Hynes v. Town of Kittery

STATE OF MAINE SUPERIOR COURT

YORK, SS. CIVIL ACTION

DOCKET NO. AP-13-040

STEPHEN A. HYNES, TRUSTEE

STEPHEN A. HYNES REAL

PROPERTY TRUST AGREEMENT

DATED MARCH 29, 1995

Plaintiff,

v. ORDER

TOWN OF KITTERY, MAINE and

THE PLANNING BOARD OF SAID

TOWN,

Defendants.

I. Background

Plaintiff Stephen A. Hynes ("Hynes") brings this M.R. Civ. P. SOB appeal from a

decision of the Town of Kittery Planning Board ("the Town") denying a request to

expand a mobile home park. Hynes also brings an independent claim seeking a

declaration that the ordinance is preempted by 30-A M.R.S. § 4358 and inconsistent with

the Law Court's decision in Bangs v. Town ofWells, 2000 ME 186, ~ 20, 760 A.2d 632.

A. Facts

Hynes owns the Yankee Commons Home Park ("Yankee Commons") in Kittery,

Maine, which is composed of 63 mobile homes. In 2011, Hynes sought to expand Yankee

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Commons with 79 more mobile homes ("the Expansion Project") into an adjacent 50-acre

lot ("the Proposed Site") that he also owns. Most of the Proposed Site is located in the

Mixed-Use Zone of Kittery, with smaller portions zoned Residential-Rural and as a

Shoreland and Resource Protection Overlay Zone. Current designs for the Expansion

Project require excavation and removal of a substantial amount of earth to create a level

surface for construction.

B. Procedural History

Hynes pursued several applications that advanced through a number of municipal

decision makers before arriving in this court. The procedural history is thus somewhat

complicated. After commencing discussions with the Town about a project to expand

Yankee Commons, Hynes submitted a Subdivision Sketch Plan Review Application on

December 20, 2011, which was accepted by the Planning Board. The Board visited the

Proposed Site on September 4, 2012.

At a public hearing on September 13, 2012, Hynes presented the Application to

the Planning Board. The Planning Board found the amount of excavation required for the

Proposed Expansion "excessive" and not incidental, and advised Hynes to either (1) seek

a mineral extraction permit from the Code Enforcement Officer ("CEO"), or (2) resubmit

a new application with less excavation. Hynes disagreed that a mineral extraction permit

was required on the grounds the excavation was merely "incidental" to the project. Under

the mineral excavation permit requirements, there is an exception for "incidental"

excavation, which does not require a permit.

Despite believing a permit was not required, Hynes applied for one with the CEO.

The CEO denied the application because mineral extraction is not a permitted use in the

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Mixed-Use Zone, and directed Hynes to appeal to the Board of Appeals ("BOA"). The

BOA reversed the CEO, concluding it had jurisdiction to consider the application and, as

pressed by Hynes, the excavation was incidental to the Expansion Project.

With a favorable decision from the BOA, Hynes returned to the Planning Board.

The Planning Board refused to reconsider the finding that the excavation was not

incidental to the project, concluding that the BOA lacked jurisdiction to hear the appeal

because the mineral extraction permit review process requires the CEO make a

recommendation, which is forwarded to the Planning Board to make an ultimate decision.

After the Planning Board refused to revisit the matter, Hynes filed a second

application with the CEO for a mineral extraction permit. This time, the CEO issued a

recommendation to the Planning Board that the project receive consideration for the

permit only in the Residential-Rural Zone because mineral extraction was not a permitted

use under the zoning that applied to rest of the Proposed Site.

The Planning Board denied the Subdivision Review Application on September

26, 2013, ruling: (1) the Proposed Expansion requires a mineral extraction permit because

the quantity of excavation required is not "incidental" to the project, and such a permit

could not issue because mineral extraction is not permitted in the Mixed-Use Zone, and

(2) mobile home parks are not permitted in the Mixed-Use Zone, and the ordinance is not

preempted by 30-A M.R.S. § 4358 because single family homes are similarly not

permitted.

IT. Discussion

A. Rule SOB Appeals Standard

...,

.)

Rule SOB appeals require the court to review the fact-finder's decision below for

errors of law, abuse of discretion, or findings not supported by substantial evidence.

Friends of Lincoln Lakes v. Town of Lincoln, 2010 ME 78, ,-r 9, 2 A.3d 284; Aydelott v.

City of Portland, 2010 ME 25, ,-r 10, 990 A.2d 1024.

Construction of a municipal ordinance is a question of law reviewed under a de

novo standard. Isis Dev., LLC v. Town of Wells, 2003 ME 149, ,-r 3, 836 A.2d 1285. The

court considers "the plain meaning of the statutory language to give effect to legislative

intent, and if the meaning of the statute is clear on its face, then we need not look beyond

the words themselves."' Jade Realty Corp. v. Town ofEliot, 2008 ME 80, ,-r 7, 946 A.2d

408 (citations omitted). "Undefined terms should be given their common and generally

accepted meaning unless the context clearly indicates otherwise." Ballard, Inc. v.

Westbrook, 502 A.2d 476, 480 (Me. 1985).

B. Whether a Mineral Extraction Permit Is Required

1. Whether the Town is Bound by the BOA's Decision

The parties begin with procedural arguments about whether the CEO had

authority to make the initial decision that led to the BOA decision in Hynes' favor, which

the Planning Board declined to follow stating the BOA lacked jurisdiction. These

arguments need not be considered because the parties agree that the CEO and BOA do

not have the ultimate authority to grant or deny mineral extraction special permits, but

rather the power rests with the Planning Board. (Def.'s Brief23-24.) If however Hynes is

not required to obtain the permit, the Planning Board's authority with respect to a mineral

extraction permit determination is moot. The issue therefore turns on whether Hynes

needs the permit in the first place.

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2. The Meaning of "Incidental"

As illustrated by 1:he conflicting dispositions below, whether the Proposed

Expansion requires a mineral extraction special permit depends on whether the

excavation can be properly characterized as "incidental" to the project. Under the

Ordinance,

Topsoil, rock, sand,, gravel and similar earth materials may be removed

from locations where permitted under the terms of this Code, only after a

special permit for such operations has been issued by the Code

Enforcement Officer upon approval and review of the plans by the

Planning Board in accordance with the provisions of this Code, and

provided that nothing herein may be deemed to apply to normal

excavation operations incidental to construction activities for which a

valid permit is held.

Kittery, Me., Code § 16.9.1.2(A). Relevant here is the meaning of "normal excavation

operations incidental to construction activities for which a valid permit is held."

"Incidental" is not defined. The parties thump competing dictionaries that they believe

confirm their preferred defi.nition of "incidental," which range from Merriam-Webster's:

"being likely to ensue as a chance or minor consequence," Def. 's Brief 21, to Black's

Law Dictionary: "[d]epending upon or pertaining to something else as primary;

something necessary, appertaining to, or depending upon another which is termed the

principal." (Pl.'s Brief24.)

In Hynes' view, the Planning Board improperly applied a quantitative rather than

a qualitative· standard. (Pl.'s Brief 24.) In other words, the Planning Board looked to the

amount to be excavated rather than the excavation's purpose. Because the primary

purpose of the Proposed Expansion is to expand Yankee Commons, any excavation,

regardless of how substantial, is incidental to the construction Hynes wants to build. The

Town urges a reading that considers quantity, which could transform this into a factual

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issue that would entitle the Town's determination to greater deference. (Def.'s Brief20.)

To that end, the Town contends the excavation is not "incidental" because (1) Hynes

seeks to level a hill and remove up to 10,000 truckloads of materials, and (2) intends to

sell the material, which means the project "resembles a commercial quarrying or mining

operation far greater in scope than normal site work." (Def. 's Brief 22.)

Despite the Town's urging that this court confer deference to the Planning

Board's interpretation, there is no dispute as to the quantity or character of materials to be

excavated, and thus no factual determination below that warrants deference. This is not a

case where the court defers to a Town's characterization of a structure, Jordan, 2003 :ME

82, ~~ 8-9, 828 A.2d 768, or to a Town's choice between two competing use

categorizations for zoning. Rudolph v. Golick, 2010 :ME 106, ~ 8, 8 A.3d 684. The basis

for the Planning Board's decision under review here was not dependent on any factual

findings. Rather than applying facts, construing "incidental" can proceed under an

"ordinary meaning" analysis-a question of law. See Jade Realty Corp., 2008 :ME 80, ~

7, 946 A.2d 408 (court should give terms "their common and generally accepted meaning

unless indicated otherwise by their context in the ordinance") (citations omitted).

Hynes' interpretation is more persuasive for several reasons. As a practical

matter, any number of projects would have to obtain mineral extraction special permits

because the threshold-I 00 cubic yards-is relatively low considering the size of the lot

and the other uses permitted in the Mixed-Use Zone. The exclusion under 16.9.1.2(A) for

"normal excavation operations incidental to construction activities for which a valid

permit is held" clearly intended for construction projects requiring excavation operations

to be exempted from the permit process. If "incidental" was meant to cover quantities of

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material, then the drafters of the ordinance could have included thresholds defining when

excavation for construction became so substantial that an excavation permit would be

required. The drafters considered quantity only in the triggering threshold, and aside from

that 100 cubic yard threshold (which remains subject to the "incidental" exception), the

ordinance does not contemplate quantity. The Town's interpretation has no explicit

support in the ordinance.

Similar mineral extraction ordinances from other jurisdictions support the

interpretation that if excavation occurs as part of a project that is primarily construction-

oriented, the removal of materials, regardless of quantity, is still "incidental" and exempt

from permitting requirements. See, e.g., Pipkin v. Cnty. of Douglas, 158 Wash. App.

1056 (2010) ('"Mineral extraction' specifically excludes from its definition '[t]he

leveling, grading, filling, or removal of materials during the course of normal site

preparation for an approved use."'); Athens Metro. Hous. Auth. v. Pierson, 2002 WL

851767 *6 (Ohio App. Ct. 2002) (exempting removal of materials incidental to

construction work from excavation permit requirement); Linde Enterprises, Inc. v.

Pennsylvania Dep't ofEnvtl. Prot., 692 A.2d 645, 650 (Pa. Commw. Ct. 1997) (minerals

removed "incidental" if excavator shows the work was concurrent with construction,

limited to the construction area, and construction reasonably related to the use); L. P.

Marron & Co. v. Mahwah Twp., 39 N.J. 74, 82, 187 A.2d 593, 597 (1963) (excavation

and grading incidental to construction and exempt from soil removal permit).

Because the ordinance does not contemplate quantity in relation to "incidental," a

qualitative analysis is appropriate, and excavation is incidental to Hynes' primary

purpose-to construct the Proposed Expansion to Yankee Commons. While Hynes does

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plan to sell some of the materials, this hardly transforms the project from a mobile home

park expansion into a commercial quarrying operation. (Def.'s Brief 22.) Once leveled,

the excavation will end, and thus there is nothing approaching a continuous and ongoing

mineral extraction operation contemplated by the special permit procedure.

fu sum, the Planning Board erred as a matter of law that Hynes was required to

obtain a mineral extraction special permit to proceed with the Proposed Expansion

application. The court next turns to whether the Planning Board's decision comports with

30-A M.R.S. § 4358 and the Law Court's decision in Bangs v. Town of Wells, 2000 'ME

186, 760 A.2d 632.

C. The Effect of 30-A M.R.S. § 4358

The Law Court succinctly explained the statutory mandates for municipalities in

regulating manufactured homes as follows:

Municipalities must (i) allow the placement of manufactured homes on

individual lots in all areas where other single-family homes would be

allowed, 30-A M.R.S.A. § 4358(2)(E); (ii) permit new mobile parks to

develop and to expand in a number of environmentally suitable locations,

30--A M.R.S.A. § 4358(3)(M); and (iii) give reasonable consideration to

permitting existing mobile home parks to expand in their current locations,

id. These directives constitute an express limitation on municipalities'

otherwise broad zoning powers. See 30-A M.R.S.A. § 3001.

Bangs v. Town of Wells, 2000 'ME 186, ~ 15, 760 A.2d 632. The Law Court has made the

legislature's purpose in enacting this statutory scheme abundantly clear: municipalities

may not use zoning powers to keep affordable housing such as mobile and manufactured

home developments out of their communities. See id. Whether the Town's ordinance

prohibiting mobile home parks is consistent with Section 4358 presents a question oflaw.

Id. ~ 9.

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The present case is squarely on point with the Law Court's decision in Bangs v.

Town of Wells, 2000 :ME 186, 760 A.2d 632. In Bangs, a developer sought to expand a

pre-existing nonconforming mobile home park in an area of Wells zoned as a rural

district. Wells denied the owner's application reasoning that a mobile home park is not a

use permitted in the rural district. !d. ~ 5.

The Law Court reversed. The Town had confined mobile home parks to a specific

overlay district, which contravened 30-A M.R.S. § 4358(3)(M), requiring municipalities

give "reasonable consideration ... to permit existing mobile home parks to expand in

their existing locations." Bangs v. Town of Wells, 2000 :ME 186, 760 A.2d 632. By

confining eligible sites to that district, Wells gave no consideration to projects outside the

district, in direct violation of the statute. The Court further rejected Wells' argument that

the statute contemplated density rather space, reading "expand" to mean projects could

grow beyond their physical boundaries. !d. ~ 19-21.

Like the developer in Bangs, Hynes wishes to expand Yankee Commons. The

Planning Board summarily rejected Hynes' plan. The Town argues that Bangs does not

control because a mineral extraction permit is required and such a use is not permitted in

the Mixed-Use Zone. For the reasons discussed above, however, Hynes was not required

to obtain the permit. By treating the application as one that required an unobtainable

mineral extraction permit, the Town plainly failed to give "reasonable consideration" to

the project. See Bangs, 2000 l\1E 186, ~ 21,760 A.2d 632 ("Although the Legislature has

not defined 'reasonable consideration,' its plain meaning requires, at a minimum, more

than what [Kittery] has done.")

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The Town also failed to give the Proposed Expansion "reasonable consideration"

by concluding the mobile home parks were not permitted in the Mixed-Use Zone. The

Legislature has required municipalities to give "reasonable consideration" to proposals

like Hynes's that wish to expand an existing mobile home park. Bangs, 2000 ME 186, ~

15, 760 A.2d 632. 1 Because Kittery, like Wells, categorically prohibits manufactured

housing from a zoning district, this violates the mandate of the statute and Bangs. See id.

~ 17. ("[T]he Ordinance flatly prohibits Bangs's mobile home park from being given any

consideration whatsoever, let alone a 'reasonable consideration,' to expand beyond its

current location.") For that reason, Kittery's ordinance violates 30-A M.R.S. § 4358.

While the Town's prohibition on manufactured housing in the Mixed-Use Zone is

invalid, this does not mean the Town must permit all mobile and manufactured home

projects in that zone. RathE:r, the projects must simply receive "reasonable consideration"

in light of applicable law, which the Proposed Expansion in this case clearly did not

receive. The court reaches no conclusions as to the Proposed Expansion's compliance

with other aspects of the Kittery ordinances and Maine's Manufactured Housing statute.

Those issues, including the "environmental suitability" of the site, require factual

findings by the Town in the first instance on remand. See, e.g., 30-A M.R.S.A. §

4358(3)(M) (requiring "mobile home parks to expand and to be developed in a number of

environmentally suitable locations in the municipality") (emphasis added). While the

excavation at the site does not require a mineral extraction permit, the quantity and

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Although the parties dispute whether single-family homes would be permitted on the

Proposed Site, this is irrelevant. Like the developer in Bangs, this is an existing mobile home park

and therefore only the "reasonable consideration" standard under 30-A M.R.S.A. § 4358(3)(M) is

implicated by Hynes' Proposed Expansion. See Bangs, 2000 ME 118,1 17.

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character of materials to be removed is still relevant to the Town's consideration of the

Proposed Expansion.

ill. Conclusion

The Town erred by requiring Hynes to obtain a mineral extraction permit because

the proposed excavation is "incidental" to the construction on the site. By requiring the

permit and determining mobile home parks were not permitted in the Mixed-Use Zone,

the Town failed to give the Proposed Project "reasonable consideration" under 30-A

M.R.S.A. § 4358(3)(M).

The entry shall be:

Hynes' Rule 80B appeal is hereby GRANTED, the decision of the Town of Kittery

Planning Board is VACATED and REMANDED for further proceedings consistent with

this decision. The court further declares that Ki-ttery's ordinance prohibiting mobile home

parks from the Mixed-Use Zone is invalid under 30-A M.R.S. § 4358(3)(M).

SO ORDERED.

DATE: March JL 2015

John~

Justice, Superior Court

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AP-13-40

ATTORNEY FOR PLAINTIFF:

BRIAN M RAYBACK

PIERCE ATWOOD~ MERRILL'S WHARF

254 COMMERCIAL STREET

PORTLAND ME 04101

ATTORNEYS FOR DEFENDANT:

WILLIAM H DALE

MARK A BOWER

JENSEN BAIRD GARDNER & HENRY

P.O. 4510

PORTLAND ME 04112