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Carrier v. Bustins Island Village Corp.

Superior Court of Maine, Cumberland

March 2, 2017

OHN ALDEN CARRIER III, Petitioner,
v.
BUSTINS ISLAND VILLAGE CORPORATION, Respondent.

          Petitioner -John Alden Carrier III Pro Se Litigant Respondent-William Dale, Esq.

          80B JUDGMENT

          Lance Walker Justice, Superior Court.

         I. Background

         Petitioner has filed this 80B appeal seeking review of the June IS, 2016 action of the Bustins Island Village Corporation (BIVC) Board of Appeals (ZBA), On June 18, 2016, the ZBA denied Petitioner's appeal of a notice of violation letter issued by the BIVC Building Inspector alleging violations of the BIVC Zoning Ordinance for maintaining a semi-permanent tent platform and use of the platform on Petitioner's lot in the Resource Protection Zoning District.

         The ZBA made the following findings of fact and conclusions of law. Petitioner's property is Lot 69A and is in the Resource Protection District. Notice of Decision, June 18, 2016, Recreational Camping is allowed in the Resource Protection District as a permitted activity for seven days or fewer in a 30-day period. Id. The ZBA determined that a permit is required to pitch and use a tent. Id. The ZBA quoted the Zoning Ordinance's definition of Recreational Camping: "Use of any Tent with no Foundation or platform for the purpose of providing temporary shelter for one or more persons for recreational purposes". Id. Petitioner requested to pitch a tent on the platform from May until October. Id. The ZBA found that the use of the platform as proposed in the permit application and as currently used by Petitioner is in violation of the Zoning Ordinance. Id. The ZBA found that the tent platform had been on the property for 8-10 years, that the platform constitutes a "Structure" under the Zoning Ordinance, and that there is no evidence that a Building Permit or Conditional Use Permit was issued that would allow for the Structure to remain on the property. Id. The ZBA found that the platform is a Prohibited Use pursuant to the Zoning Ordinance Article 4.1.5. Id. Finally, the ZBA determined that maintenance of the platform is not sanctioned and the platform is subject to removal. Id.

         Petitioner seeks reversal of the ZBA's determination and an order of the Court enjoining BIVC from enforcement of its determination.

         II. Standard of Review

         The Superior Court reviews the decision of the fact-finding body in 8OB appeals. Friends of Lincoln Lakes v. Town of Lincoln, 2010 ME 78, ¶ 9, 2 A.3d 284. The decision is reviewed for errors of law, abuse of discretion, or findings not supported by substantial evidence. Aydelott v. City of Portland, 2010 ME 25, ¶ 10, 990 A.2d 1024. The burden of persuasion is born by the party seeking to overturn the decision. Id. "We review issues of statutory interpretation de novo with the primary objective of giving effect to the Legislature's intent." Humboldt Field Research Inst. v. Town of Steuben, 2011 ME 130, ¶ 5, 36 A.3d 873 (citing Searle v. Town of Bucks-port, 2010 ME 89, ¶ 8, 3 A.3d 390).

         III. Discussion

         Petitioner challenges the determination of the ZBA on three grounds. First, Petitioner contends that the Zoning Ordinance is in conflict with the Freeport Zoning Ordinance on the issues of tenting and tenting platforms and that the Zoning Ordinance is therefore invalid on that point. Second, Petitioner alleges that the ZBA failed to follow necessary procedure. Finally, Petitioner argues that he was discriminated against in application and enforcement of the Zoning Ordinance.

         A. Zoning Ordinance

         The Court reviews questions of law de novo upon application for review of governmental action. In this case, the Court looks to the language of the Zoning Ordinance. According to the Zoning Ordinance, "Recreational Camping" is allowed in the Resource Protection Zone, for as many as seven out of any given 30 days, "without the need for a Building or Use Permit". Zoning Ordinance § 4.1.3. "Recreational Camping" is defined as "[u]se of any Tent with no Foundation or platform for the purpose of providing temporary shelter for one or more persons for recreational purposes." Zoning Ordinance § 3.1. There is no contemplation of a "Tenting Permit" in reference to recreational camping within the Zoning Ordinance.[1] Furthermore, the Zoning Ordinance prohibits the existence of a "Tenting Area" on the Island. Zoning Ordinance § 5.4. "Tenting area" is defined as "[a] plot of land on which Tents are pitched for more than 30 days in a year." Zoning Ordinance § 3.1.

         The Court finds that as a matter of law, a Tenting Permit is not required for the permitted use of Recreational Camping in the Resource Protection Zone. Because Tenting Areas are not allowed on BIVC pursuant to the Zoning Ordinance, Petitioner is limited to pitching his tent in BIVC thirty days of the year. The Court reverses the determination of the ZBA concerning ...


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