Estate of Merrill P. Robbins v. Inhabitants of the Town of Cumberland

• Court: Superior Court of Maine
• Decided: September 15, 2015
• Docket: CUMap-15-35
• Status: Unpublished

Opinion

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STA1EOFMAINE SUPERIOR COURT CUMBERLAND, SS crvn, ACTION Docket No. AP-15-031 MERRILL WOOD\'VORTii, Personal Representative for the ESTATE OF MERRILL P. ROBBINS,

Plaintiff

v. DECISlON AND ORDER

lNHABITANTS OF 'fHE TOWN OF CUMBERLAND,

Defendant and

TO\:VN OF CUMBERLAND,

Party-in-Interest

Before the court is a Rule 808 appeal filed by plaintiff l\1errill VVoodworth, as

Personal Representative of the Estate of Merrill P. Robbins. Plaintiff challenges

defendant Town of Cumberland's determination that a proposed beach facility is a

Municipal Use. For the following reasons, the court affirms the decision of the Town of

Cumberland Board of Adjustment and Appeals.

FACTS The To\.\'Tl of Cwnberland (Tovm) owns a 22.4-acre parcel of land located in

Cumberland, Maine (Town property). (R. 3, 5.) The Town property is adjacent to

plaintiff's property and is located in a Lo,..,, Density Residential zoning district (LDR

zone). (R. 5, 107.) On May 26, 2015, the Town submitted an application to the

Cumberland Planning Board (Planning Board) for a permit to construct and operate a

beach facility (facility) on the Town property. (R. 1-91.) Construction of the facility will

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involve c:e:.tion of a 33-space ;:,arici.ng lot, ;vith potential for dII aciditional 11 spaces,

and :elocation ·)f ?Ubiic ,;ccess trails and .3. '.,athn(mse ,:R. 9-10.,

Cn July 16, 2015, the Cumberland Code Enforcement Coffie:?~ (CEO) submitted

comments and stated thar the !aciiity is :l ·Municipal Cse, defined as "[ajny use or

b1.111 . . . . .JY the Town :)f \..UlT\ "di n~ marmamea ~ ber:an • ~· "~'6; ..... . d . " ,'R. 1·. 5, "3" ·-un1 berIand , ',vLe,, 6

Zaning ::roinance § 315-4 (June 26, 2006j.; 1vfurucipal Cses are pemtitte

zone. !_·R"· "-4,; ,. ~ ·-um becIand , ,v · ctrd.mancc s" .,-15 '"le., .!.,orung ~ ~ , ~oo . ·.7 l·i unc "6 ' · r_ n,' uiy ~ 6J,} · 21., 2015, the l'!anrung Soarci ,r--anted approval for che (ac:.lity :as.; '.viunic:_!.Jal ·.:se. rn.. 92.,

On July 30, '.2015, ?laintiif 1ppealed ~o ':he Curnber!and Joard •)i A..djustrnent ~nd

Appe.i.ls :Boarci of Appeals). 1R. ~06-10.; P!aintiff arg•.ied that i:he facility ;s an 'Jutdoor

Recreational Fs.ci.iity, defined as a " place aesigned and emupped primarily tor the

conciuct of norunotorized outdoor sports, ;eisure-time ac'.ivities, ,:m

and usuai :e-::cati.onru .. l ac.,v1oes " ..• ... :,, . ,'R. 106..,,, A(l 2~~ .• b .

C·rainancc § 315-4 (June 26, 2006).) •:'Utdoor RecrcatiomJ F«cilities 3re aot pemutted in

the ::..cR Lone. (R. 247-48; Curnberiand, Me., Zoning Ordinance§ 315-J June 26, ?.006).;

The Boarci of Appe:;ils ic:d a pub1ic :,eanng on .A.ug,J.st 13, 2015. (R. :.60.; T~e

Board :>f Appeals dete::mined that the definition of Municipal u~e was ~an101g,1ous

;;nd .ulov.re::1 the CEC• to classify .,my·' :tse maintained ·'>Y the Tov.>n :1.s a Nitll'Uc:pai Use.

(R. :62.-63.j 3ecause the T,>wn ·Nill ma.mtain i:he '.aciiity, the Soard :>f Apoeals :lffinned

the CEO',, ,iete!'lllination :hat t.hc f;:.dity :s ,3 '.v1unicipal Cse. 'R. :62.)

Plaintiif appes..le-::i to tlus ·:ourt on August 20, 2.015, and a.i.legc:1 three causes of

ac':i.o n: C:)unt {, Rule SOB :e•new of the 3oard :>f Appeals' decision; count a, Rule 30B

review of the P!anrung Boarri';; aecision; and count Ill, pre!iminar; injunction. C'11.

August 28, '2.015 ?iaintiff movP.d for a pre!imi.nary injunction to 3:1.join the Town irom

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constructing the facility. :'he ,:ourt denied. :hat motion :m SP.,Jtembe!: 15, 2015. {Orde!: on

P!:~ :viot. P:-e1im. inj.J .?laintiff :'ile'..i its ~ule .30B brie! ,m .St?te:nber 29, 2015. The Town

filea an opposition to !)iaintiff'.~ brief on Oc'.obe, 28, 2015. P!ainliff filed a reply on

Nov=be!: 1'.!, 'WlS.

CISCCSSION

1. Standara :)f Review

\iVhen the Superior Court ac':S as an apoellate ::ourt, :t reviews the O!Je,ative

ciecision of the munic:pality for e,rors of law, abuse •.>f disce!ion, or 5.ndings not

supoorced .m the . :ecora.. Gn ~ ' tf'm v.•own ~ ~ e dh am. ;- :)f. '- '·JE ·o~ '00~"' iv , - · "' L ' , , ~oa , • • • A?· ,_o 1~39 ~ . - '

The par~es do not aispute the desc:mtion oi the prop!Jsed fac:lity; -:hey dispute the

interpretation :)f the 0rdinarn.:e. !nte!:pretation ?f 1)rdinance orovisions :.s a question :,f

law .;;ubJect to ,ie novo :eview. !sis Cev., I..L;: ,,. Town )f 'A1PJls. '::003 :v1E !49, CJ[ 3, 836

A.2d 1:285; 1orcian ,,. City :it Ellsworth. 2003 \liE 82, 'lI ~- 828 .\.2ci 763. lo :nte!:preting .m

ordinance, ':he court looks "5rst to the plain ".neaning ,:,f its language to give ~He-:t to the

legisiative

beyond the words themse1ves." Wister v. 'I0wn of f\,(t. Ce~e!'t, '2009 :ViE 66, 'i! 17. 974

A.2ci 90Z. fhe provisions are to be ·~onstrued reasonabiy with regclrd to both the

obJec~ves sought to 'JP. 0brained .md ile gene!:~ ;;ructure of the 0rdinance as ..1 whole. '

Robe~rs •,. :,)wn oi P!tlposburg, 642 A.2ci 155, 150 (lvie. 19°4) (ctation :>mitted'..

'.!. C>pe,ative Cec:.sion

It :s ;mcle:ir wheilie::- the parties agree ..viuch jecision is •he ",)perarive ,:iecision."

':'he Town argues di.at the 0perative de::'.sion :s the Soard ::,£ Appeals' decision. (Cet: s

Br. 4-5.i Although ;,lainti.ff :!oes not ji!;pute dus in :ts :

decisions ·Jf the Boarci ::,f Apoeals .and the !'!anning Soard :n ':he complaint. (Comp!. °I'll

29-1:.l The 0per."ltive cieo::sion is ,he ,;le~sion oi the ' tribunal of Otiginai juri~diction"

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that acts "as both fact finder and decision maker[.]" Peregrine Developers, LLC v. Town

of Orono, 2004 :tv1E 95, 'Ii 9, 854 A.2d 216 (citations omitted). If the Board of Appeals acts

as both fact finder and decision maker, the court reviews its decision. If the Board of

Appeals acts only in an appellate capacity, the court reviews the Planning Board's

decision. Stewart v. Town of Sedgwick. 2000 ME 157, 'l[ 4, 757 A.2d 773. The Board of

Appeals acts as both fact finder and decision maker unless the ordinance explicitly

directs that it act only in an appellate capacity. See 30-A M.R.S. § 2691(3)(0) (2014)

(requiring de novo review); tvfills,v. Town.of Eliot, 2008 ME 134, 'l[ 14, 955 A.2d 258.

The Town's ordinance grants the Board of Appeals the power to "determine

whether the decisions of the Code Enforcement Officer are in conformity with the

provisions of this chapter and interpret the meaning of this chapter in cases of

uncertainty." (R. 253; Cumberland, Me., Zoning Ordinance § 315-77(B)(l) Oune 26,

2006).) This language suggests that the Board of Appeals acts in an appellate capacity

because the language directs the Board of Appeals to review the CEO's decisions for

conformity with the ordinance. The language, however, falls short of an explicit

direction that the Board of Appeals act only in an appellate capacity. As a result, the

court considers the Board of Appeals as both fact finder and decision maker and

reviews its decision directly. See Stewart. 2000 :tv1E 157, 'l[ 11, 757 A.2d 773 ("Because the

Ordinance fails to provide explicit guidance, 30-A M.R.S.A. § 2691 applies to require

that the Board undertake a de novo review of the application.").

3. Municipal Use v. Outdoor Recreational Facility

The Town argues that the CEO properly determined that the facility is a

Municipal Use because the plain meaning of the definition includes any uses

maintained by the Town. (Def.'s Br. 6.) Plaintiff concedes that the facility meets the

definition of Municipal Use but argues that it also meets the definition of Outdoor ( (

Recreational Facility. In plaintiff's view, the CEO should have classified the facility as

an Outdoor Recreational Facility because that term is more specific than Mwticipal Use

and the terms are in conflict. (Pl.'s Br. 4-8.)

a. Municipal Use

In interpreting an ordinance, the court looks "first to the plain meaning of its

language to give effect to the legislative intent, and if the meaning of the statute or

ordinance is clear, [the court] need not look beyond the words themselves." \-Vist~

2009 ME 66,

not apply rules of construction. Hanson v. S.D. ,,Varren Co., 2010 ME 51, 'l[ 12, 997 A.2d

730. An ordinance is ambiguous if it is "reasonably susceptible to different

interpretations." Acadia lr:\s. Co. v. Buck Constr. Co., 2000 ME 154, 'l[ 9, 756 A.2d 515.

The definition of Mwticipal Use and the provision allov>'ing Municipal Uses in

the LDR are not ambiguous. A Mwlicipal Use is "[a]ny use or building maintained by

the Town of Cumberland." (R. 235-36; Cumberland, Me., Zoning Ordinance § 315-4

(June 26, 2006).) The inclusion of the word "any" indicates that the Town intended for

the l\1wticipal Use category to include all uses maintained by the Town. Plaintiff asks

the court essentially to read into the definition a limitation that a Municipal Use is any

use maintained by the Town unless a more specific use applies. In the ordinance,

however, the Town chose not to include any limitations, in contrast to the detailed

defini~ons of other terms. In addition, section 315-7 clearly allows Municipal Uses in

the LDR zone. That section states, "The following uses a.re permitted in the LDR

District'' and includes Municipal Uses in the list. (R. 247; Cumberland, Me., Zoning

Ordinance § 315-7 (June, 26, 2006).) Because these provisions are unambiguous, the

court need not apply rules of construction, and may uphold the Town's decision to

allow the facility in the LDR zone under a plain language analysis.

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b. Outdoor Recreational Facility

Even if the court were to apply rules of construction, plaintiff's argument is

unpersuasive because the definitions can be harmonized. Plaintiff's argument rests on

the rule of construction that a specific term controls over a general term when the two

conflict. The Law Court explained this rule in Butler v. Killoran:

Where one statute deals with a subject in general terms, and another

As a preliminary matter, the uses described for the facility are consistent with the

uses included in the definition of Outdoor Recreational Facility. (R. 9, 237.) That term is

defined as a "place designed and equipped primarily for the conduct of nonmotorized

outdoor sports, leisure time activities, and other customary and usual rea-ealional

activities." (R. 237; Cwnberland, Me., Zoning Ordinance § 315-4 (June 26, 2006).) The

uses proposed in the Town's application involve "low-impact passive recreation,"

including walking and hiking, boating, swimming, shell fishing, picnicking, cross

country skiing, and snowshoeing.• (R. 9.) It also appears clear that Municipal Use is a

general term, while Outdoor Recreational Facility is a more specific term. Municipal

•The Town's Shoreland Zoning Ordinance also includes the following provision: "Whenever a provision of this chapter conflicts with or is inconsistent with another provision of this chapter or of any other ordinance, regulation, or statute administered by the municipality, the more restrictive provision shall control." (R. 175; Cumberland, Me., Shoreland Zoning Ordinance § 226-7 Oune 26, 2006).) It is unclear whether this provision applies to the chapter containing definitions, which is a separate chapter and does not contain an analogous provision. ' The Town argues that the facility is not an Outdoor Recreational Facility because it does not involve the active recreational activities allowed under that term, such as campgrounds and amusement parks. (Def.'s Br. 7.) This argument is unpersuasive because the definition of Outdoor Recreational Facility expressly excludes campgrounds and amusement parks. (See R. 237; Cumberland, Me., Zoning Ordinance § 315-4 (June 26, 2006) (" A place designed and equipped primarily for the conduct of nonmotorized outdoor sports, leisure-time activities, and other customary and usual recreational activities, excluding boat launc;hing facilities, amusement parks. and campgrounds ....") (emphasis added).

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Use encompasses all uses maintained by the Tov.'I\, while Outdoor Recreational facility

describes specific uses, such as nonrnotorized outdoor sports and leisure time activities.

As discussed in the order on plaintiff's motion for preliminary injunction, these

provisions can be read in harmony. When the CEO classifies a proposed use as a

Municipal Cse, and that finding is supported by adequate evidence, the use is allowed

in the LOR zone, even if it could also be classified as a use that is prohibited in the LOR

zone. See Pinkham v. lv1orrill, 622 A.2d 90, 95 (Me. 1993) ("[T]he court should not read a

statute to conflict with another statute when an alternative, reasonable interpretation

yields harmony."). This interpretation is consistent with the To'Arn's apparent intent to

allow all Municipal Uses in the LOR zone. The Town created a broad definition of

Municipal Use that includes any use maintained by the Town and expressly allowed

this use in the LOR zone. Preventing the Town from allowing a use that meets the

definition would contravene the Town's intent.

Plaintiff argues that allowing a use that could meet the definition of Outdoor

Recreational Facility contravenes the Town's intent to prohibit Outdoor Recreational

Facilities in the LOR zone. (Pl.'s Br. 6.) This argument essentially asks the court to

overturn the CEO's detennination that the facility is a Municipal Cse, even though that

determination is supported by adequate evidence. It is undisputed that the Town will

maintain the facility, and this fact meets the definition of Municipal use. The cases plaintiff cites either do not rely on the "specific v. general" rule of

construction or involved provisions that could not be harmonized. (Order on Pl.'s Mot.

Prelim. Inj. 8.) In Sullivan v. City of Augusta, the issue was whether a parade organizer

was subject to both a parade ordinance and a mass gathering ordinance. 511 F.3d 16, 25­

27 (1st Gr. 2007). The court held that the parade organizer was subject only to the

parade ordinance because, unlike the mass gathering ordinance, the parade ordinance

7 rcguiatcd the conduc': in wruch he intc:,de'.l to ::::-igagc. :ct. ilt 27. ln :>ther words, the

court declined :o construc t,he ,)rdinances •ogcthe~ not bc'.:ause :;hey we~c .n :onflict :,ut

be'.:3use the mass gathering ordinance simply did not applv to the iac!:s ot the ._;asc.

Eere. ~ither definition .arguably couid aoply, ::,ut they are not in conflic: because a

harmonious inte:prcti.tion ~xists.

:n Sutic~ v. Killoran, ,;he lssuc ·.vas whcthc~ to apply the statute .:>f limitations :.n

Maine'~ 'Nrongfui J.:·cath Ac::, ·.vh1c:!\ rcqmrcs ·:omme:1ccme:,t :>f the ;ic::ion within ':wo

:1cars ·:>f the .:fcccdcnt'3 death, l)r .:he ,ti.tutc of limitations in Maine', Hc:1lth Security

Ac::, whic.1-i requJies ·:ommence!Ilent of the action ·,vithin three ,•ears ~fte!' the causa 0i " ,c:::ues. •oos'·"'' accion "'14, "''4 •• . .v= t'!,. , . A'>" __a 1"9 . ts ·:>f'L c.,ncter the tac ~ . T" . ti.if ute -~ase, pIam "';

action was timely •mder the Wrongful C·eath Act and time-barred under the Health

Ser-.J.rity Ac:. :d. The ;ratutes ·)f ,imitation ::ouid not be t1annoruzed ::>ecause ~o :io so

•vould ~xre:1d the statute ,)f :imitations for ac:!:ion8 .msing from proress1onai neg!igence,

in violation of iegislative intent. I~- ~ 10. !n ~ontrast, harrnoru:cing the ;JroV1sions in '±us

c:ase furt.her:; ':he Town':; intent :o rulow :ul Jviunic:pai ·.:ses in the L::>R zone.

n !}rmstrong v. :own oi Cape Elizabeth. the ~own'.> zoning .,rdinance contained

two :onflicting proV1sions: il) l provision ,tating that expansion of a nonconionn.ing

structure mav not inc~e..se the ,tructure'.; noncoruom1ity, and (1~ a provision stating

thac •!X!JanSion of a .1onconfornting .;tructure may .im incre:'\Se the structure'.,

nonconfor.nit-; ~y more ~an 30%. 2000 'Vie. Super. :..EXIS ,'.:75. 'it 'l'!-15 ·:Dec. 2!. :.WOO).

The court need :hat -:.he se,:ond ?rovision ;>revailei .Jecause it was more .;pe~fic than :he

first provjsion «nd the tvm we~e in conflict. :d..H ·16. Aithough the ::ourt did noi

explain why mcsc proV1sions ·:ouid not be 1,annon.i.zed, it see!Ils -:!ear thar ~ prooosei

expansion that .ncrca.sed 1onconfom1ity .::ould :tot comply with ':)oth. He~e. ':he .fac:lity

need nor comply with ooth definitions bP.Csuse ':he '.:ourt wiil uohold the CEC·'3

8 det:errnination that the facility meets one definition, which is supported by adequate

evidence.

CONCLUSION

The meaning of Municipal Use is unambiguous, and the court need not apply

rules of construction. If the court were to apply rules of construction, plaintiff's

argument is unpersuasive because the ordinance's provisions can be harmonized.

The entry is

The Decision of the Town of Cumberland Board of Adjustment and Appeals is AFFIRMED.

Date: January 5, 2016 Nancy Mills Justice, Superior Court

9 STATE OF MAINE SUPERIOR COURT / CUMBERLAND, ss CIVIL ACTION Docket No. AP-15-35

MERRILL WOODWORTH, Personal Representative for the ESTATE OF MERRILL P. ROBBINS,

v. ORDER ON PLAINTIFF'S MOTION FOR A : : :L.;: .-c ..

INHABIT ANTS OF THE TOWN PRELIMINARY IN}tJNG:t-J:Qk;·;:·\ --· c:: ',-'. ,·,

OF CUMBERLAND,

TOWN OF CUMBERLAND,

Before the court is the motion for preliminary injunction filed by plaintiff Merrill

Woodworth, as Personal Representative of the Estate of Merrill P. Robbins. Plaintiff

asks the court to enjoin the Town of Cumberland from constructing a proposed beach

facility on land adjacent to land owned by plaintiff. For the following reasons, the

motion is denied.

FACTS

The Town filed an application with the Cumberland Planning Board (the

"Planning Board") for a permit to construct and operate the facility in Cumberland,

Maine. (Compl.

land it owns adjacent to plaintiff's property. (Compl.

a conservation easement. (Compl.

, The proposed facility is a distance from plaintiff's property. (Pl.'s Ex. C, Site Overview Plan.)

1 a separate action, currently pending in the Law Court, in which he asserts that the

conservation easement prohibits construction of the facility. (Compl. '[ 8.)

On June 16, 2015, plaintiff submitted comments to the Planning Board stating

that the facility is an Outdoor Recreational Facility. (Compl. '[ 18; Anderson Aff. '[ 6;

Pl.'s Ex. C.) The Town property is located in a Low Density Residential zoning district

(LDR Zone). (Compl. '[ 14.) An Outdoor Recreational Facility, defined as a "place

designed and equipped primarily for the conduct of nonmotorized outdoor sports,

leisure time activities, and other customary and usual recreational activities," is not

permitted in the LDR Zone. (Compl. '[ 15; Anderson Aff. '[ 5; Pl.'s Ex. D, §§ 315-4, 315­

7.) On July 16, 2015, the Cumberland Code Enforcement Officer submitted comments

and stated that the facility is a Municipal Use, defined as "any use or building

maintained by the Town of Cumberland." (Compl. <[ 19; Anderson Aff. 'JI 5; Pl.'s Ex. C,

§ 315-4.) Municipal Uses are permitted in the LDR Zone. (Compl. '[ 19; Anderson Aff. 5;

Pl.'s Ex. C, § 315-7.)

The Planning Board concluded that the CEO is responsible for determining

zoning classifications. (Compl. '[ 21.) As a result, the Planning Board did not decide

whether the facility is an Outdoor Recreational Facility or a Municipal Use. (Compl. 'JI

21.) On July 21, 2015, the Planning Board voted to issue a permit for the facility. (Compl.

'[ 22; Anderson Aff. '[ 8; Pl.'s Ex. F.) The Planning Board considered whether to include,

as a condition of the permit, a stay to prevent the Town from beginning construction

until the Law Court action was resolved. (Compl. <[ 23.) The Planning Board decided

not to include this condition. (Compl. 'JI 25.) The Town plans to begin construction on or

after September 7, 2015. (Compl. <[ 46.)

On July 30, 2015, plaintiff appealed to the Cumberland Board of Adjustments

and Appeals (Board of Appeals). (Compl.

2 Board of Appeals upheld the CEO's determination that the facility is a Municipal Use.

(Compl.

injunction to enjoin the Town from constructing the facility.

DISCUSSION 1. Standing

Standing to pursue an appeal under M.R. Civ. P. SOB from a decision of a zoning

board of appeals is governed by 30-A M.R.S. § 2691(3)(G). Witham Family Ltd. v. Town

of Bar Harbor, 2011 ME 104,

days of the date of the vote on the original decision, to Superior Court from any order,

relief or denial ...." 30-A M.R.S. § 2691(3)(G) (2014). A "party" is defined as one who

has appeared before the board of appeals and is able to demonstrate a particularized

injury as a result of the board's action. Sahl v. Town of York, 2000 ME 180,

266. When the appeal involves land use and the party's land abuts the land at issue, the

party "need only allege 'a potential for particularized injury' to satisfy the standing

requirement." Sproul v. Town of Boothbay Harbor, 2000 ME 30,

(quoting Pearson v. Town of Kennebucl<., 590 A.2d 535, 537 (Me. 1991)). An allegation

that the abutting property violates a zoning ordinance meets this minimal standard. See

Rowe v. City of S. Portland, 1999 ME 81,

property violated setback requirement sufficient to establish standing). Here, plaintiff

appeared before the Board of Appeals and his land abuts the Town's property. Plaintiff

alleges that construction of the facility is an unpermitted use under the zoning

ordinance. The court finds that this allegation satisfies the minimal threshold of a

potential for particularized injury.

3 2. Preliminary Injunction

For preliminary injunctive relief to be granted, the movant must demonstrate

that (1) it will suffer irreparable harm without an injunction, (2) any harm to the

opposing party if an injunction is granted is outweighed by the harm to the movant if

an injunction is not granted, (3) there is a likelihood of success on the merits, and (4) the

public interest will not be adversely affected by such relief. Ingraham v. Univ. of Me.,

441 A.2d 691, 693 (Me. 1982). The court must weigh all of these factors together. Dep't

of Envtl. Prot. v. Emerson, 563 A.2d 762, 768 (Me. 1989). The court will not grant an

injunction if the movant cannot meet all four criteria. Bangor Historic Track, Inc. v.

Dep't of Agric., Food & Rural Res., 2003 ME 140,

injunction is against a governmental body, the court should proceed with restraint. Me.

Human Rights Comm'n v. City of Auburn, 425 A.2d 990, 995 (Me. 1981).

a. Irreparable Harm to Plaintiff

A party seeking injunctive relief must show he will suffer irreparable harm.

Ingraham, 441 A.2d at 693. Irreparable harm is an "injury for which there is no

adequate remedy at law ...." Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d

74, 79 (Me. 1980). Plaintiff has alleged that the facility will require significant clearing

for a 44-space parking lot, disturbance of an acre of undeveloped land, construction of

17,700 square feet of paved areas, construction of a parking area near the water, and

relocation of a bathroom facility. (Compl.

result in "irreparable and permanent harm to these resources and to the Plaintiff."

(Compl.

Environmental harm often cannot be adequately remedied by money damages,

but plaintiff has not alleged facts to establish that these activities will cause irreparable

harm to him. See Bangor Historic Track, Inc., 2003 Iv.IE 140, CJ[ 12, 837 A.2d 129 (noting

4 that "vague generalities" suggesting harm were insufficient to support a finding of

irreparable harm). At the hearing on the motion, plaintiff argued the fact of a zoning

violation that involves physical alteration of the Town's property constitutes irreparable

harm to plaintiff. Plaintiff relies particularly on De Schamps v. Bd. of Zoning Appeals.

In that case, the Zoning Board of Appeals sought an injunction against a business owner

who operated an automobile wrecking yard on his property without a permit from the

Board. De Schamps v. Bd. of Zoning Appeals, 174 N.E.2d 581, 583 (Ind. 1961). The

Indiana statute involved specifically provided the Board could institute a suit for

injunctive relief based on a violation of the ordinance. kb at 582-83. Other cases cited

by plaintiff do not support his irreparable harm argument. See, ~ Amoco Prod. Co.

v. Vill. of Gambell, 480 U.S. 531, 552-53 (1987) (reversing grant of injunctive relief

because Alaska National Interest Lands Conservation Act did not apply to the Outer

Continental Shelf); Buckeye Forest Council v. U.S. Forest Serv., 337 Supp. 2d 1030,

1035-36 (S.D. Ohio 2004) (Forest Council obtained preliminary injunction based on

statute that permits citizens to sue to enforce compliance with the Endangered Species

Act); Green Harbour Homeowners' Ass'n v. Ermiger, 889 N.Y.S.2d 687, 688-89 (N.Y.

App. Div. 2009) (grant of preliminary injunction affirmed when defendant cut trees on

plaintiff's property); Hunsaker v. Kersh, 991 P.2d 67, 68 (Utah 1999) (denial of

preliminary injunction reversed; movants alleged damage to crops and trees if

defendants interfered with irrigation water flowing to movants' land); Emerson, 563

A.2d at 764 (Department of Environmental Protection and State of Maine obtained an

injunction to enforce environmental and fire safety laws); Little Joseph Realty, Inc. v.

Babylon, 363 N.E.2d 1163, 1167-68 (N.Y. 1977) (grant of injunctive relief affirmed when

plaintiff's property was invaded by great quantities of dust and soot from defendant's

plant); Stanton v. Trs. of St. Joseph's Coll., 233 A.2d 718, 722 (Me. 1967) (dismissal of

5 landowners' action for injunctive relief vacated because "[T]he riparian owner of a non­

navigable stream has an interest in the preservation of the quality of its water which is

private property."); Gilbert v. Elder, 144 P.2d 194, 195-96 (Idaho 1943) (order staying

temporary injunction prohibiting defendant from cutting timber from plaintiffs' land

annulled). Plaintiff has not demonstrated he will suffer irreparable harm in the absence

of injunctive relief.

b. Balance of Harm

Plaintiff has not demonstrated irreparable harm. The Town has invested

significant resources, both in terms of time and money, to this project. (Shane Aff.

19.) Further, as discussed below with regard to the public interest, the preliminary

work proposed by the Town includes installation of handicapped parking on public

land and control of erosion and storm water runoff. (Shane Aff.

Pl.'s Ex. C.) Any injury to plaintiff does not outweigh the harm to defendants if

injunctive relief is granted.

c. Likelihood of Success on the Merits

The issue is whether the facility is a Municipal Use, as the CEO determined, or an

Outdoor Recreational Facility, as plaintiff contends. "Whether a proposed use falls

within the terms of a zoning ordinance is a question of law ...." Peregrine Developers,

LLC v. Town of Orono, 2004 ME 95,

plain language of the provisions to be interpreted." Gensheimer v. Town of

Phippsburg, 2005 ME 22,

characterize a use "will only be overturned if it is not 'adequately supported by

evidence in the record."' Jordan v. Oty of Ellsworth, 2003 ME 82,

(quoting Goldman v. Town of Lovell, 592 A.2d 165, 169 (Me. 1991)). The municipality's

decision "as to what meets ordinance standards will be accorded 'substantial

6 deference. 111 Rudolph v. Golick, 2010 ME 106, 'JI 8, 8 A.3d 684 (quoting Jordan, 2003 ME

82, 'JI 9, 828 A.2d 768).

The Cumberland zoning ordinance defines "Municipal Use" as "[a]ny use or

building maintained by the Town of Cumberland." (Anderson Aff. 'JI 5; Pl.'s Ex. C;

Cumberland, Me., Zoning Ordinance § 315-4 (Aug. 28, 2015 ).) The ordinance defines

"Outdoor Recreational Facility" in relevant part as "[a] place designed and equipped

primarily for the conduct of nonmotorized outdoor sports, leisure-time activities, and

other customary and usual recreational activities, excluding boat launching facilities,

amusement parks, and campgrounds ...." (Anderson Aff. 'JI 5; Pl.' s Ex. C; Cumberland,

Me., Zoning Ordinance§ 315-4 (Aug. 28, 2015).)

In its application, the Town states that the facility is for "low-impact passive

recreation," including "walking and hiking, boating, swimming, shell fishing,

picnicking, cross country skiing and snowshoeing." (Compl. 'JI 11; Anderson Aff. 'JI 4;

Pl.'s Ex. B subsection C 1.) These uses are consistent with the outdoor sports, leisure-

time activities, and recreational activities included in the definition of "Outdoor

Recreational Facility." The Town will maintain the facility, however, which is

consistent with the definition of "Municipal Use."

Plaintiff argues that the court should apply the "specific" term "Outdoor

Recreational Facility" instead of the "general" term "Municipal Use" because of the

principle that specific statutory terms control over general ones. That principle applies

when there is a conflict between the two terms:

Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling.

7 Butler v. Killoran, 1998 ME 147, <][ 11, 714 A.2d 129 (citation omitted). The cases on

which plaintiff relies can be distinguished. See, ~ Sullivan v. City of Augusta, 511

F.3d 16, 26 (1st Cir. 2007) (parade ordinance regulated the conduct in which plaintiff

intended to engage and not the mass outdoor gathering, which makes no particular

mention of conduct; not a zoning ordinance); Camps Newfound/Owatonna Corp. v.

Town of Harrison, 1998 ME 20, <][ 19, 705 A.2d 1109 (specific statute that addressed the

precise issue involved. was applied; not a zoning issue); Cumberland Farms, Inc. v.

Town of Scarborough, 1997 ME 11, <][<][ 5-6, 688 A.2d 914 (plain language of zoning

ordinance required restrictive treatment of gasoline filling stations, regardless of

whether gasoline is sold as a principal or accessory use); Armstrong v. Town of Cape

Elizabeth, 2000 Me. Super. LEXIS 275, at *15-16 ( Dec. 21, 2000) (conflicting provisions in

a zoning ordinance required application of the more specific provision).

Here, there is no conflict between the terms "Outdoor Recreational Facility" and

"Municipal Use." The facility will both be maintained by the Town and used for

recreational activities, making it appropriate to classify the facility under either term.

The Board decided to classify it as a Municipal Use, and the court gives that decision

substantial deference. As a result, plaintiff has not demonstrated a likelihood of success

on the merits.

d. Public Interest

Plaintiff argues that the injunction will advance the public interest because it will

ensure that public funds are not expended on a project that may violate the zoning

ordinance. In addition, plaintiff urges that it would be prudent to halt construction on

the facility until the Law Court has decided whether the conservation easement

prohibits construction. "A plaintiff acting to vindicate the public interest has a lighter

burden of establishing entitlement to an injunction than would be the case if strictly

8 private interests were involved." Horton & McGehee, Maine Civil Remedies§ 5-3(c) at

105 (4th ed. 2004). In addition, the preliminary work proposed by the Town includes

installation of handicapped parking on public land and control of erosion and storm

water runoff. (Shane Aff. 9I9I 15, 18; Defs.' Ex. A; Pl.'s Ex. C.) Plaintiff has not

demonstrated the public interest will not be adversely affected by the grant of

injunctive relief.

Plaintiff has not demonstrated a likelihood of success on the merits, irreparable

harm if injunctive relief is not granted, and the absence of an adverse effect on the

public if injunctive relief is granted.

Plaintiff's Motion for a Preliminaryfiuncti.on is DENIED.

Date: September 15, 2015 /~ (A µ/;/. Nancy Mills Justice, Superi Court

9 SCOTT ANDERSON ESQ P .-­ VERRILL & DANA PO BOX 586 PORTLAND ME 04112-0586

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