The opinion
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STATE OF MAINE . -.,
- -_ SUPERIOR COURT
/
A
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CUMBERLAND, ss. __./. - - - _ :CIVIL ACTION
DOCKET NO. AP-04-65
FRANCIS DRAKE,
Appellant *
* ORDER
v.
*
CITY OF PORTLAND, *
*
142 PRESUMSCOT, LLC.
Appellee *
*
This case comes before the Court on Petitioner Francis Drake's rule 80B appeal
from the Portland Zoning Board of Appeals' November 4, 2004 denial of Petitioner's
appeal challengi legality of a building inspection permit issued to 142 Presurnscot,
In May, 2003, 142 Presumpscot, LLC (LLC) submitted to the City's Planning
Authority an application seeking site plan approval of a proposed 9,865 square foot
addition to its existing building located at 142 Presumpscot Street. A portion of the
addition is located in the City's I-L (light industrial) zone, and a portion is located in the
R-5 (residential) zone. The Planning Authority approved the LLC addition and Drake
appealed. In June 2004, the City Planning Board rejected Drakes appeal and upheld the
approval.' LLC then applied for the issuance of a building permit to begin construction of
the addition. The Zoning Administrator approved the permit with conditions. Drake
Drake appealed the site plan approval to this Court in a separate 80B appeal. AP-04-
03 5.
appealed that decision to the Zoning Board of Appeals (ZBA) pursuant to 5 14-472(1)(b)
of the Code. The ZBA denied Drake's appeal and upheld the permit. Drake then
appealed that decision to the Superior Court pursuant to M.R. Civ. P. 80B.
DISCUSSION
Drake argues that the ZBA committed six errors of interpretation of the Zoning
Code. The Court reviews a decision of the ZBA for abuse of discretion andlor findings
not supported by substantial evidence in the record. York v. Town of Ogunquit, 200 1 ME
53,(IT6,769 A.2d 172, 175. However, interpretation of a zoning ordinance is a question
of law and is reviewed de novo. Isis Development, LLC v. Town of Wells, 2003 ME 149,
(IT 3, n.4, 836 A.2d 1285, 1286. There are several principles of statutory construction that
apply to the interpretation at issue here. "Each undefined term is given its common and
generally accepted meaning unless, the context of the statute clearly indicates otherwise."
Town of Union v. Strong, 68 1 A.2d 14, 17-18 (Me. 1996). Ultimately, "judicial
interpretation must be reasonable and sensible with a view effectuating the legislative
design and true intent of the legislature." Id. at 18.
a. 40 Foot Minimum Setback
Drake argues that the ZBA incorrectly measured the distance between the
structure and the property line as being 40 feet pursuant to 9 14-234(d). Although the
ZBA found that a measurement of a straight perpendicular line from the
structure to the property line meets the 40-foot requirement, a measurement
from the corners of the structure on the southerly side to the closest property line
does not.' The City of Portland maintains that for the past 50 years it has been
measuring yard setbacks in a straight line perpendicular to the building.
Pursuant to § 14-234, "the minimum side yard shall be forty (40) feet when
the side property line abuts a residential zone." Although tlus provision is silent
as to how a side yard should be measured, section 14-47 of the Code provides
that the width of a side yard "shall be the least distance between the side lot line
and any strxcture." Accordingly, Drake believes that § 14-234 requires that
measurements of side yards be taken of the "least &stancen between the
structure and the property line. Following t h s measuring techruque, a diagonal
measurement from the structure to the closest residential property line is less
than 40 feet in two places.
In Town of Union v. Strong, the Law Court addressed the manner of
measurement of a shoreline setback where the Code provision was silent. 681
A.2d 14 (Me. 1996). The issue was whether to measure the setback using a
horizontal measurement or an over-the-ground measurement. Td. at 17. The
Law Court held that the Town's use of a horizontal measurement was reasonable
and in line with the legslative intent and the protective purpose of the shoreline
setback provision. Id. at 18. Two legal treatises on boundary locations and
control further supported this determinati~n.~
At oral argument, neither party knew the exact measurement from the two
comers on the southerly side of the property to the boundary line.
CURTIS M. BROWN & WINFIELD H. ELDRIDGE, EVIDENCE AND
PROCEDURES FOR BOUNDARY LOCATION 192 (1962);see also WALTER G.
ROUBILLARD ET AL., BROWN'S BOUNDARY CONTROL AND LEGAL
PRINCIPLES 45 (1995) ("Distances cited in modem legal descriptions are
presumed to be along a horizontal straight line.")
Here, a review of the general structure of the ordinance and its purpose
provides guidance to the Court on the proper interpretation of 9 14-234. It is
clear that one purpose of the zoning code, inter alia, is to respect the boundaries
of residential zones by avoiding the overcrowding of land and preventing
encroachment by industries in industrial zones. It follo~vsthen that the ZBA's
construction of 5 14-234 hinders h s purpose. Admittedly, measurement of the
property in this case is dfficult due to its odd shape. However, when the Code
provides that a side yard must be forty feet from the property line, it is
reasonable to interpret that the distance be measured from the closest point on
the property line to the closest point on the structure. T h s construction provides
the most protection from encroachment by industries for those living in
residential zones that abut industrial zones.
b. Grafton Street Delivery Door
Drake argues that the proposed delivery door at loading platform height
with no loading bay on the Grafton Street side of the property violates the
loading bay requirements in 5 14-352.' However, the ZBA found that the door in
question is meant to be a delivery door for deliveries by UPS and Federal
Section 14-46 Purpose.
Ths article, made in accordance with a comprehensive plan, is enacted for the
purpose of decreasing congestion in streets; . . . preventing the overcrowding of
land; avoiding undue concentration of population; facilitating the adequate
provision of transportation, sewage, schools, parks and other community
facilities and utilities; thus promoting the health, safety, convenience and general
welfare of the citizens of the city. This article is made with reasonable
consideration among other things, to the character of each zone and its peculiar
suitability for particular uses and with a view to conserving and establishng the
value of property and encouraging the most appropriate use of land throughout
the community.
Section 14-352 requires that a loadng bay meet the minimum hmensions of 50'
x 14.'
Express trucks and the like, as opposed to a loading bay, whch the ZBA
determined was for the loading and unloading of tractor-trailer trucks.
Furthermore, evidence in the record indicates that LLC designed a rear-loading
bay for the loading and unloading of tractor-trailers trucks.
Based on the reasonableness of the ZBA's definition of loading bay and
the fact that LLC envisions receiving large deliveries at the designated loading
bay in the rear, the Court concludes that the door at Graftcn Street is merely a
delivery door that need not meet the requirements of 9 14-352.
c. Rear Loading Bay
Drake has two complaints about the rear-loading bay. He first argues that
when trucks are docked at the loading bay they will extend into the R-5 zone,
whch violates § 14-335. Section 14-335 states that more than one commercial
vehicle is prohbited from off street parlung in a residential zone. LLC argues
that trucks that are loading are not parked, and thus 5 14-335 does not apply.
The ZBA held that this issue has res judicata effect based on an April 17,
2003 decision. The April 17,2003, decision by the ZBA approved LLC's parhng
of passenger cars in an R-5 zone pursuant to 5 14-344. In that case, Drake was
present as an abutter and spoke about these very same concerns. In regards to
the passenger cars issue, the ZBA considered whether or not the loading tractor-
trailers would be "parlung" whle they loaded. The final decision was that a
loading tractor-trailer was not parked. The ZBA concluded in this case, that
because these issues were part of the ZBA's previous consideration and
deliberation under the criteria for determining whether passenger vehcles could
be parked in the R-5 zone.6
Drake's second argument is that the rear-loading bay does not meet the
dimensional requirements of § 14-353. Section 14-353provides that additional
loading bays must meet the 14' x 50' dimensional requirement of 9 14-352.
Drake's reasoning is that because the loading bay has two doors, it should also
have two loading bays. There is no support for t h s interpretation in the Code.
d. Improvements on Grafton Street
Drake's final argument is that LLC should be required to make
improvements on Grafton Street, an unpaved road providing access to the
building. Section 14-403(b)provides that an unimproved street that abuts and
provides principal access to a lot must be improved. The ZBA found that
Presumscot Street, whch meets the minimum requirements for street
improvements, provides direct street frontage and principal access to LLC.
Therefore, the ZBA held that LLC did not have to make improvements on
Grafton Street.7
Another one of Drake's contentions is that truck-maneuvering use in a
residential zone is contrary to the purpose of the Code. Section 14-47 defines use
and accessory use as meaning "for the purpose w h c h land is designed, arranged
or intended to be used." From ths, Drake argues that because LLC designed the
parking lot for the maneuvering of trucks, the use is in violation of the Code.
The ZBA held that truck-maneuvering was not a use of the land as intended by 9
14-47. Moreover, the ZBA again felt that t h s issue was addressed at the April 17,
2003 hearing, and thus had res judicata effect.
Notably, when Drake sought approval for a 20,000 square foot warehouse on
h s lot, whch abuts Grafton Street, he argued that Grafton Street was not h s
principal access and won that point.
Drake's appeal of 9 14-234/ the minimum side yard, is GRANTED. The
matter is remanded to the Portland ZBA for further proceedings. On the
remaining grounds, the decision of the ZB
DATE: & Z~,COQS
22
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