Brookes v. Town of Scarborough

STATE OF MAINE SUPENOR COURT

Cumberland, ss. Civil Action

Docket No. AP-04-044

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DAVID BROOKES and

LINDA BROOKES

Petitioners

d& , . .. ,* DECISION O N APPEAL

(M.R. Civ. P. 80B)

TOWN OF SCARBOROU-GH,

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GEOFFREY MINTE and ?

EILEEN MINTE I '

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Respondents

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I. BACKGROUND

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A. Issues before the Court. &

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At issue is whether the town properly granted the Mntes permission40 -.. .- :z7

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construct a second floor addition to their cottage at mggtns Beach in S c a r b ~ o u g hThe

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Brookes assert that the t o w r ~ decision

s was erroneous for two reasons: (1)the Mintes

failed to meet the requirements in the ordinance relevant to the reduction of setback

requirements; and (2) the Mntes neglected to request that the town approve, by

variance, the addition to the home. Scarborough relies on the mntes' arguments and

did not filea separate brief.

B. Facts.

The Brookes live at 26 Morning Street in Scarborough. The Mintes have a cottage

at 22 Morning Street, w h c h they purchased from David Brookes' cousin. The parcel in

question is located in the R-4zoning district and is served by the town sewer. The

Brookes allege that the property and buildng on it are non-conforming.'

The Mintes claim that they were always clear about their intentions to expand

the cottage and t!ey told the Brookes about their plans before the purchase of 22

Morning Street. The Mzntes claim that they would not have purchased the property if

they had known that the Brookes were going to fight the addtion to the cottage.

On September 10,2003, over the Brookes' objection, the Zoning Board of Appeals

found that all the criteria for a setback reduction were met and approved the reduction.

The Mzntes hred a contractor, but due to weather, were not able to begn construction

withn six months of the approval date. The setback reduction expired as of March 10,

2004. The Mintes then applied for a six-month extension for good cause. The Zoning

Board of Appeals tabled the extension request and then denied it on June 9,2004.' The

Mzntes then filed a new application, using the same supporting evidence and aslung for

the same setback reductions.

On Jlrnn 22,2004, h e 'Town of Scarborough's Building Ins~ectordenied the

Mzntes' application for a building permit. The proposed addition would be 20 feet from

the front property line (instead of the 30 feet required by the ordinance) and 10 feet

from the side property line (instead of the 15 feet required by the ordinance). The town

Chapter 405 Section (XVI)(D) of the Town's Zoning Ordinance states that the minimum lot area for a lot

serviced by the town sewer is 10,000 square feet, minimum street frontage is 75 feet, and maximum

building coverage is 25%.

The Mintes did not appeal the Zoning Board of Appeals' non-renewal of the 2003 permit. They believed

that the 2004 approval mooted their grounds for appeal. The Brookes filed t h s action after the deadline

for the Mintes to file an appeal regarding the 2003 permit's non-renewal. The Mintes claim that they

"lost" the chance to appeal the non-renewal, because the Brookes did not tell them of the plans to

instigate this action. There is no requirement that one disclose a planned appeal, as long one appeals in a

timely manner. There is also no detrimental reliance as there is no evidence that the Brookes told the

Mintes that they were not going to appeal the 2004 approval (there is only the lack of an appeal in the

2003 matter, but that should not bar an appeal in this instance.)

denied the permit because the requested construction would result in the second story

imposing on the minimum front and side yard setback3

The )Antes appealed the decision to the Town's Zoning Board of Appeals

arguing that they were entitled to a limited reduction of the required front and side

yard setbacks. On July 14,2004, the Zoning Board of Appeals from the Mintes'

archtect. The Brookes' attorney expressed their opposition, including the fact that the

proposed expansion, in the Brookes' opinion, would substantially block their view of

the ocean4 The Board granted the appeal.

The Brookes filed h s complaint on August 16,2004. They allege that the Board

and the Mintes never considered that the lot and the buildings on it violate relevant city

zoning regulations, aside from the regulations relating to the required setbacks. The

Brookes allege that the Board &d not make the relevant factual findings to support the

decision and that the Board incorrectly interpreted the zoning ordinance. The Brookes

ask the court to reverse the decision of the Board of Zoning Appeals or in the alternative

to rem~n-dto t!!-e Board for f i r h e r consideration.

Oi-LOctober 15,2304 this matter was remai-ided to the Zoning Board of Appeals

in order for the Board to adopt minutes relating to the July 14,2004 Board meeting and

for findings and conclusions consistent with the requirements set forth in Title 30-A

M.R.S.A. 5 2691.

' Zoning Ordinance, Chapter 405, Section (XVI)(D)requires a minimum front yard set back of 30 feet for

all buildings located within the town's R-4 District (serviced by the town sewer) and a minimum rear and

side yard set back of 15 feet.

In support of their case, the Brookes submitted two photographs as exhibits that purport to show how

their view would be obstructed. One photograph, exhibit no. 4, shows a large pine tree that appears as a

substantial view obstruction in its own right. The other, exhibit no. 5, shows that the proposed expansion

would be a partial obstruction.

The court understands that notwithstanding this appeal, the Mintes have completed their addition.

Even though an appeal does not act as a stay of any action subject to review, M.R.Civ.P. 80B(b), a party

runs a substantial risk that an adverse decision will require them to dismantle the addition.

11. DISCUSSION

A. Standard of Review

The interpretation of municipa! crdinances is a question of law subject to de novo

review. Nugent v. Town of Camden, 1998 ME 92, ¶ 7, 710 A.2d 245, 247, see also, Jordan v.

City of Ellsworth, 2003 ME 94, ¶ 9,828 A.2d 768,771. The terms in an ordnance are to be

construed reasonably with regard to both the objectives sought and the general

structure of the whole ordinance. Roberts v. Tuwn of Phippsbtirg, 642 A.2d 155, 156 (Me.

1994).

In a Rule 80B appeal, h s court independently reviews the record. T h s court's

decision, however, is limited to whether there was an abuse of discretion, an error in

interpretation of the law, or findings not supported by substantial evidence in the

record. York v. Town of Ogunquit, 2001 ME 53, ¶ 6, 769 A.2d 172,175, Cumberland Farms

v. Town of Scarborough, 1997 ME 11, 3, 688 A.2d 914, 915. Senders v. Town of Columbia

Pails; 647 A.2d 93, 94 (Me. 19941, The findings will not be disimrbed if si-~ppportdby

substantial evidence contained in LIe record. Paleski v. Town ~fTopsham, 614 A.2d 1307,

1309 (Me. 1992).

The substantial evidence standard requires the court to examine the entire record

to determine whether the board could have raticnally decided as it did, based on the

facts presented to it. Ryan v. Town of Camden, 582 A.2d 861, 863 (Me. 1991).A court

cannot substitute its own judgment for that of the board. Boivin v. Town of Sanford, 588

A.2d 1197,1199 (Me. 1991). If there is evidence in the record to support the board's

conclusion, the fact that the record contains inconsistent evidence or that the facts could

be used to support a dfferent conclusion does not negate the board's decision. Id.

B. Interpretation of Zoning Ordinance

The provision in question states:

a. The applicant for a limited reduction of yard size must demonstrate the

following:

(1)The existing buildings or structures on the lot for whch the limited

reduction of yard size is requested were erected prior to July 3,1991, or

the lot is a vacant nonconforming lot of record;

( 2 ) The requested reduction is reasonably necessary to permit the

owner or occupant of the property to use and enjoy the property in

essentially the same manner as other similar properties are utilized in

the zoning district;

(3) Due to the physical features of the lot and/or the location of

existing structures on the lot, it would not be practical to construct the

proposed expansion, enlargement or new structure in conformance

with the currently applicable yard size requirements; and,

(4) The impacts and effects of the enlargement, expansion or new

building or structure on existing uses in the neighborhood will not be

substantially different from or greater than the impacts and effects of a

building or structure whch conforms to the yard size requirement.

( 5 ) The applicant has not commenced construction of the enlargement,

expansion, building or structure for which the limited reduction in

yard size is requested; so that the Boaxd of Appeals is not considering

an after-the fact application.

See Zoning Ordinance, Town of Scarborough, chapter 405, Section 5(a) (2004) (Record at

part 18). The Brookes do not challenge the Zoning Board of Appeals' determination as

to (a)(l)and (a)(5),however, they do challenge the Board's determination as to (a)(2),

C. Use and Enjoyment

The Mintes use the house on Morning Street as a vacation cottage. In the findings

of fact, the Zoning Board of Appeals found that the variances were reasonably

necessary because without the reductions the Mintes would only be able to put one

bedroom on the second floor, instead of the three that the approved plan would give

them. The Board found that there were other houses on the street that are two stories, so

putting a second story on the cottage would not be totally out of character witkt the rest

of the neighb~rhood.~

The house already has three bedrooms, but the Mintes doubled

that with the addition of the second level.

The Brookes allege that the Town found as it did, based not on the Mintes'

necessity, but on their desire to have a home that is the same size as everyone else on

the street. The Brookes allege that the house (with its three bedrooms) is already

utilized in the same manner as the rest of the houses on the biock, as a house, and that

the Mintes do not need to add the addition, they just desire it. Even if the Brookes are

correct, the house already had three bedrooms and can be lived in like other houses on

the block. There is evidence in the record to support the Board's determination that it

was "reasonably necessary" for the Mintes to expand the cottage in order to utilize the

house (live in it) in essentially the same manner as their neighbors (i.e. not squeezing

two children to each b e d r o ~ r n ) .'The

~ ordinan-cedoes not d-efinewhat constitutes

"reasonably necessary," so the Board was free to interpret the term, w h c h it did,

finding it reasonably necessary that for h s large family to enjoy the cottage, it needed

more sleeping room.

D. Physical Features

The Brookes allege that the Town incorrectly concluded that the Mintes made the

requisite showing and further, that evidence presented at the July 14 hearing proved

16 of the 27 houses on the street have second stories, whereas 11of the homes do not.

There is also mention in the record that one of the three current bedrooms was intended to be the

cottage's dining room.

that the Mintes could construct the expansion in conformance with the applicable

requirements. However, in order to comply with applicable regulations, the addtion

would have to be in the back of the current structure and would only provide one

bedroom.

E. Impact on the Neighborhood

The Zoning Ordinance puts the burden on the person seelung the variance to

demonstrate that the proposed addtion will not be a greater impact than the addition

that could be built w h c h conforms to setback requirements.

The Brookes claim that the proposed addition would greatly impair their ability

to see the ocean from their property and that if the addition to the home was added in

the back, their views would not be encroached upon. However, there is no other

evidence in the record as to the impact it may have on other neighbors or the

neighborhood itself. The Mintes are not trylng to expand the cottage into a multi-family

affair; they only want enough sleeping space for their family.

The only evidence in the record is that the expansion is going to affect the

Brookes' view of the ocean, if that was considered by the Board and weighed against

the lack of impact on the rest of the neighborhood, then the Board could have found

that giving the Mintes the variance was not going to create a bigger impact on the

neighborhood. While the Brookes may be right, that the Mintes could add just as much

space to the house by building on the back of the house, that was not the plan that the

Mintes presented and that the Board approved.

F. Space and Bulk Regulations

The lot at 22 Morning Street is on a nonconforming lot and therefore the cottage

is also. The lot is located in the R-4 Residential zone, which means that the lot must be a

minimum 10,000 square feet, with a minimum frontage of 75 feet and a maximum

building coverage of 25%. However, the 22 Morning Street lot is 4,982 square feet, with

50 feet of frontage and a 28.5%building coverage.

The Zoning Ordinance, 405 Section (III)(C)(I)~

would appear to forbid such an

expansion absent specific permission from the Zoning Board of Appeals to the property

owner. At the July 14 hearing, the limited reduction of setbacks pursuant to Chapter

405(V)(B)(5)was approved, but there was no approval of a reduction in lot area, street

frontage, or building coverage. The Brookes allege that it was clear error for the Town

to allow the Mintes to move forward with the proposed enlargement without making

specific findings regarhng lot area, street frontage and coverage.

T h s claim is the most nebulous; the proposed expansion is to the second floor,

will not affect the lot area, the street frontage, or the coverage of the lot by the

building.

The Mintes point to the Town's Zoning Ordinance at Section III(C)(l)w h c h

provides that non-conforming structures may be enlarged or increased in height if

granted either a variance or a setback reduction. The Mintes received a setback

reduction, so there does not seem to be a need for them to receive a variance as well.

'No building or structure which is non-conforming. ..may be expanded, enlarged or increased in height

unless ...[,I the Board of Appeals grants relief from such requirement by variance under Section V, E, 3 or

by limited reduction of yard size under Section V, B, 5 of this Ordinance.. ..

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G. Laches and Estoppel

The Mintes argue both that the Zoning Board of Appeals' 2003 decision has the

same effect as a vacated judgment (none) that because the Brcokes did not object to

the 2003 approval, they are barred f,rc:rLobjecting to the 2004 approval. Further, the

Mintes argue that because the Brookes did not tell the Mintes that they were going to

appeal the 2004 approval quickly enough (i.e. w i h n the window for the Mintes to

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appeal non-renewal of the 2003 permit) the Brookes should be barred from talung this

appeal.

The Brookes opposed the hlintes' application for setback reductions at the July

2004 meeting and filed h s appeal w i h n the time allotted by the rules. If the Brookes

really have been fighting the Mintes "every step of the wayI1' then there was no reason

for the Mintes to assume that the Brookes were not going to appeal the July 2004

decision.

T h s action is not barred by laches or estoppel.

111. DECISION

Affirm the decision of the Zoning Board of Appeals. While the Brookes argue that the

facts presented to the Board could "rationally support" the conclusion that the Mines could live

in the house as it is, could expand the house di-ferently, a ~ that

d the second story will affect the

Brookes' view, the facts presented could also rationally support the Board's conclusion that the

Mintes needed to add the addition in order to enjoy the home as a family and that though the

impact may affect the Brookes' view, the addition is not going to negatively impact the

neighborhood any more or any less than an addition to the back of the house.

IV. JUDGMENT

The clerk will make the following entries as the Decision and Judgment of h s

court:

A. The decision of the Zoning Board of Appeals is affirmed.

B. Judgment is entered for respondents.

C. No costs are awarded.

SO ORDERED.

DATED: July 29,2005

Thomas e-ahanty I1

Justice, Superior Court

Datz Filed August 25 , 2004 Cumberland Docket No. A P Q -~4 4

County

DAVID BROOKES TOWN OF SCARBOROUGH

LINDA BROOKES GEOFFREY MINTE

EILEEN MINTE

Plaintiff's Attorney Defendant's Attorney

MICHAEL VAILLANCOURT ESQ DAVID LOURIE ESQ. (MINTES) 799-4922

PO BOX 2412 767-4824 189 SPURWINK AVENUE, CE, ME 04107-9604

SOUTH PORTLAND ME 04116

CHRISTOPHER VANIOTIS ESQ. (SCARBOROUGH)

PO BOX 9729, PORTLAND ME 04104 774-120(

Date of

Entry

2004

Aug. 31 Received 8-16-04.

Summary Sheet filed.

II II

Petitioner's Complaint for ~eviewfiled.

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Received 8-23-04.

Appearance of David A. Lourie, Esq. on behalf of Geoffrey and ~ i l e e n

Minte filed.

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Received 8-25-04.

Acknowledgement of Receipt of Summons and Complaint for Review filed

showing service on the Mintes to David Lourie Esq. on 8-21-04.

II I1

Received 8-26-04.

Entry of Appearance of Christopher L. Vaniotis, Esq. on behalf of

Town of Scarborough filed.

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On 8-31-04.

Briefing schedule mailed. plaintiff's brief and record due 9-27-04.

Sept. 7 Received 9-7-04.

Acknowledgement of receipt of summons and petitioner's complaint for review

filed showing service on Town of Scarborough to Christopher Vaniotis Esq.

Sep. 24 Received 09-24-04:

Plaintiff's Motion for Remand and Stay filed.

Sept. 28 Received 9-27-04.

Correspondence from Christopher Vaniotis, Esq. informing court that Defenda

Town of Scarborough does not object to Plaintiffs' Motion for Remand and

Stay and consents to the entry of the proposed order filed.

Dec. 23 Received 12-23-04:

Petitioners, David and Linda Brookes' opposition to the Mintes' Motion

to Resolve Disputed Record filed.

DAVID BROOKES, ET AL vs. THE TOWN OF SCARBOROUGH, ET AL

Date of

Entry Docket No. AP-04-44

Received 10-15-04:

Order filed. (Delahanty, J.).

It is hereby ORDERED that this matter be remanded to the Scarborough

Zoning Board of Appeals for the Scarborough Zoning Board of Appesis

to adopt minutes relating to the July 14, 2004 Board Meeting, and

further adopt findings and conclusions consistent with the requirements

set forth in Title 30-A M.R.S.A.@2691. This Court shall retain jurisdic-

tion over this matter. Furthermore, any deadlines relevant to submission

of the record and briefting schedule are stayed. Petitioners shall submit

a legal brief and the relevant record within twenty-one(21) days follow-

ing the Petitioners' receipt of notice of the Scarborough Zoning Board

of Appeals' Adoption of Minutes, findings and conclusions. Any Additional

briefing shall be complete consistent with the tine limits set forth

within M.R.Civ.P.80B.At the direction of the Court, this Order shall be

Incorporated into the docket by reference. Rule 79(a).

On 10-20-04 Copies mailed ot Christopher Vaniotis, David Lourie and

Michael Vaillancourt, Esqs

Received 12-2-04.

Petitioners, David and Linda Brookes, brief filed.

Petitioner's submission of the record of the proceedings of theTown of

Scarborough Zoning Board of Appeals filed.

Record filed.

Received 12-06-04:

Attorney for Petitioner files letter regarding errors contained in brief

filed on 12-2-04.

Received 12-14-04:

Defendants, Geoffrey Minte and Eileen Minte Motion to Resolve Dispute

Record Pursuant to Rule 80B(e) with Integrated Memorandum with

attachments filed.

Defendants, Geoffrey Minte and Eileen Minte Request for Scheduling of

Motion to Determine the Record Pursuant to Rule 80B (e) filed.

Received 12-29-04.

Defendants, Mintes', Responsive 80B brief filed.

Received 01-14-05:

Petitioners' Motion to Enlarge Time wihtin which to File a Reply Brief

filed.

.

On 01-20-05: (Delahanty, J . )

As to Petitioners' Motion to Enlarge Time wihtir, which to File a

Reply Brief: it is hereby ORDERED that ~etitioners' Motion to

Enlarge Time is hereby granted and the Petitioners have up to and in-

cluding Januzry 28, 2005 in which to file their reply brief.

On 01-20-05 copies mailed to Michael V~illancaurt,David Lourie and

Christopher Variotis, Esqs.

On 01-20-05:(Delahaxty, J.-).

As to Defendants, Geoffrey & Eileen ~inte'sMotion to Resolve Disputed

Record Pursuant to Rule 80~(e) with Integrated Memorandum: The Court

has reviewed defendant, Minte's request to Amend the record by adding

Minutes of a 2BA Meeting on Sept. 10, 20-03. The Court finds t h ~ t

there does not appear to be sufficient reason to do so. The request is

denied.

On 01-20-05 copies mailed to Michael Vaillancourt, David Lourie and

Christop,,herVaniotis, Esqs.

DAVID BROOKES, ET AL vs. TOWN OF SCARBOROUGH, ET AL

Date of

Entry Docket KO. AP-04-44

2005

Jan 28 Received 1-28-05:

Petitioners' Reply Brief filed.

2005

June 29 On 06-29-05:

Hearing held on 80B Appeal.

Court takes matter Under Advisement.

Presiding, Justice Thomas Delahanty.

No Record made.

Aug 1 Received 08-01-05: (Delahanty, J.).

The clerk will make the following entries as the Decision and Judgment of

this court: A. The decision of he Zoning Board of Appeals is affirmed.

B. Judgment is entered for respondents. C. No costs are awarded. SO

ORDERERD .

On 08-01-05 Copies mailed to Michael Vaillancourt, David Lourie and

Christopher Vaniotis, Esqs., Ms. Debbrah Firestone, The Donald Garbrecht

Law Library, Goss Mimeograph and Loislaw.com, Inc.