The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-99-080
PAF - yale - 6/14 laces
DAVID W. BALDWIN, et al.,
Plaintiffs oO /
ORDER ~
v. AND. BONALDL. GARBRECHT
DECISION LAW LISRARY
INH. TOWN OF BUXTON, et al., : JUN 15 2000
Defendants .
The plaintiffs David Baldwin and Debra Baldwin own real estate on Towle
Street in Buxton which abuts a non-conforming lot owned by the defendant Pamela
Ceklarz. The defendant’s non-conforming lot had a building on it in 1976 when
Buxton enacted its zoning ordinance. That building was torn down or otherwise
destroyed and was replaced in 1978 by a mobile home. A variance may have been
granted to allow the mobile home to be placed on the lot. In 1999 the Town issued a
building permit, 177E, allowing the existing mobile home to be removed and issued
a building permit, 186B, to allow a newer mobile home to be placed on the lot. The
Baldwins appealed the granting of these permits. The Buxton Board of Appeals held
a hearing, denied the appeal and this appeal to Superior Court followed. At oral
argument the plaintiffs indicated that they no longer challenge permit 177E which
allowed the removal of the older mobile home.
_ The Board issued a written decision dated September 27, 1999 relying on
Article 4, Section 4.2.E and, Section 9.6 of the Town’s Zoning Ordinance and on the
doctrines of vested rights and equitable estoppel. While the doctrines of vested
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rights and equitable estoppel are valid considerations in land use cases, the facts of
this case do not support their application to a case where a property owner wants to
replace an existing non-conforming use as opposed to where a neighbor is
requesting the removal of an existing non-conforming use. There is nothing that
the Town did around 1977 or 1978 in allowing the older mobile home to be placed
on the lot which would permit the property owner to invoke either doctrine to
allow a replacement mobile home to be brought in in 1999. See for example H.E.
Sargent, Inc. v. Town of Wells, 676 A.2d 920, 4-5 (Me. 1996) regarding equitable
estoppel and Thomas v. Zoning Board of Appeal of the City of Bangor, 381 A.2d 643,
7-8 (Me. 1978) regarding vested rights. Whether or not building permit 186B should
have been issued turns solely on the Buxton ordinance. Article 4 is attached as an
exhibit to this order and decision.
Article 4 of the Ordinance is entitled Conformance with Regulations. Section
4.1.A. Requires that “All buildings or structures hereafter erected, reconstructed,
altered, enlarged or moved and uses of premises in the Town of Buxton shall be in
conformity with the provisions of this Ordinance .. .” Section 4.2.A dealing with
Non-Conformance-Purposes allows non-conforming uses to be maintained or
repaired but makes no mention of replacement. Changes are permitted when the
change produces a less non-conforming use or a conforming use. The section
extinguishes non-conforming uses which fall into disuse for at least a year which is
consistent with the general policy of the eventual elimination of non-conforming
situations.
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Under section 4.2.C.1 extensions, reconstructions, enlargements and
structural alterations are permitted only under limited circumstances and with the
prior approval of the Board of Appeals. Regardless of whether the replacement of
the mobile home constitutes an extension, reconstruction, enlargement or
structural alteration, which is questionable, Board of Appeals approval was neither
sought nor received.
Under section 4.2.C.3, entitled Restoration or Replacement, normal upkeep
and maintenance is permitted along with repairs, renovations or modernization
which do not involve expansion of the non-conforming use or structure.
Restoration or reconstructing, which are the closet analogues to replacement of a
mobile home, are allowed if the structure is damaged or destroyed by fire or any
cause other than the willful act of the owner or his agent. This sub-section clearly
does not apply. Therefore, no portion of Article 4.2.C. supports the granting of the
building permit number 186B by the Code Enforcement Officer.
The provisions of Section 4.2.E regarding non-conforming structures will be
examined next.
While it is not entirely clear from the record whether the new mobile home
is slightly larger or the same size as the old one, there does not appear to be a
violation of 4.2.E.1 as there is not an addition or enlargement of a non-conforming
structure, as much as there is a replacement of one. The placement of a foundation
beneath the newer mobile home meets the requirements of 4.2.E.1.
OX
edo
Section 4.2.E.2 and 3 have no applicability as they deal with discontinuances
and the lack of required parking or loading space. Section 4.2.E.4 governing
relocation is also not applicable as it deals with the hypothetical case where the older
mobile home was moved to a different location on the lot and not with the actual
case where one mobile home was removed and another brought in.
The last sub-section to examine is 4.2.E.5. The first and last sentences of 4.2.E.5
have no applicability since the property is not within the Shoreland Zone or near
water. It is unclear whether the town intended the middle sentences to apply to all
buildings or just the buildings near the water. The middle two sentences read“...
In no case shall a structure be reconstructed or replaced so as to increase its non-
conformity. Any non-conforming structure which is damaged or destroyed by 50%
or less of the market value of the structure excluding normal maintenance and
repair may be reconstructed in place with a permit. from the Code Enforcement
Officer.” The first of these two sentences prohibits an increase in non-conformity but
is not a source of authority permitting reconstruction or replacement. It is merely a
limitation on any reconstruction or replacement which is otherwise permitted. The
second of the middle sentences does not apply as there was no damage or
destruction other than that remedied by normal maintenance and repair.
In reviewing these sections I cannot find a basis for the Code Enforcement
Officer, under the requirements of the Ordinance, to grant building permit 186B.
The Board of Appeals was in error in upholding the granting of that permit.
The entry is:
The decision of the Town of Buxton’s Code Enforcement
Officer to grant building permit 186B is reversed. The
permit is vacated.
Dated: June 14, 2000
PLAINTIFFS:
FREDERICK D. WILLIAMS, ESQ.
P.O.BOX 756
WINDHAM ME 04062-0756
LAWRENCE R. SAWYER, ESQ.
786 ROOSEVELT TRAIL
WINDHAM ME 04062
DEFENDANTS: TOWNOF BUXTON
ROBERT J. CRAWFORD, ESQ.
BERNSTEIN SHUR SAWYER & NELSON
P O BOX 9729
PORTLAND MAINE 04104-5029
DEFENDANT: PAMELA J. CEKLARZ
RONALD J. GRAFF, ESQ.
STEEVES & GRAFF
PO BOX 1815
STANDISH ME 04084-1815
(Saul t Lin Resacke
Paul A. Fritzsche
Justice, Superior Coun
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ARTICLE 4 - CONFORMANCE WITH REGULATIONS
4.1. Conformity.
4.1.A. All buildings or structures hereinafter erected,
reconstructed, altered, enlarged or moved and uses of premises in
the Town of Buxton shall be in conformity with the provisions of
this Ordinance. No building, structure, land or water area shall
be used for any purpose or in any manner except as permitted within
the district in which such building, structure, land or water area
is located. :
4.1.B. The regulations specified by this Ordinance for each
district shall be minimum requirements.
4.1.C. Land within the limits of a street on which a lot abuts
shall not be considered as part of such lot for the purposes of
meeting the area or setback requirements of this Ordinance.
4.2. Non-Conformance. . =
Purposes. The intent of this section is to regulate non-
conLtorming lots, uses and structures. This section intends to be
realistic so that: non-conforming vacant lots of record can be
reasonably developed; non-conforming existing structures can be
‘properly maintained or repaired; and non-conforming uses can
continue or be changed to other less non-conforming uses or to
conforming uses. When non-conforming uses fall into disuse, the
intent of these regulations is to not allow them to be
reestablished after a 12 month period of dormancy. These
regulations are designed for the betterment of the community and
for the improvement of property values. .
4.2.B. Deleted.
4.2.C. General.
4.2.6.2, Continuance, Enlargement & Reconstruction. Any use
° and, or any building, structure, or parts thereof, legally
existing at the time of the adoption of this Ordinance, or at
any time a district is changed by amendment hereafter, which
_does not conform to the requirements of this Ordinance or its
amendments may continue but may not be extended,
reconstructed, enlarged or structurally altered except as
specified below after approval of the proposed change by the
Board of Appeals. An expansion of the use shall not exceed
30% of the space in use prior to the first expansion. The
Board of Appeals in reviewing an application for an expansion
shall determine that the proposed changes are consistent with
all applicable standards contained in Section 8.2. and
Articles 10 and 11 of this Ordinance. In reviewing the
application the Board will follow the appeal procedure
contained in Section 6.3. of Article 6. including. the
provision for a public hearing. The Board may approve an
application with’ such conditions as it finds necessary to
ensure compliance with this Ordinance.
4.2.C.l.a. Expansions within Shoreland District. Legally
existing non-conforming principal and accessory structures
that do not meet the water body or wetland setback
requirements may only be expanded or altered as follows, as
long as all other applicable standards contained in this
ordinance are met: ,
4.2.C.1.a.i. Expansion of any portion of a structure,
part of a structure or entire structure within 25 feet of
the normal high-water line of a water body or upland edge
of a wetland is prohibited, even if the expansion will
not increase non-conformity with the water body or
wetland setback requirement.
4.2.C.1.a.ii. Expansion of an accessary structure that
is located closer to the normal high-water line of a
water body or upland edge of a wetland than the principal
structure is prohibited, even if the expansion will not
increase non-conformity with the water body or wetland
setback requirement. =
4.2.C.1.a.iii. For structures located less than 75 feet
from the normal high-water line of a water body or upland
edge of a wetland, the maximum combined, total floor area
for all structures is 1,000 square feet, and the maximum
height of any structure is 20 feet or the height of the
existing structure, whichever is greater.
4.2.C.l.a.iv. For structures located less than 100 feet
from the normal high-water line of a great pond
classified as GPA or a river flowing to a great pond
classified as GPA, the maximum combined total floor area
for all structures is 1,500 square feet, and the maximum
height of any structure is 25 feet or the height of the
existing structure, whichever is greater, except that any
portion of those structures located less than 75 feet
from the normal high-water line or upland edge of a
wetland must meet the floor area and height limits of
4.2.C.1l.a.iii.
4.2.C.1l.a.v. In meeting the foregoing conditions, a
basement is not counted towards floor area.
4.2.C.2. Transfer of Ownership. Ownership of lots, structures
and uses which remain lawful but become non-conforming by the |
adoption or amendment of this Ordinance may be transferred and
the new owner may continue to use the non-conforming
structure, lot or use subject to the provisions. of this
Ordinance.
4.2.C.3. Restoration or Replacement. This Ordinance allows
the normal upkeep and maintenance of non-conforming uses and
structures; repairs, renovations or modernization. which do
not involve expansions of the non-conforming use or structure;
and such other changes’ in a non-conforming use or structure as
federal, state or local building and safety codes may require.
Except within the Shoreland Zone, any non-conforming use or
structure which is hereafter damaged or destroyed by fire or
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any cause other than the willful act of the owner or his
agent, may be restored or reconstructed within two years of
the date of the damage or destruction, provided that:
4.2.C.3.a. such non-conforming structure shall not be
enlarged except in conformity with this Ordinance and the
' Maine. State Plumbing Rules and does not exceed the degree
of non-conformity existing prior to the damage or
destruction; and
4.2.C.3.b. any non-conforming use shall not be expanded
in area except in conformance with this Ordinance.
.D. Non-Conforming Use.
4.2.D.1. Resumption Prohibited: A building or structure in
which a non-conforming use is discontinued for a period
exceeding one year or which is superseded by a conforming use
shall not thereafter be used in a non-conforming manner even
if the owner has not intended to abandon the use.
4.2.D.2. A Structure Non-Conforming as to Use: A building or
structure, -non-conforming as to use, -shall not be enlarged in
any manner or direction unless the non-conforming use is
terminated except that a non-conforming single family home in
the Business and Commercial District may be expanded provided
that the expansion complies with all other regulations of the
Zone in which it is located, in addition, State laws must be
adhered to. :
A non-conforming use of part of a building or structure shall
not be extended throughout other parts of the building or
structure unless those parts of the building or structure were
manifestly arranged or designed for such use prior to the
adoption of this Ordinance or of any amendment. ,
4.2.D.3. Change of Use: An existing non-conforming use may be
changed to another non-conforming use provided that the
proposed use is equally or more appropriate to the district
than the existing non-conforming use and the impact on the
subject and adjacent properties and resources is less adverse
than the impact of the former use as determined by the Board
of Appeals. The case shall be heard as an Administrative
Appeal. — 7. .
The determination of appropriateness shall’ include
consideration of the probable changes in traffic (volume and
type), parking, noise, potential for litter, wastes or by-
products, fumes, odors or other nuisances likely to result
from such change of use. When located within the Resource
Protection or Shoreland Districts, the Board of Appeals shall
require written documentation from the applicant regarding the
probable effects on erosion and sedimentation, water quality,
fish and wildlife habitat, vegetative cover, visual and actual
points of public access to waters, natural beauty, flood plain
Management and archaeological and historic resources. The
performance standards in Articles 10 and 11 of this Ordinance
shall apply to such requests to establish new non-conforming -
uses.
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“oD 4) Use of Land: A non-conforming use of land may not be
extended into any part of the remainder of a lot of land
except as provided in Section GEC LA non-conforming use
of land which is incidental to or accessory to a non-
conforming use of a building shall be discontinued at the same
time the non-conforming use of the building is discontinued.
In the case of earth removal operations, the removal of earth
may not be extended as a non-conforming use beyond the
required set-back lines of the specific parcel upon which such
operations were in progress when such use became non- ’
conforming. Adjacent parcels in the-same or different owner-
ship shall not be eligible for exemption under the non-
conforming use provisions unless -earth removal operations
were in progress on these parcels before these provisions were
enacted.
4.2.E. Non-Conforming Struétures.
4.2.E.1. Enlargements Controlled: A non-conforming structure
shall not. be added to or enlarged except as provided in
Section 4.2.C.1. unless the addition. complies with the
regulations of the Zone in which it is located or a Variance
ig obtained. In addition, state laws must be adhered to.
Except within the Shoreland Zone, the addition of an open
patio with no structures elevated above ground level or the
addition of steps shall not constitute the expansion of a non-
conforming structure. But the addition of a deck or the
enclosure of an existing porch does constitute the expansion
of a non-conforming. structure and therefore the deck or
enclosure shall meet all the dimensional requirements
of this Ordinance. The placing of a foundation below a
lawfully existing non-conforming structure shall not
constitute ‘the expansion of the structure so long as
additional bedrooms are not located in the basement; the
structure and new foundation are placed such that the setback
requirement is met to the greatest practical extent as
determined by the Board of Appeals basing its decision on the
criteria specified in paragraph 4 below; the completed
foundation does not extend beyond the exterior dimensions of
the structure; the foundation doesnot cause the structure to
be elevated by more than three (8) additional feet; and the
first floor space of the structure is not increased.
Construction or expansion of a foundation under an existing
dwelling which expands habitable space shall be considered an
expansion and shall be subject to the State Plumbing Laws,
(Title 30-A, Maine Revised Statues Annotated, Section 4211)
requiring new soils documentation. .
4.2.E.2. Discontinuance: Discontinuance of the use of a non-
Se conforming structure shall not constitute abandonment of the
ee structure. Conforming use of the structure may be revived, at
Py any time.
4.2.E.3. Lack of Required Parking or Loading Space: A
building or structure which is non-conforming as to the
requirements for off-street parking and/or loading space shall
not be enlarged, added to or altered unless off-street parking
and/or loading space is provided to bring parking and/or
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loading space into conformance with the requirements of this
Ordinance for both the addition or alteration and for the
original building or structure or a Variance is obtained.
4.2.E.4. Relocation: A non-conforming structure may be
relocated within the boundaries of the parcel on which the
structure is located provided that the site of relocation
conforms to all setback requirements. If the site of
relocation does not conform to all setback requirements, the
Board of Appeals shall determine if the site meets the setback
requirements to the greatest practical extent. In either case
the applicant shall demonstrate that the present subsurface
sewage disposal system meets the requirements of State of
Maine Subsurface Wastewater Disposal Rules or that a new
system be inst j jance with the
: WHO Case shall a structure be re ocated in a manner
that causes that structure to be more non-conforming. In ,
determining whether the building relocation meets the setback
-to the greatest practical extent, the Board of Appeals shall
consider the size of the lot, the slope of the land, the
potential for soil erosion, the location of other structures
on the property and on adjacent properties, the location of
the septic system and other on-site soils suitable for septic
systems and the type and amount of vegetation to be removed to
accomplish this relocation.
Ta Struction’ or Replacement:
gone, any non-conforming structure which is located less than
the required setback from the normal high-water line of a
water body, tributary stream or upland edge of a wetland and
which is removed, damaged or destroyed by more than 50% of the
market ‘value of the structure before such damage, destruction
or removal may be reconstructed ox replaced, provided that a
permit is obtained within one year of the date of said damage,
destruction or removal and provided that such reconstruction
or replacement is in compliance with the water setback
requirement to the greatest practical extent as determined by
the Board of Appeals in accordance with the purposes of this
Ordinance. In no case shall a structure be reconstructed or
replaced so as to increase its non-conformity. Any non-
conforming structure. which is damaged or destroyed by 50% or
less of the market value of the structure excluding normal
Maintenance and repair may be reconstructed in place with a
permit.from the Code Enforcement Officer. In determining
whether the building reconstruction or replacement meets the
water setbacks to the greatest practical extent, the Board of
Appeals shall consider in addition to the criteria in
paragraph 4 above, the physical condition and type of
foundation present, if any.
2 4.2.P.. Non-Conforming Lots of Record.
4.2.F.1. Vacant Lots: A non-conforming vacant lot may be built
upon provided that such lot is in separate ownership and not
contiguous with any other vacant lot in the same ownership and
that all provisions of this Ordinance, except lot size and
frontage, can be met. Variance of yard or other requirements
not involving area or width shall be obtained only by action
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of the Board of Appeals.
4.2.F.2. Built Lots: A non-conforming lot that was built upon
prior to the enactment or subsequent amendments of this
Ordinance is subject to the following restrictions. The
structure(s) may be repaired, maintained or improved and may
be enlarged in conformity with all dimensional requirements of
this Ordinance. If the proposed enlargement of the
structure(s) cannot meet the dimensional requirements of this
Ordinance, a Variance shall be obtained from the Board of
Appeals.
4.2.F.3. Contiguous Built Lots: If two or more contiguous lots
or parcels are jn single or joint ownership of record at the
time of adoption or amendment of this Ordinance, if all or
part of the lots do not meet the dimensional requirements of
this Ordinance, and if a principal use exists on each lot, the
non-conforming lots may be conveyed separately or together
providing the State Minimum Lot Size Law and Subsurface Waste
Water Disposal Rules are complied with. If two or more
principal uses existed on a single lot of record on the
effective date of this Ordinance, each may be sold on a
separate lot. - ,
4.2.F.4. Contiguous Lots-Vacant or Partially Built: Subject
to applicable state and local requirements, if two or more
contiguous lots or parcels are in single or joint ownership of
record and were as of March 8, 1986 and continuously since in
the same ownership and if any of those lots do not
individually meet the dimensional requirements of this
Ordinance, ag it may from time to time be amended, guch lot or
lots if vacant or containing only an .accessory structure may
be built upon notwithstanding the failure to meet dimensional
requirements provided that each buildable lot have an area of
at least 20,000 sq. ft. The applicant for a building permit
on such a lot shall have the burden of proving to the Code
Enforcement Officer that the requirements of this section have
been met.
4.2.G. Vested Rights. Non-conforming use rights cannot arise by
the meve filing a notice of intent to build, an application for
bu ng permits or an application for required state permits and
approvals.. Such rights, arise when actual construction has begun or
-in the case of pending applications, when the review process on 4
.complete application commences. Such construction must be legal at
the time it is commenced and the owner must be in possession of and
sin compliance with all valid issued permits, both state and local.
free,