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BONALD L. GAPRBSECHT
STATE OF MAINE LAW LIBRARY SUPERIOR COURT
CIVIL ACTION
YORK, ss. . MAY 12 9009 ; DOCKET NO. AP-98-040
GAB-Yere- S|» Jaced
INLAND GOLF PROPERTIES, INC.,
Plaintiff
v. DECISION AND ORDER
INHABITANTS TOWN OF WELLS,
et al.,
Defendants
Pending are Plaintiff Inland Golf Properties, Inc.’s Rule 80B Appeal and
Motion for Summary Judgment. Following hearing, both are Denied.
FACTS
This case pertains to plaintiff Inland Golf Properties, Inc.’s appeal of a decision
of the Town of Wells Zoning Board of Appeals. In 1986 Ocean 18 Associates, a
developer interested in improving land for a residential golf complex, petitioned
the Wells Board of Selectman for an exemption to the Town’s Residential Growth
Ordinance. The Ordinance had been enacted in order to: “provide for a predictable
residential growth rate to enable the town to plan for and expand facilities and
services according to a comprehensive plan.” The terms of the Ordinance limited
the issuance of growth permits to any one subdivision to three per month.! Under
section 109-5.B of the Ordinance, however, an exemption could be granted with the
recommendation of the Planning Board and the approval of the Board of Selectmen
1 Planned Growth Ordinance section 109-7 B.
if the developer was willing to pay for all necessary capital improvements.? Ocean
18 was granted an exemption on January 27, 1987. Approximately two months later,
section 109-5 B was repealed. Ocean 18 never developed the property, and in 1994
conveyed the land to Inland Golf Properties, Inc. [hereinafter “Inland Golf”]. Inland
Golf, like its predecessor in interest, also intended to construct a residential golf
complex, although on a smaller scale.°
On March 4, 1998 Inland Golf requested the Town’s Code Enforcement Officer
to confirm that Inland Golf was entitled to the exemption granted to Ocean 18. On
April 1, 1998 the CEO issued a decision, stating “[I]t is our opinion that the Inland
Golf project would only be allowed to obtain permits for up to 3 new housing starts
per month, according to Chapter 109, Section 8.1.1 Residential Growth.” Inland Golf
appealed to the Town Zoning Board of Appeals, which on May 12, 1998 upheld the
decision of the CEO. Inland Golf now petitions this Court for judicial review of the
Board's decision. Inland Golf also moves for summary judgment on Count II of its
Complaint, asking this Court to hold as a matter of law that the Residential Growth
Ordinance is invalid under 30-A M.RS.A. §4356. Inland Golf additionally seeks
declaratory relief with respect to Count II of its Complaint.
2 Section 109-5 B states that these consist of “all the capital costs of improvements the Planning
Board finds the development requires, including but not limited to water, sewer, classroom space, fire
and police protection, roads, etc.” .
3 The Inland Golf development would consist of an 18 hole golf course with 122 single family
homes and 30 townhouse units. Contrast this with Ocean 18’s proposed development consisting of an 18-
hole golf course and 358 condominium units.
MOTION FOR SUMMARY JUDGMENT
The Law Court has now ruled that residential growth ordinances, such as the
one here at issue, are not invalid as a matter of law under 30-A M.RS.A. §4356;
Home Builders Association of Maine, Inc., et al. v. Town of Eliot, 2000 Me. 82, May
10, 2000. Thus, the Motion for Summary Judgment must fail.
RULE 80B APPEAL
When the decision of a governmental body is appealed pursuant to Rule 80B,
this Court independently examines the record and reviews the decision of the
zoning board of appeals for abuse of discretion, errors of law, or findings
unsupported by substantial evidence. Cumberland Farms v. Town of Scarborough,
1997 ME 11, 73, 688 A.2d 914, 915.
The Exemption is not a variance that runs with the land.
Inland Golf argues that the Town misapplied the law in failing to recognize
that the exemption granted to Ocean 18 is transferrable to Inland Golf as its successor
in interest. As support for its position, Inland Golf cites a treatise, K. Young’s
Anderson's American Law of Zoning § 20.02 at 412/-413 (4th ed. 1996). “Approvals
that run with land include ‘authorization[s] for the construction or maintenance of
a building or structure, or for the establishment or maintenance of a use of land,
which is prohibited by a zoning ordinance.” Plaintiffs Reply Brief 7 3. But this
discussion in Anderson relates to variances, not special exceptions.
A variance is “designed as an escape hatch from the literal terms of the
ordinance which, if strictly applied, would deny a property owner all beneficial use
of his land and thus amount to confiscation.” (citing authority). “A variance is
granted to render justice in unique and individual cases of practical difficulties or
unnecessary hardship resulting from a literal application of the zoning ordinance.”
Id at 411-12.
A variance would have required a finding of hardship which Inland Golf did
not demonstrate. Inland Golf never completed the form included with the zoning
board appeal application requesting information from applicants desiring a
variance; nor did it state any reasons elsewhere in that application as to why a
variance should be granted. Furthermore, Inland Golf does not argue in either of its
briefs that the original, allegedly transferrable exemption granted to Ocean 18, was a
variance based on a finding of hardship.
Inland Golf is careful to distinguish a variance, which runs with the land,
from a special exception which does not. Citing Anderson it states that “[t]he
difference between an authorization running with the land and a special exception
that may not, is that an authorization running with the land grants a dispensation
from adhering to the terms of an ordinance. In contrast, a special permit or
exception is expressly allowed in the ordinance if certain standards also included in
the ordinance are met.” Plaintiff's Reply { 3, citing Anderson at 416.17. The
exemption granted to Ocean 18 fits the treatise’s description of a special exception.
Ocean 18 was specifically required to meet special standards described in section 109-
5 B of the Ordinance. Characterizing the authorization as a special exception rather
than a variance is also more consistent with the record, where the findings of the
zoning board do not indicate that it granted Ocean 18's petition based on a showing
of hardship.
The Exemption expired five years after it was granted, pursuant to the Land Use
Ordinance.
, However, even if this Court were to conclude that the exemption is
transferrable from Ocean 18 to Inland Golf, the option to exercise the exemption was
extinguished pursuant to 178 § 8.3:6 of the Wells Town Code provision which limits
the period for beginning construction on a subdivision to five years. Even though
the Residential Growth Ordinance did not itself provide a specific expiration date,
the Ordinance is not insulated from the requirements of the Town’ s other. laws
which do have applicable expiration dates. The Growth Ordinance in effect at the
time the original exemption was granted states: “This chapter shall not repeal,
annul or otherwise impair or remove the necessity of complying with any other
Maine or Wells laws or ordinances.” Section 109-13. .
Moreover, it is unlikely that the Town would draft an ordinance that would
allow developers fortunate enough to obtain the exemption to have perpetual rights
while all others who obtained growth permits through normal channels would be
restricted to a period of use lasting only five years. This would not only result in
unfair and disparate treatment, it would also undermine the Ordinance’s stated
purpose of providing orderly growth. Thus, the entry will be as follows.
After hearing and review of the parties submissions, Plaintiff's Rule 80B
appeal and Motion for Summary Judgment are Denied.
1) The Court declares that the provisions of Defendants’ Residential
Growth Control Ordinance does not constitute a “moratorium” within
the meaning of 30-A M.R.S.A. §4956. .
2) The decision of the Town’s Zoning Board of Appeals denying Inland
Golf’s appeal is affirmed; the Ocean 18 exemption has a five year time
expiration period, does not run with the land and does not pass
automatically to Inland Golf as Ocean 18’s successor. The exemption is
in the nature of a special exception and not a variance.
The clerk may incorporate the decision in the docket by reference.
Dated: May 11, 2000
. Arthur Brennan
ustice, Superior Court
PLAINTIFF:
MATTHEW MANAHAN ESQ
PIERCE ATWOOD
ONE MONUMENT SQ
PORTLAND ME 04101-4033
DEFENDANT:
DURWARD PARKINSON ESQ
BERGEN & PARKINSON
62 PORTLAND RD
KENNEBUNK ME 04043