Homeowners take Falmouth to court in water views dispute

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FALMOUTH — Angered by a Zoning Board of Appeals decision allowing construction of a home at 32 Andrews Ave. that could obscure their water views, two local couples are suing the town in Superior Court.

In their court filing, Andrew Beahm, executive director of Maine Audubon, and his wife, Deborah Megna, along with Patrice and Donald Walsh, claim the zoning board acted incorrectly and its decision should be overturned.

In the meantime, members of the board said at their July 25 meeting that they would like the Town Council to consider making amendments to the water views protection ordinance to make the standard of review less subjective.

Under the ordinance, a project is not supposed to be allowed to move forward if it would cause a “significant and adverse impact” on views from adjacent or nearby properties.

But, appeals board member Stan Given said at last month’s meeting, opinions often differ on what constitutes a “significant” impact.

“I feel like no matter how we vote, somebody is losing out. Somebody can’t do what they want on their own property or someone loses a view they value,” he said.

Board alternate Jay Trickett said evaluating the impact on water views “has been the most contentious issue by far” to come before the board in the past six months.

Nathan Smith, chairman of the board, suggested that members shouldn’t just say the current ordinance on water views is not working and said it might make sense to have a few recommendations ready, instead of going to the council empty-handed.

“I would (definitely) like to see if we could clarify the ordinance,” he said.

Given said he’d be willing to research how other towns approach the issue and said he’d like to “light a fire” under the water views standards question, since it’s likely to be something that will come up over and over again.

In the end, with the advice of Justin Brown, Falmouth’s code enforcement officer, the zoning board agreed that a good first step would be meeting with the town attorney to outline the questions and issues members have regarding the water views ordinance, along with any other topics of interest.

Brown this week said he cannot speak for the board, “but I believe that some of the concern regarding the water view language is the lack of guidance in the criteria for determining (what constitutes) a significant adverse impact.”

He also agreed with board members that “the situations that tend to elicit the most discussion are projects located within the Water View Overlay District.”

This includes an ongoing dispute among neighbors regarding alterations made to a home at 27 Town Landing Road that some residents say didn’t follow the plans submitted and approved by the zoning board.

The Andrews Avenue project, which has led to the Superior Court lawsuit, involves a two-story, single-family home that would be built on a vacant lot.

Beahm and his wife live at 24 Andrews Ave., so are immediate abutters, but the Walshes live at 17 Whitney Road, which is on the next street.

In documents submitted to Superior Court, both couples argue that allowing a home to be built on the vacant lot would lead to a significant loss of their water views.

The Walshes claim their views of Casco Bay would be 100 percent obstructed, while Beahm and his wife say they would lose 20 to 25 percent of their view, which now includes the Spring Point Ledge Lighthouse in South Portland and Portland Head Light in Cape Elizabeth.

In their lawsuit, the couples argue the zoning board “committed numerous errors of law, abused its discretion, failed to render specific findings, failed to conduct a proper site (re)view and failed to require the requisite written support” required of the developer.

In particular, the couples complain that the board only conducted one site visit to the Walshes’ home, and it was on a day in late April when it was too foggy to see the water.

The couples also say the board “inexplicably failed to view” photos submitted by Beahm, which showed how his view would be obstructed by the house being planned at 32 Andrews.

The couples argue that if any of the nine criteria listed under Falmouth’s conditional use are not met, a permit cannot be granted.

Water view obstruction is the only criteria being challenged, but “either a project meets all nine criteria or it does not,” the lawsuit says.

The town has responded that both couples were “permitted to present documentary and testimonial evidence” to the zoning board, which ultimately found there was no significant impact to the water views in question.

This story has been updated to correctly attribute a quote.

Kate Irish Collins can be reached at 710-2336 or kcollins@theforecaster.net. Follow Kate on Twitter: @KirishCollins.

The view of Casco Bay from the vacant lot at 32 Andrews Ave. in Falmouth. Neighbors object to the Zoning Board of Appeals allowing a home to be built there because it would obstruct their water views.