ESTATE OF MERRILL P. ROBBINS
TOWN OF CUMBERLAND et al.
Argued: September 15, 2016
D. Anderson, Esq. (orally), and Juliet T. Browne, Esq.,
Verrill Dana, LLP, Portland, for appellant Estate of Merrill
Natalie L. Burns, Esq. (orally) and Alyssa C. Tibbetts, Esq.,
Jensen Baird Gardner & Henry, Portland, for appellee Town
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, TABAR. and HJELM,
The Estate of Merrill P. Robbins appeals from a judgment of
the Superior Court (Cumberland County, Mills, J.)
affirming the Town of Cumberland Board of Adjustment and
Appeals' determination that the Town's proposed
development is permitted within the Low Density Residential
district as a "municipal use." Because the plain
language of the Cumberland Zoning Ordinance supports the
Board's interpretation, we affirm.
In 2014, the Town of Cumberland purchased property located in
Cumberland known as the Broad Cove Reserve. The property is
located in the Low Density Residential district (LDR zone).
In the spring of 2015, the Town submitted to the Cumberland
Planning Board an application for site plan review for a
proposed development involving the Broad Cove Reserve
property. In its application, the Town stated that the
purpose of the development was "to provide low-impact
passive recreation along the Casco Bay shoreline for the
residents of Cumberland." Specifically, the Town
endeavored to create public access walking trails, construct
a parking lot, and relocate an existing bathhouse.
On July 16, 2015, the Cumberland Code Enforcement Officer
(CEO) determined that the Town's proposed use was
permitted in the LDR zone as a "municipal use, " a
designation defined in the ordinance. Cumberland, Me., Zoning
Ordinance § 315-4 (Mar. 26, 2012). The CEO submitted his
comments to the Planning Board, and after a public hearing,
the Board approved the Town's application. The Estate,
which owns land abutting the Broad Cove Reserve property,
subsequently appealed the CEO's decision, arguing that
the Town's development constituted an "outdoor
recreational facility, " and was thus prohibited in the
LDR zone under the terms of the ordinance. The Board of
Adjustment and Appeals agreed with the CEO's
interpretation and determined that the Town's proposed
facility was permissible within the LDR zone as a
"municipal use." The Estate subsequently appealed
to the Superior Court, and the court affirmed, concluding
that the plain language of the ordinance supported the Board
of Adjustment and Appeals' determination that the
Town's proposed use of the Broad Cove Reserve property
was a "municipal use, " and was thus permissible
within the LDR zone. The Estate appeals.
Standard of Review
On appeal, the parties do not dispute the description or the
physical characteristics of the Town's proposed facility,
nor do they contest its proper characterization under the
ordinance as an "outdoor recreational facility."
Rather, they offer competing interpretations of the zoning
ordinance, specifically with regard to how it is applied to
the Town's proposed facility. The interpretation of a
zoning ordinance is a question of law, and we review the
relevant portions of the Town of Cumberland Zoning Ordinance
de novo. Kittery Retail Ventures, LLC v. Town of
Kittery, 2004 ME 65, ¶ 10, 856 A.2d 1183.
Town of Cumberland Zoning Ordinance
The Estate argues that because the Town's proposed
facility may be characterized as either a "municipal
use" or an "outdoor recreational facility, "
and because a "municipal use, " but not an
"outdoor recreational facility, " is permitted in
the LDR zone, the relevant provisions of the ordinance are in
conflict. Further, the Estate argues that because of this
asserted conflict, we must look beyond the plain language of
the ordinance to interpret the conflicting provisions. And
because the provisions here cannot be harmonized, the Estate
argues, we must ...