Gene Libby and Tyler Smith of Libby O’Brien Kingsley & Champion successfully defended an appeal in a land use case before the Maine Supreme Judicial Court in Campbell v. City of South Portland, 2015 ME 125.
Our client owns a parcel of land in South Portland. In 1973, a prior owner obtained a dimensional variance allowing for the construction of a single family dwelling on the lot, which contained less than the then-required minimum lot size of 5,000 square feet under the zoning ordinance. The City of South Portland recently issued a building permit based upon the continuing effectiveness of the 1973 variance.
Several neighbors challenged the permit, arguing that the 1973 variance is no longer effective given the passage of time. Attorneys Libby and Smith argued that the 1973 variance remains effective, and that the authorities relied upon by the neighbors were not on point because they dealt with use variances, not dimensional variances. The Court agreed, noting in its decision that the 1973 variance results in the lot being treated as one of 5,000 square feet, and that the ordinance under which the variance was granted does not place any temporal limitations on the time to exercise the variance. The judgment of the Superior Court, which likewise agreed that the 1973 variance remains effective, was affirmed.