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Peterson v. Town of Rangeley
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:		1998 ME 192
Docket:		Fra-97-692
Argued:		June 11, 1998
Decided :		July 29, 1998		

Panel:	WATHEN, C.J., and  ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ {*} and SAUFLEY,
JJ.

RUSSELL PETERSON, et al.

v.

TOWN OF RANGELEY, et al.

CLIFFORD, J.

	[¶1]  Russell and Juliana Peterson appeal from judgments in favor of
the defendants, the Town of Rangeley and Arthur S. Emory, the Town's
Code Enforcement Officer, entered  in the Superior Court (Franklin County,
Mills, J.) after a jury-waived trial.  The Petersons challenge the denial by the
Rangeley Zoning Board of Appeals of their 1994 request for a variance and
the court's determination that the permits issued pursuant to an earlier
variance, granted in 1992, had expired.  They contend inter alia that (1) the
Town of Rangeley is estopped from challenging the permits issued pursuant
to the 1992 variance; (2) they have a vested right to complete their
renovation project pursuant to the 1992 variance; (3) the provision in the
building permit prohibiting a six-month suspension of a building project
does not apply to them; (4) the Board had the authority to and should have
granted the variance in 1994; and (5) the Board's earlier decision approving
the 1992 variance request should have been given res judicata effect as to
the 1994 request for an identical variance.  We reject most of the
contentions advanced by the Petersons, and we affirm the judgment as to
the Petersons' plenary action, those counts seeking a declaratory judgment. 
Because, however, the Board of Appeals mistakenly concluded that it had no
jurisdiction to address the Petersons' variance, we vacate the judgment
entered as to the appeal brought pursuant to M.R. Civ. P. 80B, and remand
for the Petersons to have the opportunity to have their request for a variance
heard by the Board.
	[¶2]  The Petersons own real estate adjacent to Rangeley Lake.  In the
process of applying for a building permit to renovate and enlarge two small
cabins, the Petersons conferred with Justine Ayers, who was then the Town
of Rangeley's Code Enforcement Officer.  Ayers informed them that they
would need a variance because they were expanding the buildings by more
than 30%, and the camps were nonconforming structures in a shoreland
zone.  They sought, and on March 5, 1992 were granted, a variance from the
Board.  The variance did not indicate its expiration date, and the permit
issued on May 22, 1992, contained the following language:

PERMIT WILL BECOME NULL AND VOID IF CONSTRUCTION
WORK IS NOT STARTED WITHIN SIX 12 MONTHS OF DATE
THE PERMIT IS ISSUED AS NOTED ABOVE.  EXPIRES 3
YEARS THEREAFTER.

As Ayers issued the permit, she crossed out the word "SIX" and added the
numeral "12" and also added "EXPIRES 3 YEARS THEREAFTER."
	[¶3]  The Petersons, who reside out of state, planned to build in the
fall of 1992.  They purchased over $10,000 in materials in preparation for
the renovation.  In the summer of 1992, the builder installed such items as a
hot water heater and electricity, but then told the Petersons he could not
get to the bulk of the renovation until the fall of 1993.  The Petersons met
with the builder in August 1993, and work was set to begin after Labor Day. 
The Petersons rented storage space for the materials.  They found out in the
middle of September, however, that the builder moved from the area,
leaving them "hanging in the wind" and without anyone to do the work on
their camps.
	[¶4]  The Petersons were unable to locate a new builder until the
summer of 1994.  They paid a courtesy visit to Emory, the new Code
Enforcement Officer, to introduce themselves and to tell him that they had a
new contractor who would be doing the project in the fall.  After reviewing
the Petersons' file, Emory told them that their permit had expired, and that
the Board had made a mistake in granting the variance.  Emory declined to
issue a new permit, relying on the Rangeley Zoning Ordinance applicable to
a variance:

A variance or Conditional use Permit secured under the
provisions of this Ordinance by vote of the Board of Appeals or
Planning Board shall expire if the work or change involved is
not commenced within one year of the date on which the
appeal is granted or the conditional use is authorized, or
change is not substantially completed within two years.

Town of Rangeley Zoning Ordinance § 7(J) (1987).  The Rangeley building
code further provides:

Every permit issued by the building official under the
provisions of this code shall expire by limitation and become
null and void if the building or work authorized by such permit
is not commenced within 12 months from the issue date of the
permit, or if the building or work authorized by such permit is
suspended or abandoned at any time after the work is
commenced for a period of six months.

Town of Rangeley, Amendments to the CABO{1} one and two family dwelling
code § R109 (emphasis supplied).
	[¶5]  Having been told that their variance was no longer effective, and
that the building permit issued pursuant to the variance had expired, the
Petersons applied for a new variance in 1994.  Without addressing the
merits of the Petersons' alleged hardships, the Zoning Board of Appeals
denied the Petersons' request for a variance.  The Town based its denial on
legal advice that, pursuant to the Town ordinance, the Board had no
authority to grant a variance for an expansion which increases the volume or
the floor by 30% or within 100 feet of the shore.
	[¶6]  The Petersons brought this action in Superior Court, appealing
pursuant to Rule 80B the Board's denial of their 1994 request for a variance,
and, in addition, seeking declaratory relief concerning the variance obtained
by the Petersons in 1992 and the permit issued as a result of the variance. 
The court found that although the Petersons "commenced work" within
twelve months as required by both the permit and the variance, their
building permit expired because they suspended work for a period of over
six months, and their variance was no longer valid because the project was
not substantially completed within two years.  The court further concluded
that contrary to the Petersons' argument, the Town was not estopped from
denying that the permit was valid for three years, because the Petersons'
reliance on the acts of Ayers and the language on the permit was not
reasonable and hence they did not satisfy the elements of equitable
estoppel.{2}  The court also denied the Petersons' 80B appeal and affirmed
the Board's denial of their 1994 variance request.  The appeal to this Court
followed.

I.  Expiration of the Building Permit

	[¶7]  Pursuant to the Rangeley building code, a building permit
expires "if the building or work authorized by such permit is suspended or
abandoned at any time after the work is commenced for a period of six
months."  The Petersons concede that there were periods of more than six
months during which work was suspended, but argue that that does not
result in the expiration of the permit because the "or" in the phrase
"suspended or abandoned" should mean "to wit."  Accordingly, they
contend, what the language actually means is that the permit expires only if
the work authorized by the permit has been abandoned for a period of six
months.  We disagree.
	[¶8]  The meaning of terms or expressions in a zoning ordinance is a
question of law for the court.  George D. Ballard, Builder, Inc. v. City of
Westbrook, 502 A.2d 476, 480 (Me. 1985).  The contested language must be
construed reasonably and with regard to both the ordinance's specific object
and its general structure.  Ray v. Town of Camden, 533 A.2d 912, 914 (Me.
1987).  Each undefined term is given its common and generally accepted
meaning unless the context of the statute clearly indicates otherwise. 
George D. Ballard, Builder, Inc., 502 A.2d at 480. 
	[¶9]  The trial court correctly concluded that "or" in the Rangeley
ordinance in fact means "or," and not "to wit."  The "common and generally
accepted meaning" of "suspended or abandoned" contemplates both
suspension and abandonment of work as independent grounds for expiration
of a building permit.  See Ballard, 502 A.2d at 480.  Although the Petersons
characterize this construction of the statue as "draconian" in light of
Maine's climate that may often force a six-month cessation of work, we are
bound by the statutory language that plainly leads to the construction given it
by the trial court.  The court correctly concluded that the Petersons'
building permit had expired.

II.  Res Judicata

	[¶10]  The Petersons next contend that even if their 1992 permit has
expired, principles of res judicata preclude the denial by the Board of their
1994 variance request, a request for a variance virtually identical to the
request granted by the Board in 1992.
	[¶11]  In Town of North Berwick v. Jones, 534 A.2d 667 (Me. 1987),
we extended the collateral estoppel, or issue preclusion, prong of res
judicata to administrative proceedings, and concluded that "final
adjudication in an administrative proceeding before a quasi-judicial
municipal body has the same preclusive effect as a final adjudication in a
former court proceeding."  Id. at 670.
	[¶12]  Res judicata, however, is applied sparingly in matters of
zoning.  Omnivest v. Stewartstown Borough Zoning Hearing Bd., 641 A.2d
648, 651 (Pa. Cmwlth. 1994).  In Twigg v. Town of Kennebunk, 662 A.2d
914 (Me. 1995), we recognized the limitations to the application of res
judicata in the variance context, and concluded that "[a]n expired and
voided variance is comparable to a vacated judgment which has no res
judicata effect."  Id. at 915.  To apply res judicata in a general way to a
proceeding for a variance "would negate the ordinance provisions limiting
the duration of the variance authorization and would create confusion in
zoning matters involving expired variances."{3}  Omnivest, 641 A.2d at 651. 
The Board's 1992 grant of a variance to the Petersons, because it expired, is
not res judicata as to their 1994 request for a variance.

III.  The Town's Authority to Grant Variances in the Shoreland Zone

	[¶13]  The Petersons' 1994 variance request was denied by the Board
because the Board concluded that the Town has made no provision in its
ordinances authorizing variances pursuant to the statute governing the
expansion of structures in volume or floor area by 30% or more within 250
feet of a great pond.  The statute, 38 M.R.S.A. § 439-A(4) (Supp. 1997),
provides:

Notwithstanding any provision in a local ordinance to the
contrary, all new principal and accessory structures and
substantial expansions of such structures within the shoreland
zone as established by section 435 shall meet the water
setback requirements approved by the board . . . .  For
purposes of this subsection, a substantial expansion of a
building shall be an expansion which increases either the
volume or floor area by 30% or more.  This subsection is not
intended to prohibit a municipal board of appeals from
granting a variance, subject to the requirements of this article
and Title 30-A, section 4353 . . . .

(emphasis added).  
	[¶14]  The Town's position is that its own ordinance could not
empower the Board to grant variances if State law prohibits it:

As used in this Ordinance, a variance is authorized only for
height, area and size of structures or size of yards or open
spaces.  Establishment or expansion otherwise prohibited shall
not be allowed by variance . . . .

Town of Rangeley Zoning Ordinance § 8(D)(2) (emphasis added).
	[¶15]  Title 38 M.R.S.A. § 439-A(4), however, does not prohibit
expansions, and in fact states that it is "not intended to prohibit a municipal
board of appeals from granting a variance."  Moreover, section 8(D)(2) of the
Town's zoning ordinance specifically authorized variances "for height, area
and size of structures," unless otherwise prohibited.  Title 38 M.R.S.A. §
4353 does not prohibit the Town from granting a variance to the Petersons,
provided they otherwise meet the criteria.  Indeed section 4353 authorizes
boards of appeals to interpret zoning ordinances and grant variances.  See
also 30-A M.R.S.A. § 3001 ("Any municipality, by the adoption, amendment
or repeal of ordinances or bylaws, may exercise any power or function which
the Legislature has power to confer upon it, which is not denied either
expressly or by clear implication, and exercise any power or function
granted to the municipality by the Constitution of Maine, general law or
charter.").
	[¶16]  Further, section 3(c)(1)(a) of the Town's ordinance
implements the state shoreland zoning statute, in that it provides that
nonconforming structures within the shoreland area "shall not be expanded
by 30% or more."  At the same time, section 3(d)(1) provides that
"[e]xpansion of nonconforming uses may be allowed" after review and under
certain conditions.  Accordingly, the Board has the authority to grant such a
variance.  See Cope v. Town of Brunswick,  464 A.2d 223, 226 (Me. 1983)
("a variance is authority extended to a landowner to use his property in a
manner prohibited by the ordinance (absent such variance)").
	[¶17]  The Board did not reach the merits of the Petersons' variance
request.  The Petersons have a right to have that request heard. 
Accordingly, the case must be remanded for that purpose.
	The entry is:
Judgment as to declartory judgment portion of
the complaint is affirmed.  Judgment on the
Rule 80B appeal is vacated.  Remanded to the
Superior Court with instructions to remand to
the Rangeley Zoning Board of Appeals for
further proceedings consistent with this
opinion.
Attorney for plaintiffs:

John C. Bannon, Esq., (orally)
Murray Plumb & Murray
75 Pearl Street
P O Box 9785
Portland, ME 04104-5085

Attorney for defendants:

Stephen E. F. Langsdorf, Esq., (orally)
Preti, Flaherty, Beliveau & Pachios, LLC
P O Box 1058
Augusta, ME 04332-1058