Forster v. Town of Kittery

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

YORK, ss. DOCKET NO. AP-03-68

be ~ be cr - ~O os “f i .. :

DENIS M. FORSTER and

LINDA R. FORSTER,

Plaintiffs

Vv. ORDER

TOWN OF KITTERY and

HEATHER ROSS, on

UE 12 MWe

Defendants

Before this court is Plaintiffs, Denis M. and Linda R. Forster’s (collectively

“Forster”) Rule 80B appeal of the Town of Kittery’s Zoning Board of Appeals’ (the

“Board”) determination to affirm the Code Enforcement Officer, Heather Ross’ (“CEO

Ross”) decision denying Plaintiff Forster’s application for a building permit.

FACTS

Plaintiff Forster owns waterfront property located at 110 Pepperrell Road in |

Kittery, Maine (the “property”). The property is located in Defendant, Town of

Kittery’s (“Town”) suburban residence zone, and is also subject to its shoreland zoning

regulations. The property is a nonconforming lot with a nonconforming building,

which is used as a residence.

On February 19, 2003, Plaintiff Forster submitted a building permit application to

CEO Ross. This application sought permission to construct an exterior roofed porch.

with a set of seven wood stairs leading down to the ground, and an enclosure under the

porch to be used as a tool shed. (R. Tab 1.) In addition, this proposal included a plan to

remove a 27.5’ by 7’ foot slate patio and replace it with the 6.5’ by 17’ foot porch. Id.

Tab 4 at 18. On March 4, 2003, CEO Ross denied Plaintiff Forster's building permit

application. Id. Tab 3 at 1. Subsequently, Plaintiff Forster appealed the denial to the

Board, in the from of an administrative and miscellaneous appeal.

On April 23, 2003, the Board held a hearing regarding Plaintiff Forster’s appeal.

At this hearing, Plaintiff Forster presented his testimony coupled with that of his

architect. This testimony satisfied the Board that the proposed porch would be no

closer to the high water mark than the closet point of the existing residential structure,

and thus there were no concerns voiced by the Board in regard to the setback issue.

During the hearing, however, CEO Ross, Plaintiff F orster, and the Board did recognize a

significant lot coverage issue posed by the proposed porch construction.

More specifically, Plaintiff Forster’s lot coverage prior to the request for the

building permit was 73 percent, and his building coverage was 22.5 percent, Plaintiff

Forster’s architect testified that Plaintiff Forster’s proposed porch would add an

additional 110 square feet of building coverage to the lot thereby increasing building

coverage 23.6 percent. Plaintiff Forster’s architect also testified that, because of Plaintiff

Forster's plan to remove the slate patio, the total amount of surface lot coverage would

be reduced by 82 square feet.

On May 27, 2003, after carefully considering this evidence, the Board reconvened

and voted unanimously to deny Plaintiff Forster’s miscellaneous appeal. Plaintiff

Forster did not appeal the Board’s decision.

On July 23, 2003, Plaintiff Forster filed a second request for a building permit

with CEO Ross for a deck and a set of seven steps to the ground. (R. Tab 7 at 1.) This

request was similar to Plaintiff Forster’s previous request, but it did not include the

columns, overhanging roof, and tool shed below the deck. Id. at 1-2. After reviewing

the application, CEO Ross again denied the permit request on the basis that this request

was similar to the first permit request and the Ordinance did not allow for the re-

application of a similar nature within one year. (R. Tab 22; Town of Kittery Zoning

Ordinance § 16.24.050 L.) Consequently, Plaintiff Forster filed an administrative appeal

seeking to overturn CEO Ross’s determination on the similar nature issue. Coupled

with this, Plaintiff Forster filed a separate miscellaneous appeal seeking to require CEO

Ross to approve the building of the 6.5’ by 17’ deck with seven stairs. (R. Tab 12.)

On October 14, 2003, the Board held a hearing in regard to Plaintiff Forster’s two

appeals. After considering the testimony and evidence presented, the Board

unanimously voted to deny Plaintiff Forster’s miscellaneous appeal to construct the

deck. (R. Tab 20 at 11.) Additionally, the Board unanimously denied Plaintiff Forster's

administrative appeal regarding the similar nature issue. On November 25, 2003,

Plaintiff Forster timely appealed these denials to the York County Superior Court.

DISCUSSION

This court, acting in an intermediate appellate capacity, will review the Board’s

decision “directly for errors of law, abuse of discretion, or findings not supported by

substantial evidence in the record.” Priestly v. Town of Hermon, 2003 ME 9, q 6, 814

A.2d 995, 997. The Superior Court will affirm the Board’s decision unless it is unlawful,

arbitrary, capricious, or unreasonable. Senders v. Town of Columbia Falls, 647 A.2d 93,

94 (Me. 1994). 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. With regard to the factual

determinations made by the Board, the burden is on Plaintiff to prove that based on the

evidence the board should have reached a contrary conclusion. Britton v. Town of

York, 673 A.2d 1322, 1325 (Me. 1996),

A. Administrative Appeal — Similar Nature of Appeal

Defendant Town argues that the Board properly denied Plaintiff Forster’s

administrative appeal, because it was the second appeal of a similar nature within a

one-year period.

In Rule 80B appellate proceedings this Court may not substitute its judgment for

that of the Board. Brooks v. Cumberland Farms, 1997 ME 203, J 12, 703 A.2d 844, 848.

The Law Court has also held that interpretation of an ordinance is a question of law that

the court reviews de novo. Isis Dev., LLC v, Town of Wells, 2003 ME 149, J 3, 836 A.2d

1285, 1287 (citations omitted). In construing the language of a zoning ordinance, the

court takes into consideration “both the objectives sought to be obtained and the

general structure of the ordinance as a whole.” Id. (citations and internal quotations

omitted).

On July 3, 2003, CEO Ross found that “[w]hereas your application for a building

permit is significantly similar to the one submitted and denied on March 4, 2003, and

similar to the appeal denied by the Zoning Board of Appeals May 27, 2003, the permit

application is denied.” (R. Tab 10 at 1.) The Board, however, did not make specific

findings and conclusions in its written decision regarding the similar nature of Plaintiff

Forster’s appeals. In fact, the Chairman of the Board specifically stated in regard to the

administrative appeal, that “[t]hen I guess we agree at this point to proceed with an

appeal to consider the difference and not go through the analysis.” (R. Tab 21 at 5.)

d

Thus, this court finds that the similar nature of Plaintiff Forster’s appeals was not the

basis for the Board’s decision.

B. Miscellaneous Appeal

1. Did the Board Err as a Matter of Law?

Next, Plaintiff Forster argues that the Board erred as a matter of law in failing to

properly interpret and apply the lot coverage restriction found in Defendant Town's

Zoning Ordinance.

Defendant Town’s Ordinance specifically provides, in part that the “[m]aximum

building coverage” in the suburban zone can only constitute “20 percent.” (R. Tab 22:

Town of Kittery’s Land Use and Development Code Zoning Ordinance at § 16.12.050

(D)(2).) Building is defined as “any structure having a roof supported by columns or

walls and intended for the shelter, housing or enclosure of persons, animals or

property. Each portion of a building, separated from other potions by a fire wall, is

considered a separate structure.” Id. at § 16.08.2002. Defendant Town’s Ordinance

further provides that “[t]he total area of all structures, parking lots, and other

nonvegetated surfaces within the shoreland zone shall not exceed twenty (20) percent of

the lot, or a portion thereof... “ Id. at § 16.32.490(N)(2)(f). A “[s]tructure means

anything built for support, shelter or enclosure or persons, animals, goods or property

of any kind, together with anything constructed or erected with a fixed location on fifty

(50) feet on or in the ground... The term includes structures temporarily or

permanently located, such as decks and satellite dishes.” Id. at § 16.08.020.

In the case at bar, the Board found that:

[bJecause a deck is defined as a structure, and as 16.32.490 N.2.f states that

the total area of all structures shall not exceed 20% of the lot, the Board

concluded that the deck would be adding to the structures that are

already over 20% and, therefore, the Board could not approve this

application.

(R. Tab 20 at 11.) More specifically, Plaintiff Forster’s lot is 9,977 square feet with

building coverage totaling 2,323 square feet, or 23.3 percent. Plaintiff Forster testified

that his lot also contains 7,254 square feet of structures, parking lots, and other

nonvegetative coverage, for a total lot coverage in the Shoreland Zone of 73 percent. (R.

Tab 2; Tab 18 at 24.) Therefore, Plaintiff Forster’s lot already exceeds the 20 percent

maximum coverage allowable in the Suburban Residence Zone, and the Shoreland

Zone.

In addition, Plaintiff Forster testified, however, that his elimination of an existing

slate patio would constitute a reduction in his total nonconforming lot coverage, and is

therefore permissible.

Section 16.28.100 provides that:

[t]he intent of this article is to regulate nonconforming lots, uses and

buildings. This title intends that nonconforming vacant lots of record may

be developed, maintained or repaired; and nonconforming uses may

continue, or be changed to an equal or more appropriate nonconforming

use or to a conforming use. When the nonconforming use ceases for any

reason for a period of one year or more, the intent of these regulations is

not to allow it to be reestablished.

(R. Tab 22; Town of Kittery Land Use and Development Code Zoning Ordinance at

273); see also Person v. Town of Kennebunk, 590 A.2d 535, 537-38 (Me. 1991)

(recognizing that proposed renovation of nonconforming house would not be an

impermissible extension or expansion of the floor areas, as the proposal would actually

reduce the total square footage of the floor area in the house); Rockland Plaza Realty

Corp. v. City of Rockland, 2001 ME 81, { 18, 772 A.2d 256, 262 (holding that proposed

renovations and expansions of a nonconforming parcel of land actually reduced the

nonconformity of the parcel rather than increased it).

Here, the record reflects that Plaintiff Forster’s nonconforming lot contains a

nonconforming home. The record also reflects that the removal of the slate patio with

an impervious surface area of 192.5 square feet, and the replacement of the deck with

110.5 square feet, decreases the nonconforming lot coverage on Plaintiff Forster’s

property. Therefore, this court finds that the Board erred, because this decrease in the

nonconformity of Plaintiff Forster’s property complies with the policy provisions

contained in Defendant Town’s Ordinance, as well as the Law Court’s holdings in

Pearson and Rockland Plaza Realty Corp.

Thus, the entry will be as follows:

Appeal Granted. October 14, 2003 decision of the Kittery Zoning

Board of Appeals is vacated. Building permit to issue.

Dated: July 6, 2004

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pce Spero \

Justice, Superior Court

PLAINTIFF:

F, Paul Frinsko, Esq.

BERNSTEIN SHUR SAWYER AND NELSON

PO BOX 9729

Portland Me 04104-5029

‘DEFENDANT:

Duncan McEachern, Esq.

MCEACHERN & THORNHILL

PO Box 360

Kittery Me 03904