Maine Zoning and Land Use Advocacy

March 12th, 2013
     In our experience, real estate and zoning disputes rank second only to divorce and
family matters in terms of the emotion and passion that our clients (and the opposing
parties) bring to the table. Real estate is a very large investment for most people and
their expectations regarding privacy (keeping things the way they were/are) on the one
hand and their ability to develop as they see fit on the other can be very high. Cutting
through this emotion and focusing on the legal issues is our job. Whether we are
representing a developer seeking assistance with the permitting process and dealing with
“noisy neighbors” or a property owner who is concerned about monitoring or defeating a
nearby construction project, we pride ourselves on being able to give solid advice based
on years of experience.

     The first step is to establish realistic expectations. Property owners seeking
permitting approvals need to understand that there are limits as to what can and can’t be
done with land given the regulations applicable to their specific parcel. For example,
the fact that you have the legal right to operate a restaurant or a golf course on your
property does not mean that you can ignore traffic, parking, storm water control and other
legitimate legal concerns of permitting authorities and neighboring property owners.
Conversely, clients seeking to oppose or raise objections to development proposals
must take care to focus on the legal issues and avoid NIMBY (Not In My Back Yard)
syndrome. No amount of advocacy can change the fact that a property abutting yours
is zoned for use as a driving range, for instance, but by the same token, it is reasonable
to expect that limitations can be placed on that use if the right approach is taken in
presenting objections. The key in both instances is to have a very detailed understanding
of the “rules of the game” and then develop a plan to effectively advance the client’s

     Our firm specializes in representing clients before municipal boards (and some
state agencies) on a wide range of land use and zoning matters. Both partners have
extensive experience representing developers of real estate ranging from condominium
developments to subdivisions to golf courses, and we also represent abutters seeking to
object to or monitor such projects. Our practice includes representing clients before local
planning boards, tax assessment review boards, zoning boards of appeal, boards of
selectmen and city councils. We strive to maintain good working relationships with the
code and planning departments in virtually all York County municipalities. We also
represent the Towns of Berwick and Lebanon (and thus cannot accept legal work
concerning officials and boards in those municipalities).

Overview of the Zoning Process

     All property owners in Maine are subject to local and state regulation with regard
to what they can and can’t do with their property. Each municipality has adopted a
zoning ordinance (sometimes known as a land use code) and, before proposing many
changes to the use of land, property owners must assure that they are in compliance with
these laws. Coastal properties present a unique set of circumstances, usually involving
oversight by the Maine Department of Environmental Protection and sometimes federal
agencies. It is important to have a good working knowledge of the details and intricacies
of the applicable laws and regulations. While many are similar, there are always specific
provisions that vary from town to town. In particular, the ability to build or expand on
non-conforming uses, properties, or buildings can be complicated and each
municipality’s regulations must be reviewed carefully.

     Many municipalities require the merger of substandard non-conforming
lots if they are titled in the same name. Without proper planning, this can create
significant difficulties for clients wishing to maximize the development potential of their
properties. Development proposals are usually required to receive municipal review by
one or more of the following: code enforcement office, planning department, planning
board, zoning board of appeals, and site plan review board. Some municipalities
consolidate these processes but many have separate boards, each with its own set of
bylaws, rules and regulations. Whether we represent a developer/property owner looking
to install a new use or a concerned abutter looking to stop a project or make sure that the
rules and regulations are followed properly, the process is similar. It is first important to
look at the specific development plan and compare it to the relevant local, state and
federal ordinances and regulations. Occasionally, clients will seek to develop uses that
are not currently permitted in a given zoning district and, in those instances, it is
necessary to explore the process of changing the zoning regulations in the municipality.
This adds another level of legal review and usually involves petitioning the town for a
zoning amendment, often times requiring full voter approval.

For Developers of Property

     In representing clients who seek to develop or redevelop property, the first step is
to review and discuss the nature of the proposal, and then schedule a meeting with the
appropriate local official(s) in the planning department or code office in the municipality.
The relevant legal issues should be identified at this initial attorney-client meeting and a
decision made as to how much, if any, additional expert involvement may be needed.
Simple conversions of existing buildings to the condominium form of ownership often
require little more than a stamped survey with architectural renderings, but more
complicated proposals such as new subdivisions and commercial developments will
require engineering, storm water and other technical expertise. We prefer to have
involvement at the ground level in order to properly advise clients, but often times our
advice is requested at other points in the process. Once a plan is developed for the
development proposal, a decision will be made with the client regarding who is the best
person to present the project to the relevant reviewing municipal authorities. Often times
the architect or engineer is the best “point person” with legal counsel either present or on
the sidelines monitoring the process.

For Concerned Neighbors or Abutters of Development Proposals

     For those clients seeking representation monitoring or objecting to development
proposals, we have a similar approach. It is first important to review the precise details
of the proposal itself, preferably before the plans are presented in public to a planning,
site review, or other board. At that initial meeting, legal issues can be flagged and a
decision made as to whether additional expert advice may be needed. Depending upon
budgetary constraints, we often advise clients in these situations to hire their own
engineers (for instance traffic engineers) whose testimony can be presented in person by
the expert or through written submissions at the appropriate board hearings. Our level of
involvement in representing abutters and neighbors is driven by an honest discussion
regarding budget. Often times we will provide legal advice to clients who go on to
represent themselves before boards, thus avoiding the expense of having us physically

For Individuals Seeking Representation In Miscellaneous Municipal Matters

     Clients often come to us with requests to represent them in pursuing variances or
other land use permits for their individual residences. Setback issues are often presented
(whether from the ocean, a lake or pond, or a wetland) and we are engaged to assist in the
process of obtaining the desired permits. In a similar vein, we are often asked to review
tax assessments and advise clients regarding the advisability of pursuing an abatement.
In these cases, it is important to have a very clear understanding of the facts pertaining to
each particular property prior to meeting with the appropriate local official. At times,
presenting information in an organized and professional way can avoid the necessity of
having to appear before a Board to plead one’s case. In the case of abatement requests,
clients must be prepared to commission appraisals and present that evidence to the tax
assessor or board of assessment review. Variances and other land use requests for single
family residences often require the services of an architect or other expert to provide
sufficient detail regarding the property and establish the components of hardship under
Maine law (not an easy prospect, by the way). In the end, it is up to the client/
homeowner to make a decision as to whether it is more cost effective to take our advice
and proceed to the appropriate board themselves or hire us to do so on their behalf.
These are matters which we openly discuss with clients early and often.

The Appeal Process

     All municipal decisions in the land use review process are appealable under
Maine law. From a simple decision by a code enforcement officer issuing a building
permit to a planning board decision approving a major subdivision, the appeal process is
well prescribed under local ordinances and Maine statutory law. In the case of a building
inspector or code enforcement officer’s decision, the route of appeal is first to the local
zoning board of appeals (sometimes called the board of adjustment). That board will
review the initial decision and issue its own findings affirming, denying or modifying it.
From there, interested parties have the legal right to appeal to the Maine Superior Court
following the Maine Rules of Civil Procedure. That process involves the parties agreeing
on an official record and then submitting written briefs to a single Justice of the Superior
Court, whereupon the matter is scheduled for oral argument. After an oral argument and
a decision by that Justice, there is one final appeal available to the Maine Supreme
Judicial Court, where a similar process of compiling a record and filing briefs is followed.
     In our role representing municipalities, both partners have defended many land
use cases in the Court system, giving us that unique perspective. A working knowledge
of the appellate system from all these angles (developer, abutter, and municipality) is
critical, as decisions made from the very earliest time of representation should have
the end of the process in mind. Cases often rise and fall on the adequacy of the official
record and local municipal boards and officials cannot necessarily be relied upon to do a
thorough job. It is important that findings of fact and conclusions of law be specifically
articulated in the right way (from the client’s perspective) so that the groundwork for the
legal review process is properly laid.