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Pierpont v. Town of Somerville

Superior Court of Maine, Lincoln

June 13, 2017

WILLARD PIERPONT, Plaintiff
v.
TOWN OF SOMERVILLE, Defendant

          ORDER ON 80B PETITION

          DANIEL I. BILLINGS JUSTICE.

         Plaintiff Willard Pierpont appeals pursuant to Maine Rule of Civil Procedure 8 OB from a decision by the Town of Somerville Board of Appeals. The Court elects to decide the appeal without oral argument. See M.R. Civ. P. 80B(1) (oral argument to be scheduled "[u]nless the court otherwise directs").

         I. BACKGROUND

         Plaintiff is the owner of a parcel of land in the Town of Somerville, Maine (the "Town"). (R. 8:1.) The Town adopted a Land Use Ordinance ("LUO") in 2012. (R. 8:3.)

         At the time the Town adopted the LUO, Plaintiff was engaged in "gravel extraction, gravel processing (power screening) and hauling gravel" on his land. (R. 8:3.) The parties agree that these activities were "grandfathered" as a lawful nonconforming use of Plaintiffs land.[1](Pl.'s Br. 2, 5; Def.'s Br. 1, 2; R. 8:1, 4.)

         On August 7, 2016, the Town's Code Enforcement Officer ("CEO") issued Plaintiff a Notice of Violation/Stop Work Order ("NOV") on the ground that Plaintiff had commenced rock crushing and blasting in violation of the LUO.[2] (R. 8:1.) Plaintiff timely appealed the NOV to the Town's Board of Appeals ("BOA") on the ground that his recent activities were within the scope of his nonconforming use. (R. 3, 8:1.) The CEO submitted a written response to Plaintiffs appeal. (R. 4, 8:2.)

         The BOA held a public hearing on Plaintiffs appeal on October 6 and November 4, 2016. (R. 8:2-3; 10.) Plaintiff, the CEO, and the BOA were each represented by counsel. Plaintiff, the CEO, and members of the public spoke on October 6; Plaintiff and his witness, John Lavin P.E., spoke on November 4. (R. 8:2-3; 10.) On November 17, 2016, the BOA issued Findings of Fact and Conclusions of Law (the "Decision") denying Plaintiffs appeal and affirming the CEO's enforcement decision. (R. 8.) Plaintiff timely filed the pending appeal.

         II. STANDARD OF REVIEW

         When reviewing the decision of a municipal agency pursuant to Maine Rule of Civil Procedure 80B, the Court reviews the decision "for abuse of discretion, errors of law, or findings not supported by the substantial evidence in the record." Wyman v. Town of Phippsburg, 2009 ME 77, ¶ 8, 976 A.2d 985 (internal quotation marks and citation omitted). "Substantial evidence" is evidence that a reasonable mind would accept as sufficient to form a conclusion, even when the evidence would also support a contrary conclusion. Sproul v. Town of Boothbay Harbor, 2000 ME 30, ¶ 8, 746 A.2d 368. The party seeking to vacate the municipal agency's decision bears the burden of persuasion on appeal. Bizier v. Town of Turner, 2011 ME 116, ¶ 8, 32A.3dl048.

         The interpretation of local ordinances is a question of law that the Court reviews de novo. Rudolph v. Golick, 2010 ME 106, ¶ 8, 8 A.3d 1048. The Court examines ordinances for their plain meaning and construes the terms of the ordinances reasonably "in light of the purposes and objectives of the ordinance and its general structure." Id. ¶ 9. The Court must give the words in the ordinance their "plain and ordinary meaning" and must not construe the ordinance "to create absurd, inconsistent, unreasonable, or illogical results." Duffy v. Town of Berwick, 2013 ME 105, ¶ 23, 82 A.3d 148 (internal quotation marks and citation omitted). If the meaning of an ordinance is clear on its face, the Court looks no further. Rudolph, 2010 ME 106, 9, 8 A.3d 684.

         III. ANALYSIS

         Plaintiff does not deny that he partook in rock crushing and blasting on his land. Instead, Plaintiff argues that rock crushing and blasting fall within the scope of his lawful nonconforming use.

         The BOA "has discretion in determining whether an activity is within the scope of a permitted, nonconforming use." Leake v. Town of Kittery, 2005 ME 65, ¶ 7, 874 A.2d 394 (quoting Henickv. Town of Mechanic Falls, 673 A.2d 1348, 1349 (Me. 1996)). Although "[i]n general, a mere increase in the intensity or volume of business is not an unlawful expansion of a preexisting, nonconforming use, " if a use is new or "of a different character" than the preexisting nonconforming use, it "can be proscribed by a zoning ordinance." Boivin v. Sanford, 588 A.2d 1197, 1199 (Me. 1991). "[A] questioned use may not be grandfathered if it fails to reflect the nature and purpose of the preexisting, nonconforming use, if it is different in quality or character as well as in degree, or if it is different in kind in its effect on the neighborhood where it is located." Id.

         Based on Plaintiffs statements at hearing, the BOA concluded that since the 1990s, Plaintiff "has engaged in gravel extraction, gravel processing (power screening) and hauling gravel" on his land but that "he did not conduct blasting of rock or rock crushing on the Property prior to the adoption of the LUO." (R. 8:3.) Applying the above-stated three part test, the BOA concluded that (1) rock crushing and blasting reflect the "nature and purpose" of Plaintiffs legal nonconforming use because both uses are "extractive"; (2) rock crushing and blasting are different in quality, character, and degree from Plaintiffs legal nonconforming use because "blasting and crushing are active processing methods that are different activities, which were not being conducted before the adoption of the LUO"; and (3) rock crushing and blasting are not different in kind from Plaintiffs legal nonconforming use in effect on the neighborhood because the BOA "received no evidence of such differences." (R. 8:5.) Because it found that rock crushing ...


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