Moody v. Town of Wells

490 A.2d 1196, 1985 Me. LEXIS 694

• Court: Supreme Judicial Court of Maine
• Decided: April 11, 1985
• Status: Published

Opinions

ROBERTS, Justice.

Peter Moody appeals from a summary judgment entered in Superior Court, York County, in favor of the Town of Wells upon Moody’s complaint for direct judicial review of the decision of the zoning board of appeals.¹ Moody contends, inter alia, that the board erred in its interpretation of section 11(D)(5) of the Wells Zoning Ordinance (merger of lots in common ownership). Because we agree, we reverse the judgment of the Superior Court.

Prior to the 1976 enactment of the Wells Zoning Ordinance, Peter Moody had constructed eight dwelling units on a 20,000 square foot parcel of land (parcel A) in the Town of Wells. After enactment of the ordinance each dwelling unit required 5,000 square feet of land. Moody’s buildings, of course, remained lawful as nonconforming uses under the ordinance’s grandfather clause.

In 1981 Moody purchased a parcel adjacent to parcel A of approximately 10,000 square feet (parcel B) for the purpose of constructing a duplex dwelling on that lot. By itself parcel B would suffice under the zoning ordinance to support the planned duplex. At issue in this appeal is the question whether section 11(D)(5) of the ordinance requires a merger of parcel B with parcel A because of parcel A’s nonconforming nature.

Section 11(D)(5) provides in pertinent part:

If two or more contiguous lots are in the same ownership on or after November 2, 1976 they shall be considered as one lot for the purpose of the minimum lot size provisions of this Ordinance, and no portion of said parcel shall be built upon or sold which does not meet the dimensional requirements of the Wells Zoning Ordinance.

Moody’s basic argument is that the proper interpretation of the merger provision is controlled by our decision in LaPointe v. City of Saco, 419 A.2d 1013 (Me.1980). The town attempts to distinguish LaPointe on the basis that the wording of the Wells ordinance differs from the wording of the Saco ordinance. By focusing upon the textual argument of the plaintiffs in La-Pointe, 419 A.2d at 1016, the town argues that our decision was based upon the notion that the Saco ordinance necessarily referred only to lots that could be “built upon” or, in other words, unimproved lots. Because the Wells ordinance uses the phrase “built upon or sold,” the town claims a different interpretation is in order. We disagree.

We specifically stated in LaPointe that the plaintiffs’ textual argument might not be conclusive. Id. We decided, however, that the city did not intend the limitations upon use of a merged parcel to be applicable to previously improved property. The ordinance provided that no portion of the merged parcel could be used without conforming and no division of the merged parcel could leave the remainder nonconforming. Id. We fail to detect any significant difference in the Wells restrictions that “no portion ... shall be built upon or sold which does not [conform].” For our purposes, the word “division” means the same thing as the word “sold.” As interpreted by the town, the Wells ordinance would prevent Moody from ever conveying any of his buildings as a single unit. Clearly, that was not the intent of the ordinance.

We likewise see no significance in the fact that the LaPointes had acquired both parcels prior to the effective change in the Saco ordinance whereas, in the case before us, Moody acquired parcel B after the ordinance amendment. For the reasons stated above, the merger provision simply does not compel the merger of improved property with an unimproved parcel in these circumstances. We need not address any other issues raised on appeal or in the plaintiffs complaint and we express no opinion thereon.

The entry is:

Judgment reversed.

Remanded to the Superior Court with directions to enter judgment reversing the decision of the board of zoning appeals.

McKUSICK, C.J., and VIOLETTE, WATHEN, and GLASSMAN, JJ., concurring.

1 . Moody's son is also a party plaintiff for reasons that do not affect the merits of the case.