APPLETON, Maine — A state judge has rejected a request by the town to kill a lawsuit filed by neighbors embroiled in a permit despite for a house built in 2009.
Justice Jeffrey Hjelm ordered the long-controversial issue of a two-story house on a tiny lot to return to the Appleton Zoning Board of Appeals.
“I’m not surprised. The judge is upholding the town’s ordinances and trying to help the town do the same,” said Lorie Costigan, a neighbor involved in the lengthy legal battle.
The more than 4-year-old battle centers on the issuance of a building permit by the Appleton code enforcement officer in May 2009 to Appleton Ridge Construction LLC to construct the house on a 0.18 acre plot.
Adjacent neighbors, Paul and Rita Gagnon and Patrick and Lorie Costigan, challenged that permit, claiming the lot, on 99 Searsmont Road, was too small for a two-story house and too close to the public right-of-way.
Jacob Boyington, owner of Appleton Ridge Construction, built the house despite the challenge by his neighbors.
Hjelm vacated that permit in a February 2011 ruling.
The code officer rescinded the permit and instructed Boyington to remove the house, or find a way to get a permit legally. Boyington then filed for a variance from the town’s zoning board.
The appeals board issued a variance in November 2011 to Appleton Ridge from the town’s minimum setback requirement. The neighbors then challenged that decision.
The town asked the judge to throw out the neighbors’ challenge, saying they did not have legal standing. Hjelm ruled, however, that the Gagnons and Costigan have standing because the development would impact them.
The judge said the house’s proximity to the road could impact traffic flow and visibility for those neighbors and impinge their land use.
Justice Hjelm sent the matter back to the zoning board because the board did not issue a written findings of fact to support the issuance of the variance. The judge said those findings are insufficient to allow for a meaningful review on whether the variance should be upheld or overturned by the court.
A telephone message was left with Boyington on Thursday morning.
Boyington purchased the property from the town at a public auction in August 2008. The town had acquired the property in 2005 through nonpayment of property taxes. Boyington removed a mobile home on the property in the spring of 2009 before getting the permit and building the house.