Portland ZBA denies variance for unpermitted Peaks Island deck; applicant may appeal

The City of Portland Zoning Board of Appeals on Feb. 6, 2025 denied a practical-difficulty variance sought by Carl Henry for a deck that was rebuilt without a permit on Peaks Island.

The applicant sought variances from two dimensional standards in the island residential zone: the 20-foot minimum side setback and the maximum lot-coverage limit that applies in the IR-2 zone. Henry told the board the contractor who built the deck did not take a permit and was fired; he said the house has been unrentable while the matter is unresolved and that a stamped survey (requested by city staff) could not be obtained before winter.

Board members reviewed the record and deliberated on the practical-difficulty criteria used for dimensional variances. The board found that strict application of the ordinance would not entirely preclude the residential use of the property (the house could be reconstructed within its prior footprint) and that the applicant had not met the burden under the practical-difficulty standard to allow an expansion of a nonconforming structure. The zoning administrator had told the applicant the city would accept restoring the prior nonconforming footprint as an administrative remedy; the applicant instead sought a variance for the larger footprint.

At the end of deliberations the board voted by roll call. Ryan Lazanek recused from the matter for a disclosed conflict of interest. Remaining members voted to deny the practical-difficulty variance (roll-call yes votes: Todd Morris, Thomas Larrero, Andrew Weaver, Nancy English, Laura Burden). The board’s finding page records that the standards were not satisfied and the variance therefore was denied.

During testimony Henry said the new deck “was not completed” and that the house has sat “in limbo with an unrentable house now for 2 years.” He also told the board a realtor commented in a letter that the property would be worth substantially less if limited to the smaller deck; the realtor’s $75,000 figure was included in the record but the board did not adopt that dollar amount as dispositive of the economic-injury standard.

The board noted continuing uncertainties about whether part of the deck intrudes onto a mapped paper street; staff told the board surveyors generally will not travel to Peaks Island until spring and that the zoning administrator sometimes requires a stamped survey to determine lot lines for permitting. The city may still require a survey to resolve that boundary question; denial of the variance does not preclude the applicant from administrative or judicial appeals.

The applicant thanked the board for its review and said he will consider an appeal of the decision.