21 Seabran, LLC v. Town of Naples

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 3
Docket: Cum-16-43
Argued: October 27, 2016
Decided: January 5, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.
Dissent: ALEXANDER, J.

21 SEABRAN, LLC

v.

TOWN OF NAPLES

MEAD, J.

[¶1] 21 Seabran, LLC, appeals from a judgment entered in the Superior

Court (Cumberland County, Cole, C.J.) pursuant to M.R. Civ. P. 80B following a

hearing affirming a decision of the Town of Naples Board of Appeals. The Board

denied 21 Seabran’s appeal from the Town of Naples Code Enforcement

Officer’s denial of two permits necessary to renovate a garage on a lakefront

parcel based on its conclusion that the parcel would have insufficient shore

frontage to comply with state and local law. 21 Seabran argues that the Board

erroneously concluded that the proposed renovation would add to the parcel a

second “residential dwelling unit,” as defined by the Town of Naples Shoreland

Zoning Ordinance, and that the Board misapplied applicable state authority to
2

reach its conclusion that the renovation would render the parcel noncompliant.

We agree and vacate the judgment.

I. BACKGROUND

[¶2] 21 Seabran, LLC, owns a parcel of property on Brandy Pond in

Naples. The parcel has about 200 feet of shore frontage, and is currently

improved with a three-bedroom single-family home and a thirty-foot by

forty-foot detached garage, both of which are in the shoreland zone.

[¶3] In September 2014, Mills Whitaker Architects of

Arlington, Massachusetts, submitted applications to the Town of Naples Code

Enforcement Officer (CEO) on behalf of 21 Seabran for a building permit and a

subsurface wastewater disposal system permit in connection with a proposed

renovation to the second floor of the detached garage (the proposed structure).

The proposed structure, which 21 Seabran had described as a “bunkhouse,”

was to consist of three bedrooms, two bathrooms, a sitting room, a washer and

dryer, and storage closets; the estimated cost of the project was $100,000.

21 Seabran also proposed adding a new, separate septic system with a design

flow of 270 gallons per day (gpd) to serve the proposed structure. The CEO

declined to act on the permits because she found that the proposed structure

did not fit within the definition of a bunkhouse in the State of Maine Subsurface
 3

Wastewater Disposal Rules (SWDR).1

[¶4] Soon thereafter, Mills Whitaker Architects submitted to the CEO

amended building and wastewater disposal system permit applications on

behalf of 21 Seabran. The floor plan of the proposed structure remained

unchanged, but the use of the proposed structure was changed on the building

permit application from a bunkhouse to “3 accessory [bedrooms] and 2 baths

on second floor of existing garage.”

[¶5] In a letter dated November 17, 2014, the CEO denied the amended

permit applications based on her determination that the proposed structure

constituted a “dwelling unit” and her conclusion that the parcel lacked the lot

area and shore frontage required to serve two “dwelling units”—the proposed

structure and the existing residence—by the Town of Naples Shoreland Zoning

Ordinance (SZO), Naples, Me., Shoreland Zoning Ordinance § 15(A) (June 4,

2014); the State of Maine Minimum Lot Size Law, 12 M.R.S. § 4807-A (2015);

and Minimum Lot Size Rules, 16 C.M.R. 10 144 243-2 § 1001.1 (2005).2

1 The State of Maine Subsurface Wastewater Disposal Rules (SWDR) defines a “bunkhouse” as “[a]

detached bedroom having no plumbing; accessory to a single family dwelling for the temporary
accommodations of guests of the property owner while the owner is an occupant of the principal
dwelling.” 16 C.M.R. 10 144 241-64 § 14 (2015). The most recent amendments to the SWDR, which
became effective during the pendency of this case, do not affect the definitions applicable to this
matter.

2 Aside from use of its definitional provisions, applicable provisions of the SWDR are not at issue

in this appeal.
4

[¶6] 21 Seabran filed an administrative appeal with the Town of Naples

Board of Appeals regarding the denial of both permits. At a public hearing held

by the Board on February 24, 2015, 21 Seabran argued that there is no plan for

a kitchen in the proposed structure, and it was not a separate residential

dwelling unit.3 The CEO argued that neither the Minimum Lot Size Rules nor

the SWDR definitions of a “dwelling unit” or “single family residential unit”

include a requirement that a structure contain a kitchen, and although there are

currently no plans for a kitchen in the proposed structure, someone could

potentially set up a hot plate or microwave oven and those items would not

appear on a floor plan.

[¶7] The Board voted 3-0 to deny the appeal. In its March 3, 2015,

written decision, the Board agreed with the CEO that the proposed structure is

a dwelling unit, reasoning that “Maine Supreme Court cases involving the

definition of a ‘dwelling unit’ . . . make it clear that municipal administrative

boards are allowed to use their common sense in their interpretation of what

specific facts fit the definition of a dwelling unit.” Citing the SZO, which requires

that a parcel have 200 feet of shore frontage for each residential dwelling unit

3 As will be discussed infra, the Town’s ordinance defines a “residential dwelling unit” as a

structure that contains “cooking, sleeping and toilet facilities.” Naples, Me., Definitional Ordinance
(June 16, 2010).
 5

on the property, the Board determined that the parcel “needs at least 400 feet

of shore frontage (200 feet for every 300 gpd of wastewater) in order to comply

with the Minimum Lot Size Law and Rules.” The Board concluded that because

the parcel did not have that much frontage, the CEO properly denied

21 Seabran's permit applications.

[¶8] 21 Seabran appealed to the Superior Court pursuant to

M.R. Civ. P. 80B. Following a hearing on November 30, 2015, the court affirmed

the Board’s decision. The court gave deference to the Board's determination

that the proposed structure was a residential dwelling unit pursuant to the SZO

and agreed with its conclusion that the property must have 400 feet of frontage

to comply with the SZO. This appeal followed. See M.R. Civ. P. 80B(n);

M.R. App. P. 2.

II. DISCUSSION

[¶9] “In a Rule 80B appeal, the Superior Court acts in an appellate

capacity, and, therefore, we review the agency’s decision directly.” Logan v. City

of Biddeford, 2006 ME 102, ¶ 8, 905 A.2d 293. In this case, “we review the

decision of the Board rather than that of the CEO, because . . . the Board heard

evidence and conducted a de novo review, and the [SZO] did not explicitly limit

that capacity, and therefore the Board acted as fact-finder and decision-maker.”
6

Rudolph v. Golick, 2010 ME 106, ¶ 7, 8 A.3d 684 (quotation marks and citation

omitted); see Naples, Me., Shoreland Zoning Ordinance § 16(F)(3).

[¶10] We review the Board's decision “for error of law, abuse of

discretion or findings not supported by substantial evidence in the record.”

Aydelott v. City of Portland, 2010 ME 25, ¶ 10, 990 A.2d 1024 (quotation marks

omitted). “Substantial evidence exists if there is any competent evidence in the

record to support a decision.” Fitanides v. City of Saco, 2004 ME 32, ¶ 23,

843 A.2d 8 (quotation marks omitted). 21 Seabran bears the burden of

persuasion on appeal because it seeks to overturn the Board's decision.

See Bizier v. Town of Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048.

A. Whether the Proposed Structure is a “Residential Dwelling Unit”
Pursuant to the SZO

[¶11] 21 Seabran argues that the Board improperly determined that the

proposed structure was a “residential dwelling unit” pursuant to the zoning

ordinance because the Board did not apply the language of the SZO, which

expressly requires that a residential dwelling unit contain cooking facilities,

and instead used a “common sense” approach to determine what constitutes a

residential dwelling unit.

[¶12] We review the interpretation of a local ordinance de novo as a

question of law. Aydelott, 2010 ME 25, ¶ 10, 990 A.2d 1024. When we interpret
 7

an ordinance, we look first to the plain meaning of its language, and if the

meaning of the ordinance is clear, “we need not look beyond the words

themselves.” Duffy v. Town of Berwick, 2013 ME 105, ¶ 23, 82 A.3d 148

(quotation marks omitted). Additionally, if a term is specifically defined in an

ordinance, we will not redefine it. Rudolph, 2010 ME 106, ¶ 9, 8 A.3d 684.

[¶13] The SZO provides that a lot must have at least 60,000 square feet

of area and 200 feet of shore frontage per residential dwelling unit. Naples, Me.,

Shoreland Zoning Ordinance § 15(A), (A)(4). In the Town of Naples Definitional

Ordinance, a “residential dwelling unit” is defined as follows:

A room or group of rooms designed and equipped exclusively for
use as permanent, seasonal, or temporary living quarters for only
one family at a time, and containing cooking, sleeping and toilet
facilities. The term shall include mobile homes and rental units that
contain cooking, sleeping, and toilet facilities regardless of the time
period. Recreational vehicles are not residential dwelling units.

Naples, Me., Definitional Ordinance (June 16, 2010) (emphasis added).

[¶14] Looking to the plain language of the definition of a residential

dwelling unit, its meaning is clear: a structure must contain cooking facilities,

in addition to sleeping and toilet facilities, to constitute a residential dwelling

unit pursuant to the SZO.

[¶15] In determining that the proposed structure constituted a

residential dwelling unit, the Board made no finding that the proposed
8

structure contained cooking facilities, and we cannot ignore the plain language

of the SZO definition when determining whether the Board erred in applying

the ordinance. See Hartwell v. Town of Ogunquit, 2015 ME 51, ¶ 11, 115 A.3d 81

(“[W]e do not have the authority to ignore the plain language of [a Town]'s

Zoning Ordinance.”). In the absence of any finding that the proposed structure

contained cooking facilities, we conclude that the Board's determination that it

was a residential dwelling unit for purposes of the SZO was erroneous.4

Accordingly, the provision of the SZO which requires 200 feet of shore frontage

for a residential dwelling unit does not apply to the proposed structure.5

B. Compliance with the Minimum Lot Size Law and Rules

[¶16] Based on its determination that the proposed structure was a

residential dwelling unit pursuant to the SZO, the Board concluded that the

parcel “needs at least 400 feet of shore frontage (200 feet for every 300 gpd of

4 We recognize that in some cases we have afforded municipalities flexibility in determining what

constitutes a residential dwelling unit and have affirmed determinations that a structure is a dwelling
unit even in the absence of cooking facilities. See, e.g., Goldman v. Town of Lovell, 592 A.2d 165, 169
(Me. 1991); Wickenden v. Luboshutz, 401 A.2d 995, 996-97 (Me. 1979). However, those cases are
markedly different from the case at bar because those local ordinances utilized broad definitions of
what constituted a dwelling unit that did not contain an express requirement that such a structure
contain cooking facilities. See Goldman, 592 A.2d at 167 n.3; Wickenden, 401 A.2d at 996 & n.2.

5 The parties dispute whether the proposed structure could instead be considered an “accessory

structure” pursuant to the SZO if it was not a residential dwelling unit, but the Board made no findings
on this issue and we need not reach it here. The SZO does not prescribe frontage requirements for
accessory structures. Naples, Me., Shoreland Zoning Ordinance § 15(B)(1) (June 4, 2014). Regardless
of whether the proposed structure meets the SZO’s definition of an accessory structure, it does not
constitute a residential dwelling unit pursuant to the SZO.
 9

wastewater) in order to comply with the Minimum Lot Size Law and Rules.”

21 Seabran contends that the Board's conclusion is erroneous because it

improperly incorporated the SZO frontage requirement for a residential

dwelling unit into the applicable Minimum Lot Size Rule to determine that the

parcel has insufficient frontage.

[¶17] “To interpret a statute and its implementing regulations, we look

first to the plain meaning of the language used.” Smith v. Cent. Me. Power Co.,

2010 ME 9, ¶ 18, 988 A.2d 968. Interpreting a statute's plain language involves

considering its subject matter and purposes, and the consequences of a certain

interpretation. Sabina v. JPMorgan Chase Bank, N.A., 2016 ME 141,

¶ 6, --- A.3d ---.

[¶18] The Board correctly relied on the definition of a “single family

residential unit” set forth in the Minimum Lot Size Law and Minimum Lot Size

Rules, which both define the term as “any structure of any kind . . . used or

designed to house a single family, and shall include those structures used

permanently and seasonally.”6 12 M.R.S. § 4807(4) (2015);

16 C.M.R. 10 144 243-1 § 1(H) (2005).

6 The Board also cited the SWDR definition of a “dwelling unit,” which is “[a]ny structure or

portion of a structure, permanent or temporary in nature, used or proposed to be used as a residence
seasonally or throughout the year.” 16 C.M.R. 10 144 241-65 § 14.
 10

[¶19] With regard to minimum lot requirements for a single family

residential unit, the Minimum Lot Size Law provides:

[N]o person shall:

1. Dispose of waste from any single family residential unit by
means of subsurface waste disposal unless such lot of land on
which such single family residential unit is located contains
at least 20,000 square feet; and if the lot abuts a lake, pond,
stream, river or tidal area, it shall further have a minimum
frontage of 100 feet on such body of water[.]

12 M.R.S. § 4807-A(1).

[¶20] The Minimum Lot Size Rules govern the administration of the

Minimum Lot Size Law. 16 C.M.R. 10 144 243-1 § 1000.1 (2005). The specific

section of the Rules at issue here is section 1001.0, which addresses the limited

subject of lot requirements in the context of subsurface wastewater disposal

systems. It provides:

Section 1001.0 Minimum Lot Size and Frontage Requirements

1001.1 Minimum requirements: No person shall dispose of
wastewater by means of a subsurface wastewater disposal system,
unless the lot meets the minimum lot size and frontage
requirements in this Code.

1001.1.1 Single-family dwelling units: A lot on which a
single-family dwelling unit is located shall contain at least 20,000
square feet. If the lot abuts a lake, pond, stream, river, or tidal area,
it shall have a minimum frontage of 100 feet on the water body and
any greater frontage required by local zoning. For purposes of this
Code, a single-family residential unit shall be determined to be
 11

300 gallons per day of wastewater.

1001.1.2 Other land use activities: Other land uses that
generate wastewater shall require a lot containing at least 20,000
square feet and 100 feet of frontage for every 300 gallons per day
of wastewater generated by the use. For wastewater generated in
excess of 300 gallons per day the lot shall be in the proportion of
20,000 square feet and 100 feet of frontage for every 300 gallons
per day. Determine the minimum lot size and frontage required
based on the requirements in this Section.

1001.1.2.1 Multiple unit housing: For multiple unit
housing, calculate the daily wastewater flows based on
120 gallons per bedroom per day.

1001.1.2.2 Other new land uses: For other new land
use activities, calculate the daily wastewater flows based on
the design flow requirements prescribed in Table 1.

1001.1.2.3 Other existing land uses: For other existing
land use activities, calculate the daily wastewater flows
based on the design flow requirements prescribed in Table 1
or actual water meter readings as set forth in Section
1002.0.

16 C.M.R. 10 144 243-2 § 1001.0 (2005).

[¶21] The Town assumes that the requirement in Rule 1001.1.1 that a

parcel containing a single family residential unit have 100 feet of frontage plus

“any greater frontage required by local zoning” effectively incorporates any

local zoning frontage requirement, regardless of whether that requirement was

based upon subsurface wastewater disposal concerns or not, into the Rule,

meaning that if a structure was a residential dwelling unit pursuant to the SZO,
12

it would require 200 feet of frontage, rather than 100 feet of frontage, to be in

compliance with Rule 1001.1.1.

[¶22] The plain language of Rule 1001.1.1 requires a parcel containing a

single family residential unit to have a minimum of 100 feet of shore frontage.

The reference in Rule 1001.1.1 that incorporates greater frontage

requirements from a local ordinance clearly envisions deference to local

ordinance frontage requirements only to the extent that the ordinance

establishes greater frontage requirements specifically in relation to gallons per

day of wastewater generated—not other purposes that local ordinances may

address for objectives such as aesthetics or continuity of neighborhoods. It is

incongruous to suggest that the Rule, which is concerned only with subsurface

wastewater disposal systems, would increase its required frontage based on

frontage requirements in an ordinance that are premised upon unrelated

factors.

[¶23] The Town of Naples SZO does not establish frontage requirements

based upon subsurface wastewater disposal systems. As such, the 100-foot

frontage requirement established by Rule 1001.1.1 governs compliance with

the Rule. If the SZO did establish frontage requirements based upon subsurface

wastewater disposal systems, the second sentence in Rule 1001.1.1—which the
 13

Town’s reading would render utter surplusage—provides the benchmark for

determining whether the SZO actually did provide for greater frontage based

upon gallons per day of usage. Without this benchmark, it would be impossible

to determine whether a local ordinance frontage requirement based on

wastewater generated did, in fact, exceed the Rule’s requirement of 100 feet of

frontage per 300 gallons per day of usage.

[¶24] This reading of Rule 1001.1.1 is consistent with the immediately

following provision of the Minimum Lot Size Rules which expressly bases

frontage on wastewater generation. Rule 1001.1.2 directs that “[o]ther land

uses that generate wastewater” require 100 feet of shore frontage for every

300 gallons per day of wastewater generated, and if the use generates more

than 300 gallons per day, the amount of necessary frontage becomes

proportional to the wastewater generated. 16 C.M.R. 10 144 243-2 § 1001.1.2.

[¶25] Moreover, this reading is consistent with the purpose of the

Minimum Lot Size Rules, which is to “provide minimum State requirements for

minimum lot sizes for developments using onsite subsurface wastewater

disposal to assure environmental sanitation and safety.”

16 C.M.R. 10 144 243 (2005) (Basis Statement for Minimum Lot Size Rules). We

have explained that the Minimum Lot Size Law, which the Rules interpret, “was
14

enacted to assure the maintenance of health and sanitation standards with

respect to waste disposal, rather than to abrogate, by implication, the zoning

powers conferred upon municipalities elsewhere in the laws.” Barnard v.

Zoning Bd. of Appeals of Yarmouth, 313 A.2d 741, 747-48 (Me. 1974). We

distinguished “this narrow focus on health and sanitation . . . from the

numerous other community interests served by [a] minimum lot requirement”

in a local zoning ordinance. Id. at 748. It would be incongruous to import

simply any local frontage requirement into Rule 1001.1.1 because that local

ordinance may serve a purpose entirely different from the health and sanitation

purposes served by Rule 1001.1.1.

[¶26] In conclusion, because the SZO requirement that a residential

dwelling unit have 200 feet of frontage is not based on gallons per day of

wastewater generated, it is not incorporated into Rule 1001.1.1.7 Therefore,

the Board's conclusion that 21 Seabran's parcel needed 200 feet of frontage for

every 300 gallons per day of wastewater was erroneous.

7 Of course, the parcel must still comply with the provisions of the Town’s SZO. To comply, the

existing residence, as a residential dwelling unit, would require 200 feet of frontage, but the proposed
structure would require no frontage because it is not a residential dwelling unit pursuant to the SZO.
 15

The entry is:

Judgment vacated. Remanded to the Superior
Court with instructions to remand to the Town
of Naples Board of Appeals for further
proceedings consistent with this opinion.

ALEXANDER, J., dissenting.

[¶27] I respectfully dissent.

[¶28] 21 Seabran, LLC began this proceeding before the Town of Naples

by attempting to convince the Town that it was applying for a permit to convert

the second floor of its garage into a “bunkhouse,” the legal definition for which

was “a detached bedroom” with no plumbing and a waste discharge design flow

of 20 gallons per day per bed. The Town Code Enforcement Officer was not

misled by the “bunkhouse” claim and refused to process 21 Seabran’s

application.

[¶29] 21 Seabran then resubmitted its application, identical to the first

application except for the term “bunkhouse” being omitted. That application

sought to convert the second floor of the garage into three bedrooms, two full

bathrooms, a separate sitting room, and a washer-dryer connection supported

by a wastewater disposal system with a design flow of 270 gallons per day. As

the trial court’s opinion points out, the application included no provision for
16

cooking facilities or equipment. But portable equipment, such as a refrigerator

and a microwave, would have been easy to add without notice to the Town and

would have been important to accommodate visiting families. Further, the

washer-dryer connection, with minimal adjustment, could have accommodated

a sink and a cook stove.

[¶30] The Town’s Definitional Ordinance defines a “dwelling” as “living

quarters for only one family, including provisions for living, cooking and

eating.” Naples, Me., Definitional Ordinance (June 16, 2010). That same

ordinance defines a “residential dwelling unit” as “living quarters for only one

family at a time, and containing cooking, sleeping and toilet facilities.” Id.

[¶31] The focus of 21 Seabran’s presentation before the Board of Appeals

was its effort to prove that its renovation would not turn its garage into a

“residential dwelling unit.” However, nothing in 21 Seabran’s application

specifically excluded or committed to permanent exclusion of portable or

installed cooking equipment. The application only avoided any mention of

installation of cooking equipment. The Town’s brief notes, “It will be very

difficult to monitor the use of cooking facilities in the Disputed Structure

after-the-fact.”
 17

[¶32] On appeal, the party seeking to vacate a state or local agency

decision—here 21 Seabran—bears the burden of persuasion to demonstrate

error. Rossignol v. Me. Pub. Emps. Ret. Sys., 2016 ME 115, ¶ 6, 144 A.3d 1175;

Bizier v. Town of Turner, 2011 ME 116, ¶ 8, 32 A.3d 1048.

[¶33] 21 Seabran had the burden of proof to demonstrate that its three

bedroom, two bath renovation was not creating a residential dwelling unit, but

some lesser structure that could avoid the minimum shore frontage

requirement. When an appellant had the burden of proof before an agency, and

challenges an agency finding that it failed to meet that burden of proof, a court

will not overturn the agency fact-finding unless the appellant demonstrates

that the administrative record compels the contrary findings that the appellant

asserts should have been entered. Kelley v. Me. Pub. Employees Ret. Sys.,

2009 ME 27, ¶ 16, 967 A.2d 676 (stating that the Court will reverse a finding of

failure to meet a burden of proof “only if the record compels a contrary

conclusion to the exclusion of any other inference”); Quiland, Inc. v. Wells

Sanitary Dist., 2006 ME 113, ¶ 16, 905 A.2d 806.

[¶34] In our review on appeal, the agency is accorded the capacity to

disbelieve evidence supporting an applicant with the burden of proof or to

assign that evidence lesser weight than contrary evidence. See Anderson v. Me.
18

Pub. Emps. Ret. Sys., 2009 ME 134, ¶ 27, 985 A.2d 501. A judicial or

administrative fact-finder has the capacity to disbelieve evidence supporting a

party with the burden of proof, even if no contrary evidence is offered.

See In re Fleming, 431 A.2d 616, 618 (Me. 1981).

[¶35] Given the misleading manner in which the 21 Seabran application

process was initiated, the very substantial residential dwelling unit that the

renovation appeared to create, and the lack of any firm commitment to never

add provision for cooking and eating to the structure, the Town of Naples Board

of Appeals, looking at the reality of the application and applying their common

sense, could reasonably find that the application was indeed one for a

residential dwelling unit that did not meet the minimum shore frontage

requirements. The Board of Appeals was not compelled to find that the

application was for some lesser type of dwelling unit that did not create a

minimum shore frontage problem. The Superior Court, applying the deferential

standard of review it was required to apply to the Board’s fact-findings,

properly affirmed the Board’s decision.

[¶36] I would affirm the Superior Court’s judgment.

 19

David A. Goldman, Esq. (orally), Norman, Hanson & Detroy, LLC, Portland, for
appellant 21 Seabran, LLC

Sally J. Daggett, Esq. (orally), Jensen Baird Gardner & Henry, Portland, for
appellee Town of Naples

Cumberland County Superior Court docket number AP-2015-9
FOR CLERK REFERENCE ONLY