Fernald v. Town of Elliot

STATE OF MAINE SUPERIOR COURT CIVIL ACTION YORK, ss. DOCKET NO. AP-05-51 , ' i'( i . ,- ,- :ti.~ . \ ;; . <?I!. ,:;j '

TIMlO'I'HY and 'I'ERRIL FERNALD,

Plaintiffs

ORDER

TOWN OF ELIOT,

Defendant

This case comes before the Court 011 Petitioner Timothy Fernald's appeal of a decision of the Zoning Board of Appeals of the 'lown of Eliot pursuant to M.R. Civ. P. 80B. Following hearing, the appeal is Denied and the decision of the Zoning Board of Appeals is Affirmed.

FACTUAL BACKGROUND

Petitioner Timothy Fernald was granted a conditional use permit in 1985 to operate an auto repair garage with the foiiowing restrictions:

1. A limit of six (6) vehicles, exclusive of owner's vehicle, to be allowed at any one time. 2. The worlung hours tn be 8:00 a.m. to 5:00 p.m. for business purposes.

On February 7, 2005, the Code Enforcement Officer ("CEO") of the Town of Eliot issued Mr. Fernald a Notice of Violation and Order to Correct for violations of the Town Zoning Ordinance ("Ordinance"). Mr. FPI-naldwas specifically cited for operating an automobile graveyard, a prohibited use in the Village District where he lives. Ordinance 5 45-290. In addition, Mr. Fcrnald was cited for violations of the Waste Container Ordinance. Ordinance 45-422. Mr. Fernald appealed t l ~ edecision of the CEO to the Zoning Board of Appeals ("ZBA"). After a public hearing, the ZBA concluded that the intent of the 1985 conditional use permit was to permit Mr. Fernald to conduct an auto repair garage. 'The ZBA found that more than three unregistered unserviceable vehicles were on the property creating an auto graveyard. The ZBA also found that that the waste container in Mr. Fernald's front yard was not screened in as required under the Ordinance.

DISCUSSION

Mr. Fernald first argues that the ZBA erred in determining that he violated his-auto repair garage permit by conducting and auto graveyard on his property. He contends that the permit does not specifically state that the six vehicles stored on the property must be "serviceable." Next, he asserts that for the waste container provision of the Ordinance to be violated, the waste container must be located in a front yard. He argues that his waste container is not located in the front yard because there is no street to demarcate where a front yard would be. The access drive to his property is Spruce Lane, which he argues is a dirt road wholly contained within the boundaries of h s property.

The Superior Court reviews the findings of the ZBA "for an abuse of discretion, error of law, or findings unsupported by substantial evidence in the record." Yusem v. Town of Raymond, 2001 ME 61, P7, 769 A.2d 865, 869. As the party seelung to overturn the ZBA's decision, Mr. Fernald has the burden of establishing that the evidence compels a contrary conclusion. Herrick v. Toeon of Mec/zanic Falls, 673 A.2d 1348, 1349 (Me. 1996). In other words, a demonstr-;itionthat no competent evidence supports the ZRA's findings is required in order to vacate the board's decision. Thacker v. Knnnver Dev. Corp., 2003 ME 30, T 8, 818 A.2d 1013, 1017. The Court will not substitute its own judgment for that of a local administrative board. Thncker, 2003 ME 30, ¶ 8, 818 A.2d at

Interpretation of the provisions of an ordinance is a question of law. K~~rlnnski v.

Portland Yacht Club, 2001 ME 147, '$ 5, 782 A.2d 783, 786. The language at issue in the ordinance must be construed reasonably and wit11 regard to both the ordinance's specific object and its general structure. Id. Each undefined term is generally given its common and generally accepted meaning uniess the context of the ordinance clearly indicates otherwise. See Town of Union v. Strong, 681 A.2d 14, 17 (Me. 1996) (interpretinga statute). a. Auto Repair Garane vs. Auto Graveyard

The Ordinance clearly distinguishes between an auto repair garage and a auto graveyard. The Ordinance defines auto repair garage as:

a place where, with or without the attendant sale of engine fuels, the following services may be carried out: general repair, engine rebuilding, rebuilding or reconditioning of motor vehicles, collision service, such as body, frame, or fender straightening and repair, and overall painting and undercoating of automobiles.

Ordinance 5 1-2

The Ordinance further defines auto graveyard as:

a yard, field, or other open area used as a place of storage for three or more unregistered or unserviceable, discarded, worn-out, or junked motor vehicles, including all vehicles which cannot pass the state inspection test in their existing condition or are otherwise inoperable.

In interpreting the Ordinance, the ZBA determined that an auto repair garage, when conducting its business, must have repairable, serviceable vehcles on the

property. The Court agrees. Co~llmonsclise dictates that an aulo repair garage repairs - vehicles for further use on the roads. A n auto graveyard is a resting place for

unregistered, unserviceable vehicles that cannot pass state inspection. 111 examining the Ordinance as a whole, this is a reasonable interpretation that applies a common sense meaning to the terms of the Ordinance.

The next question is whether the ZBA had substantial and competent evidence before it to conclude that Mr. Fernald was conducting an impermissible auto graveyard. The evidence before the ZBA included testimony from the CEO that most of the vehicles on the property were inoperable, were not inspected, and were parked there for at least six months; a series of nine photographs presented by the CEO depicting

more than ten vehicles covered in s ~ o M ~and ; ' no evidence that less than three vehicles

were stored on the property. Rather, xvhen asked how many vehicles he had on the property, Mr. Fernald said he could not remember. (R. p. 30). However, earlier he admitted to having up to 17 vehicles on the property. (R. p. 28). There is substantial and competent evidence in the record to support the ZBA's finding that Mr. Fernald has more than three unregistered, unserviceable vehicles on his property. When confronted with whether Mr. Fernald was operating an auto repair garage pursuant to his 1985 conditional use or an impermissible auto graveyard, the ZBA had substantial and competent evidence to conclude the latter. b. Waste Container

Mr. Fernald argues that his waste container is not located in his front yard and therefore does not have a setback or screening requirement pursuant to § 45-422. His theory is that a for a front lot to exist it has to be bordered by a "qualifying street," which, he argues, Spruce Lane is not. Ordinance 9 1-2.

Waste containers that are visible from a public way or filly (50) feet ol a residential structure must be enclosed or screened from abutting properties. Ordinance

I T h e photographs show many vehicles with their windshields covered in snow and no tire tracks leading away from the property. This indicates that the vehicles were being stored there for a period of time.

5 45-422(2). The first issue is whether Spruce Lane is a recognized street under the Ordinance. If so, the area between Mr. Fernald's house and Spruce Lane is considered

his frolit yard. Id. The Ordinance defines street as "highways, avenues, boulevards,

roads, town ways, lanes, bridges, and ali other public ways dedicated to public use."

Ordinance 5 1-2.

Mr. Fernald admitted that he shared the long d r i v e ~ ~ a(Spruce y Lane) with

others for years. Furthermore, the tax map of the Towin of Eliot shows that Spruce Lane

provides the only access to at least five other lots.2 Spruce lane is not merely a driveway-

to Mr. Fernald's property, but rather it is a public way. Accordingly, Mr. Fernald's

waste container is located in his front yard and must comply with the setback and

screening requirements of the Ordinance. A Spruce Lane neighbor testified that the

waste container is located inches from her house. (R. p. 32). She testified that the

container is overflowing with trash and generates a rancid smell. Another neighbor

testified that she does not want his trash flowing all over the road. (R. p. 32). The ZBA

was provided pictures of the waste container.

The Court concludes that there is substantial and competent evidence in the

record to support the ZBA's finding that Mr. Fernald's waste container is in the front

yard, within fifty feet of a residential structure, and not screened in as required by the

Ordinance.

The entry will be as follows:

The Petitioners' appeal is Denied and the decision of the ZBA is Affirmed. h ./--, / ! . ----- -- '? "

Dated: March i f , 2006 PLAINTIFF: N e a l Weinstein E s q . --_- PO BOX 6 6 0 /ii G. ~ p f h u rrennin Old Orchard Beach M e 04064-660 ' ~usti>e,Superior Court

2 The following Spruce Lane residents testifred at the hear~ng:Deborah Metcnlf, 17 Spruce Lane; Betsy West, 14 Spruce Lane; and Laurie Retn~ck,20 Spruce Lane. DEFENDANT: K a t h e r i n e Knox, E s q . , BERNSTEIN PO B o x 9 7 2 9 fHUR SAWYER AND NELSON P o r t l a n d M e 04104-5029