The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET, NO. AP-06-08
\
LORETTA WEIGEL,
Plaintiff
v. ORDER
DONALD L. GARBRECHT
LAW LIBRARY
TOWN OF WELLS,
SEP 07 2007
Defendant
This matter comes before the Court on Loretta Weigel's 80B appeal of
administrative action taken by the Town of Wells. Following hearing, the appeal is
Denied.
BACKGROUND
Plaintiff Loretta Weigel ("Weigel") operates a real estate brokerage business at
664 Post Road in the Town of Wells ("the Town"), a municipality in York County. She
and her husband have operated their business since approximately 1986, prior to the
Town's current site plan review requirements. Weigel rented her property to Jodie
Foster ("Foster") in 1998 so that Foster could operate her business, The Comfort Zone.
Foster obtained site plan approval for her business, but her venture failed shortly after
that, and Weigel resumed her real estate business. In 2002, Weigel and her husband
eliminated the property's landscaped buffers, paved those areas, and added a sidewalk
fronting on Route 1 and four parking spaces next to a right of way called Hobson's
Lane. Two years later, the Town's Code Enforcement Officer ("CEO") informed Weigel
that these changes violated the site plan. Receiving no response, in September 2004, the
CEO issued a citation to Weigel for failure to comply with Foster's 1998 site plan by
altering her property in violation of the Wells Land Use Ordinance.
Weigel applied to the Town's Zoning Board of Appeals ("ZBA") in October 2004
to amend the site plan. She submitted an appeal petition but wrote that she was not
requesting a variance or an appeal; consequently, no hearing was scheduled. In
November 2004, the Town Planner informed Weigel that her application was
incomplete, but she submitted nothing further. The CEO instituted an enforcement
action against Weigel per M.R. Ov. P. 80K in March 2005. While defending that action
in April, Weigel's counsel contacted the ZBA to have a hearing scheduled, but the ZBA
again did not schedule a hearing. The CEO then sought to add new violations to its 80K
complaint. Subsequently, the parties agreed to stay the enforcement action and the
CEO issued Weigel a second notice of violation for expanding her land area without site
plan approval, failing to use landscaped buffers to separate the additional parking from
the right of way, and changing the premises without a permit. The second citation did
not address the Foster site plan issue. Weigel properly appealed this citation to the
ZBA. On January 24, 2006, the ZBA denied her appeal, affirming the second violation
by a vote of four to one after a hearing earlier that month.
Weigel then filed the instant Rule 80B appeal with this Court, contending that the
Court should overturn the first violation because it applied to Weigel's tenant's site
plan, not to her use. She also asks this Court to vacate the ZBA's decision on the second
violation. The Town contends that the ZBA properly upheld the CEO's citations of
Weigel.
2
DISCUSSION
1. Standard of Review.
The party appealing aboard's decision bears the burden of persuasion. Twigg v.
Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). Review of board findings is "for an
abuse of discretion, error of law, or findings unsupported by substantial evidence in the
record." O'Toole v. City of Portland, 2004 :ME 130, «j[ 8, 865 A.2d 555, 558. This Court is
"limited to determining whether the record contains evidence to justify the Board's
determination." Lewis v. Maine Coast Artists, 2001 ME 75, «j[ 14, 770 A.2d 644, 650. A
municipal board's interpretation of a zoning ordinance, however, is a legal question
entitled to de novo review. Lewis v. Town of Rockport, 2005 ME 44, «j[ 11, 870 A.2d 107,
110.
2. Does This Court Have Iurisdiction to Evaluate the First Citation?
A threshold issue for this Court is whether it may consider Weigel's argument
about the Foster site plan absent a ZBA decision. M.R. Civ. P. 80B(a) provides for
review by this Court of a local board's action or "failure to act." This Court does not act
as a fact finder and "may not substitute its judgment for that of the municipal
administrative agency." V.S.H. Realty, Inc. v. Gendron, 338 A.2d 143, 145 (Me. 1975).
"Meaningful judicial review of an agency decision is not possible without findings of
fact sufficient to apprise the court of the decision's basis." Chapel Road Associates, LLC v.
Town of Wells, 2001 ME 78, «j[ 10., 787 A.2d 137, 140.
Here, the Board did not act on Weigel's petition after she received the first
citation because she stated on that application that she was not appealing or requesting
a variance. Instead, she sought amendment of the site plan. The record reveals that
after filing the petition, she spoke with Town officials to express her view that Foster's
site plan did not apply to her, although that issue was never resolved. Given this, it
3
cannot be said that the ZBA failed to act on her petition, which was not technically an
administrative appeal. Because Weigel never properly appealed the citation, there are
no findings of fact for this Court to review, and the local board never rendered a
decision. Issues raised in the first citation, therefore, are not reviewable by this Court.
3. Did the ZBA Properly Uphold the Second Citation?
The ZBA upheld the CEO's second citation in this case on all three of the listed
grounds. This Court will assess each ground in tum. First, the ZBA upheld the CEO's
finding that the sidewalk and sideline paving violated § 145-70(C) of the Town of Wells
Code, which states that site plan approval is needed for expansion of floor or land area
as part of an existing use. Operating a business is a permitted use under Code § 145
26(C)(5). Under § 154-70, all permitted uses are subject to site plan approval. In its
findings, the ZBA stated that expanding the permitted use (the business) by adding
extra parking to facilitate that use brought Weigel's activities within the definition of
expansion of an existing use as it is described in the Code. Weigel argues that because
sidewalks and parking spaces are not in the list of permitted uses in § 145-26, and the
ZBA found that parking was an accessory use to her permitted business use, she was
not required to obtain site plan approval prior to making changes. 1 At issue here is
whether Weigel's paving constituted expansion of the land area of her existing use. As
this Court's review of the ZBA's findings in this regard is deferential, it was not an
abuse of the ZBA's discretion to conclude that paving the area to add more parking
constituted an expansion of Weigel's existing business use. Its findings affirming this
violation are upheld.
Weigel also argues that her use is grandfathered because her business began before the site plan
requirement went into effect. It is accurate that her original use was grandfathered, but changes to that
use are not grandfathered and are subject to site plan approval.
4
Second, the ZBA affirmed the CEO's finding that Weigel violated § 145-38 of the
Code, which requires a landscaped buffer between residential and nonresidential uses.
The issue pertaining to this violation is one of statutory construction, which this Court
reviews de novo. The language of this section specifically states that business parking
areas are to be "visually screened from adjacent residentiallots/l and goes on to describe
height and width requirements for the shrubbery. The ZBA determined that
eliminating the landscaping to pave the area violated this provision. Weigel argues that
the ZBA read the landscaping language out of context, and that the language is limited
to situations in which nonresidential areas abut lots in residential areas. This provision
states that "setback areas along lot lines other than those along street rights-of-way on
lots in nonresidential districts which abut a residential district shall be landscaped./I §
145-38. The Code, however, also explicitly provides in the same paragraph that
"[e]xcept in the Beach Business District, all business or institutional parking and
outdoor storage areas shall be separated from a street right-of-way by a landscaped
buffer strip./I ld. (emphasis added). Because this language applies to all lots that are not
in the Beach Business District, and Weigel's property is not in that district, the plain
language of the statute supports the ZBA's construction. Its conclusions regarding the
second violation are upheld.
Lastly, the ZBA affirmed a violation of Code § 145-62(A), which states that it is
illegal "to use or occupy ... any building or premises ... wholly or partially altered in
its use until a use permit is issued by the Code Enforcement Officer./I The ZBA
concluded that because the parking use was an expansion, Weigel cannot use or occupy
the property until the CEO issues a use permit. As with the first violation, the
ordinance is clear and the issue is whether the facts of this situation fit the ordinance,
which entitles the ZBA to a deferential review. Weigel contends, as she did regarding
5
the first violation, that her additional parking did not constitute an expansion of her
use. Because this Court must deferentially review the ZBA's factual decisions, the
violation should be affinned, as the ZBA determined that the additional parking
constituted an expansion.
CONCLUSION
The ZBA's decision is affirmed.
Dated: May 10, 2007
Justice, Superior Court
PLAINTIFF:
DANIEL CUMMINGS ESQ
NORMAN HANSON & DETROY
PO BOX 4600
PORTLAND ME 04112-4600
DEFENDANT':
DURWARD PARKINSON ESQ
BERGEN & PARKINSON
62 PORTLAND RD
KENNEBUNK ME 04043-6658
6