George D. Ballard, Builder, Inc. v. City of Westbrook

• Decision Date: 06 December 1985
• Citation: 502 A.2d 476
• Parties: GEORGE D. BALLARD, BUILDER, INC. v. CITY OF WESTBROOK, et al. 1
• Court: Maine Supreme Court

Page 476

502 A.2d 476

GEORGE D. BALLARD, BUILDER, INC. v. CITY OF WESTBROOK, et al. ¹

Supreme Judicial Court of Maine.

Argued Sept. 9, 1985.

Decided Dec. 6, 1985.

Zuckerman & Avaunt, Robert H. Avaunt (orally), Gray, for plaintiff.

Gagan & Desmond, James C. Gagan (orally), Richard A. Sullivan, Westbrook, for defendant.

Before McKUSICK, C.J., and ROBERTS, VIOLETTE, WATHEN, GLASSMAN, and SCOLNIK, JJ.

SCOLNIK, Justice.

The plaintiff, George D. Ballard, Builder, Inc., appeals from a judgment entered in the Superior Court (Cumberland County) on a referee's report that recommended judgment for the defendants. At issue were two rulings of the Westbrook Planning Board (Board). The Board denied the plaintiff's request for an extension of its approved site plan application for a multi-family development because the plaintiff failed to request an extension within one-year from the time of the site plan approval as required by the terms of the Westbrook Site Plan Review Ordinance (Ordinance). The Board also denied the plaintiff's reapplication for site plan approval on the ground that it was barred by the provisions of the City of Westbrook's (City) amended zoning ordinance. On appeal, the plaintiff contends, first, that its approved application was a pending proceeding protected by 1 M.R.S.A. § 302 (1979); second, the forfeiture provision of the Ordinance is invalid on its face and is a standardless delegation of power; third, the amendment to the City's zoning ordinance was not in effect at the time the plaintiff filed its subsequent application; and, fourth, that the Board should be estopped from preventing the plaintiff's initially approved multi-family development. We disagree with these contentions and affirm the judgment.

The facts are as follows: The plaintiff seeks to develop a thirty-six acre parcel located in Westbrook. Its plan divided the lot into thirty-six lots; all but three of the lots would contain single family homes. The plaintiff planned to donate Lot 36, containing 14.7 acres, to the City as a park. Lot 18 included a single family residence with an apartment attached. On the remaining lot, Lot 35, the plaintiff planned to build three separate buildings, totalling fifteen dwelling units. Board approval of the plaintiff's plan was required under § 21-16 of the City's Subdivision Ordinance because a subdivision of the parcel was proposed. For economic reasons, the proposal submitted to the Board divided the property into two sections. The first section included twelve single family lots plus Lots 18, 35 and 36. On September 11, 1979, the Board, pursuant to § 21-54 of the Subdivision Ordinance, approved the subdivision plan for the first section. Because the proposed development of Lot 35 included plans for more than four multi-family units, § 19 1/2-4(A) of the Ordinance required the plaintiff to submit a site plan application for Board approval. At the time the plaintiff initiated that approval process, Lot 35 was within an R-4 zone that permitted multi-family dwelling units. The Board approved the site plan on December 18, 1979. On May 22, 1980, the plaintiff obtained the final necessary State permit from the Department of Environmental Protection (DEP) for the development of Lot 35.

Meanwhile, on March 12, 1980, the City adopted an amendment to its zoning ordinance that created a new R-3 zone affecting the area where the plaintiff's land is located. The new zone eliminated multi-family use, restricting new development to single-family homes. The plaintiff received notice of the amendment shortly after its passage but it was not until June 22, 1981, that the City filed a copy of the amendment in the Cumberland County Registry of Deeds as was then required by 33 M.R.S.A. § 622-A (1978), repealed by 1981 Me.Laws. ch. 216 (effective date Sept. 18, 1981).

For unexplained reasons, Ballard did not request a construction permit for Lot 35 until the spring of 1981. ² At that time, city officials informed the plaintiff that the site approval for Lot 35 had expired by the forfeiture terms of § 19 1/2-7(D) of the Ordinance, which states that if substantial construction is not commenced within one year of site plan approval or an extension request is not made, that approval becomes void. The plaintiff did not appeal the city officials' determination that its approved site application was no longer valid. Instead, it asked the Board for a hearing to "clarify its rights regarding development of Lot 35." On May 5, 1981, the Board found that the plaintiff's approval had expired because it failed to commence substantial construction within the one year period following the December 18, 1979, site plan approval. The Board stated that the amended zoning ordinance would now apply if Ballard desired to continue its development. The plaintiff did not appeal the Board's "findings" that its approval had expired.

On May 8, 1981, the plaintiff requested an extension of the one-year limit for its approved site plan application. On June 17, 1981, the plaintiff also filed a reapplication for site plan approval of Lot 35. On June 23, 1981, the Board denied the plaintiff's request for an extension of site plan approval because whatever rights the plaintiff had to proceed with its development of Lot 35 expired when it failed to commence substantial construction or request an extension within the one year period from the date of site plan approval, which elapsed on December 18, 1980. The Board also denied the reapplication on the ground that it was barred by the provisions of the amended zoning ordinance.

On July 22, 1981, the plaintiff filed a complaint in the Superior Court pursuant to Rule 80B of the Maine Rules of Civil Procedure. ³ The court, with agreement of the parties, referred the case pursuant to Rule 53(b)(1). ⁴ The case was submitted to the referee for decision on a stipulation of facts, exhibits and briefs. ⁵ The referee in his report recommended that judgment be entered for defendants. After a hearing, the Superior Court justice accepted the referee's report and entered judgment for the defendants. This appeal followed.

After maneuvering through the procedural maze of this appeal, we conclude that only three issues are presented for decision: first, whether the Board properly denied the plaintiff's extension request; second, whether the plaintiff's re-application was barred by the amended zoning ordinance; and third, whether the facts of this case estop the Board from denying the plaintiff's development of Lot 35. We address seriatim each of these issues.

I.

On May 5, 1981, the Board informed the plaintiff that its approved site plan application had expired because of a failure to commence substantial construction within the one year period following the December 18, 1979, site plan approval. Section 19 1/2-7(D) of the Ordinance provides:

The approval of a site plan shall become void if substantial construction is not commenced within one (1) year of the date of such approval unless such time limit is extended by the Board.

Pursuant to § 19 1/2-7(D), the plaintiff requested an extension on May 8, 1981, contending that "approval" of its site plan did not occur until May 22, 1980, the date on which its final State permit was obtained from the DEP, and thus its extension request made on May 8, 1981, was timely filed. The plaintiff contended, in the alternative, that even if it failed to request an extension within one year of approval, its development of Lot 35 was protected as a grandfathered proceeding under the provisions of 1 M.R.S.A. § 302 (1979). On June 23, 1981, the Board denied the plaintiff's request on the grounds that it was not seasonably filed in that "the one year period of approval of [its] Site Plan for the project as approved by the Planning Board on December 18, 1979 [had] expired" and that the development was not "grandfathered."

The plaintiff attacks the Board's denial of its extension request on several grounds. It contends that § 19 1/2-7(D) is unenforceable because the words "approval" and "substantial construction" are void for vagueness, both on their face and as applied by the Board. The plaintiff further claims that because the phrase "unless such time limit is extended by the Board" does not specifically state whether the request for extension has to be made within one year of the date of approval, the Ordinance's failure to provide guidance in this respect is a standardless delegation of authority. It also contends that the Board incorrectly interpreted the Ordinance as requiring that an extension request be made within one year from its site plan approval on December 18, 1979.

The meaning of terms or expressions in a zoning ordinance is a question of law for the court. Putnam v. Town of Hampden, 495 A.2d 785, 787 (Me.1985). The terms or expressions are construed reasonably with regard to both the objects sought to be obtained and to the general structure of the ordinance as a whole. Robinson v. Board of Appeals, Town of Kennebunk, 356 A.2d 196, 198 (Me.1976); Moyer v. Board of Zoning Appeals, 233 A.2d 311, 317 (Me.1967). Undefined terms should be given their common and generally accepted meaning unless the context clearly indicates otherwise. Robinson v. Board of Appeals, Town of Kennebunk, 356 A.2d at 199. Applying these principles, we find the plaintiff's assertions to be without merit.

First, the term "approval" as used in the Ordinance is not vague on its face. Even though "approval" is not defined in the Ordinance, its common and generally accepted meaning connotes favorable rather than negative action. See In re Rooney, 298 Mass. 430, 433, 11 N.E.2d 591, 592 (1937) ("The word 'approval' when it appears in our statutes generally means an affirmative sanction."); Webster's Third New International Dictionary 106 (3d ed. 1971). The plaintiff's contention that this term is facially vague is without merit.

We next turn to the issue whether § 19 1/2-7(D) is invalid...