Bartlett v. Town of Stonington
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME   50
Docket:	Han-97-349
Argued:	December 1, 1997
Decided:	March 9, 1998

Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and
SAUFLEY, JJ.

MARGARET E. BARTLETT

v.

TOWN OF STONINGTON et al.

ROBERTS, J.

	[¶1]  Margaret E. Bartlett appeals from the judgment entered in the
Superior Court (Hancock County, Mead, J.) affirming the decision of the
Town of Stonington Board of Appeals.  Bartlett contends that the board of
appeals unlawfully denied her a building permit by applying against her a
zoning ordinance that had been repealed, or, in the alternative, by
misinterpreting a term in that ordinance.  We affirm the judgment.  
	[¶2]  In 1990 Bartlett received a building permit from the Town's
code enforcement officer (CEO) to construct a garage on her property.  The
CEO subsequently issued a stop work order when he determined that the
structure would violate the Town's shoreland ordinance, which required
that any building be located at least 20 feet from the property's side line.  
	[¶3]  Relying on information submitted by Bartlett concerning the
location of the property line, and concluding that no zoning violation would
occur, the CEO rescinded the stop work order.  Bartlett's neighbors, Robert
and Helene Quinn, contested Bartlett's claims concerning the location of the
property line and appealed the CEO's action to the board of appeals. 
Nevertheless, Bartlett completed construction of the garage.  
	[¶4]  While that appeal was pending before the board of appeals, the
Board of Environmental Protection in April 1994 imposed on the Town the
State Guidelines for Municipal Shoreland Zoning Ordinances pursuant to 38
M.R.S.A. § 438-A(4) (Supp. 1997).  Unlike the town ordinance, the state
ordinance did not contain side line requirements.  
	[¶5]  After a judgment of the Superior Court resolved the property
line dispute in favor of the Quinns, the board of appeals reinstated the stop
work order.  Bartlett then applied to the planning board for a special
exception permit, which was granted.  The Quinns appealed the planning
board's decision to the board of appeals.  
	[¶6]  In March 1996 the board of appeals found that Bartlett's
application should be reviewed under the town ordinance, not the state
ordinance.  Interpreting the town ordinance, the board found that the
planning board erred when it construed the term "setback" to include side
line requirements.  The board concluded that side line requirements could
be relaxed only by variance, and only the board of appeals, not the planning
board, could grant a variance.  The board of appeals rescinded the planning
board's special exception permit and reinstated the stop work order.  
	[¶7]  Bartlett appealed that decision to the Superior Court.  In May
1997 the court found, inter alia, that the state ordinance did not repeal the
town ordinance but rather supplemented it, and that the board of appeals
properly interpreted the town ordinance.  
	[¶8]  When the Superior Court, acting as an intermediate appellate
court, reviews an agency decision without developing additional evidence
beyond the record before the agency, we review directly the administrative
record.  Weekley v. Town of Scarborough, 676 A.2d 932, 933 (Me. 1996). 
	[¶9]  Bartlett's contention that the imposition of the state ordinance
on the Town effectively repealed the town ordinance is incorrect.  When
interpreting a statute, "we look first to the plain meaning of the statutory
language to give effect to legislative intent, and if the meaning of the statute
is clear on its face, then we need not look beyond the words themselves." 
Cook v. Lisbon School Comm., 682 A.2d 672, 676 (Me. 1996) (citation
omitted).  Although the ordinance imposed on the Town contains language
that could be used, at a municipality's option, to rescind its own ordinance,
the Town in this instance did not adopt that language.  
	[¶10]  The ordinance required by statute sets minimum conditions. 
The preface to the mandated ordinance provides that the Board of
Environmental Protection "encourages municipalities to consider local
planning documents and other special local considerations, and to modify
[the state] ordinance into one that meets the needs of the particular
community."  Me. Dep't of Envtl. Prot., State of Maine Guidelines for
Municipal Shoreland Zoning Ordinances (March 24, 1990), as amended
July 14, 1992.  Section 7 of the state ordinance provides:  "Whenever a
provision of this Ordinance conflicts with or is inconsistent with another
provision of this Ordinance or any other ordinance, regulation or statute, the
more restrictive provision shall control."  The board of appeals, therefore,
did not act unreasonably by interpreting the state ordinance to supplement,
rather than to repeal, the town ordinance.  Moreover, the board of appeals
did not act unreasonably by applying the town's more restrictive side line
requirements to Bartlett.  
	[¶11]  Bartlett asserts in the alternative that the planning board
properly approved her project through the special exception procedure
because under the town ordinance the planning board is empowered to
grant special exceptions to setback requirements.  The board of appeals
found, however, that the planning board was without power to approve an
exception to the side line requirements.  Reasoning that "setback" refers
only to the distance between the shoreline and structures and not between
side lines and structures, the board of appeals concluded that the special
exception procedure was inapplicable to side line requirements.  
	[¶12]  The town ordinance specifically defines "setback" as "[t]he
number of feet a given structure is located from the shoreline, measured
horizontally."  Although, as Bartlett argues, in other contexts the term
"setback" may have a commonly understood meaning that is broader than
the ordinary definition, the Town is free to define with specificity any terms
used within its ordinance.  Because the plain language of the ordinance
"answers the interpretive question raised by the parties, the language must
prevail and no further inquiry is required."  Cook v. Lisbon School Comm.,
682 A.2d at 676.  The Board of Appeals properly concluded that the term
"setback" in the town ordinance does not apply to side line requirements.  
	[¶13]  No other issues raised by Bartlett require discussion.  
	The entry is: 
				Judgment affirmed. 
                                                                 
Attorney for plaintiff:

James E. Patterson, Esq., (orally)
P O Box 712
Ellsworth, ME 04605

Attorneys for defendants:

John L. Carver, Esq., (orally)
Joseph W. Baiungo, Esq.
Carver, Kinball & Baiungo
10 Church Street
Belfast, ME 04915
(for Robert & Helene Quinn)

Mary N. Kellett, Esq., (orally)
Law Offices of Ellen S. Best
P O Box 386
Blue Hill, ME 04614
(for Town of Stonington)