Michael Adams v. Town of Brunswick

JABAR, J.,

dissenting.

[¶ 28] I respectfully dissent for two reasons. First, in my view, the majority relies too heavily on the financial arrangement between the Owners and the tenants, rather than focusing on the use of the premises. Second, I believe that the majority wrongly analyzes whether 17 Cleaveland constitutes a “two dwelling unit,” rather than a “Dwelling, Single/Two Family,” which is the operative language of the Brunswick Zoning Ordinance. See Brunswick, Me., Zoning Ordinance, ch. 2, § 202.1 (May 7,1997).

[¶ 29] By narrowly focusing on the terms of the lease agreement, the majority’s analysis elevates form over substance. Consistent with the Ordinance, we should be focusing on the use of the property. The financial agreement between the Owners and the tenants does not define the use of the premises. Simply because the tenants are collectively responsible for rent payments does not mean that the building in question is not a boarding house.

[¶ 30] In actuality, the use of the building is closer to constituting a “boarding house” than a “Dwelling, Single/Two Family.” The Ordinance defines “boarding house” as “[a] building other than a hotel containing a shared kitchen and/or dining room, with sleeping rooms accommodating no more than two persons per room (excepting minor children) which are offered for rent, with or without meals. Includes a college fraternity or sorority.” Brunswick, Me., Zoning Ordinance, ch. 1, § 111 (May 7, 1997). Seventeen Cleaveland, which is divided into two apartments, has eleven bedrooms and is offered for rent to eleven students. There are shared kitchens in each apartment. Moreover, although the majority emphasizes that rent payments are made collectively, rather than individually, the definition of “boarding house” includes “a college fraternity or sorority.” Even putting aside the “surface similarity” that 17 Cleaveland houses students, a fraternity or sorority could be an example where rent is paid collectively, rather than individually. By requiring that rent be paid individually to fit the definition of a “boarding house,” the majority is reading in a requirement not present in the Ordinance.

[¶ 31] Carried to its logical conclusion, the majority’s rationale means that, subject to other restrictions in the Ordinance, there is no limit to the number of occupants who could live at 17 Cleaveland. As long as the lease agreement is structured so that rent is paid collectively, rather than individually, 17 Cleaveland is not a boarding house.

[¶ 32] This analysis flies in the face of common sense and ignores the language and intent of the Ordinance. Two specific purposes of the Ordinance are to:

1. Establish Growth and Rural areas and encourage use consistent with the character of each such area.
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*5127. Encourage orderly and effective development that is compatible with Brunswick’s historic development patterns, unique character, and its established neighborhoods.

Brunswick, Me., Zoning Ordinance, ch. 1, § 104 (May 7, 1997). Allowing a “Single/Two Family” dwelling unit in the TR2 zone to be converted into a two-unit building with eleven bedrooms — with the potential to house an unlimited number of unrelated occupants — violates the specific purposes of the Ordinance, as well as the spirit of the Ordinance. Cf. Stewart v. Town of Sedgwick, 2002 ME 81, ¶ 6, 797 A.2d 27, 29 (stating that terms in an ordinance should be construed “reasonably in light of the purposes and objectives of the ordinance”). The majority’s rationale opens the door for any landlord to transform a single or two-family residence into a building housing an unlimited number of unrelated and unaffiliated tenants. This type of development is not compatible with the unique character of the TR2 and Village Review Overlay zones.

[¶ 83] I also dissent because, unlike the majority, I believe that the proper inquiry should be whether 17 Cleaveland constitutes a “Dwelling, Single/Two Family.” The Ordinance’s use table, which lists the types of uses permitted, allows for a “Dwelling, Single/Two Family.” Brunswick, Me., Zoning Ordinance, ch. 2, § 202.1. “Dwelling, Single/Two Family” is the specific type of permitted use applicable to this case. Our task, then, should be to interpret the meaning of this provision, which is an effort undertaken de novo. See JPP, LLC v. Town of Gouldsboro, 2008 ME 194, ¶8, 961 A.2d 1103, 1105.

[¶ 34] The CEO interpreted “Dwelling, Single/Two Family” as permitting a single residential structure with two dwelling units, each containing one household. The CEO never accounted for the term “family,” even though it is part of the language defining the type of permitted use. The ZBA agreed with the CEO, noting that the Ordinance definitions “do not refer to ‘family’ and could apply to an associated group of people.” On appeal, the Superior Court followed the same reasoning and ignored the term “family.” Although it acknowledged that the specific type of permitted use applicable to this case is “Dwelling, Single/Two Family,” the court stated in footnote five of its decision:

[B]eeause the ordinance definition of dwelling unit refers to households, not families, the court concludes that there is no requirement that a household constitute a family. A contrary conclusion would open up the very difficult question of what constitutes a family and whether unrelated persons cohabitating together or living as roommates would be excluded from that definition.

The majority has adopted this same approach, again ignoring the term “family” in its analysis.7 This runs counter to the rules of statutory construction, which “require zoning ordinances and subdivision standards to be interpreted so as [not] to render a provision a surplusage.” Bodack v. Town of Ogunquit, 2006 ME 127, ¶ 12, 909 A.2d 620, 624 (quotation marks omitted) (alteration in original).

[¶ 35] That it may be difficult to define what constitutes a “family” in our modern and diverse world does not mean we should avoid the issue. Although the word “family” is not defined in the Ordinance, *513undefined terms should be given their generally accepted meaning. See Jade Realty Corp. v. Town of Eliot, 2008 ME 80, ¶ 7, 946 A.2d 408, 411 (“An interpreting court should give terms not otherwise defined their common and generally accepted meaning unless indicated otherwise by their context in the ordinance.” (quotation marks omitted)).

[¶ 86] Black’s Law Dictionary defines “family” as: “1. A group consisting of parents and their children. — Also termed immediate family. 2. A group of persons connected by blood, by affinity, or by law. 3. A group of persons, usu. relatives, who live together.” Black’s Law Dictionary 620 (7th ed.1999). Whatever hypothetical difficulty may be encountered in defining the precise contours of the term “family,” in this case the eleven unaffiliated and unrelated occupants living in the eleven bedrooms in the two apartments at 17 Cleaveland plainly do not constitute two families by any definition. The proposed use of 17 Cleaveland does not constitute a “Dwelling, Single/Two Family,” and does not fall within the other applicable permitted uses listed in the Ordinance’s use table.

[¶ 37] In conclusion, I believe that the majority wrongly ignores the term “family,” and disproportionately relies upon the lease agreement, rather than the use of the building, which violates the specific purposes set forth in the Ordinance. For these reasons, I would vacate the Superior Court’s judgment, and respectfully dissent from the Court’s opinion.

. Although the majority characterizes the term "family” as an "outdated holder,” it should be noted that the term "family” is used elsewhere in the ordinance. See Brunswick, Me., Zoning Ordinance, ch. 3, § 306.1 (May 7, 1997) (referencing "Two-Family Dwellings” and "Multi-Family Dwellings”).