By Gail Geraghty

Staff Writer

HARRISON — After nine months and appealing to two town boards, Gary Searles has finally prevailed in his request to convert a ground-floor commercial office into an apartment in downtown Harrison Village.

Under a direct order from the Harrison Appeals Board, the Planning Board voted April 5 to grant the change of use permit for The Anchorage at 25 and 27 Main Street, which Searles said was necessary because he hasn’t been able to rent the space as a professional office.

The Harrison Appeals Board voted Feb. 23 to overturn the Planning Board’s negative ruling last November, and ordered the planning board to issue a permit.

It was a reluctant vote. When the planning board initially denied the request, its members felt strongly that Searles didn’t meet minimum lot size standards, didn’t have enough shoreline frontage, and was adding a new use under the town’s Shoreland Zoning Ordinance. The planning board also felt the request should be denied because the ordinance only allows an apartment in the Limited Commercial District if it is part of an existing single-family home.

“I’ve got to make sure I can swallow this pill,” said Planning Board Chairman Barry Smith, when member Robert Celeste asked at the April 5 meeting whether a vote was even necessary. “You may think this is personal, but it is not,” Smith told Searles. The planning board’s approval was made conditional upon written documentation that the subsurface wastewater disposal system was adequate to handle two apartments and office space.

At one point, Smith suggested the planning board could go against the order from the appeals board, and considered asking selectmen to have the case decided in Cumberland County Superior Court — since the two boards were so diametrically opposed to one another in interpreting the ordinance.

“The appeals board said we ‘should’ approve it. They can’t make us,” Smith said.

But the majority agreed to acquiesce to the appeals board’s order, and not take the matter any further. Smith characterized the board’s vote as “a mechanical approval, based on the board of appeals’ decision.”

Code Enforcement Officer John Wentworth explained the process even further, saying, “You are really signing a permit for them. Appeals boards cannot issue permits.”

The appeals board ruled that Searles’ 13,000-square-foot building, on an undersized lot, was grandfathered from having to meet the 40,000-square-foot minimum lot size standard, because in their opinion he wasn’t adding a third use, as he always had three uses for the property. They also differed with the planning board on whether Searles could ask for a change of use. The appeals board said Searles could change one use within a multi-use structure, while the planning board felt that changes of use in non-conforming structures must apply to the entire structure.

Internal inconsistencies

The case highlighted the need for the town to update its Shoreland Zoning Ordinance, which was revealed to be  internally inconsistent in several respects, in particular when it comes to defining permitted and non-permitted uses in the Limited Commercial District. It also highlighted the need for the town to decide once and for all whether it wants to allow apartments in the village; Searles is not the only property owner who has been able to renovate space in their building for apartments, even though the planning board says that is not allowed.

The appeals board first took up Searles’ appeal last December, but tabled the request in order to seek legal advice on whether his mixed-use building was a permitted use in the Limited Commercial District. The ordinance does not specifically list mixed-use buildings as permitted uses, and some board members argued that since the ordinance does not list mixed-use buildings as “not permitted,” then such a use could be permitted.

The reply from Matthew Manahan of the Pierce Atwood law firm, made on Feb. 6, was that although in general, “only uses listed in an ordinance as permitted uses (with or without a permit) are legally permitted,” the ordinance is ambiguous as to whether a second apartment can be put in a building with an existing commercial use, that of a professional office.

Because of that ambiguity, Manahan said, “the landowner should be given the benefit of ambiguous ordinance provisions, because the landowner is entitled to use his property as he sees fit, absent a clear regulation to the contrary.”

Planning Board Chairman Smith, after seeing Manahan’s letter, asked the appeals board to reconsider its vote overturning the planning board’s denial. Smith said that because Manahan listed arguments both for and against allowing the second apartment, the correct way to solve the issue would be to amend the ordinance at a town meeting.

Smith got as far as being placed on the appeals board March 21 agenda, in order to try to convince the appeals board to reverse its decision. He withdrew his request after it was determined he did not have legal standing to request a reconsideration, because he wasn’t present when the appeals board took up the Searles case, and because he did not suffer a “particularized injury” from their ruling.

In a March 2 letter, Smith said the appeals procedure was not applied in reviewing Searles’ appeal, since the appeals board should only overturn decisions by the planning board that are “clearly contrary” to the ordinance. With the level of ambiguity in the ordinance cited by Manahan, the “clearly contrary” standard cannot be justified, Smith said.

“It is my firm belief that the town voters did not want the downtown area of Harrison to have apartment buildings, and that is why the words were put into the ordinance restricting apartments to existing single family residential structures, and limiting them to only one,” Smith wrote. “I believe the voters understood the need to allow a mother-in-law apartment. If the voters of Harrison have had a change of heart and now want apartments to be allowed in commercial structures within the LCD, then the voters should make that change, not the appeals board,” Smith argued.

The “unintended consequences” of the appeals board ruling, he wrote, would be that each of Searles’ offices now will be allowed to be converted to apartments — and such conversions would also apply to anyone else in the LCD. “I don’t believe this is what the voters wanted for our downtown,” he said.

Smith acknowledged that he doesn’t agree with many of the town’s ordinance provisions, especially the Shoreland Zoning Ordinance, which he said is “way too restrictive.”

The Lakes Environmental Association’s Colin Holme also weighed in on the matter, stating in a Jan. 12 letter that they agreed with the Planning Board’s ruling that Searles did not meet minimum lot size standards in the Shoreland Zone. Searles’ building sits on a 12,000-square-foot lot, and the minimum lot size in the Shoreland Zoning Ordinance is 40,000 square feet.

Holme also said Searles’ request did not rise to the level of an undue hardship, upon which most appeals are based. An undue hardship in Harrison means that, “The land in question cannot yield a reasonable return unless a variance is granted.” He said that the town needs to change the ordinance, since Searles’ request, on the face of it, seemed “appropriate” for the downtown village.