Zahares v. Town of Old Orchard Beach

• Court: Superior Court of Maine
• Decided: December 1, 2009
• Docket: YORap-08-026
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-08,026 .',_," ~ID ~ ~ I '~" ~I { .' L.J .-

TODD ZAHARES and DENISE ZAHARES,

Plaintiffs

v. ORDER

TOWN OF OLD ORCHARD BEACH, et al.,

Defendants

The Zahares appeal from the Town of Old Orchard Beach's Planning Board's

decision to deny their application for 'a revised or new conditional use permit.

Following hearing, the appeal is Denied.

BACKGROUND Todd and Denise Zahares own property in the Cascade Hilands Addition

Subdivision in the Town of Old Orchard Beach. (Pl.'s Compl.

subdivision lies in an R-1 zoning district, defined as a "district in which the principal

use of the land is for single-family residences in detached dwellings and customary

accessory .. , uses that contribute to a wholesome residential neighborhood

environment." Old Orchard Beach, Me., Code § 78-486 (Sept. 18, 2001); (R. at 2, 11, 134.)

The ordinance defines "single-family residences" as "detached residence[s] designed

for or occupied by one family only." Old Orchard Beach, Me., Code § 78-1 (Nov. 5,

2003); (R. at 111.) Accessory dwelling units are allowed as conditional uses in the R-1

district, and are defined as "a room or suite of rooms designed and equipped exclusively for use as living quarters for only one family" that "is contained entirely

within the confines of a' building which otherwise retains the design and appearance of

a detached, single-family dwelling." Old Orchard Beach, Me., Code §§ 78-1, 78-488

(Nov. 5, 2003); (R. at 110-11, 134.)

In 1996 the Zahares obtained a conditional use permit allowing them to construct

an accessory dwelling unit in their home to accommodate Todd Zahares' elderly

mother. (R. at 1; Zahares' Br. at 1.) The Planning Board issued its approval on April 18,

1996, and placed the following condition on the permit:

[T]he apartment remains strictly for use as a mother in law/relative apartment not as a rental unit. The conditions of this permit restriction shall remain in effect ad infinitum, unless otherwise permitted by the Planning Board or the Zoning Ordinance.

(R. at 1.) The Zahares did not appeal from the decision, but chose instead to accept the

condition and construct the apartment above their garage. (Zahares' Br. at 2-3.)

For twelve years between 1996 and 2008, a succession of the Zahares' family

members occupied the apartment. (Zahares' Appeal

longer had relatives interested in r:enting the unit above their garage. ([d.) At the

suggestion of their employer they chose to rent the apartment to a non-relative in

violation of the permit restriction ([d. at

May 2, 2008 the Town Code Enforcement Officer (CEO) issued a violation notice and

discontinuance order. (R. at 8.)

The notice stated that the Zahares had violated the terms of their conditional use

permit by renting the unit to non-family members, and had violated the Town's

Business License Ordinance by renting a year-round rental to non-family members

without the required business license. See Old Orchard Beach, Me., Code § 78-1266

(Sept. 18, 2001) (violation of condition is violation of ordinance); Code §§ 18-26, 18-28

2 (Oct. 16, 2007) (requiring business license to operate a year-round rental and

establishing penalties for violations). The CEO ordered the Zahares to cease renting the

apartment to non-family members until they obtained a revised conditional use permit

and obtained the necessary business license. (R. at 8.)

On May 13,2008, the Zahares received a letter from their neighbor, Alice Leveris,

requesting that they cease renting the apartment to non-family members. (R. at 9.) The

letter claimed that the Zahares' actions had violated certain restrictive deed covenants

limiting their property to one, single-family. dwelling, for residential and seasonal rental

use only. (Id.) Leveris indicated that she would bring an action to enforce the covenants

in the event the Zahares succeeding in obtaining a new conditional use permit without

the family-member condition. (Id.)

On May 15, 2008 the Zahares filed a conditional use application with the

Planning Board, requesting that the Board remove the condition restricting occupancy

of the apartment to family members so that the Zahares could rent the unit to non­

relatives. The application came before the Planning Board at a public workshop on June

5, 2008. (R. at 20.) In July 2008 the Planning Board conducted a site-walk around the

Zahares' property and held a public hearing on their application. (R. at 21-22, 30-43.)

On July 10, 2008 the Planning Board voted 4-1 to deny the application, and on July 24,

2008 the Board adopted its official findings of fact. (R. at 150-52.)

The Planning Board found that the 1996 decision to grant the Zahares' initial

conditional use permit was final because it was never appealed, and could not be

reopened or reexamined in 2008. (R. Oat 150.) As a result the Planning Board determined

that it had to consider the Zahares' current application to remove the 1996 condition in

light of the Town's 2008 zoning ordinance governing conditional uses. (See R. at 151.)

The Board found that the Zahares' only purpose for seeking to remove the condition

3 was that they no longer had relatives interested in renting their apartment. (R. at 150.)

The Board found this reason insufficient to justify "removing the condition which the

[Zahares'] accepted when they received their conditional use approval ... in 1996." (R.

at 151.)

Additionally, the Planning Board found that the Zahares' accessory unit did not

meet the current zoning requirements for an accessory dwelling unit and would not

receive approval if applied for in 2008. (R. at 151.) The Board found as fact that the

Zahares' accessory apartment is not accessible through the Zahares' main residence as

required by §§ 78-1272(1) and (4) of the zoning ordinance, but is instead reached

through a separate breezeway. Old Orchard Beach, Me., Code §§ 78-1272(1), (2) (Sept.

18, 2001); (R. at 149, 151.) The Board also found that the requirements of §§ 78-1272(1)

and (4) exist to further § 78-1272's stated purpose of "protecting the single-family

character of residential neighborhoods." Old Orchard Beach, Me., Code § 78-1272; (R. at

149, 151.) The Board determined that the 1996 permit condition furthered the same

purpose in this case, so that removal of the condition "would be contrary to the goals

and purposes of [§] 78-1272." (R. at 151.)

The Zahares filed this appeal pursuant to Rule 80B on August 6, 2008, naming

the Town of Old Orchard Beach as' appellee and Alice Levens as party-in-interest. On

August 18, 2008 Leveris filed a counterclafm to enforce the deed covenants against the

Zahares. A flurry of miscellaneous motions followed. Action on all outstanding motions

and on Leveris' counterclaim has been stayed pending the resolution of this 80B appeal.

DISCUSSION

The Zahares first attack the validity of the 1996 Planning Board's decision. They

reason that if the condition was an invalid exercise of the Board's power in 1996, it

should have no legal effect today. However, this argument must fail, as any attempt to

4 revisit the propriety of the 1996 decision twelve years after-the-fact is barred by both the

zoning law's appeal procedures and the six-year statute of limitations on civil actions.

"[S]trict compliance with the appeal procedure of an ordinance is necessary" so

that parties can efficiently rely on the finality of municipal decisions. Juliano v. Town of

Poland, 1999 ME 42,

1998 ME 184,

of Appeals, 616 A.2d 793, 796 (Conn. 1992) (failure to challenge conditions by appeal at

time of issue precluded attempt to do so three years later). Even the illegality of a

decision to grant a permit will not toll the appeal period. Wright, 1998 ME 184,

A.2d at 165; see McBreairty v. Town of Greel1Ville, 2000 Me. Super LEXIS 135, * 7 (June 14,

2000) (planning board's unappealed decision became final when appeal period ran, and

applicant could not later challenge planning board's power to impose a certain

condition). Old Orchard Beach's zoning ordinan.ce states that decisions on conditional

use permits may be appealed pursuant to Rule 80B, which in turn sets an appeal period

of thirty days. Old Orchard Beach, Me., Code § 78-1239 (Sept. 18, 2001); M.R. Civ. P.

80B(b). The Planning Board granted the Zaharas' conditional use application and

imposed the condition on April 18, 1996, and the Zaharas did not question the

condition's legality until August 6,2008. Their challenge comes twelve years too late.

The Zahares' attack on the 1996 decision is likewise barred by the six-year statute

of limitations. Municipal zoning decisions are subject to a six-year statute of limitations

that begins to run when a cause of action accrues. Bog Lake Co. v. Town of Northfield, 2008

ME 37,

illegality or harm in the condition limiting occupancy of the Zahares' accessory unit to

family members was readily apparent in 1996 when it was imposed. The Zahares could

have foreseen that one day they would not have relatives interested in or capable of

5 renting the unit. The Zahares nevertheless accepted the condition without complaint for

twelve years. Now that the Zahares have "run out of relatives interested in living in the

second floor accessory dwelling as tenants," they would like to challenge the validity of

the condition. (Zahares Appeal err 9.) The statute of limitations has run, barring their

challenge.

Since the Zahares cannot challenge the validity of the of the Planning Board's

1996 decision, the only question before the Court is whether the Planning Board

correctly denied the Zahares' application in 2008. When the Court reviews municipal

action pursuant to Rule 80B, it examines the record before the municipal body "to

determine if it abused its discretion, committed an error of law, or made findings not

supported by substantial evidence." Mills v. Town of Eliot, 2008 ME 134, err 5, 955 A.2d

258, 261. This Court may not substitute its own "judgment for that of the Board." York

v. Town of Ogunquit, 2001 ME 53, err 6, 769 A.2d 172, 175..The Zahares' bear the burden of

showing that the evidence on the record compels a conclusion different from that

reached by the Planning Board. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me.

1995). "The Board's decision is not wrong because the record is inconsistent or a

different conclusion could be drawn from it." Id.

The Zahares argue that Planning Board's decision to deny their 2008 application

was arbitrary or was a misapplication of the law. Alternatively, the Zahares' claim that

they have a right to have the 1996 condition removed due to changed circumstances,

and that its continued maintenance constitutes an unreasonable direct restraint on

alienation.

The Town of Old Orchard Beach's zoning ordinance specifies the procedural and

substantive requirements necessary to obtain a conditional use permit. Old Orchard

Beach, Me., Code §§ 78-1238 to 78-1240,78-1266, 78-i272 (Sept. 18, 2001). A permit

6 application is filed with the Planning Board, which issues a decision after a public

hearing and site walk. § 78-1238. If the decision is not appealed to the superior court

within thirty days, it becomes final. § 78-1239; M.R. Civ. P. 80B(b); Juliano, 1999 ME 42,

err 7, 725 A.2d at 548.

In this case the Zahares filed an applicati(;m for a conditional use permit in 2008,

but rather than request a new permit they framed the application as a request to have

the condition placed on their 1996 permit removed. (R. at 11-19.) In essence, the

Zahares' 2008 application is an attempt to reopen or reconsider their 1996 application

long after the time for appeal has passed. There is no specified procedure addressing

this sort of application because it is foreclosed by the finality of the 1996 decision.

Absent extraordinary circumstances, the Planning Board's 1996 decision became final

when it was not appealed. Juliano, 1999 ME 42, err 7,725 A.2d at 548; see Upjohn, 616 A.2d

at 797 (recognizing potential for exceptional circumstances justifying removal of

unchallenged, unreasonable condition).

The Zahares claim that their 1996 permit gives them a special right to petition for

the condition's removal via the following language:

The conditions of this permit restriction shall remain in effect ad infinitum, unless otherwise permitted by the Planning Board or the Zoning Ordinance.

(R. at 1.) They read "unless otherwise permitted" as placing them outside the normal

procedural boundaries, giving them something akin to a contractual right to

reconsideration. This interpretation stretches the"language too far. The quoted sentence

merely states the obvious, i.e. that the Town is not bound by the permit restriction. At

most, it is an invitation to apply for a new condmonal use permit at a future date. The

Planning Board correctly treated the Zahares' 2008 application as an application for a

new conditional use permit.

7 The Planning Board found that the Zahares' application did not meet the current

requirements for a conditional use p"ermit. (R. at 151,

observations made during the site walk, a majority of the Board's members found that

the Zahares' accessory unit is not "accessed via the living area of the primary structure"

and is· not "part of the main residence" as required by §§ 78-1272(1) and (4) of the

zoning ordinance. (R. at 151.) The requirements set forth in § 78-1272 are mandatory,

and the Zahares' failure to meet them constituted an adequate basis for the Planning

Board to deny their application.

The Planning Board also found that the "1996 condition of approval limiting

occupancy of the accessory unit to family members" furthered § 78-1272's goal of

"protecting the single-family character" of the Zahares' neighborhood. Assuming that it

had the power to do so, the Board refused to remove the condition in part because

doing so would be contrary to the goals of § 78-1272.

When confronted with an application for a conditional use permit, the Planning

Board is empowered to impose "such conditions [on a permit] as it finds necessary to

ensure compliance" with all applicable. requirements of the zoning ordinance. Old

Orchard Beach, Me., Code § 78-1266 (Sept. 18, 2001). Section 78-1272 requires that

accessory dwelling units not impair "the single-family character of residential

neighborhoods." Old Orchard Beach, Me., Code § 78-1272 (Sept. 18, 2001). The

ordinance also limits uses in an R-1 zoning district to single-family dwellings and

customarily incidental accessory uses. Old Orchard Beach, Me., Code § 78-487 (Sept. 18,

2001). A single-family dwelling is defined as a residence "occupied by one family only."

Old Orchard Beach, Me., Code § 78-1 (Nov. 5, 2003).

The record shows that the Zahares' home is located in an R-1 zoning district, in a

subdivision made up of detached single-family homes. The Planning Board could

"8 reasonably find that the condition limiting occupancy of the Zahares' accessory unit to

family"members was necessary to maintain the single-family character of the Zahares'

neighborhood. This finding is consistent with the applicable zoning law requirements

and was not arbitrary, capricious, or otherwise an abuse of discretion.

Finding no error in the Planning Board's handling of the Zahares' application,

the Court must address the Zahares' claim that the continued restriction on the

occupancy of their accessory unit is an unreasonable restraint contrary to public policy.

For support the Zahares cite to Gangemi v~ Town of Fairfield, 763 A.2d 1011 (Conn. 2001).

In Gangemi, the homeowners' property h,ad been sub,ject to zoning restrictions that '.; prohibited year-round use and limited occupancy to four or fewer unrelated

individuals. Id. at 1014. In 1986 the homeowners applied for a variance allowing them

to upgrade the dwelling on the property and use it year-round. Id. at 1013. The Town

granted the variance subject to the conditions that the property not be rented and be

used for family purposes only. Id. The homeowners did not challenge these conditions.

Id.

By 1996 the zoning restrictions on the homeowners' property had changed to

allow year-round use as a matter of right, rendering the primary benefit conferred by

the variance moot. Id. at 1014, 1016. While the homeowners remained bound they the

conditions of their variance, their neighbors were free to use their property year-round

and rent to any group of four or fewer unrelated individuals. Id. at 1016. This gave

"those other property owners a grossly unfair advantage over the [homeowners] in the

marketplace." Id. The zoning change also had the effect of transforming a prohibition on

seasonal rentals only into "a total loss of the right to rent." [d. Given these changed

circumstances, the court found that the variance conditions no longer served a "legal

9 and useful purpose" and their continuation violated the public policy against "the free

and unrestricted alienability of property." [d. at 1015, 1018.

The Zahares analogize themsel ves to the homeowners in Gangemi and claim that

their inability to find relatives interested in renting their accessory unit constitutes a

change in circumstance making the continuation of their permit restriction void against

public policy. This argument must fail. First, in Gangemi the parties could not

reasonably foresee in 1986 that the applicable zoning law would change to allow the

sought-after use. In this case, when the Zahares applied for and obtained their

conditional use permit in 1996 it was entirely foreseeable that they would someday "run

out of relatives" interested in living above their garage.

Second, the fact that the Zah~~es cannot find an eligible tenant for their accessory

unit does not place them at an economic disadvantage vis-a-vis their neighbors. On the

contrary, it returns them to the status quo of owning a single-family home that may be

sold or rented as a single living unit. Nothing prevents the Zahares from altering their

accessory unit to conform to the current standards and applying for a new conditional

use permit allowing them to rent the unit commercially to non-family members.

Finally, given that the Zahares continue to enjoy the same right to rent their

entire home as is held by their neighbors, the permit condition limiting occupancy of

the accessory unit to family members is not an unreasonable restraint on the use and

alienability of the Zahares' property. Th~ condition continues to serve the legal and

useful purpose of protecting the single-family character of the Zahares' neighborhood.

Contrary to their present position this appears to be a case where the Zahares are

"asking for a change in a bargain they freely made, but now regret after receiving its

benefits." (Zahares' Br. at 15.)

10 CONCLUSION

For the reasons stated above, the decision of the Old Orchard Beach Planning

Board is Affirmed.

Dated:

f ~. AT r Brennan """---- Justic , Superior Court

11 STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-08-026 [1 AfJ·· /.; _~~c/ c) C, / TODD ZAHARES and DENISE ZAHARES,

Counterclaim-defendants Todd and Denise Zahares move for summary

judgment against counterclaim-plaintiff Alice Leveris. Ms. Leveris requests judgment in

her own favor.

BACKGROUND Todd and Denise Zahares own property in the Cascade Hilands Addition

Subdivision in the Town of Old Orchard Beach. Alice Leveris owns property adjacent to

the Zahares' in that same subdivision. The parties' deeds are subject to covenants and

deed restrictions that state in pertinent part:

3. These lots shall be known and described as residential lots and shall not be used except for residential purposes, except seasonal rentals. No structures shall be erected ... or permitted to remain on any residential building lot other than one detached, single-family dwelling, not to exceed two and one­ half ... stories in height and a private garage for not more than two ... cars

4. No dwelling shall be permitted on any lot at a cost of less than $5,000.00, based upon cost levels prevailing on the date these covenants are recorded .... The ground floor area of the main structure, exclusive of one-story open porches and garages, shall not be less than 625 square feet for a one-story dwelling, no less than 550 square feet for a dwelling of more than one-story.

In 1996 the Zahares obtained a conditional use permit allowing them to construct

an accessory dwelling unit in their home to accommodate Todd Zahares' mother. The

permit contained a condition limiting occupancy of the unit to members of the Zahares'

family. The unit was built above the Zahares' attached garage and Todd's mother lived

there until her death. Other family members lived there until 2008, when the Zahares

found that they had no more relatives interested in occupying the unit. At that time the

Zahares decided to rent the unit to a non-family member.

Neighbors became aware that a non-family member was residing in the dwelling

unit over the Zahares' garage and notified the Town. The Town's Code Enforcement

Officer notified the Zahares that they were in violation of their conditional use permit

and had to cease renting the unit to non-family members until the Town Planning

Board removed the condition. On May 15, 2008, the Zahares applied to the Planning

Board to have the condition removed. The Planning Board denied their application on

July 24, 2008.

The Zahares filed an 80B appeal of the Planning Board's decision on August 6,

2008, naming both the Town of Old Orchard Beach and Ms. Leveris as respondents. Ms.

Leveris filed her counterclaim on August 18, 2008. At the time the counterclaim was

filed, the Zahares admitted that they had been "renting an apartment over their garage

to a non-relative on a permanent, non-seasonal basis." This court denied the Zahares'

80B appeal on December 1, 2009. They now move for summary judgment against Ms.

Leveris in her counterclaim.

2 DISCUSSION

The material facts in this case are not in dispute, so summary judgment is

appropriate if either party is entitled to judgment as a matter of law. M.R. Civ. P. 56(c).

This is a contest over the interpretation and application of the restrictive covenants in

the parties' deeds. Ms. Leveris argues that the Zahares have transformed their single­

family home into a multi-family dwelling by renting the apartment over their garage to

a non-family member on a permanent basis. She claims that this violates both the

covenant against erecting a building other than a detached single-family dwelling, and

the covenant against non-residential uses other than renting on a seasonal basis. Ms.

Leveris requests that the Zahares be enjoined from renting the apartment, be declared in

violation of the covenants, and be found in breach of the deed contract.

The Zahares argue that restrictions on the use and alienability of their land

should be construed narrowly, and they focus primarily on the rental provision of the

covenants. They claim that the covenants do not prohibit non-seasonal rentals, but that

if the covenants did it would amount to an unreasonable restraint on the use or

alienation of their property.

Construction of a restrictive deed covenant is a question of law. Midcoast

Colzousing Land Acquisition, LLC v. Riverhouse Trust, 2008 ME 70,

24 (quoting River Dale Ass'n v. Bloss, 2006 ME 86,

given their "ordinary meaning, and if there is no ambiguity the plain meaning

controls." rd. (quoting River Dale Ass'n, 2006 ME 86,

language is ambiguous, it will be construed "in favor of the free use of property and

against the limitation." Midcoast Cohousing, 2008 ME 70,

(citing Naiman v. Bilodeau, 225 A.2d 758,759 (Me. 1967)).

3 The Zahares' deed prohibits the creation of any structure other than a "detached,

single family dwelling" on their lot, and prohibits all uses except "seasonal rentals" and

residential uses. The first question is whether the term "single family dwelling"

connotes a use restriction or is merely a building restriction. See ALC Development Corp.

v. Walker, 2002 MW 11, crrcrr 3, 12, 787 A.2d 770, 772, 774-75. The Zahares argue that their

deed's prohibition on the creation of structures other than a single-family dwelling is

purely an architectural restriction that does not affect how they can use their property.

By this argument, they can create as many single-family dwelling units as they like in

their home so long as the structure looks like a single-family home from the exterior.

The phrase "single family dwelling" as it is used in a deed covenant is not new to

Maine. A covenant similar to the one in the Zahares' deed was implicated in Boehner v.

Briggs, 528 A.2d 451 (Me. 1987). There, the landowner's deed prohibited him from

erecting "more than a one family dwelling on the" premises. [d. at 452. When the

landowner purchased the property, it was occupied by a small, single-story house. [d.

The landowner constructed a freestanding, two-story structure next to the existing

house. [d. The new structure had separate walls, windows, doors, a roof, a workshop, a

living area, two bedrooms, and was connected the original house by an outdoor

wooden deck. [d. The landowner planned to install a bathroom in the new structure, but

was interrupted when the original grantor brought suit for breach of the deed

covenants. [d.

On appeal, the original grantor argued that the covenant against the erection of

"more than a one family dwelling" precluded the construction of multiple structures,

i.e. was an architectural restriction. [d. at 453. The Court rejected this interpretation of

the covenant, finding that the deed did "not restrict, limit, or control in any way the

architectural design of 'a one family dwelling. II' [d. The new structure did not have the

4 kitchen facilities or full bathroom necessary to "support a separate family," and there

was no evidence that the landowner intended for the structure to house anyone outside

of his immediate family. Id. The new construction therefore did not violate the

prohibition against more than one single-family dwelling. Id. In so holding, the Court

imp,licitly recognized that the phrase "one family dwelling" carried an inherent use

restriction.

The phrase appeared before the Law Court again in the 1999 case of Bennett v.

Tracey, 1999 ME 165, 740 A.2d 571. In Bennett, the landowner's deed contained the

following covenant:

The premises shall be used only for the purpose of erecting one single family residence of at least 1400 square feet of living area and outbuildings appropriate to the residence.... All buildings shall be built utilizing colonial architectural design and shall be approved by Grantors.

Id. err 2, 740 A.2d at 572.

Before purchasing the property, the landowner received the grantor's permission

to build a commercial woodworking shop attached to the residence. Id. 'IT 3, 740 A.2d at

572. After the closing, neighboring residents brought an action to prevent construction

of the workshop on the grounds that it was a commercial use prohibited by the deed

covenant. Id. 'ITerr 4-5, 740 A.2d at 572-73. The landowner argued "that the restriction

limiting the use of the property 'only for the purpose of erecting one single family

residence'" was ambiguous. Id. 'IT 9, 740 A.2d at 573. When the deed was read as a

whole, the landowner claimed that the "restriction only govern[ed] the structural basis

of construction on the property rather than the later use of that property." Id.

The Law Court rejected this line of reasoning, stating that it "would mean that a

factory could be located on [the property] so long as the building was 1400 square feet

and in a colonial architectural style." Id. 'IT 10, 740 A.2d at 573. Interpreting the covenant

5 as an architectural restriction would "remove[] all meaning from the phrase 'single

family residence.' If the parties had intended a structural restriction, the phrase 'single

family residence' would have no purpose other than to frustrate that intent." Id. (citing

Leavitt v. Davis, 153 Me. 279, 281-82, 136 A.2d 535, 537 (1957)). The covenant

unambiguously precluded the landowner from building and operating a commercial

woodworking shop. Id. As in Boehner, the Court recognized that the term "single family

residence" implies a restriction on use rather than architecture.

In 2002 the Court provided additional nuance to its interpretation of the term in

ALC Development Corp. v. Walker, 2002 ME 11, 787 A.2d 770. ALC Development was the

developer of a fifty-seven lot subdivision. Id. err 1, 787 A.2d at 772. The following

restrictions were imposed on all lots:

1. Residential Use. No lot shall be improved or used except for single family residential purposes, with no more than one principal residence

2. Structures. No other buildings or structures of any nature or description shall be erected or maintained ... [except] a barn, storage shed, cabana, pergola, fence or in-ground swimming pool .... Any such building or structure shall be consistent in design and materials with the single family dwelling constructed on the lot.

Id. err 3, 787 A.2d at 772-73.

ALC sold all but one of the lots, which it kept for itself. Id. err 3, 787 A.2d at 772.

ALC later acquired a parcel of land adjacent to its retained lot, on which parcel it

intended to build another subdivision. Id. err 7, 787 A.2d at 773. It also sought to build a

roadway across its retained lot to serve the new subdivision, and it filed an action for

judgment declaring that the roadway would not violate the restrictive covenants. Id.

err 8, 787 A.2d at 773-74. Several landowners answered the complaint and opposed

ALC's plan. Id. The trial court determined that the proposed road would violate the

plain language of the covenants. ld. err 11, 787 A.2d at 774.

6 On appeal, ALC cited Boehner v. Briggs to argue that the road should be

permitted under the restrictive use covenant because it would only be serving new

"single-family residences and not multi-family dwellings or commercial structures."

Id. 112, 787 A.2d at 774. The Court rejected ALC's reasoning, noting that the restriction

in Boehner was "a building restriction, not a use restriction," that governed "the type of

dwelling" the landowner could erect. Id. 112, 787 A.2d at 774-75. The restriction in

ALC's deed, by contrast, governed "the use of the lot in general." Id. 112, 787 A.2d at

775. Using the lot "to access another subdivision" would be "inconsistent with the

single-family residential use restriction" ALC had imposed upon itself. Id.

The key point of relevance in ALC Development Corp. was the Court's

characterization of the restriction in Boehner as a "building restriction" rather than a

"use restriction." Id. 112, 787 A.2d at 774-775. In Boehner, the landowner could only

build a single, one-family dwelling. Boehner, 528 A.2d at 452. While this may have been

a "building restriction," however, it was not an architectural one. The landowner was

permitted to build any sort of dwelling he liked, so long as its facilities could only

support one family and only his immediate family was living there. Id. The lesson

appears to be that, while building restrictions do not directly regulate the use of

property as a whole, they do regulate what structures may be placed on property.

Those structures are in turn defined by how they are used.

The recent case of Silsby v. Belch supports this interpretation of the law. 2008 ME

104, 952 A.2d 218. In Silsby, the landowner's property was subject to the following

covenant:

The Grantees ... will not construct ... 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.

7 Id. errerr 2, 8, 952 A.2d at 220-21. The landowner applied for a permit to convert an

existing structure on the property into a three-unit apartment building. Id. err 3, 952 A.2d

at 220. Neighboring landowners challenged the action. Id.

On appeal, the neighbors argued that the covenant's use of the word

"homestead" was a term of art indicating that only an "owner-occupied, single-family

dwelling" could be built on the property. Id. err 8, 952 A.2d at 221-22. The Court was not

persuaded, finding that the covenant only used the word "homestead" to "describe the

type and character of outbuildings that may be constructed upon the property." Id. err 9,

952 A.2d at 222. While the deed expreSSly excluded commercial use,! flit contain[ed] no

restriction on 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." Id. err 10, 952 A.2d at 222. Further on, the

Court reiterated: "The fact remains that the original grantor could have limited the use

of this property to an owner-occupied, single-family residence if she wished by placing

such commonly used language in the covenant." Id. err 14, 952 A.2d at 223.

The Court's discussion in Silsby makes it clear that the term "single-family

residence" or its equivalent designates the character of residential use allowed on a

property. A structure containing multiple dwelling units capable of accommodating

multiple families would have a residential character similar to that of a single-family

dwelling, but it would not be a single-family dwelling. See id. errerr 13-14, 952 A.2d at 222­

23 (character of a multi-unit dwelling or a single-family dwelling is fundamentally

different from a commercial enterprise like a department store or service station).

Language restricting development to a "single-family dwelling" or its equivalent is

The Court also held that renting residential apartments did not constitute a commercial use, but was instead a type of residential use. Silsby, 2008 ME 104, 9I9I 8 n.6, 13-14, 952 A.2d at 222 n.6, 222-23.

8 "commonly used," and in Maine is understood to carry a definitional restriction on use.

Indeed, Boehner demonstrates that use of a structure is the only objective way to define

it as a "single-family" residence or dwelling. See Boehner 528 A.2d at 453 (restriction to a

"one-family dwelling" did not control the architecture of that dwelling, and the

covenant was not violated where there was no evidence that more than one family

would live in the dwelling).

Turning to the case at hand, the Zahares' deed states:

3. These lots shall be known and described as residential lots and shall not be used except for residential purposes, except seasonal rentals. No structures shall be erected ... or permitted to remain on any residential building lot other than one detached, single-family dwelling, not to exceed two and one­ half ... stories in height and a private garage for not more than two ... cars

4. No dwelling shall be permitted on any lot at a cost of less than $5,000.00, based upon cost levels prevailing on the date these covenants are recorded .... The ground floor area of the main structure, exc1usive of one-story open porches and garages, shall not be less than 625 square feet for a one-story dwelling, no less than 550 square feet for a dwelling of more than one-story.

The Zahares would have this court interpret the first sentence of paragraph three as the

only use restriction present in the cited language. Everything after, including the

prohibition against structures other than a " detached, single-family dwelling," would

be a building or architectural restriction. The court cannot accept this interpretation.

First, the Zahares would ignore the plain meaning of the words "one detached,

single family dwelling." Regardless of whether it is characterized as a use or a building

restriction, "one detached, single-family dwelling" connotes a single dwelling unit,

standing free of other dwelling units, occupied by a single social "family" unit. The

structure's design is irrelevant to its character as single-family residence. When the

structure on the Zahares property contains two independent dwelling units, each

9 occupied by a separate "family," their structure by definition ceases to be "one

detached, single-family dwelling."

The second problem with the Zahares interpretation is that it would render the

phrase "one detached, single-family dwelling" into surplus language when read

together with the rest of the covenants. The court has not been directed to any objective

"single-family" form of architecture, leaving the phrase entirely subjective as an

architectural standard and inherently ambiguous. Construing this ambiguity against

restriction would render the term meaningless. See Midcoast Cohousing, 2008 ME 70, <[ 10

n.3, 946 A.2d at 424 n.3. The better approach, as applied in Boehner, is to read the phrase

"detached, single-family dwelling" as an objective restriction on use. The structure in

Boehner was hardly traditional, but it was in fact a single-family home. Boehner, 528 A.2d

at 452-53.

Furthermore, the covenants in the Zahares' deed go on to specify actual,

objective architectural building criteria. For example, structures cannot be more than

two and one-half stories in height, cannot have a garage capable of housing more than

two cars, must meet a minimum square footage on the ground floor, and must cost

more than $5,000, adjusted for inflation since the covenant was originally written.

Under the Zahares interpretation of the covenant, a landowner could erect a five-unit

apartment building in the subdivision, so long as it met the minimum objective building

criteria and "looked like" a single-family home from the outside. See Bennett, 1999 ME

165, <[ 10, 740 A.2d at 573. It would be unreasonable to ascribe such tenuous, subjective

meaning to such a common and well-understood phrase.

The Zahares have violated their deed covenant limiting structures to "one

detached, single-family dwelling" by renting a second, separate dwelling unit attached

to their home to an admitted non-family individual. The court does not need to reach

10 the questions of whether the covenants allow the Zahares to rent the separate dwelling

unit in their home to family members, what constitutes a "family/' or whether and

under what terms the Zahares may rent their entire dwelling.

The court recognizes that other jurisdictions have interpreted the phrase "single­

family dwelling" or its equivalent differently, but also notes that there is no universal

position and that outcomes are highly dependent on the precise facts before each court.

See Mark S. Dennison, Construction and Application of "Residential Purposes Only" or

Similar Covenant Restriction to Incidental Use of Dwelling for Business, Professional, or Other

Purposes, 1 A.L.R.6th 135 §§ 5-6 (comparing cases finding that the phrase "single-family

dwelling" in a deed covenant does or does not carry an inherent restriction on use).

While foreign jurisdictions can provide instructive guidance, this court is both bound

and persuaded by Maine precedent. The plain language of the Zaharas' deed precludes

them from renting the dwelling unit above their garage to non-family members. The

other issues raised by the parties are moot.

CONCLUSION

The Zahares' motion for summary judgment is denied, and Ms. Levens's request

for judgment in her favor is granted.

Dated: Mardt9' ' 2011

ATTORNEY FOR PLAINTIFF: DAVID A. LOURIE 189 SPURWINK AVENUE CAPE ELIZABETH ME 04107

ATTORNEY FOR DEFENDANT, TOWN OF OLD ORCHARD BEACH: CHRISTOPHER L. VANIOTIS BERNSTEIN SHUR SAWYER & NELSON PO BOX 9729 PORTLAND ME 04104-5029 ATTORNEY FOR PARTY-IN-INTERST, ALICE LEVERIS: WILLIAM D ROBITZEK BERMAN & SIMMONS PO BOX 961 LEWISTON ME 04243-0961