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Rocheleau v. Town of Greene
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 59
Docket:	And-97-509
 on Briefs:	February 20, 1998
Decided:	March 25, 1998



	[¶1]  William and Lyse Rocheleau appeal from the judgment entered in
the Superior Court (Androscoggin County, Perkins, A.R.J.) affirming the
decision of the Zoning Board of Appeals of the Town of Greene that denied
their request for a variance.  The Rocheleaus contend that the Board
committed an error of law when it determined that because they had
knowledge of the applicable zoning restrictions prior to their acquisition of
the property, any hardship on their part was self-created.  We agree and
vacate the judgment.
	[¶2]  The Rocheleaus acquired an unimproved parcel of land fronting
on Sabattus Lake from William's mother in 1984, and in 1996 they applied
to the Town for a building permit that would allow them to construct a
seasonal cottage on the property.  The Town's building inspector denied the
application because the 4,500 square foot lot did not meet the Town's lot
size, road frontage, and setback requirements as set out in the Town's land
use ordinance.  The ordinance requires a minimum lot size of 40,000 square
feet, a minimum road frontage of 250 feet, a water setback of 100 feet from
the normal high-water line, and a minimum side setback of 25 feet.  The
Rocheleaus' proposed cottage would be set back 50 feet from the lake and
10 feet from the property sidelines.
	[¶3]  The Rocheleaus applied to the Town's Zoning Board of Appeals
for a variance pursuant to 30-A M.R.S.A. § 4353(4) and section 8.3 of the
Town's land use ordinance.  After a site visit by the Board and a properly
noticed hearing, the Board voted to deny the variance.  The minutes from
the hearing reflect that the Board cited our decision in Bishop v. Town of
Eliot, 529 A.2d 798 (Me. 1987), for the proposition that "if the applicant is
a person who bought the lot after the ordinance took effect, he or she is
presumed to have had knowledge of the restrictions on use of the lot which
the ordinance imposes," and reasoned "[f]rom this it seemed to be clear
that Mr. Rocheleau had a 'self-created' hardship."  The Board's written
notice of decision stated in full:

It is noted that the lot does not conform to lot requirements per
the Shorelands Zoning Ordinance section of the Town of Greene
Land Use Ordinance which has been adopted by the Town of
Greene.  The Board did not feel that the Rocheleau application
adequately meets the "hardship" requirements and that indeed
the facts of the case speak to "self-created" hardship on the part
of the Rocheleaus.

The Rocheleaus subsequently filed a complaint for review pursuant to M.R.
Civ. P. 80B, the Superior Court affirmed the decision of the Board, and this
appeal followed.
	[¶4]  When the Superior Court acts as an intermediate appellate court,
we independently examine the record and review the decision of the Board
of Appeals for abuse of discretion, legal error, or findings unsupported by
substantial evidence in the record.  Twigg v. Town of Kennebunk, 662 A.2d
914, 916 (Me. 1995).  A Zoning Board of Appeals may grant a variance from
a zoning ordinance only on a finding that strict application of the ordinance
to the petitioner and the petitioner's property would cause undue hardship. 
30-A M.R.S.A. § 4353(4) (Supp. 1997).  To prove undue hardship a
petitioner must establish the existence of each of the four criteria set out in
section 4353(4):

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

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.

	[¶5]  The Rocheleaus argue that the Board applied an incorrect
standard when it based its denial of the variance on the fact that they had
knowledge of the zoning restrictions at the time they acquired the property,
and therefore any hardship on their part was self-created.  We agree.  In 
Bishop, which the Board cited as its sole authority for denying the
Rocheleaus' petition, we stated that "'when a landowner purchases land
with actual or constructive knowledge of the zoning restrictions, he may not
be granted a variance on the grounds of undue hardship.'"  Bishop, 529 A.2d
at 801 (quoting Sibley v. Inhabitants of Town of Wells, 462 A.2d 27, 31 (Me.
1983)).  In Twigg, however, we reviewed the line of cases that culminated
with Bishop and rejected the broad rule that actual or constructive
knowledge of the restrictions of a zoning ordinance prior to purchase of a
property is tantamount to a self-created hardship, holding instead that such
knowledge is only one factor to be considered in the self-created hardship
analysis.{1}  Because the Board failed to acknowledge Twigg's abrogation of the
self-created hardship rule enunciated in Bishop, its finding that the
Rocheleaus "had a 'self-created' hardship" was based on an error of law and
cannot stand.  Moreover, because we are unable to determine from the
record whether the Board's denial of the variance could be based on the
Rocheleaus' failure to meet any of the remaining undue hardship
requirements, we remand for a redetermination of whether the Rocheleaus
are entitled to a variance.{2}
	The entry is:
Judgment vacated.  Remanded to the Superior Court
with instructions to remand to the Town of Greene
Zoning Board of Appeals for further proceedings
consistent with the opinion herein.

Attorney for plaintiffs: Michael L. Dubois, Esq. Rocheleau & Associates, P.A. P O Box 1918 Lewiston, ME 04241-1918 Attorneys for defendant: Lee K. Bragg, Esq. Joan M. Fortin, Esq. Bernstein, Shur, Sawyer& Nelson, P.C. P O Box 9729 Portland, ME 04104-5029
FOOTNOTES******************************** {1} Knowledge of zoning ordinance restrictions by a purchaser of a nonconforming lot, without more, will hardly ever constitute a self-created hardship. "For years . . . the general rule was that one who purchased property with actual or constructive knowledge of the restrictions of a zoning ordinance was barred from securing a variance." 3 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning, § 38.06[2], at 38-104 (1997). With our decision in Twigg, however, we joined the majority of jurisdictions that have "altogether abandoned or modified [the general rule] into nonexistence." Id. Indeed, the old rule leads to two unintended negative consequences. The rule contravenes "[t]he historical policy of protecting the alienability of real property." Lord v. Society for the Preservation of New England Antiquities, Inc., 639 A.2d 623, 625 n.6 (Me. 1994); see also Strout v. Gammon, 629 A.2d 43, 46 (Me. 1993) (court seeks to ensure the free alienability of land). Few parties will be willing to purchase a nonconforming lot that cannot be developed even when the other variance requirements are met. As a result, the rule encourages otherwise undesired development of nonconforming lots in order to facilitate their sale. {2} This is not the first time we have been presented with a case involving a municipal body's failure to provide adequate support for a decision on the record. "We deplore the fact that the Board in this case did not expressly articulate all the basic facts supporting its decision." Driscoll v. Gheewalla, 441 A.2d 1023, 1026 (Me. 1982). Zoning boards of appeals are in fact required by statute to make adequate findings and conclusions on the record. "All [board of appeals] decisions become a part of the record and must include a statement of findings and conclusions, as well as the reasons or basis for the findings and conclusions, upon all the material issues of fact, law or discretion presented . . . ." 30-A M.R.S.A. § 2691(3)(E) (1996) (emphasis added). Compliance with this statutory requirement will have the complementary effects of facilitating judicial review and enhancing judicial economy.