Opinion
Civil Action AP-15-035
01-05-2016
MERRILL WOODWORTH, Personal Representative for the ESTATE OF MERRILL P, ROBBINS, Plaintiff, v. INHABITANTS OF THE TOWN OF CUMBERLAND, Defendant and TOWN OF CUMBERLAND, Party-in-Interest
DECISION AND ORDER
Nancy Mills, Justice, Superior Court.
Before the court is a Rule 80B appeal filed by plaintiff Merrill Woodworth, as Personal Representative of the Estate of Merrill P. Robbins. Plaintiff challenges defendant Town of Cumberland's determination that a proposed beach facility is a Municipal Use. For the following reasons, the court affirms the decision of the Town of Cumberland Board of Adjustment and Appeals.
FACTS
The Town of Cumberland (Town) owns a 22.4-acre parcel of land located in Cumberland, Maine (Town property). (R. 3, 5.) The Town property is adjacent to plaintiff's property and is located in a Low Density Residential zoning district (LDR zone). (R. 5, 107.) On May 26, 2015/ the Town submitted an application to the Cumberland Planning Board (Planning Board) for a permit to construct and operate a beach facility (facility) on the Town property. (R. 1-91.) Construction of the facility will involve creation of a 33-space parking lot, with potential for an additional 11 spaces, and relocation of public access trails and a bathhouse (R. 9-10.)
On July 16, 2015, the Cumberland Code Enforcement Officer (CEO) submitted comments and stated that the facility is a Municipal Use, defined as "[a]ny use or building maintained by the Town of Cumberland." (R. 115, 235-36; Cumberland, Me., Zoning Ordinance § 315-4 (June 26, 2006).) Municipal Uses are permitted in the LDR zone. (R. 247; Cumberland, Me., Zoning Ordinance § 315-7 (June 26, 2006).) On July 21, 2015, the Planning Board granted approval for the facility as a Municipal Use. (R. 92.)
On July 30, 2015, plaintiff appealed to the Cumberland Board of Adjustment and Appeals (Board of Appeals). (R. 106-10.) Plaintiff argued that the facility is an Outdoor Recreational Facility, defined as a "place designed and equipped primarily for the conduct of nonmotorized outdoor sports, leisure-time activities, and other customary and usual recreational activities ....". (R. 106-09, 237; Cumberland, Me., Zoning Ordinance § 315-4 (June 26, 2006).) Outdoor Recreational Facilities are not permitted in the LDR zone. (R. 247-48; Cumberland, Me., Zoning Ordinance § 315-7 (June 26, 2006).)
The Board of Appeals held a public hearing on August 13, 2015. (R. 160.) The Board of Appeals determined that the definition of Municipal Use was unambiguous and allowed the CEO to classify "any" use maintained by the Town as a Municipal Use. (R. 162-63.) Because the Town will maintain the facility, the Board of Appeals affirmed the CEO's determination that the facility is a Municipal Use. (R. 163.)
PROCEDURAL HISTORY
Plaintiff appealed to this court on August 20, 2015, and alleged three causes of action: count I, Rule 80B review of the Board of Appeals' decision; count II, Rule 80B review of the Planning Board's decision; and count III, preliminary injunction. On August 28, 2015 plaintiff moved for a preliminary injunction to enjoin the Town from constructing the facility. The court denied that motion on September 15, 2015. (Order on Pl.'s Mot. Prelim. Inj.) Plaintiff filed its Rule 80B brief on September 29, 2015. The Town filed an opposition to plaintiff's brief on October 28, 2015. Plaintiff filed a reply on November 12, 2015.
DISCUSSION
1. Standard of Review
When the Superior Court acts as an appellate court, it reviews the operative decision of the municipality for errors of law, abuse of discretion, or findings not supported in the record. Griffin v. Town of Dedham, 2002 ME 105, ¶ 6, 799 A.2d 1239. The parties do not dispute the description of the proposed facility; they dispute the interpretation of the ordinance. Interpretation of ordinance provisions is a question of law subject to de novo review. Isis Dev., LLC v. Town of Wells, 2003 ME 149, ¶ 3, 836 A.2d 1285; Jordan v. City of Ellsworth, 2003 ME 82, ¶ 9, 828 A.2d 768. In interpreting an ordinance, the court looks "first to the plain meaning of its language to give effect to the legislative intent, and if the meaning of the statute or ordinance is clear, [does] not look beyond the words themselves." Wister v. Town of Mt. Desert, 2009 ME 66, ¶ 17, 974 A.2d 903. The provisions 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." Roberts v. Town of Phippsburg, 642 A.2d 155, 156 (Me. 1994) (citation omitted).
2. Operative Decision
It is unclear whether the parties agree which decision is the "operative decision." The Town argues that the operative decision is the Board of Appeals' decision. (Def.'s Br. 4-5.) Although plaintiff does not dispute this in its reply, plaintiff seeks review of the decisions of the Board of Appeals and the Planning Board in the complaint. (Compl. 11 29-41.) The operative decision is the decision of the "tribunal of original jurisdiction" that acts "as both fact finder and decision maker[.]" Peregrine Developers, LLC v. Town of Orono, 2004 ME 95, ¶ 9, 854 A.2d 216 (citations omitted). If the Board of Appeals acts as both fact finder and decision maker, the court reviews its decision. If the Board of Appeals acts only in an appellate capacity, the court reviews the Planning Board's decision. Stewart v. Town of Sedgwick, 2000 ME 157, ¶ 4, 757 A.2d 773. The Board of Appeals acts as both fact finder and decision maker unless the ordinance explicitly directs that it act only in an appellate capacity. See 30-A M.R.S. § 2691(3)(D) (2014) (requiring de novo review); Mills v. Town of Eliot, 2008 ME 134, ¶ 14, 955 A.2d 258.
The Town's ordinance grants the Board of Appeals the power to "determine whether the decisions of the Code Enforcement Officer are in conformity with the provisions of this chapter and interpret the meaning of this chapter in cases of uncertainty." (R. 253; Cumberland, Me., Zoning Ordinance § 315-77(B)(1) (June 26, 2006).) This language suggests that the Board of Appeals acts in an appellate capacity because the language directs the Board of Appeals to review the CEO's decisions for conformity with the ordinance. The language, however, falls short of an explicit direction that the Board of Appeals act only in an appellate capacity. As a result, the court considers the Board of Appeals as both fact finder and decision maker and reviews its decision directly. See Stewart, 2000 ME 157, ¶ 11, 757 A.2d 773 ("Because the Ordinance fails to provide explicit guidance, 30-A M.R.S.A. § 2691 applies to require that the Board undertake a de novo review of the application.").
3. Municipal Use v. Outdoor Recreational Facility
The Town argues that the CEO properly determined that the facility is a Municipal Use because the plain meaning of the definition includes any uses maintained by the Town. (Def.'s Br. 6.) Plaintiff concedes that the facility meets the definition of Municipal Use but argues that it also meets the definition of Outdoor Recreational Facility. In plaintiff's view, the CEO should have classified the facility as an Outdoor Recreational Facility because that term is more specific than Municipal Use and the terms are in conflict. (Pl.'s Br. 4-8.)
a. Municipal Use
In interpreting an ordinance, the court looks "first to the plain meaning of its language to give effect to the legislative intent, and if the meaning of the statute or ordinance is clear, [the court] need not look beyond the words themselves." Wister, 2009 ME 66, ¶ 17, 974 A.2d 903. When the ordinance is not ambiguous, the court does not apply rules of construction. Hanson v. S.D. Warren Co., 2010 ME 51, ¶ 12, 997 A.2d 730. An ordinance is ambiguous if it is "reasonably susceptible to different interpretations." Acadia Ins. Co. v. Buck Constr. Co., 2000 ME 154, ¶ 9, 756 A.2d 515.
The definition of Municipal Use and the provision allowing Municipal Uses in the LDR are not ambiguous. A Municipal Use is "[a]ny use or building maintained by the Town of Cumberland." (R. 235-36; Cumberland, Me., Zoning Ordinance § 315-4 (June 26, 2006).) The inclusion of the word "any" indicates that the Town intended for the Municipal Use category to include all uses maintained by the Town. Plaintiff asks the court essentially to read into the definition a limitation that a Municipal Use is any use maintained by the Town unless a more specific use applies. In the ordinance, however, the Town chose not to include any limitations, in contrast to the detailed definitions of other terms. In addition, section 315-7 clearly allows Municipal Uses in the LDR zone. That section states, "The following uses are permitted in the LDR District" and includes Municipal Uses in the list. (R. 247; Cumberland, Me., Zoning Ordinance § 315-7 (June, 26, 2006).) Because these provisions are unambiguous, the court need not apply rules of construction, and may uphold the Town's decision to allow the facility in the LDR zone under a plain language analysis.
b. Outdoor Recreational Facility
Even if the court were to apply rules of construction, plaintiff's argument is unpersuasive because the definitions can be harmonized. Plaintiff's argument rests on the rule of construction that a specific term controls over a general term when the two conflict. The Law Court explained this rule in Butler v. Killoran:
Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling.1998 ME 147, ¶ 11, 714 A.2d 129 (citation omitted).
The Town's Shoreland Zoning Ordinance also includes the following provision: "Whenever a provision of this chapter conflicts with or is inconsistent with another provision of this chapter or of any other ordinance, regulation, or statute administered by the municipality, the more restrictive provision shall control." (R. 175; Cumberland, Me., Shoreland Zoning Ordinance § 226-7 (June 26, 2006).) It is unclear whether this provision applies to the chapter containing definitions, which is a separate chapter and does not contain an analogous provision.
As a preliminary matter, the uses described for the facility are consistent with the uses included in the definition of Outdoor Recreational Facility. (R. 9, 237.) That term is defined as a "place designed and equipped primarily for the conduct of nonmotorized outdoor sports, leisure time activities, and other customary and usual recreational activities." (R. 237; Cumberland, Me., Zoning Ordinance § 315-4 (June 26, 2006).) The uses proposed in the Town's application involve 'Tow-impact passive recreation, " including walking and hiking, boating, swimming, shell fishing, picnicking, cross country skiing, and snowshoeing. (R. 9.) It also appears clear that Municipal Use is a general term, while Outdoor Recreational Facility is a more specific term. Municipal Use encompasses all uses maintained by the Town, while Outdoor Recreational Facility describes specific uses, such as nonmotorized outdoor sports and leisure time activities.
The Town argues that the facility is not an Outdoor Recreational Facility because it does not involve the active recreational activities allowed under that term, such as campgrounds and amusement parks. (Def.'s Br. 7.) This argument is unpersuasive because the definition of Outdoor Recreational Facility expressly excludes campgrounds and amusement parks. (See R. 237; Cumberland, Me., Zoning Ordinance § 315-4 (June 26, 2006) ("A place designed and equipped primarily for the conduct of nonmotorized outdoor sports, leisure-time activities, and other customary and usual recreational activities, excluding boat launching facilities, amusement parks, and campgrounds ...") (emphasis added).
As discussed in the order on plaintiff's motion for preliminary injunction, these provisions can be read in harmony. When the CEO classifies a proposed use as a Municipal Use, and that finding is supported by adequate evidence, the use is allowed in the LDR zone, even if it could also be classified as a use that is prohibited in the LDR zone. See Pinkham v. Morrill 622 A.2d 90, 95 (Me. 1993) ("[T]he court should not read a statute to conflict with another statute when an alternative, reasonable interpretation yields harmony."). This interpretation is consistent with the Town's apparent intent to allow all Municipal Uses in the LDR zone. The Town created a broad definition of Municipal Use that includes any use maintained by the Town and expressly allowed this use in the LDR zone. Preventing the Town from allowing a use that meets the definition would contravene the Town's intent.
Plaintiff argues that allowing a use that could meet the definition of Outdoor Recreational Facility contravenes the Town's intent to prohibit Outdoor Recreational Facilities in the LDR zone. (Pl.'s Br. 6.) This argument essentially asks the court to overturn the CEO's determination that the facility is a Municipal Use, even though that determination is supported by adequate evidence. It is undisputed that the Town will maintain the facility, and this fact meets the definition of Municipal Use.
The cases plaintiff cites either do not rely on the "specific v. general" rule of construction or involved provisions that could not be harmonized. (Order on Pl.'s Mot. Prelim. Inj. 8.) In Sullivan v. City of Augusta, the issue was whether a parade organizer was subject to both a parade ordinance and a mass gathering ordinance. 511 F.3d 16, 25-27 (1st Cir. 2007). The court held that the parade organizer was subject only to the parade ordinance because, unlike the mass gathering ordinance, the parade ordinance regulated the conduct in which he intended to engage. Id. at 27. In other words, the court declined to construe the ordinances together not because they were in conflict but because the mass gathering ordinance simply did not apply to the facts of the case. Here, either definition arguably could apply, but they are not in conflict because a harmonious interpretation exists.
In Butler v. Killoran, the issue was whether to apply the statute of limitations in Maine's Wrongful Death Act, which requires commencement of the action within two years of the decedent's death, or the statute of limitations in Maine's Health Security Act, which requires commencement of the action within three years after the cause of action accrues. 1998 ME 147, ¶ 4, 714 A.2d 129. Under the facts of the case, plaintiff's action was timely under the Wrongful Death Act and time-barred under the Health Security Act. Id. The statutes of limitation could not be harmonized because to do so would extend the statute of limitations for actions arising from professional negligence, in violation of legislative intent. Id. % 10. In contrast, harmonizing the provisions in this case furthers the Town's intent to allow all Municipal Uses in the LDR zone.
In Armstrong v. Town of Cape Elizabeth, the town's zoning ordinance contained two conflicting provisions: (1) a provision stating that expansion of a nonconforming structure may not increase the structure's nonconformity, and (2) a provision stating that expansion of a nonconforming structure may not increase the structure's nonconformity by more than 30%. 2000 Me. Super. LEXIS 275, at *14-15 (Dec. 21, 2000). The court held that the second provision prevailed because it was more specific than the first provision and the two were in conflict. Id. at *16. Although the court did not explain why these provisions could not be harmonized, it seems clear that a proposed expansion that increased nonconformity could not comply with both. Here, the facility need not comply with both definitions because the court will uphold the CEO's determination that the facility meets one definition, which is supported by adequate evidence.
CONCLUSION
The meaning of Municipal Use is unambiguous, and the court need not apply rules of construction. If the court were to apply rules of construction, plaintiffs argument is unpersuasive because the ordinance's provisions can be harmonized.
The entry is
The Decision of the Town of Cumberland Board of Adjustment and Appeals is AFFIRMED.