DURHAM – A Superior Court judge has upheld a ruling by the Durham Appeals Board, which denied a building permit to a Freeport couple because of a lack of town road frontage.
Jeffrey and Rhonda Merrill, the owners of a 2-acre parcel off Snow Road, sued the town, alleging the Appeals Board had committed “errors of law” in its interpretation of local ordinances.
Superior Court Justice Ellen A. Gorman ruled late last month that the Durham Appeals Board was correct in denying the permit. However, the civil suit brought by the Merrills also alleges that they have lost the use of their land and are entitled to be paid for it. That portion of the suit has yet to be decided.
According to court documents:
The Merrills bought the property, which included a slab foundation, the burned-out skeleton of a house, a leach bed, a driveway and well, in 1998. They were issued permits to build a house in 1999.
However, they did not begin construction within the time limits mandated by Durham’s land use ordinance, and the permits expired. In 2000, they sought to extend their permits, but Code Enforcement Officer Dan Feeney denied the application.
A subsequent application to build a single-family house, filed by the Merrills in 2003, was denied by Feeney in May 2003, citing the lot’s lack of frontage on a town road as the basis for the denial.
The Merrills filed an appeal with the town’s Board of Appeals. Their lawyer, Frank Chowdry of Portland, argued that there were “major procedural problems” with Feeney’s handling of the Merrills’ request.
In July 2004, the board upheld Feeney’s decision, noting that the lot had no frontage on a town road and was therefore a back lot as defined in the town’s land use ordinance when the Merrills bought the property.
Not over yet
Although the town prevailed in the first part of the suit, it isn’t settled yet.
According to the town attorney, Curtis Webber of Auburn, the second part of the case will be heard by a judge or a jury. No date has been set.
In that portion, the plaintiffs contend that because of the Board of Appeals denial, they can now expect no reasonable use of their land, that the town, in effect, has taken their land, and they are entitled to be paid for the value.
The town ordinance for back lots requires, among other things, that they comprise at least 5 acres with specific right-of-way dimensions.
Chowdry said in an interview that the impact of the town’s regulations made his clients’ land “unbuildable,” and that the town had “taken” the Merrills’ land “without just compensation.”
According to the lawsuit, the town’s denial of a hardship variance deprived the Merrills of a “reasonable return” on their property and violated their constitutional right to just compensation.
A Town Office spokesman estimated the cost of the suit so far at between $6,000 and $8,000. If the town prevails in the second portion, the ruling would not include recovering attorney’s fees.
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