Wolfram v. Town of N. Haven, Docket: Kno–16–237

• Decision Date: 06 June 2017
• Docket Number: Docket: Kno–16–237
• Citation: 163 A.3d 835
• Parties: Steven WOLFRAM et al. v. TOWN OF NORTH HAVEN et al.
• Court: Maine Supreme Court

163 A.3d 835

Steven WOLFRAM et al.

v.TOWN OF NORTH HAVEN et al.

Docket: Kno–16–237

Supreme Judicial Court of Maine.

Argued: February 8, 2017

Decided: June 6, 2017

Matthew D. Manahan, Esq., and Catherine R. Connors, Esq. (orally), Pierce Atwood LLP, Portland, for appellants Steven Wolfram and the Mullins Development Trust

Paul L. Gibbons, Esq. (orally), Camden, for appellee Town of North Haven

Thomas B. Federle, Esq. (orally), Federle Law, LLC, Portland, for appellees Nebo Lodge, Inc., and Nebo Real Estate, LLC

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.

HUMPHREY, J.

[¶ 1] Steven Wolfram and the Mullins Development Trust appeal from a judgment of the Superior Court (Knox County, Billings, J. ) affirming a decision of the Town of North Haven Board of Appeals upholding a permit issued by the Town of North Haven Planning Board to Nebo Lodge, Inc., and Nebo Real Estate, LLC. We affirm the judgment.

I. BACKGROUND

[¶ 2] In October 2013, Nebo Lodge, Inc., and Nebo Real Estate, LLC, (collectively, Nebo Lodge) filed an application for a land use permit. Nebo Lodge, which operates an inn and restaurant in North Haven, sought to tear down "the bungalow"—one of two existing structures on the property—and rebuild it as "the annex." The other structure, "the lodge," houses the inn and restaurant. The lodge was previously renovated and expanded in 2009 and 2010.

[¶ 3] In addition to increasing the size of the annex structure, Nebo Lodge proposed a change in use, including two bedrooms for staff; an office; storage for food, bikes, trash, and recycling; and a kitchen for processing, refrigerating, and freezing food. Nebo Lodge submitted a second application for a land use permit seeking authorization for "wrecking," described as a "partial tear down" that would leave a "small piece" of the previous bungalow structure intact.

[¶ 4] The Planning Board held three public hearings on October 30 and November 3 and 4, 2013. Steven Wolfram, who owns property across the street from the Nebo Lodge property, opposed the applications.¹ On November 13, 2013, the Planning Board approved the applications with conditions.

[¶ 5] Wolfram appealed to the North Haven Board of Appeals (BOA), and the BOA held hearings on March 12 and 17, 2014.² See North Haven, Me., Land-Use Ordinance § 5.5 (Feb. 16, 2010). Four BOA members recused themselves due to conflicts of interest, and they were replaced by other individuals believed to have no conflicts. The BOA accepted evidence and made factual findings. The BOA affirmed the Planning Board decision in a written decision with findings of fact and conclusions of law.

[¶ 6] Wolfram appealed to the Superior Court, contending that the BOA erred in interpreting various provisions in North Haven's Ordinance and that the permit review process violated his due process rights.³ See 30–A M.R.S. § 2691(4) (2016) ; M.R. Civ. P. 80B. The court affirmed the BOA's decision. Wolfram appealed. See M.R. Civ. P. 80B(n) ; M.R. App. P. 2.

II. DISCUSSION

A. Standard of Review

[¶ 7] "Our review of administrative decision-making is deferential and limited." Beal v. Town of Stockton Springs , 2017 ME 6, ¶ 13, 153 A.3d 768. "When a zoning board of appeals acts as the tribunal of original jurisdiction as both fact finder and decision maker,^{[4 ]} we review its decision directly for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record." Brackett v. Town of Rangeley , 2003 ME 109, ¶ 15, 831 A.2d 422. Ordinances are construed de novo. Merrill v. Town of Durham , 2007 ME 50, ¶ 7, 918 A.2d 1203. As the party seeking to vacate the BOA's decision, Wolfram bears the burden of persuasion on appeal. See Duffy v. Town of Berwick , 2013 ME 105, ¶ 13, 82 A.3d 148.

B. Ground Area Restriction for Nonconforming Structures

[¶ 8] The size of the Nebo Lodge property is less than the 20,000-square-foot minimum lot size in the Village District, which rendered the bungalow and the lodge nonconforming. See North Haven, Me., Land-Use Ordinance §§ 2.2, 2.3, 2.5, 3.3(D). Wolfram first argues that the annex exceeds the allowable expansion of a nonconforming structure pursuant to the Ordinance.

[¶ 9] "In construing the language of an ordinance, the ordinance is to be considered as a whole." Jade Realty Corp. v. Town of Eliot , 2008 ME 80, ¶ 9, 946 A.2d 408. Undefined terms are given their common meaning "unless the context clearly indicates otherwise." Id . (quotation marks omitted). Because the intent of zoning is generally to abolish nonconforming structures and uses, "zoning provisions that restrict nonconformities are liberally construed, and zoning provisions that allow nonconformities are strictly construed." Day v. Town of Phippsburg , 2015 ME 13, ¶ 15, 110 A.3d 645.

[¶ 10] Section 2.5 provides that

[a]ny structure in existence as of the effective date of this Ordinance, which becomes non-conforming solely from a failure to satisfy the area requirements of the district in which it is located, may be repaired, maintained, and improved.

North Haven, Me., Land-Use Ordinance § 2.5. Nonconforming structures "may be enlarged ... without a variance," so long as "the enlargement ... contains no more than 33% of the ground area of the grandfathered structure."⁵ Id. § 2.5(B). Here, the ground area of the annex is less than 33% larger than the ground area of the previous structure, the bungalow. Wolfram interprets section 2.5, however, to limit the total expansion of all nonconforming structures on a lot to 33% of the ground area of a single nonconforming structure. He thus interprets section 2.5 to require the Town to aggregate each expansion on the lot and to prohibit further expansion once that percentage, tied to a single nonconforming structure, has been reached. Because Nebo Lodge expanded the lodge in 2009 and 2010, and further expansion to the separate annex would, in the aggregate, exceed 33% of the original lodge's ground area, Wolfram contends that Nebo Lodge can expand no further and thus the annex violates section 2.5.

[¶ 11] Wolfram's interpretation is unsupported by the language of the Ordinance. Even strictly construed, the Ordinance clearly permits any nonconforming structure to be expanded by up to 33% of the ground area of the previous structure . Here, the annex expansion does not exceed 33% of the ground area of the structure that it replaced, the bungalow. Any expansions made to the lodge—a separate nonconforming structure—were irrelevant because section 2.5 does not prohibit the expansion of multiple nonconforming structures on a single lot. See North Haven, Me., Land-Use Ordinance § 2.5. Instead, the 33% ground area restriction applies to each individual nonconforming structure. See id. Because the property had two nonconforming structures—the annex and the lodge—each may be enlarged by up to 33% of the ground area of the structure that it replaced and comply with section 2.5. See id.

C. Willfully Destroyed Structure

[¶ 12] Wolfram next contends that the annex expansion violated section 2.6 of the Ordinance, which provides that "[a]ny non-conforming use or structure which is hereafter damaged or destroyed by fire of^{[6 ]} cause other than the willful act of the owner of his agent,^{[7 ]} may be restored or reconstructed to its original dimensions, and used as before." North Haven, Me., Land-Use Ordinance § 2.6. Wolfram interprets section 2.6 to prohibit restoration or replacement of a willfully demolished nonconforming structure and to limit any restoration or replacement to the size of the original structure.

[¶ 13] We conclude that section 2.6 does not apply to a willful demolition for renovation purposes undertaken with municipal approval. Instead, section 2.6 concerns the repair or replacement of a nonconforming structure if damaged or destroyed by a fire or cause other than the owner's willful act. See id. Wolfram's interpretation would effectively prohibit any voluntary alteration of a nonconforming structure because a renovation would necessarily require "damage" undertaken intentionally by "the owner [or] his agent." Id. More significantly, such an interpretation would conflict with section 2.5, which unlike section 2.6, directly addresses enlargements. Section 2.5 allows for expansion of any nonconforming structure, provided that the expansion does not exceed 33% of the ground area of the previous structure. See North Haven, Me., Land-Use Ordinance § 2.5(B). Because we must interpret section 2.6 in the context of the entire ordinance scheme in order "to achieve a harmonious result," Wister v. Town of Mount Desert , 2009 ME 66, ¶ 17, 974 A.2d 903, and section 2.5 expressly allows for and governs enlargements of nonconforming structures, section 2.6 does not apply to the annex.

D. Twenty Percent Lot Coverage

[¶ 14] Wolfram next asserts that the annex violates a 20% lot coverage restriction applicable to guest houses. Section 4.1, titled "Guest House," provides:

A. Only one guest house per lot

B. Will not exceed footprint of the principal structure

C. In no case shall all structures, including the guest house, cover more than 20% of a lot.

D. All other provisions of this Ordinance must be met before building a guest house.

North Haven, Me., Land-Use Ordinance § 4.1. "Guest house" is listed among the permitted structures as an accessory use to a "single-family dwelling use." Id. § 1.6. "Guest house" is not defined; the Ordinance provides that "[t]erms not defined will have customary dictionary meaning." Id. § 1.5. Webster's Dictionary defines "guesthouse" as "a small house on the same property as a larger main house, used for guests" or "a free-standing hotel unit, often like a cottage rented to guests." Webster's New World College Dictionary 631 (4th ed. 2002).

[¶ 15] "Although interpretation of an ordinance is a question of law, we accord substantial deference to the Planning Board's characterizations and fact-findings as to what meets ordinance standards." Bizier v. Town of Turner , 2011 ME...