GEOFFREY S. STIFF et al. v. TOWN OF BELGRADE et al.
Ken-23-87
MAINE SUPREME JUDICIAL COURT
August 20, 2024
2024 ME 68
Argued: October 4, 2023.
CONNORS, J.
[¶1] Geoffrey S. Stiff and Carolyn B. Stiff appeal from a judgment of the Superior Court (Kennebec County, Stokes, J.) denying their appeal from the Town of Belgrade Planning Board’s grant of an after-the-fact shoreland zoning permit for a structure on the property of their abutting neighbors, Stephen C. Jones and Jody C. Jones. See
I. BACKGROUND
[¶2] The following facts are drawn from the administrative and procedural records. See Fair Elections Portland, Inc. v. City of Portland, 2021 ME 32, ¶ 11, 252 A.3d 504.
[¶3] The Stiffs own a lot on Long Pond in Belgrade. The Joneses own the neighboring property, a 1.23-acre legally non-conforming lot located within the limited residential district of the Belgrade shoreland zone.1
[¶4] The SZO allows for only one residential dwelling unit on the Joneses’ lot. See Belgrade, Me., Shoreland Zoning Ordinance § 15(A)(1)(a) (Nov. 6, 2018).2 Before the Joneses constructed the structure at issue in this appeal, the Joneses’ lot contained a 1981 square foot three bedroom house and a shed. That pre-existing house is a non-conforming structure and cannot be expanded because it is located entirely within the minimum setback from the normal high-water line of Long Pond. See id. §§ 12(C)(1)(c)(i), 15(B)(1).
[¶5] In 2017, the Joneses sought a permit to build what was described in their application as a twenty-six by twenty-six-foot “garage” with a “laundry room” and a “playroom.” The Code Enforcement Officer (CEO) issued a permit to build the structure as described in the application, although he had no authority to do so. See id. § 14(Table 1)(16)(A).
[¶6] Subsequently, while the Stiffs were away, instead of building the structure approved in the CEO-issued permit, the Joneses built a two-story, 36.2-foot by 28.4-foot structure with three bedrooms, two bathrooms, a laundry room, and a room that was labeled “playroom” on a building sketch. The “playroom” included a sink and kitchen appliances. A paved walkway was built between the pre-existing house and the new structure, consistent with the Joneses’ objective of having the new structure “serve as an addition to [their] single family dwelling.”
[¶7] The Stiffs objected. Eventually, the Joneses applied to the Planning Board for an after-the-fact as-built permit for the new structure. The Joneses’ application described the new structure as containing “square footage” of 1028 feet.
[¶8] The Planning Board approved the permit with the condition that the “[i]nstallation of kitchen appliances and the preparation of meals is prohibited in the proposed structure.” The Stiffs appealed to the Board of Appeals (BOA), which remanded the matter because the Planning Board’s approval lacked findings of fact or conclusions of law. On remand, the Planning Board again approved the Joneses’ permit, finding as a fact that the new structure was a “1028-square foot structure“; repeating its previous “kitchen appliance” prohibition condition, which required appliances to be removed;3 and concluding as a matter of law that the new
[¶9] The Stiffs again appealed to the BOA, then filed a complaint in the Superior Court after the BOA denied their appeal. See
II. DISCUSSION
A. Our standard of review: the deference we give to components of a local board’s decision varies.
[¶10] Because the BOA acted in an appellate capacity and the Superior Court in an intermediate appellate capacity, we review directly the decision of the Planning Board. Tomasino v. Town of Casco, 2020 ME 96, ¶ 5, 237 A.3d 175; Stewart v. Town of Sedgwick, 2000 ME 157, ¶ 4, 757 A.2d 773.
1. We review a local board’s findings of fact with deference.
[¶11] We defer to a local board’s findings of fact unless they are clearly erroneous. Tominsky v. Town of Ogunquit, 2023 ME 30, ¶ 21, 294 A.3d 142. A factual finding is clearly erroneous when “no competent evidence in the record . . . support[s] the finding; the finding is based on a clear misapprehension of the meaning of the evidence; or the force and effect of the evidence, taken as a whole, rationally persuades to a certainty that the finding is so against the great preponderance of the believable evidence that it does not represent the truth and right of the case.” H.E. Sargent, Inc. v. Town of Wells, 676 A.2d 920, 923 (Me. 1996) (quotation marks omitted).
2. We review a local board’s interpretation of an ordinance de novo with no deference to the board’s interpretation.
[¶12] The interpretation of an ordinance is a question of law that we review de novo, with no deference to the local board’s interpretation. Tominsky, 2023 ME 30, ¶ 22, 294 A.3d 142; Portland Reg‘l Chamber of Com. v. City of Portland, 2021 ME 34, ¶ 23, 253 A.3d 586. We construe the terms of an ordinance “reasonably, considering its purposes and structure and to avoid absurd or illogical results,” Olson v. Town of Yarmouth, 2018 ME 27, ¶ 11, 179 A.3d 920 (quotation marks omitted), and we give any undefined terms in an ordinance “their common and generally accepted meaning unless the context clearly indicates otherwise.” Lakeside at Pleasant Mountain Condo. Ass‘n v. Town of Bridgton, 2009 ME 64, ¶ 12, 974 A.2d 893. As with construing statutes, our task is to “discern the intent of the legislative bodies that enact them.” Rockland Plaza Realty Corp. v. City of Rockland, 2001 ME 81, ¶ 18, 772 A.2d 256.
3. We defer to a local board’s characterization of a use if it is greatly informed by the board’s factual findings.
[¶13] In Jordan v. City of Ellsworth, we stated:
The characterization of structures in applications for conditional use permits is a mixed question of law and fact. When there is no ambiguity in the language of the ordinance, we ordinarily review a Board’s characterization of a structure as a finding of fact, giving deference to the Board’s ultimate conclusion. Goldman v. Town of Lovell, 592 A.2d 165, 168 (Me. 1991) (“[W]hether or not the proposed structure or use meets the definition in the application thereof may be a matter of fact for initial Board determination.“). This factual determination will only be overturned if it is not adequately supported by evidence in the record.
Interpretations of municipal ordinances, however, are questions of law subject to de novo review. The terms or expressions in an ordinance are to be construed reasonably with regard to both the objectives sought to be obtained and the general structure of the ordinance as a whole. Thus, we review the interpretation of the ordinance de novo, but we afford the Board’s ultimate characterization of the structure substantial deference.
2003 ME 82, ¶¶ 8-9, 828 A.2d 768 (citations and quotation marks omitted).
[¶14] After our decision in Jordan, we further explained that deference to a board’s characterization of use is warranted when the characterization decision is “greatly informed” by a factual determination. Tominsky, 2023 ME 30, ¶ 22, 294 A.3d 142 (citing Lane Constr. Corp. v. Town of Washington, 2008 ME 45, ¶ 13, 942 A.2d 1202); see also Fryeburg Tr. v. Town of Fryeburg, 2016 ME 174, ¶ 12, 151 A.3d 933. In short, we defer when the characterization determination is primarily fact dependent, while we do not defer when resolution of the question revolves primarily around the interpretation of language in the ordinance.6
B. The second structure is not an accessory structure as defined in the SZO.
[¶15] The SZO defines “[a]ccessory structure or use” as
a use or structure which is incidental and subordinate to the principal use or structure. Accessory uses, when aggregated shall not subordinate the principal use of the lot. A deck or similar extension of the principal structure or a garage attached to the principal structure by a roof or a common wall is considered part of the principal structure.
Belgrade, Me., Shoreland Zoning Ordinance § 17.
[¶16] The SZO does not define “incidental” or “subordinate.” Hence, as noted, see supra ¶ 12, we construe these terms in accordance with their common and generally accepted meanings. The common understanding of these two terms is having a minor or secondary role.7
[¶17] As a structure,8 the new building here replicates the pre-existing house. They are similar in size.9 Both include three bedrooms, two bathrooms, a common living space, a room with a sink in which appliances were or are easily located, and a covered outdoor space.
[¶18] The terms “accessory use” and “accessory structure” are not interchangeable. See Four Seasons Mgmt. Servs., Inc. v. Town of Wrightsville Beach, 695 S.E.2d 456, 464 (N.C. Ct. App. 2010). Both structures here, as built, are houses, with neither secondary nor minor to the other. See Davidson v. D.C. Bd. of Zoning Adjustment, 617 A.2d 977, 982 (D.C. 1992) (reading a district regulation to say that a building is not an accessory building “where given its size, design and declared purposes, it can reasonably be expected to duplicate the functions of the main building rather than in fact serving as incidental to those uses“).
[¶19] The question presented here is whether a structure not built or designed as accessory can be transformed into an accessory structure if one activity (cooking) normally occurring in the (residential) use of the principal structure is prohibited in the second structure. The answer to this legal question is no.10
accessory. Rather, to be accessory, the activity carried out in the second structure must complement, not duplicate, the use of the principal structure. See Forster v. Town of Henniker, 118 A.3d 1016, 1026 (N.H. 2015) (“An accessory use is not the principal use of the property, but rather a use occasioned by the principal use and subordinate to it.” (quotation marks omitted)). As the New Hampshire Supreme Court has explained, “[t]he rule of accessory use is a response to the impossibility of providing expressly by zoning ordinance for every possible lawful use“; it is a use that is not expressly permitted but is incidental and subordinate to the principal use. Fox v. Town of Greenland, 864 A.2d 351, 357 (N.H. 2004) (quotation marks omitted); see also Hannigan v. City of Concord, 738 A.2d 1262, 1266 (N.H. 1999); Arden H. Rathkopf et al., 2 Rathkopf‘s The Law of Zoning and Planning § 33.4 (4th ed. 2024) (“[A] true accessory use . . . is distinguishable from and of a different nature than the principal use.“).
[¶21] Second, as noted, see supra ¶ 6, the Joneses were candid about their objective in building the new structure: to build an addition to their pre-existing structure. An addition to a principal structure is not an accessory structure. See Patricia E. Salkin, 1 American Law of Zoning § 9:28 (5th ed. 2024) (“An addition to a main building or structure on a lot is not an accessory building or structure.“).
[¶22] This conclusion is reinforced by the last sentence of the SZO‘s definition of “[a]ccessory structure or use,” providing that a deck or “similar extension of the principal structure or a garage attached to the principal structure by a roof or a common wall is considered part of the principal structure.” Belgrade, Me., Shoreland Zoning Ordinance § 17. To allow the Joneses to extend the pre-existing house by chopping the structures in two or not covering the walkway between them would defeat the language and purpose of the restriction.
[¶23] Third, relatedly and more broadly, there is a reason why the SZO precludes expansions near waterbodies—to protect the watershed. See id. § 1 (listing the purposes of the Ordinance). Conformity with a protective condition must be promoted, not disregarded. See id.
[¶24] Fourth, we do not construe ordinance provisions in a manner that invites subterfuge and circumvention. Cf. Christy‘s Realty Ltd. P‘ship v. Town of Kittery, 663 A.2d 59, 62 (Me. 1995) (providing that a competing walk-in convenience store showed a particularized injury for standing purposes because while the new drive-thru convenience store would “ostensibly prohibit walk-in or walk-up business, there is a potential that this requirement would not be rigorously enforced,” and its customers would use the walk-in store‘s parking spaces).
[¶25] An Oregon decision is instructive. In Yunker v. Means, 530 P.2d 846, 847 (Or. 1975), property owners built a second-story deck attached to their house. Id. Neighbors complained, noting that the expansion violated setback requirements. Id. The owners then removed timbers attaching the deck to the back side of the house and asserted that the deck was thereby transformed into an allowed “accessory building,” defined in the ordinance as “a subordinate building, the use of which is clearly incidental to that of the main building on the same lot.” Id. (alterations and quotation marks omitted). The Oregon Supreme Court disagreed: “It is our opinion that the deck is not a detached accessory structure as contemplated by the ordinances. The apparent detaching of the deck was merely a subterfuge and did not comply with the spirit of the ordinances.” Id.
[¶26] Similarly, in Kamp v. Stebens, 517 N.W.2d 227, 228 (Iowa Ct. App. 1994), a property owner attempted to avoid a restriction on accessory buildings by attaching the second to the first with a breezeway. The appellate court affirmed the rejection of this attempt, remarking that “[i]n referring to the use of the ‘breezeway’ process of converting the new garage to part of the existing house, the trial court used terms such as ‘circumvent,’ ‘ploy to frustrate,’ and we might add ‘subterfuge’ as a descriptive term of such process.” Id. at 229.
[¶27] The invitation for widespread evasion of the SZO flowing from an interpretation that would deem a structure accessory if one component of the principal structure’s use were ostensibly prohibited is further supported in this record. Compliance with the condition imposed by the Planning Board is not readily determined and is difficult to enforce, especially given the absence of any provision for the Town or the Stiffs to monitor compliance. The CEO apparently will not deem a standard major appliance to be a “kitchen” appliance if it is located in the “garage.” The Joneses can still install appliances, cooking or not, outside, near the “playroom” with the sink. It is unclear whether washing dishes in that sink (and perhaps in an installed dishwasher) would violate the condition.
[¶28] Fifth, and relatedly, an interpretation that allows transformation from an accessory structure into a non-accessory structure by an ambiguous and difficult-to-enforce
[¶29] Whether, as a matter of fact, any bad faith can be ascribed to any actor in the regulatory process that occurred in this instance—something upon which we do not opine—as a matter of ordinance construction, to interpret the SZO language as being so malleable would be inconsistent with both its letter and spirit.
III. CONCLUSION
[¶30] In summary, the Joneses’ new structure as built does not meet the SZO’s definition of an accessory structure, and the condition imposed by the Planning Board did not transform that structure into one meeting the definition of an accessory structure contained in the SZO.
The entry is:
Judgment vacated. Remanded to the Superior Court with instructions to remand the matter to the Board of Appeals with instructions to remand to the Planning Board for further proceedings consistent with this opinion.
Chris Neagle, Esq. (orally), Neagle Law LLC, Cumberland, for appellants Geoffrey S. Stiff and Carolyn B. Stiff
Philip R. Saucier, Esq., and Zachary B. Brandwein, Esq. (orally), Bernstein Shur, Portland, for appellee Town of Belgrade
John A. Cunningham, Esq. (orally), Eaton Peabody, Portland, and Judy A.S. Metcalf, Esq., Judy Metcalf Law, Brunswick, for appellees Jody C. Jones and Stephen C. Jones
Kennebec County Superior Court docket number AP-2021-06
FOR CLERK REFERENCE ONLY