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STATE OF MAINE
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SUPERIOR COURT ~
rpiis Docket No. AP-01-16 LS
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ERNEST and SHIRLEY FIELDER,
Plaintiffs,
Vv. ORDER ON 80B APPEAL
TOWN OF RAYMOND and
JOHN COOPER
Defendants.
FACTUAL BACKGROUND
The record before the Court demonstrates the following facts. The plaintiffs,
Ernest and Shirley Fielder (the “Fielders”), own and reside in a house adjacent to
Sebago Lake in Raymond, and located in a shoreland zoning district known as the
“Limited Residential/ Recreational I District.” Because of the home’s location, its
zoning is governed by the Town of Raymond Shoreland Zoning Ordinance (the
“Ordinance”), which requires homes in this district to be a minimum of one
hundred feet from the normal high-water line of the lake. RAYMOND, ME.
SHORELAND ZONING ORDINANCE, § 15 (A)(3)(d). The Fielders’ house was built prior to
the enactment of this setback requirement, and does not conform to it. Attached to
the house is a deck also built prior to the adoption of the setback requirement. At its
closest point, the deck is located only thirty-seven feet from the high-water line of
the lake. The deck currently has a partial roof over it, but the roof does not extend to
the edge of the deck.
The Fielders filed an application with Raymond’s Code Enforcement Officer,
John Cooper (“Cooper”), for permission to fully enclose the deck. Cooper denied the
application because he concluded that by enclosing the deck, the Fielders would be
bringing the house closer to the lake, in violation of the Ordinance.
On December 26, 2000, the Fielders appealed Cooper’s decision to Raymond’s Zoning
Board of Appeals (the “Board”), which held two public hearings, the first on January
29, 2001, and the second on February 26, 2001.
At the hearing on January 29, the Board heard testimony from Cooper, whose
reason for denying the permit was a long-standing interpretation of the Ordinance
not to allow people to enclose decks located within the minimum setback in a
shoreland area. One Board member stated the reasons for this interpretation:
what would happen is applicants would come in for a request to put a porch
or a deck on their property and at that time the board would - was kind of
liberal on those sort of things and we would say ok, and then 6 months to a
year later the individual would come in and say well we would like to
enclose that porch, and the board being rather liberal and wanting people to
be able to have free use of their property, we would grant that and darned if
a year after the same individuals wouldn't come in asking if they could have
a permit to put a deck off their new room.
*
As far as the extension of decks turning them into screen rooms,
screened or sunrooms, eventually goes through to turn it into a bedroom and
then further request for an application to build off those. What we were
doing was creeping closer and closer towards the lake. So at some point . ..
[we] established the policy that said as far as encroachment on the lake is
concerned, we were going to treat decks the same way as a part of the
structure, the same way as were governed by the variance requirement.
After adjourning the first hearing in order to consult with the town’s
attorney, the Board reconvened for a second public hearing on February 26, 2001. At
the end of that hearing, the Board voted unanimously to deny the Fielders’
2
application after it determined that their interpretation of the Ordinance did not
permit the enclosure of the deck.
On March 23, 2001, the Fielders appealed pursuant to MLR. Civ. P. 80B, and are
asking the Court to vacate the Board’s decision. As reasons therefor, the Fielders
state that the Board’s decision constitutes an error of law, is not supported by
substantial evidence, constitutes an abuse of discretion, and is in violation of
Raymond's Shoreland Zoning Ordinance. For the reasons discussed below, the
Board’s decision is vacated and this matter is remanded for further proceedings
consistent with this decision.
DISCUSSION
“Interpretation of a zoning ordinance is a question of law” for the Court.
Lewis v. Town of Rockport, 1998 ME 144, J 11, 712 A.2d 1047, 1049; Oliver v. City of
Rockland, 1998 ME 88, 7 8, 710 A.2d 905, 908. “A court must interpret an ordinance
by first looking at the plain meaning of the language to give effect to legislative
intent.” Banks v. Maine RSA #1, 1998 ME 272, J 4, 721 A.2d 655, 657 (citation
omitted). “The terms or expressions are construed reasonably with regard to both
the objects sought to be obtained and to the general structure of the ordinance as a
whole.” Oliver, 1998 ME 88, J 8, 710 A.2d 905. “Undefined terms should be given
their common and generally accepted meaning unless the context clearly indicates
otherwise.” Id. Additionally, “an agency’s interpretation of a statute or regulation it
regularly administers is to be granted great deference and must be upheld unless the
regulation plainly compels a contrary result.” Wright v. Town of Kennebunkport,
1998 ME 184, 7 5, 715 A.2d 162, 164 (citation omitted). An agency’s construction;
however, “is not conclusive on the Court.” Id.
Because the Fielders’ home is a nonconforming structure, any desired
expansion must meet the requirements of section 12 (C) of the Ordinance, which
states, in relevant part:
1. Expansions: A non-conforming structure may be added to or expanded after
obtaining a permit from the same permitting authority as that for a new
structure, if such addition or expansion does not increase the non-
conformity of the structure.
Further Limitations:
a. {I]f any portion of a structure is less than the required setback from the
normal high-water line of a water body .. . that portion of the structure
shall not be expanded in floor area or volume by 30% or more during the
lifetime of the structure.
x
c. No structure which is less than the required setback from the normal
high-water line of a water body .. . shall be expanded toward the water
body....
RAYMOND, Me. SHORELAND ZONING ORDINANCE, § 12 (C)(1)(a) and (c) (2000).
The Fielders argue that the Board’s interpretation of section 12 (C) to prohibit any
expansion that increases volume in the shoreland setback area contradicts the plain
language of section 12 (C) and Title 38 M.RS.A. section 439-A (4). In response, the
Board contends that when sections 12 (C)(1)(a) and 12 (C)(1)(c) conflict, as they do in
this case, 12 (C)(1){c) must control because section 7 of the Ordinance requires the
Board to use the more restrictive of the two sections. Additionally, because the
term “expanded toward the water,” as used in section 12 (C)}(1)(c), includes
expansions of volume, the Fielders are prohibited from enclosing the deck because
doing so would expand the volume of their house toward the lake.
The Fielders’ proposed expansion does not violate any of the applicable
provisions of section 12 (C) for several reasons. First, the language of section 12
(C)(1} allows the expansion of a nonconforming structure as long as the expansion
fy
does not “increase the nonconformity of the structure.” The Maine Guidelines for
Municipal Shoreland Zoning Ordinances (the “Guidelines”)! defines “increase in
nonconformity of a structure” as:
any change in a structure . . . which causes further deviation from the
dimensional standard(s) creating the nonconformity such as, but not
limited to, reduction in water body ... setback distance .... Property
changes or structure expansions which either meet the dimensional
standard or which cause no further increase in the linear extent of
nonconformance of the existing structure shall not be considered to
increase nonconformity. For example, there is no increase in
nonconformity with the setback requirement for water bodies .. . if the
expansion extends no further into the required setback area than does
any portion of the existing nonconforming structure.
06-096 CMR Ch. 1000, § 17 (2001) (emphasis added).
Under the Guidelines, an expansion of less than 30% of volume does not increase
the nonconformity of a structure when the structure is not extended toward the
water beyond the existing building footprint. The Fielders’ proposed expansion will
extend no further into the required setback area than the existing deck does now
and, hence, will not increase the nonconformity of the structure.
1. “All words in the[}] shoreland zoning ordinance provisions shall carry their customary
dictionary meanings, unless specifically defined in the Raymond Land Use Ordinance or in the ‘State of
Maine Guidelines for Municipal Shoreland Zoning Ordinances.” RAYMOND, ME. SHORELAND ZONING
ORDINANCE, § 17 (2000).
The setback for homes in the “Limited Residential/Recreational I District” is
one hundred feet for new structures, but the setback is wherever the structure is
located for preexisting structures. RAYMOND, ME. SHORELAND ZONING ORDINANCE, § 15
(A)(3)(d) (2000). Setbacks are “the nearest horizontal distance from the normal high-
water line to the nearest part of a structure... .” 06-096 CMR Ch. 1000, § 17 (2001).
The setback, therefore, is a distance; in this case, 37 feet. The 37-foot distance marks
the linear boundary beyond which the Fielders may not expand their house. The
Fielders’ proposed enlargement does not increase the nonconformity with the
setback requirement because the enlargement will not extend beyond that 37-foot
linear setback boundary. Instead, the expansion involves an increase in the volume
of the home which will reach the boundary and extend no further.
Title 38 supports this interpretation as well. The drafters of the Shoreland
Zoning Ordinance wrote the Ordinance “in accordance with the provisions of Title
38 Sections 435-449 of the Maine Revised Statutes Annotated (M.R.S.A.).”2 RAYMOND,
ME. SHORELAND ZONING ORDINANCE, § 2 (2000). Title 38 M.R.S.A. section 439-A (4)
(2001), regarding setback requirements, states:
Notwithstanding any provision in a local ordinance to the
contrary, all new principal and accessory structures and
substantial expansions of such structures within the shoreland
zone ... must meet the water setback requirements approved by
the board, except functionally water-dependent uses. For
purposes of this subsection, a substantial expansion of a building
shall be an expansion which increases either the volume or
floor area by 30% or more. This subsection is not intended to
2. “Accordance” means “agreement: conformity.” WEBSTER’S IT NEW RIVERSIDE UNIVERSITY
DICTIONARY 71 (1988).
prohibit a municipal board of appeals from granting a
variance ... nor is it intended to prohibit a less than substantial
expansion of a legally existing nonconforming structure, as long
as the expansion does not create further nonconformity with the
water setback requirement. (emphasis added).
This statute specifically allows expansions of volume to nonconforming structures,
as long as the expansion is not substantial and does not create further
nonconformity with the water setback requirement. The statute’s limitation on
expansions creating further nonconformity with, as opposed to within, the water
setback requirement indicates an intent to prohibit expansion toward the water, but
not an intent to prohibit all expansions within the setback.
This interpretation is also consistent with Lewis v. Rockport, 1998 ME 144, 712
A.2d 1047. In Lewis, Maire Coast Artists was granted a special exception to expand
and modify its art gallery. Lewis, 1998 ME 144, 12, 712 A.2d at 1048. Section 505 of
the Rockport land ordinance provided that “[u]pon approval of the Zoning Board of
Appeals, a nonconforming aspect of a lot, structure or use may be changed such that
it is less nonconforming or no more nonconforming than the existing situation.” Id.
{4n.1. The then-existing building was twenty feet higher than permissible and
encroached on the six-foot sideyard setback by less than one foot. Id. { 10, 712 A.2d at
1049. The zoning board reasoned that as long as the addition to the building would
. not encroach more than the several inches into the sideyard than it already did and
it would not be taller than the then-current height, the completed building would be
no more nonconforming than the original structure. Id. The Law Court rejected |
this reasoning, holding that to increase the square footage or volume within a
setback area is to increase the nonconformity of the structure. Id. ] 13, 712 A.2d at
1050.
Applying that holding to this case, the Board argues that Lewis supports its
contention that any modification of or addition to a building that increases the
volume of nonconforming space within the building -- even if it would not increase
the linear extent of the nonconformance -- does mcrease the building's
nonconformance. Unlike the Rockport ordinance, however, the Raymond
Ordinance expressly allows for expansion, including expansion of volume, of
nonconforming structures in section 12 (C)(1){a), as long as the expansion is less
than 30% of the total volume of the structure.
Second, section 12 (C){1)(a) specifically states that “that portion of the
structure” which is less than the required setback from the high-water line may be
expanded in volume as long as it is an expansion of less than 30%. There is no
question that the Fielders’ proposed enlargement does not exceed this limit.? More
importantly, however, this section expressly addresses the Board’s concerns.’ Not
only can a nonconforming structure be expanded up to 30%, it can only be expanded
up to 30% “during the lifetime of the structure.” In other words, once a
nonconforming structure has been expanded by 30% of its original volume, it
cannot be expanded any further during its lifetime.
3. Both the Board and the Fielders agree that the proposed expansion is one of volume. The
term “expansion,” as used in section 12 (C)(1)(c), includes an increase in the floor area or volume of a
structure. 06-096 CMR Ch. 1000, § 17 (2001).
4. See page 2.
Third, section 12 (C)(1){c) prohibits any expansion of a nonconforming
structure “toward the water body.” The ordinary plain meaning of “toward” is “in
the direction of.” WEBSTER’S II NEW RIVERSIDE UNIVERSITY DICTIONARY 1222 (1988). In
this case, the question is not whether the Fielders’ proposed expansion in volume is
in the direction of the water, but from what point does the measurement of “toward
the water body” begin. Taken in conjunction with the definitions of “increase in
nonconformity” and “setback,” the term “toward” must start fromm the linear setback
boundary, not from the structure itself. In this case, the starting point is the 37-foot
boundary. The Fielders will not expand “toward” the water unless they extend their
home closer to the lake than the 37-foot setback boundary, where the outer
perimeter of the deck lies. Because their proposed expansion remains within the 37-
foot boundary, the expansion will not violate section 12(C)(1)(c).
The entry is:
The decision of Raymond’s Board of Appeals is vacated and the matter is
remanded to the Board for further proceedings consistent with this decision.
Dated at Portland, Maine this day of October, 2001
filbol
ert E. Crowley
Justice, Superior Court
Date Filed _03-23-10
Docket No. __AP-01-16
Cumberland
Action
County
Rule 80B/80C Appeal
Ernest an Shirley Fielder
The Town cf Raymond
John L. Cooper
WS.
Plaintiff's Attorney
Natalie L. Burns Esq.
P.O. Box 4510
Portland, Maine 04112
Defendant’s Attomey
Geoffrey H. Hole, Esq. (both) 774-1200
P.O. Box 9729
Portland, ME 04104-5029
JOAN FORTIN, ESQ. (Both)
Date of
Entry
March 23 Received 03-23-01
Summary sheet filed.
Complaint for Review of Governmental Action filed.
Mar. 26 On 3-26-01. °
Briefing schedule mailed. Plaintiff's brief due 5-2-01.
March 28 Received 3-28-01.
Entry of Appearance of Geoffrey Hole, Esq. on behalf of Defendants.
April 2 Received 4-2-01,
Summons filed showing officer's return of service of 3~28-01 upon Defendant
John Cocper.
wom Summons filed showing officer's return of service on 3-28-01 upon Defendant
Town of Raymond to Nancy Yates, Town Clerk.
May 3 Received 5-3-0l:° -
Plaintiffs Rule 80B Brief filed.
cu Plaintiffs Rule 80B Record filed.
May 29 | Received 5-29-01: —
Defendants Town of Raymond and John Cooper, Brief Pursuant to Rule 80B
fileds
June 6 Received 06-06-01:
Plaintiffs’ Reply Brief filed.
Sept 7 Received 9-7-01:
Entry of appearance on behalf of Defendants by Joan Fortin, Esq.; filed.
Sept. 10 On 9-6-01.
Oral Argument held.
Court takes matter under advisement.
Crowley, J. Presiding, Electronic Recording Tape 2036, Index Nos. 6662-7312
and Tape NO. 2045, Index Nos. 0-705, Natalie Burns, Esq. for Plaintiffs
and Joan Fortin, Esq. for Defendants.