Toulouse v. Board of Zoning Adjustment

Citation87 A.2d 670,147 Me. 387
PartiesTOULOUSE et al. v. BOARD OF ZONING ADJUSTMENT et al.
Decision Date02 April 1952
CourtSupreme Judicial Court of Maine (US)

H. C. Marden, Waterville, for plaintiff.

Arthur B. Levine, Waterville, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

FELLOWS, Justice.

This is a petition for the writ of certiorari made under the provisions of the Public Laws of Maine, Chapter 24, Laws of 1945, Revised Statutes 1944, Chapter 80, new Section 88-A. The petition for the writ was fully heard by the presiding Justice of the Superior Court in Kennebec County. The petition was granted and the writ ordered to issue directed to the Board of Zoning Adjustment as a board of appeal. The case comes to the Law Court on exceptions to the order of the Superior Court for the writ to issue.

The facts found by the Board of Zoning Adjustment and recognized by the court on granting the petition for the writ of certiorari, are these: The property in question is located on the Oakland Road in Waterville, and was owned in 1949 by a Mrs. Connell. Her husband, with her permission, had previously erected a poultry house on the premises in 1947 and conducted therein the business of raising chickens until in December 1948, when the building ceased to house poultry, although the premises continued to be used for the poultry business. Mr. Connell, with the consent of Mrs. Connell, sold the poultry house on March 29, 1949, and it was removed from the premises. At that time Mr. and Mrs. Connell separated, and Mrs. Connell instituted divorce proceedings. She obtained her divorce in June 1949 and immediately thereafter, on June 16, 1949, sold the premises to Henry F. Toulouse, the petitioner. On December 19, 1949 these petitioners applied to the Building Inspector for a permit to construct a few poultry house upon the premises and for permission to use the premises for conducting a poultry business. The building to be erected to be slightly smaller than the one previously used. On December 22, 1949 the Inspector of Buildings for the city of Waterville granted the permit asked for by Mr. Toulouse. An appeal from the action of the Building Inspector was taken by one Lacombe and interested parties, to the Board of Zoning Adjustment, which Board on February 13, 1950 sustained the appeal and denied the permit. The pending petition was filed on March 14, 1950 with the Superior Court asking for writ of certiorari to order the Board of Zoning Adjustment to certify its records relating to the application for the permit that 'they may be presented to this Court to the end that the same, or as much thereof as may be illegal may be quashed or modified in whole or in part.' Upon hearing on this petition, asking for the writ of certiorari, the court ordered the writ to issue, and the pending exceptions were taken to the order.

The Zoning Ordinance of the City of Waterville was enacted in 1948, and it is conceded that the zoning map places these premises in a restricted residential zone. The ordinance provides that the Inspector of Buildings, in the first instance, has authority to grant, or to refuse, a permit to construct any type of building in the City of Waterville, with the right of appeal to the Board of Zoning Adjustment. The statute provides that from the decision of the Board of Zoning Adjustment (after appeal from the Inspector of Buildings) any person aggrieved may petition the Superior Court, setting forth the claims of illegality in the action of the Board of Zoning Adjustment, and the Court 'may allow a writ of certiorari directed to the board of appeals.' Revised Statutes 1944, Chapter 80, new section 88-A, Public Laws 1945, Chapter 24, Section 4.

Section 5 of the Zoning Ordinance of the City of Waterville, now in question here, provides as follows:

'Non-Conforming Uses

'Section 5. Any lawful use being made of a building or premises, or part thereof, existing at the time of the adoption of this ordinance, or any amendment thereto, may be continued, although such use does not conform with the provisions hereof. Such building is hereby defined to include a building erected or replaced within one year from the time of loss, destruction or removal of such building, unless the Board of Zoning Adjustment shall find that the delay in restoration or replacement has been due to the unavailability of materials or labor, or both, in which case the Board may grant up to one additional year in which to restore or complete such building. Except as herein provided, if any non-conforming use of buildings or premises is discontinued for a period of one year such use shall be considered abandoned and any future use of said buildings and premises shall be in conformity with the provisions of this ordinance. Such use may be changed, or if in a part of a building or premises designed or intended for such use may be extended throughout such building or premises, provided that application for a permit for such change or extension shall be made to the Board of Zoning Adjustment, and provided further that the Board of Zoning Adjustment shall rule that such change or extended use is not substantially more detrimental or injurious to the neighborhood.'

In this case, the Inspector of Buildings, in the first instance as provided in the ordinance, granted a permit December 22, 1949 to Henry F. Toulouse to construct a poultry house no larger than that previously (March 29, 1949) on the premises, because the use for poultry business had not been discontinued for a period of one year. On appeal the Board of Zoning Adjustment, February 13, 1950, sustained the appeal and refused the permit on the ground that the above Section 5 should be construed and interpreted to mean that 'abandonment of a non-conforming use shall immediately render the premises subject to use only in conformity with the ordinance.'

These petitioners, Henry F. Toulouse and Grace L. Toulouse, on March 14, 1950, filed this petition with the Superior Court in accordance with said Public Laws 1945, Chapter 24, Section 4, asking for writ of certiorari, and alleging among other things, that the above conclusion to which the Board of Zoning Adjustment came is against the applicable law; the records thereof are erroneous and illegal because the predecessor in title to the property, now of the petitioners, did not abandon the use of said premises for the housing and rearing of poultry; because the use of the premises for the poultry business has never been abandoned; because under this Zoning Ordinance by its express terms, any use lawful at the time of the adoption of the ordinance might be continued although such use did not conform with the provisions of the Zoning Law; and because by the definition in the Zoning Ordinance the building for which permission to build was sought was replacing a building removed from said premises within one year.

Upon hearing on this petition for certiorari, the presiding Justice decided that although the facts might indicate an abandonment by the Connells (because of the sale and removal of the poultry house, their divorce, and subsequent sale of the real estate), that by the express provisions of the Zoning Ordinance itself, there was no legal abandonment, as the petitioners within a year from the sale and 'removal' of the poultry house sought, by the requested permit, to replace the poultry house. The presiding Justice ordered writ of certiorari to issue and to be served on the Board of Zoing Adjustment. The City of Waterville, by its City Solicitor, filed the pending exceptions to this order.

The statute, Public Laws 1945, Chapter 24,...

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