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Lewis v. Maine Coast Artists, attorneys and footnotes

Attorney for plaintiffs:

John C. Bannon, Esq., (orally)
Murray Plumb & Murray
P O Box 9785
Portland, ME 04014-5085

Attorneys for defendants:

Clifford H. Goodall, Esq.. (Orally)
Dyer Goodall and Federle LLC
61 Winthrop Street
Augusta, ME 04330
(for Maine Coast Artists)

Paul L. Gibbons, Esq.
Gibbons & Calderwood, L.L.P.
P O Box 616
Camden, ME 04843
(for Town of Rockport)
FOOTNOTES******************************** {1} . Charles P. and Dorothy Neidig, parents of Lewis, are additional appellants. They rent land owned by Lewis. {2} . The Town of Rockport, a defendant in a previous appeal in the case between these same parties, see Lewis v. Town of Rockport, 1998 ME 144, 712 A.2d 1047 (Lewis I), and in this action when it was before the Superior Court, did not join in this appeal from the decision of the Superior Court. {3} . The court declared Lewis the owner of part of what had been MCA's property after Lewis successfully proved that she acquired title by adverse possession. {4} . The Superior Court did not address the extent of the violations that exist because it found that MCA was completely barred from relying on the first permit as authority to make the construction changes. {5} . MCA raised in its brief to this Court in Lewis I that the first permit was still valid because Lewis did not properly challenge it, and she could therefore not appeal the approval of the site plan review based on the validity of the issuance of the first permit. We specifically did not address the validity of the first permit in Lewis I. Lewis I, 1998 ME 144, ¶ 7 n.2, 712 A.2d at 1049 n.2. {6} . The second permit allowed an increase in the size of the permitted addition for the elevator and stairwell, and for the gift shop area. It also increased the floor area with renovations by 100 square feet and allowed for the completion of the basement area for utility and studio space. {7} . The Land Use Ordinance adopted in 1974 and in effect when the first permit was issued provided: "The permit must be exercised within 6 months and the permit expires 24 months after issuance. Permit may be renewed subject to the provisions of this Ordinance for an additional 24 months." The 1992 Shoreland Zoning Ordinance in effect when MCA received the first permit required that any person who will "expand, change, or replace an existing use or structure" shall first obtain a permit. In addition, "if no substantial start is made in construction or in the use of the property within one year of the date of the permit, the permit shall lapse and become void." The new Shoreland Zoning Ordinance put into effect in 1997 also requires a permit for changes and provides that a permit will lapse and become void "if no substantial start is made in construction or in the use of the property within one year of the date of the permit." {8} . The current Rockport Building Code in effect when the second permit was issued reads: §108.2: Any permit issued shall become invalid if the authorized work is not commenced within six months after issuance of the permit, or if the authorized work is suspended or abandoned for a period of six months after the time of commencing work. §108.3: This code shall not require changes in the construction documents, construction or designated use group of a building for which a lawful permit has been heretofore issued . . . and the construction of which has been actively prosecuted within 90 days after the effective date of this code is completed with dispatch. {9} . The Superior Court concluded that the first permit was invalid, and it never reached the issue of whether the measurements were properly made by the CEO. {10} . It is possible that measurements to determine setbacks made from the boundary, as determined by the court in the adverse possession action, may result in nonconformities with the zoning laws beyond those authorized by the first permit. The court, in considering remedies and sanctions, should take into consideration that the unchallenged first permit was issued prior to the declaratory judgment that declared the newly established boundary. {11} . Section 505 of the 1997 Land Use Ordinance provides: Upon approval of the Zoning Board of Appeals, a nonconforming aspect of a lot, structure or use may be changed such that it is less nonconforming or no more nonconforming than the existing situation. {12} . Section III(E) of the 1994 Land Use Ordinance of Rockport, pertinent to the first permit, reads: "a nonconforming aspect of a lot, structure or use may be changed such that it is less nonconforming or no more nonconforming than the existing situation." {13} . Lewis also claims a discrepancy in the distance between the rebar and the MCA building roof overhang as illustrated by the sketches prepared by her own surveyor and by the Town's surveyor. The CEO should measure the violations from a precise and accurate sketch plan.

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