2016-02-19 / Front Page

Ruling may move direction on affordable housing

By Wm. Duke Harrington
Staff Writer


In a Feb. 5 decision, Cumberland County Superior Court Justice Nancy Mills ruled South Portland Code Enforcement Officer Pat Doucette should not have issued a building permit for this home at 79 Thirlmere Ave. The case has been remanded back to the city’s board of appeals for eventual referral to the planning board for review and Planning Director Tex Haeuser says a decision there could shape how the city deals with affordable housing guidelines now being developed by a special committee. (Duke Harrington photo) In a Feb. 5 decision, Cumberland County Superior Court Justice Nancy Mills ruled South Portland Code Enforcement Officer Pat Doucette should not have issued a building permit for this home at 79 Thirlmere Ave. The case has been remanded back to the city’s board of appeals for eventual referral to the planning board for review and Planning Director Tex Haeuser says a decision there could shape how the city deals with affordable housing guidelines now being developed by a special committee. (Duke Harrington photo) SOUTH PORTLAND — The city has lost a case in Superior Court that could lead to a change in how South Portland addresses the need for affordable housing.

In a Feb. 5 decision, Cumberland County Superior Court Justice Nancy Mills ruled South Portland Code Enforcement Officer Pat Doucette should not have issued a building permit for the home at 79 Thirlmere Ave. The case has been remanded back to the city’s board of appeals for eventual referral to the planning board for review.

“I’m not looking to drag down on any city officials,” said Devin Deane, who brought the case against the city. “My concern is that this kind of development happens all the time in South Portland, and others who don’t have a legal background as I do, might not know what their rights are.

“There are very strict regulations on how developers can split yards and build on small, non-confirming lots in South Portland,” Deane said. “People should know that just because code enforcement says it’s OK, that may not be necessarily correct.

“These rules are not just about making sure new homes fit the existing character of their neighborhoods, although that is very important, they’re about density and making sure development is done responsibly, so that people have room to live.”

The new home is part of Country Club Heights subdivision, established more than a century ago, in April 1915. Each lot in the subdivision was marked off at 3,000 square feet, with 30 feet of road frontage. Those dimensions are far below the modern standards, created in the years after World War II, according to city planning director Tex Haeuser, when South Portland chose to adopt a more “suburban scale” for the Thornton Heights neighborhood and other areas outside the city center. Today, the minimum lot size in South Portland’s Residential A zoning districts is a quarter acre (12,500 square feet), with 75 feet of road frontage. Additionally, city codes call on there to be no more than four residential units per acre in those areas.

Most of the homes in the old Country Club Heights subdivision are on two or more of the lots, as originally laid out. For example, the home at 87 Thirlmere Ave., built in 1928 and owned since March 2013 by Devin Deane and Elise Baldacci, covers lots 222 and 223. Meanwhile, the home at 69 Thirlmere Ave., built in 1925 and owned from 1973 until 2014 by Robert and Patricia Blackadar, is on lots 161. But the couple also owned the adjoining lots (No. 160 and No. 159), which contained a garage and a side lawn.

The Blackaders sold their lots to AMG Properties of Falmouth, owned by Loni Graiver, which within weeks sold Lot 161 (the one with the house) to Dye Custom Builders of Portland, which flipped it four months later. Meanwhile, the garage on Lots 159 and 160 was torn down and the property sold to WG Enterprises of Portland, owed by Wil- liam Graiver, which built a new three-bedroom home on the lots and sold off the site, again within months.

According to assessing records, AMG purchased the home at 69 Thirlmere Ave. on June 3, 2014, for $198,00. It then sold the lot to Dye on June 13, 2014, for $162,000. The current owners, Donald and Pamela Brunmier, bought the home on Oct. 31, 2014, for $200,000.

The same online assessing records show AMG Properties purchased the two lots at 79 Thirlmere Ave. on June 3, 2014, for $198.000. It then sold them to WG Enterprises on June 13, 2014, for $41,000. After the home was built, Wei Zhang and Lesley Mo bought the property on Nov. 19, 2014, for $268,888.

Such construction activity, known as in-fill development, is not uncommon in South Portland. Given its size, at just 14 square miles, the city has fairly well filled out where new homes can be built, leaving the construction of new homes to happen largely on subdivided lots.

However, when Deane, whose home is directly behind the former Blackader lots, saw digging for the foundation of the new home, he contacted Doucette. That led to two months of back and fourth in which, as Deane details in court documents, the code enforcement officer assured him no building permit had been issued, while Loni Graiver said he had one in hand and that, as Deane recalls, “there was ‘nothing (he) could do about the development.’”

But Deane, being an attorney, knew exactly what he could do, and on Sept. 5, 2014, filed an appeal of the building permit, which he had standing to do, as a direct abutter.

Deane’s contention was that the new home not only violated the minimum lot size standards, it created a fifth residential unit on that acre of land, one more than the zoning rules allow. Additionally, the change left the prior Lot 161 home at 67 Thirlmere Ave. without two spaces of off-street parking, another zoning requirement, because the existing driveway actually is on Lot 160, which went with the new home at 79 Thirlmere Ave.

However, on Sept. 24, the South Portland Board of Appeals denied Deane’s filing in a 5-1 vote. Deane then filed suit in Superior Court on Oct. 29, 2014, before either the existing home or the new one on the former Blackader lots was sold to their current owners.

The Brunmiers could not be reached for comment, but Zhang said Tuesday that she was never informed by Graiver of the pending court action.

“I had no idea at all any of this was going on at the time of the closing,” she said.

Beyond that, however, Zhang declined comment, on the advice of her attorney, adding only that she had yet to be contacted by the city concerning her property, and its possible fate.

Doucette declined comment Tuesday, referring all questions on the lawsuit to Haeuser. He said Doucette was justified in issuing the building permit.

Around 2007, Haeuser said, the city adopted new standards spinning out of the number of waivers, about half off all requests at the time, granted by the board of appeals for construction on so-called non-confirming lots.

Those rules state that if a lot is greater than 5,000 square feet, the code enforcement office can issue a building permit without a variance being granted. However, if a lot is less than 5,000 square feet, a permit may not be issued until review by the planning board, to ensure any new construction fits in with design standards and character of the neighborhood.

Doucette issued the building permit, Haeuser said, because the two lots sold to William Graiver added up to 6,000 square feet.

“As I read the courts’ decision, the issue is that, in this particular case, the lots were not in common ownership at the time the permit was issued,” Haeuser said. “So, the decision all appears to be very specific to this case, based on the timing of the lot sales.

“Whether this goes beyond this particular case and has implications for the ordinances, I don’t really know,” Haeuser said. “We’re going to review this decision carefully and try to make sure we fully understand it.”

Still, one implication could apply to the work of a new committee recently formed to address the growing lack of affordable housing in South Portland, Haeuser said.

“It may be that this will be looked at by that group and maybe they will look at changing or modifying those rules, because (in-fill development) is one of the ways in which we are able to provide more modest housing in the city, by allowing the creation of smaller homes on non-conforming lots.”

Still, one thing is clear, Zhang may soon have to make an argument before city officials for why she should be allowed to keep her home.

“Presumably the property owner will need to make their case to the board, but just because it’s after the fact doesn’t guarantee board approval,” Haeuser said. “They’re going to have to make a case for neighborhood compatibility based on architectural standards based on design of the home and how it sits on the lot.”

Return to top