Phillips Petroleum Co. v. Zoning Bd. of Appeals of City of Bangor

• Decision Date: 06 January 1970
• Citation: 260 A.2d 434
• Parties: PHILLIPS PETROLEUM COMPANY et al. v. ZONING BOARD OF APPEALS OF the CITY OF BANGOR et al.
• Court: Maine Supreme Court

Page 434

260 A.2d 434

PHILLIPS PETROLEUM COMPANY et al. v. ZONING BOARD OF APPEALS OF the CITY OF BANGOR et al.

Supreme Judicial Court of Maine.

Jan. 6, 1970.

Errol K. Paine, Bangor, for plaintiffs.

Abraham J. Stern, City Solicitor, Bangor, for defendants.

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

WEBBER, Justice.

On report. This was an appeal to the Superior Court from a decision of Zoning Board of Appeals of Bangor denying a permit to construct a gasoline service station in a location zoned as a 'Local Business Zone.' The matter comes to us on an agreed statement of facts for 'such decision as the rights of the parties require.'

The zoning ordinance grants as a permitted conditional use in a 'Local Business Zone' the operation of gasoline service stations in these terms:

'(3) Gasoline service station where no major repairs or car sales are permitted, and only upon approval of the Zoning Board of Appeals.'

It is stipulated that in the instant case no major repairs or car sales would be permitted at the proposed location and therefore this condition is not a factor for consideration.

No specific standards are provided in the ordinance governing the approval or disapproval of permits for such stations in this zone. Plaintiffs therefore contend that the approval condition is unconstitutional and void under the doctrine of Waterville Hotel Corp. v. Bd. of Zoning App. (Me.1968) 241 A.2d 50. Defendants contend that the Bangor ordinance provides standards in general terms governing all actions of the Board which are adequate to satisfy constitutional requirements and which were not included in the Waterville ordinance.

In Waterville we held that general requirements that the Board act 'in harmony with the comprehensive plan for municipal development and the purpose and intent of this ordinance, in accordance with the public interest and in support and furtherance of the health, safety and general welfare of the residents of the municipality' did not constitute standards adequate to meet constitutional requirements. The general requirements found in the Bangor ordinance provide that the 'Board shall always act with due consideration to promoting health, safety, and the general welfare, encouraging the most appropriate use of land, and conserving property value, shall not permit any building and/or use detrimental or injurious to the neighborhood * * *.'

At most the Bangor ordinance adds but one dimension not found in the broad sweep of general requirements held inadequate in Waterville. That is the mandate not to 'permit any building and/or use detrimental or injurious to the neighborhood.' The difficulty stems from the fact that the ordinance by permitting the construction and operation of a gasoline service station as a conditional use within the zone constitutes a legislative determination that such stations are not ordinarily detrimental or injurious to the neighborhood within the zone. What appear to be lacking are guidelines by which a board can determine what unique or distinctive characteristics of a particular station will render it detrimental or injurious to the neighborhood when other stations in the zone are not. The danger is that broad policy statements unaccompanied by any specific standards will not effectively curtail the power to discriminate. We have found no better exposition of the problem than that stated in Rathkopf, The Law of Zoning and Planning, Vol. 2, Ch. 54. At page 54-24 it is stated:

'The power is to 'hear and decide.' If what the board is to decide is whether a particular use would be consistent with the public health, safety and general welfare and the purposes of the zoning power in a particular district this is nothing more than the legislative body determined when, by enacting the ordinance, it made such use a special exception use therein. The only point not specifically decided by the legislative body in this connection when enacting the ordinance was whether such use would be consistent with the purposes expressed in a particular location. Yet the...