Wyer v. Board of Environmental Protection

No. Cum-99-362 (747 A.2d 192) (Me. March 10, 2000)

ELR Digest

The court upholds a trial court decision that the denial of a variance under Maine's sand dune laws did not constitute a taking of a landowner's property in violation of the U.S. and Maine Constitutions. The court first holds that the landowner failed to meet his burden of proof that the denial of the variance rendered the property substantially useless and stripped it of all practical value. Because of the property's close proximity to a beach, the trial court properly considered the usesof the property for parking, picnics, barbecues, and other recreational uses as beneficial uses available to the landowner despite the restrictive regulations. Additionally, the trial court properly applied the fair market value analysis and considered the value of the property to abutters as an additional factor in determining the value of the property. Further, the trial court had competent evidence to support its finding that the property had a value of $ 100,000 before denial of the variance and $ 50,000 after the denial. Finally, the court declined to adopt the landowner's partial taking theory.

The full text of this opinion is available from ELR (1 p., ELR Order No. L-193).

Counsel for Plaintiff
Kurt E. Olafsen
Olafsen & Butterfield
75 Pearl St., Portland ME 04112
(207) 761-4411

Counsel for Defendants
Margaret B. McCloskey, Ass't Attorney General
Attorney General's Office
State House, Station #6, Augusta ME 04333
(207) 626-8800

[30 ELR 20448]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]