Becker v. Town of Freeport

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
Docket No. AP-2022-019
)
CARTER V. BECKER, )
)
Petitioner, )
)
v. )
)
TOWN OF FREEPORT, ) DECISION
)
Respondent, )
)
and )
)
MICHAEL DELAHUNT et al., )
)
Parties-in-Interest. )

Petitioner Carter V. Becker ("Mr. Becker") appeals pursuant to Maine Rule of Civil

Procedure SOB from the decision of Respondent Town of Freeport ("the Town") to deny

Mr. Becker's application for a building permit. For the following reasons, the Court grants

Mr. Becker's appeal.

I. Background

Mr. Becker owns the parcel of real property known as O Shore Drive, Freeport,

Maine ("O Shore Drive"), by deed dated May 31, 2016, recorded at the Cumberland

County Registry of Deeds at Book 33153, Page 170. (R. 151.) When the Town first adopted

zoning in 1976, 0 Shore Drive existed as a nonconforming lot formed through the merger

of Lots 245 and 246 depicted on the Flying Point Plan dated May 25, 1933, recorded at the

Cumberland County Registry of Deeds at Book 21, Page 45. (R. 117.)

By deed dated August 7, 1986, and recorded at the Cumberland County Registry

of Deeds, at Book 7312, Page 84 ("the 1986 Deed"), a 5,027 square foot area encompassing

a cottage on the abutting lot at 11 Shore Drive ("the Additional Parcel") was released to

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the then-owners of O Shore Drive. (R. 140-42.) The 1986 Deed was the first recorded

document describing the bounds of OShore Drive as they now exist. (R. 149, 586.)

The Town adopted an amended zoning ordinance in May 1986 ("the 1986

Ordinance"). (R. 585.) The effective date of the 1986 Ordinance was June 6, 1986. (R. 719.)

The version of the Town's zoning ordinance currently in effect was adopted in 2008 ("the

2008 Ordinance"). (R. 721-1005.)

Section 20l(B) of the 1986 Ordinance states: "[N]o lot shall be changed in area after

the enactment of this Ordinance so as to reduce the dimensions of any lot below the

minimum herein required." (R. 649.) Section 202(D)(l) of the 1986 Ordinance and the

same section of the 2008 Ordinance read: "[a] single lot of record which, at the effective

date of adoption or amendment of this Ordinance, does not meet the minimum lot size,

minimum road frontage and/ or minimum shore frontage of the district in which it is

located, may be built upon without a variance ...." (R. 651, 765.) Section 202(D)(2) of the

1986 Ordinance provides:

If two or more contiguous lots or parcels are in single ownership of record
at the time of adoption or amendment of this Ordinance, or at any time
thereafter, and if all or part of the lots do not meet the minimum lot size of
this Ordinance, the lands involved shall be considered to be a single parcel
for the purposes of this Ordinance, and no portion of said parcel shall be
built upon or sold which does not meet the minimum lot size of this
Ordinance; nor shall any division of the parcel be made which creates any
dimension or area below the requirements of this Ordinance.

(R. 652.)

Section 104 of the 1986 Ordinance and the same section of the 2008 Ordinance

define "Lot," in pertinent part, as: "A parcel of land having distinct and defined

boundaries and described in a deed, plan or similar legal document." (R. 641, 742.) "Lot

of Record" is defined as: "A parcel of land, a legal description of which or the dimensions

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of which are recorded on a document or map on file with the County Registry of Deeds."

(R. 642, 742.)

On April 7, 2021, Mr. Becker applied to the Town's Code Enforcement Officer ("the

CEO") for a building permit to construct a single-family dwelling at OShore Drive. (R. 1-

9.) At the time, the lot at O Shore Drive was vacant. (R. 1.) On August 5, 2021, the CEO

denied Mr. Becker's application. (R. 10.) Mr. Becker appealed the denial to the Town's

Board of Appeals ("the Board"). (R. 54.) The Board held a public hearing on December 6,

2021. (R. 283-483.)

On May 2, 2022, the Board voted to deny the appeal and issued its written decision

and findings of fact ("the Decision"). 1 (R. 572-580, 584-89.) Although Mr. Becker appealed

the CEO's decision on four grounds, the Board addressed only the first ground. (R. 584,

588.) The Board found that the 1986 Deed created a new lot at OShore Drive, which was

not a lot of record as of the effective date of the 1986 Ordinance. (R. 587.) The Board found,

and Mr. Becker concedes, that O Shore Drive does not satisfy the minimum lot size or

minimum land area per dwelling unit requirements for its district under the 1986

Ordinance or the 2008 Ordinance. (R. 585-86.) Thus, the Board concluded that O Shore

Drive is unlawfully nonconforming and unbuildable. (R. 572-580, 584-89.) Mr. Becker

appeals the Decision.

II. SOB Standard

The Superior Court's jurisdiction to hear Rule SOB appeals is a. function of

statute. M.R. Civ. P. 80B(a); Norris Family Assocs., LLC v. Town ofPhippsburg, 2005 ME 102,

'I[ 13, 879 A.2d 1007. The court reviews decisions of a board for errors of law, abuse of

1In the Decision, the Board stated: "[T]he standard of review is whether, on the basis of the evidence before
the Board of Appeals, the application complies with the requirements of the Zoning Ordinance or any other
applicable ordinance." (R. 586.)

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discretion, or findings not supported by substantial evidence in the record. Aydelott v.

City of Portland, 2010 ME 25, 'l[ 10, 990 A.2d 1024. "Substantial evidence is evidence that a

reasonable mind would accept as sufficient to support a conclusion." Toomey v. Town of

Frye Island, 2008 ME 44, 'l[ 12, 943 A.2d 563 (quoting Sproul v. Town of Boothbay Harbor,

2000 ME 30, 'l[ 8, 746 A.2d 368). The court may not substitute its judgment for that of the

Board. Tarason v. Town of South Berwick, 2005 ME 30, 'l[ 6, 868 A.2d 230. Petitioners bear

the burden "of showing that the record evidence compels a contrary conclusion." Id.

The interpretation of a local ordinance is a question of law, which the court reviews

de novo. Priestly v. Town of Hermon, 2003 ME 9, 'l[ 7, 814 A.2d 995. When interpreting an

ordinance, the court first looks at "the plain meaning of its language," and if the

ordinance is clear, the court need not look beyond the language. 21 Seabran, LLC v. Town

of Naples, 2017 ME 3, 'l[ 12, 153 A.3d 113.

III. Discussion

There appears to be disagreement among the parties regarding the operative

decision to be reviewed. Additionally, Mr. Becker makes a preliminary argument that the

Additional Parcel was adversely possessed and merged with O Shore Drive before 1986

and that the Board is precluded by a 1987 decision from "relitigating" this issue.

Accordingly, the Court will address those issues before proceeding to Mr. Becker's

assertions of error.

A. Operative Decision

Whether the decision that the Superior Court must review is the decision of the

Board of Appeals or the Code Enforcement Officer depends on the review the Board of

Appeals is authorized to perform and the review the Board of Appeals conducted in a

particular case. Grant v. Town of Belgrade, 2019 ME 160, 'l[ 8, 221 A.3d 112 (quoting

Gensheimer v. Town of Phippsburg, 2005 ME 22, 'l[ 7, 868 A.2d 161). If the Board of Appeals

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undertook de novo review of the Code Enforcement Officer's decision, then the decision

of the Board of Appeals is the operative decision, but if the Board of Appeals acted only

in an appellate capacity, then the Code Enforcement Officer's decision is the operative

decision. Id.

In the Decision, the Board stated: "[T]he standard of review is whether, on the

basis of the evidence before the Board of Appeals, the application complies with the

requirements of the Zoning Ordinance or any other applicable ordinance." (R. 586.)

Section 601(G)(4)(a) of the 2008 Ordinance authorizes the Board to hear additional

evidence on appeal. (R. 956.) The Board did, in fact, hear additional evidence and made

its own findings of fact and conclusions of law. Therefore, the Board was authorized to

and did in fact conduct a de novo review of the permit application. The Board's decision

is the operative decision to be reviewed by this Court.

B. Adverse Possession

Mr. Becker argues that the Additional Parcel was adversely possessed by his

predecessors in interest before 1986, and that the Board's 1987 decision to grant a variance

to 11 Shore Drive precludes it from denying that fact. The Board did not issue written

findings regarding the 1987 decision, but Mr. Becker highlights a statement in the minutes

regarding the application for a variance as evidence that the Board found that the

Additional Parcel had been merged with O Shore Drive by adverse possession. The

statement in issue reads: "The odd shape of the lot [at 11 Shore Drive] came about because

of the placement of two cottages very close to each other, and a portion of the lot was

later removed by adverse possession." (R. 125.)

This argument is unavailing. First, the Board's discussion and decision to grant the

variance concerned 11 Shore Drive, not O Shore Drive. Second, the Board's statement

regarding adverse possession was not a finding or conclusion of the Board. It was merely

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a statement of an individual Board member recorded in the minutes. Even if the Board

had made this finding, the Board does not have jurisdiction to decide an adverse

possession claim. Finally, there is no judicial determination of adverse possession in the

Record, nor has any party requested that the Court take judicial notice of any ruling.

Accordingly, this argument merits no further discussion.

C. The Decision

Regarding the substance of the Decision, Mr. Becker argues: (1) that the Board's

interpretation of the 1986 Ordinance as prohibiting creation of new nonconforming lots

was erroneous, (2) that the Board erred as a matter of law when it concluded that the

conveyance of the Additional Parcel created a "new lot," and (3) that the Board erred as

a matter of law when it concluded that the merger of the Additional Parcel and O Shore

Drive caused OShore Drive to lose its status as a nonconforming lot of record.

i. Whether the 1986 Ordinance Prohibits New Nonconforming Lots

Mr. Becker argues that the 1986 Ordinance does not prohibit the creation of new

nonconforming lots because it does not do so expressly.

It is abundantly clear from the 1986 Ordinance as a whole that it does, in fact,

prohibit new nonconforming lots and increases in nonconformity. If the 1986 Ordinance

permitted creation of new nonconforming lots, the sections of the Ordinance regarding

dimensional requirements and variances would serve no purpose. Indeed, the

overarching purposes of zoning would be defeated if Mr. Becker were correct. Cf

Rockland Plaza Realty Corp. v. City of Rockland, 2001 ME 81, 'l[ 17, 772 A.2d 256

("Nonconforming uses are a thorn in the side of proper zoning and should not be

perpetuated any longer than necessary. The policy of zoning is to abolish nonconforming

uses as swiftly as justice will permit." (quoting Mayberry v. Town of Old Orchard Beach, 599

A.2d 1153, 1154 (Me. 1991))). The Court agrees with the Town's interpretation of the 1986

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Ordinance as prohibiting the division of nonconforming lots and the creation of new

nonconforming lots.

ii. Whether the 1986 Deed Created a New Lot

Next, Mr. Becker argues that the Board erred as a matter of law in its conclusion

that the 1986 Deed created a "new lot" at OShore Drive. The Ordinance does not specify

how a "new lot" is formed. The Law Court has stated, however: "The creation of a new

lot requires the 'splitting off' of a legal interest of 'sufficient dignity."' Horton v. Town of

Casco, 2013 ME 111, 'I[ 9, 82 A.3d 1217 (quoting Town of York v. Cragin, 541 A.2d 932,934

(Me. 1988)).

The conveyance of the Additional Parcel was a "splitting off." Moreover, the

Additional Parcel independently satisfies the definition of "lot" in the 1986 Ordinance.2

The Additional Parcel was, therefore, a new lot, and the division of 11 Shore Drive

violated the 1986 Ordinance.

By operation of Section 202(D)(2) of the 1986 Ordinance, the Additional Parcel

immediately merged with the lot at O Shore Drive because O Shore Drive and the

Additional Parcel were under common ownership. The Town argues that the merged lot

(O Shore Drive plus the Additional Parcel) was also a new lot. This argument is grounded

in the definitions of "lot" and "lot of record" in the 1986 Ordinance: because the merged

lot has different boundaries and dimensions than the pre-1985 lot at OShore Drive, it must

be a new lot. As a new nonconforming lot, the Town argues, 0 Shore Drive has been

unbuildable since execution of the 1986 Deed.

However, the merger did not involve a "splitting off." In fact, fewer lots existed

after the merger than before the merger. The merged lot at OShore Drive may be slightly

2The 1986 Ordinance defines "lot" as "[a] parcel of land having distinct and defined boundaries and
described in a deed, plan or similar legal document." (R. 641.)

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different than the pre-1985 lot, but it is not new. The Town's interpretation of the

definitions of "lot" and "lot of record" is overly technical and does not square with other

provisions of the Ordinance, including the merger provision. 3

The Town's conclusion is erroneous as a matter of law because it rests on a

misinterpretation of the 1986 Ordinance and because the merger of the Additional Parcel

and O Shore Drive did not involve a "splitting off" of any legal interest.

iii. Whether Merger with the Additional Parcel Caused OShore Drive to Lose its
Status as a Buildable Nonconforming Lot of Record

Nor did the merger otherwise cause OShore Drive to lose its nonconforming "lot

of record" status under the 1986 Ordinance. The merger itself could not violate the

Ordinance because it happened by operation of the Ordinance.

Moreover, nothing in the 1986 Ordinance provides that a nonconforming lot of

record loses its status as lawfully nonconforming by merging with another

nonconforming lot. Section 202(D)(2) prohibits redivision of the lot or building separately

on portions of the merged lot, but it does not prohibit building on it as a single

nonconforming lot.

The Town argues that because Section 202(D)(l) permits building without a

variance on a single lot of record, whereas Section 202(D)(2) provides that merger of two

undersized lots results in a single parcel, a merged lot is not buildable. The Town implies

that Section 202(D )(2) used the term parcel instead of lot of record to convey that a lot of

record loses its lot of record status through merger.

The more logical reason for the use of the term "parcel" is that "parcel" is broad

enough to encompass all possible types of mergers, whereas "lot of record" is too narrow.

3As discussed in more detail in the following section, under the Town's interpretation, merger of two
nonconforming lots of record would also create a new, unbuildable lot if the merged lot was still
undersized. This result is contrary to the merger provision and the purposes of zoning.

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If two unlawfully nonconforming lots merged and the resulting parcel was still

undersized, the parcel would not be a buildable lot of record. If the 1986 Ordinance was

meant to convey a loss of lot of record status by merger, that would have been

accomplished by other language.

The Town could not reasonably argue that the merger of two nonconforming lots

of record would cause the entire merged parcel to become unbuildable. The only

difference here is that the Additional Parcel was an unlawfully nonconforming lot, not a

lot of record. Even still, a decrease in O Shore Drive's nonconformity would further the

purposes of the Ordinances and zoning generally. The fact that the division of 11 Shore

Drive was unlawful may impact 11 Shore Drive's status, but it is illogical to visit the

consequences of the unlawful division on O Shore Drive when the 1986 Ordinance does

not prohibit (and, in fact, encourages) the addition of land to a nonconforming lot. The

Town's interpretation of the 1986 Ordinance on this issue is unreasonable.

The parties and parties-in-interest discuss Grant v. Town of Belgrade, 2019 ME 160,

221 A.3d 112, Day v. Town of Phippsburg, 2015 ME 13, 110 A.3d 645, and Nyczepir v. Town

of Naples, 586 A.2d 1254 (Me. 1991). None is truly analogous to this case. Importantly,

none involved a landowner who sought to build on a vacant and undivided merged lot.

Grant, in which the Law Court stated that "grandfathering clauses such as those

in the Town's Ordinances allow landowners to continue the reasonable investment-

backed expectations they had when they bought their properties, but they do not to

permit expansions or changes to nonconforming conditions indefinitely" lends some

support to Mr. Becker's argument. 2019 ME 160, 'II 24,221 A.3d 112. Its value is limited,

however, by the fact that it concerned a nonconforming use and did not involve a merger.

In Day, the Law Court held that "the grandfathered status of a merged

nonconforming lot is permanently lost when that merged lot is unlawfully divided." 2015

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ME 13, 'l[ 18, 110 A.3d 645. Similarly, in Nyczepir, the Law Court upheld the denial of a

building permit for a nonconforming lot because the nonconforming lot had previously

merged with a conforming lot before being unlawfully redivided and sold. 586 A.2d at

1255-56. Mr. Becker does not contend that the Additional Parcel is divisible or separately

buildable. It is possible that 11 Shore Drive lost its status as a nonconforming lot of record

when it was unlawfully divided, but that issue is not before the Court.

In sum, the Board erred as a matter of law in its interpretation of the Ordinance

and its conclusion that O Shore Drive lost its status as a buildable nonconforming lot of

record when it merged with the Additional Parcel. Accordingly, the Court vacates the

Board's Decision. However, because the CEO asserted other grounds for the denial of Mr.

Becker's application that the Board did not address in the Decision, further proceedings

before the Board will be necessary.

IV. Conclusion

For the foregoing reasons, the Decision is vacated.

The entry is:

Petitioner Carter V. Becker's appeal is GRANTED. Respondent Town of Freeport's
May 2, 2022 Decision is VACATED. This matter is REMANDED to the Board of
Appeals for further proceeding consistent with this Decision.

The Clerk is directed to incorporate this Decision into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Dated: ----'---l-f.LJ../--P-"'--"'O=o<3'----- y Kennedy, Justice
Superior Court

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