Steven Wolfram v. Town of North Haven

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 114
Docket: Kno-16-237
Argued: February 8, 2017
Decided: June 6, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and HUMPHREY, JJ.

STEVEN WOLFRAM et al.

v.

TOWN OF NORTH HAVEN et al.

HUMPHREY, J.

[¶1] Steven Wolfram and the Mullins Development Trust appeal from a

judgment of the Superior Court (Knox County, Billings, J.) affirming a decision

of the Town of North Haven Board of Appeals upholding a permit issued by

the Town of North Haven Planning Board to Nebo Lodge, Inc., and Nebo Real

Estate, LLC. We affirm the judgment.

I. BACKGROUND

[¶2] In October 2013, Nebo Lodge, Inc., and Nebo Real Estate, LLC,

(collectively, Nebo Lodge) filed an application for a land use permit. Nebo

Lodge, which operates an inn and restaurant in North Haven, sought to tear

down “the bungalow”—one of two existing structures on the property—and

rebuild it as “the annex.” The other structure, “the lodge,” houses the inn and
2

restaurant. The lodge was previously renovated and expanded in 2009 and

2010.

[¶3] In addition to increasing the size of the annex structure, Nebo

Lodge proposed a change in use, including two bedrooms for staff; an office;

storage for food, bikes, trash, and recycling; and a kitchen for processing,

refrigerating, and freezing food. Nebo Lodge submitted a second application

for a land use permit seeking authorization for “wrecking,” described as a

“partial tear down” that would leave a “small piece” of the previous bungalow

structure intact.

[¶4] The Planning Board held three public hearings on October 30 and

November 3 and 4, 2013. Steven Wolfram, who owns property across the

street from the Nebo Lodge property, opposed the applications.1 On

November 13, 2013, the Planning Board approved the applications with

conditions.

[¶5] Wolfram appealed to the North Haven Board of Appeals (BOA),

and the BOA held hearings on March 12 and 17, 2014.2 See North Haven, Me.,

1 Although Wolfram was not physically present at the hearings before the Planning Board, his

attorney appeared on his behalf, and Wolfram participated by telephone in addition to submitting a
written position statement.

2
Nebo Lodge demolished the bungalow structure and began reconstruction after receiving
Planning Board approval but before the BOA hearing. The code enforcement officer testified that a
corner of the old structure was retained to hold up the stairs in the rebuilt annex.
 3

Land-Use Ordinance § 5.5 (Feb. 16, 2010). Four BOA members recused

themselves due to conflicts of interest, and they were replaced by other

individuals believed to have no conflicts. The BOA accepted evidence and

made factual findings. The BOA affirmed the Planning Board decision in a

written decision with findings of fact and conclusions of law.

[¶6] Wolfram appealed to the Superior Court, contending that the BOA

erred in interpreting various provisions in North Haven’s Ordinance and that

the permit review process violated his due process rights.3 See 30-A M.R.S.

§ 2691(4) (2016); M.R. Civ. P. 80B. The court affirmed the BOA’s decision.

Wolfram appealed. See M.R. Civ. P. 80B(n); M.R. App. P. 2.

II. DISCUSSION

A. Standard of Review

[¶7] “Our review of administrative decision-making is deferential and

limited.” Beal v. Town of Stockton Springs, 2017 ME 6, ¶ 13, 153 A.3d 768.

“When a zoning board of appeals acts as the tribunal of original jurisdiction as

both fact finder and decision maker,[4] we review its decision directly for

3 Although Wolfram alleged that the decision was affected by bias, he did not move for a trial of

facts regarding the alleged bias. See M.R. Civ. P. 80B(d), (i).
4 Because the BOA accepted evidence and made factual findings, as authorized by the Ordinance

and by statute, see North Haven, Me., Land-Use Ordinance § 5.5 (Feb. 16, 2010); 30-A M.R.S.
§ 2691(3)(D) (2016), we review its decision directly. See Rossignol v. Me. Pub. Emps. Ret. Sys., 2016
ME 115, ¶ 6, 144 A.3d 1175; Stewart v. Town of Sedgwick, 2000 ME 157, ¶ 7 & n.2, 757 A.2d 773.
4

errors of law, abuse of discretion, or findings not supported by substantial

evidence in the record.” Brackett v. Town of Rangeley, 2003 ME 109, ¶ 15, 831

A.2d 422. Ordinances are construed de novo. Merrill v. Town of Durham, 2007

ME 50, ¶ 7, 918 A.2d 1203. As the party seeking to vacate the BOA’s decision,

Wolfram bears the burden of persuasion on appeal. See Duffy v. Town of

Berwick, 2013 ME 105, ¶ 13, 82 A.3d 148.

B. Ground Area Restriction for Nonconforming Structures

[¶8] The size of the Nebo Lodge property is less than the

20,000-square-foot minimum lot size in the Village District, which rendered

the bungalow and the lodge nonconforming. See North Haven, Me., Land-Use

Ordinance §§ 2.2, 2.3, 2.5, 3.3(D). Wolfram first argues that the annex exceeds

the allowable expansion of a nonconforming structure pursuant to the

Ordinance.

[¶9] “In construing the language of an ordinance, the ordinance is to be

considered as a whole.” Jade Realty Corp. v. Town of Eliot, 2008 ME 80, ¶ 9,

946 A.2d 408. Undefined terms are given their common meaning “unless the

context clearly indicates otherwise.” Id. (quotation marks omitted). Because

the intent of zoning is generally to abolish nonconforming structures and uses,

“zoning provisions that restrict nonconformities are liberally construed, and
 5

zoning provisions that allow nonconformities are strictly construed.” Day v.

Town of Phippsburg, 2015 ME 13, ¶ 15, 110 A.3d 645.

[¶10] Section 2.5 provides that

[a]ny structure in existence as of the effective date of this
Ordinance, which becomes non-conforming solely from a failure
to satisfy the area requirements of the district in which it is
located, may be repaired, maintained, and improved.

North Haven, Me., Land-Use Ordinance § 2.5. Nonconforming structures “may

be enlarged . . . without a variance,” so long as “the enlargement . . . contains

no more than 33% of the ground area of the grandfathered structure.”5 Id.

§ 2.5(B). Here, the ground area of the annex is less than 33% larger than the

ground area of the previous structure, the bungalow. Wolfram interprets

section 2.5, however, to limit the total expansion of all nonconforming

structures on a lot to 33% of the ground area of a single nonconforming

structure. He thus interprets section 2.5 to require the Town to aggregate

each expansion on the lot and to prohibit further expansion once that

percentage, tied to a single nonconforming structure, has been reached.

Because Nebo Lodge expanded the lodge in 2009 and 2010, and further

expansion to the separate annex would, in the aggregate, exceed 33% of the

5 “Grandfathered structure” is not defined. As used in the zoning context, “grandfathered”

typically refers to uses or structures that, after a legislative change, no longer comply with zoning,
but are nonetheless allowed to continue. See, e.g., Town of Levant v. Seymour, 2004 ME 115,
¶¶ 20-22, 855 A.2d 1159.
6

original lodge’s ground area, Wolfram contends that Nebo Lodge can expand

no further and thus the annex violates section 2.5.

[¶11] Wolfram’s interpretation is unsupported by the language of the

Ordinance. Even strictly construed, the Ordinance clearly permits any

nonconforming structure to be expanded by up to 33% of the ground area of

the previous structure. Here, the annex expansion does not exceed 33% of the

ground area of the structure that it replaced, the bungalow. Any expansions

made to the lodge—a separate nonconforming structure—were irrelevant

because section 2.5 does not prohibit the expansion of multiple

nonconforming structures on a single lot. See North Haven, Me., Land-Use

Ordinance § 2.5. Instead, the 33% ground area restriction applies to each

individual nonconforming structure. See id. Because the property had two

nonconforming structures—the annex and the lodge—each may be enlarged

by up to 33% of the ground area of the structure that it replaced and comply

with section 2.5. See id.

C. Willfully Destroyed Structure

[¶12] Wolfram next contends that the annex expansion violated section

2.6 of the Ordinance, which provides that “[a]ny non-conforming use or
 7

structure which is hereafter damaged or destroyed by fire of[6] cause other

than the willful act of the owner of his agent,[7] may be restored or

reconstructed to its original dimensions, and used as before.” North Haven,

Me., Land-Use Ordinance § 2.6. Wolfram interprets section 2.6 to prohibit

restoration or replacement of a willfully demolished nonconforming structure

and to limit any restoration or replacement to the size of the original

structure.

[¶13] We conclude that section 2.6 does not apply to a willful

demolition for renovation purposes undertaken with municipal approval.

Instead, section 2.6 concerns the repair or replacement of a nonconforming

structure if damaged or destroyed by a fire or cause other than the owner’s

willful act. See id. Wolfram’s interpretation would effectively prohibit any

voluntary alteration of a nonconforming structure because a renovation

would necessarily require “damage” undertaken intentionally by “the owner

[or] his agent.” Id. More significantly, such an interpretation would conflict

with section 2.5, which unlike section 2.6, directly addresses enlargements.

Section 2.5 allows for expansion of any nonconforming structure, provided

6 The Town represented at oral argument that this provision is a typographical error and in fact

is intended to state “fire or cause.” This distinction is immaterial to our analysis.
7 This is also presumably intended to state “owner or his agent.”
8

that the expansion does not exceed 33% of the ground area of the previous

structure. See North Haven, Me., Land-Use Ordinance § 2.5(B). Because we

must interpret section 2.6 in the context of the entire ordinance scheme in

order “to achieve a harmonious result,” Wister v. Town of Mount Desert, 2009

ME 66, ¶ 17, 974 A.2d 903, and section 2.5 expressly allows for and governs

enlargements of nonconforming structures, section 2.6 does not apply to the

annex.

D. Twenty Percent Lot Coverage

[¶14] Wolfram next asserts that the annex violates a 20% lot coverage

restriction applicable to guest houses. Section 4.1, titled “Guest House,”

provides:

A. Only one guest house per lot
B. Will not exceed footprint of the principal structure
C. In no case shall all structures, including the guest house,
cover more than 20% of a lot.
D. All other provisions of this Ordinance must be met before
building a guest house.

North Haven, Me., Land-Use Ordinance § 4.1. “Guest house” is listed among

the permitted structures as an accessory use to a “single-family dwelling use.”

Id. § 1.6. “Guest house” is not defined; the Ordinance provides that “[t]erms

not defined will have customary dictionary meaning.” Id. § 1.5. Webster’s

Dictionary defines “guesthouse” as “a small house on the same property as a
 9

larger main house, used for guests” or “a free-standing hotel unit, often like a

cottage rented to guests.” Webster’s New World College Dictionary 631

(4th ed. 2002).

[¶15] “Although interpretation of an ordinance is a question of law, we

accord substantial deference to the Planning Board’s characterizations and

fact-findings as to what meets ordinance standards.” Bizier v. Town of Turner,

2011 ME 116, ¶ 8, 32 A.3d 1048 (quotation marks omitted). “Undefined . . .

terms . . . contained in an ordinance must be construed reasonably with regard

to both the objects sought to be obtained and to the general structure of the

ordinance as a whole.” Davis v. SBA Towers II, LLC, 2009 ME 82, ¶ 15, 979 A.2d

86 (quotation marks omitted).

[¶16] The BOA found that the proposed annex was not a guest house

because the bedrooms would be used by Nebo Lodge employees, not paying

guests, and further that the annex was not a single-family dwelling use

because the kitchen was not internally accessible from the bedrooms. The

BOA therefore determined that section 4.1 did not apply. This conclusion is

supported by factual findings based on record evidence, and we discern no

error of law. Neither the evidence nor the Ordinance compelled the BOA to

find and conclude that the annex is a “guest house,” and we accord deference
10

to the BOA’s ultimate characterization.8 See Jordan v. City of Ellsworth, 2003

ME 82, ¶ 8, 828 A.2d 768.

E. Conditional Use Standards

[¶17] Wolfram next argues that the BOA failed to follow section 6.5(A)

of the Ordinance, which sets forth standards governing the issuance of a

conditional use permit. An applicant must demonstrate that

A. neither the proposed use nor the proposed site upon which the
use will be located are of such a character that the use will
have an adverse impact upon the value or quiet possession of
surrounding properties greater then [sic] would normally
occur from the permitted sue [sic] in the zoning district;

B. the proposed use will be compatible with the permitted
uses . . . within the district in which it is located . . . .

North Haven, Me., Land-Use Ordinance § 6.5(A)-(B).

[¶18] The BOA compared the annex use to permitted uses in the district

and concluded that the use “would not have an adverse impact on the value[9]

or quiet possession of surrounding properties ‘greater than would normally

occur from the permitted use in the zoning district.’” The BOA found, based

8 We further find no merit to Wolfram’s argument that the lodge is a “guest house” and therefore

section 4.1 applies to the Nebo Lodge property. The lodge use fits squarely within the definition of
a “lodging facility,” see North Haven, Me., Land-Use Ordinance § 1.6 (defining “lodging facility” as “A
building in which rooms are offered for overnight accommodations, with or without meals, for
compensation.”).

9
The BOA noted that there was no evidence submitted as to the impact of the use on
surrounding property values.
 11

on competent record evidence, that not only would there be no adverse

impact, but in fact the change in use would ameliorate noise and visual

impacts because the annex would be used to store recycling, trash, and

bicycles inside. The expansion would also reduce car traffic because

employees would sleep on site. Contrary to Wolfram’s contention, the BOA

was not required to consider the Nebo Lodge property use as a whole because

the evidence did not compel a finding that there was a “substantial increase or

expansion in the volume or intensity of” the inn and restaurant use. North

Haven, Me., Land-Use Ordinance § 6.3.

[¶19] The BOA did not err in applying the Ordinance, and its finding

that the annex use would not have an adverse impact on the quiet possession

of surrounding properties is supported by substantial evidence. See

Passadumkeag Mountain Friends v. Bd. of Envtl. Prot., 2014 ME 116, ¶¶ 12-14,

102 A.3d 1181.

F. Due Process

[¶20] Finally, Wolfram argues that his due process rights were violated

by bias and ex parte communications. “An administrative process may be

infirm if it creates an intolerable risk of bias or unfair advantage.” Zegel v. Bd.

of Soc. Worker Licensure, 2004 ME 31, ¶ 16, 843 A.2d 18. Ex parte
12

communications implicate the due process rights of the excluded party and

will be grounds to vacate a “decision if, as a result of [the] communications,

the decision results in ‘procedural unfairness,’” which calls into question the

integrity and fairness of the decision. Duffy, 2013 ME 105, ¶ 18, 82 A.3d 148.

Procedural errors are harmless and will not be grounds to vacate a decision

unless they are inconsistent with substantial justice and result in prejudice.

See Zegel, 2004 ME 31, ¶ 17, 843 A.2d 18. Whether the effect of bias and

procedural unfairness denies a party due process is a question of law

reviewed de novo. See State v. Jones, 2012 ME 126, ¶ 35, 55 A.3d 432.

[¶21] Wolfram identifies emails in the administrative record, mostly

between Nebo Lodge representatives and members of the Planning Board, as

the primary evidence supporting his contention that his due process rights

were violated. None of those communications, however, implicates the BOA’s

impartiality. Many emails are correspondence between Nebo Lodge and

Town officials directed at complying with the permit process, the Ordinance,

and other applicable standards prior to the Planning Board hearing.

Assuming the emails were improper ex parte communications, this would not

be a basis to vacate the BOA’s decision, the operative decision under review,

because Wolfram has failed to point to any evidence that the communications
 13

in fact affected that decision. See Fitanides v. City of Saco, 2015 ME 32, ¶ 22,

113 A.3d 1088 (stating that a biased statement by a municipal officer who is

not a member of the municipal decision-making board, without more, is

insufficient to impute bias to the board). Wolfram’s contention that the

procedural unfairness was endemic to the entire process before the Town is

unsupported and unpersuasive.10 Because there is a dearth of evidence in the

record that the BOA decision was the product of bias or procedural unfairness,

we conclude that the decision did not violate Wolfram’s due process rights.

The entry is:

Judgment affirmed.

Matthew D. Manahan, Esq., and Catherine R. Connors, Esq. (orally), Pierce
Atwood LLP, Portland, for appellants Steven Wolfram and the Mullins
Development Trust

Paul L. Gibbons, Esq. (orally), Camden, for appellee Town of North Haven

Thomas B. Federle, Esq. (orally), Federle Law, LLC, Portland, for appellees
Nebo Lodge, Inc., and Nebo Real Estate, LLC

Knox Superior Court docket number AP-2014-45
FOR CLERK REFERENCE ONLY

10 There was no competent evidence in the record that statements attributed to the BOA chair

by Wolfram were in fact made. We note that although four members of the BOA recused
themselves because of conflicts, Wolfram did not move at the hearing for the chair to recuse.