Stewart v. Town of Sedgwick
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MAINE SUPREME JUDICIAL COURT						Reporter of Decisions
Decision:	2002 ME 81
Docket:		Han-01-658
Submitted
  on Briefs:	March 26, 2002
Decided:		May 16, 2002

Panel:  		SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and  LEVY, JJ.

GORDON W. STEWART

v.

TOWN OF SEDGWICK et al.

CALKINS, J.

	[¶1]  Gordon Stewart appeals from a judgment entered in the Superior
Court (Hancock County, Mead, J.) affirming the decision by the Town of
Sedgwick Board of Appeals which approved the issuance of a permit to
Gardiner and Leslie Schneider to build a dock.  Stewart contends that the
Board of Appeals erred in determining that the proposed dock would not violate
the Town's Shoreland Zoning Ordinance.  Specifically, he argues that the
Board erred in finding that the dock will not interfere with a natural beach and
in finding that the size of the dock is consistent with the conditions, use, and
character of the area.  Stewart also contends that because the Schneiders did
not show a need for the dock, the permit should not have been granted.  We
affirm.

I.  BACKGROUND AND PROCEDURE

	[¶2]  The Schneiders sought and obtained from the Sedgwick Planning
Board a permit to construct a dock, ramp, and float on their property on
Eggemoggin Reach.  Stewart, a neighbor, appealed the issuance of the permit
to the Board of Appeals which affirmed the Planning Board's decision, and
Stewart then filed an action in Superior Court seeking judicial review pursuant
to M.R. Civ. P. 80B.  When the Superior Court affirmed the Board of Appeals,
Stewart appealed to this Court, and we vacated the judgment for the reason
that the Board did not review the Planning Board's decision de novo as
required by 30-A M.R.S.A. § 2691(3)(D) (1996) in the absence of a town
ordinance specifying another procedure.  Stewart v. Town of Sedgwick, 2000
ME 157, ¶¶ 6-7, 15, 757 A.2d 773, 775-76, 778.  On remand, the Board of
Appeals held a de novo hearing, made findings of fact, and concluded that the
Schneiders were entitled to the permit to construct the proposed dock, ramp,
and float.  Stewart, who participated in the Board hearings, again appealed to
the Superior Court, which again affirmed the Board's decision.
	[¶3]  At the Board of Appeals hearing following the remand, Stewart and
the Schneiders made oral presentations, resubmitted various documents that
had been given to the Board at the first hearing, and presented additional
documents and photographs.  The Schneiders described the proposed dock as
consisting of a permanent section, constructed of wood, measuring two
hundred by four feet, on epoxy coated steel piles and stringers reaching to the
low water mark.  Extending from the permanent dock will be a ramp and a
sixteen by twenty-four foot float that will be removed for the winter.  The
height of the dock at the high water mark is to be six feet.
	[¶4]  The primary points of contention before the Board of Appeals were
whether the proposed dock met the standards in section 15(C)(2), (4) and
section 16(D) of the Sedgwick Shoreland Zoning Ordinance.{1}  Section 15(C)(2)
required that the location of the dock "not interfere with existing developed or
natural beach areas."  Section 15(C)(4) required that the dock "be no larger in
dimension than necessary to carry on the activity and be consistent with
existing conditions, use, and character of the area."  The portion of section
16(D), relied upon by Stewart, stated that the applicant had to prove that the
dock "is in conformity with the purposes and provisions of this Ordinance."  
	[¶5]  The Board voted separately on whether the requirements in section
15(C)(2) and (4) were met.  The vote was three to two in finding that the dock
would not interfere with existing beach areas.  The Board members
unanimously agreed that the size of the dock was no larger than necessary for
its activity, but they divided three to two in voting that the size was consistent
with the conditions, use, and character of the area.  The Board voted three to
two to uphold the Planning Board's grant of a permit.

II.  DISCUSSION

	[¶6]  When the Superior Court has acted as an intermediate appellate
court in a land use case, we review the operative decision of the municipality. 
Springborn v. Town of Falmouth, 2001 ME 57, ¶ 8, 769 A.2d 852, 855.  In this
case the operative decision is that of the Board of Appeals following its de novo
hearing.  We review the Board's decision "for an abuse of discretion, error of
law, or findings unsupported by substantial evidence in the record."  Id.
(citation omitted).  The interpretation of a zoning ordinance is a question of
law that we review de novo.  Id.  We examine the plain meaning of the
language of the ordinance, and we construe its terms reasonably in light of the
purposes and objectives of the ordinance and its general structure.  Id.
	[¶7]  Stewart first contends that the ordinance prohibits the
construction of any dock on a beach because all docks built on a beach
interfere with the beach.  He interprets section 15(C)(2) of the ordinance as
confining the construction of docks to locations either above the high water
mark or where there is no beach.  Section 15(C)(2), however, does not ban
docks on beaches; it requires that there be a finding that the dock not interfere
with the beach.  The Board made such a finding.  To the extent that Stewart is
arguing that the finding is not supported by the record, he has not called our
attention to any matter in the record that would compel a finding that this
particular proposed dock will interfere with the beach on which it will be
constructed.{2}  See Lentine v. Town of St. George, 599 A.2d 76, 80 (Me. 1991).
	[¶8]  Stewart also argues that the Board erred in finding that the size of
the dock was no larger than necessary to carry on the activity.  Ordinance,
§ 15(C)(4).  In this case the activity is access to the Schneiders' boat as that is
the reason given by the Schneiders for wanting to build the dock.   Stewart
contends that the ordinance provision, by using the word "necessary," must be
interpreted to mean that the Schneiders were required to demonstrate their
need for the dock.  He maintains that as long as the Schneiders have access to
their boat through another means, such as mooring the boat in the nearby
river and using their skiff to reach the boat, they have no need for a dock on
their property.  However, the meaning of the ordinance is plain: the dock
should be no larger than necessary to carry on the activity.  Stewart's novel
argument that the ordinance requires the permit applicant to show absolute
need, as opposed to need in relationship to size for the intended activity, would
stretch the ordinance beyond reason.  Other than arguing that the Schneiders
have no need for a dock and that such a need is a prerequisite to a permit,
Stewart made no argument that the proposed dock was too large for its
intended purpose.
	[¶9]  Stewart also contends that the size of the proposed dock is not
consistent with the conditions, use, and character of the area.  Ordinance,
§ 15(C)(4).  In his oral presentation to the Board, Stewart eloquently described
the pristine nature of the area, and the record contains photographs showing
the beauty of Eggemoggin Reach.  There was also discussion at the Board
hearing of a number of other docks within two miles of the Schneider property. 
The Schneiders furnished photographs of several of the docks in the area. 
From the portion of the record that has been furnished to us, we cannot
conclude that the Board's finding that the size of the proposed dock was
consistent with the conditions, use, and character of the area, is unsupported
by substantial evidence.
	[¶10]  A similarly worded ordinance regarding the size of piers, docks, and
wharfs was at issue in Lentine v. Town of St. George, 599 A.2d at 77-78 n.2.  We
interpreted the St. George ordinance, as applied to a wharf, to mean that its
size could not be larger than necessary for its purpose and its size had to be
consistent with the conditions, use, and character of the area.  Id. at 79.  The
Sedgwick Board of Appeals cited to Lentine and correctly applied the same
interpretation to the Schneiders' dock that we had applied to the wharf in
Lentine.
	[¶11]  Stewart finally argues that the Board erred by not requiring the
Schneiders to prove that the dock would conform to the general purposes of the
Shoreland Ordinance.  Stewart relies on the portion of section 16(D) of the
Ordinance that reads: "The applicant shall have the burden of proving that the
proposed land use activity is in conformity with the purposes and provisions of
this Ordinance."  This appears on its face simply to state who has the burden
of persuasion when a person makes an application to the Planning Board for a
permit.  Stewart, however, reads into this provision a substantive requirement
that the Schneiders must have demonstrated that the dock conforms with the
general purposes of the Shoreland Ordinance contained in section 1.  That
section, which is entitled "Purposes," reads:

The purposes of this Ordinance are to further the maintenance of
safe and healthful conditions; to prevent and control water
pollution; to protect fish spawning grounds, aquatic life, bird and
other wildlife habitat; to protect buildings and lands from flooding
and accelerated erosion; to protect archaeological and historic
resources; to protect commercial fishing and maritime industries;
to protect freshwater and coastal wetlands; to control building
sites, placement of structures and land uses; to conserve shore
cover, and visual as well as actual points of access to inland and
coastal waters; to conserve natural beauty and open space; and to
anticipate and respond to the impacts of development in shoreland
areas.

More specifically, Stewart contends that the Schneiders did not show that the
dock would conform to the purposes of conserving visual access to coastal
waters and conserving natural beauty and open space.  
	[¶12]  Applicants for permits, however, are not required to  demonstrate
that their projects adhere to each of the general purposes.  Instead, the general
purposes provide the framework for the specific requirements of the ordinance,
such as those found in section 15(C) dealing with piers, docks, and wharfs. 
The general purposes inform and guide the interpretation of the more specific
provisions.  The Schneiders were required to demonstrate that their proposed
dock met the requirements of section 15(C).  The provisions of section 15(C)
requiring that the dock not interfere with the beach and that the size of the
dock be consistent with existing conditions are specific means by which the
general purposes, including the purposes of conserving visual access, open
space, and natural beauty, are carried out.  While the general purposes are
useful for the officials and others who must interpret the ordinance, they
themselves do not provide the qualitative standards necessary for the
evenhanded administration of a zoning ordinance.  The general purposes of
conserving visual access, open space, and natural beauty, if utilized as
separate standards upon which permits were denied, would likely suffer the fate
of being declared unconstitutionally vague.  See Kosalka v. Town of Georgetown,
2000 ME 106, ¶ 17, 752 A.2d 183, 187 (holding that requirement to "conserve
natural beauty" is an unconstitutional condition because it is unmeasurable
and "lacking in cognizable, quantitative standards").{3}  
	[¶13]  We conclude that the Board's decision that the Schneiders are
entitled to the permit to build the dock is supported by substantial evidence, is
not contrary to law, and does not constitute an abuse of discretion.
	The entry is:
			Judgment affirmed.
                                                         
For plaintiff:

Gordon W. Stewart
1007 Orange Street, suite 1400
Wilmington, DE 19801

For defendants:

James E. Patterson, Esq.
P O Box 712
Ellsworth, ME 04605
(for Town of Sedgwick)

Gardiner & Leslie Schneider
P O Box 127
Sedgewick, ME 04676-0127

FOOTNOTES******************************** {1} . Section 15 of the Shoreland Zoning Ordinance for the Municipality of Sedgwick is entitled "Land Use Standards" and reads in pertinent part: All land use activities within the shoreland zone shall conform with the following provisions, if applicable. . . . . C. Piers, Docks, Wharfs, Bridges, and Other Structures and Uses Extending Over or Beyond the Normal High-Water Line of a Water Body or Within a Wetland. 1.Access from shore shall be developed on soils appropriate for such use and constructed so as to control erosion. 2. The location shall not interfere with existing developed or natural beach areas. 3. The facility shall be located so as to minimize adverse effects on fisheries. 4.The facility shall be no larger in dimension than necessary to carry on the activity and be consistent with existing conditions, use, and character of the area. {2} . An argument by Stewart that we do not reach is that section 15(C)(2) is unconstitutional unless it is interpreted to require the permitting authority to balance the applicant's need for the dock against the public's interest in protecting the beach from development. The ordinance does not lend itself to an interpretation that would require the balancing test proposed by Stewart. Because we are loath to reach constitutional issues unless absolutely necessary, we do not do so here. A holding that section 15(C)(2) is unconstitutional would not assist Stewart. If the section were unconstitutional, it would be declared invalid, and the Schneiders would prevail in obtaining their permit because they met the other requirements of the ordinance. See Kosalka v. Town of Georgetown, 2000 ME 106, ¶ 17, 752 A.2d 183, 187. {3} . Stewart also contends that if section 15(C)(2) is not interpreted to ban all docks from beaches, it must be interpreted in light of the purposes of the ordinance. While we agree with this contention, we do not agree that the Board of Appeals failed to consider the general purposes when it found that the proposed dock would not interfere with the beach.