Silsby v. Belch

2008 ME 104, 952 A.2d 218, 2008 Me. LEXIS 104
CourtSupreme Judicial Court of Maine
DecidedJune 24, 2008
StatusPublished
Cited by20 cases

This text of 2008 ME 104 (Silsby v. Belch) 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
Silsby v. Belch, 2008 ME 104, 952 A.2d 218, 2008 Me. LEXIS 104 (Me. 2008).

Opinion

MEAD, J.

[¶ 1] James Silsby Jr., and others appeal from a judgment entered by the Superior Court (Hancock County, Hjelm J.) affirming the decision of the City of Ells-worth’s Planning Board.1 Silsby raises arguments focusing on alleged errors on the part of the Planning Board and the Superi- or Court, on the Superior Court’s denial of his motion for a M.R. Civ. P. 80B trial, and the proper standard to be applied by the court in construing the express terms of a deed to real estate. We affirm the judgment of the Superior Court.

I. BACKGROUND

[¶ 2] Anthony and Elizabeth Belch purchased property, located at 828 Main Street in Ellsworth, in August 2002. It is located in a residential area in the City and is composed of four separate lots. Three of the four deeds conveying the lots have a covenant that states in relevant part:

The Grantees ... covenant and agree with the Grantor ... that they will not construct on the premises herein conveyed any buildings, with the necessary and convenient other buildings to serve a homestead ... and it is further covenanted and agreed as aforesaid that they will not permit the premises to be used for any commercial purposes.

The deed for the fourth lot has a similar covenant that reads in relevant part, “[t]he said grantees ... covenant with the said grantor ... that they will only use the [property] for residential or dwelling house purposes and that said premises will not be used for any commercial or industrial use....”

[¶ 3] The Belches applied to the code enforcement officer for a building permit to convert an existing building on the property into a three-unit apartment building. This permit was granted and renovations were completed. Following this, the City requested that they submit an application for minor subdivision approval. The Belches did so and, after notice and two hearings, the Planning Board voted to approve the Belches’ application.

[¶ 4] James Silsby and a number of the abutting and surrounding property owners filed an appeal in the Superior Court challenging the approval of the Belches’ minor subdivision application pursuant to Rule 80B of the Maine Rules of Civil Procedure.2 The Superior Court, in an order dated June 18, 2007, denied Silsby’s motion for a trial of the facts and concluded that the language of the covenant did not bar the conversion of the property to an apartment building. Silsby filed a timely appeal.

[221]*221II. DISCUSSION

[¶5] Silsby presents two main arguments.3 First, he argues that the Superior Court erred in denying his motion for a M.R. Civ. P. 80B(d) trial of the facts.4 Second, he argues that the Superior Court erred in interpreting the language of the deeds’ covenants.

[¶ 6] Pursuant to M.R. Civ. P. 80B(d), a party may move for a trial on the facts.5 The purpose of such a trial is not to retry the facts but rather to permit the court to obtain facts that are not present in the record. Baker’s Table, Inc. v. City of Portland, 2000 ME 7, ¶ 9, 743 A.2d 237, 240-41. Because courts review the language of a deed de novo, the only relevant consideration is the language of the deed. A trial of facts in such circumstances is unnecessary as the court’s review is appropriately limited to the existing record and the four corners of the deed.

[¶ 7] As construction of a deed is a question of law, it is reviewed de novo. River Dale Ass’n v. Bloss, 2006 ME 86, ¶ 6, 901 A.2d 809, 811. This standard of review applies to the interpretation of a restrictive covenant. Id. The relevant language will be given its ordinary meaning and this meaning governs unless there is ambiguity present. Id.; see also Pettee v. Young, 2001 ME 156, ¶8, 783 A.2d 637, 640 (“A court construing the language in a deed must give the words their general and ordinary meaning .... ” (quotation marks omitted)). “If the language of a deed is unambiguous, it will guide interpretation of the parties’ intent.” Bennett v. Tracy, 1999 ME 165, ¶8, 740 A.2d 571, 573 (quotation marks omitted).

[¶ 8] The identical covenants in the first three deeds provide that the owner “will not construct on the premises herein conveyed any buildings, with the necessary and convenient other buildings to serve a homestead, at a cost less than $8,000 ... [and he or she] will not permit the premises to be used for any commercial purposes.”6 Silsby argues that the clauses prohibit the use of the house on the property as a multi-unit apartment building and effectively require that the [222]*222property be only used for owner-occupied, single-family dwellings. He emphasizes the use of the word “homestead” in the covenants and argues that it creates, as a term of art, a use restricted to owner-occupied, single-family dwellings.

[¶ 9] His argument is not persuasive. The plain language of the deeds does not invoke the word “homestead” to define the use of the property. On the contrary, “homestead” is used to describe the type and character of outbuildings that may be constructed upon the property. The clause serves only to establish two independent requirements for buildings erected upon the property after the execution of the deed. The buildings must: (1) be of a character that ordinarily serves a homestead (e.g., a garage, a gardening shed, a gazebo, or such, but not a commercial store, gasoline station, manufacturing facility, or such); and (2) have a minimum cost of $8000.

[¶ 10] Although the language of the deed suggests an intention on the part of the grantor to prevent the use of the property for commercial applications, it contains no restriction upon the character of the residential use. If a grantor intended to restrict property to owner-occupied, single-family residential use, it is a simple matter to plainly state such a restriction in the deed. The Belches are not constrained in the character of their residential use of the property by the deed covenants.

[¶ 11] Turning to the second clause, Silsby argues that the “[not] for any commercial purposes” language prohibits any use undertaken with a view to profit, and thus the use of the property as a rental property is barred by the covenant.7 His argument is not persuasive.

[12] The focus of the analysis is on the common and ordinary meaning of the language. A dictionary may be relied on to help determine this meaning. See Rockland Plaza Realty Corp. v. City of Rockland, 2001 ME 81, ¶ 12, 772 A.2d 256, 260 (holding such in the context of statutory interpretation). “Commercial” is defined as: “[o]f or relating to commerce” and “[h]aving profit as a primary aim.” Webster’s II New Riverside University Dictionary 286 (1984); see also Beckley v. Town of Windham, 683 A.2d 774, 775 (Me.1996) (defining “commercial” as “having profit as a chief aim”).

[¶ 13] A person residing in an apartment building is not, by virtue of residing in an apartment, engaged in commerce or working “having profit as [her] primary aim.” The fact that a resident pays some manner of rent to a building owner, creating a profit in some instances and in some instances not, does not in itself render the residential building a commercial enterprise.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 ME 104, 952 A.2d 218, 2008 Me. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silsby-v-belch-me-2008.