Opinion

Lewis v. Inhabs. of the Town of Rockport

Court
Superior Court of Maine
Filed
Feb 12, 2002
Status
Unpublished
On the bench
Donald H. Marden
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

TATE OF MAINE

a oe ee SUPERIOR COURT

7 CIVIL ACTION

DOCKET NO. AP-01-007

DHM- KNO- fia} 2002.

st

STATE OF MAINE Kus

KNOX; ss.

SALIM B. LEWIS,

Petitioner

Vv. DECISION AND ORDER

INHABITANTS OF THE

TOWN OF ROCKPORT .

AND THE CODE ENFORCEMENT oe

OFFICER OF SAID TOWN, DONALD L. GARBRECHT

LAW LIBRARY

Respondent

FEB 21 2002

and

MARSHA and VICTOR STEINGLASS,

Parties-In-Interest

This matter is before the court on appeal from the Rockport Zoning Board of

Appeals, pursuant to M.R. Civ. P. 80B. In his complaint, the plaintiff/appellant Salim

Lewis explains that he is an abutter to property owned by Marsha and Victor Steinglass

located on Ship Street in the Town of Rockport. He is challenging a decision by the

Rockport Zoning Board of Appeals (ZBA) affirming the Code Enforcement Officer’s

decision to issue a building permit to the Steinglasses for construction of a garage on

their nonconforming waterfront property. The plaintiff contends the decision was

arbitrary and capricious and constituted an error of law.

I. Facts and Procedural History

Marsha and Victor Steinglass acquired shorefront property in Rockport in 1973.

The property is located within the Village District (District 901) under the Rockport

Land Use Ordinance and also within the Shoreland Zone Overlay District, which

encompasses all property within 250’ of the normal high water mark of Rockport

harbor. The Steinglass property is considered a lawfully nonconforming lot by the

Town because the principal buildings that violate current setback requirements were in

existence prior to the adoption of the Land Use Ordinance in 1974. In 1986, the

Steinglasses sold a portion of their property to Salim Lewis, the appellant in this case.

Also in 1986, the Steinglasses received a building permit to construct a 3-car garage on

their property. There is dispute among the parties over whether this permit should

have been issued, but it was not challenged at the time.

In December, 1999, the Steinglasses applied for another building permit, this time

to remove the 3-car garage and construct a dwelling in its place. After a public hearing,

the ZBA approved the application! and the permit was issued on March 14, 2000.

Lewis appealed the ZBA decision in July, and a stop work order was issued following

review by the Town’s new Code Enforcement Officer (CEO). At the time of the stop

work order, the Steinglasses had removed most of the garage structure, leaving only a

concrete foundation. The Steinglasses subsequently abandoned the plan for a new

dwelling and instead applied for a permit to rebuild the garage. On November 14,

2000, the CEO issued a permit to rebuild the garage on the condition it meet the

dimensional and setback requirements of the Land Use Ordinance. Lewis appealed the

permit, but the permit was affirmed by the ZBA in February, 2001. The ZBA decision is

now the subject of this appeal. Lewis argues that the renovated garage is an

1 Victor Steinglass was the chairman of the ZBA at the time, but he recused himself from the

Board to represent himself in the presentation of the permit application.

impermissible accessory structure under Rockport’s Land Use Ordinance and that

certain conditions regarding the enlargement of a structure on nonconforming lot were

not met in this case. Specifically, he objects to the location of the garage in the “front

yard,” which he claims is prohibited by the ordinance as well as the height of the garage

(28’) which he argues increases the square footage in violation of the ordinance’s

prohibition on enlargement of a structure on a nonconforming lot.

II. Discussion

When the decision of a governmental body is appealed pursuant to Rule 80B,

this court independently examines the record and reviews the decision for abuse of

discretion, errors of law, or findings unsupported by substantial evidence. York v. Town

of Ogunquit, 2001 ME 53, I 6, 769 A.2d 172, 175; Ranco v. City of Bangor, 1997 ME 65, { 6,

691 A.2d 1238, 1239. “Interpretation of zoning ordinance is a question of law.” Lewis v.

Town of Rockport, 1998 ME 144, J 11, 712 A.2d 1047, 1049; Oliver v. City of Rockland, 1998

ME 88, J 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, Inc., 1998 ME 272, J 4, 721 A.2d 655, 657. “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 at 908.

“A court’s interpretation of an ordinance must not create ‘absurd, inconsistent,

unreasonable or illogical results.’ “ Banks, 1998 ME 272, J 4, 721 A.2d at 657 (quoting

Melanson v. Belyea, 1997 ME 150, { 4, 698 A.2d 492.

The appellant takes the position that the garage in question is an accessory

structure and that Rockport’s Land Use Ordinance (LUO) limits the location of accessory

structures to side and rear yards only. The Steinglass garage, he argues, is in the front

yard, and therefore the CEO erred when he issued the building permit. Section 302 of

the ordinance defines accessory structure as follows:

Accessory Building or Structure: A subordinate building or structure or a

portion of the main building the use of which is incidental to that of the

main or principal building.

e+ + %

In all districts, accessory buildings or structures, including, but not limited

to woodsheds, garden sheds and tool houses, may be placed within the

side or rear yards under the following conditions:

1. Total ground coverage shall not exceed 150 square feet.

2. Building height shall not exceed 8 feet.

3. The building shall not be used for storage of flammable liquids

or gases of more than 5 gallons.

4. No portion of the building shall be placed closer than 6 feet from

the property line.

5. More than one accessory structure under these criteria is

prohibited.

The appellant maintains that this definition means accessory structures can only be

located in side or rear yards and must be very limited in size. It follows, he argues, that

accessory structures are not allowed in the front yard. As “front yard” is not specifically

defined in the ordinance, he constructs his definition of front yard from the setback

definitions contained in section 302:

Setback, Front (Front Yard): The distance measured from the edge

of pavement to the nearest part of any principal or accessory structure

provided that along Routes 1, 17 and 90 such distance shall be measured

from the edge of the State right-of-way.

Lewis maintains this definition “freezes” the front yard as soon as a structure has been

constructed on the lot and prevents any other structure from being erected between

the first structure and the street. Based on this front yard restriction, he claims the

original Steinglass garage built in 1986, was illegally constructed in the front yard and as

such, can never be considered a legally nonconforming use. As the newly permitted

Steinglass garage is located in the same location as the prior structure, between the

principal structure and the street, the appellant contends that it falls within the

ordinance’s definition of front yard, and is therefore unlawful as well.

The Steinglasses rely on the doctrine of estoppel to preclude the Town from

rescinding a building permit upon which they have reasonably relied to their detriment.

They contend they reasonably relied on the 1986 building permit in constructing the

original garage and relied again on the March, 2000 permit in deconstructing the garage

to build a dwelling. The appellant contends the Steinglasses abandoned any claim of

estoppel when they voluntarily tore down the garage. Lewis Brief, p. 18, n. 8.

Ordinarily it is essential to the right to a nonconforming use that the use commence

before the restriction upon it became effective. See, e.g., Shackford and Gooch, Inc. v. Town

of Kennebunk, 486 A.2d 102 (Me. 1984). A party cannot simply by erection of buildings

in violation of a zoning restriction establish a legal right to a nonconforming use. This

case is distinguishable however in that the original Steinglass garage was not simply

erected in bold violation of the ordinance; it was built based in reliance on a uncontested

building permit. This court finds the 1986 was not challenged at the time of its issuance

and therefore cannot be considered “issued in error” now.

There is no dispute here that the Steinglass garage is an accessory structure

under the ordinance. Steinglass Brief, p.5. However, the appellant’s interpretation of

the ordinance as barring all accessory structures from front yards amounts to a

somewhat strangled reading of the law. Read in its proper context, the provision above

regarding placement of accessory structures in side or rear yards operates as an

exception to the setback requirements normally imposed on side and rear property

lines. In District 901 where this property is located there is a 10’ side and rear setback

requirement and a 20’ front setback requirement. Rockport LUO, section 901.4. The

provision above allows a single accessory structure that meets the prescribed

dimensional requirements to be located in a side or rear yard within 6’ of the property

line, thereby providing an exception to the 10’ setback requirement. Any other reading

of the ordinance would result in absurd conditions. No property owner in Rockport,

whether her home was located 30’ or 3000’ away from the street, would be permitted

to construct an accessory structure between her home and the street and furthermore,

any accessory structure she would be permitted to build would scarcely house a

lawnmower, much less an automobile. The Law Court has consistently ruled that

zoning ordinances should be interpreted so as to avoid an absurd or unreasonable

result. See, e.g. Lippman v. Town of Lincolnville, 1999 ME 149, { 5, 739 A.2d 842, 843; Banks

v. Maine RSA #1, Inc. , 1998 ME 272, J 4, 721 A.2d 655, 657. Accordingly, this court finds

no error in CEO’s permitting the building of a new garage on the same footprint of the

previous garage in the front yard of the Steinglass property.

Turning from the placement of the garage to its dimensional elements, the

appellant argues that the garage is not permitted on a non-conforming lot under the

Rockport LUO.. The building permit lists the height of the new garage as 28 feet, which

is higher than the previous structure, and the appellant maintains this enlargement is

barred by section 501.2 of the LUO unless certain conditions are satisfied. Section 500

of the ordinance deals with general issues of nonconformance. Section 501.2 reads:

A structure built on a lot prior to the enactment of this ordinance,

which lot does not conform to lot size or lot frontage, may be repaired,

maintained, or improved and may be enlarged, in conformity with the

applicable space and bulk requirements other than minimum lot area or

lot frontage. if the proposed enlargement of a structure(s) cannot meet

the applicable space and bulk requirements, a variance shall be required

from the Zoning Board of Appeals (see Section 800 - District Standards)”

The requisite conditions are not met here, he argues, because the structure was not

built prior to the enactment of the ordinance, nor is it being “repaired, maintained,

improved or enlarged.” Instead he contends it is being “replaced,” which is not a

permitted activity.

The Town maintains that the Steinglass lot falls not only within the general

provisions of the LUO, but also under the Shoreland Zoning Overlay District and, as

such, is governed by its nonconformance section, rather than section 501.2 of the LUO.

In the Shoreland Overlay District, nonconforming lots may be built upon as long as all

the conditions of the LUO are met with the exception of lot size and frontage. Section

1412.5 (1) of the Shoreland Zoning Overlay District provides:

Non-conforming lots: A non-conforming lot of record as of the

effective date of this Ordinance or amendment thereto may be built upon,

without the need for a variance, provided that such lot is in separate

ownership and not contiguous with any other lot in the same ownership,

and that all provisions of the Ordinance except lot size and frontage can be

met. Variances relating to setback or other requirements not involving

lot size or frontage shall be obtained by action of the Zoning Board of

Appeals.

The Steinglass garage meets the dimensional requirements of District 901; the

maximum building height does not exceed 34 feet, the structure is located more than 10

feet from side and rear lot lines and more than 20’ from the front yard edge of

pavement.*

2 See Town of Rockport Building Permit, issued 11/14/00, listing side yard setbacks as 18’ and

16’ and building height as 28’; see Steinglass brief, p. 7 listing setback from Ship Street as approx. 50’.

The appellant also urges the court to apply section 502.1 of the LUO? which

prevents the enlargement of a structure with respect to existence of a nonconformity.

In other words, if the original Steinglass garage was in violation of the applicable height

requirement, the replacement garage could not exceed the height of the prior structure.

There is no evidence in the record to support the appellant’s contention. The only

nonconformity alleged by the appellant concerns the location of the structure in the

front yard; there is no evidence that the original garage violated the ordinance’s

dimensional requirements. Accordingly, section 502.1 is inapplicable to the Steinglass

building permit.

This court is satisfied that the Rockport ZBA, based on the entire record, could

fairly and reasonably affirm the issuance of the November, 2000 building permit to the

Steinglasses for the reconstruction of a garage.

3 Section 502.1 reads, in relevant part:

(1) Except as otherwise provided herein, a structure lawfully in existence as of the effective

date of this amendment, that does not meet the height, yard, or setback restrictions of Section 900 and

Section 1400, may be repaired, maintained, improved, or replaced, as set forth in this section. it may be

modified and/or accessory structures may be added to the site without a variance provided that:

a. The resulting structure or structures do not exceed the height restrictions of the

district in which the structure or structures are located.

+ e Ee

c. There shall be no increase in the nonconformity of a structure, except that a lawfully

non-conforming structure may be expanded in ground floor area by 500 square feet of the

portion of the structure that was lawfully nonconforming as of the date of this

amendment of the Ordinance, and provided that the resulting structure or accessory

structure is no closer to the front, side, or rear lot line, or higher than the existing

structure with respect to which the nonconformity exists. . . .

III. Conclusion

Therefore, for all the reasons above, the entry shall be:

The decision of the Rockport Zoning Board of Appeals is AFFIRMED.

Dated: February_@ , 2002 pe

Donald H. Marden

Justice, Superior Court

. 4 -O1-

Date Filed /5/01 Knox Docket No. AP-01-007

County

Action 80B Complaint

THE INHABITANTS OF THE TOWN OF ROCKPORT ,MAINE

and “

THE CODE ENFORCEMENT OFFICER OF SAID TOWN ,

and Parties-in-Interest

SALIM B. LEWIS vs, MARSHA STEINGLASS and VICTOR T. STEINGLASS

Plaintiff's Attomey Defendant’s Attorney

Matthew D.. Manahan, Esq. Paul L. Gibbons, Esq. (Town of Rockport)

Jothan D. Pierce, Jr., Esq. PO Box: 616

One Monument Square Camden ME 04843

Portland ME 04101-1110 236-3325

791-1100 Mary Platt Cooper, Esq. ,

Rendle A. Jones, Esq. (Steinglasses)

PO Box 190

Camden ME 04843

236-8836

Date of

Entry

4/9/01 On 4/5/01, Complaint for Review of Governmental Action and Summary Sheet

filed by Attorneys Manahan and Pierce.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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