DURHAM – Superior Court Justice Ellen Gorman has ruled in favor of the town in the second part of a land-use suit brought by Jeffery and Rhonda Merrill of Freeport.
“This is good news from our standpoint,” town attorney Curtis Webber said, “but the bad news is that the attorney for the Merrills has filed Notice of Appeal to the Maine Supreme Court.”
Attorney Frank Chowdry confirmed Tuesday that he has filed a Notice of Appeal to the Maine Supreme Judicial Court on behalf of the Merrills.
According to court documents:
The Merrills bought a 2-acre parcel off Snow Road with a slab foundation, burned-out house, leach bed, driveway and well, in 1998. They were issued permits to build a house in 1999.
However, they did not begin construction within the time mandated by Durham’s land use ordinance, and the permits expired. In 2000, they sought a permit extension, but Code Enforcement Officer Dan Feeney denied the application.
A subsequent application in 2003 to build a single-family house was denied by Feeney because the lot lacked frontage on a town road.
The Merrills took the case to the Board of Appeals, citing “major procedural problems” with Feeney’s handling of their request. The board upheld Feeney’s decision in 2004, 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.
The town ordinance for back lots requires, among other things, that they comprise at least 5 acres with specific right-of-way dimensions.
The couple appealed to Cumberland County Superior Court and Gorman upheld the board.
The Merrills amended their suit, contending that the impact of the town’s regulations made the land unbuildable and they were entitled to compensation.
Gorman disagreed, saying the “town treated the lot as a buildable lot through 1999, despite its lack of road frontage, and despite the lack of specific deed language required by the ordinance. It also permitted an extension of the deadline for rebuilding nonconforming structures after a fire.
“After the Merrills failed to take advantage of these windfalls by constructing a residence on the property, the town correctly refused all further attempts to treat a nonbuildable lot as a buildable one,” Gorman ruled.
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