The opinion
STATE OF MAINE SUPERIOR COURT
ClVIL ACTION
YORK, ss. DOCKET NO. AP-05-023
I ,
ROBERT THIBEAULT,
Plaintiff
v. ORDER
TOWN OF NEWFIELD, et al,,
Defendants
This case comes before the Court on Petitioner Robert Thbeault's 80B appeal of
1)the Town of Newfield Zoning Board of Appeal's initial decision to grant the appeal,
and 2) the final decision of the Zoning Board of Appeal's to revoke a permit to build a
garage issued by the Newfield Code Enforcement Officer.
FACTUAL BACKGROUND
Mr. Thibeault owns a parcel of land within thc Shoreland District of the Town of
Newfield. The parcel borders Whitehouse Road on one side and Shepard's Island Road
on another side. The parcel is also encumbered by an easement, an eight-foot wide
gravel driveway providing access to two othcr parcels from Whitehouse Road.'
Defendant's Agostinelli and Ferrari own one parcel.2 Defendants Durkin and Ross-
Durkin own thc othcr parcel."n 2004, hf;. 'l'hbeault filcd an application for a building
permit with the Town of Newfield to construct a thirty-four by thirty-four residential
garage on his parcel. The proposed garage would be seventy-two feet from Whitehouse
1
'L'hese t w o parcels a r e suminer camps.
2
It is not clear whether Defendants Agostinelli and Ferrari havc frontage on another road or
whether the easement is their only access to W h i ~ e h o u s eRoad.
3
Defendants Dunkin a n d Ross-Dunkin d i d not tiie a n 80B brief. They also have frontage on
Whitehouse Road.
Road, yet only approximately twelve feet from the Defendants' private driveway. On
February 3, 2005, the CEO granted Mr. Thibeault's building permit." Defendants filed a
timely appeal to the ZBA challenging the issuance of the On March 28, 2005,
the ZBA held a hearing on the matter. Three members of the ZBA were present. The
members voted two to one to grant the appeal. On March 30, 2005, the ZBA revoked
Mr. Thbeault's building permit. Mr. Tlubeault filed this 8OB appeal on April 27, 2005.
DISCUSSION
There are two issues in this case. The first is whether the ZBA granted or denied
the administrative appeal. The second is whether the ZBA erred as a matter of law
when it decided that the "road set back" provision of the Zoning Ordinance required a
set back on Mr. Thbeault's parcel from Defendants' private driveway.
First, the Newfield Zoning Ordinance states that although the presence of three
members of the ZBA constitutes a quorum, an appeal may be granted or a decision of
the CEO may be overruled only upon an affirmative vote of at least three members.
Art. VII, § 2(B). In this case, the Newfield ZBA consists of five members. On the day of
the hearing in this matter, three members of the ZBA were present. Those three
members were split two to one on whether the grant the appeal. The Ordinance clearly
4
Before issuing, the building permit, the CEO requested an opinion from the Maine Municipal
Association about whether the road set back in the Shoreland District would apply to the gravel
driveway as well as Whitehouse and ShepardfsIsland Roads. The MMA responded in the negative:
Koads or r ~ g h t sot way are relevant to setbacks under the ordinance only if they constitute
frontage. "Frontage" is defined undel. 1-I-~t. ordil-lance as the lot line that- "Larders" L11e riglll of
way providing legal access to the lot (see Article XII, Sec 2). A right of way that that crosses a lot
(rather than bordering it) by definition cannot constitute frontage, and if it is not frontage, 1 find
no other provision in your ordinance requiring structures to be setback from it.
5
Before the ZBA held a hearing, the CEO asked the Town Attorney to Issue an oplnlon regarding
the set back issue. The Town attorney echoed the npin~onof the MA4A:
The garage would [not] need to be set back 50 feet from the private driveway easement depicted
on the plan. This private driveway easement does not fall within the kinds of "rights of way"
contemplated in the definition of frontage. Even if i t did, however, the easement does not serve
as iegal access to the i'hibeault property, as such, the "road set back provision does not apply
with respect to the private driveway easement.
provides that an appeal may only be granted on an affirmative vote of three members of
the ZBA. Thus, the decision to grant the appeal is error of law.
Second, the Ordinance provides that in the Shoreland District, the "road set
b a c k must be fifty feet from the right of way or seventy-five feet from the center line,
whichever is greater. Art. VT, 5 5(E). In revolung Mr. Thibeault's building permit, the
ZEiA held that CEO erred i r ~failing to apply the filty-foot road set back requirement to
the Defendants' private driveway. The issue is whether the ZBA erred as a matter of
law in its interpretation of the Ordinance. The interpretation of a zoning ordinance is a
question of law that the Superior Court reviews de novo. lsis Development, LLC v. Town
of Wells, 203 ME 149, 1[ 3, 836 A.2d 1285, 1287. In construing the language of an
ordinance, the Court considers the objectives and the general structure of the ordinance
as a whole. Id.
Unfortunately, the term "road set b a c k is not defined within the Ordinance.
However, a related term "set back, front yard," is defined as "the distance between the
street right of way or easement line exfending the zoidth of the fiontnge, and the nearest
part of any principal or accessory structure." Art. XII (emphasis added). In defining
"frontage," the Ordinance explains that it does not include "that portion of the distance
between the sidelines which is encumbered by a recorded right-or-way for the purpose
of providing access to anothcr Art. XI. Thc Ordinance further provides that for a
"way" to provide frontage, it must provide legal access to the lot along which frontage
is measured. Art. VII.
- - --
6
Art. VII further defines "frontage" as "the linear distance hetween the sidelines of a lot, measured
along the lot line that borders upon whatever right of way serves as legal access to the lot." For the
purposes of the Ordinance, the following ways shall constitute legal access to a lot along which frontage
may be measured: 1) a way accepted by or esl-ablished as belonging to the Town of Newfield, or State of
Maine, provided access is not specifically prohibited; 2) a way, whether dedicated to public ownership or
not, as show11 on an approved subdivision plan; or 3) a private or public way which has not been
approved by a governmental subdivision but which has been established by deed or on a plan recorded
in a registry of deeds.
r 7
laking the language of the Ordinan(-e as a \vhole, for a set back provision to
apply \.vlien the parcel borders any kind ot road or right-of-svny, the road or rigl~t-of-
way must constitute "frolitage." In this case, Defcindant's yrivale driveway is a
recorded right-of-way providii-tg access to another lot. Accordingly, pursuant to thc
Ordinas~ce, Defendants' prim l e drivex~say does not provide "frontage" to Mr.
T;,ilDe ~- .L~1L Is-L parcel. Mlor-eover, because Ciefeiidanls' private iiriveway does not provide
L'
legal access Lo Mr. T!lll)ea~rl!'s lc)t, i l is I-!()/: a \/\ray along ~ l l l i c h frc~ntagemay be
measured.
Procedurally, the ZBA faiIed to grant the aypedl with only t ~ v orriei~~bers
voting
in tlie affinnatlve. Substalitivc.ly, the ZBA erred as a matter of law in i ls interpretation
of the Zoning Ordinance. The "road s r t 1:ackf' prnvisinn does not recltiire a sel back on
Mr. 'Thbeault's parcel from Defendants' private driveway.
Whlle unforh~nate that the yart~cipanls in the ZRA hearing apparently
misunderstood the requirement for a 1 i ~ r i i i i i ~ ~ 1 vote
1:i given
- that only three nieritbers
were present, even if the vote had been unanimous [lie outcome of this appeal would be
the same.
The entry will be as follo~vs:
Mr. Tliibeatllt's appeal is Cra~~tecl;llle clccision of Lhe ZBA is vacated and
the case remanded with instl-ucl-icrr-1s t i ) reinstate ~Vlr.'l'liibesull's buildirlg
-,.-mi!.
,-,
[&I
Ilal-ed: December 27, 2005
1 Justjce, Superior Court
John B. Shumadine, E s q . for Plaintiff
Leah B. Rachin, E s q . for Defendnat/Town o f Newfield
William P . Durkin, Defendant, p r o se
Darlene M . Ross-Durkin, Defendant, p r o se
Dolores P . Agostinelli, Defendant, pro se
Charles A. Ferrari, Defendant, pro se