Two Lights Lobster Shack v. Town of Cape Elizabeth, Docket No. C

• Decision Date: 17 June 1998
• Docket Number: Docket No. C
• Citation: 712 A.2d 1061
• Parties: TWO LIGHTS LOBSTER SHACK v. TOWN OF CAPE ELIZABETH et al. um-97-30.
• Court: Maine Supreme Court

Page 1061

712 A.2d 1061

1998 ME 153

TWO LIGHTS LOBSTER SHACK v. TOWN OF CAPE ELIZABETH et al.

Docket No. Cum-97-30.

Supreme Judicial Court of Maine.

Submitted on Briefs Sept. 19, 1997.

Decided June 17, 1998.

Patrick J. Scully, Bernstein, Shur, Sawyer & Nelson, P.C., Portland, for plaintiff.

Michael H. Hill, Monaghan, Leahy, Hochadel & Libby, Portland, for Town of Cape Elizabeth.

Harold C. Pachios, Preti, Flaherty, Beliveau & Pachios, L.L.C., Portland, for intervenor Wayne Brooking.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

RUDMAN, Justice.

¶1 Two Lights Lobster Shack, Inc. ("The Lobster Shack"), a Cape Elizabeth restaurant, appeals from a judgment entered in Superior Court (Cumberland County, Mills, J.) affirming the decision of the Cape Elizabeth Zoning Board of Appeals. The Lobster Shack contends that the board and the court erred as a matter of law by concluding that the proposed use of the area created by the proposed foundation would constitute an impermissible extension of a nonconforming use pursuant to the Cape Elizabeth zoning ordinance. We disagree and affirm the judgment.

¶2 The Lobster Shack is located in both the Residential A ("RA") Zone and the Shoreland Performance Overlay Zone ("Shoreland Zone") as defined by the town's zoning ordinance. Restaurants are not permitted uses in the RA Zone and the building in which the Lobster Shack operates does not meet the applicable setback requirements. Thus, the use and the structure are nonconforming pursuant to the terms of the applicable zoning ordinance.

¶3 The Lobster Shack sought approval from the Town to construct a foundation beneath the restaurant, thereby creating a basement where only a crawlspace existed previously. ¹ The stated purposes of the construction were to protect the structural integrity of the building and to provide additional storage space for the business. The Town's code enforcement officer determined that the construction project required board approval. The Lobster Shack submitted its application to the board and alternatively applied for a variance for the proposed project.

¶4 After public hearings in May and June 1996, the board issued a written decision with findings of fact denying both the permit application and the variance application. The board reasoned that, although the proposed foundation would not create a prohibited expansion of use pursuant to the Shoreland Zone requirements, the proposed use would constitute "an extension of a nonconforming use" pursuant to the Town's generally applicable nonconforming use restrictions because "the resulting basement was not manifestly designed for such use before the enactment of the ordinance or any amendment making the present use nonconforming." ² The board also concluded that the land could yield a reasonable return without a variance and thus denied the variance application. The Superior Court affirmed the board's decision and this appeal followed. ³

¶5 The meaning of terms or expressions in a zoning ordinance is a question of law for the court. Oliver v. City of Rockland, 1998 ME 88, p 8, 710 A.2d 905 (citations omitted). When the Superior Court acts as an appellate court, we independently examine the record and review the board's decision for an abuse of discretion or an error of law. Cumberland Farms, Inc. v. Town of Scarborough, 1997 ME 11, p 3, 688 A.2d 914, 915. When factual findings are made adverse to a party with the burden of proof, we will reverse them only when the record compels a contrary conclusion. Gillespie v. Town of Southwest Harbor, 675 A.2d 501, 503 (Me.1996). Guiding our interpretation of the Town's zoning ordinance provisions concerning nonconforming uses is our recognition that the policy of zoning generally is to "abolish nonconforming uses as speedily as justice will permit" and thus "provisions of a zoning regulation for the continuation of [nonconforming] uses should be strictly construed, and provisions limiting nonconforming uses should be liberally construed." Nyczepir v. Town of Naples, 586 A.2d 1254, 1256 (Me.1991) (quotations and citations omitted).

¶6 The property of the Lobster Shack is subject to the zoning regulations of the Shoreland Performance Overlay Zone. The Shoreland Zone regulations prohibit the expansion of a nonconforming use, although, by definition ⁴, the utilization of additional basement space is specifically not considered an expansion of use. Thus, the Shoreland Zone's regulations do not prohibit either the construction of a new foundation or the use of the resulting basement area.

¶7 The Lobster Shack, however, is also subject to the generally applicable nonconforming use restrictions found in section...