CAPE ELIZABETH — The Zoning Board of Appeals is standing by its approval of a home expansion after neighbors who say their shorefront views will be obstructed filed an appeal in Superior Court last spring.

The Cape Shore House Owners Association argued that the board’s evidence wasn’t substantive enough to merit approval of the project. The court on Sept. 7 sent the matter back to the ZBA to have it prepare more detailed findings, which members did on Dec. 26.

The board approved a request by Alan and Mara DeGeorge to rebuild and expand their home at 5 Birch Knolls – in the town’s Residence C and Shoreland Protection zone – last May.

The DeGeorge’s home has been torn down and is being partially reconstructed on the previous structure’s footprint, with a slight reduction in area.

However, the usable floor space and height would increase by a 7-foot level added to the middle of the house.

The association, led by its president, Constance Jordan, filed its appeal within days of the decision.

The association includes owners of 10 units in two buildings, whose properties abut the DeGeorges and run down to Maiden Cove Beach. Their concern is that the additional story would block their second-story views of Casco Bay.

Attorney Bill Dale, who represents the association and Jordan, said if the building was just being rebuilt, and not expanded, members would not object.

He said the proposed height of the new structure – 30 feet – would violate a state law that says the new building can’t exceed the prior structure. Cape Elizabeth’s local ordinance is supposed to mirror the state, Dale said, but doesn’t. He said he’ll argue this position in court.

The zoning board did not address that issue.

“The zoning board is just looking at zoning ordinances,” Code Enforcement Officer Benjamin McDougal said. “They’re not considering other state laws.”

McDougal said the board is maintaining its stance that the expansion should be allowed, but redrafted its findings for the sake of clarity.

The need for total reconstruction of the home, rather than renovation, arose when the house was raised and a contractor discovered the foundation was dilapidated and could not be augmented.

The project had to go before the board because the existing structure, built in 1900, does not conform with shoreland overlay district setback standards. The ordinance states that a reconstructed or replaced nonconforming structure should be relocated beyond the required setback area.

In this case, that couldn’t be done because moving the house to the rear of the property would violate the setbacks on three other sides of the property and the elevation of the land at that spot would increase the height of the house.

According to its appeal, the association claimed the DeGeorges’ application fails to meet the applicable zoning ordinance approval standards for “re-construction of nonconforming buildings.”

The appeal also stated that the ZBA did not take into account the impact on views the proposed structure will have and called their decision “arbitrary” and “capricious.”

“The decision … was erroneous in a matter of law, was not based on substantial evidence in the record, constitutes an abuse of discretion and so must be reversed,” Dale wrote.

McDougal said the board could have argued against the association’s claim that the evidence was inadequate, but instead conceded.

“They (aren’t) re-deliberating, but are better articulating their findings,” McDougal said.

Board member Matthew Caton on Dec. 21 said the necessary points to support the May vote were in the first set of findings.

According to these findings, the board felt the proposed structure is in compliance with setback requirements to the “greatest practical extent” because the total floor area and volume of the original structure cannot be relocated beyond the setback requirement for a new structure.

Town Attorney John Wall on Dec. 26 said the board would not be adding any additional evidence to its findings of fact, but only clarifying the record.

During deliberations, the board also considered testimony from Ken Piper, whose property at 3 Birch Knolls abuts the DeGeorges. Piper, who is not a member of the association, said the house, which has been “jacked up” for months, affected his view of Cushing Island from the upper floors of his home.

He added that reconstructing the home in its existing footprint, volume and height would be ideal, but moving the house back would permanently impede his view and have a negative impact on the value of his home.

McDougal said he hoped to have the board’s final revised findings to Wall by Dec. 29, after which the findings will be submitted to the court.

Dale said in a Dec. 28 email that he wasn’t sure when the court will hear arguments or rule.

He added that whoever loses the case will be appeal to the Supreme Judicial Court, which usually takes about a year.

Should the court grant an appeal, McDougal said the “worst case scenario” is that the DeGeorges couldn’t build the third story, but they could still put a roof on what has been reconstructed.

When asked if he felt the ZBA’s redrafted findings were satisfactory, Dale said he suspects the court will think the findings are sufficiently detailed, but that does not address the association’s issues on the merits.

“I think the court will ultimately rule our way on the merits,” he added. “But that may be six months from now.”

Jocelyn Van Saun can be reached at 781-3661, ext. 183 or jvansaun@theforecaster.net. Follow her on Twitter @JocelynVanSaun.

Neighbors say their shorefront views will be obstructed by rebuilding and expansion of this home at 5 Birch Knolls in Cape Elizabeth.

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