any wild animal or wild bird is allowed within the area.

Id. §§ 12701, 12707.

[¶12] The second piece of legislation that affects this property is the

NRPA, which governs land use on and near wetlands. The Legislature has found

and declared that

the State’s . . . freshwater wetlands, significant wildlife habitat [and]
coastal wetlands . . . are resources of state significance. These
resources have great scenic beauty and unique characteristics,
unsurpassed recreational, cultural, historical and environmental

6 Because all four conditions must be met, we need not address the ZBA’s additional finding that
Hill failed to meet another requirement, namely that the need for the variance is not self-created by
the applicant or a prior owner. 30-A M.R.S. § 4353(4)(D) (2021).
8

value of present and future benefit to the citizens of the State and
. . . uses are causing the rapid degradation and, in some cases, the
destruction of these critical resources, producing significant
adverse economic and environmental impacts and threatening the
health, safety and general welfare of the citizens of the State.

38 M.R.S. § 480-A.

[¶13] Another piece of legislation that affects this area and Hill’s

property by mandating shoreland zoning is 38 M.R.S. § 435 (2021), in which the

Legislature stated:

To aid in the fulfillment of the State’s role as trustee of its waters
and to promote public health, safety and the general welfare, it is
declared to be in the public interest that shoreland areas be subject
to zoning and land use controls. Shoreland areas include those
areas within 250 feet of the normal high-water line of any great
pond, river or saltwater body, within 250 feet of the upland edge of
a coastal wetland, within 250 feet of the upland edge of a
freshwater wetland except as otherwise provided in section 438-A,
subsection 2, or within 75 feet of the high-water line of a stream.
The purposes of these controls are to further the maintenance of
safe and healthful conditions; to prevent and control water
pollution; to protect fish spawning grounds, aquatic life, bird and
other wildlife habitat; to protect buildings and lands from flooding
and accelerated erosion; to protect archaeological and historic
resources; to protect commercial fishing and maritime industries;
to protect freshwater and coastal wetlands; to control building
sites, placement of structures and land uses; to conserve shore
cover, and visual as well as actual points of access to inland and
coastal waters; to conserve natural beauty and open space; and to
anticipate and respond to the impacts of development in shoreland
areas.
 9

[¶14] Under this statute, local ordinances must, among other things,

address the coastal management policies set forth in 38 M.R.S. § 1801 (2021).

38 M.R.S. § 438-A(2). In section 1801, the Legislature finds that

the Maine coast is an asset of immeasurable value to the people of
the State and the nation, and there is a state interest in the
conservation, beneficial use and effective management of the
coast’s resources; that development of the coastal area is
increasing rapidly and that this development poses a significant
threat to the resources of the coast . . . .

The Legislature further declares “that the well-being of the citizens of this State

depends on striking a carefully considered and well reasoned balance among

the competing uses of the State’s coastal area” and that state and local agencies

should conduct their activities affecting the coastal area consistent with various

listed policies, including “[d]iscourag[ing] growth and new development in

coastal areas where, because of coastal storms, flooding, landslides or sea-level

rise, it is hazardous to human health and safety” and “[p]rotect[ing] and

manag[ing] critical habitat and natural areas of state and national significance

and maintain[ing] the scenic beauty and character of the coast even in areas

where development occurs.” Id.

[¶15] Finally, Hill’s property borders the Rachel Carson National Wildlife

Refuge, which is part of the National Wildlife Refuge System, a national network

of lands and waters designated for conservation and restoration of fish, wildlife,
10

and plant resources and their habitats. See 16 U.S.C.S. § 668dd (LEXIS through

Pub. L. No. 116-344).

[¶16] None of these environmental protection statutes precluded the

ZBA from granting the variances requested by Hill. See 38 M.R.S. § 439-A(4);

Peterson v. Town of Rangeley, 1998 ME 192, ¶¶ 13-16, 715 A.2d 930. They do,

however, indicate that this locality is of particular environmental sensitivity,

and they identify public health and welfare interests relevant to assessing

development in the area, including habitat protection, avoiding flooding and

wetland degradation, and preserving open space and natural beauty.

2. Relevant Ordinances

[¶17] The property Hill seeks to develop lies within the Residential D

District, and, consistent with 38 M.R.S. § 1801, is also subject to a Shoreland

Overlay District.

[¶18] Chapter 145-23, defining the Residential D District, provides:

A. Purpose. The purpose of the Residential D District is to retain
the family resort character of Drakes Island by ensuring that
future development is similar to the existing development in
style and scale. Nonresidential uses should be limited to
noncommercial recreational uses and public uses.

Uses permitted in the District are limited to agriculture, one-family dwellings,

keeping poultry, and recreation. Wells, Me., Code § 145-23(B) (June 9, 2015).
 11

Dwellings are limited to a height of thirty feet and three stories and must be set

back twenty feet from any lot line abutting any street right of way. Id.

§§ 145-23(F)(5), (G)(2).

[¶19] Chapter 145-33, defining the Shoreland Overlay District,7

provides:

A. Purpose. The purpose of this district is to prevent and
control water pollution; to protect fish spawning grounds,
aquatic life and bird and other wildlife habitat; to protect
buildings and lands from flooding and accelerated erosion; to
protect commercial fishing and maritime industries; to
protect freshwater and coastal wetlands; to conserve shore
cover; and to preserve access to inland and coastal waters.

The setbacks required include seventy-five feet from the upland edge of a

wetland, “which may be reduced by the average of the setbacks of structures

within 200 feet of the proposed structure on lots abutting the wetlands but shall

not be less than 25 feet.” Id. § 145-33(B)(1).

7 “Overlay zoning is a flexible zoning technique that allows a municipality to limit development in
certain environmentally sensitive areas. An overlay zone is a mapped overlay district superimposed
on one or more established zoning districts. Environmental overlay district boundaries may be
drawn to follow the boundaries of a natural resource, such as a watershed or floodplain. An overlay
zone supplements the underlying zoning standards with additional requirements that can be
designed to protect the natural features in an important environmental area. A parcel within the
overlay zone is regulated simultaneously by two sets of zoning regulations: the underlying zoning
district provisions and the overlay zoning requirements. A unique natural or aesthetic resource area,
such as a pine barren, wetland resource area, watershed, or tidal basin, can be identified and
protected in this way.” John R. Nolon, In Praise of Parochialism: The Advent of Local Environmental
Law, 26 Harv. Envtl. L. Rev 365, 391 (2002) (footnote omitted).
12

[¶20] In sum, the purposes of these ordinance provisions echo those of

the relevant statutes, such as protecting natural resources and avoiding

flooding and wetland degradation, with large setbacks from wetlands and a

focus on residential and recreational uses.8

3. The Nature of the “Essential Characteristics” Requirement

a. The meaning of “Essential Characteristics of the Locality” is
informed by its context as a variance criterion and the
purposes and limitations imposed upon uses, structures, and
dimensions within the district.

[¶21] We have noted that when an ordinance broadly provides that uses

are permitted in a district as long as they do not alter the essential

characteristics of the locality, the breadth of that language results in an

excessive delegation of authority to the administrative body to determine

whether to permit the use. Cope v. Town of Brunswick, 464 A.2d 223, 226-27

8Another relevant ordinance provision would ordinarily be the provision setting forth local
variance criteria. An erroneous section of the Wells Ordinance was included in the appendix. We
cannot take judicial notice of ordinances. Mills v. Town of Eliot, 2008 ME 134, ¶ 23, 955 A.2d 258.
Upon notification of this omission, the parties confirmed that the wrong section had been included
in the appendix but did not seek to modify the appendix or otherwise provide a certified copy of the
applicable section.

It appears that other ordinance provisions might also require additional fact-finding before
granting a variance from setbacks from wetlands. But the ZBA did not mention these criteria, the
appellant did not argue that these criteria applied before the ZBA, and, again, we cannot take judicial
notice of any ordinance provision outside an administrative record or appendix. We therefore focus
on the variance criteria provided by statute, which, as identified by the ZBA in its decision, are
identical to the applicable criteria applied by the ZBA, including the requirement that the variance
not alter the essential characteristics of the locality. See Wells, Me., Code § 145-67(A)(3)
(Nov. 2, 1993).
 13

(Me. 1983). This delegation problem does not arise in the variance context,

however, because this criterion, along with the other statutory conditions for

granting a variance, constitute limitations on the ZBA’s discretion. Your Home,

Inc. v. Town of Windham, 528 A.2d 468, 472 (Me. 1987). In other words, in the

context of a variance, a municipality acting as a legislature has identified the

permitted uses, and the essential characteristics criterion is limited by the

ordinance’s provisions regarding the permitted uses and the purposes of the

district. See id. (“[V]ariances are uses which are generally inappropriate for the

zone in which they are located.”).

[¶22] Additionally, “[v]ariances are meant to encompass those[]

situations . . . where . . . the application of the ordinance bears so little

relationship to the purposes of zoning that, as to that property, the regulation

is, in effect, confiscatory or arbitrary.” Sawyer Env’tl Recovery Facilities, Inc. v.

Town of Hampden, 2000 ME 179, ¶ 18, 760 A.2d 257 (quotation marks omitted).

The discretion of a board in the application of the “essential characteristics”

variance criterion is thus limited not only by the specific provisions in an

ordinance defining the characteristics of a district, but, also, by the guiding

perspective that a variance should not be granted unless the party seeking the

variance can prove that there is something unique about his property that
14

makes adherence to the uses, structures, and dimensions permitted within the

district inconsistent with the purposes of the zoning for that district. See Radin

v. Crowley, 516 A.2d 962, 964 (Me. 1986) (“The proper inquiry [in determining

whether to grant a variance] is whether application of the side yard setback

requirement to Radin’s lot arbitrarily deprives her of a beneficial use of her land

without materially advancing any of the police power purposes underlying and

justifying enactment of the requirement.”).

b. The size of the locality is context dependent and not limited
to developed uses and values.

[¶23] The identification of the locality, or neighborhood, for the purpose

of determining compatibility of a use with the area’s essential characteristics is

necessarily fact-sensitive and dependent upon the nature of the geographic

area the variance may impact. That said, the districts, as legislatively

established by the municipality, provide strong guidance in identifying the

locality or neighborhood. Here, for example, chapter § 145-23, defining the

Residential D District, references the purpose of this District as retaining the

character of “Drakes Island.” It follows that the impact of any variance within

this area is a relevant consideration. See Janssen v. Holland Charter Twp. Zoning

Bd. of Appeals, 651 N.W.2d 464, 468 (Mich. Ct. App. 2002) (“In considering the

essential character of this locality, one cannot, and should not, just look at the
 15

immediate neighboring properties. The character of the locality is defined in

broader strokes than such a myopic viewpoint would provide.”).

[¶24] It also follows that the locality here includes the abutting

undeveloped Refuge and wetlands. See Davis v. Zoning Bd. of Chatham,

754 N.E.2d 101, 110-11 (Mass. App. Ct. 2001) (noting that “neighborhood” is an

elastic term depending upon facts and circumstances, and that it was

appropriate for zoning purposes to include undeveloped beaches, coastal

banks, marshes, and wetlands as part of the neighborhood for the purposes of

defining character).

[¶25] Impact is measured not only in economic terms, but also in terms

of the effect on environmental values.9 While the adverse impact of a variance

on the market value of surrounding developed property might be relevant in

assessing the effect on essential characteristics of a locality, the purpose of

zoning is broader, relating to the public interest and welfare.10 The importance

9 Inclusion of such values in variance considerations is reflected in 30-A M.R.S. § 4353(4-B) and
(4-C), which allow a municipality to enact an ordinance relaxing the statutory variance criterion
requiring that the property be incapable of producing a reasonable return under certain
circumstances, see infra n.10, but limiting that relaxation with respect to wetland setbacks.
Section 4-C(E) also specifically recites that there must be no unreasonable adverse effect on the
natural environment. See Rowe v. City of S. Portland, 1999 ME 81, ¶¶ 9-10, 730 A.2d 673.
10 The essential characteristics prong was first identified in Otto v. Steinhilber, 24 N.E.2d 851, 853
(N.Y. 1939). See Lovely v. Zoning Bd. of Appeals, 259 A.2d 666, 669 (Me. 1969). In support of its
development of the essential characteristics prong, the Steinhilber court cited Edward M. Bassett
et al., Model Laws for Planning Cities, Counties, and States: Including Zoning, Subdivision Regulation,
and Protection of Official Map at 12 (1935), which stated: “The power of variance falls within the
16

of environmental impact is particularly strong with respect to properties lying

within an overlay district, which is designed, as noted supra, to protect

environmentally sensitive areas. See generally Robert J. Blackwell, Comment,

Overlay Zoning, Performance Standards, and Environmental Protection After

Nollan, 16 B.C. Envtl. Aff. L. Rev. 615 (1989).

c. The variance must be compatible with the district as zoned,
not just surrounding nonconforming uses and dimensions.

[¶26] Finally, key in determining the essential characteristics of a locality

are the uses, structures, and dimensions of setbacks and other features already

existing in that area. Here, the relevant ordinance expressly provides that new

development should be similar to “existing” development, which would include

nonconforming structures. That said, the analysis is not constrained to

considering only grandfathered uses and structures—otherwise, every

applicant for a variance could obtain the equivalent of grandfathered status

without having to be consistent with the municipality’s zoning for the area.

well-recognized general class of relaxations or mitigations of the strictness of general rules in which
broad discretion is so commonly, as in this case, granted the administrator by relating it to
considerations of the public interest, public safety and welfare, and substantial justice.” See Zoning
and Land Use Controls, Ch. 9, Introduction, § 53A.01 (LexisNexis Matthew Bender) (stating that
Bassett “is often viewed as the father of the concept [of zoning] in this country”). For a historical
overview as to how environmental concerns have always been components of and justifications for
zoning, see Earl Finbar Murphy, Euclid and the Environment, contained in Zoning and the American
Dream: Promises Still to Keep (Charles M. Haar & Jerold S. Kayden eds., 1989) at 154, 168-74.
 17

[¶27] In Radin, 516 A.2d at 964, for example, the party seeking a variance

argued that she was entitled to a setback variance because the goal of zoning

was uniformity and her use would be consistent with the present

nonconforming uses in the immediate area. We stated that this argument

“misconstrue[d] both the nature of the uniformity imposed by zoning and the

method by which uniformity is attained.” Id. The relevant uniformity is that

defined in the zoning ordinance; otherwise, “no municipality could ever

effectively impose restrictions on areas with a large number of extant

nonconforming uses, for exceptions and variances would of necessity be

granted almost as a matter of course.” Id.; see also Surfrider Found. v. Zoning Bd.

of Appeals, 358 P.3d 664, 686-89 (Haw. 2015) (reversing the grant of a variance

from the setback requirement on essential characteristics grounds and

rejecting the evidence of similar nonconformity in the area as competent

evidence because the presence of nonconforming uses and structures should

not serve as the basis for further nonconformance).

[¶28] A goal of zoning is to eliminate, not perpetuate, nonconformance.

Lovely, 259 A.2d at 669-70; see also O’Toole v. City of Portland, 2004 ME 130,

¶ 15, 865 A.2d 555 (stating that variance decisions should not be divorced from

“a community’s contemporary planning objectives”). Hence, while we would
18

not go so far as the Hawaii Supreme Court in concluding that surrounding

nonconforming uses are irrelevant to the determination of the essential

characteristics of a locality, nonconforming uses are not determinative and

their significance is discounted if they are inconsistent with the purposes of the

existing zoning scheme.

C. Application of the Law to Hill’s Request for Variances

[¶29] It was Hill’s burden to prove that the variance would result in

development compatible with the locality. He showed only that the immediate

abutters’ houses were nonconforming, and the record lacks evidence that his

house would be similar in size and height to others. There are indications,

including the satellite photos from Google Maps, that it would not. But even

without reference to those photographs, given that the burden lay with Hill, it

was within the discretion of the ZBA, which had knowledge of the area, to

conclude that he failed to meet his burden based on the evidence that he did

provide, or the lack thereof. See Pine Tree Tel. & Tel. Co. v. Town of Gray,

631 A.2d 55, 57 (Me. 1993) (holding that local board members may rely on

their personal knowledge of the area at issue); Driscoll, 441 A.2d at 1029
 19

(sustaining a local zoning board’s ruling on essential characteristics given the

board members’ familiarity with the neighborhood).11

[¶30] The record as to the environmental impact of the variances also

does not compel the conclusion that the environmental purposes of the

Shoreland Overlay District would be met by allowing a variance from the

wetland setback. See Radin, 516 A.2d at 964 (affirming the denial of a variance

because the applicant did not demonstrate that the purposes of the setback

requirement were not advanced by their application to her lot).

[¶31] In support of his application, Hill submitted a copy of the DEP’s

approval of the requested setback under the NRPA. As that approval expressly

provides, however, that approval did not verify compliance with the Town’s

shoreland zoning ordinances, and the ZBA was free to determine that a larger

setback was required, supported by record evidence regarding neighborhood

flooding issues.

[¶32] Setbacks prevent overcrowding on substandard lots and maintain

vistas. Given the language in the Ordinance establishing allowed setbacks by

11The characterization of uses is a mixed question of law and fact, subject to deference on appeal.
Jordan v. City of Ellsworth, 2003 ME 82, ¶ 9, 828 A.2d 768 (“[W]e review the interpretation of the
ordinance de novo, but we afford the ZBA’s ultimate characterization of the structure substantial
deference.”).
20

averaging existing setbacks, see supra n.2, the grant of a variance here would

further erode the setback required for any further development in the area.

This lot sits on the edge of a wildlife refuge, with wetlands intruding into a good

portion of the lot. The ZBA was not compelled to determine that no further

reduction in setback requirements was warranted in order to maintain the

environmentally sensitive values of the locality.12

The entry is:

The judgment of the Superior Court is vacated.
Remanded for entry of a judgment affirming the
decision of the Town of Wells Zoning Board of
Appeals.

12As noted in Sawyer Env’tl Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, ¶ 18,
760 A.2d 257, a primary function of variances, aside from avoiding arbitrary limits on property use
unwarranted by the zoning scheme, is to avoid confiscation. See also 2 Anderson’s American Law of
Zoning § 13:1 (Patricia E. Salkin ed., 5th ed. 2021) (stating that variances are “escape hatches”). One
of the statutory criteria for granting a variance is that the party seeking the variance must prove that
the property “cannot yield a reasonable return unless a variance is granted.” 30-A M.R.S.
§ 4353(4)(A). We take no position as to whether Hill’s inability to build the residence he seeks to
build absent a variance provides a viable ground for a regulatory taking claim but note that the ZBA’s
finding that this variance criterion was met—a finding that neither the Town nor Hastings
appealed—was based on an incorrect legal conclusion that the criterion is met whenever a property
owner cannot build a residence absent the variance. See Toomey v. Town of Frye Island, 2008 ME 44,
¶¶ 17-18, 943 A.2d 563.
 21

Keith P. Richard, Esq. (orally), Libby O’Brien Kingsley & Champion, LLC,
Kennebunk, for appellant Bradley Hastings

Alan E. Shepard, Esq. (orally), Shepard & Read, Kennebunk, for appellee Kevin
J. Hill

York County Superior Court docket number AP-2019-18
FOR CLERK REFERENCE ONLY