SHAWN A. GRANT v. TOWN OF BELGRADE
Ken 19-94
MAINE SUPREME JUDICIAL COURT
December 5, 2019
2019 ME 160
MEAD, J.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ. Argued: October 9, 2019. Reporter
MEAD, J.
[¶1] Shawn A. Grant appeals from a judgment of the Superior Court (Kennebec County, Stokes, J.) pursuant to
I. BACKGROUND
[¶2] The following facts are drawn from the BOA‘s findings, which are supported by the record. See
[¶3] In 2008, the Town‘s Planning Board approved Grant‘s application for a home occupation permit to conduct “[b]oat cleaning, painting and varnishing” for his new business, “Brightside Boat Services,” at 21 Hulin Road. Over the next decade, Grant
[¶4] In 2018, Grant submitted applications to the Planning Board for a seasonal dock and boat rental business at the 24 Hulin Road property under the Commercial Development Review Ordinance (CDRO) and the Shoreland Zoning Ordinance (SZO).1
[¶5] Grant filed an appeal with the BOA on May 3, 2018, arguing that the Planning Board misinterpreted the SZO. The BOA conducted a de novo hearing, considering all potentially applicable Town Ordinances—the SZO, CDRO, and Minimum Lot Size Ordinance (MLSO).
[¶6] The BOA‘s key conclusions were as follows: Grant‘s use of 24 Hulin Road for Brightside‘s activities constitutes a commercial use; Section 11 of the SZO prevents a change in use from residential to commercial that is not grandfathered under the SZO; Section 12(E) of the SZO, which allows for nonconforming lots, does not allow changes in use on a nonconforming lot when minimum lot standards are not met; and the MLSO prevents a change in use that renders a nonconforming lot less conforming. As to the CDRO permit, the BOA‘s sole basis for denial was that the 24 Hulin Road property failed to conform to the requirements of other Ordinances, namely the SZO and MLSO.
[¶7] Grant appealed the BOA‘s decision to the Superior Court pursuant to
II. DISCUSSION
[¶8] When the Superior Court acts as an intermediate appellate court, we review directly the operative decision of the municipality for “abuse of discretion, errors of law, or findings not supported by the substantial evidence in the record.” Gensheimer v. Town of Phippsburg, 2005 ME 22, ¶¶ 7, 16, 868 A.2d 161 (quotation marks omitted).
[W]hether the operative decision of the municipality is the Planning Board decision or the decision of the Board of Appeals depends on the type of review that the Board of Appeals is authorized to undertake and what kind of review that Board actually performs: If the Board of Appeals acted as a tribunal of original jurisdiction, that is, as factfinder and decision maker, we review its decision directly. If, however, the Board acted only in an appellate capacity, we review directly the decision of the Planning Board . . . .
Id. ¶ 7 (quotation marks omitted).
A. Grant‘s 2008 Home Occupation Permit
[¶9] Grant argues that his 2008 home occupation permit allows his use at 24 Hulin Road. Because the meaning of commercial use is unambiguous as utilized in the ordinance, the BOA‘s characterization of his use at 24 Hulin as a commercial use is a finding of fact. See Goldman v. Town of Lovell, 592 A.2d 165, 168 (Me. 1991). Because the appellant had the burden of proof before the BOA, we will set aside the BOA‘s finding of fact only if the record compels a contrary finding. See Anderson v. Me. Pub. Emps. Ret. Sys., 2009 ME 134, ¶ 3, 985 A.2d 501.
[¶10] Grant argues specifically that his use of 24 Hulin Road is not a new commercial use because his 2008 home occupation permit applied to both 21 and 24 Hulin Road. It did not. Grant‘s theory rests on the fact that he wrote “1.6 Acres” under “Total lot area” on the home occupation permit application, which is the total area of his three lots combined. The permit application, however, specifically identified only “Hulin Rd. (21)” under “Specific location of property,” and Grant left blank the space after “Name of Lake/Pond/Stream (if applicable).” The scope of the permit was thus limited to the property at 21 Hulin Road.
[¶11] Additionally, the home occupation permit clearly does not allow Grant‘s current and proposed uses at 24 Hulin Road. The 2008 home occupation permit for “Brightside Boat Services” lists under business type simply “Boat cleaning, painting and varnishing.” The BOA did not err when it concluded that Grant‘s 2008 home occupation permit did not extend to include his present activities at 24 Hulin Road, and the record does not compel a contrary result.
B. The Town‘s Authority to Regulate Docks
[¶12] Further, Grant contends that the Town lacks the authority to regulate docks. Grant is correct that, when the Town drew from the State Guidelines for Municipal Shoreland Zoning Ordinances in drafting its SZO, it opted to omit the model section regulating docks. Compare
[¶13] Although the BOA did not make a finding categorizing Grant‘s activity as a
C. Ordinance Interpretation
[¶14] We review a municipal board‘s interpretation of a local ordinance de novo as a question of law. Dunlop v. Town of Westport Island, 2012 ME 22, ¶ 15, 37 A.3d 300. Because zoning ordinances, like statutes, derogate from common law, they are “strictly construed.” Forest City, Inc. v. Payson, 239 A.2d 167, 169 (Me. 1968). “We examine an ordinance for its plain meaning and construe its terms reasonably in light of the purposes and objectives of the ordinance and its general structure. If an ordinance is clear on its face we will look no further than its plain meaning.” Town of Minot v. Starbird, 2012 ME 25, ¶ 14, 39 A.3d 897 (citations omitted) (quotation marks omitted).
[¶15] Grant‘s core argument is that section 12(E)(1) of Belgrade‘s SZO, which pertains to nonconforming lots, exempts 24 Hulin Road from lot area and shore frontage requirements found elsewhere in the SZO. We agree with the BOA‘s interpretation that section 12(E)(1) must be read in light of other provisions in the Ordinances, and we conclude that the BOA did not err in determining that Grant‘s change of use from residential to commercial would render the lots less conforming.
[¶16] Section 12(E)(1) of the SZO, which excepts nonconforming lots from area, shore frontage, and lot width requirements, provides:
A non-conforming lot of record as of May 4, 1976,2 may be built on without the need for a variance provided that such lot is in separate ownership and not contiguous with any other lot in the same ownership, that the State Minimum Lot Size Law and Subsurface Waste Disposal Rules are complied with, and that all provisions of this Ordinance except lot area, shorefrontage, and minimum lot width can be met. Variances relating to setback or other requirements not involving lot size or frontage shall be obtained by action of the Board of Appeals.
Except as hereinafter specified, no building, structure or land shall hereafter be used, changed in use, or occupied, and no building or structure or part thereof shall hereafter be erected, constructed, expanded, relocated, replaced, reconstructed, or altered except in conformity with all of the regulations herein specified for the district in which it is located, unless a variance shall have been granted.
It is the intent of this Ordinance to promote land use conformities, except that non-conforming conditions that existed before the effective date of this Ordinance, or amendments thereto, shall be allowed to continue, subject to the requirements set forth in this
section. Except as otherwise provided in this ordinance a non-conforming condition shall not be permitted to become more non-conforming.
A. Transfer of Ownership: Non-conforming lots may be transferred, and the new owner may continue the existing use of the non-conforming lot, subject to the provisions of this Ordinance. The use of a non-conforming lot existing on the effective date [of] this Ordinance may not be changed to any other use for which the lot would be less conforming under the provisions of this Ordinance.
[¶17] On a preliminary note, we address the parties’ dispute concerning whether the MLSO applies in addition to the SZO. We conclude that the two Ordinances apply concurrently. The MLSO states that “concurrent applicability or conflict notwithstanding, land use within the Shoreland Zone of the Town of Belgrade shall be permitted only in accordance with the land use standards of the Shoreland Ordinance of the Town of Belgrade.”
[¶18] Grant‘s lots at 24 Hulin Road are in the Limited Commercial District and currently support a residence. Their nonconformities arise from their area and shore frontage shortfalls. Specifically, the SZO and MLSO require a lot with residential uses to be at least 40,000 square feet, and the SZO mandates at least 200 feet of shore frontage.
[¶19] The BOA reasonably concluded that the greater lot area and frontage standards required of a commercial use relative to a residential use rendered the lots less conforming when put to a commercial use. Although not specifically cited by the BOA, the SZO expressly supports the BOA‘s determination in stating that “a non-conforming condition shall not be permitted to become more non-conforming.”
[¶20] Grant contends that section 12(E)(1) exempts his nonconforming lots from any area and shore frontage requirements for uses allowed in the Limited Commercial District. He emphasizes the following language of SZO sections 11 and 12(A) to support this theory: “Except as hereinafter specified” (section 11) and “Except as otherwise provided in this ordinance” (section 12(A)), arguing that this language demonstrates that sections 11 and 12(A) are not applicable because section 12(E)(1) operates as an exception to them.
[¶21] First, the minimum lot area and shore frontage requirements provided in SZO section 15 vary based on the use of the lot.
[¶22] Finally, Grant‘s interpretation of section 12(E)(1) of the SZO would permit unlimited construction on legally nonconforming lots such as his own. The language of section 12(E)(1) allows nonconforming lots to be “built on” so long as all requirements apart from dimensional “lot area, shorefrontage, and minimum lot width can be met.”
[¶23] A logical reading of “built on” does not, as Grant claims, “limit section 12(E)(1) to uses that have already occurred.” Instead, section 12(E)(1) permits construction as provided by its own language that also does not exceed the limits of the other relevant provisions in the Town‘s Ordinances—SZO sections 11, 12(A) and MLSO section 4(A). Importantly, these other sections of the Ordinances do not bar all changes in use on nonconforming lots; they only prevent changes in use on nonconforming lots that increase the nonconformity
[¶24] To the extent that any lingering ambiguity surrounds these ordinance sections, we consider relevant zoning principles and objectives. See Day v. Town of Phippsburg, 2015 ME 13, ¶ 15, 110 A.3d 645.
Because the intent of zoning is generally to abolish nonconforming structures and uses, zoning provisions that restrict nonconformities are liberally construed, and zoning provisions that allow nonconformities are strictly construed.
Wolfram v. Town of N. Haven, 2017 ME 114, ¶ 9, 163 A.3d 835 (quotation marks omitted); accord Day, 2015 ME 13, ¶ 15, 110 A.3d 645. Therefore, we may construe SZO section 12(E)(1) strictly and read SZO sections 11 and 12(A) and MLSO section 4(A) liberally to bar a change in use that makes a nonconforming lot more nonconforming. This canon of construction is grounded in the purpose of grandfathering clauses, which is to avoid constitutional takings challenges. Day, 2015 ME 13, ¶ 15, 110 A.3d 645. Grandfathering clauses are “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 property.” Id. In sum, grandfathering clauses such as those in the Town‘s Ordinances allow landowners to continue the reasonable investment-backed expectations they had when they bought their properties, but they do not to permit expansions or changes to nonconforming conditions indefinitely.
The entry is:
Judgment affirmed.
Edmond J. Bearor, Esq. (orally), Jonathan P. Hunter, Esq., and Stephen W. Wagner, Esq., Rudman Winchell, Bangor, for appellant Shawn A. Grant
Michael A. Hodgins, Esq. (orally), Eaton Peabody, Bangor, for appellee Town of Belgrade
Kennebec County Superior Court docket number AP-2018-64
FOR CLERK REFERENCE ONLY