Petitioner -John Alden Carrier III Pro Se Litigant
Respondent-William Dale, Esq.
Walker Justice, Superior Court.
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.
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.
seeks reversal of the ZBA's determination and an order of
the Court enjoining BIVC from enforcement of its
Standard of Review
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).
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.
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. 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.
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