Gorham v. Town of Cape Elizabeth

625 A.2d 898, 1993 Me. LEXIS 39
CourtSupreme Judicial Court of Maine
DecidedMarch 11, 1993
StatusPublished
Cited by30 cases

This text of 625 A.2d 898 (Gorham v. Town of Cape Elizabeth) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gorham v. Town of Cape Elizabeth, 625 A.2d 898, 1993 Me. LEXIS 39 (Me. 1993).

Opinions

CLIFFORD, Justice.

Coleman Gorham owns a single family residence on Bowery Beach Road in Cape Elizabeth. The property is in a Residence-A zoning district. R-A zone permitted uses include single family dwellings, agricultural uses, and schools. Multi-unit dwellings are permitted as a conditional use upon a showing of compliance with conditions set out in the Cape Elizabeth zoning ordinance.1 In August 1989, Gor-ham filed with the Cape Elizabeth Zoning Board of Appeals an application for a conditional use permit in order to convert his single family home to a multi-unit dwelling. Gorham sought approval for an apartment within his home; there were to be no changes to the exterior of the building or to the parking facilities. The Board held three public hearings, and considered several letters, three reports from real estate appraisers and the oral comments of a number of residents before it unanimously denied Gorham’s application. The Board, in denying the application, determined that the use of Gorham’s home as a multi-family unit would “adversely affect the value of adjacent properties” under Section 19-4-7(b)(4) of the zoning ordinance.

Gorham brought a three-count complaint in the Superior Court (Cumberland County) naming as defendants the Town of Cape Elizabeth and its code enforcement officer.2 In Count I, an M.R.Civ.P. 80B, Gorham alleges that decision was not supported by substantial evidence in the record and was arbitrary and unreasonable. In Count II, Gorham seeks a declaratory judgment that [900]*900Section 19-4-7(b) of the zoning ordinance is unconstitutional because it bears no substantial relationship to the public health, safety, and general welfare, and it imper-missibly delegates legislative authority to the Board. In Count III, Gorham alleges, inter alia, that his constitutional right to due process was violated because of the Board’s bias and predisposition against multi-family dwellings. The Superior Court rejected Gorham’s appeal, entering a judgment for the Town on Count I {Brennan, J.), and granting a summary judgment to the Town on Counts II and III {Lipez, J.). Gorham then appealed to this court. We find no error and affirm the judgment.

CONSTITUTIONAL CHALLENGES

A. Substantial Relationship to Health, Safety, and General Welfare And Delegation of Legislative Power

Under Section 19-4-7(b) of the Cape Elizabeth zoning ordinance, one of the criteria that has to be satisfied before a conditional use application is approved is that “[t]he proposed use will not adversely affect the value of adjacent properties.” Gorham, under the due process clause, challenges the constitutionality of the ordinance’s “adverse affect” criterion in two respects. First, he contends that the criterion does not bear a substantial relationship to the public health, safety, or welfare. See Warren v. Municipal Officers of Town of Gorham, 431 A.2d 624, 627 (Me.1981). Gorham also contends that Section 19-4-7(b)(4) constitutes an improper delegation of legislative authority. We are unpersuaded by either contention.

The constitutionality of a zoning ordinance is presumed. Gorham, in attacking the ordinance, has the burden of proof of demonstrating its unconstitutionality. Warren, 431 A.2d at 627-28. Contrary to Gorham’s first contention, the maintenance of property values is a legitimate interest served by zoning restrictions. Id. at 628; Barnard, v. Zoning Bd. of Appeals of Town of Yarmouth, 313 A.2d 741, 745 (Me.1974). Therefore, the Cape Elizabeth zoning ordinance meets the due process requirement that it bear a reasonable relationship to the public health, safety, morals, or general welfare. Warren, 431 A.2d at 627.

Gorham also contends that the “adverse affect” criterion set out in Section 19-4-7(b)(4) constitutes a constitutionally impermissible delegation to the Board of discretionary authority not sufficiently limited by legislative standards, see Stucki v. Plavin, 291 A.2d 508, 510 (Me.1972), and argues that the criterion is too subjective and not measurable, leading to favoritism and discrimination. See Wakelin v. Town of Yarmouth, 523 A.2d 575, 577 (Me.1987).

Because conditional uses are those uses that the legislature has determined to be ordinarily acceptable in a particular zone, in order to withstand attack as an impermissible legislative delegation of authority, ordinances that establish criteria for acceptance of a conditional use must specify sufficient reasons why such a use may be denied. Bass v. Town of Wilton, 512 A.2d 309, 310 (Me.1986). A conditional use standard must be sufficiently specific “to guide both an applicant in presenting his case ... and the Board in examining the proposed use_” Wakelin, 523 A.2d at 577.

In this case, the Town has determined that in order for multi-family use of property to be allowed in an R-A zone, the Board must determine, among other criteria, that such use “will not adversely affect the value of adjacent properties.”3 Although [901]*901we have not previously decided whether such a criterion is sufficiently specific to survive constitutional scrutiny, see Cope v. Town of Brunswick, 464 A.2d 228, 225 n. 3 (Me.1983), we conclude that Section 19-4-7(b)(4) gives sufficient guidance to a conditional use applicant, such as Gorham, as to what facts must be presented “to gain the Board’s approval” and to the Board itself in examining the proposed use. Wakelin, 523 A.2d at 577. Gorham and the parties opposing his application presented a substantial amount of evidence directed to the precise issue addressed in Section 19-4-7(b)(4), namely, whether the proposed mul-ti-family use of Gorham’s property would adversely affect values of surrounding property.

In Bass, the constitutionality of the conditional use criterion “devalue adjacent property” was raised by the parties but, because the case was decided on other grounds, was not addressed by the court. 512 A.2d at 311. We agree with the Superior Court, however, that the reasoning of Justice Scolnik in his dissent in Bass, urging that such a standard was sufficiently specific to be constitutional, is persuasive when applied to the instant case.

The plain meaning of the term “devalue” is sufficient to guide the Board in its application of [that section of the zoning ordinance] to a requested conditional use permit. The term “devalue,” in this zoning context, obviously means to cause the reduction or loss in the value of adjacent property. By the employment of this objective standard, the Board does not assume for itself an unfettered discretion to grant or deny the permit. As this case illustrates, evidence may be presented by expert appraisers as well as the owners of the adjacent land. Such evidence provides a sufficient basis for an evaluation of whether the proposed project would cause a reduction in the value of the adjacent properties. If so, [the section] requires that the permit be denied.

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Bluebook (online)
625 A.2d 898, 1993 Me. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gorham-v-town-of-cape-elizabeth-me-1993.