H.E. Sargent, Inc. v. Town of Wells

• Decision Date: 13 May 1996
• Docket Number: No. 7662,Docket No. Y,7662
• Parties: H.E. SARGENT, INC. v. TOWN OF WELLS. DecisionLawor 95 619.
• Court: Maine Supreme Court

Page 920

676 A.2d 920

H.E. SARGENT, INC. v. TOWN OF WELLS.

Decision No. 7662.

Law Docket No. Yor 95 619.

Supreme Judicial Court of Maine.

Argued April 3, 1996.

Decided May 13, 1996.

William S. Kany (orally), Smith Elliott Smith & Garmey, P.A., Saco, for Plaintiff.

Bruce M. Read (orally), Hodsdon Read & Shepard, Kennebunk, for Defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

RUDMAN, Justice.

H.E. Sargent, Inc. appeals from the judgment entered in the Superior Court (York County, McKinley, A.R.J.) affirming the decision of the Wells Zoning Board of Appeals barring further operation of a Sargent-owned gravel pit without planning board site approval. Sargent argues: (1) that the pit was operating legally on April 24, 1993, and therefore may continue to operate pursuant to the Wells Land Use Ordinance; (2) that the town is estopped by a 1989 letter from the Wells Code Enforcement Officer from barring operation of the gravel pit; (3) that the doctrine of laches bars the town from enforcing its land use ordinance against the gravel pit; and (4) that it was denied due process by the Zoning Board of Appeals' consideration of the legality of the gravel pit after providing Sargent insufficient notice that the pit's legality with respect to town ordinances would be addressed by the Zoning Board of Appeals. We affirm the judgment.

I

In 1989 Sargent became interested in purchasing real property on the Crediford Road in Wells, a portion of which had been used to mine gravel. At the suggestion of the Wells Code Enforcement Officer, Sargent sought an advisory opinion from the Maine Department of Environmental Protection (DEP) as to whether DEP had "rules and regulations" covering Sargent's proposed use of the gravel pit. The DEP responded by letter that, assuming the history of the gravel pit were in fact as Sargent related it to the DEP, the gravel pit would be grandfathered pursuant to the Site Location of Development Act ¹ and a permit would not be required in order for Sargent to excavate gravel from pools on the floor of the existing pit to form one large permanent pond, as Sargent proposed. Sargent sent a copy of the DEP's qualified response to the Wells Code Enforcement Officer with a request for a formal indication of the town's position on the proposed use of the gravel pit. The Code Enforcement Officer wrote back confirming "the content of our conversations in the past couple of months" and stating, without citing authority, that "activity in the pit has been ongoing; and has attained 'vested rights' as prescribed by the standards of the Code of the Town of Wells." Sargent bought the property and began operations.

In 1994 an amended Wells Land Use Ordinance became effective. The new ordinance prohibits dredging gravel lower than five feet above the seasonal high water table. The new ordinance, however, also provides that nonconforming dredging may continue in commercial amounts if 1) the pit was "legally operating" on April 24, 1993, 2) the operator timely submitted to the town required site documentation, and 3) the nonconforming use is not expanded. In the course of extended confusion as to the form of documentation Sargent was required to provide, the Code Enforcement Officer informed Sargent that it could dig no more gravel from lower than five feet above the seasonal high water table. Sargent, already working underwater at the Crediford Road pit, appealed from the Code Enforcement Officer's decision to the Wells Zoning Board of Appeals (ZBA). The ZBA voted to allow Sargent to continue digging underwater, on the theory that digging deeper did not constitute expansion of a nonconforming use.

The Wells Board of Selectmen, however, almost immediately requested that the ZBA reconsider its decision in order to take into account newly available information. On reconsideration the ZBA reversed its earlier decision, finding that the Crediford Road pit had not been legally operating on April 24, 1993, and determining that the gravel pit therefore could not continue as a nonconforming use, even with the required site documentation, absent site approval by the Wells Planning Board.

Sargent, as authorized by 30-A M.R.S.A. § 2691 (Pamph.1995) and Wells ordinance, sought direct judicial review pursuant to M.R.Civ.P. 80B of the ZBA's reconsidered decision. The court denied Sargent's motion for a trial of the facts pursuant to M.R.Civ.P. 80B(d) and affirmed the Zoning Board of Appeals decision on reconsideration, and Sargent appeals.

When the Superior Court, acting as an intermediate appellate court, reviews an administrative agency decision without developing any additional evidence beyond the record before the agency, we review the administrative record directly for an abuse of discretion, error of law, or findings unsupported by substantial evidence on the record. Boivin v. Town of Sanford, 588 A.2d 1197, 1199 (Me.1991). The "substantial evidence" standard for reviewing an agency's findings of fact is identical to the "clear error" standard used to review the factual findings of a trial court. Gulick v. Bd. of Envtl. Protection, 452 A.2d 1202, 1207-08 (Me.1982). We reverse a finding of fact for "clear error" only when there is no competent evidence in the record to support the finding; the finding is based on a clear misapprehension of the meaning of the evidence; or the force and effect of the evidence, taken as a whole, rationally persuades to a certainty that the finding is "so against the great preponderance of the believable evidence that it does not represent the truth and right of the case." Pongonis v. Pongonis, 606 A.2d 1055, 1057-58 (Me.1992). We review matters of law de novo. Collins v. Trius, Inc., 663 A.2d 570, 572 (Me.1995).

II

Sargent first asserts that the Zoning Board of Appeals erred as a matter of law in deciding that the Crediford Road gravel pit was not operating legally on April 24, 1993. Legal operation on April 24, 1993, is the threshold criterion set by section 7.6.2 of the 1994 Wells Land Use Ordinance ² for continued operation of a nonconforming use. The 1994 ordinance includes no definition of "legally operating." The meaning of a term in a zoning ordinance is a question of law. Mayberry v. Town of Old Orchard Beach, 599 A.2d 1153, 1154 (Me.1991). We construe an ambiguous, undefined term in a zoning ordinance "reasonably with regard both to the objects sought to be obtained and to the general structure of the ordinance as a whole." Christy's Realty Ltd. Partnership v. Town of Kittery, 663 A.2d 59, 62 (Me.1995); Singal v. City of Bangor, 440 A.2d 1048, 1052 (Me.1982). Undefined land use ordinance terms should be given their common and generally accepted meaning unless the context of the ordinance clearly indicates otherwise. George D. Ballard, Builder, Inc. v. City of Westbrook, 502 A.2d 476, 480 (Me.1985).

By common and generally accepted meaning, a gravel pit "legally operating" on April 24, 1993, in Wells was a gravel pit complying with all applicable provisions of federal law, Maine statute, and the town ordinances then in effect. This common and generally accepted meaning of "legally operating" raises no issue of the town's jurisdiction in issues of federal and state law. Although a zoning board of appeals has no authority to make its own assessment of the legality of an operation pursuant to federal or state law, it may receive evidence from appropriate federal or state agencies to establish or disprove legality. 30-A M.R.S.A. § 2691(3) (Pamph.1995). The Wells Zoning Board of Appeals is entitled to review the legality of the Crediford Road gravel pit on April 24, 1993, pursuant to section 7.6.2 of the 1994 Wells Land Use Ordinance, by considering evidence of the gravel pit's legality pursuant to all applicable federal, state, and municipal law.

Competent evidence on the record supports the ZBA finding that the Crediford Road gravel pit was not operating legally on April 24, 1993, pursuant to the Site Location of Development Act, 38 M.R.S.A. §§ 483-A to 488 (1989 & Supp.1995). ³ The ZBA in making its decision considered the DEP letter to Sargent regarding the gravel pit's compliance with State law, which stated:

This letter is in response to your request for an advisory opinion concerning the applicability of the Site Location of Development Act (38 M.R.S.A. Section 488 et. seq.) to the above-captioned project. Based upon the information contained in your letter to me dated February 2, I have determined that a permit will not be required.

The facts as I understand them are:

1. Mr. Greg Tetherly owns a 31 acre parcel of land located on the Credeford [sic] Road in Wells.

2. A gravel pit covers approximately two-thirds of the property.

3. Mr. Tetherly has stated that he has not expanded the pit since he purchased the property in 1983 and to his knowledge the pit has not been expanded in area since 1970.

4. The existing pit contains numerous areas excavated into the groundwater.

5. Your firm proposes to excavate additional materials such that one large pond is created.

You asked whether the Department has jurisdiction over the creation of this large pond. Assuming that the pit is grandfathered as Mr. Tetherly has indicated, then any additional mining which has not expanded the pit by more than 5 acres since 1970 does not require site approval as a mining activity or gravel pit.

Aerial photographs taken in 1975 and offered in evidence at the Zoning Board of Appeals reconsideration hearing depict no gravel pit in existence at the Crediford Road site. Contrary to the third assumption on which the DEP based its determination, the mining of gravel at the Crediford Road site was commenced after 1970 and therefore is not "grandfathered as Mr. Tetherly has indicated." Sargent offered no other evidence to show that the pit was operating legally pursuant to Maine law. The ZBA did not err as a matter of law in deciding on...