Driscoll v. Gheewalla

• Citation: 441 A.2d 1023
• Parties: J. George DRISCOLL, et al. v. Russi K. GHEEWALLA, et al. 1
• Decision Date: 03 March 1982
• Court: Supreme Judicial Court of Maine (US)

Page 1023

441 A.2d 1023

J. George DRISCOLL, et al. v. Russi K. GHEEWALLA, et al. ¹

Supreme Judicial Court of Maine.

Argued Jan. 4, 1982.

Decided March 3, 1982.

Verrill & Dana, Andrew M. Horton (orally), Portland, for plaintiff.

Smith & Elliott, P. A., Karen B. Lovell (orally), Roger S. Elliott, Saco, for Gheewalla, et al.

Ronald E. Ayotte, Sr., Caron, Ayotte & Caron, Saco, for City of Saco.

Before McKUSICK, C. J., GODFREY, ROBERTS, VIOLETTE and WATHEN, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice.

The appellants, Russi K. and Edith Gheewalla, took the instant appeal from an order of summary judgment in the Superior Court, York County, vacating a decision by the Zoning Board of Appeals of Saco (Board) granting the appellants a zoning variance. We reverse the summary judgment and order the zoning variance reinstated.

The Gheewallas own an undersized lot on the corner of Spring and Surf, unaccepted streets in the City of Saco, abutting property owned by the appellees, J. George and Nancy Driscoll. Hoping to build a house on this lot for their own personal use, the appellants petitioned the Board for a variance from the setback requirements of the local zoning ordinance. Because of the lot's location on a corner and the need for a sizable on-site sewer system, strict enforcement of these requirements would reduce the buildable portion of the lot to a rectangular area seventeen feet wide by twenty feet long, i.e. less than seven percent of the total lot. On August 19, 1980, the Board, after a public hearing thereon, denied the appellants' first application for a variance which requested that the setbacks from the streets be reduced from twenty-five to ten feet and that the setback from one of the interior property lines, the one on the Vachon side and not on the Driscoll side, be cut from fifteen to ten feet. At a second hearing less than one month later, the Board, on September 11, 1980, approved the appellants' modified plan, which called for a setback from Spring Street of fifteen feet, from Surf Street of twenty-two feet, and from the same interior property line of ten feet.

The Driscolls appealed the Board's decision to the Superior Court pursuant to M.R.Civ.P. 80B. The justice below vacated the Board's grant of the variance on the grounds that the appellants' second hearing was barred by a provision in Saco's zoning ordinance forbidding rehearing of a denied appeal for two years ² and the appellants had failed to meet the statutory requisite of showing that a strict application of the ordinance would result in "undue hardship." Preliminary considerations

Initially, we note that the Superior Court justice, in deciding the motions for summary judgment, did not take or receive any additional evidence, but made his decision entirely from the record developed at the zoning-board-of-appeals level, the proffered affidavits in support of the appellants' motion presenting no facts material to the two issues considered by the court. Where, on appeal from an administrative agency's decision such as, in this case, from the grant of a variance by the zoning board of appeals, the intermediate appellate tribunal such as the Superior Court here receives no other evidence in addition to the evidence presented to the Board, the Law Court will not review the Superior Court's decision as such, but will directly examine the record developed before the Board, the same as the Superior Court did. In such circumstances, the standard of review is the same in the Law Court as it was before the Superior Court, whether the Board abused its discretion, committed an error of law, or made findings not supported by substantial evidence in the record. Mullen v. City of Kansas City, 557 S.W.2d 652 (Mo.App.1977); Beckmeyer v. Beuc, 367 S.W.2d 9, 11 (Mo.App.1963); Appeal of Buckingham Developers, Inc., Pa.Cmwlth., 433 A.2d 931, 933 (1981). See Forer v. Quincy Mutual Fire Insurance Company, Me., 295 A.2d 247 (1972). ³ This standard of review, whether phrased in terms of abuse of discretion, clear error or substantial evidentiary support on the whole record, presents a single formula of uniconcept in appellate procedure. See Bruk v. Town of Georgetown, Me., 436 A.2d 894, 898 (1981).

We further recognize that an appellate court, in reviewing zoning board action, is not free to make findings of fact independent of those explicitly or implicitly found by the municipal zoning authority. It may not substitute its judgment for that of the municipal body, but is limited to determining whether from the evidence of record facts could reasonably have been found by the zoning body to justify its decision. See Golden v. City of Overland Park, Kan., 584 P.2d 130, 135 (1978); Pappas v. City of Manchester Zoning Board, 117 N.H. 622, 376 A.2d 885, 886 (1977). See also Muse v. Zoning Hearing Board, 52 Pa.Cmwlth. 287, 415 A.2d 1255, 1257 (1980).

Thus, in reviewing the Board's approval of a variance in this case, the Superior Court as the initial appellate forum and the Law Court as the ultimate appellate court must affirm the decision of the administrative agency, unless that decision was unlawful, arbitrary, capricious or unreasonable respecting the issues litigated before the municipal body. Lippoth v. Zoning Board of Appeals, City of So. Portland, Me., 311 A.2d 552, 557 (1973). Both issues, (1) the lawfulness of a second application within the ordinance's two-year ban and (2) proof of undue hardship if the variance be denied, were fully contested before the zoning board of appeals.

True, 30 M.R.S.A. § 2411(3)(E) provides in pertinent part that

(a)ll decisions (of Boards of Appeals) shall become a part of the record and shall include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law or discretion presented and the appropriate order, relief or denial thereof. (Emphasis added).

We deplore the fact that the Board in this case did not expressly articulate all the basic facts supporting its decision. However, there was no request for specific findings of facts and in the circumstance of this record the necessary implicit findings to sustain the Board's decision fully appear. Although disclosure of specific findings of fact by a zoning board of appeals will facilitate judicial review and implement statutory directions, the absence of findings, at least where there is no request therefor, will not in and of itself constitute reversible error, especially in a case where the board's decision is supportable on the basis of an implicit finding that the several requisites for a variance had been met. See Pappas v. City of Manchester Zoning Board, supra, 376 A.2d at 886, 887.

Rehearing within one month of an earlier denial

As indicated previously (footnote 2), the zoning ordinance of the City of Saco provides that an appeal for a variance, once heard by the Board and denied, shall not be heard again by the Appeals Board unless 2 years have passed since the last hearing on the matter. The Superior Court interpreted the ordinance literally on that score and held that the Gheewallas should not have been afforded a second hearing in the matter. In this, there was error.

The construction of zoning ordinances is a question of law for the court. Singal v. City of Bangor and Nite Owl, Inc., Me., 440 A.2d 1048 at 1051 (1982).

Even in the absence of an express prohibition in a zoning ordinance, the general rule is that a board of zoning appeals or board of adjustment may not entertain a second application for a variance concerning the same property after a previous application has been denied, unless a substantial change of conditions had occurred or other considerations materially affecting the merit of the subject matter had intervened between the time of the first adjudication and the subsequent application. See Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 278-79, 129 A.2d 619, 621 (1957); Russell v. Board of Adjustment of Borough of Tenafly, 31 N.J. 58, 155 A.2d 83, 88 (1959); Fisher v. City of Dover, 412 A.2d 1024, 1027 (N.H.1980). Thus, this principle applies only when the subsequent application for a variance seeks substantially the same relief as that sought in the previous one. And it is for the administrative agency, in the first instance, to decide whether the requested relief in both applications is substantially the same. Its determination will be disturbed only if its discretion was abused. Fiorilla v. Zoning Board of Appeals, supra, 129 A.2d at 621.

The reasons underlying the rule consist in providing finality to proceedings before the appellate zoning authority, giving protection to the integrity of the zoning plan, immunizing board decisions from change at the whim of agency personnel and shielding its members from possible improper influences, and, finally, stabilizing property interests and sparing property owners the harassment which repetitive variance requests would undoubtedly generate. See Fiorilla v. Zoning Board of Appeals, supra; Fisher v. City of Dover, supra; In re Crescent Beach Association, 126 Vt. 140, 224 A.2d 915 (1966).

Should the ordinance's prohibition against a rehearing or subsequent application for the period of two years from a previous denial of a request for a variance on the same property be interpreted to bar absolutely for that period of time any request for a variance notwithstanding the existence of substantial changes in the use to be made under the later proposal from that advanced in the previous hearing, then a serious question respecting the constitutionality of that part of the ordinance would arise because of substantial deprivation of property without compensation or abuse of the police power. While herein it is not necessary to pass upon the constitutionality of this zoning ordinance as interpreted by the Superior Court, yet in construing an ordinance, as in the case of the construction of statutes, if the...