Charles Remmel v. City of Portland , 102 A.3d 1168 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 114Docket: Cum-14-42
Argued: September 9, 2014
Decided: October 16, 2014
Panel: ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and HJELM, JJ.
CHARLES REMMEL et al.
v.
CITY OF PORTLAND et al.
ALEXANDER, J.
[¶1] The City of Portland and 32 Thomas Street, LLC, appeal from a
summary judgment entered by the Superior Court (Cumberland County,
Wheeler, J.) in favor of Charles and Kathy Remmel and other residents of
Portland’s West End. In its judgment, the court concluded that the Portland City
Council’s approval of a conditional zoning agreement (CZA) did not comply with
the City’s comprehensive plan and state statutes limiting conditional rezoning.
See 30-A M.R.S. § 4352(2), (8) (2013).
[¶2] The City and 32 Thomas Street argue that the court failed to give
proper deference to the CZA as a legislative act of the City Council and that the
City Council rationally concluded that the CZA is consistent with the
comprehensive plan and in basic harmony with existing and permitted uses in the
original zone. Because the record before the City Council supports its legislative
2
determination that the CZA is consistent with the comprehensive plan and because
the CZA therefore does not violate relevant state statutes, we vacate the judgment.
I. CASE HISTORY
[¶3] 32 Thomas Street, LLC, owns a parcel in Portland’s West End that
includes a 140-year-old sanctuary, used from 1877 to 2011 as the Williston-West
Church, and a connected 109-year-old, three-story parish house. The sanctuary
and parish house, purchased by 32 Thomas Street in December 2011, are
historically and architecturally important; both structures are listed in the National
Register of Historic Places and the City has designated them as historical. The
structures sit on the edge of Portland’s R-4 residential zone, directly abutting the
City’s R-6 residential zone on two sides.
[¶4] Portland’s comprehensive plan establishes that the purpose of the R-4
zone is
to preserve the unique character of the Western Promenade area of the
city by controlling residential conversions and by allowing the
continued mix of single-family, two-family, and low-rise multifamily
dwellings and other compatible development at medium densities.
Single and two-family dwellings are permitted along with
single-family manufactured housing, except in National Register
Historic Districts. The residential conditional uses listed under R-4
include sheltered care group homes, alteration of an existing structure
to accommodate one or more units, and multiplex development
(building with 3 or more units). Other conditional uses include
schools, churches, and day care facilities . . . .
Portland, Me., Comprehensive Plan at 63 (Vol. 2, Nov. 2002).
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[¶5] In January 2012, 32 Thomas Street applied to the City for conditional
rezoning of the property to permit renovation of residential space on the top two
floors of the parish house and creation of office space on the building’s first floor.
The office space was to be used by Majella Global Technologies, a software
development company.
[¶6] The City’s ordinance authorizes conditional or contract zoning
where, for reasons such as the unusual nature or unique location of the
development proposed, the city council finds it necessary or
appropriate to impose, by agreement with the property owner or
otherwise, certain conditions or restrictions in order to ensure that the
rezoning is consistent with the city’s comprehensive plan. Conditional
or contract zoning shall be limited to where a rezoning is requested by
the owner of the property to be rezoned. Nothing in this division shall
authorize either an agreement to change or retain a zone or a rezoning
which is inconsistent with the city’s comprehensive plan.
Portland, Me., Code § 14-60 (Mar. 4, 2013).
[¶7] The comprehensive plan establishes numerous goals that guide
rezoning decisions, including promoting an economic climate that increases job
opportunities and overall economic well-being, supporting neighborhood livability,
preserving and improving the City’s housing stock, and preserving of the City’s
architectural and historic sites and structures.
[¶8] In response to 32 Thomas Street’s conditional rezoning application,
Portland’s planning board held two workshops and a hearing, receiving a total of
ninety-seven written comments from the public. In May 2012, the planning board
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recommended that the City Council approve the amended proposed conditional
zoning agreement for the reuse (including for professional offices) and
rehabilitation of the property. In June 2012, the City Council held two public
hearings on the proposed change to the City’s ordinance, receiving many written
comments during the month. The City Council ultimately approved the CZA on
June 18, 2012.
[¶9] The CZA requires that (1) the office space on the rezoned property
occupy no more than 2800 square feet of floor area on the first floor of the parish
house, a space which constitutes approximately seventeen percent of the floor
space of the entire property; (2) no more than fourteen nonresident employees
work on site at any one time, and that the employees park in provided off-site
parking; and (3) the office not generate frequent visits from clients or the public.
The CZA also obligates 32 Thomas Street to maintain and preserve the historic
buildings, including by rehabilitating and repairing the buildings’ exteriors. The
specific repairs and maintenance required in the CZA exceed in several respects
the minimum maintenance required for historic buildings under the City’s Historic
Preservation Ordinance.
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[¶10] The Remmels filed a complaint in the Superior Court on July 17,
2012, seeking a declaratory judgment that the CZA is unlawful.1 The City and
32 Thomas Street each subsequently moved for summary judgment, and the
Remmels filed a cross-motion for summary judgment. The parties stipulated to the
City Council’s record as the record for review. Following a hearing on the
cross-motions, the court entered a summary judgment on December 31, 2013, in
favor of the Remmels, determining that the rezoning is inconsistent with Portland’s
comprehensive plan and that the rezoning violates 30-A M.R.S. § 4352(8)(B) by
allowing a new use that is inconsistent with existing and permitted uses in the R-4
zone. The City and 32 Thomas Street timely appealed.
II. LEGAL ANALYSIS
A. Portland’s Comprehensive Plan
[¶11] We review de novo the court’s entry of a summary judgment. Golder
v. City of Saco, 2012 ME 76, ¶ 9, 45 A.3d 697. We will affirm the grant of
summary judgment “if the record reflects that there is no genuine issue of material
fact and the movant is entitled to a judgment as a matter of law.” Id.[¶12] Our review of the City Council’s action must respect that “zoning is a
legislative act” and must give deference to the legislative body. Golder, 2012 ME
1The Superior Court correctly observed that a declaratory judgment, and not a Rule 80B appeal, is
the proper procedure for challenging the City’s zoning decision. F.S. Plummer Co. Inc. v. Town of Cape
Elizabeth, 612 A.2d 856, 859 (Me. 1992).
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76, ¶ 11, 45 A.3d 697; Crispin v. Town of Scarborough, 1999 ME 112, ¶ 18,
736 A.2d 241. Judicial review of a conditional rezoning decision is ultimately
limited to determining whether the City Council could rationally have adopted the
conditional zone in light of the evidence presented to it, the various policies
articulated in the comprehensive plan, and the mandate of 30-A M.R.S. § 4352(8).
See Golder, 2012 ME 76, ¶ 11, 45 A.3d 697.
[¶13] The Portland ordinance explicitly permits conditional or contract
rezoning that is “consistent with” its comprehensive plan. Portland, Me., Code
§ 14-60. By statute, zoning ordinances and subsequent rezoning actions must be
“pursuant to and consistent with a comprehensive plan adopted by the municipal
legislative body.” 30-A M.R.S. § 4352(2). When considering whether a rezoning
action is “consistent with” a city’s comprehensive plan, a court must determine
whether the City Council could have, from the evidence before it, found that the
rezoning was “in basic harmony with the comprehensive plan.” Adelman v. Town
of Baldwin, 2000 ME 91, ¶ 22, 750 A.2d 577; LaBonta v. City of Waterville,
528 A.2d 1262, 1265 (Me. 1987). “[T]he challenger bears the burden of proving
that the amendment is inconsistent” with the comprehensive plan. Golder,
2012 ME 76, ¶ 11, 45 A.3d 697.
[¶14] A zoning or rezoning action need not perfectly fulfill the goals of a
comprehensive plan; it may be in basic harmony with the plan so long as it “strikes
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a reasonable balance among the municipality’s various zoning goals” or
“overlap[s] considerably” with the plan. Nestle Waters N. Amer., Inc. v. Town of
Fryeburg, 2009 ME 30, ¶ 23, 967 A.2d 702; Stewart v. Town of Durham, 451 A.2d
308, 312 (Me. 1982). In addition, a comprehensive plan is considered as a whole;
a municipality may conclude that a rezoning action is consistent with a
comprehensive plan when it is in harmony with some provisions of the plan, even
if the action appears inconsistent with other provisions of the plan. See Adelman,
2000 ME 91, ¶¶ 23-24, 750 A.2d 577; LaBonta, 528 A.2d at 1265.
[¶15] Portland’s comprehensive plan establishes two main goals that are
relevant to this appeal: (1) promoting an economic climate that increases job
opportunities and overall economic well-being; and (2) preserving the State’s
historic and archeological resources.2 While the comprehensive plan does
reference the importance of preserving the “unique character” of the R-4 zone, it
does not expressly prohibit any nonresidential uses in the zone. Instead, it lists
several examples of conditional nonresidential uses permitted in the zone,
2
The comprehensive plan also sets a goal of “encourag[ing] orderly growth and development in
appropriate areas of each community, while protecting the State’s rural character, making efficient use of
public services and preventing development sprawl.” Although we reiterate that the Council’s rezoning
decision need not perfectly fulfill each goal of the comprehensive plan , see LaBonta v. City of Waterville,
528 A.2d 1262, 1265 (Me. 1987), the Council could have rationally found that this goal was also fulfilled
by the CZA’s “neighborhood compatible adaptive reuse of historic religious structures . . . and productive
use of such buildings for their long term preservation.”
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including schools, churches, and day care facilities.3 It also includes group homes
that have both a residential and a non-residential component.
[¶16] In the approved CZA, the City Council acknowledged the competing
goals of the comprehensive plan and that office uses, to the extent permitted at all,
must be permitted in the R-4 zone only in very limited and controlled
circumstances. Having considered and balanced the goals of the comprehensive
plan, the City Council approved the rezoning only after attaching conditions,
discussed above, to ensure that the CZA is consistent with the comprehensive plan.
[¶17] With regard to economic development, the City Council had evidence
that the proposed use would allow Majella Global Technologies to remain in
Portland and increase job opportunities in the technology sector, and would
strengthen the City tax base and maintain property value for surrounding parcels.
As for the City’s goal of historic preservation, the City Council had evidence from
a professional architect and a representative from Greater Portland Landmarks to
assist in weighing potential costs to the neighborhood against the benefits of
allowing 32 Thomas Street to restore the property in order to preserve it.
[¶18] The City Council ultimately concluded in the CZA that the office
component of the proposed use was a “necessary economic value and program
3
We have held that the absence of language in a comprehensive plan expressly permitting a certain
type of development should not be read to mean that that type of development is not permitted. City of
Old Town v. Dimoulas, 2002 ME 133, ¶ 19, 803 A.2d 1018.
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element for the feasibility of the productive use of the building complex and the
associated rehabilitation investments.”4 Whatever the property owner’s existing
obligation under the Historic Preservation Ordinance, the CZA is in basic harmony
with the comprehensive plan’s historic-preservation goals and with upholding the
“unique” architectural and aesthetic “character” of the R-4 zone. Additionally, the
CZA furthers historic-preservation goals by requiring 32 Thomas Street to
rehabilitate, renovate, and maintain the property at higher standards than required
under the Historic Preservation Ordinance alone.
[¶19] In light of the evidence before the City Council and the various
competing goals of the comprehensive plan, the City Council had a rational basis
for its conclusion that the CZA was consistent with the comprehensive plan as a
whole, and struck a reasonable balance among the competing goals of the plan.
See Nestle, 2009 ME 30, ¶ 23, 967 A.2d 702 (a zoning action may be considered as
in basic harmony with the plan so long as the action “strikes a reasonable balance
among the municipality’s various zoning goals”); LaBonta, 528 A.2d at 1265.
4
To the extent that Remmel and other West End residents wish the Council or this Court to consider
other possible uses of the historic buildings as shown by renovated church living spaces in other states or
even in Europe, we note that such uses were not in the rezoning application before the Council, and based
on the evidence before it, the Council made a balanced decision to permit the use consistent with the
overarching goals of the comprehensive plan.
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B. Existing and Permitted Uses in R-4 Zone
[¶20] In addition to being consistent with the municipality’s
comprehensive plan, conditional or contract zoning must “[e]stablish rezoned
areas that are consistent with the existing and permitted uses within the original
zones.” 30-A M.R.S. § 4352(8)(B). Based on our interpretation of similar
language in section 4352(2), this language can be interpreted to recognize that a
conditional zone is “consistent with the existing and permitted uses in the original
zones” when it is in basic harmony with those existing and permitted uses.
See Golder, 2012 ME 76, ¶ 11, 45 A.3d 697; LaBonta, 528 A.2d at 1265.
[¶21] We review the construction of an ordinance de novo, and 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.” Jade Realty Corp. v. Town of Eliot, 2008 ME 80, ¶ 9, 946 A.2d 408.
Nonetheless, a municipal body’s ultimate characterization of the structure of its
own ordinance is to be given substantial deference, see Jordan v. City of
Ellsworth, 2003 ME 82, ¶ 9, 828 A.2d 768, and the question on review is whether,
given the evidence before it and the requirements of 30-A M.R.S. § 4352(8), the
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City Council “could rationally have adopted the conditional zone.” Golder,
2012 ME 76, ¶ 11, 45 A.3d 697.5
[¶22] Section 4352(8)(B) requires the municipal authority to determine
whether the rezoned area is consistent with the existing and permitted uses “within
the original zones.” Uses contemplated in the R-4 zone can be divided into three
general categories: (1) permitted residential uses; (2) permitted “other” uses, which
are defined to include home occupations6 subject to the provisions of Portland City
Code section 14-410; and (3) “conditional uses,” which are permitted only upon
the issuance of a use permit subject to specific conditions, for certain residential
purposes and certain nonresidential purposes.7 Portland, Me., Code §§ 14-102,
14-103. The proposed use is consistent with both “other” uses, namely home
occupations, and “conditional” uses contemplated in the zone.
[¶23] Although the proposed use by Majella Global is unlikely to meet the
requirements of a home occupation because it will house more than one
5
The City Council’s factual determinations are reviewed for clear error. See Lane Constr. Corp. v.
Town of Washington, 2008 ME 45, ¶ 13, 942 A.2d 1202.
6
Pursuant to the ordinance, “home occupations” must not occupy more than a 500 square feet or more
than 25 percent of the floor area of a dwelling unit, whichever is less, and have no more than one
nonresident employee. One of the permitted home occupations is “computer programming.” Portland,
Me., Code § 14-410(b)(6) (Mar. 4, 2013).
7
We agree with the trial court that, to the extent that the City Council, because the property abuts the
R-6 zone, considered that professional office uses are permitted in the R-6 zone, this was error. The City
Council’s considerations must be limited to existing uses in the “original zones.” 30-A M.R.S.
§ 4352(8)(B). This does not change our conclusion that the City Council had a rational basis for its
determination that the use is consistent with existing and permitted uses in the R-4 zone.
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nonresident employee, the City’s designation of home occupations as a permitted
use is relevant. Home occupations have a broader purpose under the ordinance “to
allow the secondary and incidental use of a residence for the conduct of
appropriate occupations whose external activity levels and impacts are so limited
as to be compatible with the residential character of the neighborhood.” Portland,
Me., Code § 14-410. While the scale of the proposed use would no doubt be
greater than that of a home occupation, the CZA imposes a number of restraints to
ensure that the proposed office use remains limited and “neighborhood
compatible,” including that the business must provide off-site parking for its
employees and must occupy not more than seventeen percent of the property,
reserving the second and third floors for residential use.8 These conditions limit
the “external activity levels and impacts” of Majella’s business in the same way
that would be required of a home occupation that is permitted in the R-4 zone.
[¶24] Conditional nonresidential uses under the ordinance are limited to
(1) institutional uses, including elementary, middle, and secondary schools and
8
The Council also recognized in the CZA that
offices in residential zones, particularly in the R-4 zone, have been limited and any
allowance of an office use in the R-4 zone should only be considered for large,
unique, and historically significant structures which have not previously been in
residential use, and must be carefully considered and controlled to achieve an
appropriate balance between policies supporting neighborhood preservation and
policies supporting economic development and preservation of the City’s
architectural and historic heritage . . . .
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places of assembly (defined to include community halls and private clubs); and
(2) “other” uses including daycare facilities, nursery schools, and “sheltered care
group homes” for up to twelve residents plus staff. Portland, Me., Code
§ 14-103(a)-(b). While institutional uses, day cares, and group homes may serve
the residential aspects of the R-4 zone, the language of the ordinance does not
mandate that each use serve a greater community purpose.
[¶25] Group homes, day care facilities, and schools may provide incidental
community benefits, but they may also be privately owned and ultimately may be
as “commercial” in nature as a small software development company. The record
before the City Council included an extensive list of uses, including nursery
schools and office space for non-resident use, that had reportedly been made of the
property while it operated as a church.9 Taken as a whole, these previous uses, as
well as permitted and conditionally permitted uses in the R-4 zone, such as private
clubs, day cares, and group homes, each have the potential to be more disruptive
than an office with a maximum of fourteen employees and limited visits by the
public.
9
The list of activities previously occurring on the Property included operation of The Children’s
Nursery School; operation of Motto Citizens (office space); administration of the Maine Gay Men’s
Chorus (office space and a storage room); music recitals, rehearsals, and performances; church services;
Waynflete Advance Leadership Training; Aerobics classes; meetings of an Alcoholics Anonymous group
with more than 100 attendees; book sales; yoga classes; dance classes; and fitness classes. Notably, there
is no indication that these uses existed at the time of the rezoning application at issue here or that they
were permitted at the time they occurred. Remmel asserts that not all of these uses would have been
legally permitted in the R-4 zone, except perhaps for the church’s ministry.
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[¶26] Based on the evidence before it and its mandate to consider existing
and permitted uses pursuant to 30-A M.R.S. § 4352(8)(B), the City Council
concluded that the proposed use was in basic harmony with uses in the
neighborhood, which it described to “include a mix of residential, commercial and
institutional uses.” Consistent with previous opinions involving a City’s
application of its own ordinance to a legislative rezoning decision, see Golder,
2012 ME 76, ¶ 11, 45 A.3d 697; Nestle, 2009 ME 30, ¶ 23, 967 A.2d 707;
LaBonta, 528 A.2d at 1265, the City Council had a rational basis on which to reach
this conclusion.
The entry is:
Judgment vacated. Remanded with direction to
affirm the decision of the City Council.
On the briefs:
Danielle P. West-Chuhta, Esq., and Patricia A. McAllister,
Esq., City of Portland, Portland, for appellant City of Portland
Mary E. Costigan, Esq., Bernstein Shur, Portland, for appellant
32 Thomas Street, LLC
Bruce A. McGlauflin, Esq., Petruccelli, Martin & Haddow,
LLP, Portland, for appellees Charles Remmel, et al.
Orlando E. Delogu, Esq., appellee pro se
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At oral argument:
Patricia McAllister, Esq., for appellant City of Portland
Bruce McGlauflin, Esq., for appellees Charles Remmel et al.
Orlando Delogu, Esq., pro se appellee
Cumberland County Superior Court docket number CV-2012-312
FOR CLERK REFERENCE ONLY