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Town of Windham v. Bond

Superior Court of Maine, Cumberland

July 13, 2016




          Jed French, Maine District Court Judge.

         In this Rule 80K matter, both parties have moved for summary judgment. See Defendant's Amended Motion for Summary Judgment, filed April 19, 2016 and the Town of Windham's Cross-Motion for Summary Judgment, filed with the Town's Opposition to Defendant's motion on May 9, 2016.

         This dispute arises out of a Rule 8 OK Citation and Complaint which describes Defendant's alleged violation as follows:

Defendant is in violation of a variance issued by the Town of Windham Zoning Board of Appeals (ZBA), which allowed him to construct a canoe storage structure at the property notwithstanding the setback restrictions of the Shoreland Zoning Ordinance (SZO). Defendant has installed a woodstove in the storage structure, which he is using for camping purposes in violation of the SZO and the variance. Defendant also installed the woodstove in the structure without a valid permit.

         Rule 80K Citation and Complaint, served on Defendant on February 26, 2016.

         In urging the court to grant summary judgment in his favor, Defendant asserts that "the only substantive issue before the Court is whether camping activities may take place within the enclosed section of the Structure under the Shoreland Zoning Ordinance." Defendant's motion at 27. The Town, on the other hand, argues that it is entitled to summary judgment in its favor "[b]ecause Defendant's use of the storage structure as a shelter does not meet all requirements for residential structures as required by Section 199-15(E)(5), and because Defendant's camping use of the storage structure is inconsistent with the variance .... [and] because Defendant's building permit did not authorize the installation and chimney in the storage structure" such that "it is undisputed that Defendant is in violation of Section 199-16(B) of the SZO." See Plaintiffs Cross-Motion at 9 & 12.

         Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, referred to in the statements required by subdivision (h) show that there is no genuine issue as to any material fact set forth in those statements and that any party is entitled to judgment as a matter of law." M.R. Civ. P. 56(c). A "material fact" is a fact that has the potential to affect the outcome of the litigation. See, e.g., Inkel v. Livingston, 2005 ME 42, ¶ 4.

         The court has reviewed the parties' respective Rule 56(h) statements of material fact. While many facts and objections are set forth, [1] the court finds that the material facts are essentially undisputed. Defendant initially sought permission to construct a one room cabin at 63 Libby Hill Road. That petition was denied for failure to meet the Town's 100 foot setback requirement. See Exhibit B to Affidavit of Heather McNally ["McNally Affidavit"]. Defendant subsequently sought and was awarded a variance "that would allow the construction of combined camping platform/canoe storage structure measuring 16 feet by 20 feet , ..."[2]See Exhibit E ("Certificate of Zoning Variance Approval") to McNally Affidavit. Exhibit E in pertinent part expressly states:

This variance may be used only as set forth in the application, as revised, and as depicted upon any plans, sketches, drawings or other supporting materials presented by the applicant and all representations made by the applicant on the application, including the setbacks, dimensions and structure details shown on the December 18, 2012 Landscape Plan for the Bond Campsite prepared by Gnome Landscapes Design and Masonry. No change, including but not limited to additional enclosure of the platform structure or any change to the dimensions or location, shall be made form the revised application, supporting materials, or representations without the prior approval by the Board of Appeals of an amendment to this variance or of a new variance.

Exhibit E at ¶ 1.

         Notwithstanding the above express reference to the Gnome Landscape Plan (which Defendant refers to as "the December 18th Plan"), Defendant argues that "the December 18th Plan is inadmissible parole [sic] evidence" and that "[e]ven if, arguendo, the December 18th Plan is relevant or admissible ... [it] does not support the proposition that the Variance defines the unenclosed section as a distinct and separate structure apart from a separate and distinct structure that is enclosed." See Defendant's Amended Motion at 21-22. The court does not agree, and finds that the parties understood that the variance would allow for two separate and distinct uses within the 16 by 20 foot structure: an "open platform" for camping, and "enclosed storage" for storage. See, e.g., Exhibit D at p. 3 ("Further discussion by the Board continues about the boat house and tent platform location for setback purposes"); Exhibit F at p. 3 ("Due to the very small flat area on the property, camping cannot occur on the site without a small platform to provide a flat surface for tenting or outside camping. The slope of the lot would otherwise prevent this use. The boat storage structure is necessary to allow the use of the property for recreational uses."). The Gnome Landscape Plan, submitted as the last page of Exhibit C, does not include any reference to a woodstove or chimney. Further, it is undisputed that in Defendant's application for a building permit, Defendant wrote "none" under the section for chimneys. See Exhibit G to McNally Affidavit.

         Although Exhibit E expressly provides that no change to the plan may be made without prior approval, Defendant installed a woodstove within the enclosed storage area. Defendant concedes that he did so. See Defendant's Statement of Material Facts at ¶ 13 ("Defendant's sole purpose for installing the woodstove was to facilitate camping use of the structure outside of the summer season."). Accordingly, there is no genuine dispute that by installing the woodstove Defendant deviated from the terms of the variance, putting him in violation of the setback restrictions set forth in Section 199-15 (B)(1) of the Shoreland Zoning Ordinance.[3] By making the enclosed structure suitable for camping year-round, Defendant also violated of Section 199- 15(E)(5) of the Shoreland Zoning Ordinance, which provides:

When a recreational vehicle, tent or similar shelter is placed on-site for more than one hundred-twenty (120) days per year, all requirements for residential structures shall be met, including the installation of a subsurface sewage disposal system in compliance with the State of Maine Subsurface ...

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