Gagne v. Lewiston Crushed Stone Co., Inc.

• Decision Date: 10 December 1976
• Citation: 367 A.2d 613
• Parties: Cecile C. GAGNE and Victoria A. Bouffard v. LEWISTON CRUSHED STONE COMPANY, INC., et al.
• Court: Maine Supreme Court

Page 613

367 A.2d 613

Cecile C. GAGNE and Victoria A. Bouffard v. LEWISTON CRUSHED STONE COMPANY, INC., et al.

Supreme Judicial Court of Maine.

Dec. 10, 1976.

Rocheleau & Fournier, P.A. by Paul C. Fournier, Lewiston, for plaintiffs.

Isaacson & Isaacson by Robert S. Hark, Lewiston, for Lewiston Crushed Stone.

Paul R. Dionne, Lewiston, for the City of Lewiston and defendant Beteau.

Before WEATHERBEE, ^* POMEROY, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

This case, a sequel to our decision in Gagne v. Inhabitants of City of Lewiston, Me., 281 A.2d 579 (1971), requires that, in light of our intervening decision in Keating v. Zoning Board of Appeals of the City of Saco, Me., 325 A.2d 521 (1974), we further develop principles governing the manner and scope of the judicial review of the decisions of administrative officials concerned with zoning.

Defendant Lewiston Crushed Stone Company, Inc. (defendant company) has appealed from a summary judgment in favor of plaintiffs Cecile C. Gagne and Victoria A. Bouffard. The judgment entered in the Superior Court (Androscoggin County) (1) revoked a building permit which was issued on November 20, 1972. to defendant company by the Lewiston building inspector and (2) required defendant company to remove a portion of the building constructed pursuant to said permit.

Plaintiffs have filed a cross-appeal asserting that the remedy given them was too narrow because removal of the entire building, rather than only part of it, should have been ordered.

We sustain the appeal of defendant company. We thus to not reach the cross-appeal of plaintiffs and dismiss it.

1.

On July 26, 1973 plaintiffs instituted a civil action in the Superior Court (Androscoggin County) invoking that Court's jurisdiction in equity. Sued as defendants were the defendant company, the Inhabitants of the City of Lewiston and the Lewiston building inspector, Charles Buteau. as ultimately amended, ¹ the complaint of plaintiffs alleged that on November 20, 1942 the building inspector had issued defendant company a building permit pursuant to which, in 1973, construction was commenced. Plaintiffs claimed that these acts violated the Lewiston Zoning Ordinance, as in effect when the building permit was issued, ² and sought declaratory and injunctive relief, including revocation of the allegedly illegal building permit and removal of any building constructed under it.

Defendant company answered by admitting issuance of the permit, and construction pursuant to it, but denied violation of the ordiance. Defendant company also raised several affirmative defenses one of which we find basically dispositive of this appeal:-that plaintiffs had failed to appeal the decision of the building inspector to the zoning board of appeals, as the initial step necessary to achieve a direct judicial review, first, in the Superior Court (under Rule 80B M.R.C.P.) and thereafter in this Court, and, therefore, plaintiffs are barred from collateral judicial review of the merits of their substantive claims of administrative violation of the Lewiston Zoning Ordinance.

2.

It has been factually established that plaintiffs failed to appeal to the zoning board of appeals from the building inspector's issuance of a building permit to defendant company. Plaintiffs contend that, despite this failure, they are entitled to the collateral judicial review they now seek because: (1) the Lewiston Zoning Ordinance, although mentioning a right of appeal to the zoning board of appeals, was silent concerning the time for such appeal and, hence, in practical terms, plaintiffs should not be held at fault for failing to resort to the direct course of administrative and judicial review; (2) even if direct appeal proceedings had been pragmatically available to them, plaintiffs were unable to 'bifurcate' their claims into the appropriate administrative and judicial channels; (3) in any event, the zoning board of appeals lacked power to stop, pending appeal, the construction which had already been commenced by defendant company; (4) the building inspector's issuance of the building permit was void and, therefore, may be declared a nullity in a collateral judicial attack; and (5) general principles acknowledged by this Court, in particular in Stanton v. Trustees of St. Joseph's College, Me., 233 A.2d 718 (1967) and Summit Realty, Inc. v. Gipe, Me., 315 A.2d 428 (1974), authorize the full-scale collateral judicial review here sought.

The Superior Court Justice allowed plaintiffs collateral judicial review of the substantive merits of their claims on the grounds that: (1) here, plaintiffs had no timely notice that the building inspector had issued the permit to defendant company and thus were deprived of a practically meaningful opportunity to appeal to the zoning board of appeals as a preliminary to seeking, if necessary, a direct judicial review and (2) since it appears as a matter of law that defendant company was not entitled to the building permit issued to it, the collateral judicial review sought by plaintiffs should be allowed.

We decide that, in so ruling, the presiding Justice committed error, and the appeal of defendant company must be sustained.

3.

To afford better understanding of the reasons for our decision we advert briefly to the facts of the controversy.

Still before us, as facts undisputed, are the events involved in our decision in Gagne v. Inhabitants of City of Lewiston, supra.

In 1969 defendant company had determined to replace its wood frame garage on a so-called 'split lot' in the City of Lewiston. That lot, and the then existing garage, were bisected by the boundary between the 'Residential A' and 'Industrial' Zones. ³ Since the portion of the garage in the Industrial Zone constituted a 'permitted use' in that zone, demolition and new construction as to it appeared to be matters of right, upon compliance with applicable set-back and building code provisions. The portion jutting into the Residential A Zone, however, because in existence on the effective date of the zoning ordinance, persisted as a 'non-conforming use.'

Since defendant company's project of complete replacement would have effects upon a non-conforming use, Section 10.b of the Lewiston Zoning Ordinance came into play. That section required the approval of the zoning board of appeals where a non-conforming use was to be 'enlarged or altered.' Accordingly, defendant company obtained the requisite approval.

On the appeal by abutting property owners to this Court, we held that the 'demolition of an existing building and the erection of an entirely new one' was not authorized by the concepts, 'enlarged', 'altered' or 'erection of additional buildings', as contained in Section 10.b of the Lewiston Zoning Ordinance. Gagne v. Inhabitants of City of Lewiston, supra, p. 582.

The parties do not fully agree as to the events transpiring after the Gagne decision. ⁴

Undisputed are these facts. Defendant company made changes in its plans, limiting reconstruction to less than the entire building. It then obtained the November 20, 1972 building permit here at issue which authorized erection of a concrete garage in the Industrial Zone portion of its property extending 30 feet into the adjacent Residential Zone. ⁵

Defendant company, through affidavits of its officers and answers to plaintiffs' interrogatories, claims that construction began on April 30, 1973, approximately five months after issuance of the permit. Plaintiffs, also through affidavits, dispute that date, asserting that renovation actively commenced later, in June, 1973.

Believing the proposed concrete replacement violative of the zoning ordinance, plaintiffs requested that defendant company discontinue its project. When defendant company refused to halt construction, plaintiffs-at the end of July, 1973-initiated the instant action in the Superior Court.

The parties agree that work continued during the summer of 1973, resulting in completion of the cement portion by autumn. They also agree that a portion of the old frame garage remains in the residential part of defendant company's lot, forming part of the now partially renovated entirety.

However, the location of the renovated portion vis-a-vis the zone boundaries is disputed. Defendant company maintains that the cement section extends 30 feet into the Residential Zone in compliance with the November 20, 1972 permit and the ordinance. Plaintiffs contend that the new portion goes beyond that 30-foot limit.

Plaintiffs attack the validity of the issuance of the November 20, 1972 building permit primarily on the basis of Section 10(b) of the Lewiston Zoning Ordinance, the section we construed in the Gagne case. It provides:

'A building of nonconforming use may be enlarge or altered or additional buildings may be erected on the same or an adjacent parcel of land in the same single or joint ownership of record at the time it is placed in a zone for an extension of such use, provided the board of appeals shall rule that such addition or alteration is not substantially more detrimental or injurious to the neighborhood.' (emphasis supplied)

Plaintiffs contend, and the presiding Justice ultimately agreed, that the now completed reconstruction of a portion of defendant company's garage constitutes an 'enlargement' of a non-conforming use for purposes of Section 10(b). Since that section requires approval by the board of appeals for any such enlargement the building inspector had no authority, plaintiffs argue, to issue the permit without resort to the board. ⁶ They, therefore, urge affirmance of the judgment below, at the same time seeking, through their cross-appeal, modification to require removal of the entire garage.

In addition to its affirmative defense, defendant company contends on the merits that Section 10(b) of the zoning ordinance does not apply to its new cement garage. Arguing that the renovation did not constitute an 'enlargement' subject to that...