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Kosalka v. Town of Georgetown

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 106
Docket:	Sag-99-588
Argued:	April 3, 2000
Decided:	June 1, 2000

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




ERIC KOSALKA et al. v. TOWN OF GEORGETOWN


DANA, J.

	[¶1]  Eric and Patricia Kosalka appeal from a judgment entered in the
Superior Court (Sagadahoc County, Calkins, J.) upholding as constitutional a
provision of the Georgetown Shoreland Zoning Ordinance that all
conditional use developments "conserve natural beauty."  Several abutting
landowners cross appeal, contending that the proposed site is located
within a zone that does not allow campgrounds as conditional uses.  The
record supports a finding that the proposed site is in a district that allows
campgrounds.  We conclude, however, that the "conserve natural beauty"
requirement is an unconstitutional standardless delegation of legislative
authority and therefore a violation of due process.  We vacate the judgment.
I. BACKGROUND
	[¶2]  On February 21, 1997, Eric and Patricia Kosalka submitted an
application to the Georgetown Planning Board (GPB) for a permit to
construct a nine-trailer recreational vehicle campground{1} on property
owned by Eric's mother, Ruth Kosalka.
	[¶3]  The Georgetown Shoreland Zoning Ordinance places all property
within the shoreland zone into one of three districts-the Resource
Protection District, the General Development District, and the Limited
Residential-Recreational District.  The Ordinance provides that the
Resource Protection District includes, among other areas, all areas within
the 100-year flood plain except "those areas which are currently
developed."  The General Development District includes areas of two or
more acres "devoted to intensive recreational, commercial, or industrial
activities" and the Limited Residential-Recreational District is a catch-all
district, including all areas not included in either the Resource Protection
District or the General Development District.
	[¶4]  The Ordinance directs individuals to the Georgetown "Shoreland
Zoning Map" to confirm that property rests in certain districts.  Although
the Ordinance places the site of the proposed campground in the Resource
Protection District because it is located within the 100-year flood plain, the
Shoreland Zoning Map places the site in the Limited Residential-
Recreational District.  The Ordinance provides that "[w]here uncertainty
exists as to the exact location of the district boundary lines, the Board of
Appeals shall be the final authority as to the location."
	[¶5]  The Ordinance further provides that campgrounds are allowed,
as a conditional use, in both the General Development and the Limited
Residential-Recreational Districts.  To qualify as a conditional use, a
proposed campground must:  (1) "not result in unsafe or unhealthy
conditions"; (2) "not result in erosion or sedimentation"; (3) "not result in
pollution"; (4) "not result in damage to spawning grounds, fish, aquatic life,
bird and other wildlife habitat"; (5) "conserve shoreland vegetation"; (6)
"conserve visual points of access to waters"; (7) "conserve actual points of
public access to waters"; (8) "conserve natural beauty"; and (9) "avoid
problems associated with flood plain development and use."
	[¶6]  The GPB denied the Kosalkas' application, concluding that the
proposed site was located in Resource Protection District of the shoreland
zone because it was within the 100-year flood plain and was not developed. 
The GPB also found that the proposed campground did not satisfy the
conditional use guidelines because it did not "conserve the natural beauty"
of the area.
	[¶7]  The Kosalkas appealed the GPB's decision to the Georgetown
Board of Zoning Appeals (ZBA).  The ZBA partially reversed the GPB, finding
that the proposed campground was located in the Limited Residential-
Recreational District because the lot was "actually developed." 
Nevertheless, the ZBA denied the Kosalkas' application because it concluded
that it did not have jurisdiction to consider whether the "conserve natural
beauty" requirement was constitutional.
	[¶8]  The Kosalkas filed a complaint in the Superior Court pursuant to
M.R. Civ. P. 80B, challenging the constitutionality of the "natural beauty"
requirement.  Several abutting landowners also filed their own complaint
challenging the Board's ruling that the proposed campground was located in
the Limited Residential-Recreational District.  After the two complaints
were consolidated, the Court affirmed the ZBA's conclusion that the
proposed development is located in the Limited Residential-Recreational
District, and found that the Kosalkas "failed to demonstrate that [the natural
beauty language] is unconstitutional on its face."  The Superior Court
remanded the case to the ZBA to consider whether the proposed
campground satisfied the Ordinance's natural beauty requirement.
	[¶9]  On remand, the ZBA held public hearings, visited the site,
viewed pictures and plans, and concluded that the proposed campground
would not conserve the area's natural beauty.  The ZBA, therefore, affirmed
the Planning Board's denial of a campground permit.  The Kosalkas again
appealed to the Superior Court, which affirmed.  This appeal followed.{2}
II. DISCUSSION
	[¶10]  As an initial matter, we review the Intervenors' claim that the
ZBA erred in concluding that the proposed development falls within the
Limited Residential-Recreational District.  The Intervenors bear the burden
of establishing that the ZBA's conclusion was an abuse of discretion, an error
of law, or unsupported by substantial evidence in the record.  See Herrick v.
Town of Mechanic Falls, 673 A.2d 1348, 1349 (Me. 1996).  The Ordinance
provides that a lot within the geographic boundaries of the Resource
Protection District may nevertheless fall within the Limited Residential-
Recreational District if that lot is "actually developed."  Further, the
Ordinance defines a lot to include land registered in the Registry of Deeds. 
Here, the ZBA found that because the only lot registered in the registry of
deeds supported a house, a driveway, a shack, and mowed fields, the lot was
"actually developed."  We cannot say that this determination is an abuse of
discretion, an error of law, or is made without evidentiary support.  To the
contrary, the ZBA's decision is well within its discretion and is well
supported by competent evidence in the record.  Accordingly, we conclude
that the ZBA did not err or abuse its discretion when it concluded that the
lot fell within the "actually developed" exemption, and was therefore in the
Limited Residential-Recreational District.{3}
	[¶11]  Turning to the Kosalkas' constitutional challenge, the Kosalkas
bear the burden of demonstrating that the Ordinance is unconstitutional. 
See Gorham v. Town of Cape Elizabeth, 625 A.2d 898, 900 (Me. 1993).  The
Kosalkas argue that the "conserve natural beauty" requirement is an
unconstitutional delegation of legislative authority because it fails to "furnish
a guide which will enable those to whom the law is to be applied to
reasonably determine their rights."  Stucki v. Plavin, 291 A.2d 508, 510
(Me. 1972).  We agree.
	[¶12]  We have noted in the conditional use context that "in order to
withstand attack as an impermissible legislative delegation of authority,
ordinances that establish criteria for acceptance of a conditional use must
specify sufficient reasons why such a use may be denied.
"  Gorham, 625 A.2d
at 900.  Developers are entitled to know with reasonable clarity what they
must do under state or local land use control laws to obtain the permits or
approvals they seek.  Waterville Hotel Corp. v. Board of Zoning Appeals, 241
A.2d 50, 53 (Me. 1968); see also Cope v. Inhabitants of Brunswick, 464 A.2d
223, 227 (Me. 1983) (compliance with the "health, safety and welfare of the
public and the essential character of the area" not sufficiently specific);
Shapiro Bros. Shoe Co. v. Lewiston-Auburn Shoeworkers Protective Ass'n,
320 A.2d 247, 253 (Me. 1974) (the public should not have to guess at the
meaning of a statute "leaving them without assurance that their behavior
complies with legal requirements . . . .").
	[¶13]  In Stucki v. Plavin, we held unconstitutional a zoning ordinance
that allowed lots that straddled district lines to be governed by the less
restrictive district, "provided, however, that such extension of use into the
more restrictive portion shall meet the approval of the Zoning Board of
Appeals."  Stucki, 291 A.2d at 509.  In striking down that provision, we
noted that the ZBA was forced to consider, "Under what set of facts do we
grant or withhold approval?" and the applicant had to ask, "What must I
present to gain the Board's approval?"  Id. at 511.  We concluded that "[i]f
there is no language in the ordinance, which, by reasonable interpretation
answers these questions, the [ordinance] . . . is void on its face."  Id.
	[¶14]  Additionally, in Wakelin v. Town of Yarmouth, 523 A.2d 575,
576 (Me. 1987), we struck down a zoning ordinance that gave the ZBA the
discretion to deny special exception applications because the proposed use
was not "compatible with the existing uses in the neighborhood, with
respect to . . . intensity of use . . . and density of development."  Id.  We
concluded that the ordinance "fails to articulate the quantitative standards
necessary to transform the unmeasured qualities 'intensity of use' and
'density of development' into specific criteria objectively useable by both the
Board and the applicant."  Id. at 577.  Without such specific objective
criteria, the ZBA was "free to express a legislative-type opinion about what is
appropriate for the community."  Id.
	[¶15]  Here, the Georgetown Ordinance requires that all development
"conserve natural beauty."  However, all development, to some extent,
destroys or impairs "natural beauty."  If the provision means that all natural
beauty must be conserved, then all development must be banned.  Because
the provision cannot reasonably be interpreted to ban all development, the
question becomes:  How much destruction is okay?  Or, put another way: 
How much conservation is required?  On this question, however, the
Georgetown Ordinance, like the ordinance in Stucki, is silent.  Neither
developers nor the ZBA are given any guidance on how to interpret the
"conserve natural beauty" requirement.  Instead, developers are left
guessing at how much conservation is necessary, and the ZBA is free to grant
or deny permits as it sees fit.
	[¶16]  Unlike the requirements in cases such as Gorham and
Waterville Hotel, there is simply no way to quantify "natural beauty."  The
Georgetown Ordinance does not answer the questions first posed in
Stucki-what must an applicant do to obtain a permit; and under what set of
facts should the ZBA grant or deny the application.  No one can adequately
advise the Kosalkas (or any other Georgetown developer) how to create a
development plan that will satisfy the requirement because, without
guidance in the Ordinance, the ZBA is free to grant or deny permits on
whatever set of facts it sees fit.  This is precisely the problem we sought to
avoid in Wakelin.  Under the Georgetown Ordinance, a developer can bury all
utilities, maintain the site's vegetation, and even plant additional trees, and
still fall short in the minds of ZBA members, who are free to make
legislative-type decisions based on any factor they independently deem
appropriate.
	[¶17]  Because the condition that all proposed developments
"conserve natural beauty" is an unmeasurable quality, totally lacking in
cognizable, quantitative standards, this condition is an unconstitutional
delegation of legislative authority and violative of the due process clause. 
Additionally, because the Georgetown Planning Board concluded that the
proposed campground satisfied all other requirements found in the
Ordinance, we vacate the judgment of the Superior Court and remand to the
ZBA with instructions to grant the conditional use permit.{4}
	The entry is:
Judgment vacated and remanded to the
Superior Court with instructions to remand to
the ZBA with instructions to grant the
conditional use permit.

Attorneys for plaintiffs: Curtis Webber, Esq., (orally) Linnell, Choate & Webber, LLP P O Box 190 Auburn, ME 04212-0190 Attorneys for defendants: James B. Haddow, Esq., (orally) Bruce A. McGlauflin, Esq. Petruccelli & Martin, LLP P O Box 9733 Portland, ME 04104-5033 (for abutting landowners) Carl W. Stinson, Esq. Stinson Lupton & Gabree, P.A. 280 Front Street Bath, ME 04530-2651 (for Town of Georgetown)
FOOTNOTES******************************** {1} . During the application process, the Kosalkas reduced the size of their proposal to an eight-unit campground. {2} . Because we conclude that the "conserve natural beauty" requirement is an unconstitutional delegation of legislative authority, we need not discuss the Kosalkas' alternative argument that the Georgetown Zoning Board erred in concluding that the Kosalkas' proposed campground did not, in fact, conserve natural beauty. {3} . Because the lot is actually developed, we need not address the Kosalkas' alternative argument that the Georgetown Shoreland Zoning Map, which depicts the lot as being in the Limited Residential-Recreational District, trumps the Ordinance, which places the lot in the Resource Protection District because it is within the 100-year flood plain. {4} . The permit would be subject to the conditions agreed to in the course of the hearings before the ZBA.