Jonathan R. DAY v. TOWN OF PHIPPSBURG et al.
Docket No. Sag-14-44
Supreme Judicial Court of Maine
Feb. 10, 2015
2015 ME 13 | 110 A.3d 645
Argued: Nov. 5, 2014.
[19] Although there are exceptions to the mootness doctrine, see Lewiston Daily Sun, 1999 ME 143, 117, 738 A.2d 1239, none of them apрlies here because the collateral consequences that would flow from the decision are not “more than conjectural and insubstantial consequences,” Sordyl v. Sordyl, 1997 ME 87, 116, 692 A.2d 1386 (quotation marks omitted); the appeal does not present an issue of great public concern, sеe Lewiston Daily Sun, 1999 ME 143, 117, 738 A.2d 1239; and the issues in this case are not so fleeting that, though capable of repetition, they evade review, see id. Because the controversy on appeal is moot and no exception to the mootness doctrine applies, we dismiss the appeal.3
The entry is:
Appeal dismissed.
Chris Neagle, Esq. (orally), Troubh Heisler, PA, Portland, for appellee Carol Reece.
Jessica L. Maher, Esq., Moncure & Barnicle, Topsham, for appellee Town of Phippsburg.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.*
JABAR, J.
[¶1] Jonathan R. Day appeals from a judgment entered in the Superior Court (Sagadahoc County, Horton, J.) in favor of*
I. BACKGROUND
[¶2] The dispute in this case concerns the status of two adjacent beachfront lots, labeled lots 113 and 114 on the Town of Phippsburg‘s Tax Map 14. Each of these lots contains less than 20,000 square feet and both have been vacant since 1951. In 1956, Joseph Spear acquired lot 114. In 1987, he acquired lot 113.
[¶3] In 1989, the PSZO required a beachfront lot to consist of at lеast 40,000 square feet in order to qualify for development. Phippsburg, Me., Shoreland Zoning Ordinance §§ 3.2.1, 3.2.4(1)(a) (March 1989). The then-effective ordinance contained a grandfather clause allowing limited development of a lot that failed to meet minimum lot-size requirements if the lot (1) was in existence at the effective date of adoption or amendment of the ordinance and (2) was not contiguous with another lot held in common ownership. Id. § 1.5.5(a). The ordinance also contained a merger clause requiring the combination of lots that were adjacent and held in common ownership at the time of adoption or amendment of the ordinance if all or part of the lots failed to meet minimum lot-size requirements. Id. § 1.5.5(b). As a result of this merger clause, lots 113 and 114 (which are contiguous with each other and were commonly owned by Spear) were merged intо a single, nonconforming, grandfathered lot in 1989.
[¶4] The 1989 merger clause further prohibited any separation of a merged lot that would result in a dimension or area that did not meet minimum lot-size requirements. Id. In 1991, despite this prohibition, Spear separated the lots, conveying lot 113 to Carol Reeсe and lot 114 to Mary Kate Izzo.
[¶5] In 2009, the Town amended a section of the PSZO titled “Non-conforming Lots” and established for that section a retroactive effective date of January 1, 1989. Phippsburg, Me., Shoreland Zoning Ordinance § 12(E) (June 9, 2009). The PSZO‘s amended merger clause required the combination оf lots that were contiguous and commonly owned as of January 1, 1989, if at least one of them was unimproved and at least one failed to meet the PSZO‘s lot-size requirements. Id. § 12(E)(3). The amendment permitted the continuance of a nonconforming condition (which was defined to include a nonсonforming lot) subject to the requirements of section 12. Id. §§ 12(A), 18(B).
[¶6] In April 2012, Reece requested a “no action letter” from the Phippsburg Board of Selectmen (Board) regarding any zoning violations that may have occurred when Spear separated lots 113 and 114. In response, the Board issued Rеece a Letter of No Enforcement stating that the Town would “not seek to enforce its ordinance with respect to the 1991 conveyances” and would “consider both lots to be lawful nonconforming lots.”
[¶7] Day owns property that abuts lot 113. After the Board issued its no action letter to Reece, Day twice requested clarification that the letter did not constitute a determination that lot 113 was a developa-
[¶8] In February 2013, Reece applied for a coastal sand dune рermit to develop lot 113. Two months later, Day filed a complaint against Reece and the Town, seeking a declaratory judgment that lot 113 is not a grandfathered nonconforming lot within the meaning of the PSZO. He then moved for summary judgment. In July 2013, Reece acquired lot 114 from Izzo. She then requested summаry judgment against Day.
[¶9] In December 2013, the court granted Reece‘s motion for summary judgment, concluding that (1) lots 113 and 114 were not merged under Spear‘s ownership and thus retained individual grandfathered status following their 1991 separation;1 and (2) even if lots 113 and 114 were merged in 1989, they enjoyed combined grandfathered status, which was lost by their 1991 separation, but restored when the lots returned to single ownership in 2013. Following Day‘s motion to alter or amend the judgment pursuant to M.R. Civ. P. 59(e), the court issued an amended decision withdrawing the conclusion that the lots did not merge under Spear‘s common ownership,2 but reiterating the conclusion that Reece had restored the lots’ grandfathered status by recombining them. From this judgment, Day timely appealed. See M.R.App. P. 2(b)(3).
II. DISCUSSION
[¶10] We review the award of summary judgment de novo, considering the evidence in the light most favorable to the nonprevailing party. Kurtz & Perry, P.A. v. Emerson, 2010 ME 107, ¶ 15, 8 A.3d 677. If there are no genuine issues of material fact, we consider whether the prevailing party was entitled to judgment as a matter of law. Doe I v. Williams, 2013 ME 24, ¶ 10, 61 A.3d 718.
[¶11] The facts in this case are not in dispute, and the parties also agree that lots 113 and 114 were merged by ordinance in 1989, when they were commonly owned by Spear. The only issue is whether, as a matter of law, Reece‘s recombination of lots 113 and 114 effected a resurrection of the grandfathered status that the lots had when they were merged under Spear‘s ownership.3 Resolution of this issue turns on the relationship between the PSZO provisions that limit continued nonconformities and those that prоvide grandfathered status.
[¶13] The PSZO states that its intent is to promote land use conformities, but it provides for a limited exception allowing preexisting nonconformities to “continue” subject to the requirements of section 12. Phippsburg, Me., Shoreland Zoning Ordinance § 12(A) (June 9, 2009). Seсtion 12(E)(1) of the Ordinance provides that a nonconforming lot of record may be built upon without the need for a variance if the lot is not contiguous with another lot held in common ownership. Id. § 12(E)(1).
[¶14] As applied to this case, there are two reasonable interpretations of the wоrd “continue” found in section 12(A). On one hand, the grandfathered status of the nonconforming lot created by merger in 1989 could be understood to “continue” to the present only if lots 113 and 114 remained merged at all times since 1989. On the other hand, the grandfathered status of the nonconforming lot creаted by merger in 1989 could be understood to “continue” to the present if the lot that existed in 1989 is identical to a lot that exists today.4
[¶15] To resolve this ambiguity, we consider relevant zoning objectives and the purposes served by the inclusion of grandfather clauses in zoning ordinances. “The policy of zoning is to abolish nonconformi[ties] as speedily as justice will permit.” Town of Windham v. Sprague, 219 A.2d 548, 552-53 (Me.1966). In light of this policy, zoning provisions that restrict nonconformities are liberally construed, and zoning provisions that allow nonconformities are strictly construed. Brackett v. Town of Rangeley, 2003 ME 109, ¶ 16, 831 A.2d 422. A grandfather clause, which allows the limited continuancе of nonconformities, is included in zoning ordinances in order to avoid takings challenges. Stewart v. Town of Durham, 451 A.2d 308, 311 & n. 6 (Me.1982). It is designed to strike a balance between a municipality‘s interest in abolishing nonconformities and the interests of property owners in maintaining land uses that were allowed when they purchased their рroperty. Id. at 311.
[¶16] In Farley v. Town of Lyman, 557 A.2d 197, 200-01 (Me.1989), we considered the effects of a merger, pursuant to a merger clause found in Lyman‘s zoning ordinance, of two adjacent, undersized, commonly owned lots into a single lot that complied with applicable lot-size requirements. We held that after their merger each lot lost its individual grandfathered status, and that that status could not be revived should the lots cease to be commonly owned. Id. at 201. This conclusion was supported by a section of the Lyman ordinance that provided that a nonconforming use could not be resumed once it
[¶17] In this case, construing the PSZO to preclude a resurrection of the grandfathered status of the again-merged lot would be in hаrmony with the purpose of grandfathering. See Stewart, 451 A.2d at 311 (explaining that grandfathering is designed to protect rights anticipated at the time property was purchased). Lots 113 and 114 lost individual grandfathered status when merged by ordinance in 1989, see Farley, 557 A.2d at 201, and lost collective grandfathered status when unlawfully seрarated by deed in 1991, see Phippsburg, Me., Shoreland Zoning Ordinance § 1.5.5(b) (March 1989) (prohibiting division of a merged lot); id. § 1.5.4 (requiring compliance with the PSZO as a condition to the grandfathered continuance of a nonconformity). When Reece acquired lots 113 and 114, each lot was nonconforming and not grandfathered, and thus neither could be developed without a variance. Because Reece did not have the right to develop the lots without a variance when she acquired them, construing the PSZO to deny her that right today does not divest her of anything.
[¶18] We conclude that the stricter interpretation of the PSZO advocated by Day promotes land use conformities better than the more relaxed interpretation advocated by Reece. In Farley, we interpreted the Lyman zoning ordinance to provide that a nonconforming lot irreversibly loses its individual grandfаthered status when it is merged with another lot to create a conforming lot. 557 A.2d at 201. Here, we interpret the PSZO to provide that the grandfathered status of a merged nonconforming lot is permanently lost when that merged lot is unlawfully divided.5
The entry is:
Judgment vacated. Remanded to the Superior Court for further prоceedings consistent with this opinion.