STATE OF MAINE SUPERIOR COURT YORK, SS. CIVIL ACTION DOCKET NO. AP-14-028
:MICHAEL BRIGGS et al.,
Plaintiffs,
v. ORDER
TOWN OF YORK, MAINE, and ROBERT M. GRANT,
Defendants.
I. Background
A. Procedural Posture
Plaintiffs Michael Briggs, Sarah Sanford, Steve Rowley, and Charles Spear,
Trustee of the Spear Family Revocable Trust ("the Plaintiffs") bring this appeal under
M.R. Civ. P. 80B. Plaintiffs appeal a decision of the Town of York Zoning Board of
Appeals ("ZBA") that reversed the CEO's Notice of Violation issued to Robert Grant
("Grant") for operating a medical marijuana cultivation facility unlawfully in the
shoreland zone. The ZBA unanimously voted to allow Grant to continue operating the
facility as a lawful nonconforming use.
B. Facts
Grant owns 17 White Birch Lane in York. The property consists of nine acres
with two large steel buildings. Grant operated a lumber supply business in one building
and wood manufacturing business in a second building ("Building Two"). The Town
1 issued building permits in 2012 for Building Two to be divided into nine separate units,
which are currently being leased to licensed medical marijuana caregivers and used to
cultivate and package medical marijuana.
On April30, 2014, the Town ofYork Assistant Code Enforcement Officer (CEO)
issued a Notice of Violation that asserted the marijuana cultivation constituted a different
use of Building Two that was not protected as a nonconforming, "grandfathered" use.
The Notice also cited several other violations of the ordinance not relevant here. Grant
timely appealed the Notice of Violation to the ZBA. After several meetings on the matter,
the ZBA reversed the CEO, concluding that despite transitioning from producing wood
products to producing marijuana products, the use remained "manufacturing" and thus
retained nonconforming use status. Petitioners here are abutters who attended and
testified at meetings on the matter before the ZBA. This appeal followed.
II. Discussion
A. Rule SOB Standard
Pursuant to Rule 80B, the party challenging the decision of a municipal board has
the burden of demonstrating an error of law, an abuse of discretion, or findings not
supported in the record. Aydelott v. City ofPortland, 2010 l\1E 25, ~ 10, 990 A.2d 1024.
The court reviews the interpretation of municipal ordinances de novo. Nugent v. Town of
Camden, 1998 l\1E 92, ~ 7, 710 A.2d 245. In construing ordinances, the court first looks
"to the plain meaning of its language to give effect to the legislative intent, and if the
meaning ... is clear, [does] not look beyond the words themselves." Wister v. Town of
Mount Desert, 2009 l\1E 66, ~ 17, 974 A.2d 903. "The terms or expressions in an
ordinance are to be construed reasonably with regard to both the objectives sought to be
2 obtained and the general structure of the ordinance as a whole." Jordan v. City of
Ellsworth, 2003 :ME 82, ~ 9, 828 A.2d 768 (internal quotations and citations omitted).
The court reviews the operative municipal decision directly, which the parties
agree was the ZBA decision. See Yates v. Town of Southwest Harbor, 2001 ME 2, ~ 10,
763 A.2d 1168; York, Me., Zoning Ordinance, § 18.8.3.4 (November 4, 2014)
("Ordinance") (governing ZBA's power to review decisions of the CE0). 1
B. Standing
In general, to have standing to pursue an 80B appeal, "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." Norris Family Assocs., LLC v.
Town of Phippsburg, 2005 ME 102, ~ 11, 879 A.2d 1007.
1. Jurisdiction and Standing in Appeals from Notices of Violation
In the Town of York, the ZBA stands as the final arbiter of decisions by Town
officials and boards charged with administering the ordinances. See Ordinance, §
18.8.2.1. By reversing the CEO's Notice of Violation, the ZBA has effectively deemed
the use of the property for medical marijuana cultivation lawful under the ordinance.
1 While the ZBA decision purported to conduct appellate review, the Board heard testimony, considered exhibits, and made factual findings. This procedure appears to be consistent with Section 18.8.3.4 of the ordinances. In several recent cases, the Law Court has addressed the proper procedure for conducting appeals at the municipal level. In particular the Court has focused on whether the municipal body must conduct de novo or appellate review of another official or body's decision, and whether improper review procedure requires the court to vacate. In Brown v. Town of Starks, the Court affirmed the Board's decision, concluding that the challenging party failed to raise the issue of whether the Board should conduct appellate or de novo review, and therefore the issue was not preserved. 2015 ME 47,, 7, _ A.2d _.In Paradis v. Town ofPeru, the Court determined that the Board accepted new evidence and testimony while purporting to affirm the CEO in an appellate capacity, and this procedural deficiency was a second, independent ground to vacate the judgment. 2015 ME 54, , 8 n.5, _ A.2d _. Paradis does not indicate the issue was raised at the municipal level. This court is unable to reconcile Paradis with Brown. Assuming the ZBA improperly conducted the "amalgamated" process that would be grounds to vacate the decision, because the Plaintiffs never raised the issue below, the court follows Brown.
3 While the York CEO is responsible for issuing Notices of Violation, Ordinance, § 9 .6, the
Board of Selectman initiates enforcement actions. Id. § 9.4. There is currently no pending
enforcement action.
There is no dispute that Plaintiffs participated at the hearings below and have a
sufficient injury to support ordinary standing. Defendants, however, contend that appeals
from a Notice of Violation are non-justiciable and the Plaintiffs lack standing to compel
the Town to pursue zoning' enforcement. The rights of abutters to appeal a ZBA's
reversal of a Notice of Violation decision to Superior Court under Rule SOB is not
apparent under the law. Several relevant Law Court precedents must be reconciled.
In Herrle v. Town of Waterboro, the Court held a municipal decision not to pursue
zoning enforcement was unreviewable under Rule SOB. 2001 ME 1, ~~ 10-12, 763 A.2d
1159. The Waterboro Board of Selectman declined to pursue enforcement because the
Board deemed the property lawfully grandfathered. The Waterboro Zoning Board of
Appeals ultimately affirmed the Board of Selectman's determination. In dismissing the
SOB appeal, the Law Court reasoned that even if the court reversed the Board of Appeals'
decision for legal error, the decision to pursue enforcement would remain within the
Board of Selectman's discretion. Id. Construing 30-A M.RS. § 4452(1), the court further
concluded the abutters lacked standing to pursue a Rule SOB appeal to compel
enforcement proceedings, even if the landowner was in violation of the ordinance. !d. ~
11. Herrle has since been interpreted to mean that the court will not second-guess the
municipality's decision to pursue zoning enforcement. Salisbury v. Town of Bar Harbor,
2002 ME 13, ~ 11, 7SS A.2d 59S.
4 Later cases extended Herrle to entirely preclude judicial review of Notice of
Violation decisions where the Zoning Board of Appeals acted in merely an advisory
capacity to the municipal officer or agency tasked with enforcement under the
ordinances. Farrell v. City of Auburn, 2010 ME 88, ~ 8, 3 A.3d 385 Gudicial review
under 80B not appropriate where municipal board's decision has no legal consequences
for the parties because CEO retained discretion to initiate zoning enforcement action);
Shores v. Town of Eliot, 2010 ME 129, ~~ 7-10, 9 A.3d 806 (concluding Notice of
Violation was merely preliminary step in the enforcement process, and CEO retained
discretion to refer matter to Board of Selectman to initiate enforcement proceedings, the
Board of Appeals and CEO decisions were advisory in nature and not subject to judicial
review).
Plaintiffs contend that in Dubois Livestock, Inc. v. Town of Arundel, 2014 ME
122, ~ 9, 103 A. 3d 556, the Law Court effectively abrogated Herrle. In Dubois, the Town
of Arundel CEO issued a Notice of Violation, which the landowner unsuccessfully
appealed to the Zoning Board of Appeals and then to the Superior Court. 2014 ME 122,
~~ 6-7, 103 A. 3d 556. The Law Court began by noting that "recent precedents" held that
"an appeal of a notice of violation would be dismissed as calling for an advisory
opinion." Id. ~ 8. Dubois did not address Herrle directly, but rather specifically revised
the rule crafted in Farrell and Shores. See 2014 ME 122, ~ 9, 103 A.3d 556 ("Some
recent developments require review of [Shores and FarrelTJ"); see Farrell, 2010 ME 88,
~~ 15-18, 3 A.3d 385 (extending the reasoning of Herrle to preclude judicial review of
Notices of Violation issued by the CEO and affirmed by the ZBA).
5 In Dubois, the court concluded that because the Notice of Violation affected the
use and value of the property, a landowner could appeal the determination pursuant to
Rule 80B. 2014 ME 122, ~ 10, 103 A.3d 556 (citing Sackett v. EPA, 132 S.Ct. 1367
(2012) and Annable v. Bd. of Envtl. Prot., 507 A.2d 592 (Me. 1986)). The court
emphasized that an appeal to the courts would be the landowner's only available remedy
to review the lawfulness of the decision. !d. The court further noted that recent
amendments to the statute governing municipal boards of appeals expressly allowed 80B
appeals from notices of violation reviewed at the municipal level. See 30-A M.R.S. §
2691(4). As a result, the appeal was justiciable and properly before the court.
2. Whether Plaintiffs Can Challenge the ZBA Decision
Farrell, Shores, and Dubois each involved landowners who were issued Notices
of Violation by a municipal zoning enforcer that were affirmed by an intermediate
appellate board and appealed to Superior Court pursuant to Rule 80B. Dubois abandoned
the rule that landowners issued a Notice of Violation by a municipal officer could not
pursue a Rule 80B appeal and held the landowner was entitled to a remedy. Dubois, 2014
ME 122, ~ 10, 103 A.3d 556. Dubois did not, however, address whether an abutter would
be similarly entitled to a remedy to challenge a reversal of a Notice of Violation that
effectively halted municipal zoning enforcement. Different interests are implicated-a
landowner wishes to remove the cloud of possible zoning enforcement from the property,
whereas an abutter aims to spur the municipality into enforcement.
Herrle specifically involved an abutter's right to appeal a Notice of Violation and
rested on two separate grounds. The first ground, as described above, concerned
justiciability and whether the appeals would call for an advisory opinion. This issue was
6 clarified in Dubois and functionally overruled that portion of Herrle (and by extension
Farrell and Shores) to conclude that such appeals by a landowner are justiciable. Dubois,
20141vffi 122, ~ 10, 103 A.3d 556. The second ground concerned an abutter's standing to
initiate enforcement proceedings. Herrle, 2001 1vlE 1, ~ 11, 763 A.2d 1159 (holding
abutters "would not have standing to initiate enforcement proceedings against
[landowner] even if it was determined that he was in violation of the ordinance"). There
is an important distinction: in one case, a municipal official has opined that a zoning
violation occurred, but the municipality has yet to commence formal enforcement
proceedings, while in the other case, the Town declines to pursue enforcement because it
decides there is no violation.
If this court were deciding this case on a blank slate, the Plaintiffs appear to lack
standing. The ZBA has determined there is no violation of the ordinance and the Board of
Selectman ultimately retains discretion to initiate enforcement proceedings. See
Ordinance, § 9.4. 2 The law is clear that municipalities retain prosecutorial discretion to
enforce their ordinances. Adams v. Town of Brunswick, 2010 1vlE 7, ~ 10, 987 A.2d 502
("[O]ur precedent precludes [a] court's intrusion into municipal decision-making when a
municipality decides whether or not to undertake an enforcement action.") (quoting
Salisbury, 2002 1vlE 13, ~ 11, 788 A.2d 598 (internal quotation marks omitted)). To the
extent Herrle remains good law, abutters lack standing to compel zoning enforcement
where the Town has determined there is no violation. 20011vffi 1, ~ 11, 763 A.2d 1159.
2 If the Board of Selectman decides to pursue zoning enforcement, however, an appeal would properly lie under Rule 80B. Salisbury, 2002 ME 13, , 11, 788 A.2d 598 ("If the municipality undertakes a subsequent enforcement action, that action may be subject to judicial scrutiny if review is authorized by an appropriate law and ordinance.").
7 Nonetheless, in light of recent cases and statutory amendments, the court is
persuaded that the Law Court would extend standing to the Plaintiffs here. While Dubois
did not address abutter rights to appeal notices of violation under Rule 80B, the court did
rely on amendments to 30-A M.R.S. § 2691(4), which states:
Absent an express provision in a charter or ordinance that certain decisions of its code enforcement officer or board of appeals are only advisory or may not be appealed, a notice of violation or an enforcement order by a code enforcement officer under a land use ordinance is reviewable on appeal by the board of appeals and in turn by the Superior Court under the Maine Rules of Civil Procedure, Rule 80B.
The Law Court has most recently construed Section 2691(4) to mean notices of violation
"have been generally appealable" since the statute's effective date. Paradis v. Town of
Peru, 2015 ME 54, 4jf 7, _ A.2d _. The express language of Section 2691(4) does not
limit Rule 80B appeals to landowners facing a Notice of Violation, and could be
construed to include abutters. York's ordinances provide that the ZBA has broad power
to review decisions by the municipal officials, including the CEO:
The Board of Appeals shall hear and decide Appeals from any order, requirement, decision, or determination made by any person or Board charged with the administration of this Ordinance. Additionally, the Board shall hear and decide appeals from any procedural error made by any person or Board charged with the administration of this ordinance, or by the failure of such person or Board to act.
Ordinance,§ 18.8.2.1. There is no separate appeals process from Notices ofViolation
issued by the CEO; such an appeal falls within the general appeals jurisdiction of the
ZBA above. The Ordinance furthermore does not limit Rule 80B appeals from decisions
of the ZBA to landowners, but broadly includes "any party":
Any party may take an appeal within 45 days of the vote on the [ZBA's] decision, to Superior Court from any order, relief or denial in accordance with the Maine Rules of Civil Procedure, Rule 80B. ...
Ordinance, § 18.8.3.6.
8 The ordinance, read together with 30-A M.R.S. § 2691(4), appears to confer
abutters standing to appeal a decision that reverses a notice of violation. In particular, the
ordinance does not expressly state Notices of Violation issued by the CEO are
unappealable. Cf Paradis, 2015 ME 54, ~ 6, _ A.2d _. Accordingly, notwithstanding
the continuing vitality of Herrle and municipalities' prosecutorial discretion, the court
assumes the Plaintiffs have standing3 and will proceed to address the merits. See Sahl v.
Town ofYork, 2000 ME 180, ~ 8, 760 A.2d 266 ("If the appealing party is an abutter, the
threshold requirements to establish standing are minimal.").
C. Preexisting Nonconforming Uses .
1. Grandfathered Uses, Generally
While the policy of zoning generally aims to "abolish nonconforming uses as
speedily as justice will permit," Two Lights Lobster Shack v. Town of Cape Elizabeth,
1998 ME 153, ~~ 5-6, 712 A.2d 1061 (citations omitted), "the implementation of this
goal must be carried out within legislative intendment." Keith v. Saco River Corridor
Com., 464 A.2d 150, 154 (Me. 1983).
The Ordinance defines a non-conforming use as follows:
Use of property, land, or a structure that is not permitted or does not conform to the use limitations of Article 4, Use Regulations, in the base zoning district in which it is located, or that is not permitted or does not conform to the use limitations of any overlay district in which it is located, but which was permitted at the time the use was established. Under no circumstances shall any non-conforming use be construed as a "permitted use."
3 The court is also mindful that the courts have elsewhere entertained Rule 80B appeals by abutters where the municipality has elected not to pursue zoning enforcement. See, e.g., Richertv. City ofS. Portland, 1999 ME 179, ~~ 4-5, 740 A.2d 1000; Tousst v. Town ofHarpswell, 1997 ME 189, ~~ 4-5, 698 A.2d 1063. In those cases, however, the parties never raised and the courts did not address standing.
9 Ordinance § 2. The Ordinance allows for such uses to continue: "[a] non-conforming use
which is otherwise lawful according to all applicable regulations may continue m
accordance with this Article and other applicable regulations." Ordinance, § 17.1.
In 2008, the Town amended the Shoreland Zoning Ordinance, which placed the
majority of Building Two's footprint within the shoreland zone. Ordinance § 3.8.
Manufacturing is a prohibited use in the shoreland zone. The ZBA found Building Two
had been used continuously for manufacturing prior to the 2008 amendments and was
therefore manufacturing was protected as a lawful nonconforming use. The ZBA reversed
the CEO's determination that in transitioning from manufacturing and warehousing to
medical marijuana cultivation, the use in Building Two changed and thus lost protection
as a lawful non-conforming use.
The court applies the following factors to determine whether a proposed use is a
change:
(1) whether the use reflects the "nature and purpose" of the use prevailing when the zoning legislation took effect; (2) whether there is created a use different in quality or character, as well as in degree, from the original use, or (3) whether the current use is different in kind in its effect on the neighborhood.
Total Quality, Inc. v. Scarborough, 588 A.2d 283, 284 (Me. 1991) (citing Keith, 464
A.2d at 155); see also Turbat Creek Pres., ILC v. Town of Kennebunkport, 2000 ME
109, ~ 13, 753 A.2d 489.
The party claiming a proposed use is a continuation of a valid nonconforming use
ordinarily has the burden of proof Total Quality, Inc., 588 A.2d at 284. Because the ZBA
concluded there was no change, Grant met his burden below, and the Plaintiffs now have
the burden to overturn the ZBA's decision. Aydelott v. City of Portland, 2010 ME 25, ~
10 10, 990 A.2d 1024. The Plaintiffs argue that marijuana cultivation does not constitute
manufacturing. 4 Plaintiffs further urge this court to construe allowable uses strictly, such
that the only nonconforming use allowed is the specific use grandfathered-wood
manufacturing.
2. The Definition of Manufacturing
The parties cite different dictionary definitions to support their competing
interpretations of "manufacturing." "Manufacturing" is not defined in the ordinances.
Under the ordinance, an undefined term "shall take on its common dictionary definition."
Ordinance, § 2. When construing undefined ordinance terms, "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." Priestly v. Town of
Hermon, 2003 ME 9, ~ 7, 814 A.2d 995. Whether a proposed use falls within the terms of
a zoning ordinance is a question of law. Peregrine Developers, UC v. Town of Orono,
2004 ME 95, ~ 9, 854 A.2d 216.
Plaintiffs rely on Black's Law Dictionary, which defines "manufacture" as "A
thing that is made or built by a human being (or by a machine), as distinguished from
something that is a product of nature; esp. any material form produced by a machine from
an unshaped composition of matter." (Pl.'s Brief 13.) The Defendants quote definitions
from a variety of dictionaries: "the making or producing of anything"; "the making or
4 Plaintiffs also argue the Town is judicially estopped from arguing marijuana cultivation is permitted or grandfathered as a use under the ordinance. Plaintiffs point to ar'~ents the Town made in opposition to a marijuana referendum. This argument is unpersuasive for two reasons. The referendum concerned a proposed ordinance to legalize recreational marijuana, not medical marijuana as currently authorized by state law and administered by the Department of Health and Human Services. Furthermore, the Town opposed passing an affirmative legislative enactment, not declining to enforce federal law through zoning. The Town has not taken inconsistent positions and is therefore not judicially estopped.
11 producing of something"; "to make a product suitable for use." (Def.'s Brief 10.)
Plaintiffs emphasize the portion of the definition that states "as distinguished from
something that is a product of nature" to argue that because marijuana is a plant, and
plants are products of nature, marijuana cannot be manufactured.
Even adopting Plaintiffs' preferred definition, the act of producing usable medical
marijuana involves some degree of human and mechanical manipulation. A marijuana
plant is a product of nature, but according to testimony before the ZBA, growing and
cultivation in Building Two involves special equipment and processes, including "grow
lights," "hydroponics," and other mechanized systems. (Tr. 22, ZBA Hearing, June 25,
2014.) Medical marijuana also requires additional processing to attain the form of a final,
usable product. The plant, as an "unshaped composition of matter," must be dried and
packaged using machines-consistent with the Black's manufacturing definition. It is
certainly consistent with the broad definitions cited by Defendants. The Ordinances do
not define manufacturing or specifically regulate marijuana (although marijuana is now
addressed under amendments passed in November 2014). Section 8.2.1limits a variety of
uses in the shoreland zone, none of which apply to marijuana cultivation or indicate that
to treat marijuana cultivation as "manufacturing" would offend the regulatory scheme.
Thus, as a preliminary matter, cultivating and packaging medical marijuana fits
within the "common dictionary definition" of "manufacture." The Board did not err as a
matter of law. The next issue is whether the ZBA properly concluded that Grant's
proposed use to manufacture marijuana is not a change from the previous manufacturing
uses ofBuilding Two.
3. The ZBA's factual determination as to whether the use constituted a change is entitled to deference.
12 Unlike the legal definitional analysis above, the ZBA' s application of the
"manufacturing" definition to this particular use proposal is grounded in factual findings
and presents a mixed question of law and fact. See Jordan, 2003 :ME 82, ~ 8, 828 A.2d
768. Plaintiffs argue that any use that is not "wood manufacturing" is a change of use
requiring, at a minimum, a permit to proceed lawfully under the ordinances. See
Ordinance, § 17. 1.4. 1. 5
Uses are not construed so strictly-a municipality has discretion to characterize
the nature of a use and determine whether the proposed use constitutes a change. Herrick
v. Town ofMech. Falls, 673 A.2d 1348, 1349 (Me. 1996) ("A zoning board of appeals
has discretion in determining whether an activity is within the scope of a permitted,
nonconforming use."). A municipal determination as to how to characterize a use "will
only be overturned if it is not adequately supported by evidence in the record." Jordan,
2003 :ME 82, ~ 8, 828 A.2d 768. Indeed, a Board's conclusion as to whether a particular
proposed use falls within a definition will be accorded "substantial deference." Rudolph
v. Golick, 2010 :ME 106, ~ 8, 8 A.3d 684 (affirming Board's factual finding that proposed
horse barn and riding area met the definition of"animal husbandry") (citation omitted).
The ZBA found that Building Two had valid use and building permits to conduct
warehousing and manufacturing since 1998. While "wood manufacturing" and general
; "An existing non-conforming use may be changed to another non-conforming use provided that the new use is equally or more appropriate to the zoning district than is the existing non- conforming use, and the impact on adjacent properties is less adverse than the impact of the former use, as determined upon review by the Planning Board, using the criteria in Section 17.1.4.3. The Code Enforcement Officer shall issue a permit to allow this change of use only when an approval is granted by the Planning Board." Ordinance, § 17.1.4.1. The ZBA concluded there was no change in use and thus a use permit from the Planning Board was not required.
13 "manufacturing" are treated separately under the Ordinances, 6 based on evidence in the
record regarding historic activity, the ZBA found Building Two was grandfathered for
general warehousing and manufacturing, not merely wood manufacturing. Having
concluded Grant's protected nonconforming use was for general manufacturing, the ZBA
properly considered whether marijuana manufacturing changed the use.
The ZBA heard abundant evidence from various witnesses over the course of
three public hearings regarding the nature, quality, and degree of the marijuana
cultivation and packaging operation in Building Two. The ZBA also heard testimony
from neighbors and residents about the effect on the neighborhood. The ZBA concluded
that Building Two remained protected as a nonconforming use to conduct
"manufacturing," and the production of medical marijuana did not change the use.
Anchored in fact-finding, the decision is entitled to deference and must stand unless
unsupported by record evidence. Rudolph, 2010 ME 106, ~ 11, 8 A.3d 684; Herrick v.
Town of Mech. Falls, 673 A.2d 1348, 1349-50 (Me. 1996) (noting even where the
"record contains inconsistent evidence or inconsistent conclusions could be drawn from
the evidence does not invalidate the Board's holding"). Building Two is not slated to
dispense medical marijuana or conduct on-site sales, but has and will continue to
manufacture a product, like the prior manufacturing activity, to be distributed elsewhere
for use or sale. Record evidence supports the ZBA' s conclusion that marijuana
manufacturing was not a change from the protected nonconforming use. Cf Total
Quality, Inc., 588 A.2d at 283-84 (evidence supported Board's conclusion that proposed
6 See Ordinance § 8.2.C (expressly and separately prohibiting wood manufacturing and manufacturing in the shore land zone).
14 conversiOn from wholesale clam product manufacturing facility into retail 1ce cream
business was a change in nonconforming use).
Plaintiffs contend that by leasing to a number of tenants who separately cultivate
medical marijuana, Grant has unlawfully intensified the nonconformity. But "where the
original nature and purpose of the enterprise remain the same, and the nonconforming use
is not changed in character, mere increase in the amount or intensity of the
nonconforming use within the same area does not constitute an improper expansion or
enlargement of such nonconforming use." Frost v. Lucey, 231 A.2d 441, 448 (Me. 1967).
The purpose of the use has remained the same: to manufacture a product. The amount or
intensity of manufacturing conducted within the structure does not render the use
unlawful. In any event, the ZBA heard evidence that sound and traffic from the prior
industrial-scale wood manufacturing business was more intense in character and quality
and impactful upon the neighborhood. Furthermore, Grant obtained all necessary building
permits to divide Building Two into separate units for the purpose of leasing to licensed
marijuana caretakers, to which the Plaintiffs did not object. 7
ill. Conclusion
The ZBA decision reversmg the CEO on the grounds Grant has a legal
nonconforming use to manufacture marijuana in the shoreland zone IS supported by
recorded evidence and must be affirmed.
The entry shall be:
7 In a section of the brief not joined by the Town, Grant argues that the Plaintiffs are attempting an untimely appeal of prior permits. Juliano v. Town ofPoland, 1999 ME 42, ~ 7, 725 A.2d 545. Having concluded that the ZBA did not err, Grant prevails and thus the court need not reach this issue.
15 Petitioner's Rule 80B appeal is hereby DENIED. The ZBA's decision is AFFJRMED.
SO ORDERED.
DATE: May {~2015
Jo~,Jrcr>---9(. Justice, Superior Court
16 AP-14-028
ATTORNEYS FOR PLAINTIFF: PAUL F DRISCOLL JOSHUA D HADIARIS NORMAN HANSON & DETROY LLC P OBOX4600 PORTLAND ME 04112
ATTORNEY FOR DEFENDANT: TOWN OF YORK MARY E COSTIGAN BERNSTEIN SHUR SAWYER & NELSON POBOX9729 PORTLAND ME 04101
ATTORNEY FOR DEFENDANT ROBERT M GRANT: DURWARD PARKINSON BERGEN & PARKIN SON LLC 62 PORTLAND RD SUITE 25 KENNEBUNK ME 04043