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STATE OF MAINE  SUPERIOR COURT  
CIVIL ACTION  
YORK, ss.  DOCKET NO. AP-06-031  

J & L SAND, INC., Plaintiff
v. ORDER
TOWN OF LYMAN, Defendant
This matter comes before the Court on J&L Sand's BOB appeal of administrative action taken by the Town of Lyman. Following hearing, the appeal is Denied. BACKGROUND
Plaintiff J&L Sand, Inc. ("Sand") is a Maine corporation which operates a mineral extraction business in the Town of Lyman. Defendant Town of Lyman ("the Town") is a municipality in York County. In 2001, Sand applied for and received a conditional use permit for its mineral extraction business. The Lyman Planning Board approved changes to its permit in September 2002, including hours of operation from 7:00 a.m. to
4:00 p.m. on Saturdays. As a condition of approval, Sand was to provide the Board with confirmation from a financial institution that it was able to comply with the approval terms, which it did. The permit was expressly limited to three years; Sand would need to reapply within ninety days of the permit's expiration in September 2005.
In November 2005, the Town adopted a new zoning ordinance that repealed and replaced the prior version, which was originally enacted in 1976. The new ordinance provides that mineral extraction operations no longer need a conditional use pennit; instead, they must apply for site plan approval. Existing operations may continue until expiration of their permits, but, in order to continue operation, the businesses must reapply as specified in the ordinance. Sand timely reapplied in 2005 and continued its operations until evaluation of its application.
On April 5, 2006, the 131anning Board reviewed Sand's application for renewal and approved it for mineral extraction activities, but added two conditions to its approval. The Board reduced Saturday hours of operation from 9:00 a.m. to 4:00 p.m. to
9:00 a.m. to 12:00 p.m. Additionally, the Board altered the financial security requirement to require a $5,000 escrow account to insure compliance with conditions. Sand appealed that decision to the Town's Zoning Board of Appeals ("ZBA") on May 3, 2006, contending that the Board could not add conditions for renewal applications, especially where there had been no complaints. The ZBA held a public hearing on May 24,2006, after which it issued its findings of fact and conclusions of law, rejecting Sand's appeal and endorsing the extra conditions. Sand filed its 80B appeal in this Court on June 23, 2006, arguing that the Board and ZBA erred as a matter of law by imposing additional conditions on Sand's permit. It argues that this decision was an error of law, arbitrary and capricious, and unsupported by substantial evidence in the record. The Town contends that the ZBA's decision should be affirmed because it had the authority to add conditions under the new ordinance, which applies to all mineral extraction operations, including Sand's.
DISCUSSION
1. Standard of Review.
The party appealing a board's decision bears the burden of persuasion. Twigg v. Town of Kennebunk, 662 A.2d 914, 916 (Me. 1996). Review of board findings is "for an abuse of discretion, error of law, or findings unsupported by substantial evidence in the record." OfToolev. City of Portland, 2004 ME 130, q[ 8, 865 A.2d 555, 558. A municipal board's interpretation of a zoning ordinance, however, is a legal question entitled to de novo review. Lewis v. Town of Rockport, 2005 ME 44, q[ 11, 870 A.2d 107, 110. The operative decision for this Court's review is the underlying planning board decision when the ZBA has simply acted in an appellate capacity rather than as a "tribunal of original jurisdiction." Gensheimer v. Town of Phippsburg, 2005 ME 22, q[ 7, 868 A.2d 161, 163-164.
2. Did the Planning. Board Err As A Matter of Law Bv Adding Conditions for Renewal of Sand's Permit? In this case, the ZBA engaged in appellate review of the Planning Board's decision rather than undertaking a de novo review. The Lyman ordinance only required the ZBA to evaluate whether the Board made a procedural error or acted in a manner that was "clearly contrary" to the ordinance. Town of Lyman Zoning Ordinance 5 9.7.' Therefore, the operative decision for this Court to review is the Planning Board's approval with the two new conditions. At issue is the Board's interpretation of the Town's zoning ordinance pertaining to "existing operations" such
as Sand's. Town Ordinance 5 10.8.3(N) provides as follows: Existing Operations: Any operation involving excavation, processing, or storage of soil, earth, loam, sand, gravel, rock, or other mineral deposits in lawful operation at the time this Ordinance becomes effective may operate under the existing conditions of their Planning Board approval. The owner/ operator must submit a complete renewal application within ninety (90) days of the expiration date of the existing approval in order to continue to operate.
Also,

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Maine Law