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Turbat Creek Preservation v. Town of Kennebunkport

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 109
Docket:	Yor-99-661
Argued:	May 2, 2000
Decided:	June 5, 2000

Panel:CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

TURBAT CREEK PRESERVATION, LLC

v.

TOWN OF KENNEBUNKPORT et al.

ALEXANDER, J.

	[¶1]  Turbat Creek Preservation, LLC appeals from a judgment of the
Superior Court (York County) including:  (1) the court's order (Perkins,
A.R.J.) affirming the Town of Kennebunkport Zoning Board of Appeals'
decision that Turbat Creek's residential use of a "boathouse" violates the
Town's Land Use Ordinance and granting summary judgment against Turbat
Creek's due process claim; and (2) the court's order (Brennan, J.)
concluding, after a bench trial, that the Town is not equitably estopped from
determining that regular residential use of the boathouse violates its land
use ordinance.  Finding no error of law in the court's decisions, and finding
the factual determinations fully supported in the record, we affirm.

I.  CASE HISTORY

	[¶2]  In 1996, Turbat Creek purchased a parcel of land including
four mainland cottages and a structure, called a boathouse, erected on a
marsh island in Turbat Creek in Kennebunkport.  Turbat Creek then sought
and obtained from the Town a permit to renovate and resell the four
cottages, which had been part of a family compound, as separate,
independent, residential condominium units.  This application did not
indicate the island boathouse as a fifth residential unit.  Instead, it appeared
to be part of the common areas of the condominium.  The plan supporting
the application noted that conversion of common areas or creation of new
units would require Town subdivision approval.  However, Turbat Creek
documents that were not part of the plan reserved the boathouse for the
exclusive use of the Turbat Creek principal, Jeffrey N. Cohen.  
	[¶3]  Evidence in the record indicated that, for approximately the
previous forty years, the boathouse had been used for occasional overnight
stays and as a common gathering place for residents and guests at the four
mainland cottages.  Although overnight stays were occasional, evidence
indicated that the toilet and wastewater facilities had not been used since
approximately 1990 and the hot water heater had not been used since
approximately 1975.  
	[¶4]  Cohen approached the Town's code enforcement officer and
inquired about a permit to renovate the boathouse and the piers and pilings
supporting it.  The record supports the view that Cohen's request to the
code enforcement officer indicated that the purpose of the renovations was
to modernize, but continue the pre-existing use of, the boathouse.  The
estimated cost for work under the permit was $25,000.  After obtaining the
permit to make the indicated renovations, particularly to the piers and
pilings, Cohen expended a total of $115,403.70 for renovations, making the
boathouse a fully functional residential dwelling.  The renovated boathouse
was usable as a dwelling from April to October each year while the Town
maintained a seasonal waterline to the property.  
	[¶5]  Beginning in April of 1997, Cohen started using the boathouse
as a dwelling, staying there approximately sixty nights in the 1997 season.  
	[¶6]  In October of 1997, the code enforcement officer served a
notice of violation.  The notice stated that Cohen's use of the boathouse
violated the Town's ordinance provision prohibiting conversion of structures
built on piers beyond the normal high water mark into residential dwelling
units.  The notice also ordered Cohen to discontinue use of the boathouse as
a dwelling.  Turbat Creek and Cohen appealed the notice of violation to the
Kennebunkport Zoning Board of Appeals.  After a hearing, the Board of
Appeals affirmed the notice of violation.  
	[¶7]  Turbat Creek appealed the Zoning Board of Appeals's decision
to the Superior Court.  Turbat Creek's action sought appellate review
pursuant to M.R. Civ. P. 80B.  In addition to the Rule 80B claim, Turbat
Creek asserted independent claims for estoppel and due process violations,
plus other issues that were withdrawn during the course of the Superior
Court's proceedings.  After a hearing on legal issues, the court (Perkins,
A.R.J.) ruled against Turbat Creek on the Rule 80B and due process claims
based on the record of the Zoning Board of Appeals proceedings.  The
equitable estoppel claim proceeded to a bench trial after which the court
(Brennan, J.) issued findings and an order denying Turbat Creek's equitable
estoppel claim.  Turbat Creek then filed a timely appeal to this Court.  

II.  DISCUSSION

	[¶8]  Turbat Creeks asserts that:  (1) the Board of Appeals violated
Turbat Creek's due process rights by not being impartial in its decision-
making; (2) use of the boathouse as a residential dwelling, unrestricted, is
permitted because such a residential use is allowed within the Village
Residential East Zone in which the marsh island is located; (3) if unlimited
residential use is not allowed, then use of the boathouse for overnight stays
and related purposes is permitted as a grandfathered use; and (4) the Town
should be equitably estopped from preventing the use of the boathouse for
overnight stays and residential purposes.  Turbat Creek's first two claims are
totally lacking in merit.

A.  Due Process

	[¶9]  Turbat Creek asserts two due process violations.  First, Turbat
Creek complains that the Town attorney appeared at the Zoning Board of
Appeals hearing explicitly stating that he was representing the code
enforcement officer and not representing or advising the Board in
connection with this matter.  Second, Turbat Creek complains that the
Chair of the Board demonstrated bias by having prepared in advance of the
hearing an outline of issues and potential findings based on her review of
Cohen's written materials.  Neither of these points rise to the level of due
process violations.  The Zoning Board of Appeals was not required to have
counsel, and the Town attorney's position that he was not representing or
advising the Board was made very clear at the hearing.  Separately, there is
no prohibition on a hearing officer reviewing documents in advance and
preparing memos of potential findings and issues to assist the officer or the
Board in consideration of matters that may arise at the hearing.
  
B.  Residential Use

	[¶10]  The Kennebunkport Land Use Ordinance clearly resolves the
residential use question.  While the marsh island on which the boathouse is
situated may be within the Village Residential East Zone, the record
establishes unequivocally that the marsh island is also within a Resource
Protection Zone in which residential uses, absent grandfathering, are
strictly prohibited.{1}  The Resource Protection Zone extends to "fresh water
and coastal wetlands[,] . . . all land . . . below the normal high water mark of
any tidal water . . . [and] one hundred year flood planes adjacent to tidal
waters."  A marsh island subject to daily tidal flooding or at least flooding on
high runs of tide is certainly within all of these criteria.  Construction of a
residence or renovation of a structure to become a residence on a marsh
island is specifically prohibited.  Only grandfathered structures with
grandfathered uses may be maintained on a tidal marsh.

C.  Grandfathering and Abandonment

	[¶11]  We review directly the decision of the Zoning Board of
Appeals for abuse of discretion, error of law, or findings unsupported by
substantial evidence in the record.  See Richert v. City of South Portland,
1999 ME 179, ¶ 6, 740 A.2d 1000, 1002.
	[¶12]  Turbat Creek asserts that the boathouse is grandfathered to
permit occasional overnight stays, although its toilet facilities had not
functioned since 1990 and its hot water facilities had not functioned since
1975.  Section 8.1 of the ordinance governs nonconforming rights and
provides, "A non-conforming structure, use or lot is permitted to continue
as it existed prior to the date such structure, use or lot became non-
conforming under the provisions of this Ordinance, as amended."  The
availability of nonconforming uses is limited by section 8.6, which provides,
"If a nonconforming use is discontinued for twelve (12) consecutive months,
such use shall no longer be permitted.". 
	[¶13]  "To qualify for 'nonconforming' or 'grandfathered' status, it
must be shown that the use existed prior to the enactment of the zoning
provisions prohibiting it and that the use was 'actual and substantial.'"  Town
of Orono v. LaPointe, 1997 ME 185, ¶ 13, 698 A.2d 1059, 1062.  In order to
grandfather a nonconforming use, such use must "reflect the nature and
purpose of the use prevailing when the zoning legislation took effect" and
not be "different in quality or character, as well as in degree, from the
original use," or "different in kind in its effect on the neighborhood."  Keith
v. Saco River Corridor Comm'n, 464 A.2d 150 (Me. 1983). 
	[¶14]  Turbat Creek argues that its proposed use of the boathouse for
unlimited overnight stays is grandfathered because such use amounts to a
mere increase in the frequency of use, not a change in the nature or
character of the use.  In Frost v. Lucy, 231 A.2d 441 (Me. 1967), we held
that the prolongation of the operation of a hotel with incidental dining room
service from a period of four months in the summer to a year-round activity
did not amount to a prohibited expansion of a nonconforming use.  See id. at
449.   The principle we relied on is that:

[W]here the original nature and purpose of the enterprise
remain the same, and the nonconforming use is not changed
in character, mere increase in the amount or intensity of the
nonconforming use within the same area does not constitute
an improper expansion or enlargement of such
nonconforming use.

Id. at 448.  	The holding in Frost was divided: we affirmed an injunction
against catering to large parties of nonhotel patrons where the hotel had
historically offered only incidental dining room service to hotel guests and
casual visitors, but vacated that portion of the order enjoining year-round
hotel operations and incidental dining room service.  See id. at 449. 
Because the holding in Frost partially affirmed and partially vacated the
order below, it illustrates how change in the character or quality of a use
differs from mere increase in the frequency or quantity of use.
	[¶15]  Here we have not only an increase in the quantity of overnight
stays, but also a change in the quality of the use.  The record supports the
Zoning Board of Appeals's determination that Cohen's usage was far in
excess of the previous "occasional" overnight stays.  Cohen's use of the
structure unequivocally changed from an accessory structure for the
mainland residences to an independent living unit, exclusive of the
mainland residences.  
	[¶16]   With respect to any more limited, occasional overnight usage,
the Ordinance's abandonment clause provides that any nonconforming use
that is discontinued for more than twelve months is lost.  The Board's
findings regarding grandfathering and abandonment are fully supported in
the record.

D.  Estoppel

	[¶17]  The record supports the court's finding that Cohen misled
the code enforcement officer regarding the scope and intended uses of his
proposed improvements to the boathouse.  A town cannot be equitably
estopped from asserting a violation in a particular use of property when the
renovations of the property leading to the use receive town approval based
on misleading information provided by the applicant as to the nature of the
renovations and extent of the intended uses.  
	The entry is:
			Judgment affirmed.

                                                         
Attorneys for plaintiff:

John J. Aromando, Esq., (orally)
Matthew D. Manahan, Esq.
Pierce Atwood
One Monument Square
Portland, ME 04101-1110

Attorneys for defendant:

Willimam H. Dale, Esq., (orally)
Natalie L. Burns, Esq.
Jensen Baird Gardner & Henry
P O Box 4510
Portland, ME 04112