The opinion
STATE OF MAINE SUPERIOR COURT
HANCOCK, ss. CIVIL ACTION
DOCKET NO. AP-01-6
TOWN OF SWAN’S ISLAND,
F. EDWARD SCHWABE, JR.,__+) a
)
Petitioner ) POND GAR
) ORDER IBRARY
v. )
) NOV 19 20
)
)
)
Respondent
Pending before the Court is F. Edward Schawbe’s (“Petitioner”) Petition for Review of
the Town of Swan’s Island Planning Board’s (the “Board”) decision denying the
Petitioner’s application for a shoreland-zoning permit. Daniel A. Pileggi, Esq., for the
Plaintiff, James E. Patterson, Esq., for the Defendant. For the following reasons this
matter is remanded to the Board for Findings of Fact and Conclusions of Law.
Background
The Petitioner owns a home and real estate located at 54 Rowe Road in the
Toothacher Cove area of Swan’s Island. A stone wall surrounds the home on two sides.
One of the walls is adjacent to a ten-foot wide, one-lane gravel road that crosses the 4.3
acre property. (See attached) The Petitioner’s entire home is within sixty feet of the
centerline of the gravel road.
Section 17(G)(2) of the 1990 Swan’s Island Shoreland Zoning Ordinance (as
amended through 1995) (the “Ordinance”) subjects all structures to a sixty (60) foot
setback from “the centerline of the traveled way of all roads open to the public”. Section
8(C)(1) of the Ordinance provides that 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 does not increase the non-conformity of the structure.”
On or about May 25, 2001, the Petitioner applied for a shoreland zoning permit to
expand his home. The Board denied the Petitioner’s application and found “the entire
structure is non-conforming in it’s [sic] setback from the centerline of the public traveled
right-of-way. Therefore, any further expansion in the direction of the gravel road would
increase the structure’s non-conformity.” The Petitioner requested an administrative
appeal and the Swan’s Island Board of Appeals (“BOA”) reviewed the decision, viewed
the site, conducted a public hearing and denied the Petitioner’s appeal due to the
proposed structure’s distance from the gravel road. The Petitioner then filed the present
Petition for Review.
Arguments
The Petitioner argues the Board improperly denied his application for a shoreland
zoning permit. The Petitioner first contends the setback does not apply because the
gravel road is not a traveled way open to the public. The Petitioner argues that the record
contains no evidence indicating the gravel road is open to the public.
If the setback does apply, the Petitioner argues that he would not be increasing the
structure’s non-conformity because the expansion would not extend beyond a stone wall
located on the property or a fenced walkway attached to the house. The Petitioner asserts
that the Board failed to consider any evidence relating to the status of the gravel way or
the stone wall or walkway and therefore their decision is not supported by substantial
evidence in the record.
Finally, the Petition argues if the setback does apply to this situation, it constitutes
an unconstitutional interference with private property.
The Town contends that the Petitioner was the only party with the ability to
present evidence to the Board on the status of the gravel road. The Town argues that the
Petitioner offered no evidence, nor did he request the Board obtain any.
On the merits, the Town states that the Legislature mandated zoning for all
property located within 250 feet of the normal high water mark of any salt-water body. 38
MLR.S.A. 8435, 438-A(1). Municipalities must enact shoreland zoning ordinances that
are consistent with the Board of Environmental Protection’s land use guidelines. Id. The
guidelines must include provisions relating to structure size and setbacks and the
Commissioner of the Environmental Protection must approve the ordinances. The Town
argues that the Petitioner offers no evidence supporting his claim that towns may only
enact setback requirements from public roads. The Town contends that the Ordinance
applies if the gravel way is a public way or a private way open to the public. The Town
contends there is ample evidence to support the Board’s finding that the gravel way falls
into one of those categories.
Discussion
Standard of Review
Courts review a municipality’s decision for errors of law, abuse of discretion, or
findings not supported by substantial evidence in the record. Griffin v. Town of Dedham,
2002 ME 105, 96, 799 A.2d 1239. The BOA acted in an appellate capacity pursuant to
the Ordinance and therefore the Court reviews the Board’s decision directly, not that of
the BOA. Stewart v. Town of Sedgwick, 2000 ME 157, 94, 757 A.2d 773.! This case
deals with the interpretation and application of a zoning ordinance. Interpretation of a
zoning ordinance is a question of law that the Court reviews de novo. Id. Courts defer to
a municipality’s interpretation of an ordinance it administers, and uphold interpretations
unless the statute or ordinance clearly compels a contrary result. Id. However the
municipality’s interpretation is not conclusive or binding. Id. Courts interpret an
ordinance "by first looking at the plain meaning of the language to give effect to
legislative intent." Id (quoting Clarke v. Olsten Certified Healthcare Corp., 1998 ME 180,
{6, 714 A.2d 823, 824). Courts construe undefined terms in an ordinance reasonably with
regards to the legislative intent and general structure of the ordinance. Id. The Petitioner
urges the Court to strictly construe the ordinance in question because zoning ordinances
are in derogation of common law. Town of Waterboro v. Lessard, 287 A.2d 126, 129
(Me. 1972). However, the Court may not use this principle of construction to defeat a
reasonable interpretation designed to give effect to legislative intent. Town of Union v.
Strong, 681 A.2d 14, 18 (Me. 1996).
Nature of the Gravel Road
The record indicates the Board decided, based on a conversation with Selectman
Dexter Lee, the gravel way was a “public traveled right of way and subject to a 60 foot
setback from the centerline of the road.” Town of Swan’s Island Planning Board
Meeting, Minutes-June 14. The only evidence the Board had before it was the
* The Town contends the BOA conducted a hearing de novo. In that case the Court would review
the decision of the BOA directly. However, the Ordinance requires the BOA to review the record
of the Board and only overturn the Board’s decision if it was clearly contrary to specific
provisions of the Ordinance. Section 18(C)(3). Therefore the BOA was acting as an appellate
tribunal and was not free to evaluate the evidence on the merits. Griffin v. Town of Dedham,
2002 ME 105, 6, 799 A.2d 1239; Stewart v. Town of Sedgwick, 2000 ME 157, 94, 757 A.2d
773.
Petitioner’s application, which included a drawing indicating a deeded private right of
way across his property. It is unclear from the record how the Board reached their
decision as to the applicability of the required setback and status of the road. The Board
contends the Ordinance applies to public ways and private ways open to the public. The
Board does not explain this interpretation nor do they determine what category the gravel
way falls into.
The Court reviews the record to determine if the municipal board reached a
decision supported by substantial evidence. Griffin, 2002 ME 105, ¥6. If the record and
the Boards findings are insufficient to permit meaningful review, the court may remand
the matter to the Board for further findings of fact. Christian Fellowship and Renewal
Center v. Town of Limington et al., 2001 ME 16, { 14-18, 769 A.2d 834, 838-40. The
record, as it exists, is insufficient for judicial review. It is unclear what Selectman Lee
discussed with Board, and from what basis he formed his opinion. A remand to the Board
for a finding of facts explaining when the Ordinance applies, what category the gravel
way fits into, and the basis for their decision, would allow for further judicial review.
Without a sufficient record to review the Court is in danger of ‘judicial usurpation of
administrative functions”. Christian Fellowship and Renewal Center, 2001 ME 16, (15,
(citing Gashgai v. Bd. of Registration in Medicine, 390 A.2d 1080, 1085 (Me. 1978)).
Stonewall and Walkway
If the Ordinance does apply to the gravel way on the Petitioner’s property the
record contains insufficient evidence regarding the effect the stone wall and the walkway
have on the structure and its noncompliance. Section 8(C)(1) of the Ordinance states 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 does not
increase the non-conformity of the structure.” The Petitioner contends the stone wall
and/or the walkway are structures connected to the main structure and therefore as long
as any additions do not expand the house beyond the boundaries established by the wall
or walkway he would not be increasing the non-conformity of the house. The Ordinance
defines structure as follows:
Anything constructed or erected with a fixed location on or in the ground, or
attached to something having a fixed location on or in the ground, exclusive of
fences, and flagpoles including but not limited to: buildings, mobile homes, radio
and television receiving and sending equipment, walls, billboards, signs, piers,
floats; anything build for the support, shelter, or enclosure of persons, animals,
goods, or property of any kind.
However, the Board did not consider any evidence relating to the wall or walkway and its
effect on the expansion of the structure. It is unclear why the Board did not consider the
definition of structure as it relates to the walkway and stone wall and why the Board did
not consider the provision for allowing expansion of non-conforming structures. The
record is insufficient for judicial review. If the record and the Board’s findings are
insufficient to permit meaningful review the court may remand to the Board for further
findings of fact. Christian Fellowship and Renewal Center, 2001 ME 16, { 14-18.
Constitutionality
The Petitioner contends if the Board applies the setback to the gravel way, it
would amount to an unconstitutional interference with his property rights. The Petitioner
acknowledges the Town’s authority to enact zoning ordinances, however applying the
setback provision to the gravel way is an unreasonable interference with his property
rights. The Town argues the Petitioner needed to join the Attorney General and his
failure to do so prevents him from bringing the claim. The Petitioner states he is only
challenging the application of the Ordinance, not the Ordinance itself, and therefore
joinder is unnecessary. Due to the insufficient record for review it is not clear the Court
needs to address the Constitutional questions at this time. Widewaters Stillwater Co.,
LLC, v, Bangor Area Citizens Organized for Responsible Government, 2002 ME 27, {11,
790 A: 2d 597.
THE DOCKET ENTRY IS:
The Town of Swan’s Island Planning Board’s decision is remanded to the Board
for full findings of fact and conclusions of law in accordance with this Order. The
Court retains jurisdiction over this matter pending the Board’s action.
FILED &
ENTERED
NOV 12 2002
SUPERIOR COURT
HANCOCK COUNTY
Dated: //-°S Oo”
AD 26
ef Superior Court
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