Maine supreme court sends land-use dispute back to Harpswell appeals board

Posted July 11, 2012, at 6:51 p.m.

HARPSWELL, Maine — A land-use dispute that wound its way all the way to the Maine Supreme Judicial Court will go back to the Harpswell Board of Appeals after a Law Court decision issued Tuesday.

At issue is access to the shoreline from a subdivision in Harpswell. According to court documents, the land deeds for everyone in the subdivision state that there are two access routes to the shore, one of which goes across land on Reed Cove Road owned by David F. and Jeannette A. D’Alessandro.

In 2009, the D’Alessandros obtained ownership of a 40-foot-wide strip of land adjacent to their lot that, according to the deeds and a subdivision plan that dates to 1962, has an easement across it for shore access by other residents of the subdivision. The second shore access point is located more than 400 feet away in another portion of the subdivision.

Beginning in the mid-1980s, there was an undeveloped path and a ladder down a steep bank on the D’Alessandros’ land. The D’Alessandros removed the ladder in August 2009 and in February 2010, several of the other subdivision landowners filed a land-use permit application to install a seasonal, aluminum, 3-by-4-foot access platform and 3-by-12-foot stairway to allow access over the D’Alessandros’ property and down a bluff to the shore below. The town issued the building permit in May 2010, which the D’Alessandros contested to the town’s appeals board. At the same time, they sought and obtained a permit to install a stairway at the other shore access location outlined in the deed.

In July 2010, the appeals board denied the D’Alessandros’ appeal and the D’Alessandros in turn took the case to Cumberland County Superior Court, which affirmed the local appeals board’s decision. The D’Alessandros then took the case to the Maine Supreme Judicial Court.

“The D’Alessandros argue that because they successfully obtained a permit for and installed a set of stairs on the other shore access location, that set of stairs provides a ‘reasonable access alternative’ that as a matter of law precludes the granting of a permit for the proposed second set of stairs on the easement across their property,” reads the supreme court decision. “… the [Harpswell Appeals Board] erred because it failed to make a finding as to whether there is not a reasonable access alternative.”

The D’Alessandros have argued that a provision in the Harpswell shoreland zoning ordinance, which was enacted in 1992 and amended several times since then, allows for only one shore access in their subdivision. The board of appeals ruled against them on the basis that the original 1962 subdivision plan and the landowners’ deeds specify that there should be two access points.

Essentially, the supreme court decision instructs Cumberland County Superior Court to send the matter back to the local appeals board.

Winthrop-based attorney Mary Denison, who represented landowners in the subdivision other than the D’Alessandros, said Wednesday the court order instructs the appeals board to provide more factual basis for its decision. She did not expect the legal process that has unfolded in the past couple of years to change the board’s decision.

“Nobody did anything wrong,” said Denison. “All the court did was said that the finding made by the Harpswell Board of Appeals wasn’t good enough. The court tends to do that with some frequency, especially with municipal boards. I expect that they will make a finding based on evidence that is a little more specific and better articulates their reasoning.”

Denison said she expects the matter to be back before the appeals board within the next several weeks. Judy Metcalf, an attorney representing the D’Alessandros, could not be reached Wednesday afternoon for comment.

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