Cope v. Brunswick

464 A.2d 223 (Me. 1983)



A special exception use differs from a variance in that a variance is authority extended to a landowner to use his property in a manner prohibited by an ordinance (absent such variance), while a special exception allows him to put his property to a use which an ordinance expressly permits. An exception is a conditional use under a zoning ordinance and results from a legislative determination that such use will not ordinarily be detrimental or injurious to a neighborhood within the zone. Whether a use will generally comply with the health, safety, and welfare of the public and the essential character of an area is a legislative question. Deciding whether certain uses are compatible with a zone and the general zoning scheme is a function to be performed by municipal legislative bodies with the advice of their planning boards. A delegation is improper if a zoning board is permitted to decide that same legislative question anew, without specific guidelines which permit a board to determine what unique or distinctive characteristics of a particular apartment building will render it detrimental or injurious to a neighborhood.


Petitioners brought their action against the Board after the Board denied petitioners' request for a zoning use exception for construction of multi-unit apartment buildings within the town. The relevant ordinance granted the Board discretionary authority to grant exceptions. Petitioners challenged the constitutionality of the ordinance which vested in the Board absolute power to determine if the proposed use would adversely affect the health, safety, or general welfare of the public and whether the petitioned use would alter the essential characteristics of the surrounding property.


Is the ordinance unconstitutional for vesting absolute discretion on the Board to grant exceptions to zoning use?




The court on appeal reversed the trial court's judgment affirming the Board's denial decision based on its determination that the local ordinance improperly delegated legislative authority to the Board and was therefore void. The court noted that the general language of the ordinance did not provide sufficient guidance to meet constitutional requirements required to guide the discretion of the Board's enforcement authority in granting and denying use exceptions. The zoning ordinance failed to provide the Board with a basis for determining that petitioners' use was unsuitable.

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