George and Nancy Driscoll sit on their back deck of their Oceanside Drive home in Saco which overlooks the ocean.
“That was supposed to be our 401k,” said Nancy, pointing to a swath of undeveloped land next to the house.
In 1980 the couple acquired lots 200 and 201 of the Kinney Shores subdivision. The subdivision, established in 1914, created a seashore neighborhood of 50 foot by 100 foot lots between Seaside Avenue and the beach.
The two original subdivision lots sat side by side on Oceanside Drive. One has a home on it, where the Driscolls spend their summers, and the other lot is empty.
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The retired couple said they planned to sell the vacant property next to the home, and use the money toward their retirement. In 1986, the couple put the vacant property in Nancy’s name, and the other piece with the home on it remained in both their names.
In 2009, the couple submitted a building permit to the city, seeking to acquire a building permit for the vacant portion of the property.
The codes enforcement office denied the building permit, as the city had merged the two lots because individually they did not meet modern zoning standards. Although there are a number of nonconforming lots in the city, city subdivision standards in 1972 state that two abutting, nonconforming lots under the same owner must be combined to meet modern standards.
The Driscolls say they were receiving two tax bills – one for each of the original subdivision lots- until 2015.
“All we want is the right to sell our lot,” said George Driscoll.
The Driscolls took the matter to the city’s zoning board of appeals, then to Superior Court and on to the State Supreme Court, all of which ruled that under the city’s zoning laws, the two lots were merged.
City Attorney Tim Murphy said in a 2015 email to city officials said the ruling would not bar the Driscolls from seeking an amendment to the city’s ordinance through a contract zone, though it would be up to the city whether or not it would be granted.
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A contract zone grants a change of zoning classification for a property or group of properties.
In 2015, the planning board, and then the city council denied the Driscolls a contract zone.
The Driscolls are reapplying for a contract zone, and the matter was scheduled to go before the planning board on Oct. 3, but due to lack of a quorum, it will instead be seen on Oct. 17.
Contract zone must provide a benefit to the city, and the Driscolls say should the city grant them the contract zone, and the empty space is developed, the city would receive more tax revenue.
Local attorney Sandra Guay wrote to the city council in October of 2015 as “a citizen of Saco” stating that she thought the contract zone should not be granted.
In her letter, Guay said the stated purpose of the Driscoll’s contract zone application in 2015 was to “clarify” that they own two separate lots. Guay states that clarification is not a permissible purpose or reasoning for a contract zone, and there is nothing that needs clarification, as the zoning board of appeals and the courts have decided that lots have merged into one.
“My concern therefore is that in amending the zoning ordinance by granting a contract zone to the Driscolls, which in effect merely provides them the variance that they had sought and were already denied by both the city and the court, the city risks the integrity of the zoning ordinance, and creates a situation whereby it will be difficult for the city to continue to enforce that ordinance equally and non-arbitrarily among all property owners,” wrote Guay.
City Councilor Kevin Roche, who represents Ward 4, covering Oceanside Drive, has been a strong advocate for the couple.
In order to be granted a contract zone, certain criteria must be met, including uniqueness of the property. Roche said he feels the property is unique because there are not many vacant seaside lots available. “It sticks out like a sore thumb,” he said.
Roche said because the Driscolls are in a unique situation, and therefor if they were granted a contract zone, it would not create a barrage of residential contract zone requests to the city.
Also adding to the uniqueness is that the Driscolls have been on the frontline when it comes to combating beach erosion, said Roche. The Driscolls installed a seawall and have planted and maintained dune grass behind their home. The couple lives in the basement during the summer while the rest of the house is rented out, and despite the close proximity to the ocean, Nancy Driscoll said they have seen “not a drop” of water in the basement.
“It’s a pinnacle example,” said Roche.