The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. AP-07-55
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SIDNEY ST. F. THAXTER and
MARY E. MCCANN THAXTER,
Plaintiffs,
v. DECISION AND JUDGMENT
(M.R.Civ.P.80B)
ZONING BOARD OF APPEALS,
CITY OF PORTLAND, and
JOSHUA C. EMPSON,
Defendants.
I. BEFORE THE COURT
This matter comes before the court on the petitioners' second Rule 80B from a
decision of the Zoning Board of Appeals for the City of Portland (City) granting a
building permit to Joshua Empson (Empson) an abutting property owner to the
Thaxters. 1
II. HISTORY AND BACKGROUND
The petitioners, Sidney St. F. Thaxter and Mary E. McCann Thaxter (Thaxter),
own property on Cushings Island in Portland that abuts property owned by Empson.
Under the City of Portland Code of Ordinances (Ordinance), Empson's lot is located in
the IR-1 zone, which requires a minimum lot size of 40,000 square feet in order to
accommodate a subsurface wastewater disposal system when a property owner seeks a
permit for new development. City of Portland Code of Ordin. §§ 14-145.1, 14
145.5(a)(7). Because Empson's lot is less than 20,000 square feet, it does not meet the
1 The plaintiffs filed a previous 80B action where the court vacated the issuance of the building permit
and remanded the case to the Zoning Board for further determination. See Docket No. AP-07-8.
minimum lot size requirement on its own. However, the Ordinance contains a
provision that allows a piece of property to be combined with a non-contiguous lot in
order to satisfy the minimum lot size if the City is granted a conservation easement on
the second lot, and the land burdened by the conservation easement is not
"encumbered by any other easement which prohibits all construction on that lot." [d. at
§ 14-145.5{a){8){e).
In December 1995, Thomas Bethea and Pamela Allen (Bethea/ Allen) granted a
conservation easement (l995 easement) to the City on a piece of property owned by
them for the benefit of the Empson lot. That same piece of property was also
encumbered by a view easement (l990 easement) from Bethea/Allen to John and
Sandra Donnelly (Donnelly) in January 1990.
On October 16, 2006, the City issued a building permit to Empson and the
Thaxters appealed to the ZBA which denied the appeal by a 3-1 vote after a hearing on
January 4, 2007. The Thaxters appealed to this court pursuant to M.R.Civ.P. 80B, see
Thaxter v. City of Portland et al, 2007 Me. Super. LEXIS 183 (Aug. 30, 2007). After hearing,
this court remanded the case to the ZBA after finding that there was not a sufficient
majority of votes for the ZBA to deny the appeal and that there was an inadequate
record for review.
After a second hearing before the ZBA, the Board voted 4-1 to again deny the
Thaxters' appeal.
III. DISCUSSION
A. Standard of Review
This court will uphold a zoning board's decision unless that decision is an abuse
of discretion, contrary to law or lacks the support of substantial evidence on the record.
Uliano v. Board of Environmental Protection, 200S NIE 88 <j[<j[ 6-7, 876 A.2d 16, 18.
2
The interpretation of a zoning ordinance is a question of law that the court
reviews de novo. Brackett v. Town of Rangeley, 2003 ME 109 <]I 15, 831 A.2d 422,427;
however, the court may not substitute its own judgment for that of the Board on factual
determinations. Forbes v. Town of Southwest Harbor, 2001 ME 9 <]I 6, 763 A.2d 1183, 1186.
B. Standing
Empson asserts that the Thaxters do not have standing to contest his receipt of a
building permit because they have not demonstrated that the proposed development
would cause them any harm. According to the Law Court, "[a] party's standing to
bring a Rule 80B appeal is a function of whether the party participated in the
administrative process and whether the party will suffer a particularized injury." Norris
Family Associates LLC v. Town of Phippsburg, 2005 ME 102 <]I 13, 879 A.2d 1007, 1012. It is
clear from the record that the Thaxters participated in the administrative process, so the
only question for this court is whether will they suffer a particularized injury.
Because the Thaxters are abutting property owners, there need only be "a
conceivable injury" to satisfy the second standing requirement. Id. <]I 19, 879 A.2d at
1017.
The Thaxters assert that construction on the undersized Empson lot will cause
harm "to their view, to the rustic character of the island and to their peace and quiet
enjoyment of their property if a generator is placed as close to the Thaxters' house as
possible. ,,2
The court recognizes the unique nature of property in this neighborhood and
that the majority of owners use it to seek a respite from the hustle and bustle of every
2 See n. 1 of petitioners' reply brief. This refers to remarks at the ZBA hearing by William Meserve,
petitioners' co-counsel and a property owner on the island. The remarks are Meserve's characterizations
and do not reflect findings of the Board. Furthermore, support for the location of the generator is not
found in the referenced part of the record.
3
day life on the mainland. Views and quiet enjoyment of island homes and coastal
properties are very important and cherished part of life in Maine. Thus, it is not only
conceivable, but probable that the Thaxters will suffer some intangible injury if Empson
is allowed to build a summer residence next to the Thaxters; therefore, they do have
standing.
C. 1990 View Easement
"Although the terms or expressions In an ordinance are to be construed
reasonably with regard to both the objectives sought to be obtained and the general
structure of the ordinance as a whole, ... [the court look[s] first to the plain language of
the provisions to be interpreted." Gensheimer v. Town of Phippsburg, 2002 ME 22 err 22,
868 A.2d 161, 167 (quotations and citations within are omitted]. "[The court should]
look first to the plain language of the provisions to be interpreted. Id. The court also
"must construe an ordinance reasonably to avoid an absurd result." Lipman v. Town of
Lincolnville, 1999 ME 149 err 5,739 A.2d 842, 843. Additionally, the construction of a deed
is a question of law. N. Sebago Shores LLC v. Mazzaglia, 2007 ME 81 err 13, 926 A.2d 728,
733.
Although the written conclusion of the ZBA is quite concise, it is clear that the
Board interpreted the language of the 1990 view easement to allow for the possibility of
construction. According to their decision, "[t]he view easement allows certain cutting
with restrictions, allows under-grade and even-grade improvements, and allows
construction with consent. The speculation with the view easement is the problem,
because it could allow some construction." Even though the ZBA did not explicitly
state as much, they apparently determined that the 1990 deed did not "prohibit all
construction" as that phrase is used in section 14-145.5(a)(8)(e) of the Ordinance.
The relevant restrictions in the 1990 view easement are as follows:
4
(a) ***
(b) Upon prior written consent of Grantors, their heirs and
assigns; Grantees, their heirs and assigns, may enter on the
View Easement Land for the purpose of cutting (including
removing) and trimming trees and bushes which obstruct
water views over the View Easement Land ... provided that:
(1) Grantees, their heirs and assigns, shall not disturb the
natural setting of the View Easement Land; shall not clear
cut in the area, and shall not trim the trees or bushes in a
fashion which shall endanger the health of the trees or
bushes ...
(c) Upon prior written consent of Grantees, their heirs and
assigns; Grantors, their heirs and assigns, may cut or trim
trees and bushes on the View Easement Land during the
summer months, provided that: (1) Grantors, their heirs and
assigns, shall not disturb the natural setting of the View
Easement Land; shall not clear cut in the area, and shall not
trim the trees or bushes in a fashion which shall endanger
the health of the trees and bushes ...
(d) Grantors, their heirs and assigns, shall not, without prior
written consent of the Grantees, their heirs and assigns,
construct any building, fences, or above-grade
improvements, or plant trees, bushes or other landscaping,
or place other objects on the View Easement Land.
The plain language of the view easement does not contain any expressed
prohibition on construction. However, the Thaxters argue that the decision of the ZBA
is incorrect because the practical effect of the 1990 view easement is to do just that. The
respondents contend that the 1990 view easement does allow for some construction,
particularly if there is agreement between the owners of the dominant and servient
estates. Thus, they assert that the 1990 view easement did not serve as a barrier to the
grant of the 1995 conservation easement for purposes of satisfying the minimum lot
requirement contained in the Ordinance.
The Thaxters also argue that the restrictions contained in both the Ordinance and
the 1990 view easement were intended to preserve the natural state of the island
property and that it does not matter if the view easement can be modified or removed
5
at some future date because it effectively prohibits all construction by requiring
agreement between the grantor and grantee of the easement. 3 The logical problem with
this assertion, however, is that although the parties could agree to leave the land as it is,
the easement as it is currently written would also allow them to agree to construction.
In other words, the easement doe not have to be modified or removed to allow for
construction, it simply requires that the property owners agree about it. While it is true
that the terms of the easement would prohibit above-grade construction without
consent from the holder of the easement, the fact remains that construction is possible
under the plain language of the document. 4 Because that possibility exists, the
easement does not "prohibit all construction" and does not serve as a barrier to the
grant of the 1995 conservation easement or the issuance of the building permit.
3 Empson points out that the original grantor sold the burdened parcel of land to one of the two holders
of the view easement. Thus, the current owner of the servient estate, Sandra Donnelly (Donnelly), also
holds the view easement jointly with her husband. Empson asserts that there is nothing to prohibit the
Donnellys from developing the land if they chose to do so. However, because the burdened estate is
owned by only one of them and they are both holders of the easement, the two property interests have
not actually merged, as a married person in this State may own property in his or her own right. See 19-A
M.R.S. § 801 (2007). Donnelly could therefore sell the property that is subject to the easement at any
point. Moreover, there is no evidence in the record that would suggest that the 1990 view easement is no
longer in effect.
4 Although the parties have argued about whether or not the terms of the easement would allow for
under-grade and even-grade construction without consent, it is unnecessary for the court to address this
claim because the language clearly contemplates above-grade construction with consent.
6
D. Municipal Estoppels/Third-Party Beneficiary
According to the plain language of the 1990 deed (Bethea/ Allen to Donnelly), the
view easement does not prohibit all construction, particularly if the owners of both the
dominant and servient estates agree. Therefore, it is unnecessary for the court to reach
these arguments.
IV. DECISION AND JUDGMENT
The clerk will make the following entry as the Decision and Judgment of the
court:
A. The decision of the City of Portland Zoning Board of Appeals is
affirmed.
B. No costs are awarded.
SO ORDERED.
~£:
DATED: June 26, 2008 >
Thomas E. Delahanty II
Justice, Superior Court
5 Empson argues that the City is estopped from failing to issue the building permit because he relied on
the City's interpretation in a 1995 letter of the 1990 deed and the Ordinance. The Thaxters assert that the
ZBA was not entitled to consider the earlier interpretation, which they characterize as an ex parte
proceeding. However, as the ZBA notes, there is no evidence in either the written decision or the
transcript of the October 4,2007 hearing that the ZBA considered the 1995 letter at all.
7
Date Filed 11-02-07 CUMBERLAND _ Docket No. AP-07-55
County
•
Action BOB APPEAL
SIDNEY ST F THAXTER ZONING BOARD OF APPEALS
MARY E MCCANN THAXTER CITY OF PORTLAND
JOSHUA C EMPSON
YS.
Plaintiff's Attorney Defendant's Attorney
SIDNEY ST F THAXTER ESQ JAMES ADOLF, ESQ. (City of Portland)
ONE CANAL PLAZA SUITE 1000 389 CONGRESS STREET
PORTLAND ME 04112-7320 PORTLAND, MAINE 04101-3509
(207) 774-9000 874-8480
CHRISTOPHER NEAGLE, ESQ.
P.O. BOX 9711 (J. Empson)
PORTLAND, MAINE 04104-5011
780-6789