McKUSICK, Chief Justice.
This appeal presents the question of whether a municipal ordinance requiring a permit for excavation of gravel constitutes “zoning” within the meaning of 30 M.R.S.A. § 4962UXH).
On July 25,1979, defendant Auburn Planning Board issued a one-year excavation permit to defendant Lucien Houle. The purpose of the excavation was to remove gravel from land owned by defendant Louis Allain. After issuance of the permit plaintiffs, who own land adjoining Allain’s, attempted to appeal the Planning Board decision to the Board of Appeals of the City of
Auburn. The Board of Appeals refused to entertain the appeal on the ground that the issuance of the gravel permit was reviewable only by the Superior Court in an action brought pursuant to M.R.Civ.P. 80B. Following that ruling, plaintiffs commenced a Superior Court action seeking alternative forms of relief. On June 11, 1980, the Superior Court (Androscoggin County) ordered the Board of Appeals to take jurisdiction over plaintiffs’ appeal and dismissed the Rule 80B count. No party appealed from that Superior Court decision.
On July 8,1980, the Planning Board, over plaintiffs’ objections, renewed defendant Houle’s gravel permit for nine years. Plaintiffs promptly appealed the renewal of Houle’s permit to the Board of Appeals. On July 28, 1980, the Board of Appeals refused to hear the appeal from the permit extension, but this time gave as an additional reason for its refusal a recent amendment to the Auburn ordinances providing that appeals from decisions of the Planning Board be taken directly to the Superior Court. At the same time, the Board of Appeals also refused to review the granting of the original permit, on the ground that the expiration of the one-year permit had mooted any appeal.
Plaintiffs again appealed both matters to the Superior Court. After hearing the court ordered the Board of Appeals to hear both appeals and decided that the ordinance purporting to establish a right of judicial review without resort to the Board of Appeals was invalid because of this court’s decision in
Fletcher v. Feeney,
Me., 400 A.2d 1084 (1979). In
Fletcher
we held that “[a]n appeal from an initial zoning determination, before it may be presented for judicial review, must first be considered by the appeals board provided by 30 M.R.S.A. § 4963.”
Id.
at 1089. Because we find that the municipal regulation of excavation is not included within the meaning of “zoning” as defined in 30 M.R.S.A. § 4962(1)(H), we vacate the judgment of the Superior Court.
Zoning is legislative action that functions as one part of a general plan of community development.
See
82 Am. Jur.2d
Zoning and Planning
§ 2 (1976). As a tool for community development, zoning regulations “permit a municipality to apply constant and consistent pressure upon landowners to the end that land use will be guided by the community plan and public interest.” 1 R. Andersen,
American Law of Zoning
§ 1.13 at 20 (2d ed. 1976).
Under 30 M.R.S.A. § 4962(1)(H), “zoning” is given a restricted definition, namely, “the division of a municipality into districts and the prescription and reasonable application of different regulations in each district.” By contrast, article 8, § 8.1(a) of the Auburn ordinances
prohibits the removal of gravel from
any
land in the city except as such removal may be authorized by the Planning Board. In our view that provision is not “zoning.” Whereas the ordinance regulating removal of gravel is a general and uniform citywide regulation, zoning involves, by statutory definition, a particularistic division of the city into zones for the purpose of applying different proscriptions and “reasonable application of different regulations” in the different zones.
By section 4962, state law dictates that when a municipality adopts a zoning ordinance, certain mandatory provisions come into play, such as the requirement of a comprehensive plan adopted by the municipality’s legislative body [section 4962(1)(A)] and the requirement of a zoning map [section 4962(1)(B)]. Most importantly for the purposes of the present litigation, the promulgation of a zoning ordinance by a mu
nicipality automatically brings with it the establishment by force of state law, pursuant to 30 M.R.S.A. § 4963,
of a board of appeals with statutory responsibilities. Clearly, it would not be within the legislature’s purpose to require a “comprehensive plan,” a “zoning map” and a board of appeals merely to interpret the provisions of the municipal ordinance, if the City of Auburn had no ordinance dividing the city into zones for land use regulation and had only a permit requirement for excavation anywhere in the city. The legislature avoided the absurdity of the contrary result by carefully delineating what constitutes zoning for the purpose of imposing mandatory requirements upon municipalities.
When a municipality does undertake zoning, as defined in section 4962(1)(H), the interposition of a zoning board of appeals between the zoning enforcement officer and Superior Court review serves an obviously important purpose. When a municipality is divided into different zones with different proscriptions and land use regulations, questions of ordinance interpretation and of fairness and equal treatment multiply, and it also becomes desirable to have a municipal review mechanism through which variances and special exceptions may be granted. Not to the same degree, if at all, are those functions for a board of appeals needed in regard to a citywide excavation permit ordinance.
The limited construction that the legislature intended for the term “zoning” is also emphasized by comparing the zoning board of appeals that is mandated by section 4963(1) of title 30, and the board of appeals that a municipality is by section 2411(1)
of the same title
permitted
to set up. In sharp contrast to the legislatively mandated jurisdiction of a zoning board of appeals, a municipality is given a completely free hand to decide whether to have any further board of appeals at all and if so, what matters to
put within its jurisdiction. 30 M.R.S.A. § 2411(4).
Section 2411 is consistent with the home rule powers that the Maine Constitution has given municipalities generally. Me.Const. art. VIII, pt. 2, § 1 (Supp.1980);
cf. Inhabitants of Town of Boothbay Harbor v. Russell,
Me., 410 A.2d 554, 559 (1980). To construe the term “zoning” to encompass a citywide excavation permit requirement would, because of the statutory consequences that flow from such a construction, run counter to home rule principles.
Free access — add to your briefcase to read the full text and ask questions with AI
McKUSICK, Chief Justice.
This appeal presents the question of whether a municipal ordinance requiring a permit for excavation of gravel constitutes “zoning” within the meaning of 30 M.R.S.A. § 4962UXH).
On July 25,1979, defendant Auburn Planning Board issued a one-year excavation permit to defendant Lucien Houle. The purpose of the excavation was to remove gravel from land owned by defendant Louis Allain. After issuance of the permit plaintiffs, who own land adjoining Allain’s, attempted to appeal the Planning Board decision to the Board of Appeals of the City of
Auburn. The Board of Appeals refused to entertain the appeal on the ground that the issuance of the gravel permit was reviewable only by the Superior Court in an action brought pursuant to M.R.Civ.P. 80B. Following that ruling, plaintiffs commenced a Superior Court action seeking alternative forms of relief. On June 11, 1980, the Superior Court (Androscoggin County) ordered the Board of Appeals to take jurisdiction over plaintiffs’ appeal and dismissed the Rule 80B count. No party appealed from that Superior Court decision.
On July 8,1980, the Planning Board, over plaintiffs’ objections, renewed defendant Houle’s gravel permit for nine years. Plaintiffs promptly appealed the renewal of Houle’s permit to the Board of Appeals. On July 28, 1980, the Board of Appeals refused to hear the appeal from the permit extension, but this time gave as an additional reason for its refusal a recent amendment to the Auburn ordinances providing that appeals from decisions of the Planning Board be taken directly to the Superior Court. At the same time, the Board of Appeals also refused to review the granting of the original permit, on the ground that the expiration of the one-year permit had mooted any appeal.
Plaintiffs again appealed both matters to the Superior Court. After hearing the court ordered the Board of Appeals to hear both appeals and decided that the ordinance purporting to establish a right of judicial review without resort to the Board of Appeals was invalid because of this court’s decision in
Fletcher v. Feeney,
Me., 400 A.2d 1084 (1979). In
Fletcher
we held that “[a]n appeal from an initial zoning determination, before it may be presented for judicial review, must first be considered by the appeals board provided by 30 M.R.S.A. § 4963.”
Id.
at 1089. Because we find that the municipal regulation of excavation is not included within the meaning of “zoning” as defined in 30 M.R.S.A. § 4962(1)(H), we vacate the judgment of the Superior Court.
Zoning is legislative action that functions as one part of a general plan of community development.
See
82 Am. Jur.2d
Zoning and Planning
§ 2 (1976). As a tool for community development, zoning regulations “permit a municipality to apply constant and consistent pressure upon landowners to the end that land use will be guided by the community plan and public interest.” 1 R. Andersen,
American Law of Zoning
§ 1.13 at 20 (2d ed. 1976).
Under 30 M.R.S.A. § 4962(1)(H), “zoning” is given a restricted definition, namely, “the division of a municipality into districts and the prescription and reasonable application of different regulations in each district.” By contrast, article 8, § 8.1(a) of the Auburn ordinances
prohibits the removal of gravel from
any
land in the city except as such removal may be authorized by the Planning Board. In our view that provision is not “zoning.” Whereas the ordinance regulating removal of gravel is a general and uniform citywide regulation, zoning involves, by statutory definition, a particularistic division of the city into zones for the purpose of applying different proscriptions and “reasonable application of different regulations” in the different zones.
By section 4962, state law dictates that when a municipality adopts a zoning ordinance, certain mandatory provisions come into play, such as the requirement of a comprehensive plan adopted by the municipality’s legislative body [section 4962(1)(A)] and the requirement of a zoning map [section 4962(1)(B)]. Most importantly for the purposes of the present litigation, the promulgation of a zoning ordinance by a mu
nicipality automatically brings with it the establishment by force of state law, pursuant to 30 M.R.S.A. § 4963,
of a board of appeals with statutory responsibilities. Clearly, it would not be within the legislature’s purpose to require a “comprehensive plan,” a “zoning map” and a board of appeals merely to interpret the provisions of the municipal ordinance, if the City of Auburn had no ordinance dividing the city into zones for land use regulation and had only a permit requirement for excavation anywhere in the city. The legislature avoided the absurdity of the contrary result by carefully delineating what constitutes zoning for the purpose of imposing mandatory requirements upon municipalities.
When a municipality does undertake zoning, as defined in section 4962(1)(H), the interposition of a zoning board of appeals between the zoning enforcement officer and Superior Court review serves an obviously important purpose. When a municipality is divided into different zones with different proscriptions and land use regulations, questions of ordinance interpretation and of fairness and equal treatment multiply, and it also becomes desirable to have a municipal review mechanism through which variances and special exceptions may be granted. Not to the same degree, if at all, are those functions for a board of appeals needed in regard to a citywide excavation permit ordinance.
The limited construction that the legislature intended for the term “zoning” is also emphasized by comparing the zoning board of appeals that is mandated by section 4963(1) of title 30, and the board of appeals that a municipality is by section 2411(1)
of the same title
permitted
to set up. In sharp contrast to the legislatively mandated jurisdiction of a zoning board of appeals, a municipality is given a completely free hand to decide whether to have any further board of appeals at all and if so, what matters to
put within its jurisdiction. 30 M.R.S.A. § 2411(4).
Section 2411 is consistent with the home rule powers that the Maine Constitution has given municipalities generally. Me.Const. art. VIII, pt. 2, § 1 (Supp.1980);
cf. Inhabitants of Town of Boothbay Harbor v. Russell,
Me., 410 A.2d 554, 559 (1980). To construe the term “zoning” to encompass a citywide excavation permit requirement would, because of the statutory consequences that flow from such a construction, run counter to home rule principles. The City of Auburn declared by its ordinance amendment during the pendency of the present controversy that appeals from the issuance of excavation permits would not be within the jurisdiction of its board of appeals. None of the considerations that justify a municipal-level quasi-judicial review of typical zoning decisions requires invalidation of the City of Auburn’s assertion of home rule powers to make the decisions of its Planning Board subject only to court review.
Plaintiffs contend that they are entitled to a Board of Appeals review of the issuance of the gravel permit to Houle by virtue of our decision in
Fletcher v. Feeney, supra.
We cannot agree. That case involved a local ordinance passed under the legislature’s mandate in the Shoreland Zoning Act, 12 M.R.S.A. § 4811
et seq.,
“that shoreland areas defined as land within 250 feet of the normal high water mark of any pond, river or salt water body ... be subject to zoning and subdivision controls.” The town of Northfield had by ordinance pursuant to that zoning mandate required the issuance of a permit for certain specified activities in an area of the town that came within the legislative description of a shoreland area. The court in
Fletcher
found that in that particular area of North-field, certain activities, including the bridge construction specifically involved in that case, were regulated by zoning. Since the requirement of a permit for excavation anywhere in the City of Auburn is not “zoning,” the holding in
Fletcher
is in no way inconsistent with our decision today.
In view of the limited meaning of zoning in 30 M.R.S.A. § 4961, the City of Auburn was free, under 30 M.R.S.A. § 2411, to withhold jurisdiction of its Board of Appeals over attempted appeals from the Planning Board’s decisions on excavation permits. In the absence of any appellate review at the municipal level, the action of the City’s planning board is subject to direct review by the Superior Court under M.R.Civ.P. 80B.
The entry shall be:
Judgment of the Superior Court vacated.
Case remanded to the Superior Court for further proceedings in accordance with the opinion herein.
Costs on appeal allowed to appellants.
All concurring.
