Waterville Hotel Corp. v. Board of Zoning Appeals

• Decision Date: 25 April 1968
• Citation: 241 A.2d 50
• Parties: WATERVILLE HOTEL CORP. v. BOARD OF ZONING APPEALS et al.
• Court: Maine Supreme Court

Page 50

241 A.2d 50

WATERVILLE HOTEL CORP. v. BOARD OF ZONING APPEALS et al.

Supreme Judicial Court of Maine.

April 25, 1968.

Albert L. Bernier, Waterville, for appellant.

Morton A. Brody, Waterville, for appellees.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY and WEATHERBEE, JJ.

WEATHERBEE, Justice.

On report, on plaintiff's complaint, defendant's answer and an agreed statement of facts.

On February 7, 1967, the City Council of the City of Waterville enacted a provision of its zoning ordinance which zoned an area of land, including that owned by the plaintiff, for Commercial C purposes. The plaintiff's lot is a triangular one the apex of which is the intersection of Maine Street and College Avenue which form two of its sides.

On March 27, 1967, the plaintiff filed with the Building Inspector an application for a permit for construction on its lot by its proposed lessee a three-bay, ranch style filling station. A proposed plot plan accompanied the application. Although the zoning ordinance makes the Building Inspector the permit-issuing authority in most instances, it requires him to refer to the Board of Zoning Appeals all proposed Commercial C uses, and the Building Inspector did so in this case.

Among the uses permitted in a Commercial C zone by Section IV-C-a of the zoning ordinance is that of 'automobile business'. Section II defines this phrase as 'auto repair garages, gasoline service stations, car washes, machinery repair, auto sales, farm machinery sales and services, house trailer sales, and similar activities.' It is not disputed that the plaintiff's proposed use is of a type permitted in a Commercial C zone. The zoning ordinance also specifies certain development requirements for a construction such as plaintiff's and it is agreed that these were complied with.

Section IV-G states that:

'all major changes of uses of land, buildings or structures in this (Commercial C) zone shall be subject to the approval of the Board of Zoning Appeals.' (Emphasis added)

The disputed issue involves the interpretation of the italicised words.

A public hearing on plaintiff's application for a permit was had, after due notice, before the Board of Zoning Appeals, followed by two continued hearings. After the last hearing the Board denied plaintiff's application 'on the ground that the proposed use would create a traffic hazard in the context of prevailing traffic patterns on the adjoining streets.'

The parties agree that we are presented with two issues:

'1. Whether or not the Board of Zoning Appeals has the right to deny a permit for Commercial C purposes where (1) a proposed use is consistent with the permitted Commercial C use and (2) where all applicable Commercial C development requirements are complied with.

'2. Whether or not the Board of Zoning Appeals of the City of Waterville has the right to deny a permit for Commercial C use based upon considerations of traffic hazards or traffic conditions on the streets adjoining the use area.'

We are thus called upon to determine what authority the ordinance has given to the Board of Zoning Appeals as to applications for permits in a Commercial C zone.

Section VII-D-2 defines generally the powers of the Board of Zoning Appeals:

'Powers. The Board of Zoning Appeals as authorized by the provisions of Chapter 90A, Revised Statutes of 1954, as amended, shall have the powers and duties set forth below, all of which shall be exercised, subject to findings of fact and appropriate conditions, 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.'

This section goes on to grant to the Board power to hear and decide appeals from the decisions of the Building Inspector; to grant variances in certain situations under certain fully described standards; to review matters concerning conformity with permitted use and development requirements referred to it by the Building Inspector; and to hear and decide all special and general use exceptions. This subsection also requires the Board of Zoning Appeals to hear all applications for major Commercial B and Commercial C uses.

In addition, in matters involving use exceptions and in both Commercial B and C zone uses, the Board may 'prescribe conditions of use which the Board finds will not be detrimental to the neighborhood'.

We see that the only powers expressly given to the Board as a permit-issuing authority as to Commercial C uses are 1) to determine whether the use applied for is one permitted in a Commercial C zone, 2) to ascertain that the planned use complies with the development requirements of the ordinance, such as lot sizes, set-backs, yards, etc., and 3) to prescribe conditions of use which it finds will not be detrimental to the neighborhood. (As no conditions of use were prescribed here the validity of delegation to the Board of this third authority is not before us and we express no opinions concerning it.)

Do the words 'subject to the approval of the Board of Zoning Appeals' give the Board discretion to deny a permit for the type of use permitted in a zone when the development requirements have been met?

The uses allowed in a designated zone may be permitted uses or conditional uses. If the legislative body-here, the City Council-has declared the use to be a permitted one then there is no further scope for the Board's activity after the Board has established that the use is a permitted one and that development requirements have been met. The legislative body would have determined that such use could be made upon the property as a matter of right. In this case, although the language of the ordinance in creating the various use zones in the city speaks of 'Permitted Uses in Each District' (Emphasis added), the addition of the words 'subject to the Approval of the Board of Zoning Appeals' convinces us that a conditional use was intended-the condition being that the Board must approve of the particular use.

The question presented by this interpretation is: Can the city endow the Board with discretionary authority to approve or disapprove applications for permits in this manner? The legislative body may specify conditions under which certain uses may exist and may delegate to the Board discretion in determining whether or not the conditions have been met. The legislative body cannot, however, delegate to the Board a discretion which is not limited by legislative standards. It cannot give the Board discretionary authority to approve or disapprove applications for permits as the Board thinks best serves the public interest without establishing standards to limit and guide the Board.

We find that the weight of authority holds that where a zoning ordinance attempts to permit...