The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. AP-05-51
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TIMlO'I'HY and 'I'ERRIL FERNALD,
Plaintiffs
ORDER
TOWN OF ELIOT,
Defendant
This case comes before the Court 011 Petitioner Timothy Fernald's appeal of a
decision of the Zoning Board of Appeals of the 'lown of Eliot pursuant to M.R. Civ. P.
80B. Following hearing, the appeal is Denied and the decision of the Zoning Board of
Appeals is Affirmed.
FACTUAL BACKGROUND
Petitioner Timothy Fernald was granted a conditional use permit in 1985 to
operate an auto repair garage with the foiiowing restrictions:
1. A limit of six (6) vehicles, exclusive of owner's vehicle, to be
allowed at any one time.
2. The worlung hours tn be 8:00 a.m. to 5:00 p.m. for business
purposes.
On February 7, 2005, the Code Enforcement Officer ("CEO") of the Town of Eliot
issued Mr. Fernald a Notice of Violation and Order to Correct for violations of the Town
Zoning Ordinance ("Ordinance"). Mr. FPI-naldwas specifically cited for operating an
automobile graveyard, a prohibited use in the Village District where he lives.
Ordinance 5 45-290. In addition, Mr. Fcrnald was cited for violations of the Waste
Container Ordinance. Ordinance 45-422. Mr. Fernald appealed t l ~ edecision of the
CEO to the Zoning Board of Appeals ("ZBA"). After a public hearing, the ZBA
concluded that the intent of the 1985 conditional use permit was to permit Mr. Fernald
to conduct an auto repair garage. 'The ZBA found that more than three unregistered
unserviceable vehicles were on the property creating an auto graveyard. The ZBA also
found that that the waste container in Mr. Fernald's front yard was not screened in as
required under the Ordinance.
DISCUSSION
Mr. Fernald first argues that the ZBA erred in determining that he violated his-
auto repair garage permit by conducting and auto graveyard on his property. He
contends that the permit does not specifically state that the six vehicles stored on the
property must be "serviceable." Next, he asserts that for the waste container provision
of the Ordinance to be violated, the waste container must be located in a front yard. He
argues that his waste container is not located in the front yard because there is no street
to demarcate where a front yard would be. The access drive to his property is Spruce
Lane, which he argues is a dirt road wholly contained within the boundaries of h s
property.
The Superior Court reviews the findings of the ZBA "for an abuse of discretion,
error of law, or findings unsupported by substantial evidence in the record." Yusem v.
Town of Raymond, 2001 ME 61, P7, 769 A.2d 865, 869. As the party seelung to overturn
the ZBA's decision, Mr. Fernald has the burden of establishing that the evidence
compels a contrary conclusion. Herrick v. Toeon of Mec/zanic Falls, 673 A.2d 1348, 1349
(Me. 1996). In other words, a demonstr-;itionthat no competent evidence supports the
ZRA's findings is required in order to vacate the board's decision. Thacker v. Knnnver
Dev. Corp., 2003 ME 30, T 8, 818 A.2d 1013, 1017. The Court will not substitute its own
judgment for that of a local administrative board. Thncker, 2003 ME 30, ¶ 8, 818 A.2d at
Interpretation of the provisions of an ordinance is a question of law. K~~rlnnski
v.
Portland Yacht Club, 2001 ME 147, '$ 5, 782 A.2d 783, 786. The language at issue in the
ordinance must be construed reasonably and wit11 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 uniess the context of the ordinance clearly
indicates otherwise. See Town of Union v. Strong, 681 A.2d 14, 17 (Me. 1996) (interpreting-
a statute).
a. Auto Repair Garane vs. Auto Graveyard
The Ordinance clearly distinguishes between an auto repair garage and a auto
graveyard. The Ordinance defines auto repair garage as:
a place where, with or without the attendant sale of engine fuels, the following
services may be carried out: general repair, engine rebuilding, rebuilding or
reconditioning of motor vehicles, collision service, such as body, frame, or fender
straightening and repair, and overall painting and undercoating of automobiles.
Ordinance 5 1-2
The Ordinance further defines auto graveyard as:
a yard, field, or other open area used as a place of storage for three or more
unregistered or unserviceable, discarded, worn-out, or junked motor vehicles,
including all vehicles which cannot pass the state inspection test in their existing
condition or are otherwise inoperable.
In interpreting the Ordinance, the ZBA determined that an auto repair garage,
when conducting its business, must have repairable, serviceable vehcles on the
property. The Court agrees. Co~llmonsclise dictates that an aulo repair garage repairs
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vehicles for further use on the roads. A n auto graveyard is a resting place for
unregistered, unserviceable vehicles that cannot pass state inspection. 111 examining the
Ordinance as a whole, this is a reasonable interpretation that applies a common sense
meaning to the terms of the Ordinance.
The next question is whether the ZBA had substantial and competent evidence
before it to conclude that Mr. Fernald was conducting an impermissible auto graveyard.
The evidence before the ZBA included testimony from the CEO that most of the
vehicles on the property were inoperable, were not inspected, and were parked there
for at least six months; a series of nine photographs presented by the CEO depicting
more than ten vehicles covered in s ~ o M ~and
; ' no evidence that less than three vehicles
were stored on the property. Rather, xvhen asked how many vehicles he had on the
property, Mr. Fernald said he could not remember. (R. p. 30). However, earlier he
admitted to having up to 17 vehicles on the property. (R. p. 28). There is substantial
and competent evidence in the record to support the ZBA's finding that Mr. Fernald has
more than three unregistered, unserviceable vehicles on his property. When confronted
with whether Mr. Fernald was operating an auto repair garage pursuant to his 1985
conditional use or an impermissible auto graveyard, the ZBA had substantial and
competent evidence to conclude the latter.
b. Waste Container
Mr. Fernald argues that his waste container is not located in his front yard and
therefore does not have a setback or screening requirement pursuant to § 45-422. His
theory is that a for a front lot to exist it has to be bordered by a "qualifying street,"
which, he argues, Spruce Lane is not. Ordinance 9 1-2.
Waste containers that are visible from a public way or filly (50) feet ol a
residential structure must be enclosed or screened from abutting properties. Ordinance
I
T h e photographs show many vehicles with their windshields covered in snow and no tire tracks
leading away from the property. This indicates that the vehicles were being stored there for a period of
time.
5 45-422(2). The first issue is whether Spruce Lane is a recognized street under the
Ordinance. If so, the area between Mr. Fernald's house and Spruce Lane is considered
his frolit yard. Id. The Ordinance defines street as "highways, avenues, boulevards,
roads, town ways, lanes, bridges, and ali other public ways dedicated to public use."
Ordinance 5 1-2.
Mr. Fernald admitted that he shared the long d r i v e ~ ~ a(Spruce
y Lane) with
others for years. Furthermore, the tax map of the Towin of Eliot shows that Spruce Lane
provides the only access to at least five other lots.2 Spruce lane is not merely a driveway-
to Mr. Fernald's property, but rather it is a public way. Accordingly, Mr. Fernald's
waste container is located in his front yard and must comply with the setback and
screening requirements of the Ordinance. A Spruce Lane neighbor testified that the
waste container is located inches from her house. (R. p. 32). She testified that the
container is overflowing with trash and generates a rancid smell. Another neighbor
testified that she does not want his trash flowing all over the road. (R. p. 32). The ZBA
was provided pictures of the waste container.
The Court concludes that there is substantial and competent evidence in the
record to support the ZBA's finding that Mr. Fernald's waste container is in the front
yard, within fifty feet of a residential structure, and not screened in as required by the
Ordinance.
The entry will be as follows:
The Petitioners' appeal is Denied and the decision of the ZBA is Affirmed.
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Dated: March i f , 2006
PLAINTIFF: N e a l Weinstein E s q .
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PO BOX 6 6 0 /ii G. ~ p f h u rrennin
Old Orchard Beach M e 04064-660 ' ~usti>e,Superior Court
2
The following Spruce Lane residents testifred at the hear~ng:Deborah Metcnlf, 17 Spruce Lane;
Betsy West, 14 Spruce Lane; and Laurie Retn~ck,20 Spruce Lane.
DEFENDANT: K a t h e r i n e Knox, E s q . , BERNSTEIN
PO B o x 9 7 2 9 fHUR SAWYER AND NELSON
P o r t l a n d M e 04104-5029