## Facts

- Nancy Buck constructed a single-family residence on an irregular coastal lot in South Portland, Maine.
- During construction, the contractor repositioned the house farther from the ocean to address erosion concerns, resulting in minor encroachments into required setbacks.
- The completed siting encroached into the 20-foot front-yard setback by about 1.26 feet and into the 25-foot rear-yard setback in three places by about 1.56 feet, 2.05 feet, and 0.79 feet.
- After an abutting owner, Edward Rowe, obtained a survey revealing the encroachments, the City declined to issue a certificate of occupancy.
- Buck applied to the South Portland Zoning Board of Appeals for a setback variance, which required proof of “undue hardship,” including inability to obtain a reasonable return without the variance.
- The Board granted the variance after a hearing in which Rowe, through counsel, participated.
- Rowe appealed under Maine Rule of Civil Procedure 80B; the Superior Court affirmed the Board’s decision, and Rowe appealed further.

## Issues

1. Whether an abutting landowner who participated before the zoning board had standing to seek judicial review by showing a particularized injury.
2. Whether the Board lawfully found “undue hardship,” particularly that the property could not yield a reasonable return absent the variance.

## Decision

- The court held Rowe had standing because he participated in the board proceedings and showed a particularized injury distinct from the public at large as an abutting owner affected by the decision.
- The court held the Board lacked authority to grant the variance because Buck failed, as a matter of law, to prove the property could not yield a reasonable return without the variance.
- The court vacated the Superior Court’s judgment and remanded with instructions to vacate the Board’s variance approval.

## Legal Principles

- For standing to appeal a zoning decision, the appellant must have participated before the zoning board and must show a particularized injury beyond that suffered by the public generally.
- “Undue hardship” for a variance requires proof, among other elements, that the property cannot yield a reasonable return without the variance; reduced value, added cost, or inconvenience is insufficient.
- The “reasonable return” requirement is satisfied only where strict compliance would result in the practical loss of all beneficial use or no reasonable conforming use.
- Hardship attributable to the applicant’s actions (including construction decisions made on the applicant’s behalf) weighs against variance relief under the requirement that hardship not be self-created.

## Conclusion

The Maine Supreme Judicial Court recognized an abutting owner’s standing to challenge a variance but invalidated a setback variance where the applicant’s evidence showed, at most, cost and inconvenience from correcting a minor encroachment rather than an inability to obtain any reasonable return from the property without the variance.


Rowe v. City of South Portland, 730 A.2d 673 (Me. 1999)