MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2013 ME 26

Docket: Cum-12-371

Argued: January 16, 2013

Decided: March 5, 2013

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and 

JABAR, JJ.

SUMMERWIND COTTAGE, LLC et al.

v.

TOWN OF SCARBOROUGH et al.

JABAR, J.

[¶1] Summerwind Cottage, LLC and Peter and Libby Cassat appeal from a 

judgment entered in the Superior Court (Cumberland County, Mills, J.) affirming 

the decision of the Scarborough Zoning Board of Appeals (ZBA) granting a 

setback variance to abutting property owners in the Higgins Beach neighborhood 

of Scarborough. Summerwind Cottage argues that the Superior Court’s judgment 

should be vacated because the ZBA erred in relying on the Official Shoreland 

Zoning Map to conclude that the property was in the buildable Shoreland Overlay 

District and in concluding that the property met the requirements for a variance. 

We affirm the court’s judgment.

I. BACKGROUND

[¶2] Phyllis Scala and her daughter Eralda Adams own a vacant lot in the 

Higgins Beach area of Scarborough. The lot was created in 1923 as a part of a 
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subdivision in the area. The Scala family purchased the lot in 1958, before the 

zoning ordinances were in place. The family had always planned to build on the 

lot and consistently mowed and kept a fence on it. In April 2009, Adams sought a 

variance to build a cottage on the lot to move into following her retirement.

[¶3] The property borders a tidal marsh to the northeast, and is situated 

between a cottage on the southern side and another vacant lot on the northwestern

side, both owned by Summerwind Cottage, LLC. Virdap Street borders the lot to 

the west, and Peter and Libby Cassat own the land directly across the street. The 

lot is a narrow wedge shape measuring 50 feet at the street, 200 feet on its longest 

side, and with 107 feet of frontage abutting the marsh. It is larger than many of the 

surrounding lots in the neighborhood, and a representative of the Scala family 

asserted that if they received a variance, the proposed structure would be set back 

at a similar distance from the marsh as the other homes in the area. The provision

in the Shoreland Zoning Ordinance from which Adams sought a variance provided 

that any building must be set back from the marsh at least seventy-five feet, which 

she sought to reduce to twenty-five feet.

[¶4] Summerwind Cottage and the Cassats contested the request for a

variance at the zoning board hearings. The Scarborough ZBA held a hearing on

May 13, 2009, during which it heard arguments and testimony. Two days after the 

hearing, the ZBA issued a short statement granting the variance. Summerwind 
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Cottage sought review of the ZBA’s action in the Superior Court pursuant to 

Maine Rule of Civil Procedure 80B, but the court remanded the case, instructing 

the ZBA to make written findings of fact and conclusions of law. On March 10, 

2010, the ZBA held a second hearing without taking additional testimony or 

hearing arguments. The ZBA issued a written decision on April 14, 2010,

concluding that the vacant lot met the undue hardship requirements for a variance 

because (1) the lot’s unsuitability for any of the other permitted uses in the zone 

meant that it did not have a reasonable return without a variance; (2) the need for 

the variance was due to the unique shape of the lot; (3) the proposed cottage is 

consistent with the other properties in the neighborhood and will not alter the 

essential character of the locality; and (4) the hardship was caused by the 

enactment of zoning restrictions after the Scala family purchased the lot, not a

result of their actions.

[¶5] Summerwind Cottage again sought review in the Superior Court, which 

concluded that the ZBA did not err with regard to the undue hardship test, but 

remanded for explicit findings that the property complied with the requirements of 

the Scarborough Shoreland Zoning Ordinance. On September 14, 2011, the ZBA 

held a third hearing where it again approved the variance, concluding that because 

the lot was purchased before the Shoreland Zoning Ordinance was in place, it was 

“grandfathered” and did not require a variance for the minimum width 
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requirements, and that the remaining provisions either were met or did not apply. 

In its third review, the Superior Court affirmed the ZBA’s decision to grant the 

variance. Summerwind Cottage and the Cassats filed this timely appeal.

II. DISCUSSION

A. Zoning Map

[¶6] Summerwind Cottage contends that the ZBA erred in relying on the 

Official Shoreland Zoning Map in determining that the property was in the 

buildable Shoreland Overlay District, rather than in a Resource Protection District. 

In reviewing a decision by a municipal zoning board of appeals, “[w]e directly 

review the operative municipal decision at issue, without deference to the Superior 

Court’s ruling on the intermediate appeal.” D’Alessandro v. Town of Harpswell, 

2012 ME 89, ¶ 5, 48 A.3d 786. Because the Official Shoreland Zoning Map is part 

of Scarborough’s local ordinance, the issue of whether the ZBA erred in relying on 

that map’s classification of a particular parcel of land is a matter of interpreting the 

ordinance.1 Scarborough, Me. Shoreland Zoning Ordinance § 9(A) (Feb. 6, 2008) 

(“The areas to which this Ordinance is applicable are . . . shown on the Official 

Zoning Map which is made a part of this Ordinance.” (emphasis added)). “The 

 1

 Although the proper method of challenging the validity of the Official Shoreland Zoning Map is 

through a declaratory judgment action, see 14 M.R.S. § 5954 (2012); Bog Lake Co. v. Town of Northfield, 

2008 ME 37, ¶ 11, 942 A.2d 700, we reach the merits of Summerwind Cottage’s appeal on this issue in 

the interests of judicial economy to avoid remand to the Superior Court to amend the complaint and to 

address an issue that the court has already heard, see LaBonta v. City of Waterville, 528 A.2d 1262, 

1263-64 (Me. 1987).
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interpretation of a local ordinance is a question of law, and we review that 

determination de novo.” Aydelott v. City of Portland, 2010 ME 25, ¶ 10, 

990 A.2d 25 (quotation marks omitted).

[¶7] Summerwind Cottage contends that the map’s classification of the lot 

as within the buildable Shoreland Overlay District was clearly wrong because the 

lot itself was not already developed and building on the lot would be detrimental to 

the Ordinance’s protective goals. The Scarborough Shoreland Zoning Ordinance 

creates four districts in areas adjacent to protected resources: the Resource 

Protection District, the Stream Protection District, the Stream Protection 2 District, 

and the Shoreland Overlay District. Scarborough, Me. Shoreland Zoning 

Ordinance § 9(A). The Resource Protection District includes all land areas within 

250 feet from any wetland “in which developments would adversely affect water 

quality, productive habitat, biological ecosystems, or scenic and natural values,” 

and “which are rated ‘moderate’ or ‘high’ value by the Maine Department of 

Inland Fisheries and Wildlife.” Scarborough, Me. Shoreland Zoning Ordinance 

§ 13(A) (Feb. 6, 2008). Building structures and occupying homes are prohibited 

activities in the Resource Protection District. Scarborough, Me. Shoreland Zoning 

Ordinance § 14 (Feb. 6, 2008).

[¶8] When “such areas were already developed at the time of mapping,”

however, those areas may be included in the Shoreland Overlay District, even if 
6

they are within 250 feet of a protected resource. Scarborough, Me. Shoreland 

Zoning Ordinance § 13(A). Land use activities in the Overlay District are subject 

to the requirements of both the Shoreland Zoning Ordinance and the Scarborough 

Zoning Ordinance, but permitted activities can include building structures and 

occupying homes, if permitted by the Scarborough Zoning Ordinance for the zone 

in which the property is located. Scarborough, Me. Shoreland Zoning Ordinance 

§ 14 & n.1.

[¶9] It is undisputed that the marsh abutting the land is a protected resource 

and that the Official Shoreland Zoning Map places the lot in the Shoreland Overlay 

District. Summerwind Cottage argues, however, that because section 10 of the 

Ordinance states that the Official Shoreland Zoning Map is “merely illustrative” of 

the boundary locations, the map is not entitled to deference by the ZBA or the 

court. Scarborough, Me. Shoreland Zoning Ordinance § 10 (Feb. 6, 2008). We 

disagree. Because the Official Shoreland Zoning Map forms a part of the 

Shoreland Zoning Ordinance, it is the result of the legislative process by the 

Scarborough Town Council. See Scarborough, Me. Shoreland Zoning Ordinance 

§ 8-9 (Feb. 6, 2008) (describing Official Shoreland Zoning Map as part of the 

Shoreland Ordinance and setting out amendment procedures as requiring “adoption 

by the municipal legislative body”). See also F.S. Plummer Co. v. Town of Cape 

Elizabeth, 612 A.2d 856, 861 (Me. 1992); Veerman v. Town of China, 
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1994 Me. Super. LEXIS 145, at *3 (“The drawing of zoning map boundary lines is 

a legislative, not an administrative function.”). The decision to place the lot in the 

Shoreland Overlay District “is entitled to great deference from the courts [and] 

[a]ccordingly, . . . we limit [our] review [of a zoning ordinance] to a determination 

of whether the ordinance itself is constitutional, and . . . is in basic harmony with 

the Town’s comprehensive plan.” See Bog Lake Co. v. Town of Northfield, 

2008 ME 37, ¶ 11, 942 A.2d 700 (quotation marks omitted); 30-A M.R.S. 

§ 4314(2) (2012) (providing that portions of shoreland and floodplain zoning 

ordinances inconsistent with the municipality’s comprehensive plan have no effect 

unless they meet certain statutory exemptions inapplicable to this case). Further, 

“[a]llowing zoning administrators to amend boundary lines based on their 

individual view . . . would open the door to considerable mischief in municipal 

zoning practice.” Veerman, 1994 Me. Super. LEXIS 145, at *4.

[¶10] Summerwind argues that placing the lot and the surrounding area in 

the Shoreland Overlay District is inconsistent with the purposes set out in the 

Shoreland Zoning Ordinance itself. Because our review of the town’s legislative 

acts is limited to constitutionality and harmony with the town’s comprehensive 

plan, Summerwind’s arguments do not raise any issue upon which we can vacate 

the ZBA’s interpretation of the ordinance. See Bog Lake Co., 2008 ME 37, ¶ 11, 

942 A.2d 700.
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B. Variance Requirements

[¶11] Summerwind Cottage also contends that the ZBA erred in granting 

the variance because (1) the property did not meet the minimum lot width

requirement; (2) the need for a variance was due to the general conditions of the 

neighborhood, not to the unique conditions of the property; and (3) Scala and 

Adams failed to establish that the property cannot yield a reasonable return without 

a variance. “The municipality’s decision is reviewed for error of law, abuse of 

discretion or findings not supported by substantial evidence in the record.” 

Toomey v. Town of Frye Island, 2008 ME 44, ¶ 11, 943 A.2d 563 (quotation marks 

omitted). “A court will not substitute its judgment for that of a board.” Id. 

Moreover, “local characterizations or fact-findings as to what meets ordinance 

standards will be accorded substantial deference.” Rudolph v. Golick, 

2010 ME 106, ¶ 8, 8 A.3d 684 (quotation marks omitted).

1. Lot Width

[¶12] The Shoreland Zoning Ordinance provides that “[t]he minimum width 

of any portion of any lot within 100 feet . . . of the . . . upland edge of a wetland 

shall be equal to or greater than 100 feet.” Scarborough, Me. Shoreland Zoning 

Ordinance § 15(A)(2) (Feb. 6, 2008). The Scalas’ lot measures only fifty feet 

wide. Nevertheless, the ordinance provides that 
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[a] non-conforming lot of record as of the effective date of this 

Ordinance . . . may be built upon, without the need for a variance, 

provided that such lot is in separate ownership and not contiguous 

with any other lot in the same ownership, and that all provisions of 

this Ordinance except lot size and frontage can be met.

Scarborough, Me. Shoreland Zoning Ordinance § 12(E)(1) (Feb. 6, 2008).2 The 

ordinance defines “non-conforming lots” as “[a] single lot of record which, at the 

effective date of adoption . . . of this Ordinance, does not meet the area, frontage or 

width requirements of the district in which it is located.” Scarborough, 

Me. Shoreland Zoning Ordinance § 17 (Feb. 6, 2008) (emphasis added). 

Therefore, a plain language reading of the Scarborough Shoreland Zoning 

Ordinance indicates that non-conforming lots explicitly include those lots that do 

not meet “width requirements,” and the ZBA did not err or abuse its discretion in 

determining that the lot did not require a variance as to width.

2. Unique Circumstances of the Property

[¶13] The ZBA found that the lot has a unique shape and a viable building 

envelope that other lots in the area do not have. Summerwind Cottage argues that 

the ZBA erred in concluding that the hardship was due to the unique circumstances 

of this lot, however, because the record reveals that the immediately abutting 

 2 The Ordinance was amended in July 2009 to include “lot width” as a specific exception from the 

variance requirement in section 12(E)(1). Scarborough, Me. Shoreland Zoning Ordinance § 12(E)(1) 

(July 15, 2009). The 2008 ordinance applies to this dispute because this case was pending as of 

June 11, 2009. See 1 M.R.S. § 302 (2012). However, the 2009 amendment moves the reference to lot 

width from the definitions section of the ordinance in section 16 to section 12 and does not change the 

definition of a “non-conforming lot” in the 2008 ordinance.
10

vacant lot would have a viable building envelope of twenty-seven feet by fifteen 

feet if the ZBA granted it the same variance. “In general, the unique circumstance

requirement is met when the hardship suffered by the lot owner is not a hardship 

that is common with other lots in the neighborhood.” Camp v. Town of Shapleigh, 

2008 ME 53, ¶ 11, 943 A.2d 595.

[¶14] At its second hearing, the ZBA addressed the issue of whether the 

neighboring lot would be buildable if it received the same variance and concluded 

that it would not be. The ZBA based its conclusion on its finding that the 

twenty-seven by fifteen-foot building envelope that would be created on the 

neighboring lot was not a viable size. Further, the ZBA noted that the adjacent lot 

was not buildable because “even if you reduce the setback to 25 [feet], now you 

have pushed the building envelope to this [adjacent] lot to the street.” Because the 

record demonstrates that the surrounding lots in the vicinity either already contain 

residential structures or are of insufficient size to be buildable, even if granted the 

same variance from the setback requirements, we cannot conclude that the ZBA 

erred in finding that the circumstances of the lot requesting a variance are unique. 

Greenberg v. DiBiase, 637 A.2d 1177, 1179 (Me. 1994) (concluding that a zoning 

appeals board did not err in finding that the need for variance was due to the 

unique circumstances of the property because surrounding lots either already 

contained residential structures or were large enough to meet the setback 
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requirements). Moreover, the ZBA found that the lot’s wedge shape and the 

encroachment of the wetlands, which had reduced the lot’s size over time, made 

this parcel unique, and Summerwind Cottage does not controvert these findings. 

Therefore, the ZBA did not err in concluding that the need for a variance was due 

to the unique circumstances of the property, and not the general conditions of the 

neighborhood.

3. Reasonable Return

[¶15] Finally, Summerwind Cottage contends that the ZBA erred in finding 

that any extended recreational uses on this lot were incompatible with both the 

neighborhood and town ordinances and that no other uses were financially or 

practically productive. These findings led the ZBA to conclude that there was no 

reasonable return without a house on the property. Summerwind Cottage argues 

that the substantial evidence in the record does not support the ZBA’s finding, and 

that the ZBA erred as a matter of law in failing to consider recreation as a viable 

use.

[¶16] Summerwind Cottage argues that because the Scala family owns a 

cottage in the same neighborhood, this lot could provide a reasonable return 

through recreational use by providing access to the marsh, without the need for a 

variance. We have previously noted that “[r]easonable return is not maximum 

return,” Curtis v. Main, 482 A.2d 1253, 1257 (Me. 1984), and “[t]he reasonable 
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return prong of the undue hardship test is met where strict application of the zoning 

ordinance would result in the practical loss of all beneficial use of the land.” 

Toomey, 2008 ME 44, ¶ 15, 943 A.2d 563 (quotation marks omitted). However, 

“[e]conomic proof that no reasonable return is possible is not required.” Id.

[¶17] Summerwind Cottage bases the contention that recreational use is a 

reasonable return on our analysis in Toomey v. Town of Frye Island. 2008 ME 44, 

¶¶ 16-18, 943 A.2d 563. In Toomey, the landowner sought a variance for a vacant, 

shorefront lot on Frye Island that was some distance away from another inland lot. 

Id. ¶¶ 2-4. In affirming the ZBA’s decision to deny the variance, we noted, “A 

waterfront lot is a significant benefit to a property owner who owns an inland lot,”

given the potential for recreational use. Id. ¶ 18. The ZBA in this case considered 

the potential recreational use suggested in Toomey, but found that such use was not 

viable for the Scalas’ lot, which borders a marsh, rather than open water.

[¶18] The ZBA found that “the only uses available to the property without a 

variance are non-productive uses.” These findings are supported both by the 

testimony of David Grysk, the Zoning Administrator for Scarborough, who stated 

that there are local restrictions on camping and by Phyllis Scala’s testimony that 

her family was not using the property recreationally. On appeal, “in reviewing 

zoning board action, [we are] not free to make findings of fact independent of 

those explicitly or implicitly found by the municipal zoning authority.” Driscoll v. 
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Gheewalla, 441 A.2d 1023, 1026 (Me. 1982). Rather, we are “limited to 

determining whether from the evidence of record facts could reasonably have been 

found by the zoning body to justify its decision.” Id. The evidence of record facts

presented here is sufficient to support the ZBA’s decision finding that without a 

variance the property is not suitable for any of the permitted uses in the zone.

[¶19] Summerwind Cottage also challenges the ZBA’s finding that a sale to 

a neighbor would be “forced and would not be at fair market value,” and therefore 

would not be a reasonable return. We have held that the possibility that property 

might be sold to a neighbor is not sufficient on its own to allow the ZBA to find a 

reasonable return. Marchi v. Town of Scarborough, 511 A.2d 1071, 1073 

(Me. 1986). In addressing this issue in Marchi, we concluded, “A variance to 

permit development of a substandard parcel may not be denied solely on the 

ground that the applicant had an offer of purchase. A landowner has the right to 

develop his land; he is not required to sell it.” Id. (quotation marks omitted). 

Further, there may be room for abutting landowners who oppose the variance 

request to abuse the variance process if they are able to defeat a neighbor’s request 

for a variance simply by offering to purchase the land and citing that offer as 

grounds to deny the variance, regardless of whether the offer is genuine. 

Therefore, the ZBA did not err in failing to take into account evidence of a 
14

potential price offered for the land or in finding that the sale to a neighbor was not 

a reasonable return.

[¶20] Because the zoning map is a legislative act by the Scarborough Town 

Council and entitled to our deference, and there is substantial evidence in the 

record to support the ZBA’s decision to grant the variance, we affirm the Superior 

Court’s judgment.

The entry is:

Judgment affirmed.

On the briefs:

Andrew W. Sparks, Esq., and Nathaniel R. Huckel-Bauer, Esq., Drummond & 

Drummond, LLP, Portland, for appellants Peter Cassat, Libby Cassat, and 

Summerwind Cottage, LLC

Shana Cook Mueller, Esq., Bernstein Shur Sawyer & Nelson, Portland, for 

appellee Town of Scarborough

Jeffrey W. Jones, Esq., Jones & Warren, P.A., Scarborough, for appellees 

Phyllis E. Scala and Eralda Adams

At oral argument:

Nathaniel R. Huckel-Bauer, Esq., for appellants Peter Cassat, Libby Cassat, and 

Summerwind Cottage, LLC

Shana Cook Mueller, Esq., for appellee Town of Scarborough

Jeffrey W. Jones, Esq., for appellees Phyllis E. Scala and Eralda Adams

Cumberland County Superior Court docket numbers AP-09-20, AP-09-21

FOR CLERK REFERENCE ONLY