STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-06-031
J & L SAND, INC., Plaintiff
v. ORDER
TOWN OF LYMAN,
Defendant
This matter comes before the Court on J&L Sand's BOB appeal of administrative
action taken by the Town of Lyman. Following hearing, the appeal is Denied.
BACKGROUND
Plaintiff J&L Sand, Inc. ("Sand") is a Maine corporation which operates a mineral
extraction business in the Town of Lyman. Defendant Town of Lyman ("the Town") is
a municipality in York County. In 2001, Sand applied for and received a conditional
use permit for its mineral extraction business. The Lyman Planning Board approved
changes to its permit in September 2002, including hours of operation from 7:00 a.m. to
4:00 p.m. on Saturdays. As a condition of approval, Sand was to provide the Board
with confirmation from a financial institution that it was able to comply with the
approval terms, which it did. The permit was expressly limited to three years; Sand
would need to reapply within ninety days of the permit's expiration in September 2005.
In November 2005, the Town adopted a new zoning ordinance that repealed and
replaced the prior version, which was originally enacted in 1976. The new ordinance
provides that mineral extraction operations no longer need a conditional use pennit;
instead, they must apply for site plan approval. Existing operations may continue until expiration of their permits, but, in order to continue operation, the businesses must
reapply as specified in the ordinance. Sand timely reapplied in 2005 and continued its
operations until evaluation of its application.
On April 5, 2006, the 131anning Board reviewed Sand's application for renewal
and approved it for mineral extraction activities, but added two conditions to its
approval. The Board reduced Saturday hours of operation from 9:00 a.m. to 4:00 p.m. to
9:00 a.m. to 12:00 p.m. Additionally, the Board altered the financial security
requirement to require a $5,000 escrow account to insure compliance with conditions.
Sand appealed that decision to the Town's Zoning Board of Appeals ("ZBA") on May 3,
2006, contending that the Board could not add conditions for renewal applications,
especially where there had been no complaints. The ZBA held a public hearing on May
24,2006, after which it issued its findings of fact and conclusions of law, rejecting Sand's
appeal and endorsing the extra conditions. Sand filed its 80B appeal in this Court on
June 23, 2006, arguing that the Board and ZBA erred as a matter of law by imposing
additional conditions on Sand's permit. It argues that this decision was an error of law,
arbitrary and capricious, and unsupported by substantial evidence in the record. The
Town contends that the ZBA's decision should be affirmed because it had the authority
to add conditions under the new ordinance, which applies to all mineral extraction
operations, including Sand's.
DISCUSSION
1. Standard of Review.
The party appealing a board's decision bears the burden of persuasion. Twigg v.
Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). Review of board findings is "for an
abuse of discretion, error of law, or findings unsupported by substantial evidence in the
record." OfToolev. City of Portland, 2004 ME 130, q[ 8, 865 A.2d 555, 558. A municipal board's interpretation of a zoning ordinance, however, is a legal question entitled to de
novo review. Lewis v. Town of Rockport, 2005 ME 44, q[ 11, 870 A.2d 107, 110. The
operative decision for this Court's review is the underlying planning board decision
when the ZBA has simply acted in an appellate capacity rather than as a "tribunal of
original jurisdiction." Gensheimer v. Town of Phippsburg, 2005 ME 22, q[ 7, 868 A.2d 161,
163-164.
2. Did the Planning. Board Err As A Matter of Law Bv Adding Conditions for Renewal of Sand's Permit?
In this case, the ZBA engaged in appellate review of the Planning Board's
decision rather than undertaking a de novo review. The Lyman ordinance only
required the ZBA to evaluate whether the Board made a procedural error or acted in a
manner that was "clearly contrary" to the ordinance. Town of Lyman Zoning
Ordinance 5 9.7.' Therefore, the operative decision for this Court to review is the
Planning Board's approval with the two new conditions. At issue is the Board's
interpretation of the Town's zoning ordinance pertaining to "existing operations" such
as Sand's. Town Ordinance 5 10.8.3(N)provides as follows:
Existing Operations: Any operation involving excavation, processing, or storage of soil, earth, loam, sand, gravel, rock, or other mineral deposits in lawful operation at the time this Ordinance becomes effective may operate under the existing conditions of their Planning Board approval. The owner/ operator must submit a complete renewal application within ninety (90) days of the expiration date of the existing approval in order to continue to operate.
Also, §10.8.3(M) states that "[nlo approval shall be issued for a period to exceed three
(3) years, although such approvals may be renewed for additional periods in the same
manner." Sand contends that the Board misconstrued these provisions by adding
conditions rather than allowing them to operate under the existing conditions of their
The Law Court has stated that an appellate board should undertake a de novo review unless an ordinance limits review, as it does in this case. See Gensheimer, 2005 ME 22, q[ 8,868 A.2d a t 164. conditional use permit, in which they have "vested right^."^ The Town, however,
argues that these sections do not prevent it from adding further requirements. The
Town accommodates businesses operating prior to enactment of the 2005 ordinance by
allowing them to continue as they had been, until their permits are due to be renewed.
At that point, they would have to reapply just like a new business applying for the first
time, according to the Town.
The new ordinance, as enacted in 2005, revises Town policy pertaining to mineral
extraction businesses. Now, rather than a conditional use permit, all extraction
operations must obtain site plan review when they apply for approval to the Town,
with the exception of those with extremely limited activities. Ordnance s10.8.2.
Reviewing the plain language of this provision, it makes no exception for businesses
that operated before the ordinance changed. §10.8.3(N) simply allows existing
operations to continue without making changes until they are due to reapply. Nothing
in the ordinance prevents the Town from adding the optional conditions listed in
10.8.3(L) at renewal time. In fact, both new and existing extraction operations must
complete an entire site plan review application, demonstrating that, from a practical
standpoint, the Town draws no distinction between repeat and first-time applicants.
Such a distinction would only be drawn for an operation that was between applications
at the time that the new ordinance went into effect. Although submitted earlier, Sand's
application was not evaluated until April 2006, well after the November 2, 2005
effective dateW3
2 Sand cannot have a vested property interest in a permit that, by its nature, is subject to reapproval every three years.
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STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-06-031
J & L SAND, INC., Plaintiff
v. ORDER
TOWN OF LYMAN,
Defendant
This matter comes before the Court on J&L Sand's BOB appeal of administrative
action taken by the Town of Lyman. Following hearing, the appeal is Denied.
BACKGROUND
Plaintiff J&L Sand, Inc. ("Sand") is a Maine corporation which operates a mineral
extraction business in the Town of Lyman. Defendant Town of Lyman ("the Town") is
a municipality in York County. In 2001, Sand applied for and received a conditional
use permit for its mineral extraction business. The Lyman Planning Board approved
changes to its permit in September 2002, including hours of operation from 7:00 a.m. to
4:00 p.m. on Saturdays. As a condition of approval, Sand was to provide the Board
with confirmation from a financial institution that it was able to comply with the
approval terms, which it did. The permit was expressly limited to three years; Sand
would need to reapply within ninety days of the permit's expiration in September 2005.
In November 2005, the Town adopted a new zoning ordinance that repealed and
replaced the prior version, which was originally enacted in 1976. The new ordinance
provides that mineral extraction operations no longer need a conditional use pennit;
instead, they must apply for site plan approval. Existing operations may continue until expiration of their permits, but, in order to continue operation, the businesses must
reapply as specified in the ordinance. Sand timely reapplied in 2005 and continued its
operations until evaluation of its application.
On April 5, 2006, the 131anning Board reviewed Sand's application for renewal
and approved it for mineral extraction activities, but added two conditions to its
approval. The Board reduced Saturday hours of operation from 9:00 a.m. to 4:00 p.m. to
9:00 a.m. to 12:00 p.m. Additionally, the Board altered the financial security
requirement to require a $5,000 escrow account to insure compliance with conditions.
Sand appealed that decision to the Town's Zoning Board of Appeals ("ZBA") on May 3,
2006, contending that the Board could not add conditions for renewal applications,
especially where there had been no complaints. The ZBA held a public hearing on May
24,2006, after which it issued its findings of fact and conclusions of law, rejecting Sand's
appeal and endorsing the extra conditions. Sand filed its 80B appeal in this Court on
June 23, 2006, arguing that the Board and ZBA erred as a matter of law by imposing
additional conditions on Sand's permit. It argues that this decision was an error of law,
arbitrary and capricious, and unsupported by substantial evidence in the record. The
Town contends that the ZBA's decision should be affirmed because it had the authority
to add conditions under the new ordinance, which applies to all mineral extraction
operations, including Sand's.
DISCUSSION
1. Standard of Review.
The party appealing a board's decision bears the burden of persuasion. Twigg v.
Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). Review of board findings is "for an
abuse of discretion, error of law, or findings unsupported by substantial evidence in the
record." OfToolev. City of Portland, 2004 ME 130, q[ 8, 865 A.2d 555, 558. A municipal board's interpretation of a zoning ordinance, however, is a legal question entitled to de
novo review. Lewis v. Town of Rockport, 2005 ME 44, q[ 11, 870 A.2d 107, 110. The
operative decision for this Court's review is the underlying planning board decision
when the ZBA has simply acted in an appellate capacity rather than as a "tribunal of
original jurisdiction." Gensheimer v. Town of Phippsburg, 2005 ME 22, q[ 7, 868 A.2d 161,
163-164.
2. Did the Planning. Board Err As A Matter of Law Bv Adding Conditions for Renewal of Sand's Permit?
In this case, the ZBA engaged in appellate review of the Planning Board's
decision rather than undertaking a de novo review. The Lyman ordinance only
required the ZBA to evaluate whether the Board made a procedural error or acted in a
manner that was "clearly contrary" to the ordinance. Town of Lyman Zoning
Ordinance 5 9.7.' Therefore, the operative decision for this Court to review is the
Planning Board's approval with the two new conditions. At issue is the Board's
interpretation of the Town's zoning ordinance pertaining to "existing operations" such
as Sand's. Town Ordinance 5 10.8.3(N)provides as follows:
Existing Operations: Any operation involving excavation, processing, or storage of soil, earth, loam, sand, gravel, rock, or other mineral deposits in lawful operation at the time this Ordinance becomes effective may operate under the existing conditions of their Planning Board approval. The owner/ operator must submit a complete renewal application within ninety (90) days of the expiration date of the existing approval in order to continue to operate.
Also, §10.8.3(M) states that "[nlo approval shall be issued for a period to exceed three
(3) years, although such approvals may be renewed for additional periods in the same
manner." Sand contends that the Board misconstrued these provisions by adding
conditions rather than allowing them to operate under the existing conditions of their
The Law Court has stated that an appellate board should undertake a de novo review unless an ordinance limits review, as it does in this case. See Gensheimer, 2005 ME 22, q[ 8,868 A.2d a t 164. conditional use permit, in which they have "vested right^."^ The Town, however,
argues that these sections do not prevent it from adding further requirements. The
Town accommodates businesses operating prior to enactment of the 2005 ordinance by
allowing them to continue as they had been, until their permits are due to be renewed.
At that point, they would have to reapply just like a new business applying for the first
time, according to the Town.
The new ordinance, as enacted in 2005, revises Town policy pertaining to mineral
extraction businesses. Now, rather than a conditional use permit, all extraction
operations must obtain site plan review when they apply for approval to the Town,
with the exception of those with extremely limited activities. Ordnance s10.8.2.
Reviewing the plain language of this provision, it makes no exception for businesses
that operated before the ordinance changed. §10.8.3(N) simply allows existing
operations to continue without making changes until they are due to reapply. Nothing
in the ordinance prevents the Town from adding the optional conditions listed in
10.8.3(L) at renewal time. In fact, both new and existing extraction operations must
complete an entire site plan review application, demonstrating that, from a practical
standpoint, the Town draws no distinction between repeat and first-time applicants.
Such a distinction would only be drawn for an operation that was between applications
at the time that the new ordinance went into effect. Although submitted earlier, Sand's
application was not evaluated until April 2006, well after the November 2, 2005
effective dateW3
2 Sand cannot have a vested property interest in a permit that, by its nature, is subject to reapproval every three years. 3 Even if the prior 1976 ordinance applied to Sand, there is no limiting language in that ordinance barring the Town from adding new conditions for reapplicants. Nevertheless, Sand makes a policy argument that there is a difference between
new and existing businesses, and that the Town should not be able to impose additional
conditions upon renewal applicants. Sand refers to $j 3.1.1 of the Ordinance, which
states that lawful use occurring when the ordinance was adopted or changed can
continue even if it is nonconforming. The Town argues, however, that it should be able
to adapt to changing conditions at sites like Sand's. It contends that its authority to do
so would be severely hampered if it could never require older businesses to abide by
new rules. Indeed, when evaluating Sand's application, the Planning Board noted that
all other mineral extraction businesses likewise had been required to adhere to new
conditions, and that it needed to make extraction operations more uniform. The Town
contends that Sand's remedy would have been to participate in the public hearings at
which proposed changes to the ordinance were evaluated.
Reading 5 3.1.1 in conjunction with 5 10.8.3(N),the two provisions are consistent
in that both provide for nonconforming uses so that businesses operating under an old
version of the ordinance may continue under the same conditions. 5 3.1.1 does not, however, state that nonconforming uses may continue indefinitely, or that the Town
cannot make uses conform when an applicant proceeds to site plan review, which must
occur every three years. As a part of site plan review, the Town has the discretion to
apply any of the optional conditions in 5 10.8.3(L), including changed hours or an
escrow account, to its approval of an application, whether it is a renewal or a new
application. Basing that decision on uniformity for mineral extractors did not violate
the ordinance, which does not require complaints to occur before changes can be made
or enforced. It cannot be said that the Board committed legal error by requiring Sand to
adhere to new conditions as part of the amended approval process. CONCLUSION
The appeal is Denied and the Board's decision is affirmed.
Dated: May? ,2007
I Justice, Superior Court
PLAINTIFF: WILLIAM S KANY ESQ SMITH ELLIOTT SMITH & GARMEY PO BOX 1 1 7 9 SAC0 ME 0 4 0 7 2
DEFENDANT: WILLIAM H DALE ESQ JENSEN BAIRD GARDNER & HENRY PO BOX 4 5 1 0 PORTLAND ME 0 4 1 1 2 - 4 5 1 0