Rockand Plaza Realty v. City of Rockland
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MAINE SUPREME JUDICIAL COURT	Reporter of Decisions
Decision:	2001 ME 81
Docket:	Kno-00-552
Argued:	March 8, 2001
Decided:	May 11, 2001	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:WATHEN, C.J., and CLIFFORD, RUDMAN, and DANA, JJ.
Dissenting: SAUFLEY, ALEXANDER, and CALKINS, JJ.

ROCKLAND PLAZA REALTY CORPORATION

v.

CITY OF ROCKLAND et al.

CLIFFORD, J

	[¶1]  Rockland Plaza Realty Corporation (Plaza Realty) appeals from a
judgment entered in the Superior Court (Knox County, Marsano, J.)
affirming the Rockland Zoning Board of Appeals' interpretation of four
Rockland Zoning Ordinance provisions.  Plaza Realty contends that the
Board erred in interpreting Ordinance provisions regarding building
coverage, building height, parking, and landscaping.  We discern no error
and affirm the judgment.
	[¶2]  Ellsworth Builders Supply, Inc.{1} owns and operates a retail
building materials store on a parcel of land in Rockland's commercial zoning
district.  The lot contains several structures that are preexisting
nonconforming uses with respect to setback, lot size, and street frontage
requirements.  Plaza Realty owns the abutting parcel and rents it out to
commercial tenants. 
	[¶3]  In November of 1999, Ellsworth Builders filed a site plan review
application with the Rockland Planning Commission seeking to expand and
renovate two of the nonconforming structures and remove other
nonconforming structures on the lot, in addition to adding parking and
landscaping.  Plaza Realty opposed the plan, arguing that its approval would
violate building coverage, building height, parking, and landscaping
requirements.  The Commission, however, concluded that Ellsworth
Builders' plan conformed to all Rockland Zoning Ordinance requirements.  
	[¶4]  The Commission then voted to table any further review of
Ellsworth Builders' plan pending final approval because of Plaza Realty's
indication that it would file an appeal to the Zoning Board of Appeals
challenging the Commission's construction of the Zoning Ordinance.{2}  Plaza
Realty did file an appeal to the Rockland Zoning Board of Appeals on
December 20, 1999.  The Board upheld the Commission's interpretation of
the contested provisions.
	[¶5]  Pursuant to M.R. Civ. P. 80B, Plaza Realty filed a complaint in the
Superior Court naming the City of Rockland, the Planning Commission, and
Ellsworth Builders as defendants, and challenging the Board's
interpretations of the Zoning Ordinance provisions at issue.  The court
affirmed the Board's interpretations of the Zoning Ordinance and remanded
the case "to the Planning Commission to issue an expansion permit." 
(Emphasis added).  This appeal by Plaza Realty followed.

I.

	[¶6]  We first address whether this case is ripe for decision. 
Generally, final action by an administrative body is required before a party
can appeal that action.  See, e.g., Lakes Envtl. Ass'n v. Town of Naples, 486
A.2d 91, 95-96 (Me. 1984).  Pursuant to Rockland's Site Plan Review
Ordinance, however, the Board is permitted to hear appeals regarding the
Commission's interpretation of ordinance provisions prior to the final
approval of a plan, see supra note 2.  Plaza Realty did take such an appeal to
the Board.  Following the decision of the Board, Plaza Realty appealed the
Board's interpretation of the Zoning Ordinance to the Superior Court
without waiting for a remand from the Board to the Commission for final
approval of the site plan and issuance of the expansion permit.  Moreover,
the only issue that Plaza Realty has raised is the Board's construction of four
Zoning Ordinance provisions.  We have in the past permitted parties to
appeal an agency's interpretation of a statute as a matter of law prior to a
final agency action.  See Annable v. Bd. of Envtl. Prot., 507 A.2d 592, 595-96
(Me. 1986).  Furthermore, all the substantive decisions on which final
approval of the site plan would be based have already been made and all that
remains for the Planning Commission to do is the ministerial act of issuing
an order of final approval of the plan.{3}  Indeed, the judgment entered by the
Superior Court is a final judgment, and mandates remand to the Planning
Commission "to issue an expansion permit."  Therefore, although this
appeal by Plaza Realty to the Superior Court is not from the Commission's
final approval of the plan, as would generally be required, we nevertheless
agree to take and decide Plaza Realty's appeal as a matter of law in the
interest of judicial economy and to prevent further delay because all that
remains before the Planning Commission is the ministerial act of final
approval.

II.

	[¶7]  Plaza Realty contends that the Board misinterpreted four
provisions of the Rockland Zoning Ordinance by determining that the
provisions permit the expansion of nonconformity on Ellsworth Builders'
property.  Plaza Realty argues that the four Rockland Zoning Ordinance
provisions regarding building coverage, building height, parking, and
landscaping are ambiguous, and must therefore be interpreted to reduce
nonconformity rather than to permit its perpetuation or expansion.  When,
as here, the Superior Court acts in its intermediate appellate capacity, we
review directly the decision of the Zoning Board of Appeals for abuse of
discretion, errors of law, or findings not supported by substantial evidence
in the record.  Mayberry v. Town of Old Orchard Beach, 599 A.2d 1153,
1154 (Me. 1991).  The interpretation of an ordinance is a matter of law that
we review de novo.  DeSomma v. Town of Casco, 2000 ME 113, ¶ 8, 755
A.2d 485, 487.
  
	A.Building Coverage

	[¶8]  The Zoning Ordinance provides:

A non-conforming structure may be added to or expanded after
obtaining a permit . . . with the following conditions: . . . The
building coverage within each setback area (i.e. front, side, rear)
may be increased by no more than 30% during the lifetime of
the structure.

Rockland, Me., Zoning Ordinance § 19-308(3)(A)(2) (Mar. 6, 2000).  Plaza
Realty contends that the language of this section prohibits any building
expansion that increases building coverage by more than thirty percent of
the original size of the building being renovated.  Specifically, Plaza Realty
notes that the reference to "the lifetime of the structure" indicates an
intent to limit a building coverage analysis to one specific building.  We
disagree.
	[¶9] The Board concluded that this provision prohibits building
expansion that increases building coverage by more than thirty percent of
the total area of all the structures in the setback area.  The reference to "the
lifetime of the structure" serves only to show that building coverage
limitations are cumulative over the life of the expanded structure(s) and not
a limit on each expansion.  If read otherwise, the provision would allow a
thirty percent expansion multiple times and render the limitation a nullity. 
We agree with the Board.
	[¶10]  By its plain language, this provision refers to building coverage
within the entire setback area rather than the building coverage of one
particular building, and therefore, the thirty percent increase should be
measured in comparison to all the buildings in the setback area rather than
one particular building within that area.  Thus, according to the language of
this provision, the thirty percent figure can take into account the decrease
in building coverage from buildings being removed from the setback area,
and therefore allows developers some flexibility in complying with the
provision.  "[T]he lifetime of the structure" language merely provides a time
frame against which to measure the expansion.  In addition, the Zoning
Ordinance itself defines "building coverage" as "[t]he horizontal area
measured at the outside of the exterior walls of all principal and accessory
buildings on a lot."  Rockland, Me., Zoning Ordinance § 19-302 (Mar. 6,
2000).  When a statute specifically defines a term, we cannot redefine it. 
Musk v. Nelson, 647 A.2d 1198, 1201 (Me. 1994).  Accordingly, the Board
did not err in concluding that expansion is permitted unless it increases
building coverage by more than thirty percent of all the buildings in the
entire setback area.

	B.Building Height

	[¶11]  The Zoning Ordinance also provides:

A non-conforming structure may be added to or expanded after
obtaining a permit . . . with the following conditions: . . . The
height of any part of the addition or expansion that extends into
the setback area shall not exceed the height of the encroaching
part of the existing structure nor the height allowed in the
zoning district, whichever is less.

Rockland, Me., Rockland Zoning Ordinance § 19-308(3)(A)(3) (Mar. 6,
2000).  Building height is defined as, "the vertical distance from the mean
elevation of the original grade or existing street level, whichever is higher,
around the perimeter of the building to the highest point of a flat
roof . . . .  Height limitations shall not apply to chimneys, steeples, water
stand-pipes or spires . . . ."  Rockland, Me., Zoning Ordinance § 19-302
(Mar. 6, 2000).  The plan of Ellsworth Builders provides for the construction
of a cupola on a building inside the setback area which, if its height were
included as part of the height of the building, would violate the building
height Ordinance by increasing the height of the renovated structure above
that of the existing structure.  Plaza Realty contends that the Board erred in
concluding that because the "cupola does not add functional space and is
similar to a chimney," its measurement is not included in the calculation of
building height.  
	[¶12]  Statutory language should be given its plain and ordinary
meaning.  Mullen v. Liberty Mut. Ins. Co., 589 A.2d 1275, 1277 (Me. 1991). 
We have often relied on dictionaries to determine such meanings. 
Furthermore, statutory language should be interpreted to avoid absurd,
illogical, or inconsistent results.  Town of Madison, Dep't of Elec. Works v.
Pub. Utils. Comm'n, 682 A.2d 231, 234 (Me. 1996).  "Cupola" is defined as
"[a] domed roof or ceiling" or "[a] small, usually domed structure
surmounting a roof."  The American Heritage Dictionary 349 (2d ed. 1982). 
Similarly, "chimney" is defined as "[a] passage through which smoke and
gases escape from a fire or furnace" or "[t]he part of such a structure that
rises above a roof."  The American Heritage Dictionary 266 (2d ed. 1982).  The
two structures are similar in definition, purpose, and appearance.  Although
the Ordinance specifically recites a list of structures that are excluded from
the calculation of building height, and a cupola is not included in that list, to
vacate the Board's conclusion on this basis would be an overtechnical
interpretation of the Ordinance and would disregard the intent and the
spirit of the Zoning Ordinance to exclude from height restrictions those
structures which are largely ornamental.  If chimneys were excluded from
building height calculation but the similar cupolas were held to be included,
the result would be absurd, illogical, and inconsistent.  Thus, the Board's
determination that a cupola is similar to a chimney and is therefore
excluded from the measurement of building height is not error.
	
	C.Parking

	[¶13]  The Zoning Ordinance provides, "Sufficient space shall be
provided at each retail store or shopping center to provide at least three (3)
square feet of off-street parking space for each one (1) square foot of floor
area."  Rockland, Me., Zoning Ordinance § 19-307(6) (Mar. 6, 2000).  The
Ordinance further states, however, "Nothing in the foregoing paragraphs of
this Section shall be construed as requiring compliance by non-conforming
owners with situations which existed prior to the effective date of this
Section, July 1, 1974."  Rockland, Me., Zoning Ordinance § 19-307(10)
(Mar. 6, 2000).  
	[¶14]  Plaza Realty contends that: (1) although Ellsworth Builders' plan
provides for more parking, the amount of that parking is nevertheless
insufficient, and (2) because the parking "situation" on Ellsworth Builders'
lot is changing with the renovations, this new situation is no longer exempt
from Ordinance parking requirements.  We disagree.  The present status of
Ellsworth Builders' parking existed prior to the effective date of the parking
ordinance provision, July 1, 1974, and it is therefore an existing "situation"
within the meaning of section 19-307(10) of the Ordinance.  The Board
committed no error in concluding that the Zoning Ordinance exempts
Ellsworth Builders' plan from its parking requirements.

	D.Landscaping

	[¶15]  The Zoning Ordinance provides, in part, "In addition to
required perimeter landscaping, at least five (5) percent of the gross area of
all parking lots with twelve (12) or more parking spaces shall be landscaped. 
Existing parking lots shall be exempt from this requirement although
landscaping should be provided to the greatest extent possible."  Rockland,
Me., Zoning Ordinance § 19-316(G)(10)(a)(i) (Mar. 6, 2000).  The
Ordinance further recommends that such landscaping include at least two
canopy trees, one understory tree, and five shrubs for every twelve parking
spaces.  Rockland, Me., Zoning Ordinance § 19-316(G)(10)(a)(ii) (Mar. 6,
2000).  The Board determined that Ellsworth Builders was exempt from
these provisions because its lot was an existing lot.  
	[¶16]  Plaza Realty contends that Ellsworth Builders' plan does not
satisfy these provisions and that the Board erroneously exempted it from the
requirements by characterizing the lot as an existing lot.  Again, we disagree. 
First, the provision regarding the types of landscaping that should be
installed is merely a recommendation rather than a mandatory requirement. 
Moreover, the plain language of the landscaping provision states its
inapplicability to existing lots.  We have already determined that Ellsworth
Builders' lot was previously existing and it is therefore exempt from these
requirements.  Furthermore, Ellsworth Builders' plan does propose to add
landscaping, thus bringing its parking area more in compliance with the
provisions of the Ordinance.  The Board did not erroneously determine that
Ellsworth Builders' lot was exempt from landscaping requirements.
	[¶17]  Finally, Plaza Realty contends that all of the foregoing provisions
are ambiguous, and that ambiguous provisions must be interpreted to reduce
nonconforming uses rather than perpetuate or expand them.  The Zoning
Ordinance does provide: "In no case shall a structure be reconstructed or
replaced so as to increase its nonconformity."  Rockland, Me., Rockland
Zoning Ordinance § 19-308(3)(C)(1) (Mar. 6, 2000).  We have said:
"Nonconforming uses are a thorn in the side of proper zoning and should
not be perpetuated any longer than necessary.  The policy of zoning is to
abolish nonconforming uses as swiftly as justice will permit."  Mayberry,
599 A.2d at 1154 (quoting Farley v. Town of Lyman, 557 A.2d 197, 201 (Me.
1989)).
	[¶18]  Although zoning provisions permitting continued
nonconformity, such as Rockland's Zoning Ordinance, should generally be
strictly construed, Mayberry, 599 A.2d at 1154, our task in construing
statutes and ordinances, including zoning ordinances, is nevertheless to
discern the intent of the legislative bodies that enact them.  Town of
Madison, Dep't of Elec. Works, 682 A.2d at 234.  The Board's
interpretations of the Zoning Ordinance are reasonable and supported by the
plain language of the four provisions at issue here, which in turn reflect the
intent of those who enacted the Ordinance.  These renovations and
expansions actually reduce the nonconformity of Ellsworth Builders' parcel
rather than increase it.  Although the drafters of the Rockland Zoning
Ordinance intended that nonconformities be reduced, it is also clear that
even the strictest interpretation of the Ordinance does not require their
immediate and complete elimination in contravention of its plain language,
which provides for numerous exemptions and exclusions.   The Board
committed no error in interpreting the Rockland Zoning Ordinance
provisions regarding building coverage, building height, parking, and
landscaping.
	The entry is:
			Judgment affirmed.