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CIVIL ACTION
STATE OF MAINE
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CUMBERLAND, 88. jy an 9. 3 a7), DOCKET.NO. AP-01-049 .
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RAYMOND WAITTE,
Petitioner
v. ORDER
DONALOL &
TOWN OF YARMOUTH LAST Le
Respondent . FEB 14 2002
Pending is Petitioner’s 80B appeal from Town of Yarmouth Planning Board’s
decision of August 8, 2001, to grant approval of an application for expansion of the
Skinner House, on Little John Island, in Yarmouth. Following hearing on February
5, 2002, the decision of the Yarmouth Planning Board Board) will be affirmed.
Facts
Mark and Evan Skinner applied to the Yarmouth Planning Board for
permission to renovate and expand their house at 163 Littlejohn Road in Yarmouth.
Planning Board Minutes (PB), 6-27-01. At its March, April, and June meetings, the
Board considered, but did not finally approve the proposal, nor its amended
versions. Agenda Item #I, PB, 6-27-01. At its June meeting, the Board approved all
aspects of the proposal, except the total allowable square footage of the expansion
which, the Board calculated, had to be reduced to 1918 square feet. PB, 6-27-01. On
July 9, the Skinners submitted a revised proposal in alleged conformity with the
square footage reduction required. Skinner Amendment to Application, 7-9-01. The
proposal was tabled at the Board’s July meeting, pending review of the June
findings. PB, 7-25-01. The Skinners submitted a second amended proposal in
August. The Board found the August proposal “substantially consistent with the
permit criteria and performance standards.” PB, 8-8-01.
Standard of review
In an 80B appeal, the Court must decide whether there was an abuse of
discretion, erroneous interpretation of the law or findings not supported by
substantial evidence in the record. Senders v. Town of Columbia Falls, 647 A.2d 93,
94 (Me. 1994). The Board’s decision will be affirmed, unless it is unlawful, arbitrary,
1
capricious, or unreasonable. Id. The Board’s findings will not be disturbed if
supported by substantial evidence contained in the record. Palesky v. Town of
Topsham, 614 A.2d 1307, 1309 (Me. 1992). Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support the conclusion.
Id. The interpretation of provisions in a zoning ordinance is a question of law for
the Court. Town of Union v. Strong, 681 A.2d 14, 17 (Me. 1996).
Discussion
The property at issue is in the Shore Overlay District. According to the
Yarmouth Zoning Ordinance, the following restrictive provisions apply to this area:
“Tf any portion of a structure is less than 75 feet from the normal high-water line of
a water body or upland edge of a wetland, the portion of the structure within 75 feet
may be expanded in floor area or volume by 30% or less, during the lifetime of the
structure.” Yarmouth Zoning Ordinance, IV.R(6)(a)(3)(a). The provision describes
“floor area” as “the sum of the horizontal areas of the floor(s) of a structure enclosed
by exterior walls, plus the horizontal area of any unenclosed decks, and porches. Id.
Raymond Waite, a neighbor, who may be considered an abutter for purposes
of this motion,! contends that, according to the ordinance, the “floor area” should be
extended to the exterior walls. The Skinners understand “floor area” to mean the
area of floor within “a structure enclosed by exterior walls,” because the phrase
“enclosed by exterior walls” modifies the word, “structure,” not floor(s). The Court
holds the Skinners’ interpretation to be valid. The ordinance contains no comma
after “structure,” that might imply “floor(s)” is to be modified by the phrase,
“enclosed by exterior walls.” Moreover, it is illogical that “floor area” would extend
to exterior walls, without space for insulation, electric circuitry, plumbing, ete.
Whereas it is logical that the ordinance apply to a structure “enclosed by exterior
walls.”
At its August 8, 2001 meeting, the Yarmouth Planning Board found the
Skinner House proposal, submitted on August 2, to “describe a residence
expansion/relocation for the existing Skinner house substantially consistent with
the permit criteria and performance standards” in the Yarmouth Zoning Ordinance
IV.R. PB, 8-8-01, Findings of Facts and Decision, 5 (emphasis added). Petitioner’s
contentions that the Skinners inappropriately included a six foot square shed in
their base calculations, and excluded some expanded floor area in the basement and
attic, are not sufficient to affect the Board’s finding of substantial compliance with
the ordinance.
1 The Law Court has determined that an individual who lives in “close proximity” to the
property at issue may be considered an “abutter.” Sahl v. Town of York, 2000 ME 180, I 9, 760 A.2d 206,
269, quoting Brooks v. Cumberland Farms, Inc., 1997 ME 203, { 8, 703 A.2d 844, 847 (stating that a
landowner directly across the street, although not sharing a common boundary, is nevertheless an
abutter for purposes of standing.)
Petitioner’s appeal to reverse the Yarmouth Planning Board’s findings on
August 8, 2001, that the Skinner House substantially complies with the Yarmouth
Zoning Ordinance for the Shoreland Overlay District, is DENIED.
Me
oland / Cole
Justice/ Superior Court
Dated: February _/}_, 2002
Date Filed 09-05-01 Cumberland
~ Docket No. AP-01-049
County
Action RULE 80B APPEAL
RAYMOND WALTE
VS.
TOWN OF YARMOUTH PLANNING &
DEVELOPMENT BOARD
MARK and EVAN SKINNER
Plaintiff's Attorney
NEAL L. WEINSTEIN, ESQ.
32 Saco Avenue, P.O. Box 660
Old Orchard Beach, ME 04064-0660
(207) 934-2173
Date of
Entry
Defendant’s Attorney
CHRISTOPHER VANIOTIS, ESQ (YARMOUTH)
PO BOX 9729 :
PORTLAND, ME 04104
774+1200
Andrew W. Sparks (Skinner's)
One Monument Way
Portland, Maine 04101