APPLETON, Maine — A house that was built despite a legal challenge by neighbors may have to be moved or demolished after a judge ordered the town to revoke a building permit issued five years ago.
Justice Jeffrey Hjelm ruled Monday that the town’s Zoning Board of Appeals erred in granting a variance to Appleton Ridge Construction and its owner, Jacob Boyington. Neighbors challenged the variance and building permit that allowed construction of the house.
Boyington said this week, however, that he does not expect the house will have to be torn down or removed. But he added he wasn’t sure what his options were.
“It’s unfortunate that this has gone on so long and cost people time and money. This has been a big nuisance and for what? What is the end result?” the homeowner said.
Under Maine law, a variance from municipal zoning laws cannot be granted based on a hardship created by the applicant. The judge ruled that Boyington created the hardship by buying the lot nearly six years ago knowing it would be difficult to develop. Further, the judge points out that Boyington provided incorrect measurements to the code officer when seeking the building permit; tore down a mobile home that was a non-conforming but permissible building; and constructed the new home while a legal challenge was ongoing.
The new two-bedroom house sits on 0.18 acres surrounded by two farms.
Boyington purchased the lot at 99 Searsmont Road from the town for $4,100 at a public auction in August 2008. The town had acquired the parcel in 2005 when the previous owner failed to pay the property taxes.
The lot is currently assessed by the town at $17,000 and the house at $93,560.
Former code enforcement officer Robert Temple issued Boyington the building permit in March 2009.
Neighbors Paul and Rita Gagnon as well as Lorie and Patrick Costigan, however, challenged that permit, saying the lot was too small for the house to be built on it and and the structure was located too close to the road under existing zoning ordinances.
The 24-by-32-foot home is located 15 feet from the road right-of-way. The town requires buildings to be 25 feet from the right-of-way.
The Costigans and Gagnons first turned to the board of appeals to challenge the granting of the permit. But the panel ruled in June 2009 that it did not have the authority to overturn the action. The neighbors then filed an appeal that same month in Knox County Superior Court.
Despite the pending court challenge, Boyington went ahead and built the house, completing it in 2010.
Then Justice Jeffrey Hjem issued a ruling in February 2011 vacating the building permit and ordering the code officer to rescind it.
Temple rescinded the permit and instructed Boyington to remove the house or find a way to legally receive a permit. Boyington then applied to the municipal zoning board, which granted the variance from the setback requirement in November 2011, again over the objections of the neighbors.
The couples then appealed that ruling to the court. In June 2013, Hjelm did not rule on the merits of the variance but said the zoning board did not adequately explain its reasons for granting the variance and ordered it sent back to the panel to provide what is called “findings of facts.” The judge concluded that the findings previously provided by the board were insufficient for the court to undertake a meaningful review of the town’s action.
The town’s board reaffirmed the variance in September and offered detailed reasons to support its decision. The case was returned to the court with the new information and Hjelm issued his latest ruling on Monday.
The case now could be appealed to the Maine Supreme Judicial Court. Boyington said that he will wait until the town orders him to take action before he decides what to do next.
Back in September, Donald Burke, the chairman of the Appleton Board of Selectmen and an uncle to Boyington said that the legal battle to date had cost the town $25,100. Burke could not immediately be reached for comment on Tuesday.
Litigant Lorie Costigan declined comment on Tuesday, saying she had not yet seen the judge’s order.
The neighbors’ attorney, Patrick Mellor, said Tuesday that he had no comment other than he agrees with the judge’s ruling. Last fall he had indicated that removal of the house was likely if the court sided with his clients.