The opinion
STATE OF MAINE SUPERIOR COURT
PENOBSCOT, ss. - CIVIL ACTION
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ROBERT B. SMETHURST and
ADDIE LAURA SMETHURST, t @c?2 4 2006 I
v. DECISION AND
JUDGMENT
MUNICIPALITY OF STETSON, DONALD L. GARBRECHT
LAW LIBRARY
DefendantIAppellee
DEC 0 8 2006
This case comes before the court on the 80B Appeal of the Trustees of the
Smethurst Family Trust, Robert B. Smethurst and Addie Laura Smethurst ("Smethursts").
BACKGROUND
The Smethursts own a parcel of unimproved land on the Mullen Road in Stetson,
~ a i n e . 'On January 4, 2006, the Smethursts, through David R. Buchstaber of Village
Point Realty, applied to the Appellee, the Municipality of Stetson ("Stetson"), for a land
use/building permit to build a residential structure on the land. On the application, Mr.
Buchstaber described the land as 150 feet wide, 300 feet long, and 1.033 total acres. In a
letter dated January 25, 2006, the Code Enforcement Officer of Stetson denied the permit,
explaining that the land failed to meet the requirements of the Stetson Building Code,
because it was one hundred feet short of a 250 foot depth requirement and that the land
did not meet the minimum area of 50,000 square feet. The Code Enforcement Officer
also informed Mr. Buchstaber in the letter that his matter was set to appear before the
Stetson Appeals Board on February 6,2006.
' According to the Smethurst's brief, their deed to the land is recorded in the Penobscot County Registry of
Deeds in Book 5324, page 176.
On February 7,2006, the Stetson Appeals Board denied Mr. Buchstaber's
application for an administrative appeal. In rendering this decision, the Stetson Appeals
Board made several findings of facts, including "6. A public hearing was held on
Monday, February 6, 2006" and "7. The relevant sections of the ordinance are Building
Code Section 3-N. 200 ft. road frontage and depth of not less than 250 ft., minimum area
of 50,000 square ft." The Stetson Appeals Board subsequently concluded that the
Smethursts' lot was not "buildable" and that the lot was "not grandfathered because the
current owners purchased the property in 1986."
The Smethursts filed this 80B appeal on March 3,2006. They allege primarily
that Section 3-N2 of the Stetson Building Code is invalid because it is a zoning ordinance
that does not meet the requirements of 30-A M.R.S.A. 5 4352. The Smethursts also
allege that the Stetson Appeals Board failed to review their request for a variance.
DISCUSSION
I . Standard of Review
The Superior Court, acting in an intermediate appellate capacity, will review the
decision of the Stetson Appeals Board "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 9,96, 814 A.2d 995,997 (citations omitted); M.R. Civ. P. 80B(f).
Section 3-N of the Stetson Building Code reads in part:
No new dwelling or other building shall be erected unless it is on a building lot with not
less than two hundred feet (200) frontage on a public way and a depth of not less than
two hundred fifty (250) feet and a minimum area of fifty thousand (50,000) square feet.
Building permits may be issued for the construction of dwellings and related structures
on parcels of land which are not on a public way and which are in excess of forty acres if
the permit when issued contains conditions to the effect that the town will have no
responsibility or obligation to provide or maintain access to the property or to provide fire
protection, school bus service, or any other services that require access and further
provided that the owner signs a release agreement to protect the town and its officials.
The resolution of this matter turns on whether the Stetson Appeals Board had the
authority to review the Smethursts' application under Section 3-N of the Stetson Building
Code.
2. Applicable Law & Analysis
Maine statutory law confers broad power upon municipalities to regulate by
ordinance. 30-A M.R.S.A. 3 3001 (2005) ("Any municipality, by the adoption,
amendment or repeal of ordinances or bylaws, may exercise any power or function which
the Legislature has power to confer upon it, which is not denied either expressly or by
clear implication, and exercise any power or function granted to the municipality by the
Constitution of Maine, general law or charter."). Using this power, dubbed "home-rule
authority," a municipality may pass certain ordinances, including codes and land use
ordinances.
As part of its home-rule authority, "a municipality may.. . [aldopt and amend local
growth management programs, including comprehensive plans and implementation
programs." Id. 5 4323(2) (emphasis added).3 Municipalities, therefore, are not required
to adopt such a growth management program. See also Bragdon v. Vassalboro, 2001 ME
137, g 7,780 A.2d 299, 301 ("the Legislature in 1991 eliminated the mandate requiring
towns to adopt comprehensive plans and zoning ordinances comprising a local growth
If a municipality engages in a growth management program, however, it must adopt both a comprehensive
plan and an implementation strategy. 30-A M.R.S.A. 8 4326 (2005). A comprehensive plan is defined as "
a document or interrelated documents containing the elements established under section 4326, subsections
1 to 4, including the strategies for an implementation program which are consistent with the goals and
guidelines established under subchapter 11." Id. 9 4301(3). An implementation program is defined as "that
component of a local growth management program which includes the policies and ordinances or other
land use regulations which carry out the purposes and general policy statements and strategies of the
comprehensive plan in a manner consistent with the goals and guidelines of subchapter 11." Id. 5 4301(7).
A growth management program is defined as " a document containing the components described in section
4326, including the implementation program, that is consistent with the goals and guidelines established by
subchapter I1 and that regulates land use beyond that required by Title 38, chapter 3, subchapter I, article 2-
B." Id. 3 4301(9).
management program."). If a municipality enacts a zoning ordinance, however, it is
considered to have enacted an implementation strategy as part of a growth management
program, and must, as a prerequisite, have a comprehensive plan. Id. There is no such
requirement for building codes. See id. 9 9,780 A.2d at 302.
a. Section 3-N is a Zoning Ordinance
The first question that must be answered, therefore, is whether Section 3-N of the
Stetson Building Code is merely a building code, as Stetson contends, or a zoning
ordinance, as the Smethursts contend. A land use ordinance is "an ordinance or
regulation of general application adopted by the municipal legislative body which
controls, directs or delineates allowable uses of land and the standards for those uses."
30-A M.R.S.A. $4301(8) (2005). A zoning ordinance is "a type of land use ordinance
that divides a municipality into districts and that prescribes and reasonably applies
different regulations in each district." Id. $ 4301(15-A).
The Law Court has held that a site review ordinance that sets uniform standards
for construction on any worksite, "without regard to the number or location of sites to be
developed," constitutes a building code rather than a zoning ordinance. Bragdon, 2001
ME 137, IJ
9 , 7 8 0 A.2d at 302. Likewise, the Law Court held in a similar case that an
ordinance that applied construction and lot size requirements "uniformly to all buildings
in the Town," did not constitute a zoning ordinance. LaBay v. Paris, 659 A.2d 263,265.
In each case, therefore, the Court considered non-uniformity in land regulation the
hallmark of a zoning ordinance.
Section 3-N of the Stetson Building Code is not a uniform provision that applies
to all new construction; rather, the section mandates, as a requirement for building
permits, different requirements for lands that are on a "public way" from lands that are
not on a "public way." Such a lack of uniformity resulting from the two categories
established in Section 3-N leads to the conclusion that Section 3-N of the Stetson
Building Code is a de facto zoning ordinance that must comply with Maine zoning law. 4
b. The Ordinance is Not Consistent with Stetson's Comprehensive Plan
Any municipal zoning ordinance must be "pursuant to and consistent with a
comprehensive plan adopted by the municipal legislative body.'' 30-A M.R.S.A. §
4352(2) (2005). Whether or not an ordinance is "consistent" with a comprehensive plan
largely turns on whether the two co-exist "in basic harmony." Adelman v. Town of
Baldwin, 2000 M E 91, J 22, 750 A.2d 577,585. The determination of this question is a
matter of law. Old Town v. Dimoulas, 2002 ME 133, J 18,803 A.2d 1018, 1023.
The court has a copy of Stetson's Comprehensive Plan in the record ("SCP").
The document, entitled "Comprehensive Plan of Stetson, Maine 1991," was adopted on
February 17, 1992 and last revised on February 10, 1998. The court also has a copy of
the Stetson Building Code, enacted in 1983 and revised through May 14, 1993. An
additional document in the record, entitled "Minutes for Special Town Meeting,
November 23, 1992, Town of Stetson," reveals that Stetson adopted Section 3-N of its
Building Code on that date.
The Slnethursts point to the case of Waterboro v. Lessard, 287 A.2d 126 (Me. 1972), in support of their
contention that section 3-N is a zoning ordinance. In Waterboro, the Court held that "location of buildings,
size and open spaces of real estate.. . and setback of structures along ways, are matters which our court has
interpreted as dealing with the establishment of building lines ... These areas have consistently been the
subject of zoning legislation and are not found within the so called 'police power' ordinance." Id. at 129.
The 'police power' ordinance, which the Court referred to, was section 30 M.R.S.A. 9 2151, which has
since been repealed. That section, however, provided that a municipality could enact police power
ordinances for buildings, structures, trailers, and equipment involving design, construction, and additions,
etc. Today, as the court has noted, the municipality has broad "home-rule" to adopt ordinances. The court
considers Lessard in its opinion, but recognizes that Maine statutory law has changed since the case was
decided.
In any case, Stetson adopted Section 3-N after the SCP had been adopted by the
city.' Section 3-N, however, is not consistent with the SCP. Although the types of
restrictions Section 3-N requires, such as minimum lot size, are also types of restrictions
that the SCP suggests in order "to preserve the small town rural character" of Stetson, the
categories of land in each plan are much different. SCP at 138. The SCP divides the
municipality into several distinct regions, including Village Residential, Mixed
Residential, and Rural Residential districts. Id. at 135. These categories are much
distinguishable from the two categories of land created in Section 3-N: land on a "public
way" and land not on a "public way." The SCP itself notes: "The Comprehensive Plan
provides the legal basis for enacting the ordinances." Id. at 137. As such, Stetson should
have enacted the land usage requirements of Section 3-N with regard to the zoning areas
proposed by the SCP.
CONCLUSION
Section 3-N of the Stetson Building Code is hereby declared invalid and
otherwise null and void as noted in this Decision and Judgment. This matter is remanded
to the Stetson Appeals Board for reconsideration of the Smethursts' application in the
absence of Section 3-N.
The Clerk may enter this Decision and Judgment upon the docket by reference.
Dated: OCfl2 (
I'
Jus ce, Superior Court
The court does not have a copy of the S C P as it existed at the time Section 3-N was adopted, but will
consider whether Section 3-N is compatible with the SCP in the record, as that is the one that has been
provided.
Date Filed 3/3/06 PENOBSCOT Docket No. AP-2006-4
County
Action 80B- APPEA-
ASSIGNED TO JUSTICE ANDREW M. KEXD
ROBERT B. SMETHURST and
ADDIE LAURA SMETHURST, TRUSTEES OF
THE SMETHURST FAMILY TRUST Appellants vs. MUNICIPALITY OF STETSON Appellees
Plaintiff's Attorney Defendant's Attorney
CHARLES W. COX, ESQ THOMAS A. RUSSELL, ESQ.
COX LAW OFFICES FARRELL ROSENBLATT & RUSSELL
<
P 0 BOX 327 P 0 BOX 738
NEWPORT ME 04953 BANGOR ME 04402-0738
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Date of
Entry
3/3/06 Rule 80B Appeal filed by Appellants with attachments.
3/7/06 Notice and Briefing Schedule Rule 80B Appeal of Governmental Actions
filed. Copy forwarded to attorney for Appellant.
3/16/06 Entry of Appearance for Municipality of Stetson of Thomas A. Russell, Esq.
filed. Copy of Notice and Briefing Schedule forwarded on 3/17/06.
3/17/06 Officer's Return of Service as to Appellee Municipality of Stetson by
Dennell Ham, Town Clerk. (S .D. : 3/7/06)
4/12/06 Motion to Extend Filing Date (for filing of the record of the proceedings
until 4/28/06) filed by Plaintiffs.
4/24/06 Order filed. The Plaintiff has filed a motion requesting the extension
of time. The motion is presented without objection. The motion
is granted. The deadline for filing the record of the proceedings
and the deadline for the filing of the Plaintiff's Brief are extended
to April 28, 2006. (Mead, J . ) Copy forwarded to attorneys of record.
4/28/06 Brief of Plaintiff/Appellants filed with Appendix attached.
4/28/06 Record of Proceedings filed by Plaintiff/Appellants.
5/26/06 Brief of DefendantlAppellee Town of Stetson pursuant to Rule 80B M.R.Civ.P.
filed.
6/9/06 AppellantsReplyBriefRule80BAppealfiled.
. 9/25/06 File presented to Justice Mead for review.