Keith v. Saco River Corridor Com'n

• Decision Date: 03 August 1983
• Court: Maine Supreme Court
• Parties: Carolyn Smart KEITH v. SACO RIVER CORRIDOR COMMISSION.

Page 150

464 A.2d 150

Carolyn Smart KEITH v. SACO RIVER CORRIDOR COMMISSION.

Supreme Judicial Court of Maine.

Argued March 8, 1983.

Decided Aug. 3, 1983.

Smith & Elliott, Roger S. Elliott (orally), Karen B. Lovell, Saco, for plaintiff.

Hugh Calkins, Dover-Foxcroft (orally), for defendant.

Before McKUSICK, C.J., GODFREY, NICHOLS, CARTER ^* and WATHEN, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Active Retired Justice.

The defendant-appellant, Saco River Corridor Commission (the Commission), appeals from the order of the Superior Court, York County, granting summary judgment to the plaintiff-appellee, Carolyn Smart Keith, in her appeal from a Commission decision denying Keith's request for a determination by the Commission that the premises located at 520-524 Ferry Road, in the City of Saco, were grandfathered and as such were not subject to the requirements of 38 M.R.S.A. § 957-B.3.E(3) and (5), or, in the alternative, for the grant of a variance from the requirements of the Act. ¹ The Superior Court found that the property in question had been "functionally divided" as separate lots by tenant occupation since before the enactment of the Act and concluded that, as such, the premises were lawful existing nonconforming uses under 38 M.R.S.A. § 958 and that the proposed shift from tenant-occupation to owner-occupation of the delineated lots did not constitute an extension, expansion or enlargement of the existing nonconforming use so as to defeat the grandfathered status of the property. The Superior Court did not reach the issue respecting Keith's entitlement vel non to a variance. We agree with the Superior Court's decision and affirm the judgment below.

Facts

Carolyn Smart Keith is the owner of land on the Ferry Road in Saco which she purchased in the early 1950's as one lot. From that time to the present, the structures thereon, together with appropriate curtilage, were separately occupied and used by tenants. The plot contained a duplex residence, and two detached single-family houses with garage, each dwelling being served by its own utility and sewage disposal system. The parties concede that the three dwelling houses and other structures on the land were lawful as such and in their use on March 19, 1974, ² and thus, if the land remains undivided, "may continue although such use of structure does not conform to this chapter," etc. 38 M.R.S.A. § 958.

Keith proposes to divide the land into four separate lots with fixed delineated boundaries; each one of the three lots closest to the Ferry Road will have one of the dwelling-houses thereon. These three lots, she proposes to sell, while the fourth lot situated in the rear and vacant, she would keep for herself. Situated on their separate smaller lots which Keith proposes to sell, none of the dwellings would conform to the aggregate frontage and setback requirements of the Act, nor would they ever be able to conform in the future; the vacant lot could be built on without problem.

Faced with this situation, Keith sought from the Commission a determination that her proposed division and sale of the three separate lots and buildings thereon were not subject to the restrictions of the Act on the ground that, prior to the enactment of the Act and continuously thereafter, the three lots were treated as functionally divided and used as such under separate tenanted occupancies. As alternative relief, Keith requested variances under the Act which would permit the project to go through. The Commission rejected Keith's contention that her land was exempt from the strictures of the Act and denied her relief by way of granting her the variances she was requesting. On appeal, the Superior Court reviewed the administrative record before the Commission, the pleadings and argument of counsel, which resulted in a decision in favor of the plaintiff-appellee on her contention that the strictures of the Act did not apply to her nonconforming property.

The issue raised by the Commission's appeal is, whether the mere change from tenant occupancy of the three separate lots to owner occupancy under Keith's lot division and sale proposal would be an extension, expansion or enlargement of existing buildings, structures or of nonconforming uses prohibited by 38 M.R.S.A. § 958 except on permit from the Commission. ³

Preliminary considerations

Initially, we note that the Superior Court justice, in deciding the motion for summary judgment, did not take or receive any additional evidence, but made his decision entirely from the record developed before the Commission. Under such circumstances, we review the administrative record directly, the same as the Superior Court did, and determine whether the Commission 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). See Thornton v. Lothridge, 447 A.2d 473 (Me.1982). Here, we say that the Commission committed error of law when it ruled against the plaintiff-appellee's contention. The proposed division and sale of the three functionally divided nonconforming lots and buildings thereon continuously rented to tenants as separate lots for dwelling purposes was not prohibited by the Act and the plaintiff-appellee did not have to satisfy the legal standards for variances from the frontage and setback requirements of the Act before she could obtain Commission approval of the proposed division and sale of the lots. The Commission ruling to the contrary was based largely on the stated reason that

"Division of the parcel as proposed would eliminate any future possibilities for conformance to the requirements of the Act."

Having ruled that it had authority to approve or disapprove Keith's project only on the basis of variances legally allowable from the setback and frontage requirements of the Act, the Commission denied the relief sought by the plaintiff-appellee. We do not reach the variance issue on this appeal.

We further note that the Saco River Corridor legislation was expressly stated to be a comprehensive chart regulating the use of land and water in the area of the so-called Corridor. ⁴ Although one of the purposes of the Act is said to be--to prevent overcrowding--nowhere in the Act is the Commission given express authority to regulate subdivisions of land as such. As a matter of fact, the Act contemplates full compliance with all federal, state and municipal regulations. See 38 M.R.S.A. §§ 959 and 961. The parties agree that the instant proposed division was not subject to control by the Board of Environmental Protection which is given authority over large subdivisions of land in excess of 20 acres. Also, the Planning Board of the City of Saco has determined that Keith's proposed division of land is exempt from subdivision review under the provisions of 30 M.R.S.A. § 4956.

True, as relied on by the Commission, the policy of zoning is to gradually or eventually eliminate nonconforming uses as speedily as justice will permit. Inhabitants of Town of Windham v. Sprague, 219 A.2d 548, 552-53 (Me.1966); Vermont Brick v. Village of Essex Junction, 135 Vt. 481, 380 A.2d 67, 69 (1977); Taylor v. Metropolitan Development Commission, 436 N.E.2d 1157, 1159 (Ind.App.1982). But the implementation of this goal must be carried out within legislative intendment. Here, the Act does not contemplate complete adherence to such objective, since the Act expressly authorizes the repair, maintenance and improvement of existing nonconforming buildings or structures and permits the reconstruction of such buildings or structures in substantially the same location and in the same size when decreased in value less than 75% by flood, fire or other casualty, and this, without a permit from the Commission.

Also, the central point to be kept in mind when dealing with nonconforming buildings or uses is, that it is the building or the land that is "grandfathered" and not the owner. Stewart v. Inhabitants of Town of Durham, 451 A.2d 308, 310 (Me.1982); Appeal of E & G Auto Parts, 22 Pa.Cmwlth. 171, 348 A.2d 438, 440 (1975); State ex rel. Keeven v. City of Hazelwood, 585 S.W.2d 557 (Mo.App.1979). Once a nonconforming use or building is shown to exist, neither is affected by the user's title or possessory rights in relation to the owner of the land. Your Home, Inc. v. City of Portland, 432 A.2d 1250, 1260 (Me.1981); County of Fayette v. Cossell, 60 Pa.Cmwlth. 202, 430 A.2d 1226, 1229 (1981); Graham Court Associates v. Town Council, 53 N.C.App. 543, 281 S.E.2d 418, 420 (1981). Where a nonconformity legally exists, it is a vested right which adheres to the land or building itself and the right is not forfeited by a purchaser who takes with knowledge of the regulations which are inconsistent with the existing use. Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 429 A.2d 883, 885 (1980); Petruzzi v. Zoning Board of Appeals, 176 Conn. 479, 408 A.2d 243, 246 (1979); People v. Smith, 38 Ill.App.3d 798, 349 N.E.2d 91, 92 (1976).

The plaintiff-appellee acted reasonably in seeking Commission approval of her proposed plan to divide and sell her property. In so doing, she sought an official determination of the legality of her proposal from the agency whose duty it is to enforce the Act. She merely invoked the Commission's power to decide whether the proposed division and sale of the three nonconforming lots were permissible. She thereby did not relinquish her rights to the existing nonconforming uses. Abbadessa v. Board of Zoning Appeals, 134 Conn. 28, 54 A.2d 675, 678 (1947). See also Watts v. City of Helena, 151 Mont. 138, 439 P.2d 767, 769 (1968). The plaintiff-appellee's initial application to the Commission followed the directive of this Court in State ex rel. Brennan v. R.D. Realty Corporation, 349 A.2d 201, 206 (Me.1975), which suggested a determination first by the administrative agency, whether a project is subject to regulation by the...