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					                                     MONAGHAN LEAHY, LLP
                                              ATTORNEYS AT LAW



THOMAS G. LEAHY
KEVIN G. LIBBY                                                                          95 EXCHANGE STREET
CHRISTOPHER C. DINAN                                                                         P.O. BOX 7046
MICHAEL H. HILL                                                                          PORTLAND, MAINE
JOHN J. WALL, III                                                                              04112-7046
KENNETH D. PIERCE
CORNELIA FUCHS FISHER
NOAH D. WUESTHOFF                                                                        TEL 207-774-3906
CAROL G. McMANNUS                                                                        FAX 207-774-3833
ELIZABETH A. MOONEY
RACHEL L. BOUCHARD
                                                                                    mhill@monaghanleahy.com
                                                          April 9, 2001
THOMAS F. MONAGHAN
    OF COUNSEL




      Michael McGovern, Town Manager
      Town of Cape Elizabeth
      320 Ocean House Road
      Cape Elizabeth, Maine 04107-0060

      RE:      Proposals to amend the conforming lot section of the Ordinance

      Dear Mike:

             This letter will outline five proposals to amend the nonconforming lots section of the
      Ordinance found in Section 19-4-3. While there are probably innumerable which could be
      created, the five presented below appear to be the basic options for the Town Council to
      consider, but are not meant to be exhaustive.

              The first proposal was prepared by Paul Vose, second is the Planning Board's
      recommendation, the third would allow undersized lots held in separate and distinct ownership to
      be developed but requires a merger of lots held in common ownership, the fourth proposal would
      allow the development of lots held in separate and distinct ownership and not require the merger
      of nonconforming lots, and the fifth proposal would be to essentially return to the pre-1997
      ordinance. Before addressing each proposal, I have some overall comments regarding zoning
      amendments.

              The issue to be focused upon with any zone change is whether the proposed zoning
      amendment is in basic harmony with the Town’s Comprehensive Plan. Zoning amendments are
      legislative actions, which may be reviewed by a court to determine whether the legislative body
      could have determined that the amendment was in basic harmony with a comprehensive plan.
      The Law Court would not substitute its judgment for that of the legislative body, and the burden
      of proving that the challenged amendment was inconsistent with a comprehensive plan would be
      on the challenger. See F.S. Plummer v. Town of Cape Elizabeth, 621 A.2d 856 (Me. 1992);
      LaBonta v. City of Waterville, 528 A.2d 1262 (Me. 1987).

             Therefore, the Town Council should focus its attention on the 1993 Comprehensive Plan,
      which has several stated goals including to protect scenic areas, preserve open space, and to
April 11, 2001
Page 2


direct future growth to areas best suited for development. There are growth areas depicted on the
map at page 20 of the Comprehensive Plan. It is a stated goal in the text to have 15% of the
expected growth from existing neighborhoods. It would be up to the reasonable discretion of the
Town Council to determine whether any proposed amendment was in basic harmony with the
Comprehensive Plan. Reasonable minds will differ as to whether an amendment is in basic
harmony with the Comprehensive Plan and we believe that the options contained herein would
be sustained by the Maine courts.

Mr. Vose's Proposal

       Mr. Vose's proposed Zoning Ordinance Amendment ("the Vose Amendment") reads as
follows:

               Notwithstanding the minimum lot area requirements applicable to lots
       with on-site sewerage disposal, the Code Enforcement Officer may issue permits
       in the case of an otherwise qualifying lot of record in the RA Zone which contains
       a minimum of 10,000 sq. ft., provided such lot received both a State of Maine
       minimum lot size waiver and received a Cape Elizabeth Public Access Waiver
       prior to August 11, 1999.

        I have made a couple of changes to the Vose Amendment as outlined above and
have underlined the changes I have made to the text. Since it is the opinion of this office
that the implementation of the 1997 Zoning Ordinance was the date upon which an
applicant lost the ability to develop an undersized lot with a State of Maine minimum lot
size waiver, we would suggest that the August 11, 1999 date be changed to June 4, 1997.

        As I am sure you and the Town Councilors are aware, the Vose Amendment is
limited in scope and, as far as I know, would only apply to Mr. Vose. While the Vose
Amendment is "spot zoning" it is not illegal spot zoning. The Maine Supreme Judicial
Court has stated that spot zoning is not illegal simply because it "benefits only a
particular property or is adopted at the request of a particular owner for that owner's
benefit." Vella v. the Town of Canton, 667 A.2d 1051, 1054 (Me. 1996). By contrast,
spot zoning would be illegal if it singles out a small parcel of land for a "use
classification totally different from that of the surrounding area, for the benefit of the
owner of such property, and to the detriment of other owner's." Id. (emphasis added,
citations admitted).

The Planning Board's Recommendation

        I will not repeat the Planning Board's recommendation here. In summary, it
essentially preserves the status quo of the current ordinance. It does not make any
substantive changes except for the removal of the distinction between lots in a
subdivision and lots which are not part of a subdivision. The recommendation also
attempts to make the existing ordinance provisions easier to understand with some
diagrams showing different examples.
April 11, 2001
Page 3



        Under current ordinance there is a lot merger provision which requires only lots
not part of an approved recorded subdivision plan to be merged to the "extent necessary
to meet the Space and Bulk Standards of the district" in which the lots are located. The
Planning Board's recommendation removes the distinction of subdivision lots and non-
subdivision lots by removing any lot merger requirement. Town staff's research has
shown that most nonconforming lots are indeed subdivision lots which under current
ordinance would not be required to merge.

Reduction in buildable lot size, require merger of lots

        The Town Council could also amend the ordinance to reduce the minimum lot
size of nonconforming lots served by on-site septic systems to 10,000 sq. ft. and require
the merger of lots. A minor change could be made to the existing chart found in Section
19-4-3A.1.a by reducing the existing 20,000 sq. ft. requirement to 10,000 sq. ft. if on-site
sewage disposal is applicable. The merger provision could remain unchanged and thus
require merger of non-subdivision lots.


Reduction in buildable lot size, no merger of lots

        The Town Council could also amend the ordinance to reduce minimum lot sizes
nonconforming lots served by on-site septic systems to 10,000 sq. ft. and not require the merger
of lots. This would involve minor change to the existing chart found in Section 19-4-3A.1.a by
reducing the existing 20,000 sq. ft. requirement to 10,000 sq. ft if on-site sewage disposal is
applicable. The Town Council could then remove the merger provision found in 19-4-3A.1.b.,
as recommended by the Planning Board.

Return to Pre-1997

        A final suggestion is to simply amend the Ordinance to put back the reference to the
applicability of the State Minimum lot size Statute with a further caveat that in no event shall the
minimum lot size be reduced below 10,000 sq. ft.

        The State Minimum lot size Statute applies to all land within the State of Maine. In the
event that a local municipality passes a minimum lot size ordinance which is more restrictive
then the State Minimum Lot Size Statute, the more restrictive local provision applies. It would
be possible to put into the Cape Elizabeth Ordinance language regarding the State Minimum Lot
Size Waiver, but further restrict the lot size to an absolute minimum of 10,000 sq. ft.

     I hope that this letter is helpful to the Council in focusing their discussions on possible
amendments to the nonconforming lot section of the Ordinance.
April 11, 2001
Page 4




          If you have any questions, please do not hesitate to give me a call.

                                                          Very truly yours,

                                                          MONAGHAN LEAHY, LLP




                                                          Michael H. Hill

MHH/jp



S:\M\MDD\C E\Letters of Advice\Ltr. McGovern 4-9-01.doc

				
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