MERRILL WOODWORTH, Personal Representative for the ESTATE OF MERRILL P, ROBBINS, Plaintiff,
INHABITANTS OF THE TOWN OF CUMBERLAND, Defendant and TOWN OF CUMBERLAND, Party-in-Interest
DECISION AND ORDER
Nancy Mills, Justice, Superior Court.
Before the court is a Rule 80B appeal filed by plaintiff Merrill Woodworth, as Personal Representative of the Estate of Merrill P. Robbins. Plaintiff challenges defendant Town of Cumberland's determination that a proposed beach facility is a Municipal Use. For the following reasons, the court affirms the decision of the Town of Cumberland Board of Adjustment and Appeals.
The Town of Cumberland (Town) owns a 22.4-acre parcel of land located in Cumberland, Maine (Town property). (R. 3, 5.) The Town property is adjacent to plaintiff's property and is located in a Low Density Residential zoning district (LDR zone). (R. 5, 107.) On May 26, 2015/ the Town submitted an application to the Cumberland Planning Board (Planning Board) for a permit to construct and operate a beach facility (facility) on the Town property. (R. 1-91.) Construction of the facility will involve creation of a 33-space parking lot, with potential for an additional 11 spaces, and relocation of public access trails and a bathhouse (R. 9-10.)
On July 16, 2015, the Cumberland Code Enforcement Officer (CEO) submitted comments and stated that the facility is a Municipal Use, defined as "[a]ny use or building maintained by the Town of Cumberland." (R. 115, 235-36; Cumberland, Me., Zoning Ordinance § 315-4 (June 26, 2006).) Municipal Uses are permitted in the LDR zone. (R. 247; Cumberland, Me., Zoning Ordinance § 315-7 (June 26, 2006).) On July 21, 2015, the Planning Board granted approval for the facility as a Municipal Use. (R. 92.)
On July 30, 2015, plaintiff appealed to the Cumberland Board of Adjustment and Appeals (Board of Appeals). (R. 106-10.) Plaintiff argued that the facility is an Outdoor Recreational Facility, defined as a "place designed and equipped primarily for the conduct of nonmotorized outdoor sports, leisure-time activities, and other customary and usual recreational activities ....". (R. 106-09, 237; Cumberland, Me., Zoning Ordinance § 315-4 (June 26, 2006).) Outdoor Recreational Facilities are not permitted in the LDR zone. (R. 247-48; Cumberland, Me., Zoning Ordinance § 315-7 (June 26, 2006).)
The Board of Appeals held a public hearing on August 13, 2015. (R. 160.) The Board of Appeals determined that the definition of Municipal Use was unambiguous and allowed the CEO to classify "any" use maintained by the Town as a Municipal Use. (R. 162-63.) Because the Town will maintain the facility, the Board of Appeals affirmed the CEO's determination that the facility is a Municipal Use. (R. 163.)
Plaintiff appealed to this court on August 20, 2015, and alleged three causes of action: count I, Rule 80B review of the Board of Appeals' decision; count II, Rule 80B review of the Planning Board's decision; and count III, preliminary injunction. On August 28, 2015 plaintiff moved for a preliminary injunction to enjoin the Town from constructing the facility. The court denied that motion on September 15, 2015. (Order on Pl.'s Mot. Prelim. Inj.) Plaintiff filed its Rule 80B brief on September 29, 2015. The Town filed an opposition to plaintiff's brief on October 28, 2015. Plaintiff filed a reply on November 12, 2015.
1. Standard of Review
When the Superior Court acts as an appellate court, it reviews the operative decision of the municipality for errors of law, abuse of discretion, or findings not supported in the record. Griffin v. Town of Dedham, 2002 ME 105, ¶ 6, 799 A.2d 1239. The parties do not dispute the description of the proposed facility; they dispute the interpretation of the ordinance. Interpretation of ordinance provisions is a question of law subject to de novo review. Isis Dev., LLC v. Town of Wells, 2003 ME 149, ¶ 3, 836 A.2d 1285; Jordan v. City of Ellsworth, 2003 ME 82, ¶ 9, 828 A.2d 768. In interpreting an ordinance, the court looks "first to the plain meaning of its language to give effect to the legislative intent, and if the meaning of the statute or ordinance is clear, [does] not look beyond the words themselves." Wister v. Town of Mt. Desert, 2009 ME 66, ¶ 17, 974 A.2d 903. The provisions 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." Roberts v. Town of Phippsburg, 642 A.2d 155, 156 (Me. 1994) (citation omitted).
2. Operative Decision
It is unclear whether the parties agree which decision is the "operative decision." The Town argues that the operative decision is the Board of Appeals' decision. (Def.'s Br. 4-5.) Although plaintiff does not dispute this in its reply, plaintiff seeks review of the decisions of the Board of Appeals and the Planning Board in the complaint. (Compl. 11 29-41.) The operative decision is the decision of the "tribunal of original jurisdiction" that acts "as both fact finder and decision maker[.]" Peregrine Developers, LLC v. Town of Orono, 2004 ME 95, ¶ 9, 854 A.2d 216 (citations omitted). If the Board of Appeals acts as both fact finder and decision maker, the court reviews its decision. If the Board of Appeals acts only in an appellate capacity, the court reviews the Planning Board's decision. Stewart v. Town of Sedgwick, 2000 ME 157, ¶ 4, 757 A.2d 773. The Board of Appeals acts as both fact finder ...