2017-10-12 / Front Page

Residents seek to clear up zoning misconception

By Grant McPherson
Staff Writer

SACO – After years of dispute, two Kinney Shores residents will bring a contract zone request before the planning board again, despite a previous rejection from city staff.

George and Nancy Driscoll own a home at 15 Oceanside Drive and until 2009 believed they owned a vacant lot next to it as well. From 1914 until 1985, the two parcels were identified as Lots 201 and 202 and were considered separate. In 1985 the two parcels, along with others in the city, were combined under a zoning ordinance amendment that combined adjacent parcels that were under the same ownership and smaller than 7,500 square feet.

The Driscolls bought their house in 1980 and said they were never made aware of the zoning change. They went to sell the vacant lot to help pay for their retirement in 2009, but according to the city, the Driscolls only own one parcel of land on Oceanside Drive.

The Driscolls live in Massachusetts, but spend their summers in Saco. The Maine Superior Court ruled that the city followed the proper procedure in notifying residents about the zoning ordinance amendment. However, the Driscolls continued to receive two separate property tax bills even after the lots were joined.

“I guess communication is my one thing,” George Driscoll said. “How can they take my land away, combine the two lots, without notifying me whatsoever?”

George Driscoll attended the Tuesday, Oct. 3 planning board meeting, but his proposal was not considered because the group did not have a quorum. Driscoll said this was the second planning board meeting in a row that a quorum couldn’t be established to discuss the property. Driscoll plans to attend the Tuesday, Oct. 17 planning board meeting instead. Even if it does pass the planning board stage, Driscoll’s contract zone request won’t likely appear before the council until December, after the election, because of a two-year waiting period since the last time it appeared before council. Up until this point, Ward 4 Councilor Kevin Roche has been Driscoll’s advocate on the city council.

“Kevin Roche won’t be able to help. He’s not running for re-election,” Driscoll said.

Roche said it’s rare for the city to grant contract zones to residents, but believed in 2015 that the city would allow it.

“I was supportive of it. I was led to believe city staff was supportive of it,” he said. “At the council meeting city staff recommended against it and council voted four to three against them. The Driscolls thought the city was trying to find avenues to support them and instead are fighting them. Taxpayers have employees of the city of Saco against them.”

City Planner Bob Hamblen said contract zones are more common in a commercial context. For example, Notre Dame Church on Cutts Avenue applied for a contract zone request because it was a commercial development that will offer residential units for rent. The same case cannot be made for the Driscolls, Hamblen said.

“I cannot think of a single example of a resident of Saco submitting a contract zone application regarding a single family residential home,” Hamblen said. “This is somewhat unusual in Saco’s experience.”

However, he said the Driscolls have no other realistic options. In 2009, Saco Code Enforcement Officer Richard Lambert denied the Driscolls’ application for a building permit because there was not enough room on their single vacant lot. The Driscolls followed the chain of appeal from the Saco Zoning Board of Appeals to the Maine Superior Court and finally the Maine Supreme Court, which finally ruled on the side of the city. If a house could be built on the lot the Driscolls intended, Hamblen said it would likely be assessed at about $650,000.

“For obvious financial reasons the Driscolls continue to pursue splitting the property,” he said.

Some in the community are concerned that allowing the Driscolls to have two lots again would set an uncomfortable precedent in the city.

Sandra Guay, a Saco citizen and an attorney specializing in real estate law with Woodman Edmands Danylik Austin Smith & Jacques, wrote a letter to the city council and mayor in 2015 outlining why the Driscolls should be denied a contract zone request. She wrote that the Driscolls were asking for contract zoning that no other property owner in Saco would be granted under similar circumstances. On top of that, she wrote that the Driscoll’s contract rezoning would not provide significant benefits to the community, a stipulation which must be met by every other contrast zone request.

“My concern therefore is that in amending the zoning ordinance by granting a contract zone to the Driscolls, which in effect merely provides them the variance they had sought and were already denied by both the city and the court, the city risks the integrity of the zoning ordinance, and creates a situation whereby it will be difficult for the city to continue to enforce that ordinance equally and non-arbitrarily among all property owners,” she wrote.

Guay has not commented on the Driscolls’ most recent application, but may do so if she deems it necessary.

“It is my understanding in any event that the council will not be considering their contract zone application until November,” Guay wrote in an email. “I may decide to jump into the discussion again at that point.”

Roche was skeptical though why Guay got involved with the Driscolls’ request in the first place.

“She’s not a neighbor,” Roche said. “She doesn’t live nearby. She comes across as a random Saco citizen for public comment. But she’ll be right there to fight them every step of the way as a, quote, citizen of Saco yet she’s an attorney and she’s fought on behalf of other contract zones that have come before council. She is out to get them. I believe she is a strong conflict of interest.”

Guay was a member of the Saco Planning Board and resigned June 10, 2014.

Hamblen said beach property was a high stakes situation because of the value associated with it.

“It is hardly unusual for a disgruntled neighbor or direct abutter to hire an attorney,” Hamblen said. “It happens all the time. It might be an abutter who hired Sandra Guay to represent him or her in this matter. I’m not aware of that. I don’t think it’s the case. It’s possible. In my honest opinion I believe she does what she does because she practices land use law as part of her legal practice and she is knowledgeable.”

No matter what, Driscoll will still need to appear before the planning board and city council if he hopes to split his property into two.

“Be persistent, that’s what I have to do,” he said.

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