# Wister v. Town of Mt. Desert

> Superior Court of Maine · September 12, 2008

URL: https://www.frixlaw.com/law-library/cases/10809062

## Case

- **Court:** Superior Court of Maine
- **Decided:** September 12, 2008
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Jeffrey L. Hjelm
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

STATE OF MAINE SUPERIOR COURT
HANCOCK, SS. CIVIL ACTION
Docket No. AP-07-11 {
1: ;~. ~,

Alberta Wister,
Plaintiff

v. Order on Appeal

Town of Mt. Desert et aI.,
Defendants

Alberta Wister appeals from a decision of the Town of Mt. Desert Zoning Board
of Appeals (ZBA), granting a variance to Benjamin C. Moore and Alice G. Carter to
construct a driveway within the setback associated with the boundary line for their
parcels of land. Wister argues here that the ZBA erred in issuing the variance because,
she contends, it did not have jurisdictional authority to do so. For the reasons set out
below, the court agrees with this argument and remands this matter to the ZBA for
dismissal of the variance applications.
Moore and Carter jointly own a parcel of land (lot 35) located in the Town of Mt.
Desert, and Moore individually owns an abutting parcel (lot 35-1). But for a 20-foot
wide, 361-foot long strip that extends between Milbrook Road and the main portion of lot
35, that parcel would be landlocked. See R. 15 (map). Lot 35-1 is in fact landlocked.
See id. However, it is benefited by a 20-foot wide deeded right-of way that extends over
the strip that is part of lot 35 and then over a portion of the main part of that lot. Moore
and Carter filed an application for a setback variance to allow construction of a driveway
over the strip to improve access to lot 35, and Moore applied for similar variance to allow
the construction within the right-of-way associated with lot 35-1. They sought a variance
from the ZBA because under the municipal applicable ordinance, a driveway must be at
least twelve feet wide and must be setback at least five feet from any property line. See
Town of Mt. Desert Land Use Zoning Ordinance (Ordinance), § 2.7.6 (R. 98). Because
the strip connected the main portion of lot 35 to the Milbrook Road is 20-feet wide, it

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could not accommodate a driveway as wide as the ordinance required and still conform to
the setbacks, which would apply to both sides of the driveway. To meet the ordinance's
requirements, a property owner would need land 22-feet wide, and the strip where the
driveway would be located here is only 20-feet wide. Accordingly, Moore and Carter
sought a setback variance from the ZBA that would authorize them to build the driveway
within at least one of the setbacks. After a public hearing, the ZBA evaluated the
variance applications against the statutory standards established in 30-A M.R.S. §
4353(4) and granted the applications. Wister, an abutting neighbor, appealed that
decision to this court.
Wister first argues that the ZBA does not have the authority to grant a variance
from an ordinance that is of universal application throughout the municipality. Wister,
through counsel, raised this issue at the ZBA hearing, and the ZBA -- either impliedly,
see R. 49, or expressly, see R. 81 -- rejected the jurisdictional challenge.
The ordinance defining the jurisdiction of the Town of Mt. Desert ZBA empowers
it "[t]o hear variance requests and authorize variances as provide in Title 30-A MRSA
Section 4353." See Reorganization of the Town of Mount Desert Zoning Board of
Appeals (Reorganization), § 4(A)(2) (R. 90). The local law does not expand or otherwise
modify the jurisdiction and authority granted generally to zoning boards of appeal under
section 4353. Thus, section 4353 is the touchstone of the extent to which the ZBA was
authorized to act on the variance applications filed by Moore and Carter.
Wister argues that under section 4353, a zoning board of appeals has authority to
act only on requests for variances from zoning ordinances. None of the defendants
contests this construction of the statute.' Although Moore and Carter discuss a ZBA' s

, Section 4353 is entitled, "Zoning adjustment," which clearly suggests that the terms of
that statute control zoning issues, which in turn may indicate that the law of variances set
out in that statute applies to variances from zoning ordinances. On the other hand, the
"variances" that are identified in the text of section 4353 are not expressly described as
variances from "zoning ordinances," as opposed to variances from some other type of
land use ordinance. However, as is noted in the text, Moore, Carter and the Town do not
dispute Wister's assertion that the variances that a ZBA may authorize under section
4353 are limited to variances from zoning ordinances. This frames the parties' arguments
on the question of whether the municipal driveway setback requirements at issue here are
"zoning ordinances," which could be the subject of a variance within a ZBA's
jurisdiction under section 4353(4), or whether those setbacks are something other than a

2
appellate authority, which is largely established in both section 4353 and 30-A M.R.S. §
2691, that aspect of its jurisdiction is distinct from its authority to act on requests for
variances. Here, the municipal ZBA did not act pursuant to any appellate jurisdiction it
held. The ZBA's proceedings were preceded by the municipal code enforcement
officer's decision to deny Moore and Carter a permit to construct the proposed driveway.
However, Moore and Carter did not file an appeal from that decision. Rather, their
applications to the ZBA were expressly presented and as applications for a setback
variance, and the ZBA treated the applications in that way. Therefore, the procedures
and jurisdiction associated with appeals to the ZBA are not implicated here.
From Wister's predicate contention that the ZBA had jurisdiction to entertain the
setback variance applications filed by Moore and Carter only if the variance was from a
zoning ordinance, the next question is whether the driveway setback requirement is - or
is not - a zoning law. A "zoning ordinance" is defined statutorily as "a type of land use
ordinance that divides a municipality into districts and that prescribes and reasonably
applies different regulations in each district." 30-A M.R.S. § 4301(15-A). A "zoning
ordinance" is thereby to be distinguished from a "land use ordinance," which 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. § 4301(8). Wister urges here that the driveway setback ordinance,
from which Moore and Carter sought relief, was not a "zoning ordinance" but rather was
a "land use ordinance."
The Town's driveway setback requirements are of general application throughout
the Town. Indeed, those setbacks are part of a portion of the land use ordinance entitled,
"General Regulations," which set out a number of requirements that mostly apply
uniformly in all zoning districts within the Town of Rockport. See R. 97-99. Therefore,
the driveway setback ordinance falls squarely within the definition of a "land use
ordinance" established in section 4301(8). Similarly, the driveway setback ordinance
cannot be regarded as a "zoning ordinance" as defined in section 4301(15-A), because it

zoning ordinance, as to which the ZBA therefore would have no authority to issue a
variance.

3
is not a regulation that applies differently among the various zoning districts. 2
Consequently, the ZBA did not have authority to grant a variance from the driveway
setback ordinance, because that ordinance is not a "zoning ordinance" that may be subject
of variance relief.
The Town argues that the driveway setback should be treated as a "zoning
ordinance" because it is included in the set of laws that the municipality labeled as its
"Land Use Zoning Ordinance" and because such a characterization better accomplishes
the purposes of the ordinances as described in the preamble. However, the Town's
choice of labels must yield to the nature of the ordinance as determined by state statute,
and the court cannot conclude that treatment of the driveway setback ordinance as a "land
use ordinance" that is not subject to variance would compromise the goals of the
ordinances. The Town also argues that there is no need to examine the nature of the
setback requirement because it is not applicable to the Moore and Carter parcels in the
first place. This, however, is not an argument that was raised before the ZBA, and it
clearly does not represent the reason why the ZBA decided the matter favorably to Moore
and Carter. Indeed, the ZBA concluded that a variance was proper under the criteria
established in section 4353, thereby establishing its position that a variance could be
granted from the requirements of the ordinance. Because the ZBA was not asked even to
consider whether a variance was needed in the first place, the issue has been waived, and
the court declines to consider it here in the first instance.
Finally, Moore and Carter argue that the adminstration of the ordinance will be
complicated if some of its provisions are treated as zoning ordinances (subject to
variances) and others are treated as land use ordinances (not subject to variances). This

2 The court recognizes that the Law Court has referred to the existence of "zoning
requirements in the form of a uniform town-wide ordinance...." Perkins v. Town of
Ogunquit, 1998 ME 42, , 12, 709 A.2d 106, 109. However, none of the defendants has
argued that this passage amounts to a holding that the driveway setbacks at issue here are
therefore a "zoning ordinance," as opposed to a "land use ordinance." And it bears note
that the Perkins Court also recognized the distinction between ordinances of general
application and those that are limited to particular zoning districts. See id., , 11, 709
A.2d at 109. See also Bragdon v. Town of Vassalboro, 201 ME 137, , 8, 780 A.2d 299,
302; LaBay v. Town ofParis, 659 A.2d 263,265-66. Further, the plain meaning of the
definitional provisions of sections 4301(8) and 4301 (l5-A) reveal that the setbacks
involved in this case cannot be "zoning ordinances" as contemplated by those statutes.

4
argument, however, fails to account for the fact that the municipal legislation in fact
includes both types of ordinances in its legislation and that, under section 4353, the
different types of ordinances have different consequences and lead to different sets of
rights for those affected by them. The advisability of integrating both zoning ordinances
and land use ordinances, as those types of law are defined by state statute, is a matter of
policy and local judgment, and it is certainly something that is beyond the proper
consideration of the court.

The entry shall be:
For the foregoing reasons, the decisions of the Town of Mt. Desert Planning
Board to grant the variance applications are vacated. This matter shall be remanded to
the Planning Board for dismissal of the variance applications for lack of jurisdiction.

Dated: September 10, 2008
Justice,

REClEfVED & F~lED
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5

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10809062. Public record. Not legal advice.