Fillmore v. Inhas. Of the Town of Eliot

STATE OF MAINE SUPERIOR COUIiT CIVIL ACTION YORK, ss. DOCKE'I' N 0.A1'-04-047

JOANNE FILLMORE, * * k Plaintiff k

v. A ORDER * * THE INI-IAUIrI'AN?'SOF TI-IE " -* TOWN OF EI ,I07', * Defendant * *

'This case comes before the Court on Petitioner Joanne Fillmore's Rule 80R Appeal of a decjsion by the Town of Eliot Zoning Board of Appeals denying her a growth permit.

FACTUAL RACI<GROUND

Joanne Fillmore (Petitioner) owns property located on Green Briar Drive in the Rriarwood subdivision in the Town of Eliot. She has been the owner since 1974. The property is a corner lot abutting Greenbriar Drive on one side and Michael Drive on the other. For purposes of ingress ai-td egress to Petitioner's property, one would lravel on Greenbriar Drive north to Stacy Lane, in order to access IWorster Road. Greenbriar Drive and Stacy Lane are private rights of way while Worster Road is a public road. Greenbriar Drive is 40 feet wide. Stacy Lane is 40 feet wide in most areas, but has been narrowed over the years to 15 feet in a few areas. 'l'lie subdivision was approved by the 'I'own a n d recorded in the Registry of Deeds in 1968.

In 1982, the Town enacted a Municipal Zoning Code that, inter alia, restricts the development of lots considered to be "back lots".

011February 19,2004, Pebtioner applied for a gro\.vth permit from the Town to build a single-family home on the property. The Code Enforcement Officer (CEO) denied this application on grounds that the property js a backlot with no direct street frontage pursuant to section 45-405(m)(l)of the Ellot Municipal Zoning Code (tlie "Code"). Petitioner filed a timely appeal to the Zoning Board of Appeals (ZBA).

On April 15, 2004, the ZBA held a public hearing on Petitioner's appeal of the CEO's deter~ninalion.In the course of the hearing, the ZBA heard from the respective parties, neighboring abutters, and other interested parties who objected to Petitioner's application. The ZBA denied Petitioner's administrative appeal. On May 28, 2004, Petihoner appealed that decision pursu,mt to M.R. Civ. P. 80R. By order of April 29, 2005, t h s Court held that Gail Ljcciardello, Kenneth Albert, and Michael and Lynn-Mane Gildersleeve had standing to challenge Petihoner's 80R appeal.

DISCUSSlON

A. STANDING

Before disc~lssingthe merits of the case, the Court will first address the issue of standing. To appeal a decision of the Z n A , a party must l~ave participated before tlie board and must have deinonstrated a particularized injury. Brooks v. Cl~mberlclnclfctrrt~s,Inc., 1977ME 203, y8, 703 A.2d 844, 847;Me.

. 30-A, 5 2692(3)(C)(2003);Wells v.Portland Y c t d ~ C Re-u. Stat. A n l ~ 111 t I L L MI: ~ , 2001,

7 4,771 A.2d 371,373(holding that residents on a road where a building was to be constructed had a partjcularized injury due to concerns for traffic, noise, and aesthetics).

The Court held that Gail L~cciardelloand Kenneth Albert had standing because they were both present and testified before the ZBA about safety concerns d ~ l eto an increase in traffic on Stacy Lane. A1though Michael and Lynn-Marie Gildersleeve were not pllysically present before the ZBA, they sent a leller to h e ZRA before the appeal articulating similar traffic and salety concerns.'

As for additional interveners Nicolas Papin, Daniel Stout, Jeffrey Tavares and Joan Ferguson, the Court holds that they lack the necessary standing to object to Peti titioner's 80R appeal. These interveners failed to participate in the ZRA proceedings to voice their concerns. Altliough, arguably, they may suffer a particularized injury due traffic and safety concerns, they do not satisfy the first prong of the standing requirement.

B. 80B APPEAL The Superior Court, acting in its intermediate appellate capacity, reviews

the findings of the ZBA for abuse of discretion, errors of law, or findings

of Ekrrnori, 2003 ME 9, unsupported by substantial evidence. Priestly a. ?b.ri~rr 6,

814 A.211'995, 997; M.R. Civ. P. 80Br). 11nterpreLationsof zoning ordinances are questions of law and are therefore reviewed de novo. Isis Develnprrrcnt, LLC 71. Tozurr of Wells, 2003 ME 749, y3, 836 A.21-17285. Accordingly, when co~~struing the language of an ordinance, courts look first to the plain meaning of the language of l-11eordinance to give effect to the legislalive intent. Leznis T I . 'l'n7llir of Rock/lort, 2005 A4E 77, 11; 870 A.2d 107,110. 'I'he b~lrdenis on the plaintiff to ' l'his letter 1s n o t ~ n e n t i o n e din the notes of the ZBA hearing prove that, based on the evidence in the record, the ZBA should have reached a

oiYork, 673 A.2d 1.322, 2325 (Me. 7996). different conclusion. Brittnrl v. Tozi~~z

'I'he dispute in this case arises not from the facts, but rather from the interpretation of the backlot provision and the grandfather provision in the

Code. 'I'he ZI3A denied Petitioner's appeal on g r o ~ ~ n that d s her property is a

bacldot pursuant to 5 45-405irnj. Petitioner argues that the ZBA errol~eously found her property Lo be a backlot pursuant to § 45-405(m). Al ternatively, Petitioner argues that even if the property is a backlot, it is a grandfathered i~onconfortninglot of record pursuant to 6j 45-194(b).

1. Petitioner's Property is Not a Bacltlot Pursuant to 9 45-405(m)

Section 45-405(m) provides that backlots may be developed as long as the proposed lot physically lies behind one or Inore other lots preventing direct street frontage and It is served by a 30-foot right-of-way for one or huo backlots. A1 though the term backlot is not defined in the Code, the Law Court defined a backlot pursuant to the same provision as a lot "p11ysicalIy sitt~atedbehind one or more lots, having no direct street frontage." Bisliop ZI. To7c1n of Eliot, 529 A.2r-1 798 {Me.2987) (finding that both lots were physically behind other lots and

5 45-405(m)Backlols m a y be trsed provided they meet the following criteria: 1. Tlle proposed lot physic:ally lies behind one or m o r e other lots, preventing direct streel frontage. 2. A 30-toot righh-[)[-way or frontage shall serve one or t w o backlols. For Lllree or more bacl<lots, tlie right-of-way or frontage sllall be at least 40 feet a n d the driveway serving the backlots s11,jll be graveled, tarred, or paved, a n d shall b e a t least 15 feet- wicle. 3. An existing right of way vritll a r n i i ~ i m ~wid ~ mtli of 15 Feel shall serve one or t w o nonconfor~ningbacklots. 4. '1'0 ensure a properly sizecl IoI; the front lot line shall b e the I-earlot line of abutting front lots, ~ n c l u d i n gthe streel right-of-way or frolitage for the clistrict in which the lot is located. 5. I'rincipal ancl accessory b t ~ i l d i ~ ant1 ~ g s uses of front- lots s l ~ a lbe l set back a t least ten feet From any riglit-of-way, if used. 6. All other dimensional r e q u i r e ~ n e n t sshall apply to llle backlol. 7. Tliis provision for backlnls shall not apply to proposed subdivisions.

accessible to a public street over narrow rights o f way rlleasuring less than 30 feet wide).

Al tf~ouglithe ZBA determined tliat Petiticmer's property is a backlot pursuant to 5 45-405(m),it did not specifically find that the property physically lies behind another lot. Rather, t-lierecord shows that Greenbriar Drive can be accessed directly from the Property.3 Consequently, the pertinent inquiry is whether Greenbriar Drive is a street. P~rrsuantto the definitions of the Code, 5 1-2, a street can be established in one of two ways: 1 ) by meeting the street design and construction standards pursuant to 5 37-70;" and 2 ) as a highway, avenue, boulevard, road, town way, lane, bridge, and all ofher zuays dedic(7ted fu plll~licuse. The ZBA correctly determined that Greenbriar Drive does not meet the street ordinance standards for an accepted street. The record shows that Greenbriar Drive is 40 feet wide, ten feet shy of the 50 feet requirement under 5 37-70. However, the ZBA failed to consider that the Code recognizes ways dedicated to public use as streets. The record shows that Greenbriar Drive is used by at least six other residences located on Greenbriar Drive, Bapvie~7Drive, and DC D r i ~ e . ~ Therefore, il is clear from the record that Creenbriar Drive is a street dedicated to public use.

?'he Town argues that the analysis should focus on whether Stacy Lane, not Creenbriar Drive, provides direct street frontage to the property in

accordance with 5 45-405(m). The Town takes this position t)ec'~~ise Petitioner's

property, although located oil Creenbriar Drive, must u t i l i ~ eStacy Lane for

'Ilie LDA labeled the l o 1 a bacl\lol ~ v t t h o hndlng ~~l ihdl [he 101 is physlcillly loccited behind another l o t .

Section 37-70 provr~les,in relevant part, [hat slreets 1n11slbe a l least 50 feet wlcie. See Iiecorti, pp. 15-20, 59. purposes of ingress and egress into the subdivision. The record shows that Stacy Lime is approximate]y 895 feet from Petitioner's property.6 1'0interpret the language "direct street frontage" to require any road within 895 hundred feet of tlie property to comply with 5 45-405(m) would completely change the common sense i n e a n i ~ ~ofg tlie word d~rect.Accordingly, the use of Stacy Lane to satisfy the direct street frontage requ~rementis not consistent with the language of the code.

l'herefore, because the record sl~owsthat Greenbriar Drtve is a way dedicated to public use, it is a streel as defined by the Code. Furthermore, Greenbriar Drive provides direct street frontage to the Property. 'fhus, because Greenbriar Drive provides direct street frontage to the Property, the ZBA erred in finding that the property is a bacldot pursuant to 5 45-405(m).

2. Petitioner's Property is Grandfathered P ~ i r s ~ ~ to a n$45-l94(a) t

The 'l'own relies on Bishop 27. Tozon ojEliot for the proposition that while

nonconforming single lots of record prior to the e i ~ a c t n ~ eof n t the Code are

grand fathered pursuant to 5 45-194(~1),~ they still must comply with the ot-her

provisions of the chapter, including the bacldot provision. In Bishop, the lots in question were backlots because they were situated physically behind another lot and without direct street frontage meeting the requirements of 5 45-405(m).

Here, the property was a lot of record prior to the enactment of the Code

in accordance with 5 45-194(a). However, contrary to Bisllop, Petitioner's lot is -- --

See I<ecortl, p. 13.

Sect101145-194(a) provides: "[iJf a single lot o l record on tlie effective d a t e of [lie adoption or a m e n d m e n t of this chapter does not meet tlie area, road frontage o r setl>ackrequirements of tlie district in which i t is located, i t m a y be built o n provided that s t ~ c t lot i is 111 separate ow~iersliip a n d n o t c o n t i g ~ ~ o uwith p , all otllel- 111.ovisic)nsof Illis s a n y other lot in the sarne o t v ~ ~ e r s l i i tllat chapter are illel and it co~lforrns~ vthi all slate laws and regulations."

not a backlot as explained above. Tl~erefore,it is a grandfathered nonconfortning

lot that need not cornply with 5 45-405(m).

The decision of [he ZBA that Petitioner's property is a backlot is

REVERSED.

fl~ii~'q-~-- Just~c.,Suyer~orCourt

PLAINTIFF: Durward Parkinson, Esq. BERGEN AND PARKINSON 62 Portland Rd Post Road Center Kennebunk Me 04043

DEFENDANT: Christopher Vaniotis, Esq. BERNSTEIN SHLTR SAWYER AND NELSON PO Box 9729 Portland Me 04112-5029

INTERVENORS, N. PAPIN, G. LICCIARDELLO William Dale, Esq. JENSEN BAIRD GARDNER AND HENRY PO Box 4510 Portland Me 04112-4510