Parker v. Town Of Winthrop

• Decision Date: 04 May 2010
• Docket Number: Docket No. AP-09-49
• Parties: KATHLEEN PARKER, et. al., Plaintiffs v. TOWN OF WINTHROP, Defendant
• Court: Maine Supreme Court

KATHLEEN PARKER, et. al., Plaintiffs

v.TOWN OF WINTHROP, Defendant

Docket No. AP-09-49

Supreme Judicial Court Of Maine

Date: May 4, 2010

Nancy Mills J.

Before the court is a petition for review of government action pursuant to M.R. Civ. P. 80B.¹ The plaintiffs challenge two decisions of the Town of Winthrop Zoning Board of Appeals (ZBA) dated 9/9/09: the ZBA denied the plaintiffs' application to rebuild a bunkhouse or construct a tent platform on Frog Island (case #307) and denied the plaintiffs' application for a variance from applicable dimensional requirements (case #306). (R. at 68, 70.).

The plaintiffs² argue that the ZBA erred by (1) reviewing the initial denials by the Codes Enforcement Officer (CEO) under a de novo review rather than an appellate standard of review; (2) concluding that the remnants of a bunkhouse located on the property do not constitute a nonconforming structure, which can be replaced under § 2.3.3 of the Town of Winthrop Zoning Ordinance (the Ordinance); (3) concluding that a proposed tent platform is subject to shorelinesetback requirements; (4) not considering the plaintiffs' request to build a temporary screen house on the property; and (5) denying a variance request either to rebuild the bunkhouse or build a tent platform. For the following reasons, the decision of the ZBA in the administrative appeal is affirmed and the variance appeal is remanded for further proceedings consistent with this decision.

Factual and Procedural Background

Plaintiffs Kathleen Parker and her brother Spelts H. Parker, Jr. purchased Frog Island on Cobbosseecontee Lake in Winthrop, Maine in March 2009. (R. at 11.). Frog Island measures approximately 205 feet north to south and 83 feet east to west at its widest point. (R. at 3.). The entire island falls within the Ordinance's definition of a shoreland zoning district and is subject to a 100-foot shoreline setback requirement. (Ord. § 3.3.).

At the time of the purchase, the property included a concrete hearth with brick fireplace and chimney. (R. at 3, 9.). The fireplace was functional in May 2008, but was damaged between June 2008 and April 2009. (Id. at 9, 22, 63.). The site of the fireplace includes concrete footers that are partially buried in the ground and that show the former location of a bunkhouse. (Id. at 3.). The building has not been listed on tax records or taxed since sometime in the 1960s. (Id. at 13, 57.).

The plaintiffs, appearing through plaintiff Dennis Tompkins, Kathleen Parker's husband and co-mortgagor on the property, applied to the Winthrop CEO for a permit to build a bunkhouse on the original footprint on 5/5/09. (Id. at 1.). The CEO denied this application on 5/11/09. (R. at 13-14.). The plaintiffs next applied for a permit to rebuild the fireplace and construct a wooden tentplatform. (Id. at 15.). The CEO issued a permit to rebuild the fireplace but denied the application to construct a wooden tent platform on 6/3/09. (Id. at 15, 24-25.).

The plaintiffs appealed the CEO's decision to the ZBA and filed a variance appeal, in which they requested a variance from the 100-foot setback requirement. (Id. at 26, 29.). A public hearing was held on 9/9/09. The ZBA affirmed the CEO's denials and denied the plaintiffs' variance request. (Id. at 68-72.). The plaintiffs' Rule 80B complaint, joined with an independent claim for declaratory relief, was filed with this court on 10/9/09.³

Standard of Review

On an appeal pursuant to M.R. Civ. P. 80B, the record is examined to determine if the Board abused its discretion, committed errors of law, or made findings that are not supported by substantial evidence in the record. Tinsman v. Town of Falmouth, 2004 ME 2, ¶8, 840 A.2d 100, 103. The substantial evidence standard requires the court to "examine the entire record 'to determine whether on the basis of all the testimony and exhibits before the [Board] it could fairly and reasonably find the facts as it did.'" Seven Islands Land Co. v. Maine Land Use Regulation Comm'n, 450 A.2d 475, 479 (Me. 1982) (quoting In re Maine Clean Fuels, Inc., 310 A.2d 736, 741 (1973)). "[T]he fact that two inconsistent conclusions can be drawn from the evidence does not mean that a Board's finding is unsupported by substantial evidence." Conservation Law Found., Inc. v. Town of Lincolnville, 2001 ME 175, ¶ 6, 786 A.2d 616, 619. To prevail on appeal, the plaintiffs must demonstrate "not only that the Board's findings are unsupported by record evidence, but also that the record compels contraryfindings." Total Quality, Inc. v. Town of Scarborough, 588 A.2d 283, 284 (Me. 1991). The burden of persuasion rests with the plaintiffs, who seek to overturn the Board's decision. Mack v. Mun. Officers of Town of Cape Elizabeth, 463 A.2d 717, 720 (Me. 1983).

Discussion

1. Role of the Winthrop Zoning Board of Appeals The ZBA reviewed the CEO's denials of the plaintiffs' applications to rebuild the bunkhouse and to build a tent platform in a de novo hearing rather than limiting itself to the materials before the CEO. (Id. at 73-109.). The plaintiffs argue that the Ordinance does not provide for de novo review and refers to these matters as "administrative appeals." (Ord. § 5.8.2.3(1).); Stewart v. Town of Sedge wick, 2000 ME 157, ¶ 4, 757 A.2d 773, 775 ("If the Board of Appeals acted as a tribunal of original jurisdiction, that is, as factfinder and decision maker, we review its decision directly. If, however, the Board acted only in an appellate capacity, we review directly the decision of the Planning Board, or other previous tribunal, not the Board of Appeals.") (internal citations omitted).

The Law Court has held that a board must conduct a hearing de novo unless the ordinance "explicitly directs otherwise[.]" Id. at f 7, 757 A.2d at 776; 30-A M.R.S. § 2691 (3)(D). The operative language of the Ordinance in this case provides that the ZBA "shall hear and decide [administrative appeals] where it is alleged there is an error in any order, requirement, decision or determination by the Code Enforcement Officer in the administration of the Ordinance." (Ord. § 5.8.2.3(1).). The Ordinance does not direct the ZBA to consider administrative appeals solely on the record before the CEO. The use of the phrase "hear and decide" in the Ordinance implies that the ZBA is to take evidence and makefactual decisions on that evidence. Id. The phrase "hear and decide" is also used to describe the ZBA's power to hear variance appeals, which are matters in which the ZBA has original jurisdiction. (Id. at § 5.8.2.3(2).); see also Stewart, 2000 ME 157, ¶ 11, 757 A.2d at 777 (a board can act as an "appellate" body yet undertake a de novo review of an application on appeal).

2. Application to Rebuild the Bunkhouse

The plaintiffs next argue that the ZBA erred by concluding that the original bunkhouse did not qualify under section 2.3.3⁴ of the Ordinance as a non-conforming structure that can be rebuilt because the structure itself did not exist within one year of the date the plaintiffs applied for a permit. (R. at 68.). Section 2.3.3 allows a non-conforming structure to be rebuilt or replaced if, among other requirements, the structure is "removed, damaged, or destroyed by more than 50 percent of the market value" and the permit is obtained within one year of the date of the incident.

The ZBA did not specify in its decision whether the bunkhouse was removed, damaged, or destroyed, but stated that the incident clearly occurred more than one year prior to the application for a permit. (R. at 68.) ("the originalbunkhouse was a non-conforming structure and did not meet the criteria for the replacement of an existing non-conforming structure because the building itself has not existed for many years and had lost the grandfathering status of the original structure.") (internal quotations omitted).

The plaintiffs argue that the bunkhouse was not "destroyed" until the vandalism that occurred between May 2008 and April 2009. Because the chimney, hearth, and footers "clearly represent a substantial, integral part of the old bunkhouse structure']" they argue, the bunkhouse was eligible for replacement for one year following the vandalism under the section 2.3.3 of the Ordinance. (Pis.' Br. at 8.).

Interpretation of the language of a local ordinance is a question of law that is reviewed de novo. Isis Dev., LLC v. Town of Wells, 2003 ME 149, ¶ 3, 836 A.2d 1285, 1287. That interpretation is guided by the "ordinance's specific object and its general structure." Lewis v. Town of Rockport, 1998 ME 144, ¶ 11, 712 A.2d 1047, 1049. "The underlying policy of zoning is to gradually eliminate nonconforming structures and uses." Lewis v. Maine Coast Artists, 2001 ME 75, ¶ 26, 770 A.2d 644, 653.

The plaintiffs theorize that although a substantial part of the nonconforming structure had been destroyed, as long as the remaining portion of the structure is still somehow usable, the one-year limit on reconstructing the entire building is tolled until the remaining portions are removed or destroyed. This interpretation is not compelled by the plain language of the Ordinance and is contrary to the Ordinance's policy of phasing out non-conforming structures. The "structure" on the plaintiffs' property was a chimney; the CEO granted a permit for reconstruction. (R. at 15.). The event necessitating reconstruction ofthe bunkhouse occurred years before the plaintiffs filed their application for a permit. (Id. at 68.).

3. Application to build a wooden tent platform

The plaintiffs next argue that the ZBA erred when it denied their application to build a tent platform at the site of the chimney. (Id. at 68.). The parties agree that this application was for a new structure on the existing land rather than any type of reconstruction or expansion of structures already existing, and they further agree that the Ordinance generally prohibits such structures within the 100-foot setback. (PL's Br. at 11.); (Def.'s Br. at 7.); (Ord. §...