The opinion
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STATE OF MAINE !. .
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. SUPERIOR COURT
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. : CIVIL ACTION
CUMBERLAND, ss. " DOCKET NO: AP-05-080
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LESLIE COHEN,
Petitioner *
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v. * ORDER
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ARTHUR SCHWARTZ and the *
TOWN OF NAPLES, *
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Respondents *
This case comes before the Court on Petitioner Lelsie Cohen's
administrative appeal of the decision of the Zoning Board of Appeals of the
Town of Naples denying Ms. Cohen's appeal and affirming the issuance of a
building permit to Respondent Arthur Schwartz. After hearing, the Court
reverses the decision of the Zoning Board of Appeals.
BACKGROUND
Arthur Schwartz is the owner of two lots on Sebego Lake, Maine, one of
which is separated by a ten-foot right of way ("ROW") for various landowners to
access the beach. His property is recorded as lot 70 on the tax map. In 1998, Mr.
Schwartz conveyed a twenty-foot strip of land to Ms. Cohen's brother on the
eastern boundary. This conveyance placed Mr. Schwartz's lot in
nonconformance with the setback requirements of the Ordinance. The boathouse
that was once twenty-two feet and twenty-five feet from the eastern boundary
was now two feet and five feet from the boundary. Section 15(A)(7)of the
Ordinance requires a minimum setback of 20 feet for all structures.'
In 2004, Mr. Schwartz applied to the Town of Naples Zoning Board of
Appeals (the "Board") for a set back reduction permit to a rotate a 12' X 20' one
floor boathouse on the eastern lot and move it ten feet from the property line
abutting Ms. Cohen's property.' The Board approved the setback reduction of ten
feet without conditions and with no mention of a boathouse. However, the
minutes of the 2004 meeting indicate that "[tlhe approval of the setback
reduction is to move the boathouse to the new location only." (Exhbit C, p. 4).
Ms. Cohen did not appeal h s decision3
In 2005, upon discovering that the existing boathouse was not structurally
sound to move it to the desired location, Mr. Schwartz applied to the Code
Enforcement Officer ("CEO") for a building permit to construct a new boathouse,
28' X 30' with two floors and three bedrooms, operating under the same set back
reduction permit.4 The CEO issued the building permit, which was upheld by
the Board. T h s appeal followed.
DISCUSSION
Ms. Cohen's position is that the setback reduction was granted for the
specific purpose of moving the existing boathouse ten feet. When that boathouse
' The conveyance also reduced the shore frontage of the eastern lot from 60 feet to 40 feet.
Ms. Cohen is acting as personal representative to the Estate of her deceased brother, Doug
Sinclair, the former owner of the abutting property.
3
Ms. Cohen argues now that the 2004 setback reduction was issued in error because Mr.
Schwartz's lot was not a pre-existing nonconforming structure. However, that decision of the
Board was not appealed.
Ms. Cohen contends that the location of the new building is less than ten feet in certain areas
from the eastern property line; 7" X 9" from one corner, 8' X 8" from another corner as measured
by a neighbor. Mr. Schwartz contests this measurement because it was not completed by a
surveyor or anyone qualified to measure lot lines.
was no longer movable, the setback reduction became inapplicable to any other
structure. She maintains that when he tore down the original 12' X 20'
boathouse, he gave up h s right to erect any other structure on the lot. As such,
she argues that the existing building permit to allow a much larger boathouse
with three bedrooms based on the previous setback reduction is in violation of
the Ordinan~e.~
In response, Mr. Schwartz contends that the setback reduction applied to
the lot itself, rather than to any particular structure. Mr. Schwartz's ten-foot
setback reduction was approved. The ten-foot setback was recorded in the
Registry of Deeds with no mention of moving the boathouse. When that
structure fell apart, Mr. Schwartz appropriately filed for a building permit on a
piece of property with a deeded ten-foot setback. Thus, he argues that because
the Board did not place any conditions on the issuance of the setback reduction,
his actions are consistent with the Ordinance.
According to section 16(G)(3)of the Ordinance, "setback reductions are
only available to reduce the minimum requirements for setbacks of structures
from Lot boundary lines. . . . A setback reduction appeal shall not be granted to
enable construction or renovation that will create additional dwelling units."
(emphasis added).6 Furthermore, "setback reductions appeals may only be
granted the minimum extent necessary to accomplish the purpose of the appeal."
The Board may reverse a decision of the CEO only upon a finding that the
Ms. Cohen further argues that Mr. Schwartz's lot became a nonconforming ungrandfathered lot
in 1998 when Mr. Schwartz conveyed a twenty-foot strip of land to Ms. Cohen's brother, leaving
Mr. Schwartz with only a forty-foot property, which is not enough to build on under the
Ordinance.
Although Mr. Schwartz proposes to construct three new bedrooms, the Board did not consider
these to be dwelling units. They determined that a dwelling unit was one with a kitchen,
bathroom, and bedroom.
decision was clearly contrary to specific provisions in the Ordinance.
The Superior Court reviews the findings of a local town board "for an
abuse of discretion, error of law, or findings unsupported by substantial
evidence in the record." Ytlsem v. Town of Raymond, 2001 ME 61, P7,769 A.2d 865,
869. As the party seelung to overturn the Board's decision, Ms. Cohen has the
burden of establishng that the evidence compels a contrary conclusion. Herrick v.
Town of Mechanic Falls, 673 A.2d 1348, 1349 (Me. 1996). In other words, a
demonstration that no competent evidence supports the local board's findings is
required in order to vacate the board's decision. Thacker v. Konover Dm. Coy.,
2003 ME 30, ¶8,818 A.2d 1013,1017. The Court will not substitute its own
judgment for that of a local administrative board. Thacker, 2003 ME 30, ¶ 8,818
A.2d at 869.
Interpretation of the provisions of an ordinance is a question of law.
Kurlanski v. Portland Yacht Club, 2001 ME 147, ¶ 9,782 A.2d 783, 786. The
language at issue in the ordinance must be construed reasonably and with regard
to both the ordinance's specific object and its general structure. Id. Each
undefined term is generally given its common and generally accepted meaning
unless the context of the ordinance clearly indicates otherwise. See Town of Union
v. Strong, 681 A.2d 14, 17 (Me. 1996) (interpreting a statute).
In this case, the issue is whether the CEO's issuance of the building permit
for construction of a larger construction based on the ten-foot setback reduction
permit was clearly contrary to specific provisions in the Ordinance. Mr.
Schwartz argues that the language of the setback provision, which was properly
recorded in the Registry of Deeds, is the golden ticket to h s success in this suit.
The permit simply states that he has a ten-foot setback without referring to any
particular structure. Generally spealung, the practice of the Board as explained
in the minutes of the hearing, is to issue setback reduction permits for lots
without indicating that they apply to a particular ~tructure.~
(Record, Tab E, p.
6).
Despite this local practice, the Ordinance clearly states that a setback
reduction permit is available for the setback of structures. Ordinance 5
16(G)(3)(a).The Ordinance further states that setback reductions may only be
granted the minimum extent necessary to accomplish the purpose of the appeal.
Ordinance § 16(G)(3)(h).
In deciding to grant the setback reduction permit, the Board specifically
stated that the sole purpose of the permit was to move the existing boathouse ten
feet. Although the actual permit does not mention a structure, the plain
language of the Ordinance and the Board's explicit intentions indicate that the
purpose of the setback reduction was to move the existing boathouse. Thus,
when the original 12' X 20' boathouse was no longer movable, the setback
reduction became inapplicable to any other structure. From that point on, Mr.
Schwartz did not have a setback reduction permit with which to apply for
another building permit. The proper course of action would have been to apply
for another setback reduction permit for the proposed 28' X 30' foot boathouse.
Accordingly, the issuance of a building permit for the 28' X 30' boathouse
without a setback reduction permit is in violation of the setback provision of the
7
This means that a lot owner could petition for a ten foot setback for a 10' x 10' building, and
later decide that it wanted a 20' x 20' building, or bigger, when it came time for construction. If
construction began after the appeal date, those interested abutters who were in agreement with
the construction of the 10' x 10' building would be unable to appeal the Board's decision. This
practice frustrates general notions of due process.
~ Ordinance 5 15(A)(7).
O r d i n a n ~ e .See
The entry is as follows:
The decision of the Zoning Board of Appeals of the City of Naples is
REVERSED. The issuance of the building permit for the 28' X 30' foot
boathouse was in violation of the Ordin
DATE: \ ZJ zood
The parties informed the Court that there is a case pending in the Superior Court to determine
title of the ROW dividing Mr. Schwartz' property. Mr. Schwartz believes that if he has title to the
ROW, then he is in compliance with the twenty-foot setback provision of the Ordinance.
6
Date Filed 10/21 105 Docket No. AP-05-80
County
ti^^ 80B APPEAL
LESLIE COHEN ARTHUR SCHWARTZ
TOWN OF NAPLES
VS.
Plaintiff's Attorney Defendant's Attorney
DAVID JOHNSON, ESQ. J O H N F. L O Y D , JR. ESQ. (NAPLES)
MARILYN MISTRETTA, ESQ. 1 6 7 PARK ROW
100 MIDDLE STREET, EAST TOWER BRUNSWICK, M A I N E 0 4 0 1 1
PORTLAND, ME 04101 729-1144
828-8000 Glenn Israel, Esq. (Schwartz)
David Soley, Esq. (Schwartz)
PO Box 9729
Portland, ME 04104-5029
Date of 774-1200
Entry