Facts
Shackford & Gooch, Inc., et al. opposed B & B Coastal Enterprises, Inc. being issued a building permit for Bartley’s Dockside Restaurant, which it operates. There is also an appeal to a judgment made by the Superior Court in York County allowing the Kennebunk Zoning Board of Appeals to permit B & B Coastal Enterprises to construct and utilize a deck on its restaurant’s roof. The Coastal Enterprises filed cross-appeals to challenge a judgment that indicated that the Zoning Board of Appeals was estopped from implementing its decree. The appeal made to the Superior Court was granted by the Supreme Judicial Court of Maine while also denying the cross-appeal filed by B & B Coastal Enterprises.
Issue
Is the Kennebunk Zoning Board of Appeals estopped from enforcing an ordinance indicated by Dockside in its cross-appeals?
Brief Answer
Yes.
Reasoning
The board is not stopped from enforcing the ordinance since it is only required to issue a variance if the applicant can prove unusual difficulties or specific hardship. Undue hardship can be established using four points that Dockside had to demonstrate for the variance to be granted. However, Dockside could not prove the first three requirements to portray hardships. The only estoppel element that applies, in this case, is the sensibleness of Dockside’s reliance (Shackford & Gooch, Inc. v. Town of Kennebunk, 1984). Under the zoning ordinance, an inspector cannot issue a building permit without accompanying it with a written application. In this case, the communicated permission issued by an inspector to Dockside cannot be considered as sensible reliance. Such unauthorized acts cannot be used while estopping the municipality. This shows that the Kennenbunk Zoning Board of Appeals cannot be stopped from enforcing the ordinance against Dockside since the permit was granted without a written application.
Reference
Shackford & Gooch, Inc. v. Town of Kennebunk, 486 A.2d 102 (Me. 1984).