Bassett v. The Inh. of the city of Biddeford

• Court: Superior Court of Maine
• Decided: July 5, 2013
• Docket: YORap-12-033and20
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION

ROBERT and DOROTHY BASSETT, ) ) AP-12-20 I I DOCKET NO. AP-12-033 &

0 oN -- /0/K- 7 5 /d 0 (j 1 Plaintiffs, ) ) v. ) ) THE INHABITANTS OF THE CITY ) OF BIDDEFORD, ) ORDER ) Defendant, ) ) MICHAEL AND JODI SMALL, ) ) Parties-in-Interest. )

I. Background

Petitioners, Michael and Jodi Small own the property located at 4-6 Lester B.

Orcutt Boulevard, Biddeford Pool, Maine, Tax Map 59, Lot 113 (the "Property"). The

Property is located in the W-3, CR, and LC Zones. The Property has five occupancies: a

U.S. Post Office, a commercial kayak rental business, a commercial boat storage

business, and two dwellings. On October 4, 2010, Roby Fecteau, the Code Enforcement

Officer ("CEO"), issued a letter stating that the structure on the Property had four legally

existing nonconforming uses. The letter named the above uses with the exception of

commercial boat storage, and stated that the nonconformities on the Property arise from

Article XIV, Section 12 of the Land Development Regulations.

On August 10, 2011, Petitioners filed an application with the Planning

Department for shoreland zoning and site plan approval to: (a) convert the use of the low-

bay garage from a commercial kayak business to a residential garage; (b) construct a

1 residential addition roof deck above the low-bay garage, and (c) combine the residential

low-bay garage and the addition into a single residential unit. The Planning Board held

hearings on the application on September 7 and October 5, 2011.

During the October 5, 2011 hearing, the Board voted that the proposed project

met eight of the nine general review criteria for projects in the Shoreland Zone. The

Board initially voted that the project did not meet the ninth criteria finding that the

project was not "in conformance with the provisions of Section 15, Land Use Standards".

Initially, the Planning Board voted that the project did not meet the ninth criteria because

while the boat storage had previously existed, the CEO had not recognized the boat

storage as a legally nonconforming use. Continuing to allow the boat storage rental and

allowing a swap of the kayak rental space for residential space would increase the

number of uses on the property from four to five and therefore increase the density.

During the hearing, Petitioner asked the Planning Board to consider, in the alternative,

approval of the permit on the condition that the Petitioners cease use of the high-bay

garage for boat storage. The Planning Board voted to approve the permit with the

condition that there be no commercial use of the garage bays. On October 5, 2011, the

Biddeford Planning Board granted a Shoreland Zoning Permit and Site Plan for

Petitioners' Property to convert a portion of the property from commercial to residential

use. On December 21, 2011, the City Planner issued the Planning Board's Notice of

Decision together with Findings ofFact and Conclusions of Law. The approval required

the Petitioners to cease using the high-bay garage for boat storage.

On November 4, 2011, the Petitioners filed an Administrative Appeal of the

portion of the Planning Board's decision that required the Petitioners to stop storing boats

2 in the high-bay garage. On February 8, 2012, the Zoning Board of Appeals (ZBA) held a

public hearing on the Petitioners Administrative Appeal. The ZBA received no new

evidence but did receive oral and written arguments. The ZBA has appellate review of

decisions of the Planning Board.

On March 20, 2012, the ZBA determined that the record of the Planning Board

proceedings was inadequate and remanded the matter for further findings of fact on the

number of occupancies at the Property. Upon review, the Planning Board found that there

were five legally nonconforming occupancies on the Property. On July 10, 2012, the

ZBA granted the Petitioners' appeal of the condition placed on the Planning Board's

approval of the Shoreland Zoning Permit/Site Plan requiring that existing boat storage be

eliminated and the entire garage must be converted to residential use.

Plaintiffs bring this 80B appeal challenging the issuance of the permit pursuant to

the Municipal Code of the City ofBiddeford.

ll. Standard

The Court reviews a decision of a state agency solely for "whether the [agency]

correctly applied the law and whether its fact findings are supported by any competent

evidence." McPherson Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998 :ME 177,

~ 6, 714 A.2d 818. The Court must affirm the agency's finding of fact unless they are

clearly erroneous. 5 M.R.S. § 11007(3) (2011); Green v. Comm'r of the Dep't ofMental

Health, 2001 :ME 86, ~ 9, 776 A.2d 612. Matters oflaw are determined de novo.

HE. Sargent, Inc. v Town of Wells, 676 A.2d 920, 923 (Me. 1996). The burden of

persuasion is born by the party seeking to vacate the agency's decision. Bizier v. Town of

Turner, 2011 :ME 116, ~8, 32 A.3d 1048; Anderson v. Me. Pub. Employees Ret. Sys, 2009

3 l\1E 134, ,-r3, 985 A.2d 501. Ifthe 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, or other previous tribunal, not the Board of Appeals. Stewart v. Town

of Sedgwick, 2000 l\1E 157, ,-r 4, 757 A.2d 773.

Til Discussion

a. Standing

The Defendant challenges the Plaintiffs' standing to bring the appeal arguing that

Plaintiff failed to preserve their argument at the administrative level. "[I]n order to have

standing to file an 80B appeal in the Superior Court, the appellant must prove (1) that it

was a party at the administrative proceeding, and (2) that it suffered a particularized

injury as a result of the agency's decision." Friends ofLincoln Lakes v. Town ofLincoln,

2010 l\1E 78, ,-r 8, 2 A.3d 284, 287 (citations omitted). Both Plaintiffs and Defendant have

pled that Plaintiffs attended and participated in proceedings at the administrative level.

Plaintiffs submitted a written list of their objections to the issuance of the permit to the

Planning Board on September 7, 2011. (R. 25). The list of objections presented was

sufficient to put all parties on notice of Plaintiffs' objections and to allow the Planning

Board to address the concerns raised. See Oliver v. City of Rockland, 1998 l\1E 88, ,-r 7,

710 A.2d 905, 907. The Court finds that Plaintiff satisfied the first prong of the two-part

standing test.

The Law Court has consistently held that a neighbor of a property granted a

building permit need not show a high degree of proof of particularized injury in order to

bring an appeal. See Brooks v. Cumberland Farms, Inc., 1997 l\1E 203, ,-r1 0, 703 A.2d

4 844, 847; Christy's Realty Ltd. Partnership v. Town of Kittery, 663 A.2d 59, 61-62

(Me.1995); Forester v. City ojWestbrook, 604 A.2d 31, 32 (Me.1992). As Plaintiffs'

property abuts the property on which the permit was granted, Plaintiffs have satisfied the

second prong of the two-part standing test.

b. Challenge of the Permit

Plaintiffs challenge the issuance of the permit allowing Petitioners to alter the

nonconforming structure. "A nonconforming structure may be added to or expanded after

obtaining a permit from the same permitting authority as that for a new structure, if such

addition or expansion does not increase the nonconformity of the structure" Art. XIV.

12(C)(1). In order to obtain a permit for the expansion ofthe building, Petitioner must

have met the following general review criteria for projects in the Shoreland Zone:

1. Will maintain safe and healthful conditions; 2. Will not result in water pollution, erosion, or sedimentation to surface waters; 3. Will adequately provide for the disposal of all wastewater; 4. Will not have an adverse impact on spawning grounds, fish, aquatic life, bird or other wildlife habitat; 5. Will conserve shore cover and visual, as well as actual, points of access to inland and coastal waters; 6. Will protect archaeological and historic resources as designated in the comprehensive plan; 7. Will not adversely affect existing commercial fishing or maritime activities in a commercial fisheries/maritime activities district; 8. Will avoid problems associated with floodplain development and use; and 9. Is in conformance with the provisions of Section 15, Land Use Standards.

City of Biddeford, Me., Code Art. XIV§ 16(D). The Planning Board reviewed

Petitioners' plan and found that it met all of the above criteria without amendment with

the exception of the ninth criteria. After Petitioners amended the plan to exclude the boat

storage, the Planning Board found that all nine criteria were met. Plaintiffs argue that the

5 density, draining, and parking on the site are not in conformance with Section 15.

Plaintiff also argues that the site should have been considered a multifamily dwelling and

assessed under Article XI accordingly. As such, Plaintiffs contend that the project does

not meet the requirements set out in the Code and a permit should not have been issued.

1. Density

Plaintiffs challenge the issuance of the permit on the basis that the plan allegedly

is not in conformity with the density requirements of the Code. According to Art. XIV§

15(A), a residential dwelling requires a smaller minimum lot (30,000 within the

Shoreland Zone adjacent to tidal areas) than does a commercial structure (40,000). Art.

XIV § 15(A). However, Art. XIV § 7 states that where there is a conflict in the Code

between section 12 and another section, section 12 will prevail. Section 12 holds that the

use of a nonconforming lot may be changed upon a showing that there will be no further

adverse impact from the use and approval of the Planning Board. Art. XIV§ 12(C)(4).

The Planning Board found five legally nonconforming uses on the Property. According to

an application of Art. XIV§ 15, the current five nonconforming uses require a greater

minimum lot size than do the five nonconforming uses proposed in Petitioner's plan.

Because the project proposes a decrease in the nonconformity under section 15, thecourt

finds a conflict between section 15 and section 12. The Court finds that section 12 holds,

and the Court affirms the approval of the change in the use of the nonconforming lot. 1

1 Plaintiffs point to Section 15(A)(4) which states: "If more than one residential dwelling unit, principal governmental, institutional, commercial or industrial structure, or use, or combination thereof, is constructed or established on a single parcel, all dimensional requirements shall be met for each additional dwelling unit, principal structure, or use, except as provided in the above Table in the General Development District." Art. XIV § 15(A)(4). In this case there is a conflict between this section and Art. XIV § 12, which allows for alteration of nonconforming lots where the alteration will not increase the

6 ii. Expansion

Plaintiffs challenge the permit allowing expansion of the structure (the addition of

a staircase and a roof deck) arguing that the expansion is in violation of Art. IV§ 4(A).

"A nonconforming structure shall not be added to or enlarged unless such addition or

enlargement conforms to all the regulations of the zone in which it is located, or a

variance is obtained." Art. IV§ 4(A).

The expansion conforms to all of the regulations of the Shoreland Zone. The

Planning Board made the factual findings that Petitioners' expansion would be

approximately 206 square feet. Planning Board, Findings of Fact, -u 14, Oct. 5, 2011. The

Planning Board found that the project would not impact the wetlands. !d. at -u 17. The

Planning Board concluded that the project met Biddeford Code, State and Federal law;

met fire safety standards; met exterior lighting requirements; provided sufficient on-site

vegetation; would not have a significant detrimental effect on the peaceful enjoyment of

abutting and adjacent properties; would not create hazards to public safety or traffic

congestion; would not have a significant detrimental effect on the value of abutting or

adjacent properties that could reasonably be avoided by modification ofthe project; the

project is in compliance with the Biddeford comprehensive plan; the project will not have

an adverse impact on the immediate neighborhood or community relative to the

architectural design, scale, or visual integrity which could reasonably be avoided by

modification ofthe plan; the design of the project does not result in significant flood

hazards; adequate provision has been made for the prevention of ground or surface water

contamination and to control erosion or sedimentation; adequate provision has been made

nonconformity. Where there is a conflict between another section and section 12, section 12 applies. Art. XIV§ 7.

7 to handle drainage; there is sufficient water supply for the demands of the project;

adequate provision has been made for the disposal of any hazardous waste; and the

proposed use would not have an adverse impact on historic sites, significant wildlife

habitat or wetland area, which could reasonably be avoided by reasonable modification or

the proposal. Planning Board, Conclusions ofLaw, ~ 1-18, Oct. 5, 2011; See Art. XL

Additionally, the Planning Board concluded that the project met all nine of the general

review criteria for projects in the Shoreland Zone? The Court similarly concludes that the

expansion as proposed, including a rooftop deck and a staircase, meet all of the

requirements of the Shoreland Zone.

iii. Site Plan Review

Plaintiffs also challenge the issuance of the permit on the basis that the Planning

Board waived a full site plan review. In particular Plaintiff challenges the waiver of the

site plan review with regards to parking. A permit may only be issued where off street

parking is provided according to Art. VI§ 49(A)(1). The plan provides for come of the

current parking to be removed in order to install stairs to the roof deck. Petitioner

contends that the Planning Board could not have made a determination of whether the

plan met the standard set out in Art. VI§ 49(A)(l) without a full site review. However,

the city neither approved the Petitioners plan as to parking nor denied it. The Planning

Board granted the permit on the condition that a parking layout plan be provided to the

Planning Department and be approved by the Planning Engineer for the number of

2 "provided that no commercial use is conducted in the 4 garage bays." Planning Board, Conclusions ofLaw, ~ 19, Oct. 5, 2011. This condition was reversed by the Zoning Board of Appeals.

8 commercial and residential units on the lot. The Court finds that the Planning Board

created a proper safeguard to ensure that the Property conforms to the Code.

iv. Multifamily Dwelling Requirements

Plaintiffs challenge the issuance of the permit alleging that the Planning Board

failed to assess the structure according to the requirements of a multifamily structure as

set out in Art. VI§ 47. According to Art. II § 2, multifamily dwelling is defined as

"buildings being designed exclusively for residential use and occupancy". Art. II§ 2. A

mixed use/commercial dwelling is defined as "a mixed use building containing one or

more dwelling units as part of the use thereof but also containing one or more

commercial or business uses and /or professional offices." Id. Because the structure in

question is mixed use with both residential and commercial units, it is exclusively

residential and need not comply with the requirements set out for multifamily structures.

IV. Conclusion

The Court AFFIRMS the Decision of the Zoning Board of Appeals.

DATE: John O'Neil, Jr. Justice, Superior Court

Is/ John H. O'Neil

9 ATTORNEY FOR PLAINTIFFS': DAVID P. SILK, ESQ. CURTIS THAXTER LLC PO BOX 7320 PORTLAND, ME 04112-7320

ATTORNEY FOR DEFENDANT: SANDRA L. GUAY, ESQ. WOODMAN EDMANDS DANYLIK AUSTIN SMITH & JACQUES PO BOX468 BIDDEFORD, ME 04005

ATTORNEY FOR PARTY-IN-INTEREST: JOHN C. BANNON, ESQ. MURRAY PLUMB & MURRAY PO BOX 9785 PORTLAND, ME 04104-5085