Osprey Family Trust v. Town of Owls Head , 2016 Me. LEXIS 96 ( 2016 )

288MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 89
Docket: Kno-15-288
Submitted
On Briefs: April 21, 2016
Decided: June 7, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
OSPREY FAMILY TRUST
v.
TOWN OF OWLS HEAD et al.
MEAD, J.
[¶1] The Osprey Family Trust appeals, pursuant to M.R. Civ. P. 80B, from a
judgment of the Superior Court (Knox County, Billings, J.) affirming a decision of
the Town of Owls Head Board of Appeals (BOA). The BOA’s decision overruled
the decision of the Town’s Planning Board to grant the Trust a permit to remove an
existing structure in the shoreland zone and replace it with a new structure that
included an addition. We agree with the court’s finding that the Planning Board
was required to initially consider the new structure’s compliance with the Town’s
Shoreland Zoning Ordinance (SZO) absent the proposed addition; we conclude
also that the Planning Board applied the wrong section of the SZO in considering
the Trust’s permit application. For that reason, we vacate the judgment and
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remand with instructions that the court order the Planning Board to reconsider the
application, applying the proper SZO provision.
I. BACKGROUND
[¶2] The facts are drawn from the administrative record before the Planning
Board. See M.R. Civ. P. 80B(f). All parties agree that the Planning Board
rendered “the operative decision of the municipality” to be reviewed on appeal
because the SZO authorizes the BOA to act only in an appellate capacity, which it
did in this case. See Fitanides v. City of Saco, 2015 ME 32, ¶ 8, 113 A.3d 1088
(quotation marks omitted); Owls Head, Me., Zoning Ordinance § 1.6(B)(2)
(March 4, 2013); Owls Head, Me., Shoreland Zoning Ordinance § 16(H)(1)
(March 4, 2013).
[¶3] On March 31, 2013, Douglas Johnson, as trustee of the Osprey Family
Trust (hereinafter Johnson), filed an application for a building permit concerning
his shorefront property in Owls Head. Johnson sought to replace a dilapidated
minesweeper deckhouse that had been placed on the property in the 1950s and
used as a cottage with a new, larger single-family residence. The existing structure
is located partly within the SZO’s seventy-five-foot setback zone from the
Atlantic Ocean. See Owls Head, Me., Shoreland Zoning Ordinance § 15(B)
(March 4, 2013). In addition to being bounded by the ocean, the rear of Johnson’s
property contains a wetland of special significance that would necessitate a Maine
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Department of Environmental Protection permit before being used as a building
site. 06-096 C.M.R. ch. 310, § 4, amended by order 2009-32 (effective
Jan. 26, 2009). Johnson proposed to replace the existing structure with one that
would still be located partly within the seventy-five-foot setback zone, but farther
back from the ocean than the old structure, along with an addition lying completely
outside of the seventy-five-foot setback zone and not encroaching on the wetland.
[¶4] The Planning Board took up Johnson’s proposal on several occasions
between April 2013 and March 19, 2014, when it made findings of fact and
unanimously approved Johnson’s plan. The Planning Board’s findings of fact
included a finding that
[u]nder Section 12 of the Town’s Shoreland Zoning Ordinance, this is
a nonconforming structure and it may be re-located, further away
from the ocean, but not into the wetland to the rear, to the greatest
extent practical in the opinion of the Planning Board. . . . [T]he
Planning Board believes the “compromise” location of the proposed
new building—15’ back from its original proposed location . . . —best
meets the applicable SZO standard, i.e., the proper balancing of the
competing environmental interests.
[¶5] The referenced SZO provision states, in part, that “[a] nonconforming
structure may be relocated within the boundaries of the parcel on which the
structure is located provided that the site of relocation conforms to all setback
requirements to the greatest practical extent as determined by the Planning
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Board.” Owls Head, Me., Shoreland Zoning Ordinance § 12(C)(2)
(March 4, 2013) (emphasis added).
[¶6] On April 14, 2014, Owls Head residents Jill Delaney and Claire Perry
appealed the Planning Board’s decision to the BOA, contending that the Planning
Board erred in finding that Johnson’s project conformed with setback requirements
“to the greatest practical extent.” The BOA met on May 6, 2014, and decided that
(1) “the Planning Board was in error in their decision and [] the existing structure
is not being relocated to the greatest extent practical,” and (2) “the decision of the
Planning Board was clearly contrary to the Shoreland Zoning Ordinance.”
[¶7] Johnson appealed to the Superior Court pursuant to M.R. Civ. P. 80B.
The court entered an order affirming the BOA’s decision after concluding that
it was certainly reasonable and within the Planning Board’s discretion
for the Board to take into consideration the location of the wetland
and drainage swale and to decide that it was not practical to require
that the building be relocated into the wetland or swale. However, it
was not reasonable for the Planning Board to take into consideration
the proposed addition before determining whether the relocation of
the existing structure “conforms to all setback requirement[s] to the
greatest practical extent.” The proper analysis would have been to
first consider how the existing structure could be relocated on the
property to conform . . . and to then consider whether an addition
outside of the 75 foot setback area could be constructed. . . . The
evidence in the record compels a finding that the existing structure
could be relocated further from the ocean without encroaching on the
wetland . . . if not for the proposed addition. Therefore, the Planning
Board’s decision is unsupported by substantial evidence in the record
and must be overturned.
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[¶8] Johnson appealed and Delaney cross-appealed. We have considered
the arguments made in the cross-appeal and find them to be unpersuasive.
Accordingly, we turn to our review of the Planning Board’s decision to grant the
permit. See Fitanides, 2015 ME 32, ¶ 8, 113 A.3d 1088.
II. DISCUSSION
[¶9] We review the Planning Board’s approval of the permit directly “for
error of law, abuse of discretion or findings not supported by substantial evidence
in the record.” Id. (quotation marks omitted). In doing so, we interpret
Owls Head’s ordinances de novo. Gensheimer v. Town of Phippsburg,
2005 ME 22, ¶ 16, 868 A.2d 161. “Substantial evidence exists when a reasonable
mind would rely on that evidence as sufficient support for a conclusion.” Id.
(quotation marks omitted). Although Johnson is the appellant here, Delaney bears
the burden of persuasion on appeal because she seeks to vacate the Planning
Board’s underlying decision. Fitanides, 2015 ME 32, ¶ 8, 113 A.3d 1088.
[¶10] The Town’s ordinances are construed de novo, but
[w]e review factual findings of the Planning Board with deference and
may not substitute our own judgment for that of the Board. The
Board’s decision is not wrong because the record is inconsistent or a
different conclusion could be drawn from it. Further, a demonstration
that no competent evidence supports the local board’s findings is
required in order to vacate the board’s decision. . . . We are bound to
uphold the Board’s decision unless the evidence before the Board
would compel a positive finding for [the appellees].
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Gensheimer, 2005 ME 22, ¶¶ 17-18, 868 A.2d 161 (alteration, citations, and
quotation marks omitted).
[¶11] The Planning Board made four findings of fact, only one of which is
at issue here. In that finding, the Planning Board determined that relocating the
proposed structure fifteen feet farther back from the ocean to a site that did not
intrude on the wetland struck a proper balance between Johnson’s interests and
those of the SZO—that is, the relocation conformed to setback requirements not to
the greatest theoretical extent, but rather “to the greatest practical extent.” That
conclusion represents a mixed question of fact and law. The real question
presented is whether the Planning Board was entitled to make its determination
based on the project as proposed by Johnson, which included an addition to the
original structure’s footprint, or whether, as the Superior Court concluded, the
Planning Board was required to consider how the original structure’s footprint
could be relocated before considering the proposed addition. We conclude that the
Planning Board erred in its interpretation of the Ordinance and that the SZO
supports the court’s determination.
[¶12] Different sections of the SZO govern the relocation of nonconforming
structures, and the replacement of such structures.1 The Planning Board focused
1
The SZO defines a “non-conforming structure” as “a structure which does not meet any one or more
of the following dimensional requirements; setback . . . but which is allowed solely because it was in
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on the relocation provision. It is clear, however, that Johnson was not seeking to
relocate the dilapidated deckhouse, but rather to demolish it and replace it with a
new structure, plus an addition. When a nonconforming structure is replaced, as
opposed to being relocated, then section 12(C)(3) of the SZO is applicable:
Any non-conforming structure which is located less than the required
setback from a water body . . . and which is removed . . . may be
reconstructed or replaced provided that a permit is obtained within
one year of the date of said . . . removal, and provided that such . . .
replacement is in compliance with the water setback requirement to
the greatest practical extent as determined by the Planning Board in
accordance with the purposes of this Ordinance. . . . If the total
amount of floor area and volume of the original structure can be
relocated or reconstructed beyond the required setback area, no
portion of the reconstructed or relocated (sic) shall be replaced or
constructed at less than the setback requirement for a new structure.
Owls Head, Me., Shoreland Zoning Ordinance § 12(C)(3) (March 4, 2013)
(emphasis added).
[¶13] Although the conclusion reached by the Superior Court—that the
Planning Board erred in considering the footprint of the original structure and the
new addition as a single whole—was reached after consideration of
section 12(C)(2), the court’s reasoning is equally applicable to section 12(C)(3).2
That said, while we agree with the court’s legal conclusion, the Planning Board’s
lawful existence at the time this Ordinance or subsequent amendments took effect.” Owls Head, Me.,
Shoreland Zoning Ordinance § 17 (March 4, 2013).
2
Section 12(C)(3) requires that new construction take place beyond the setback requirements of the
SZO. See Owls Head, Me., Shoreland Zoning Ordinance § 12(C)(3) (March 4, 2013).
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application of the wrong section of the SZO required the court as a procedural
matter to remand the case to the Planning Board for reconsideration of Johnson’s
application, which may require additional fact-finding. Instead, the court simply
denied Johnson’s appeal from the BOA’s decision, which was also made after
incorrectly considering section 12(C)(2). For that reason, we vacate the court’s
judgment and remand the matter with instructions to remand Johnson’s permit
application to the Owls Head Planning Board for de novo consideration and
application of the applicable section of the Shoreland Zoning Ordinance.
The entry is:
Judgment vacated. Remanded with instructions
that the Superior Court remand the Trust’s permit
application to the Owls Head Planning Board for
de novo consideration consistent with this opinion.
On the briefs:
Paul L. Gibbons, Esq., The Law Offices of Paul L. Gibbons,
LLC, Camden, for appellant Osprey Family Trust
David F. Jenny, Esq., Owls Head, for cross-appellant Jill
Delaney
The Town of Owls Head and Claire Perry did not file a brief
Knox County Superior Court docket number AP-2014-08
FOR CLERK REFERENCE ONLY