Aydelott v. City of Portland

• Decision Date: 23 March 2010
• Docket Number: Cum-09-478.
• Citation: 990 A.2d 1024,2010 ME 25
• Parties: Alfred L. AYDELOTT et al. v. CITY OF PORTLAND et al.
• Court: Maine Supreme Court

990 A.2d 1024

2010 ME 25

Alfred L. AYDELOTT et al. v. CITY OF PORTLAND et al.

Cum-09-478.

Supreme Judicial Court of Maine.

Submitted on Briefs: February 25, 2010.

Decided: March 23, 2010.

Daniel L. Cummings, Esq., Norman, Hanson & DeTroy, LLC, Portland, ME, for Patricia and Richard Ashton.

Jonathan L. Goldberg, Esq., MittelAsen, LLC, Portland, ME, for Alfred L. Aydelott, Adrienne Giske, Claire Filleittaz, Monique Levesque, and Donna Marston.

Panel: ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

SILVER, J.

¶ 1 Patricia and Richard Ashton appeal from a judgment entered in the Superior Court (Cumberland County, Crowley, J.) vacating a decision of the City of Portland Zoning Board of Appeals (Board) that upheld the issuance of a building permit to the Ashtons. The Ashtons contend that the Board correctly interpreted the provisions of the Portland Code of Ordinances (Code), and correctly applied the requirements of Portland, Me., Code § 14-436(b) (Aug. 18, 1997) to the Ashtons' permit application. We agree, and vacate the judgment of the Superior Court.

I. BACKGROUND

¶ 2 Patricia and Richard Ashton own property located in an "IR-2" zone on Peaks Island, in Portland. The pre-expansion house on that property was a one and a half story, "Cape style" home, that is legally nonconforming to the Portland Code in several respects including yard setbacks and minimum lot size.

¶ 3 The Ashtons applied for a building permit on September 15, 2008, to expand their house to create a "rough second floor shell with stairs." The proposed expansion would increase the floor area by 464.14 square feet, which the City calculated to be forty-one percent of the first floor footprint. The City issued a permit to the Ashtons on September 18, 2008.

¶ 4 Alfred L. Aydelott and other neighboring property owners (collectively Neighbors) appealed the permit grant to the Board, arguing that the Ashtons' permit application did not meet the applicable Code provisions. The relevant Code section states:

Sec. 14-436. Building extensions.

Existing non-residential and residential principal structures which are nonconforming as to any area and/or yard requirements may be enlarged within the existing footprint subject to the following provisions:

(a) For principal structures lawfully nonconforming as to land area per dwelling unit as of July 19, 1988: The floor area of the expansion shall be limited to no more than fifty (50) percent of the first floor footprint. The additional floor area shall be created in the uppermost floor by the use of dormers, turrets or similar structures needed to provide the minimum height required for habitable space while preserving the existing roof configuration to the maximum extent possible.

(b) For residential principal structures conforming as to land area per dwelling unit as of July 19, 1988, but lawfully nonconforming as to any yard setback or nonresidential principal structures that are lawfully nonconforming as to any yard setback: The floor area of the expansion shall be limited to no more than eighty (80) percent of the first floor footprint. The additional floor area shall be created by raising the existing roof configuration the minimum amount required to create an additional story of habitable space, or by the use of dormers, turrets or similar structures.

Building expansions under this section may occur only once during the lifetime of an existing structure.

Portland, Me., Code § 14-436. The Code does not contain a "land area per dwelling unit" standard applicable to a single-family residence lot within the IR-2 zone.

¶ 5 The Board conducted a hearing on November 13, 2008, and voted unanimously to deny the Neighbors' appeal, upholding the issuance of the permit. In evaluating the permit application, the Board applied the requirements of section 14-436(b) for "structures conforming as to land area per dwelling unit," as opposed to section 14-436(a) for structures not conforming to that standard. The Board found that there was no applicable land-area-per-dwelling-unit standard because "minimum land area per dwelling unit is a term of art with a separate meaning from minimum lot size; omission of minimum land per dwelling unit in island zone was intentional." Based on this holding, the Board concluded that section 14-436(b) was the relevant provision.

¶ 6 Applying section 14-436(b), the Board found that the Ashtons' permit application met the requirements of the Code, and denied the Neighbors' appeal. The Ashtons' proposed expansion involved raising the roof configuration, as allowed in section 14-436(b), and the Board agreed with the City's calculation that the expansion would be only forty-one percent of the square footage of the first floor footprint, well within the section's maximum of eighty percent.

¶ 7 The Neighbors appealed the Board decision to the Superior Court pursuant to M.R. Civ. P. 80B, arguing that in the context of a single-family residence lot, the requirements of minimum lot size and land area per dwelling unit must be the same, and therefore that because the Ashtons' property is nonconforming as to minimum lot size, it must also be nonconforming as to land area per dwelling unit. The Superior Court agreed and held that the Board had incorrectly applied section 14-436(b), and remanded to the Board for a determination of whether the Ashtons' application met the requirements of section 14-436(a).

¶ 8 On remand, the Board found that the Ashtons' permit application did not meet the requirements of section 14-436(a) because the additional floor area was not created by the use of dormers and turrets and because the additional space exceeded the minimum height required for dormers and turrets. The parties do not appeal this decision. The Superior Court then entered final judgment vacating the Board decision of November 13, 2008.

II. DISCUSSION

A. Standard of Review

¶ 9 In the context of an appeal under Rule 80B, we review the agency's decision directly. Logan v. City of Biddeford, 2006 ME 102, ¶ 8, 905 A.2d 293, 295. Here, we review the decision of the Board as opposed to that of the building authority because although the Board and the Code describe the Board's role as an "appeal," the Board heard evidence and conducted a de novo review, and the Code did not explicitly limit that capacity, and therefore the Board acted as fact-finder and decision-maker. See Stewart v. Town of Sedgwick, 2000 ME 157, ¶¶ 4, 8 n. 4, 757 A.2d 773, 775-76 (stating that "if the Board of Appeals acted as a tribunal of original jurisdiction, that is, as factfinder and decision maker, we review its decision directly" and that "a Board of Appeals will ordinarily act in a purely appellate fashion only when the applicant or petitioner has had an opportunity for hearing before another tribunal").

¶ 10 The decision of the Board is reviewed "for error of law, abuse of discretion or findings not supported by substantial evidence in the record." Yates v. Town of Southwest Harbor, 2001 ME 2, ¶ 10, 763 A.2d 1168, 1171 (quotation marks omitted). The party seeking to overturn the decision bears the burden of persuasion. Sawyer Envtl. Recovery Facilities, Inc. v. Town of Hampden, 2000 ME 179, ¶ 13, 760 A.2d 257, 260. "The interpretation of a local ordinance is a question of law, and we review that determination de novo." Logan, 2006 ME 102, ¶ 8, 905 A.2d at 295 (quotation marks omitted).

B. Interpretation of the Code

¶ 11 The issue raised here is which provision of section 14-436 applies to the Ashtons' permit application: that for structures "conforming" as to land area per dwelling unit, or the provision for non-conforming structures. The Ashtons argue that the Code intentionally omits a land-area-per-dwelling-unit standard in the IR-2 zone, and that consequently the Court should not read in a particular standard, and should find them "conforming" as to that requirement. We agree.

¶ 12 "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." LaPointe v. City of Saco, 419 A.2d 1013, 1015 (Me. 1980); see also Blouin v. City of 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.") (citation omitted). Here, looking at the entire Code, we conclude that there is no land-area-per-dwelling-unit requirement imposed on single-family detached dwellings in the IR-2 zone. The Code includes an explicit land-area-per-dwelling-unit standard for each of the non-island residential zones, all located in the "dimensional requirements" provisions. In the IR-2 zone, however, although the layout of the provisions is the same, there is no land-area-per-dwelling-unit standard that applies to all of the uses within the zone. This contrast suggests an intentional distinction. See DaimlerChrysler Corp. v. Me. Revenue Servs., 2007 ME 62, ¶ 17, 922 A.2d 465, 470-71 (discussing the Maine Lemon Law and finding that "clearly, had the Legislature wanted a provision it could have easily done so, as...