Baker v. Town of Woolwich

• Citation: 517 A.2d 64
• Parties: Philip F. BAKER v. TOWN OF WOOLWICH.
• Decision Date: 07 January 1987
• Court: Maine Supreme Court

Page 64

517 A.2d 64

Philip F. BAKER v. TOWN OF WOOLWICH.

Supreme Judicial Court of Maine.

Argued Sept. 10, 1986.

Reargued in part Jan. 7, 1987. ^*

Decided Jan. 27, 1987.

Orville T. Ranger (orally), Brunswick, for plaintiff.

Eliot Field (orally), Wiscasset, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS ^**, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

McKUSICK, Chief Justice.

On the complaint filed by plaintiff Philip Baker pursuant to M.R.Civ.P. 80B, the Superior Court (Sagadahoc County) affirmed the decision of the Board of Appeals of defendant Town of Woolwich that Baker's businesses of auto body repair and used car rental and sales do not constitute a "business operated from a home" within the meaning of the exception to the Town's residential zoning restrictions. On the Town's counterclaim to enforce the zoning ordinance, the Superior Court, after hearing, permanently enjoined Baker from conducting any of those businesses in the Woolwich residential zone, imposed a fine of $1,000, and awarded attorney's fees to the Town in the amount of $7,268.66. On Baker's appeal to this court we affirm that judgment except for the attorney fees award. We determine ourselves the allowable attorney fees before the Superior Court as well as before this court.

Intending to build a garage on property located in a residential zone, Baker obtained a building permit from the Town of Woolwich in 1974. That permit expressly stated that any business use of the property would require prior approval from the Town. In 1975 Baker completed construction of a one-story garage and without obtaining the required prior approval from the Town commenced doing auto body repairs. At that time Baker did not live in the new building, nor was it habitable. Sometime in 1979, well after his auto body business was in full operation, Baker began constructing living quarters above the garage. He moved into those quarters sometime in 1980.

In 1983, Baker began expanding his business into used car rental and sales. In order to obtain the requisite dealer plate for his new enterprise, Baker applied to the Woolwich Planning Board for a zoning exception on the ground that his businesses qualified as a "business operated from a home." Both the Planning Board and the Board of Appeals to which Baker appealed denied his request. His 80B complaint and the Town's enforcement counterclaim followed in the Superior Court.

1. The "business operated from a home" exception

The primary issue before us is whether the Woolwich Board of Appeals, in deciding that Baker's businesses did not qualify for the exception for a "business operated from a home," "abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record." Driscoll v. Gheewalla, 441 A.2d 1023, 1026 (Me.1982). The controlling zoning ordinance provides for that exception as follows:

Business operated from a home shall be permitted as an exception provided it is not injurious to health or the environment, nor because of smell, noise, smoke, fumes, nor for any other reason, is objectionable or detrimental to the well being of the Town. Provision must be made for parking on the premises to accommodate the average number of vehicles which will be attracted by the business at any time.

Art. 4, § C, Town of Woolwich Planning Ordinance.

The Planning Board found that "it is implicit [in the exception] that the home must exist first and be the predominant use or function of the premises." Finding that Baker's "primary or intended use" of the premises was "commercial or business as opposed to residential" and that Baker's use of the premises has in fact "been at least half, if not predominantly business oriented," the Planning Board refused to grant Baker the exception. We agree as a matter of law with the Planning Board's interpretation of the exception. See Putnam v. Town of Hampden, 495 A.2d 785, 787 (Me.1985). That interpretation is supported by case law. In examining a similar exception, the New Hampshire Supreme Court in Town of Milford v. Bottazzi, 121 N.H. 636, 433 A.2d 1269 (1981), explained that only those home occupations " 'customarily incidental to the use of the premises as a dwelling, and ... subordinate to the residential use of the property' " merit exceptions. Id. 433 A.2d at 1270 (quoting 2 R. Anderson, American Law of Zoning § 13.02 (2d ed.1976)). That court noted that the term "home occupation" is "widely used in zoning ordinances throughout the country," and emphasized that "all [definitions of that term] have as a common purpose the allowance of only those businesses that do not adversely affect or undermine the residential character of the neighborhood." Id. Most important, the court found that "the operation of a public [repair] garage, however, has been held not to be a home occupation." Id., 433 A.2d at 1271 (citing Perez v. Borough of Kennett Square, 18 Pa.Commw. 425, 427, 336 A.2d 437, 438 (1975); Piper v. Moore, 163 Kan. 565, 574, 183 P.2d 965, 972 (1947)).

On Baker's complaint under Rule 80B, the Superior Court correctly affirmed the decision of the Woolwich Board of Appeals that the use of his property in a residential zone did not qualify for the " business operated from a home" exception. The Superior Court correctly held that that exception did not provide Baker any defense to the injunctive relief and civil penalties sought by the Town on its counterclaim.

2. Validity of the 1974 ordinance

Baker makes a further argument for reversing the injunction, fine, and attorney's fees. In constructing this argument Baker first contends that the Town has never enacted a valid comprehensive plan pursuant to 30 M.R.S.A. § 4961 (1978 & Supp. 1986). ¹ Next, he contends that because 30 M.R.S.A. § 4962(1)(A) (1978) ² requires that zoning ordinances be enacted "pursuant to and consistent with a comprehensive plan," the Town's 1974 zoning ordinance must perforce be invalid. ³ Finally, he contends that the Superior Court erred in applying the enforcement statute, 30 M.R.S.A. § 4966 (Supp.1986), ⁴ because that statute governs only the enforcement of properly enacted local zoning ordinances. We reject Baker's argument, because it misapprehends the statutory requirements of a valid comprehensive plan.

Contrary to Baker's assertions, a comprehensive plan need not set forth in detail the parameters of municipal growth. Rather, the "comprehensive plan [is] as much a process as a document" (30 M.R.S.A. § 4961(1)) and may well increase in sophistication as the planning process continues. A comprehensive plan must articulate the municipality's zoning policy relative to such matters as population, housing, and land and water use. Although the Town's comprehensive plan is far from being a model of elaborate detail, we cannot say that the legislature expected anything more from each and every town of the state, however small. On its face the Town's comprehensive plan complies with the directions of section 4961. Because we do not disturb the finding of the Superior Court that the Town's comprehensive plan was sufficient and valid, we must necessarily reject Baker's argument that the enforcement statute was inapplicable to him. We should not be understood, however, to accept Baker's argument as to the consequences of a comprehensive plan that is not sufficient and valid. We have no need to address that aspect of his argument.

3. Amount of the fine

The Superior Court did not abuse its discretion in setting the amount of the fine. Baker's violation of the zoning ordinance was enduring and willful. 30 M.R.S.A. § 4966(3)(E)(1), (3). By Baker's own admission he had no "home" at his business premises until 1979. Well below the maximum fine of $2,500, the $1,000 fine imposed by the Superior Court was reasonable and did not constitute error. 30 M.R.S.A. § 4966(3)(A).

4. Attorney's fees

The Superior Court assessed against Baker the full amount of the attorney fees incurred by the Town of Woolwich in the proceeding before that court. At the time (January 22, 1986) the Superior Court entered its judgment in favor of the Town both the municipal zoning ordinance (art. 10, § G) ⁵ and the applicable state statute, 30 M.R.S.A. § 4966(3)(D) (Supp.1986), see n. 4 above, permitted the allowance of attorney fees to the successful Town, but only to the extent those fees were incurred in a proceeding brought by the Town to enforce its zoning ordinance. The Superior Court committed a plain error by awarding the Town the entire amount of its fees for legal representation both in defending against Baker's 80B action, where the so-called American Rule still applied, and in prosecuting its own enforcement counterclaim, where the ordinance and the statute had carved out an exception to the American Rule. Although Baker failed to make any objection to the fee allowance on that ground, the error was obvious and affected substantial rights. Cf. Dongo v. Banks, 448 A.2d 885, 889 (Me. 1982) (where defendant did not object at trial to court's jury instruction, issue on appeal was "whether the instruction deprived [defendant] of a fair trial and worked an injustice"); M.R. Evid. 103(d) (appellate review of obvious, though unpreserved, error). We cannot permit that part of the Superior Court's judgment to stand.

On rehearing in this court the parties have, through affidavits and supplemental briefs, presented their complete positions, factually and legally, on the issue of attorney fees in both the Superior Court and the Law Court. With that issue in this posture, we will in the interest of judicial economy set the allowable fees in both courts.

We reject Baker's argument that to assess counsel fees in the present case where he had been in violation o the zoning ordinance long before the enactment of the attorney fee provision of either the ordinance or the statute contravened the ex post facto clause of the Maine Constitution, art. I, § 11, and the United...