Town of Georgetown v. Montgomery

• Court: Superior Court of Maine
• Decided: May 20, 2011
• Docket: SAGap-10-4
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT

Sagadahoc, SS. Civil Action AP-10-4 Docket No. BATSC-RE-2006-0S Docket No. WESDC-CV-05-289 (Consolidated) ~~ 1, . ~ -,A l-. :' .

TOWN OF GEORGETOWN, ) ) Petitioner ) ) v. ) ) R. BRUCE MONTGOMERY and ) WANDA HADDOCK, ) ) Defendants ) ) JACOB and SUSAN H. KARBINER, ; ) Parties in Interest )

) WANDA HADDOCK, ) Petitioner ) VS. ) ) TOWN OF GEORGETOWN ) ) and ) ) JACOB and SUSAN KARBINER, ) Respondents )

ORDER AND JUDGMENT

Pursuant to M.R. Civ. P. soB, Petitioner Wanda Haddock has appealed from the March ----------

S, 2010 decision of the Town of Georgetown Planning Board, as supplemented by the Board's

further findings and decision dated January 18, 2011, denying the Petitioner's building permit

application because the Petitioner's lot is not a nonconforming lot of record. For the reasons

discussed below the court denies the Petitioner's appeal and affirms the Board's decision. Background

This soB appeal is the most recent action in a multi-year period oflitigation

surrounding Petitioner's construction on her property in Georgetown, Maine. The court

briefly addresses those facts pertinent to this matter.

In a related previous action, Ms. Haddock applied to the Town Planning Board for a

permit to relocate a garage structure she built on her property. The Planning Board denied the

application, and the Board of Appeals upheld that denial on October so, 2009. The Board of

Appeals found that the Haddock lot is not a nonconforming lot of record, and therefore no

building permit could be issued for any principal or accessory structure. Ms. Haddock did not

appeal this decision.

On January 26, 2010, Ms. Haddock submitted a new application to the Planning Board,

asking to expand the principal structure located on the lot. She argues that her request to

expand her existing dwelling-she plans to connect the constructed garage to the home--

avoids the problems with her previous application. On March S, 2010, the Planning Board

denied the application, finding as a matter oflaw, based on the 2009 Board of Appeals' decision,

that a permit could not be issued on her lot for any principal or accessory structure because it is

not a nonconforming lot of record. The Board of Appeals upheld the Planning Board's

determination on April 14, 2010.

Ms. Haddock appealed the Board of Appeals' decision pursuant to Rule soB on May 26, 1 2010. On July 16, 2010, Ms. Haddock filed her soB brie£ Both the Town and parties-in-

interest, abutters Jacob and Susan Karbiner, have filed reply briefs.---

On NovemberS, 2010, this court remanded the matter to the Planning Board for

further findings of fact and conclusions oflaw. The court retained jurisdiction over the

1 The Town's Zoning Ordinance provides that appeals of decisions made by the Board of Appeals must be filed within 45 days of the issuance of the decision.

2 pending appeal, and instructed the parties that it would reconsider the issues after receiving the

Planning Board's post-remand decision. On December 15, 2010, the Planning Board held a

meeting to review the evidence previously presented to the Board, and on January 18, 2011, the

Board issued further findings that upheld and explained its original decision denying the

Petitioner's application.

Standard qfReview

In appeals brought pursuant to M.R. Civ. P. SOB, this court reviews administrative

decisions for errors oflaw, abuse of discretion, or findings of fact unsupported by substantial

evidence on the record. Fitanides v. City qfSaco, 2004 ME 32, ~ 23, 843 A.2d 8, 16 (citing

Veilleux v. City qfAugusta, 684 A.2d 413, 415 (Me. 1996)). "Substantial evidence exists if there is

any competent evidence in the record to support a decision." !d. (citing York v. Town qf

Ogunquit, 2001 ME 53, ~ 14, 769 A.2d 172, 178); see also Ryan v. Town q[Camden, 582 A.2d 973,

975 (Me. 1990) (noting that the substantial evidence standard requires the-court "to examine

the entire record to determine whether on the basis of all the testimony and exhibits before the

board it could fairly and reasonably find the facts as it did") (quoting Seven Islands Land Co. v.

Maine Land Use Reg. Comm., 450 A.2d 475,479 (Me. 1982)). The burden of persuasion in an

action challenging an administrative decision rests on the party seeking to overturn the

decision. See Sa"W)'er Envtl. Recovery Facilities, Inc. v. Town q[Hampden, 2000 ME 179, ~ 13, 760

A.2d 257, 260.

When "reviewing an administrative ... decision, the issue before the court is not

whether it wouTdhavereache-d the-same-conclusion- as-tli.e [administrative tribunal], 'but

whether the record contains competent and substantial evidence that supports the result

reached."' Seider v. Bd. q[Exam'rs q[Psychologists, 2000 ME 206, ~ 8, 762 A.2d 551, 555

(quoting CWCO, Inc. v. Superintendent qflns., 1997 ME 226, ~ 6, 703 A.2d 1258, 1261). The

3 court may not substitute its own judgment for that of the administrative tribunal. See id.;

accord, Brooks v. Cumberland Farms, Inc. 1997 ME 203, ~ 12, 703 A.2d 844, 848. In other words,

an administrative decision is not wrong because it is inconsistent with parts of the record or

because the court might have come to a different conclusion. See Twigg v. Town qf'Kennebunk,

662 A.2d 914, 916 (Me. 1996).

Discussion

In light of the January 18, 2011 additional findings of fact, the only remaining issue

before the court is whether the Board correctly interpreted the Ordinance to prohibit the

expansion of a nonconforming structure on a nonconforming lot not of record2 unless a

variance is obtained. 3 Haddock argues that the Board erred because the Ordinance provision

pertaining to the expansion of existing nonconforming grandfathered structures does not have

a requirement that the structure be on a nonconforming lot of record. The Town and the

Karbiners argue that the Board correctly concluded that any building or construction on the lot

is prohibited unless a variance is obtained because it is a nonconforming lot not of record.

(Karbiner Brief, at 5-6);4 (Town Brief, at 4}

2 A "Non-conforming Lot" is defined as a "single lot of record which does not meet any one or more of the following dimensional requirements: setback, height, or lot coverage .... " (Ordinance§ 17, Definitions.) 3 In her Rule BOB Brief, Haddock also argued that the Board should not have relied on the 2009 Board of Appeals decision as a matter oflaw in making its 2010 decision. However, in light of the January 18, 2011 additional findings of fact, it is apparent that the Board did not solely rely on the 2009 decision in making its determination; therefore, the res judicata argument is moot. (Additional Findings of Fact, at 1~5~}---- ---- - ---- --~---~ -~~--~-- Similarly, Haddock also contended that the Town's Code Enforcement Officer wrongfully failed to act on her permit application for a retaining wall, and that the Local Plumbing Inspector wrongfully failed to process her plumbing permit application. This issue was addressed in this court's November 8, 2010 Order, and its remand to the Town of Georgetown Code Enforcement Officer for further findings of facts, conclusions, and an ultimate decision. The court did not retain jurisdiction over this issue on appeal and, accordingly, does not address it here. 4 The Karbiners argue: "[t]he obvious basis for the 2009 Board of Appeals decision was that then Section 1l.E.1 (now 12.E.1) prohibited building upon a lot that was not a nonconforming lot of record

4 '"The construction of a municipal ordinance is a question oflaw for the court .... "'

Power v. Shapleigh, 606 A.2d 1048, 1049 (Me. 1992) (citing Farley v. Town ifLyman, 557 A.2d

197, 200 (Me. 1989)). "The terms of a zoning ordinance must be construed reasonably with

regard both to the objects sought to be obtained and to the general structure of the ordinance

as a whole." Aydelott v. City ifPortland, 2010 ME 25, ~ 12, 990 A.2d 1024, 1027 (citing La

Pointe v. Saco, 419 A.2d 1013, 1015 (Me. 1980) and Blouin v. City if Rockland, 441 A.2d 1008,

1010 (Me. 1982) ("In order to gain an understanding of this particular section, reference must

be made to the ordinance in its entirety. This approach is particularly useful to determine the

meaning of a phrase or term ... not defined in the enactment.")). "In determining [the] intent,

the plain meaning of the language controls." Shapleigh, 606 A.2d at 1049 (citing City ifPortland

v. Grace Baptist Church, 552 A.2d 533, 535 (Me. 1988)). However, "[a] court's interpretation of

an ordinance must not create 'absurd, inconsistent, unreasonable or illogical results."' Banks v.

Maine RSA # 1, 1998 ME 272, ~ 4, 721 A.2d 655, 657 (quoting Melanson v. Belyea, 1997 ME

150, ~ 4, 698 A.2d 492, 493).

One of the main purposes of the Georgetown Ordinance is "to promote land use

conformities .... " (Ordinance§ 12.A, Non-conformance-purpose.) Accordingly, "no building,

structure, or land shall be ... expanded, moved, or altered, and no new lot shall be created

except in conformity with all of the regulations specified for the district in which it is located,

unless a variance is granted." (Ordinance§ 11, Land Use Requirements.) However, "[a] non-

conforming structure may be added to or expanded with a permit from the Planning Board, if

--~ ---- sucli -addition or expansion does not increase the non=-conformity of the structure ...."

the same prohibition that operated to prevent even more building activity in the form of an expansion of a nonconforming structure." (Karbiner Brief, at 5-6).

5 The Town argues that the "Petitioner's lot is a non conforming lot not of record and therefore she must seek a variance in order to build anything on her lot." (Town Brief, at 4.) (emphasis added).

5 (Ordinance§ 12.C.1, Non-conforming Structures); see also (Ordinance§ 17, Definitions)

(defining "Expansion of a structure" as: "an increase in the floor area or volume of a structure,

including all extensions such as, but not limited to, attached decks, garages, porches, stairways,

and greenhouses.") (emphasis added). Similarly, "[a] non-conforming lot of record as of the

effective date ofthis Ordinance may be built upon, without the need for a variance, provided

that ... all provisions of this Ordinance except lot area, lot width, and shore frontage can be

met .... " (Ordinance§ 12.E.l, Non-conforming Lots) (emphasis added).

The court concludes that the Board did not err in interpreting the Ordinance. It is

evident from the Additional Findings of Fact, the meeting minutes, and the submitted record

that the Board gave significant consideration to the language and overall purpose of the

Ordinance. It is undisputed that Ms. Haddock's lot is nonconforming under the Ordinance.

(Pet.'s Brief at 17-18.) Further, because the lot was created on June 10, 1999, well after the

enactment of the Ordinance in 1974,6 the Board correctly found that the lot is a non-

conforming lot not ofrecord. (Additional Findings of Fact, at 2./

As the lot is a non-conforming lot not of record, the Board did not err in concluding

that Section 12.E.1, making it permissible for a non-conforming lot that is of record to be built

upon without a variance when all other Ordinance provisions are met, does not apply to a non-

conforming lot not ofrecord. This conclusion is consistent with the overall intent of the

Ordinance to eliminate nonconforming land uses, see e.g. Merrill v. Town rifDurham, 2007 ME

6 The Ordinance states: "For the purposes of this section, the effective date of the Ordinance is 9 March 1974 ... Any non-conforming condition lawfully existing prior to the adoption of this Ordinance shall not by reason solely of such adoption be deemed an unlawful condition." (Ordinance§ 12, Non- conformance) (emphasis added). 7 In 2005, the Board of Appeals found that the lot was not a nonconforming lot of record. (Additional Findings of Fact, at 3.) The Petitioner's admit that they never appealed this decision. (Karbiner Brief, Ex. C, at 2.) As such, the Board's "findings are res judicata." See Gerald v. York, 589 A.2d 1272, 1273 (Me. 1991).

6 50, ~ 16, 918 A.2d 1203, 1206, and does not "create absurd, inconsistent, unreasonable or

illogical result[s]." Banks, 1998 ME 272, ~ 4, 721 A.2d at 657 (internal citation omitted).

Conclusion

For the reasons stated, it is hereby ORDERED:

1. The Petitioner's appeal is denied.

2. The Planning Board's decision is hereby affirmed.

S. Judgment on this appeal is hereby granted to the Respondent Town of Georgetown,

with costs.

Pursuant to M.R. Civ. P. 79(a), the clerk is hereby directed to incorporate this Order

and Judgment by reference in the docket.

Date: · A.M. Horton Justice, Superior Court