Richard M. Balano v. Town of Kittery et al. — 2017 ME 110

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 110
Docket: 	Yor-16-248
Submitted
On Briefs: April 27, 2017
Decided: 	June 6, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
RICHARD M. BALANO
v.
TOWN OF KITTERY et al.
PER CURIAM
[¶1] 	Richard M. Balano appeals from a judgment of the Superior Court
(York County, 	O’Neil, J.) affirming the Town of Kittery Planning Board’s
decision to approve a site plan application for development of a hotel on
Route 1. 	M.R. Civ. P. 80B(n); M.R. App. P. 2. 	Balano argues that the flat-roof
design for the building is not permitted by the Town’s ordinance because the
evidence presented to the Board does not support its finding that a pitched
roof 	is 	not 	“practicable,” 	see 	Kittery, 	Me., 	Code 	§ 	16.3.2.11(D)(3)(b)(ii)
(July 26, 2010); and that the proposed building will exceed height restrictions
prescribed by the zoning ordinance. 	Balano also argues that the Planning
Board acted beyond its authority by effectively granting variances when it
approved 	the 	roof 	design 	and 	building 	height. 	See 	id. 	§ 16.1.5.2(F)(3)

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(designating the Board of Appeals as the municipal entity with authority to
grant a variance). We affirm.1
[¶2] 	“We review the Planning Board’s approval of the permit directly
for error of law, abuse of discretion[,] or findings not supported by substantial
evidence in the record.” 	Osprey Family Tr. v. Town of Owls Head, 2016 ME 89,
¶ 9, 141 A.3d 1114 (quotation marks omitted); see also Summerwind Cottage,
LLC v. Town of Scarborough, 2013 ME 26, ¶ 11, 61 A.3d 698. 	We accord
substantial deference to “local characterizations or fact-findings as to what
meets ordinance standards.” Rudolph v. Golick, 2010 ME 106, ¶ 8, 8 A.3d 684.
[¶3] With respect to the roof design, pursuant to the Town Ordinance, if
an applicant has “demonstrated to the Planning Board’s satisfaction that [a
pitched roof] is not practicable,” the Board is authorized to approve a
commercial building proposal with an alternative roof design. 	Kittery, Me.,
Code § 16.3.2.11(D)(3)(b)(ii). 	Here, the Board was presented with evidence
that 	a 	pitched 	roof 	would 	present 	safety 	issues 	resulting 	from 	snow
accumulation, and that mechanical equipment would be more accessible in an
emergency if located on a flat roof as opposed to within the interior space of a
1 We are not persuaded by the Town’s contention on its cross-appeal that Balano does not have
standing to pursue his appeal. See Witham Family Ltd. v. Town of Bar Harbor, 2011 ME 104, ¶ 7,
30 A.3d 811; Friends of Lincoln Lakes v. Town of Lincoln, 2010 ME 78, ¶ 12, 2 A.3d 284.

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pitched roof. 	The Board’s finding that a pitched roof is not practicable is
supported by substantial record evidence, and because the Board itself was
authorized to approve a flat-roof design in such circumstances, its decision did
not amount to a variance. See id. §§ 16.3.2.11(D)(3)(b)(ii), 16.2.2.
[¶4] 	Regarding the building height, the Board did not err in its
application of the Ordinance’s height restrictions because roof parapets are
not included in calculating the building height, see id. § 16.2.2 (defining
“height of a building” and “parapet”), and approval of the proposed building
height that complied with the Ordinance’s requirements is not a variance.
The entry is:
Judgment affirmed.
Richard M. Balano, appellant pro se
Duncan McEachern, Esq., McEachern & Thornhill, Kittery, for cross-appellant
Town of Kittery
Durward W. Parkinson, Esq., and Leah B. Rachin, Esq., Bergen & Parkinson,
LLC, Kennebunk, for cross-appellant 275 US Route 1, LLC
York County Superior Court docket number AP-2015-26
FOR CLERK REFERENCE ONLY