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Bell v. Town of Gray

Superior Court of Maine, Cumberland

August 7, 2015

HEATH BELL and URSULA SOOBITSKY, Appellant,
v.
TOWN OF GRAY and the TOWN OF GRAY ZONING BOARD OF APPEALS, Appellee.

ORDER ON APPELLANTS' M.R. CIV. P. 80B APPEAL

Roland A. Cole, Justice

Before the Court is the M.R. Civ. P. 80B appeal of Appellants Heath Bell and Ursula Soobitsky challenging a July 23, 2014 decision of the Zoning Board of Appeals (the "Board") of the Town of Gray. Appellants contend that the Board erred in finding the business activities at their home constituted an "additional principal use, " rather than a "home occupation."[1] The Board and the Town of Gray have filed a Counterclaim alleging that the Appellants violated a Town of Gray Zoning Ordinance. For the reasons discussed below, the Court affirms the decision of the Board.

I. FACTUAL BACKGROUND

The Appellants in this case hold an equitable interest in and reside at 270 Mayall Road in Gray, Maine (the "Property").[2] This area of Gray is zoned as a Rural, Residential and Agricultural ("RRA") district. (R. 13.) The Property consists of one structure, which the Appellants use as their primary dwelling. (Id.) The first floor of said structure consists of a built-in two-bay garage, which includes a mezzanine that is used as an office. (Id.) The second level of the house is a duplex designed for two-family use, but it is currently occupied solely by the Appellants 'family. (Id.)

The Appellants own a business called "P & B paving, Inc." (Id.) In the past, Appellants have undertaken their bookkeeping and paperwork in the mezzanine office in the garage portion of the house. They have also parked some of their commercial trucks, including dump trucks at the Property, [3] and on occasion have used the garage to conduct repairs on their trucks. (See R. 13, 14, 25-26); (R. 14, 29-30.) There have been occasions where up to six commercial vehicles have been stored on the property. (R. 25-26.) At least one abutting neighbor has complained about the early morning noise and odors from the use and operation of the vehicles on the Property. (R. 35-38.) Appellants contend that they no longer store vehicles on the Property, but they hope to continue using the garage for routine maintenance of the trucks.[4] (Br. of Appellants 3.)

In January 2010, Appellants received a conditional use permit from the Town to operate a snowmobile repair business at the Property.[5] (R. 10.) The Town's Decision described the snowmobile repair shop as an "accessory use, " secondary to the principal use of the property as a single-family residence. (R. 5.) Appellants contend that they should be able to substitute the use of the garage previously approved by the Town for the snowmobile business for the use of the garage for P & B Paving. (R. 8.) The snowmobile repair business, however, is no longer in existence, and in his March 27, 2014, letter the CEO stated that the conditional use approval had lapsed. (R. 10.)

On October 17, 2013, the Code Enforcement Officer for the Town of Gray issued a Notice of Violation ("NOV") informing the owner of the Property, Nicholas Burke, that the Property could not be used for any activities associated with Appellants' paving business, including the parking/storage of vehicles. (R. 3.) The Notice mentioned that paving would fall under construction services, which would not be a permitted use in the RRA district. (Id.) The CEO repeatedly contacted Mr. Burke and the attorney for the Appellants following the Notice.[6]On March 27, 2014, the CEO sent a letter ordering the Appellants to cease their activities at the Property involving the repair of large commercial vehicles and the storage thereof. (R. 10.) The Appellants appealed this Decision to the Board. (R. 12-16.)[7]

On July 23, 2014, the Board heard the Appellants' Appeal of the CEO's decision. (See R. 19-59.) Mr. Bell testified that six dump trucks were stored at the property over the winter. (See R. 25-26.) The Appellants represented that when vehicles are parked at the property they are parked out of view of the main road. (R. 24, 25-26.) They stated in their letter that during the regular business season, the dump trucks and large equipment would be parked elsewhere, and that repairs on trucks or equipment would average no more than twice per week from the spring to the fall. (R. 8.) They also argued that all activity related to the trucks took place at normal business hours. (R. 14.) The office would be used approximately two mornings per week, but no customers would visit the garage or office. (Id.) Appellants argued that their use of the property for the paving business was actually less disruptive than the approved use of the property for the snowmobile repair business. (R. 13.) The Appellants also pointed out that because the neighborhood is close to a gravel pit and commercial vehicles travel through the area daily, the paving business is comparatively not noticeable. (R. 13-14.)

At the hearing, Elizabeth Lynch, residing at 274 May all Road adjacent to the Appellants, testified in support of the CEO Decision and in opposition to allowing the Appellants to use their property for their paving business. (R. 35-39.) She also submitted a letter to the Board through counsel. (R. 17-18.) She disputed the Appellants' statements regarding the frequency with which they park vehicles at the property. (Id.) The Appellants contend that they park vehicles there less than two times a week, and that over a month can go by without vehicles, whereas Ms. Lynch contends that vehicles were parked and operated at the property at 4:30 or 5:00 A.M. five to six days per week. (R. 2.) Ms. Lynch and her counsel reported a so-called cacophony of unpleasant noises at that early hour: multiple trucks and heavy equipment running, back-up alarms going off, noise elicited from raising the back of dump trucks and welding operations. (R. 32-33.) She also complained of objectionable fumes from the trucks and equipment wafting over to her property. (R. 33.) She stated that she raised her concerns with the Appellants but the Appellants did not change their behavior. (R. 35-36.) She did not have a problem with the snowmobile business because of certain constraints upon that business, and she would be fine with the Appellants seeking a conditionally permitted use of the Property as a headquarters for a contracting business as long as it was subject to certain conditions. (R. 32-36.)

At the hearing the Appellants noted that they were in the process of purchasing another piece of land where they intend to keep all of their P & B Paving vehicles and equipment. (R. 45-46.) It was also noted at the hearing that the lot size was insufficient for a second principal use. (R. 41-42.) On July 30, 2014, the Board issued its Decision denying the Appellant's request to allow the storage and repair of commercial vehicles associated with P & B paving on the Property. (R. 1-2.) The Board stated that it came to the following conclusions:

1. The paving business does not meet the criteria of a Home Occupation, specifically character of use inconsistent with a residential neighborhood, more than two commercial vehicles stored outside, nuisance issues from early noise and fumes and too many non-resident employees.
2. The size of the trucks constitutes a commercial use with construction services.
3. A commercial use is not allowed in this district. However, even if the use were allowed, the applicant does not have enough lot acreage to allow for two principal uses; one being the single-family ...

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