Moyer v. Board of Zoning Appeals

• Decision Date: 26 September 1967
• Citation: 28 A.L.R.3d 1228,233 A.2d 311
• Parties: Ellen B. MOYER et al. v. BOARD OF ZONING APPEALS.
• Court: Maine Supreme Court

Page 311

233 A.2d 311

28 A.L.R.3d 1228

Ellen B. MOYER et al. v. BOARD OF ZONING APPEALS.

Supreme Judicial Court of Maine.

Sept. 26, 1967.

Theodore H. Kurtz, Portland, for appellants.

Charles P. Barnes, II, Portland, for appellee.

Before WILLIAMSON, C. J., and MARDEN, DUFRESNE, and WEATHERBEE, JJ.

DUFRESNE, Justice.

The five plaintiffs are residents of the Town of Cape Elizabeth occupying properties adjacent to or in the immediate vicinity of the parcel of land owned by one William H. Bruce at 960-970 Shore Road in said town. They appealed to the Superior Court from the majority (3 to 2) decision of the defendant Board of Zoning Appeals for said Town of Cape Elizabeth permitting the erection of a proposed building to be used as a 'hotel' in a 'Residence C' zone. The Superior Court judgment of 'Appeal denied. Decision of Zoning Board of Appeals affirmed' is before us on further appeal.

The record depicts with particularity the background of this hotly contested litigation. The building still standing on the reference lot was previously used as a hotel, but, in the language of the Board, 'its operation had dwindled and the property deteriorated of late years, creating an unattractive and undesirable stand of buildings; which it is felt is rapidly becoming a fire hazard to the neighboring wooden buildings, as well as a potential vandals' retreat'.

Mr. Bruce originally sought permission to replace the old dilapidated hotel buildings by an apartment house building at an approximate cost of $500,000 containing some 34 or more luxury apartment units to rent for $160 to $275 per month. The proposed building would have occupied less than 6,600 square feet, i. e. less than 10% of the total area involved. The Board unanimously denied permission on the ground that the proposed construction of luxury apartments as contemplated by Mr. Bruce was not permissible under the zoning ordinance of Cape Elizabeth as the latter did not provide for any such apartment building within the town. This denial by the Board was made on April 22, 1966. No appeal was taken from that ruling.

In August of the same year, Mr. Bruce applied anew for a building permit, but on this occasion he sought permission to construct a hotel. His application came to the Board on appeal from the denial of the permit by the Building Inspector of the Town of Cape Elizabeth. Mr. Bruce's proposal contemplated a building containing 36 units divided evenly among one, two and three room suites, to be furnished as required to accommodate the desires of the occupants who did not care to bring in their own furnishings. Each suite had a bathroom and kitchenette arrangement. The structure of wood with brick veneer would be two stories in height in part but three stories high in major part, occupying an area approximately 164 feet in length and 56 to 60 feet in width. In the language of the Justice below, there would be an outdoor swimming pool, facilities for sewerage treatment, inside and outside parking, landscaping, a furnished lobby, a vault for the safekeeping of valuables and an attendant on duty. The applicant further proposed to conform to all requirements of law imposed upon hotels and in particular to the provisions of 30 M.R.S.A. § 2751 (license), § 2753 (bond), §§ 2703, 2803 and 2901 (displaying statutory notices) and § 2801 (register). The applicant offered, but only if so required by the Board, to maintain a simple coffee shop to serve the needs of the residents of the building. The applicant represented to the Board that he anticipated that the proposed building would attract older couples, widows and widowers who might make this building their principal residence, and that it would also attract couples waiting for a home to be built, businessmen on temporary assignment and other persons in a comparable transient status. He indicated to the Board that he intended to require occupants to enter into a lease for at least thirty days and to charge the monthly rates of $167.50 for one-room suites, $200 for two-room suites and $250 for three-room suites.

At the hearing before the Board, 18 area residents registered their approval giving as one of their reasons for agreeing the fact that the proposed use was preferable to the existing run-down condition of the buildings now standing on the land, that no greater noise nor traffic hazards would be created, and increased tax revenue to the town would result. Twenty-one were opposed to granting the permit stating that the proposed use was that of an apartment house and not of a hotel, and that resulting traffic, noise, sewage disposal and noxious odors from garbage and trash disposal would be detriments to the area. The Board in granting the application before it stipulated certain requirements upon which the permit was conditioned. It spelled out the sewerage treatment to be installed. It provided for a change in the set-back on the northerly side of the lot. It proscribed the use of flashing neon-type signs and subjected the operator of the alleged hotel to compliance with local ordinances respecting signs, smoke, odors and the like, as well as to statutory compliance regarding licenses, posting of notices, maintenance of a register and metal safe for safekeeping of moneys and valuables of occupants. With material significance, the Board provided as its third condition that 'no cocktail lounge, coffee shop, or public dining room is to be installed initially or subsequently, in the hotel while located on this site. This to insure the residential aspect of the hotel'. (Emphasis supplied.) The Board concluded with the following language: 'It is felt by the Board that a well run hotel on this site will attract high caliber occupants of good taste, respectable conduct, with consideration for the community, and who will enjoy an appreciation of their aesthetic surroundings.' (Emphasis added.)

At the hearing before the Justice presiding, with his consent and over the objections of the opponents, the applicant was permitted to make certain changes in the proposed use of the building to be constructed. He changed the dimensions of the building to comply with the condition imposed by the Board enlarging the set-back. He further proposed daily and weekly rates whereas in his original plan only monthly rates were contemplated. He indicated abandonment of the requirement that each occupant sign a lease for at least thirty days. He added regular maid and linen service. The presiding Justice ruled that such changes as applicant's abandonment of any required minimum period of occupancy and the added maid and linen service, together with the new rate structure taking into account for the first time daily occupancy as well as occupancy by one or more than one person, could not be viewed as anything that substantially changed the original proposal before the Board. With this, we disagree.

The Board expressly indicated in its decision that it wanted to insure the residential aspect of the hotel by proscribing at any time in the future any cocktail lounge, coffee shop or public dining room. Also, when it indicated in its conclusions that it felt that the hotel, well run, would attract 'high caliber occupants of good taste, respectable conduct, with consideration for the community,' it could hardly have had in mind any other facet of the proposed use than the fact that this hotel would not cater to transients of diversified allegiances but would only accept permanent guests whose minimum sojourn of 30 days in the community would be consistent with the Board's obvious policy to maintain in the residential district such as this site is located in, community spirit, understanding and consideration. The 30 day minimum period of occupancy required of all prospective tenants of the building was of utmost significance to the Board. Permanent residency was favored by them as reflected by their statement of decision in an attempt to foster in the occupants of the alleged hotel local community spirit. Stripping the proposed use of this minimum occupancy requirement could very well have resulted in the Board's refusal to approve such apartment house type hotel structure. Regular linen and maid service on the other hand is a chief distinctive feature of a hotel as that term is understood either at common law or in present day society, and is expected by the traveling public.

The pertinent portions of the zoning ordinance applicable in the instant case re as follows:

(1) 'Sec. 3. Definitions.

For the purposes of this ordinance, the following terms, words and phrases shall have the meanings given herein.

F. Dwelling: a building containing one or more dwelling units and used for human habitation.

G. Dwelling Unit: a room or group of rooms forming a habitable unit for one family with facilities used or intended to be used for living, sleeping, cooking and eating.

I. Garden Apartment House: a structure designed to consist of four or more dwelling units, laid out in such a manner that no one must ascend or descend more than 1 1/2 stories from the level of the outside entrance in order to reach a room in his dwelling unit. Any apartment house in which more than two stories are to be occupied by dwelling units shall be of Type I or Type II construction as defined by the Town Building Code (B.O.C.A., abridged). The residential density of the lot shall not exceed 6 dwelling units per acre exclusive of public streets.'

(2) 'Sec. 4. Establishment and Regulations of Zoning Districts.

B. Residence B and C District-Permitted Uses

The following buildings or uses only are permitted in Residence B and C Districts:

(2) hotel, motel, garden apartment house, rooming house, tourist cabin or tourist home, medical or dental offices or clinic, subject to the approval of the Board of Appeals;' (Emphasis added.)

3) 'Sec. 5. Area and Width of Lot; Building Setbacks; Parking.

D. Parking

In all districts, off-street parking spaces shall be provided in...