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City of Bangor v. O'Brian
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MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 1998 ME 130
Docket: Pen 97-633
Submitted
on Briefs: May 11, 1998
Decided: June 2, 1998
Panel: WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.
CITY OF BANGOR
v.
PERRY O'BRIAN
DANA, J.
[¶1] The City of Bangor appeals from the judgment entered in the
Superior Court (Penobscot County, Alexander, J.) affirming the decision of
the Bangor Zoning Board of Appeals granting a zoning variance to Perry
O'Brian. Contrary to O'Brian's contention, the City's appeal to the Superior
Court was timely because the time limit for the appeal is governed by state
statute, not the city's land use ordinance. See 30-A M.R.S.A. § 2691(3)(G)
(1996). Regarding the grant of the variance, we find no support in the
record for the board's findings that the land in question cannot yield a
reasonable return unless a variance is granted, and that O'Brian's plight is
due to the unique circumstances of the property and not to the general
conditions of the neighborhood. See Forester v. City of Westbrook, 604
A.2d 31, 33 (Me. 1992). Because both findings are statutory prerequisites to
obtaining a variance, the grant of the variance was improper. See Driscoll v.
Gheewalla, 441 A.2d 1023, 1029 (Me. 1982); 30-A M.R.S.A. § 4353(4)
(Supp. 1997).
The entry is:
Judgment vacated. Remanded to the Superior
Court for entry of judgment for the City of
Bangor.
Attorney for plaintiff:
Norman S. Heitmann, III, Esq.
John K. Hamer, Esq.
Legal Department
City of Bangor
73 Harlow Street
Bangor, ME 04401
For defendant:
Perry O'Brian, Esq.
107 Columbia Street
Bangor, ME 04401
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