Maine Supreme Judicial Court rules that variance granted in 1973 remains effective

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.

Gene R. Libby

Gene R. Libby
Partner

Gene has a rich history of litigation experience over the last 30 years. He has tried over 100 civil and criminal jury cases to verdict. His practice focuses on a wide variety of civil and criminal litigation representing individuals and small businesses, including divorce, real estate disputes, small business litigation, elder law, personal injury, professional… Read more »

Tyler J. Smith

Tyler J. Smith
Associate

Tyler J. Smith joined Libby O’Brien Kingsley & Champion as an associate in 2012. His practice includes a wide array of civil litigation and criminal defense matters—ranging from drunk driving defense to employment discrimination to defamation. Tyler is also an experienced appellate advocate. He has handled over 20 appeals, and has argued before the Maine Supreme Judicial Court… Read more »